Andrew Mulenga Kanyanta (In his capacity as Administrator of the estate of the late Rosemary Rachael Kanyanta) v Brian Mubanga Kanyanta (Appeal No. 190 of 2020) [2022] ZMCA 133 (16 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No .. 190 of 2020 BETWEEN: Appellant pendent For the Appellant: Mr. M. A. Mukupa ,of Messrs Is aac & Partners For the Respondent: Mr. M. Mando of Messrs Mando & Pasi Advocates JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: 1. The Intestate Succession Act, Chapter 59 of the Laws of Zambia 2. The High Court Act, Chapter 27 of the Laws of Zambia Cases referred to: 1. Musakanya Valentine Shula & Edward Jack Shamwana v Attorney General (1981) ZR 221 2. Gray Nachandwe Mudenda v Dorothy Chileshe Mude:nda (2006) Z. R. .57 3. BP Zambia Plc v lnterland Motors Limited (2001) ZR 37 4. Bank of Zambia v Jonas Tembo & Others (2002) ZR 103 5. Thoday v Thoday (1964) 1 All E. R. 341 6. Bryne v Brown (1889) 22 Q. B. D. at PP 666-7 7. Montogomery v Foy (1895) 21. Q. B. D. 321 at 324 J1 8. Development Bank of Zambia and KPMG Peat M~ck v Sunvest Ltd & Sun Pharmaceuticals Ltd .. (1995) ZR 187 9. L. Simbeye Enterpresies Ltd and Investrust Merchant Bank (Z) Ltd v Ibrahim Yousuf (2000) ZR 159 Other works 1.. Black's Law Dictionary 2. Halsbury's. 1aws of Eng]and, 4th Edition Vol. 16 LO INTRODUCTION 1. l This is an appeal against a Judgrnent of the Honourable Mrs Justice S. Kaunda Newa of the High Court delivered at Lusaka on 31 st January 2020 on an application made by the Respondent to revoke the appointment of the Appellant as Administrator of the estate of the late Rosemary Rachael Kanyanta (the deceased). 2.0 BACKGROUND 2.1 The brief background of this matter is that the deceased died intestate at the University Teaching Hospital on 7 th January 1996, leaving: behind five children, namely; Beatrice Dalitso Kanyanta, Ellen Kombe Kanyanta, Mark Mumbi Kanyanta, the Appellant and the Respondent. She also left a dependant, Chileshe Wendy Kanyan ta. 2.2 The Appel lant was later appointed as Administrator of the deceased's estate on behalf of the family. 2.3 Letters of Administration were issued to him by the Probate Registrar of the High Court on 9 th October 2007. He proceeded to administer the estate following the issuance of Probate. 2.4 According to the Respondent, the estate of the deceased comprised of the following properties: 1. Lot No, 2751/M, Leopards Hill Road, Lusaka 11. Subdivisions A, B, C of Lot 2751/M, Lusaka. 2.5 On 25th March 2013, the Respondent (Plaintiff in the lower Court) brought an action in the High Court under Cause No. 2013/HP/0367 against the Appellant (Defendant in the lower Court) for an order to render an account of the estate of the deceased comprising of Lot No. 2751/M, Leopards Hill Road, Lusaka and to distribute the estate to the beneficiaries. 2.6 In the affidavit filed in support of the application, the Respondent contended that he was a beneficiary of the estate of the deceased, which estate was being administered by the Appellant, and that the Appellant had mismanaged the estate of the deceased and had failed and/ or neglected to effect distribution of the estate according to the law, hence the action to render an account for the administration thereof. 2.7 The matter was heard and determined by the Hon. Justice M. S. Mulenga, Judge of the High Court as she was then, who deliveredjudgment on 2nd August 2013, ordering the Appellant J3 to produce a full inventory of the estate and render an account of the administration of the said estate including proceeds of the sale of Subdivision A and B of Lot No. 2751/M, Lusaka within a month from the date of the Judgment. The Judge also ordered the Appellant to distribute the remaining estate in accordance with the law. 2.8 Numerous applications followed with the Respondent bringing an application for leave to issue committal proceedings against the Appellant, for his failure to comply with the judgment of the Court of 2 nd August 2013 and the Court granting the same on 15th May 2014. 2.9 The Appellant subsequently brought an application for an extension of time within which to comply with the order of the Court, which was granted, and the Court ordered the Appellant to render an account within one month therefrom and for subdivision of the remaining extent of Lot 2751/M into 5 subdivisions of 2 .36 Acres each. 2.10 Contrary to the said Orders, the Appellant subdivided the subject property into 6 subdivisions and on 26th August 2015, he rendered an account via an affidavit where he undertook to subdivide the property into 5 subdivisions and also admitted that he had failed to account for a total of ZMW894,638. 95 being proceeds of the sale of land belonging to the estate. J4 2.11 It was also shown in the lower Court that the Appellant intended to settle the misappropriated sum by selling Lot 2751 / M which property formed part of the estate. 2.12 The Respondent relied on the Appellant's deposition in the affidavit in support of extension of time within which to comply with Order of Court dated 30th July 2015 in which the Appellant admitted that he was not conversant with his duties as administrator as provided for in the Intestate Succession Act and adding that he had since sold 3 subdivision of the said property of the estate as follows: (a) "Subdivision A of the said Lot 2751/M in extent of 1.9357 hectares or approximately 5 acres to Brentwood Estates Limited for K350,000.00; (b) Subdivision B of the said piece of land in extent 3 acres to Manoj Patel for US$110,000.00 at what I have learnt was K5.00 to US$11 a total of K550,000 and not K385,000 .00 as previously deposed to; (c) Subdivision C to Ms Christine Chilekwa in extent 1. 7 acres for a total of K207 ,000.00" 2 .13 The Respondent had gone further to depose that the inventory deposed to in paragraph 10 of the said affidavit was different from the inventory the Appellant had filed into Court on 19th November 2013, adding that the Appellant had also been failing to meet statutory obligations of paying ground rent for JS Lot 2751/M and was also in the habit of getting advances against assets of the estate. 2.14 The Respondent deposed that, despite the Court Orders for the Appellant to render an account and distribute the estate as directed,. the Appellant had failed to do so hence the Respondent's belief that the disputes surrounding the distribution of the estate wiU not end, unless the Respondent's Letters of Appointment as Administrator are revoked and a new administrator appointed. 2.15 The Appellant filed an initial affidavit in opposition on 23rd May 2019 in which he opposed the Respondent's application for revocation of letters of administration issued to the Appellant. He stated that that the Respondent had earlier issued summons under Cause No. 2013/HP/0367 for revocation of letters of administration before Hon. Lady Justice M. S. Mulenga who delivered her Rulmg on 29th January 2016 dismissing the said application with leave to appeal but that instead of appea]ing the said Ruling, the Respondent had come to Court seeking for the same relief which had already been determined by a competent Court. A perusal of the said Ruling shows that the Appellant had raised a preliminary issue on the regularity of brmging an intedocutory application by ordinary summons for revocation of letters of administration. J6 2.16 The Judge in determining the said application had in fact agreed with the Appellant at page RS as shown on page 4 76 of the Record of Appeal where she guided that the proper cause was for the Appellant to commence fresh action fo:r seeking the said relief and that such action would not amount to multiplicity of actions. She dismissed the application accordingly and granted leave to appeal. 2.17 By the said judgment, the trial Judge found in favour of the Respondent as she found that the AppeHant had acted improperly as administrator of the deceased's estate and proceeded to revoke the letters of administration that were granted to the Appellant. 3.0 DECISION OF THE COURT BELOW 3.1 The Judge in the lower Court found that th e Appellant as administrator did not comply with the Order of the earlier High Court Judgment under Cause number 2013/HP/0367 to subdivide the property into 4 subdivisions for the benefit of the 4 other beneficiaries of the estate but instead went ahead to create an extra subdivision with no explanation as to whom. it would go to. 3 .2 The trial Judge found that the Appellant had failed to distribute the estate as directed by the earlier Order of Court and had also failed to account for the sum of K894,63,8 .. 9S .. J7 She added that the position of administrator is a position of trust and by the Appellant failing to subdivide the estate property as proposed in the account was ground for removal. The trial Judge thus revoked the appointment of the Appellant as administrator and replaced him with the Respondent. 3.3 The trial Judge also determined that the Respondent's placing of the caveat against the estate property was immaterial as that was done to protect the estate as the Appellant had created an extra subdivision contrary to the directive of the Court. The trial Judge also clarified that the Appellant was to be excluded from benefiting from the said subdivisions as he had already benefitted from the sale of the earlier subdivisions. 3.4 The trial Judge concluded her Judgment by directing that the remaining land of the estate be subdivided into 5 portions which should comprise 4 subdivisions to be distributed to the other 4 beneficiaries excluding the Appellant and that the portion that the dwelling house be sold and that the proceeds be shared among all beneficiaries taking into account the money that the Appellant had failed to account for as well as the money that was paid to the Respondent. The Judge further directed that the Appellant should take necessary steps for the title deed, which was now under the Appellant's name, to be revised with a view of distributing the subdivision into the 4 beneficiaries' respective names adding that the distribution was to be done within one year. J8 4.0 THE APPEAL 4.1 Being dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal and Memorandum of Appeal on 24th March 2020 advancing five grounds of appeal namely: i) The learned trial judge was wrong at law to revoke letters of administration of Andrew Mulenga Kanyata and to appoint Brian Mubanga Kanyata in his place as Administrator of the estate based on the same facts and between the same parties in which a Court of competent jurisdiction heard and determined and made orders including an order that the Defendant Andrew Mulenga Kanyanta must distribute the Remaining Extent of the estate property in accordance with the law. ii) The learned trial judge was wrong at law to make fresh orders which contradict earlier orders made by another judge in the same matter and between the same parties. iii) The learned judge misdirected herself by finding that the caveat which had been placed on the property by the Plaintiff was irrelevant in determining the application to revoke letters of Administration . . iv) The learned trial judge misdirected herself by finding that the Defendant did not comply with the directions of the ]9 Court to subdivide the Remaining Extent of the property into 5 subdivisions when the Defendant in fact had explained to the other trial judge why it was not technically possible to do so because of a Road Reserve. v) The learned trial judge was wrong at law by ordering that the Defendant was to be excluded from benefiting from the subdivisions even after the other beneficiaries would benefit from the proceeds of sale and the dwelling house. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The Appellant filed heads of argument in support of the appeal on 8 th October 2020. 5.2 In . relation to ground one, the Appellant argued that the learned Judge in the Court below was wrong at law to revoke letters of administration issued to him and appoint the Respondent in his place as Administrator of the estate as a Court of competent jurisdiction had previously heard and determined this matter and made orders that he must distribute the estate in accordance with the law. 5.3 The Appellant argued that the matter was res judicata and relied on the case of Musakanya Valentine Shula and Edward Jack Shamwana v Attorney General1 in which the Court held that ' the same issue cannot be raised by either of them JIO again in the same or subsequent proceedings ex:cept in special circumstances'. 5.4 In arguing ground two, the appellant submitted that the learned Judge was not competent to make contradictory orders from orders already made by another Judge that the Defendant (and not the Plaintiff) should comp]ete the administration of the estate although he had not accounted for the proceeds of sale of Subdivisions A, B and C of the estate property. 5.5 Under ground three of the appeal, the Appellant contended that it was erroneous and arrogance on the part of the Respondent to place a caveat against the subject property and later come to Court seeking revocation of the letters of administration on account of his failure to distribute the subject property when the Appellant was not able to get approval from the planning authority to distribute th e property due to the said caveat endorsed thereon. 5.6 In arguing ground four of the appeal, the Appellant argued that it was not possible to create 5 subdivisions on the subject property as directed by the Court as part of the property where the subdivisions were to be done had road reserve as confirmed by a surveyor he had contracted to undertake the job. JI I 5.7 The Appellant argued ground five of the appeal on the basis that if all the other 4 beneficiaries will have received a share from the selling of the dwelling house what they should have received on sale of subdivision A, B and C then at that point all the beneficiaries including him would have been at par and therefore there would be no basis to exclude him from being given a subdivision. 6.0 ARGUMENTS OPPOSING THE APPEAL 6.1 The Respondent did not file Heads of Argument despite being given leave to file same out of time by a single Judge of this Court. 7.0 DECISION OF THIS COURT 7 .1 The appeal was heard on 5 th April 2022. Both Counsel for the Appellant and the Respondent were in attendance and relied on their respective documents in support filed before Court. 7.2 We have carefully reviewed the Record of Appeal and considered the arguments of the respective parties. We shall determine the appeal in order of the grounds of appeal. 7.3 Under ground one of the appeal, the Appellant contends that the learned trial judge was wrong at law to revoke letters of administration of the Appellant and to appoint the Respondent J12 in his place as administrator of the estate based on the same facts and between the same parties in which a Court of competent jurisdiction heard and determined and made orders including an order that the Appellant must distribute the Remaining Extent of the estate property in accordance with the law. 7.4 In arriving at the said decision, the trial Judge found that the Appellant had changed title deed ownership of the estate property into his name as beneficial owner, which practically entails that the Appellant had in fact distributed the estate property to himself to the exclusion of the other 4 beneficiaries of the estate. The trial Judge also found that the Appellant had failed to subdivide the estate property into the subdivisions he was ordered to so subdivide by an earlier decision of the High Court dating as far back as 15th May 2014. This was in the Judgment under Cause No. 2013/HP/0367 shown at page 688 of the Record of Appeal and reaffirmed in that Court's later Ruling of 30th July 2015 as shown at page 285 of the Record of Appeal. 7.5 The further uncontroverted evidence in the lower Court is that the Appellant admitted having failed to render an account for sums in excess ofZMW894,638.95 which were proceeds of sale of subdivisions A, B and C of the Lot 2751, being property forming part of the estate on account of not having familiarized Jl3 himself with his duties as administrator as enshrined in the Intestate Succession Act. 7 .6 Given the foregoing, we find it necessary to highlight the position of the law regarding the mandate placed on the Courts, the obligations of an administrator and the rights of beneficiaries under the estate. 7. 7 The Supreme Court in the case of Gray Nachandwe Mudenda v Dorothy Chileshe Mudenda2 summarized the duties of an administrator of the estate as follows: "The duty of an administrator is not to enhance the estate, but to collect the deceased's estate, distribute it to the beneficiaries and render an account." 7 .8 The foregoing duty is anchored on the provisions of Section 19(1) of the Intestate Succession Act which provides that: "( 1) The duties and powers of an administrator shall be- (a) to pay the debts and funeral expenses of the deceased and pay estate duty if estate duty is payable; (b) to effect distribution of the estate in accordance with the rights of the persons interested in the estate under this Act; (c} when required to do so by the court, either on the application of an interested party or on its own motion- (i} to produce on oath in court the full inventory of the estate of the deceased; and (ii} to render to the court an account of the administration of the estate." 7.9 Section 19(2) places a further obligation on an administrator who deems it necessary to sell property of the estate to do so with authority of the Court. This entails that an administrator intending to sell property belonging to an estate of a deceased person must furnish cogent reasons before Court as to why he seeks to sell the estate property. When such authority is granted by a Court, the administrator has a further duty to secure a best possible price available on the market for such conveyance. 7.10 The relevant provision provides that: "Where an administrator considers that a sale of any of the property forming part of the estate of a deceased person is necessary.or desirable in order to carry out his duties, the administrator may, with the Jl5 authority of the Court, sell the property in such manner as appears to him likely to secure receipt of the best price available for the property." 7 .11 In summarizing the rights and duties of stakeholders in the affairs of an estate, Se.ction 19 aforesaid implies that the Court has an oversight role in the affairs of the estate starting from the appointment and performance of functions of an administrator. This is implicit in the administrator's duty to produce an inventory and/ or render an account when required to do so on the Court's own motion or when so moved by an interested party. The administrator has a duty to perform such duty when called upon by the court diligently, on oath as he holds the assets of the estate in trust and not beneficially. 7.12 Further, Section 19(1) also imputes a right on interested parties under the estate to hold the administrator accountable in his dealings by giving them the right to seek through the Court, for an inventory or an account of the administration of the estate. 7.13 Section 29 of the Intestate Succession Act gives further guidance on the administration of estates and the circumstances when probate may be revoked from an administrator. It specifically provides for the revocation of grants of letters of administration and for succession thereof and states that: J16 "(1) Letters of administration may be revoked or annulled for any of the following reasons- (a} that the proceedings to obtain them were defective in substance; (b) (c) that the grant was obtained fraudulently; that the grant was obtained by means of an untrue statement of a/act essential in point of law to justify the grant, though that statement was made in ignorance or inadvertently; (d) that the grant has become of no use and inoperative; (e} that the person to whom the grant was made has, without reasonable cause failed, to furnish an account of his administration after having been lawfully called upon to do so, or has prepared an account which is untrue in a material particular. (2) Where the court is satisfied that proper administration of the estate and the interests of the persons beneficially entitled to them so require, it may- (a) suspend or remove an administrator; (b) provide for the succession of another person to the office of that administrator who shall cease to hold office; and (c} provide for the vesting in the successor of any property belonging to the estate.,, Jl7 7.14 The evidence shows that the Appellant was appointed as administrator of the estate in 2007. On 2nd August 2013, he was ordered to render an account to the beneficiaries within a month and distribute estate thereto, which he failed to do leading to the decision of Newa, J in January 2020, 13 years after his appointment. 7 .15 Given the Appellant's track record as administrator of the estate over a 13 year period which included failing to furnish accurate accounts by way of filing two conflicting inventories in prior proceedings in the Court below, conversion of title of the property of the estate into his name as beneficial owner, failure to distribute the estate property to other beneficiaries of the estate, selling subdivisions A, B and C of Lot 2751/M being property of the estate without authority of the Court, and failing to account to the other beneficiaries for the proceeds of the sale, we find no valid reason to disturb the lower Court's decision to revoke his appointment as administrator and replace him with the Respondent. By the Appellant's own admission, he did not act in a prudent manner in his administration of the estate. This ground of appeal therefore fails accordingly. 7.16 In ground two of the appeal, the Appellant contends that the learned trial judge was wrong at law to make fresh orders which contradict earlier orders made by another judge in the same matter and between the same parties. JIS 7 .17 The Appellant argued that the trial Court was in error when it directed that the Respondent now complete the administration of the estate as a new administrator contrary to the order of the earlier High Court matter under Cause No. 2013/HP/0367 in which the Judge directed that the administration be done by the Appellant. 7 .18 The issue in contention borders on the revocation of letters of appointment granted to the Appellant and the subsequent appointment of the Respondent as administrator thereof by Judgment of the lower Court dated 31 st January 2020. The historical background as noted from the earlier part of the Judgment is that the Respondent had at some point sought to have the Appellant's appointment revoked in the matter under Cause No. 2013/HP/0367 but the Judge dismissed the application on a preliminary issue raised by the Appellant himself. In the Judge's Ruling in that matter on the regularity of bringing an interlocutory application by ordinary summons for revocation of letters of administration, the Court determined that at page RS as shown on page 4 76 of the Record of Appeal where she guided that the proper course was for the Appellant to commence a fresh action for seeking the said relief and that such action would not amount to multiplicity of action. 7 .19 We re-iterate that we equally find nothing wrong in the lower Court's entertainment of the Respondent's action below and Jl9 determining that the Appellant be removed as administrator given the reasons we have advanced above particularly that the Appellant had failed to comply with the Judge's directive of 2013. 7 .20 Given the nature of responsibilities of administering an estate, it is not far-fetched to envisage that a desirable and qualified administrator at one point m aybe susceptible to removal at another point given the manner in which he performs his fiduciary duties under the estate. We therefore find no merit in this ground of appeal. It also fails accordingly. 7 .21 In ground three of the appeal, the Appellant contends that the learned judge misdirected herse]f by finding that the caveat which had been placed on the property by the Respondent was irrelevant in determining the application to revoke letters of Administration. Again, we have no basis to agree with the Appellant on his contention. Th e placement of the caveat by the Respondent was necessitated by the Appellant's wanton desire to manage the estate in the m.anner that pleased only him contrary to the law and orders of Court. 7 .. 22 Page 261 of th e Record of Appeal shows that the lower Court h ad rendered a J udgment dated 2nd August 2013 directing the Appellant to provide a full inventory, render an account of his administration and distribu te the estate in accordance with th e law. J20 7.23 However, rather than among other things complying with the said order of Court to distribute the estate to the beneficiaries, the Appellant in addition to selling subdivisions A and B of the estate's property, proceeded to again assign subdivision D of the property of the estate to one James Kamanga at the cost of KSS0,000, which assignment was registered on 2nd August 2013 representing a period of one month after the directive of the Court. It is clear that the Appellant had no intention to abide by orders of the Court or to follow the dictates of the law which require an administrator to distribute an estate to its beneficiaries and the Respondent was well in order to have placed a caveat 2 weeks after the said transaction on the 18th September 2013. This evidence is as shown on the lands register found at page 669 of the Record of Appeal. 7 .24 Given such abhorrent conduct of the Appellant in the administration of the estate, whose authority was hanging on the technicality of the letters of administration granted to him, it was only prudent that the Respondent protected his interests and that of other beneficiaries by placing a caveat on the subject property. The Appellant argued that this caveat prevented him from distributing the estate. This reason is particularly not compelling given the fact that the Appellant had a clear mandate of the High Court to distribute the estate in accordance with the law, that is by way of vesting the property into the respective beneficiaries. J21 7.25 However, the Appellant did not show that the caveat hampered the process of subdividing the property, or that he made any effort to request the Respondent or the Court to have it removed to enable him effect the orders of the Court. This argument appears to be raised as an afterthought. For the same reason and the reasons we have given above, we equally find no merit in this ground of appeal. 7.26 The contention of the Appellant in ground four is that the learned trial judge misdirected herself by finding that the Defendant did not comply with the directions of the Court to subdivide the Remaining Extent of the property in to 5 subdivisions when the Defendant in fact had explained to the other trial judge why it was not technically possible to do so because of a Road Reserve. We have, in determining the other grounds of appeal above, alluded to the discrete and shrewd manner with which the Appellant was administering the affairs of the estate. For the reasons given above, we have no reason to consider this ground further than this. It fails accordingly. 7 .27 In the fifth and final ground of appeal, the Appellant contended that the learned trial judge was wrong at law by ordering that he was to be excluded from benefiting from the subdivisions even after the other beneficiaries would benefit from the proceeds of sale and the dwelling house. In determining this ground of appeal, we make reference to the trial Judge's directive on this particular issue. J22 7 .28 The trial Judge held that the remaining land of the estate be subdivided into 5 portions which should comprise 4 subdivisions to be distributed to the other 4 beneficiaries excluding the Appellant and that the portion that houses the dwelling house be sold with the proceeds being shared among all beneficiaries taking into account the money that the Appellant had failed to account for as well as the money that was paid to the Respondent. The Judge further directed that the Appellant should take necessary steps for the title deed to be corrected in ownership from the Appellant's name to the beneficiaries of the estate as required by law. 7.29 We are cognizant of the fact that the Appellant sold subdivisions A, B and C of Lot 2751 belonging to the estate of the deceased and failed to render an account of the proceeds from such sales. The Judgment of the lower Court imputes that the 4 beneficiaries excluding the Appellant shall each have one of the subdivisions and the proceeds from the sale of the fifth subdivision where the dwelling house is situated will be shared equally among the beneficiaries including the Appellant. This order is subject to the money the Appellant has failed to account for and the sums he had advanced to the Respondent. The Appellant had conceded that he had sold earlier subdivisions and not accounted to the others for proceeds of the sale of the property. He had sole use, interest and benefit of these funds and all the advantages of having cash to the exclusion of the other beneficiaries. J23 • 7 .30 He ca.µnot therefore cry foul that he has been excluded from benefiting from the remaining subdivisions. The lower Court cannot be faulted for recognizing the interest of the other beneficiaries and penalizing the Appellant following his improper conduct and misappropriation of the estate. We equally find no merit in this ground of appeal and it also fails. 8. CONCLUSION 8.1 All the grounds of appeal h failed, this appeal is accordingly dismissed with co e Respondent. The costs are to be agreed and in taxed. J. Chas . COURT OF APPEAL JUDGE P. C. M Ngulube COURT OF APPEAL JUDGE ~A . Sharpe.hiri COURTOFAPPEALJUDGE J24