Chrispin Malambo v Moses Malambo (App No. 150 of 2021) [2023] ZMCA 307 (31 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) App No. 150 of 2021 BETWEEN: CHRISPIN MALAMBO AND Of ZAMB Of APPEA "lh-:6' ~-~ 11JGI APPELLANT MOSES MALAMBO RESPONDENT Coram: Sichinga, Patel, and Chembe, JJA On 25th August, 2023 and 31 st August, 2023 For the Appellant : Mr. S. Mbewe of Messrs Keith Mweemba · Advocates For the Respondent : No Appearance JUDGMENT Sichinga JA delivered the Judgment of the Court Cases ref erred to: 1. Brenda Muzyamba v Martha Muzyamba Sinabbomba and Others SCZ Appeal No 11 of 2019 2. Imbwili Investment Limited v Attorney General 2014/HP/0691 (Unreported) 3. Cosy Comer Guest House Limited v Lady Rossy Christian School Limited_ and Another 2013/HP/0747 (Unreported) 4. Costa Tembo v Hybrid Poultry Farm Limited SCZ Judgment No. 13 of 2003 5. Fred M'tonga and Xavier M'tonga v Tisiye M'tonga Matonka CAZ Appeal No 93 o/2018 6. J. K. Rambai Patel v Mukesh Kumar Patel [1985] ZR 220 7. General Nursing Council v Ing'utu Milambo Mbangweta [2008] 2 ZR 105 8. Zambia Tourism Agency v Charity Chanda Lumpa SCZ Appeal No. 12 of 9. Mohamed Muazu v The Attorney General (1988-1989) Z. R. 2014 10. Masauso Zulu Avondale Housing Project Limited (1982) ZR 172 (SC) 11. Pan African Building Society v Pemba Lapidaries Limited and Lapemba Trading Limited CAZ Appeal No. 7 of 2017 12. Yusuf Musa v A. H. Itowala SCZ Appeal No. 40 of 1993 13. Y. B and F Transport v Supersonic Motors Limited (2000) ZR 22 Legislation refe"ed to: 1. The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 2. Intestate Succession Act,· Chapter 59 of the Laws of Zambia 3. The High Court Rules, Chapter 27 of the Laws of Zambia 4. The Rules of the Supreme Court of England 1999 Edition (White Book) 5. The Lands Act, Chapter 184 of the Laws of Zambia Other works refe"ed to: 1. Black's Dictionary of Law, Bryan A. Gamer- Bth Edition 2007 1.0 Introduction 1.1 This is an appeal against the judgment of the High Court (S. K. Newa, J) dated 7 th June, 2021 pursuant to which the court dismissed the action after finding that the appellant had no locus standi to commence the proceedings in his capacity as administrator, as the probate granted to him by the High Court was null and void for lack of registration. 2.0 Background 2.1 According to the appellant's affidavit in support of Originating Summons dated 8 th September 2020, George Malambo died on 23rd November 1997 and upon his demise, the 1st respondent was appointed Administrator of his estate by the Local Court. His letters of administration were later revoked. The appellant was then appointed Administrator by the Local Court and subsequently granted letters of administration by the High Court. 2.2 The appellant conducted a search at the Ministry of Lands and discovered that the 1st respondent had changed ownership of the property known as S/D 169 A of Farm No. 459a Shimabala, Kafue (hereafter "the subject property") from the deceased's name into his name. The search revealed further that the 1st respondent had placed a caveat on the said property, demarcated it into residential properties and began selling to · unknown persons who had started building structures thereon. 2.3 It was deposed that the 1st respondent proceeded to obtain title in his own name as legal owner and not in trust for the beneficiaries of the estate, that is, the deceased's wife and six children. That the selling of the portions of land was for his own benefit, without accounting to the estate of the late George Malambo. 2.4 The appellant herein sought the following reliefs from the High Court: i) An order for an interim injunction restraining the respondents either by themselves, their agents, servants or whosoever from interfering, demarcating and selling plots and carrying out developmental activities on the property known as S/D 169 A of Farm No. 459a Shimabala, Kafue pending final determination of the matter or until final order of the Court: ii) An order that the caveat placed on the property known as S/D 169 A of Farm No. 459a Shimabala, Kafue be removed; iii) An order that the certificate of title which was erroneously issued to the 1st respondent be cancelled forthwith; iv) An order that all the illegal structures constructed on the property known as S/D 169 A of Farm No. 459a Shimabala, Kafue be demolished forthwith; and v) Any other relief as the court may deem fit. 2.5 The 1st respondent filed an affidavit in opposition of Originating Summons on 23rd October 2020. He stated therein that the letters of administration granted in his favour were revoked at the instance of the appellant and the Local Court advised that two administrators be appointed but the appellant obtained letters of administration and probate without the knowledge nor consent of the family and the beneficiaries. 2.6 He deposed further that the probate granted to the appellant on 5 th June, 2018 expired on 5th June, 2019 and as such, the appellant had no authority to continue administering the estate of the late . George Malambo. He admitted that the Certificate of Title relating to the subject property was in his name, as was advised at a family meeting where it was agreed that he should hold it in his name for the family. He equally admitted having placed a caveat on the property but explained that he did so because the Certificate of Title was lost or misplaced and he placed the caveat to safeguard the interest of the family. He denied having demarcated the property for sale. 3.0 Decision of High Court 3.1 The learned Judge noted the issue of the appellant's locus standi raised by the 1st respondent, to the effect that the appellant commenced the action 1n his capacity as administrator, yet his probate granted on 5 th June 2018 had not been registered with the Lands and Deeds Registry within the requisite one year from the date of issuance, contrary to section 5(3) of the Lands and Deeds Registry Act1 . The Judge also considered section 6 of the Lands and Deeds Registry Act, which states that failure to register a document which is by the Act required to be registered renders such document null and void. 3.2 The lower court held that since the appellant's claims were anchored on interest in land, the appellant's failure to register the probate in accordance with section 6 of the Lands and Deeds Registry Act renders the probate void, which entails that the appellant lacked legal capacity to commence the action. The court therefore found that the appellant had· no locus standi to commence the action in his capacity as Administrator of the estate of the late George Malambo, and accordingly dismissed the action. 4.0 The Appeal 4.1 Dissatisfied with the Judgment of the High Court, the appellant launched this appeal, raising three grounds (amended) as follows: 1. The trial Judge misdirected herself in law and fact when she held that the appellant lacked locus standi or legal capacity to commence these proceedings in his capacity as administrator of the estate of the late George Malambo as the letters granting him probate are null and void. 2. The trial Judge misdirected herself in law and fact when she held that the letters of probate granted to the appellant, not having been registered in line with section 5(3) of the Lands and Deeds Registry Act, are null and void without considering the effect of a caveat on the subject property. 3. The trial Judge misdirected herself in law and fact when she dismissed the appellant's action with costs. 5.0 Appellant's Heads of Argument 5.1 In support of this appeal, Mr. Mbewe, learned counsel for the appellant, relied on the heads of argument dated 6 th October 2021 and appellant's heads of argument in reply filed on 14th August, 2023. 5.2 It was argued that there is nothing in sections 5(3) and 6 of the Lands and Deeds Registry Act that invalidates the appellant's legal capacity nor prevents him, as an administrator of the estate of the late George Malambo, from taking legal action against any person holding the property of the deceased. The case of Brenda Muzyamba v Martha Muzyamba Sinabbomba and Others1 was cited, where the Supreme Court stated in relation to section 24(1) of the Intestate Succession Act2 that: "The grant entitles the administrator to all the rights belonging to the deceased as if the administration had been granted at the moment of his death. However, this does not give the administrator the right to convert the property to his · own use or to deal with the property in a manner detrimental to the rights or interests of the beneficiaries under the Act." 5.3 The appellant submitted that in the absence of evidence relating to the revocation of the letters of administration granted to him on 5 th June, 2018, the grant from which the appellant derives his legal capacity to sue on behalf of the estate of the late George Malambo is still valid and as such, he has the requisite capacity to sue, as such legal capacity is not dependent on the prior registration of the probate at the Ministry of Lands. 5.4 The appellant further cited section 6(ii) of the Lands and Deeds Registry Act which states: "6. Any document required to be registered as aforesaid and not registered within the time specified in the last preceding section shall be null and void: Provided that- (ii) the probate of a will required to be registered as aforesaid, and not registered within the time specified in the last preceding section, shall be null and void so far only as such will affects land or any interest in land." 5.5 On the basis of this provision, it is the appellant's contention that the effect of non-registration is limited to dealing in land such as selling it or vesting it in his name and does not affect legal capacity to sue. We are urged to set aside the lower court's finding that the appellant lacks locus standi. 5.6 In support of the second ground of appeal, the appellant argued that the learned Judge did not consider the effect of the caveat placed by the 1st respondent, which prevented the appellant from registering the probate. Section 79 of the Lands and Deeds Registry Act was cited to this effect, which states: "So long as a caveat in Form 8 remains in force, the Registrar shall not make any entry on the Register having the effect of charging or transferring or otherwise affecting the estate or interest protected by such caveat: Provided that nothing herein shall prevent the completion of the registration of an instrument which has been accepted for registration before the receipt of the caveat." 5.7 That according to this provision, only the 1st respondent can request the Registrar to vacate the caveat, otherwise the court must be moved, as is the case in these proceedings, to order the removal of the caveat in accordance with sections 81 (1) and.(2) of the Lands and Deeds Registry Act. I 5.8 The appellant argued further that on 10th December, 2_020, the court granted an ex-parte order for leave to register probate out of time, which order was still valid at the time the lower court rendered the judgment that is the subject of this appeal. As such, the court should have had this in mind before proceeding to dismiss the action. 5. 9 In support of the third ground of appeal, the appellant argued that the lower court ordered costs in favour of the respondents after wrongfully dismissing the action and as such, the order for costs should be set aside. 6.0 Respondents' I Arguments 6.1 Neither the respondents nor their counsel were present at the hearing. We proceeded with the hearing after satisfying ourselves that they had been served with the notice of hearing and had filed heads of argument dated 26th July, 2023. 6.2 In response to the first and second grounds of appeal, it was argued that the probate granted to the appellant is void in relation to the property in question and as such, the appellant lacks locus to apply for the removal of the caveat. Counsel argued further that section 5(3) of the Lands and Deeds Act is worded in mandatory terms and that the issue of non registration of the letters of administration was never contested, contrary to the appellant's assertion that it was raised in the respondents' submissions and not in affidavit evidence. 6.3 The cases of Imbwili Investment Limited v Attorney General2 and Cosy Corner Guest House Limited v Lady Rossy Christian School Limited and Another3 were cited, where it was held that a document which is required to be registered in accordance with the provisions of the Lands and Deeds Registry Act but is not duly registered is null and void. 6.4 Further, counsel argued that the appellant's contention that he could not register the probate because there was a caveat has no substance because the appellant did not show the lower court any proof that he attempted to register the probate. That if we allowed this appeal, our decision would have the effect of setting in motion illegalities that would empower the appellant to administer the property in question on the basis of a void probate. We are urged to disallow the first two grounds of appeal. 6.5 In response to the third ground of appeal, the 1st respondent argued that the lower court correctly awarded costs to the 1st respondent at its discretion in accordance with Order 40 Rule 6 of the High Court Rules3 and Order 62 Rule 3 of the Rules of the Supreme Court of England4 • The case of Costa Tem.bo v Hybrid Poultry Farm Limited4 was cited to the effect that a successful litigant will usually be entitled to costs, unless the court has good reasons to order otherwise. On this basis, the 1st respondent argued that the lower court exercised its discretion judiciously as the respondents were the successful party and did not behave m a manner that warranted them to be denied costs. 7.0 The appellant's submissions in reply 7.1 On 14th August, 2023, the appellant filed his heads of argument in reply. In response to the 1st respondent's arguments on grounds 1 and 2, it was argued that the . requisite and necessary locus standi to apply for the removal of a caveat is based on a demonstration of interest in the caveated property and not registration of probate or letters of administration. Reliance was placed on sections Bl and 83 of the Lands and Deeds Registry Act. 7.2 It was submitted that in the present case, the appellant fell within the "other interested person" who can move the court, as he did in the lower court, to have the caveat placed by the 1st respondent against the subject property removed. 7.3 It was argued that the appellant derived his interest in the subject property by virtue of probate No. 158 of 2018 shown at page 50 of the record of appeal, and was backed by law in sections 3, l 5, and 24 of the Intestate Succession Act. 7 .4 On the effect of a caveat, we were referred to section 79 of the Lands and Deeds Act supra. We were further referred to Black's Law Dictionary1 where it states that: "Once lodged with the register of deeds, this notice [caveat] prevents the register from recording any dealings affecting the estate or the interest claimed." 7.5 It was argued that it was not in dispute, in this case, that the 1st respondent has to date not willingly withdrawn the caveat placed on the subject property. As such, it was contended that the appellant could not possibly register the letters of administration despite lodging it. It was submitted that the argument that the appellant lacked locus standi on account of non-registration of probate is misplaced and not backed by law. Reliance was placed on section 29 of the Intestate Succession Act to the effect that a grant remains valid until revoked. 7.6 We were urged to dismiss the 1st respondent's arguments on grounds 1 and 2 and accept the appellant's position that he has locus standi to commence the action for removal of a caveat. 7.7 In reply to the arguments on ground three, we were referred to a number of cases on costs including the cases of J. K. Rambai Patel v Mukesh Kumar Patel5 and General Nursing Council v Ing'utu Milambo Mbangweta6 where the Supreme Court has upheld the principles that the award of costs is in the discretion, that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted the costs, and that the discretion of the court must be exercised judicially. 7.8 It was argued that in the present case the trial court did not consider that the respondent is holding title to the property in a manner sufficiently grave to materially injure or endanger the estate. That in the circumstances of this case the court ought not to have awarded the respondent the costs. Reference was made to the case of Zambia Tourism Agency v Charity Chanda Lumpa7 on the principle that the exercise of discretion by trial courts in the award of costs will not lightly be interfered with on appeal save where the lower court has, in the exercise of its jurisdiction, wrongly or unjudicially exercised its discretion resulting in manifest injustice. 7.9 We were urged to allow ground 3 of the appeal on the basis of the appellant's submissions. 8.0 The decision of this Court 8.1 We have carefully considered the record of appeal together with the appellant's and respondent's submissions. 8.2 The appellant framed the issue for consideration in this appeal as follows: - Whether the requirement to register probate or letters of administration under section 5(3) and 6 of Lands and Deeds Registry Act is condition precedent to the appellant's legal capacity or locus standi to maintain a suit on behalf of the estate of the late George Malambo against the respondent. In other words, do these provisions require that an administrator must first register letters of administration or probate before commencing legal action against any person holding property forming part of the estate of the deceased? 8.3 The appellant has given a general expression of what this appeal tasks us to determine. In essence, this case particularly relates to the pursuit of land forming a part of the estate or an interest therein by a personal representative. The emphasis is on land or an interest in land, as opposed to property forming part of the estate in general. 8.4 Undoubtedly, a personal representative's capacity to sue, in the case of an intestate estate such as this one, is derived from the grant of letters of administration, per section 24(1) of the Intestate Succession Act2. It provides as follows: 24. (l) Subject to any limitations and exceptions contained in a grant of letters of administration the grant entitles the administrator to all rights belonging to the deceased as if the administration had been granted at the moment after his death except that letters of administration shall not render valid any intermediate acts of the administrator tending to the dimunition or damage of an intestate's estate." 8. 5 This provision effectively transfers all legal rights of the deceased to the personal representative from the time of death, including the capacity to bring an action on behalf of the estate. The appellant's right of legal representation on behalf of the estate is derived from the grant of letters of administration. 8.6 However, one of the limitations of the Local Court in issuance of letters of administration is as set out in section 43(2) of the Intestate Succession Act, which provides that: "A local court shall have and may exercise jurisdiction in matters relating to succession if the value of the estate does not exceed fifty thousand kwacha" 8. 7 The appellant subsequently obtained probate in the High Court, thereby gaining audience before the High Court, which has jurisdiction in relation to an estate valued more than fifty Kwacha (rebased). Where probate is granted by the High Court, it is required to be registered at the Lands and Deeds Registry if it relates to land or any interest in land. Section 5(3) of the Lands and Deeds Act provides: "(3) Probate of a will affecting land or any interest in land shall be registered within twelve months of the grant thereof or the sealing thereof under the provisions of the Probates (Resealing) Act, as the case may be." 8.8 Under the Lands and Deeds Registry Act, probate of a will includes letters of administration with or without a will annexed. The implication of non-compliance with section 5(3) of the Lands and Deeds Act is as set out in section 6 of the Act as follows: "Any document required to be registered as aforesaid and not registered within the time specified in the last preceding section shall be null and void: Provided that- {i) the Court may extend the time within which such document must be registered, or authorise its registration after the expiration of such period on such terms as to costs and otherwise as it shall think fit, if satisfied that the failure to register was unavoidable, or that there are any special circumstances which afford ground for giving relief from the results of such failure, and that no injustice will be caused by allowing registration; (ii) the probate of a will required to be registered as aforesaid, and not registered within the time specified in the last preceding section, shall be null and void so far only as such will affects land or any interest in land. "(Emphasis ours) 8.9 With regards to the effect of non-registration of a document required by law to be registered, in the case of Fred M'tonga and Xavier M'tonga v Tisiye M'tonga Matonka8 , we upheld the High Court's decision that a Deed of Trust that was not registered in accordance with the provisions of the Lands and Deeds Registry Act was void. The Deed of Trust having been rendered void, the properties held thereunder formed part of the deceased's intestate estate and were to be distributed in accordance with the provisions of the Intestate Succession Act. 8.10 In light of the statutory provisions and case law cited above, we do not hesitate to agree with the lower court that the letters of administration, having not been duly registered within the requisite one year following its execution, are null and void. 8.11 What is more pertinent in this matter is the consequence of the nullity of the letters of administration on the representative capacity of the appellant herein. We are mindful that section 6(ii) of the Lands and Deeds Act qualifies that an unregistered probate is only null and void in so far as it affects land or an interest in land. 8.12 The learned Judge's justification for dismissing the action was that since the reliefs sought were related to land, that is, removal of a caveat and demolition of structures thereon, the appellant's omission to effect registration robbed him of locus. This aspect awakens the question of where the appellant derives his legal capacity to bring an action on behalf of the estate. The nullity of probate is in relation to the part of the estate that relates to land, hence the Judge's finding that since the matter was commenced on the basis of section 81 of the Lands and Deeds Registry Act. The nature of the action is one that relates to land or an interest in land, and nullity effectively means as if the probate were not granted in respect of the land. 8.13 In our view, the finding of the lower court does not mean the appellant's appointment as administrator was invalid, and we do not see the respondent making that assertion in this appeal. Further, the finding of the lower court does not stain the validity of the letters of administration in totality. It means that if the nature of the reliefs sought by the appellant was such that the issues did not relate to land, the provisions of section 6(i) of the Lands and Deeds Registry Act would have been inconsequential, as the appellant would still have a valid probate to pursue other legal interest in relation to the estate that do not relate to land. 8.14 However, in the circumstances of this case, the jurisdiction of the High Court ought to be considered in relation to the legal provisions relating to administration of land, which is mainly governed by the Lands Act5 and the Lands and Deeds Registry Act. According to section 6(ii) of the Lands and Deeds Act, lack of registration invalidated the probate as regards his interest in the land in issue, thereby purging him of audience to seek relief in relation to the subject land. It is immaterial that at the time of the judgment appealed against, there was an ex-parte order allowing extension of time within which to register the probate. This is because at the time of commencement of the action, it is not in dispute that the one year period had already lapsed and that is the basis of the respondent's assertion of locus standi to commence the action, and not to continue it. 8.15 Therefore, the appellant first needed to register the probate within the requisite one year period of the court granting it before commencing the action, or after the lapse of the one year period, he should have applied for extension of time within which to register before commencing an action in the High Court. 8.16 The appellant's assertion that there was no evidence that the probate was not entered in the land's register is an afterthought, as it was not raised in the lower court. It is trite law that as a general rule, one cannot raise a novel issue on appeal. Mohamed Muazu v The Attorney General9 refers. In any event, the issue of non-registration of the probate is not even in dispute in this appeal. What is in dispute is the effect of such omission, in relation to the appellant's capacity to bring an action seeking reliefs bearing on land or interest in land which is part of the deceased's estate. This argument lacks merit. 8.17 Therefore, we agree with the lower court to the extent that the appellant first needed to register the probate within the requisite one year period of the court granting it before commencing the action, or after the lapse of the one year period, he should have applied for extension of time within which to register before commencing an action in the High Court. On this premise, we find no reason for us to tamper with the findings of the High Court as set out in Masauso Zulu Avondale Housing Project Limited10, as the circumstances of this case do not warrant the exercise of our powers in that regard. 8.18 The first and second grounds of appeal must fail. 8.19 Even though we have not allowed the first and second grounds of appeal, we are of the view that there are still triable issues in this case and it is in the interest of justice that the appellant be allowed to register the letters of administration, seeing as the lower court already granted an order for extension of time within which the respondent can effect registration of the probate. 8.20 We therefore order that the appellant registers the probate at the Lands and Deeds Registry and that this matter be referred back to the High Court before the same Judge for determination. 8.21 Before we leave these grounds, we wish to address the propriety of the placement of the caveat by the respondent as the registered proprietor. In so doing, the issue we seek to determine is whether a registered proprietor of land can lodge a caveat on their own land. Section 76 of the Lands and Deeds Registry Act1 is instructive on who may lodge a caveat. It provides that: "76. Any person- (a) claiming to be entitled to or to be beneficially interested in any land or any estate or interest therein by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or (b) trans/ erring any estate or interest in land to any other person to be held in trust; or (c) being an intending purchaser or mortgagee of any land; may at any time lodge with the Registrar a caveat in Form 8 in the Schedule." 8.22 As regards the definition of a caveat, we stated in the case of Pan African Building Society v Pemba Lapidaries Limited and Lapemba Trading Limited11 that: "Although a Caveat ts not expressly defined under The Lands and Deeds Registry Act, it is generally a caution or warning to a person searching the Register, of an outstanding equity claimed by the Caveator against any land . ... The effect of a Caveat ts that, the registered proprietor ts prevented from showing a clear title, as the Property ts encumbered." 8.23 It is clear from the provisions of the Lands and Deeds Registry Act and the case to which we have made reference that a caveat may be lodged by someone, other than the registered proprietor, as an expression of some legal or equitable interest to notify third parties of an interest thereon other than that of tµe proprietor and, effectively, prevent a registered proprietor from showing a clean title as the property is encumbered by the interest subject to the caveat. 8.24 In the case of Pan African Building Society v Pemba Lapidaries Limited and Lapemba Trading Limited supra, we had occasion to address our minds to the duty of the Registrar upon receipt of documents for lodgment of a caveat. To this effect, we stated at page J15 as follows: "It should also be noted that it is not the Registrar's duty to determine the validity of the claim by the Caveator. He does not determine whether or not the particular claim made is a Caveatable interest or that the evidence offered in support is sufficient to support the claim, or that the nature of the Caveator's claim is appropriate. The Registrar's role is merely to be satisfied that the Caveat meets the requirements of Form 8 and the appropriate fee is paid. In appropriate cases, draw attention to the perceived defects in the substance of the claim or of the sufficiency of evidence and of the risks being run by the Caveator, record the Caveat and give notice of the same to the registered proprietor. As long as a Caveat is procedurally correct and expressly sets out the nature of the estate or interest claimed, it will be accepted by the Registrar. It will then be for the Court to determine whether or not the particular estate or interest is Caveatable interest in the land as provided for under Section 81 of the Act." 8.25 The Supreme Court m the case of Yusuf Musa v A. H. Itowala12 ordered the Registrar of Lands and Deeds to strike off a caveat as the respondent never had a legal interest which could have been entered as a caveat or the land. 8.26 In our view, this is an appropriate case for the Registrar to have drawn attention to the perceived defects in the substance of the claim in respect of the respondent's purported caveatable interest in land for which he is the registered proprietor. In any event, we do not see how the Registrar of Lands and Deeds could have recorded the caveat and given notice of the same to the registered proprietor when such proprietor is the caveator. 8.27 The reason given by the respondent for lodging a caveat, that he lost or misplaced the Certificate of Title and he needed to secure the interest of the family, does not amount to caveatable interest in the subject property within the contemplation of section 76 of the Lands and Deeds Registry Act, especially since the respondent is the registered title holder. 8.28 On this premise, we order that the Registrar removes the caveat forthwith, which he ought to have done administratively. 8.29 The third ground of appeal is premised on the assumption that the lower court made an order for costs in favour of the respondent after misapplying the law. It is trite law that the general principle is that costs follow the event. In other words, a successful party should ordinarily not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct of it. The case of Y. B and F Transport v Supersonic Motors Limited13 refers . • 8.30 Having found in the circumstances of this case that the learned trial Judge was on firm ground in applying the law, the third ground of appeal lacks merit. It is accordingly dismissed. 9.0 Conclusion 9.1 For reasons set out above, the appeal is accordingly dismissed. 9.2 Whilst we have essentially dismissed this appeal, we refer the matter back to the lower court for determination of triable issues outstanding in the originating process. 9.3 We order that the costs will abide the outcome of the proceedings in the court below. D. L. . Siching , SC COURT OF APPE JUDGE A. N. Patel, SC COURT OF APPEAL JUDGE Y. Chembe COURT OF APPEAL JUDGE 24