Frank Mumba v Shaba Mulengela (Appeal No. 314/2023) [2024] ZMCA 224 (18 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 314/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FRANKMUMBA AND SHABA MULENGELA ARDY MNJAIDI 1 8 APR 2024 APPELLANT 1 ST RESPONDENT 2ND RESPONDENT CORAM : Siavwapa JP, Chishimba, and Patel JJA On 26t h March and 18th April 2024 For the Appellant : Mr. M. Mukupa of Messrs. Isaac & Partners For th e Respondents: Mr . S. M. Lu n gu, SC & Mr. N. Ng'andu of Messrs. Shamwana & Co. JUDGMENT CHISHIMBA JA, delivered the judgment of the Court. CASES REFERRED TO: 1) Base Property development Limited v Neggie Nachilima Chileshe & Others SCZAppeal No. 211 of2015 2) Mirriam Mbolela v Adam Bota Selected Judgment No. 26 of 2017 3) Peter Militis v Wilson Kafuko Chiwala (2009) ZR 34 4) Tuesday Mulenga v Wendy Tembo Mutambo SCZ Appeal No. 123 of 5) Masauso Zulu v Avondale Housing Project Limited (1982) ZR 49 6) Monica Siankondo v Frederick Ndenga (2005) ZR 22 7) Wesley Mulungush i v Catherine Bwale Mizi Chomba (2004) ZR 96 8) Mundanda v Mulwani & Others ( 1987) ZR 9) Nkhata & Others vThe Attorney General (1966) ZR 124 10) Borniface Kafula & Others v Billings Choonga Mudenda SCZ Appeal No. 202 of 2003 1 3 A?R 2024 ; / J .2 11) Margaret M. S. Mulemena v Benny Chiholyonga & Others SCZ Appeal No.14of2019 12) Mususu Kalenga Building Limited & Another v Richman's Money Lenders Enterprises ( 1999) ZR 27 13) Indeni Petroleum Refinery Co. Limited v Kafco Oil Limited & Others Selected Judgment No. 29 of 2017 14) Ituna Partners v Zambian Open University SCZ Appeal No. 11 of 2008 15) YB and F Transport Limited v Supersonic Motors Limited (2000) ZR 22 16) Ardy Mnjaidi v Molly Pelekamoyo CAZ Appeal No. 29 of 2017 17) Bisalomo Mumba (Suing on behalf of the Kalindawalo Mndikula Royal family) v Michael Nsangu & Others CAZ Appeal No. 31 of2021 18) Indeni Petroleum Refinery Company Limited v V. G. Limited SCZ Appeal No. 84 of 2004 (Judgment No. 22 of 2007) 19) Valentine Webster Chansa Kayope v Attorney General (2011) 2 ZR 20) Tecla Investments Limited v The Trustees of the Examinations Council of Zambia Pensions Scheme CAZ Appeal No. 116 of 2017 LEGISLATION CITED: 1) The Rules of the Supreme Court of England, 1999 Edition 2) The Intestate Succession Act Chapter 59 of the Laws of Zambia 3) Halsbury's Laws of England, Vol. 27(1) . 4 th Edition (reissue) paragraph 1.0 INTRODUCTION 1.1 This appeal is against the ruling of Justice E. P. Mwikisa dated 3 r d April, 2023 following an application to dispose of the matter on a point of law. The learned Judge determined that beneficiaries of an estate have no power to sell property which forms part of an estate without leave of court. 1.2 That the contract of sale of real property forming part of the estate entered into without leave of court was null and void and that no order of specific performance could issue on such a contract. The court further refused to grant the 1st J.3 respondent mesne profits. Instead the court ordered that the 1st respondent refunds the sum of K815,000.00 to the appellant. Vacant position was granted to the 2 nd respondent. 2 .0 BACKGROUND 2.1 The 1st respondent's father, Mr. Williard Chama Mulengela acquired stand No. 9031 Buluwe Road Woodlands Lusaka. He died intestate in May 1998. Letters of administration was granted to Mr. Abyudi Shonga S. C. in April 2000. Zambia Army initially rented the property in 2011 which the appellant occupied by virtue of his position as a senior Army Officer. The said tenancy ended in 2014. 2.2 Thereafter, the appellant who remained in occupation, offered to purchase the property in March 2014. He was advised, on 5 th August 2014, by the administrator, that the property formed part of the estate of the deceased. On the 7 th August, 2014, the 1s t respondent and his sister, offered to sell the property to the appellant for the sum of Kl,200,000.00. A deposit of KS0,000 was paid. To date, the appellant has only paid the sum of K815,000,000. 2.3 The 1st respondent, and his sister, Mukuma Mulengela, in October 2016, obtained title into their names and sold the J.4 property in issue to the 2 nd respondent. The 2 nd respondent holds title to the property in dispute, in his name. 3 .0 MATTER IN COURT BELOW 3.1 The respondents commenced an action against the appellant by writ of summons endorsed with the following reliefs: (i) An order that the 1st respondent is entitled to set-off the su m of K288,000.00 against the sum of K815,000.00 paid by the appellant to the 1s t respondent with respect to the failed transaction for the sale of Stand No. 9031, Buluwe Road, Woodlands, Lusaka; (ii) An order that the appellant yields vacant possession of the property situated at Stand No. 9031, Buluwe Road, Woodlands, Lusaka; (iii) An order that the appellant pays the 2nd respondent mesne profits in the sum of K6, 000. 00 per month from July 2018 to the date the appellant will yield vacant possession of Stand No. 9031, Buluwe Road, Woodlands, Lusaka; and (iv) Interest on the mesne profits and costs. 3.2 The appellant filed a d efence and counterclaim seeking inter alia, the following reliefs: (i) An order for specific performance for the contract of sale of land entered into between the 1st respondent and the appellant; (ii) An order of declaration that the contract of sale and subsequent assignment between the 1st and 2 nd respondents of 9th July, 2018 is null and void; (iii) A declaratory order that the plaintiff is the legal purchaser of Stand No. 9031, Buluwe Road, Woodlands, Lusaka; (iv) An order by way of interlocutory injunction restraining the 1st and 2 nd respondents, either by themselves and/ or his agents from :- evicting or in any way interfering with the appellant's quiet J.5 enjoyment of the property; (v) And/ or in the alternative, an order for the refund of the sum of ZMWB 15, 000. 00 plus interest at the commercial bank lending rate from the date the same was paid to the 1s t respondent until full payment of the sums due; (vi) A refund of all monies spent on the renovation and improvement of the property; (vii) Damages for loss of use of funds and breach of contract and costs. 4.0 MOTION TO DISPOSE OF CASE ON POINT OF LAW 4.1 Before the matter could be heard, the respondents moved the court by way of notice of motion for disposal of case on a point of law pursuant to Orders 14A and 33 rule 7 of the Rules of the Supreme Court of England, 1999 Edition. The respondents sought determination of the following questions: 1) Whether beneficiaries have power to sell property which forms part of an estate; 2) Whether leave of court is required prior to the sale of real property forming part of an estate; 3) Whether a contract of sale of real property forming part of an estate entered into without leave of court, is null and void; 4) Whether the court can order specific performance on a contract of sale that is null and void; and 5) Whether the 1s t and 2 nd respondent are entitled to mesne profits from the appellant. 4.2 The motion was supported by an affidavit. The 1s t respondent stated the background earlier referred to which we shall not rehash save for pertinent facts. The tenancy agreement of J.6 2011 with the Zambia Army allowed the appellant to occupy the property at a monthly rent of K6, 000.00. 4.3 The 1st respondent stated that the appellant had not settled any rental arrears amounting to K288,000.00 at K6,000.00 per month from June 2014 to June 2018. The appellant had not also paid any rent to the 2 n d respondent from July 2018 to date . That no agreement of sale for the property was entered into with the administrator of the estate of the deceased. Further that no authority was sought from the High Court prior to the agreement of sale for the property. 4.4 The appellant opposed the motion to dispose of a case on a point of law. He stated that the property in question did not form part of the estate of the deceased because no certificate of title was ever issued in favour of the deceased. The certificate of title was issued directly to the 1st respondent and Mukuma Mulengela on 28t h October, 2016 in their individual capacities, and not in the representative capacity of Abyudi James Shonga, the administrator of the estate. 4.5 As the certificate of title was issued directly in the names of the children of the deceased, it was not a requirement for the 1st respondent and Mukuma Mulengela to obtain authority J.7 from the High Court to sell the property in question to the appellant before making the official offer for sale. 4.6 The appellant denied the respondents are entitled to mesne profits as he has been in good possession of the p roperty in question from the time that he occupied it. 4.7 In response, the 1st respondent stated that by a letter dated 28 th December, 2017, the appellant was made aware that the property belonged to the late Williard Chama Mulengela . 5 .0 DECISION OF THE COURT BELOW 5.1 The learned Judge considered the motion before her and the issues for determination. With regard to the first issue for determination whether beneficiaries have power to sell property which forms part of an estate, the court below found that by letter dated 5 th August, 2014, the appellant was put on notice that the property in issue belonged to the estate of the deceased. The appellant's advocates acknowledged this fact in a response dated 28th December, 2017. On this b asis, the court found that the property belonged to the estate of the deceased and that an administrator was appointed by the court. 5.2 Upon considering section 24(1) of the Intestate Succession Act and the case of Base Property development Limited v J.8 Neggie Nachilima Chileshe & Others Ill, the court below found that the only person legally permitted to deal with an estate of a deceased person is an appointed administrator. For this reason, the purported sale of the property in issue by the beneficiaries is invalid, thereby making the contract of sale unenforceable. 5.3 On the question whether leave of court is required prior to the sale of real property forming part of an estate, the court relied on section 19(2) of the Intestate Succession Act and the case of Mirriam Mbolela v Adam Bota Selected Judgment 12l to hold that authority from the High Court was required before the 1st respondent made an offer to the appellant. Therefore, the sale of the property by the beneficiaries to the appellant, was null and void ab initio as there was no valid contract of sale capable of enforcement at law, since the said contract was in violation of section 19(2) of the Ac t . The contract of sale being void ab initio, the court could not order specific performance. 5.4 As regards the question whether the respondents were entitled to mesne profits from the appellant, the court considered the cases of Peter Militis v Wilson Kafuko Chiwala t3 l and Tuesday Mulenga v Wendy Tembo J .9 Mutambo 141, and the learned authors of Halsbury's Laws of England, Vol. 27( 1). 4 th Edition (reissue) paragraph 258 . 5.5 The Learned Judge found that the respondents had neither proved that a de facto landlord and tenant relationship existed and that the landlord has been denied vacant possession , nor did they prove that the parties entered into a valid contract of sale for the property in issue. Further, there was no evidence that rent was to be payable by one to the other pending completion or that the appellant's continued occupation of the premises in issue had expired and was thus illegal. Consequently, the court below found that the respondents were not entitled to mesne profits. 5.6 The 1st respondent was ordered to refund the sum of K815,000.00 with interest at short term fixed deposit rate from the date of writ to the date of judgment, and thereafter at the current Bank of Zambia lending rate. The court also issued an order for vacant possession of the premises to the 2 nct respondent. 6.0 GROUNDS OF APPEAL 6.1 Being dissatisfied with the ruling of the court below, the appellant appealed advancing five grounds cou ch ed as follows: J.10 1) The Learned trial Judge erred both in law and in fact by misapplying section 19(2) of the Intestate Succession Act Cap 59 of the Laws of Zambia to the facts which requires authorization from the court to be sought before the sale of a property when the facts show that the sale was between beneficiaries and the appellant, and not the administrator; 2) The Learned trial Judge erred both in law and in fact by finding that the sale of the property by the beneficiaries was void ab initio and consequently invalidating the contract when the facts show that the beneficiaries acquired good title to the property after the contract was made; 3) The Learned trial Judge erred both in law and in fact by summarily determining the matter pursuant to Order14A when the facts before the court clearly showed that the matter ought to proceed for afull trial so that evidence can be led and adduced in order to determine the issues in dispute between the parties; 4) The Learned trial Judge erred both in law and in fact by ordering for vacant possession of the premises situated at No. 9031 , Buluwe Road, Woodlands, Lusaka to the 2 nd respondent without inquiring how the said 2 nd respondent obtained title to the said property; and 5) The Learned trial Judge erred both in law and in fact by awarding costs in favour of the plaintiff (respondents). 7.0 APPELLANT'S HEADS OF ARGUMENT 7.1 Th e appellant filed heads of argument dated 3 rd October, 2023. In ground one, the appellant argues that th e sale being one between beneficiaries of the estate and the appellant, and not the administrator , there was no need to first obtain leave of the court before the sale of the p roperty. It was submitted J.11 th at section 19(2) of the Intestate Succession Act refers to an administrator while the evidence on record, in particular, page 67 of the record of appeal, shows that t h e agreement to sale was between the 1st respondent and the appellant. The administrator was not privy to the contract. 7 .2 The appellant argued that the respon dents did n ot adduce any evidence to prove that the aforesaid premises formed part of the estate of th e deceased. The court was refer red to the case of Masauso Zulu v Avondale Housing Project Limited 151 that a plaintiff must prove his case and that the mere failure of the defence does not entitle him to judgment. 7.3 That at no point was a certificate of title ever issu ed in the name of the deceased and that in any case, it was a condition in the letter dated 24th Au gust, 2014 at page 67 of the record of appeal, that the sale will only be subject to the issu ance of an original certificate of title. To this end, the 1st respondent and his sister, Mukuma Mulengela obtained a certificate of title directly in their names as per the Lands Register at page 73 of the record of appeal. 7.4 Therefore, the appellant rightly relied on section 33 of the Lands and Deeds Registry Act Chapter 185 that the certificate of title issued to the beneficiaries was conclusive J . 12 evidence of their ownership. As title was never issued in the name of the deceased, the property did not form part of the deceased's estate. As authority, section 53 of the Lands and Deeds Registry Act and the case of Monica Siankondo v Frederick Ndenga 161, were cited. 7.5 In ground two, the appellant argues that the beneficiaries of the estate of the deceased obtained good title to the property after the contract was made. That the agreemen t to sell provided that the 1st respondent will sell the premises subject the issuance of a certificate of title. The law does not preclude a party from entering into a legally binding contract because of the lack of title. The case of Wesley Mulungushi v Catherine Bwale Mizi Chomba l7I was cited as authority. 7 .6 Having not registered his letters of administration, pursuant to section 5(3) of the Lan ds and Deeds Registry Act, the said letters are irregular, null and void for want of registration in terms of section 6. That this deprived the administrator of any locus standi to deal with the property. Therefore, the 1st respondent and his sister having obtained good title to the property, became the legal owners and had full authority to transfer the property to the appellant. J.13 7.7 It was further argued that the agreement of sale between the 1st respondent and the appellant was binding on the parties as it is in writing and satisfied all the requirements of a valid contract of a sale of land as per section 4 of the Statute of Frauds, 1677. 7.8 In ground three, the appellant contends that the facts on record show that the matter ought to have proceeded to a full trial in order to determine the issues in dispute between the parties, as opposed to disposing of the matter pursuant to Order 14A of the RSC . 7. 9 Counsel argued that the respondents did not provide any evidence that the matter was suitable for determination without a full trial even when the ruling of the cou rt below indicates that the issues between the parties were highly contentious. 7. 10 In ground four, the appellant challenges the decision of the court below to order vacant possession in favour of the 2 n d respondent without establishing how the 2 nd respondent obtained title to the property in issue. There being a valid contract of sale, the appellant contends th at the 1s t respondent and his sister breached the terms of the agreement. 7 .11 There being breach of contract, the appropriate remedy was J.14 for the court to make an order of specific performance and render the sale between the 1st and 2 nd respondent null and void. The appellant p laced reliance on the case of Mundanda v Mulwani & Others 1s1 where specific performance of a contract of sale was ordered by the court. 7 .12 Lastly, in ground five, the appellant prayed for costs on the basis that in the exercise of discretion, the court below overlooked the fact that the respondent's advocates facilitated the sale of the premises having full knowledge of the alleged illegality. We were urged to exercise our discretion to award the appellant costs. 8.0 ARGUMENTS BY THE RESPONDENTS 8.1 The respondents filed heads of argument dated 3 rd November, 2023. In ground one, the respondents submit that the appellant is challenging a finding of fact made by the court below in so far as ownership of the subject property is concerned at the time of the sale between the appellant and the 1st respondent and Mukuma Mulengela. 8.2 We were referred to the case of Nkhata & Others v The Attorney General 191 and urged not to disturb the findings of fact made by the trial court as the appellant has not shown J .15 that the said finding was either perverse, or made in the absence of relevant evidence or on a misapprehension of the facts. 8.3 The attention of the court was drawn to the letter dated 28t h December, 2017 at pages 75 to 76 of the record of appeal authored by the appellant's advocates in which they admitted that the property belonged to the estate of the deceased. That as such, the appellant is precluded from denying that the property formed part of the estate on the basis of estoppel. We were referred to the learned authors of Halsbury's Laws of England, 4 th edition, Vol. 16 paragraph 1501 for the doctrine of estoppel. 8.4 It was argued that the court below cannot be faulted for concluding that the subject property formed part of the estate of the deceased when it applied the provisions of section 19(2) of the Intestate Succession Act. This is because, the only person that had authority to deal with the subject property at the time of the purported sale with the appellant, was the administrator, and not the beneficiaries of the estate in light of section 24( 1) of the Act. 8.5 In the absence of any evidence to show that authority was sought and granted in accordance with section 19(2) of the J.16 Act, the court below cannot be faulted for declaring the purported sale to be null and void for want of authority. The appellant placed reliance on the cases of Base Property Development Limited v Neggie Nachilima Chileshe & Others 111, Mirriam Mbolela v Adam Bota Selected Judgment 121, Borniface Kafula & Others v Billings Choonga Mudenda 1io1 and Margaret M. S. Mulemena v Benny Chiholyonga & Others 1111. 8.6 In ground two, the respondents submit that while it is not in dispute that the 1st respondent and Mukuma Mulengela obtained a certificate of title for the subject property in 2016, there is no evidence to show that in 2014, at the time of the purported sale of the property, the same was vested in the 1st respondent and his sister. The respondents maintained that at the time of the purported sale, the subject property formed part of the deceased's estate. Therefore, the issuance of the certificate of title in the names of the 1st respondent and Mukuma Mulengela could not validate the agreement with the appellant, which was contrary to section 19(2) of the Intestate Succession Act. 8 .7 The 1st respondent and Mukuma Mulengela did not have any legal interest in the property at the time of the purported sale J.17 with the appellant. Thus, the Latin maxim nemo dat quad habet, is apt, as one cannot give what he does not have. The only person entitled to sell the subject property was the administrator, albeit with leave of court. 8.8 The fact that a certificate of title was later issued to the 1st respondent and Mukuma Mulengela, the beneficiaries of the estate, does not negate the fact that leave of court was required prior to the sale of the subject property. That the issuance of the certificate of title does not change the fact that the property was not vested in the duo at the time of the contract of sale with the appellant. 8. 9 The case of Margaret M. S. Mulemena v Benny Chiholyonga & Others 1111 was called in aid to show that the duties of an administrator do not end at securing the interests of the beneficiaries but extend to ensuring that the administrator settles the debts owed by the estate and meets its statutory duty to pay tax on the assets of the estate, where applicable. 8 .1 0 Counsel submitted that the appellant could not have acquired an equitable interest in the property on the basis of payments made to the 1st respondent and Mukuma Mulengela, as his interest is the fruit of a poisonous tree. In J . 18 any case, as this issue was not raised in the court below, it is not competent for the appellant to raise it now on appeal. The case of Mususu Kalenga Building Limited & Another v Richman's Money Lenders Enterprises 1121 was cited as authority for the above position of the law. 8.11 In ground three, the respondents submitted that the notice of motion and objections therein reveal issues that were questions of law suitable for determination without a full trial of the action. We were referred to the case of Indeni Petroleum Refinery Co. Limited v Kafco Oil Limited & Others 113l where the court held that the qu estion for determination was suitable for determination without a trial and hearing because its determination hinged on the interpretation of the law, practice and procedure. 8.12 Therefore, the case met th e threshold for invoking Order 14A of the White Book and that the parties were heard on the motion . 8 . 13 In ground four, it was argued that the court, having been asked by way of notice of motion to determine th e validity of the contract of sale between the appellant and the beneficiaries, was on terra firma when it foun d the said J.19 contract of sale null and void ab initio. As a consequence, the appellant had no interest in the property. 8.14 Therefore, the court below could not make an order for specific performance and render the contract of sale between the respondents null and void because this was not among the questions nor reliefs contained in the notice of motion. 8 .15 Lastly, in ground five, the respondents submit that costs are awarded at the discretion of the court as per Order 40 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia and the case of Ituna Partners v Zambian Open University 114 >_ The respondents having succeeded in their notice of motion, the lower court was not precluded from awarding costs to the respondent as per the guidance of the Supreme Court in YB and F Transport Limited v Supersonic Motors Limited 1151_ 8.16 On allegations that the court below failed to take into consideration when awarding costs, the role played by the respondent's advocates in facilitating the sale of the property and thus had knowledge of the alleged irregularity, it was argued that the advocates in question were not involved in the transaction between the parties. 9.0 RESPONDENTS' CROSS-APPEAL J.20 9.1 In a notice of cross-appeal dated 9 th October, 2023, the respondent cross-appealed against the ruling subject of this appeal on two grounds as follows: 1) The court below erred in law and in fact when it awarded interest on the refund of the purchase price; and 2) The court below erred in law and in fact when it dismissed the 1st and 2 nd respondents' claim for mesne profits against the appellant. RESPONDENTS'ARGUMENTS 9.2 In support of ground one, the respondents submitted that while they have no difficu lties with the order of the court to refund the purchase price, the same sh ould h ave been exclusive of interest. For auth ority, reliance was placed on the Margaret Mulemena case . 9.3 In ground two, the respondents contend that the court below ought to have granted their claim for mesne profits because there was, in fact, a relationship of landlord and tenant between the appellant and 1st respondent as evidenced by the correspondence at pages 63 to 64 of the record of appeal. That a logical conclusion that can be drawn from a perusal of th e correspondence is that the appellant occupied th e subject property as tenant . 9.4 It was further argued that even after entering into the J .21 purported contract, there is no evidence to show that the relationship between the 1s t respondent and appellant as landlord and tenant respectively, came to an end, or that whilst the conveyancing transaction was being processed, the appellant was to cease paying rentals for his occupation. Therefore , the respondents are entitled to mesne profits. Our decision in Ardy Mnjaidi v Molly Pelekamoyo 1161 was called in aid where we found that the landlord was entitled to relief based on the tenant's occupation of the premises. 9.5 APPELLANT'S ARGUMENTS IN OPPOSITION TO THE CROSS-APPEAL 9.6 The appellants did not file any heads of argument in opposition to the cross-appeal. They sought leave at the hearing to file them out of time, which we declined. 10.0 ANALYSIS AND DECISION 10.1 We have considered the appeal the authorities cited and the arguments advanced by Learned Counsel for the Parties. It is not in dispute that Williard Chama Mulengela died intestate on 3 r d May, 1998 and is survived by two children, namely, Shaba Mulengela and Mukuma Mulengela. It is common J.22 cause that prior to his death, the deceased acquired Stand No. 9031 , Buluwe Road, Woodlands, Lusaka. It is also accepted that on 10th April, 2000 , Abyudi James Shonga S . C. was appointed administrator over the estate of the deceased. Though it is not clear whether letters of administration was obtained from High Court Probate Registry. 10.2 In 2011, the Zambia Army rented the property, which the appellant occupied by virtue of his position as a senior officer in the Zambia Army. In 2014, the tenancy with the Zambia Army ended. The a ppellant expressed interest to acquire the property in a letter dated 6 th March, 2014. On 5 th August, 2014, the administrator of the estate advised the appellant that the property formed part of the estate of the deceased. Further, that h e endorsed their decision to sell the said property. Thereafter, in a letter dated 7 th August, 2014, Mukuma Mulengela offered to sell the premises to the appellant at Kl,200 ,000.00. The defendant accepted to purchase the property and paid a deposit of KS0,000 .00 on 22nd August, 2014. 10.3 It is common cause that from 2014 to date, the appellant has paid a total sum of K815 , 000. 00 towards the purchase of the property. On 28th October, 2016, the 1st respondent and J.23 Mukuma Mulengela obtained certificate of title to the property in their respective names. 10.4 The appeal raises a number of issues. We shall start by addressing ground 3 which assails the decision of the court to determine the matter pursuant to Order 14A of the Rules of Supreme Court of England, 1999 Edition instead of proceeding to full trial. The issue is whether the entire matter could be finally disposed of with out a full trial. The appellant did object to determination of the matter summarily. 10.5 The claims and counter claims by the parties were earlier highlighted. It is not in issue that the 1st respondent who offered the property for sale turned around and contends that an order of the court was not obtained to dispose of the property belonging to the deceased's estate. And on that basis sought to dispose of the matter summarily. 10.6 Order 14 A of RSC provides as follows: 1. - Determination of questions of law or construction (1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that - (a) such question is suitable for determination without afull trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. J.24 (2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have either - (a) (b) had an opportunity of being heard on the question, or consented to an order or judgment on such determination. 10.7 Further, Order 14A/2/3 of the RSC provides the r equirements for the use of Order 14A and state s as follows : The requirements for employing the procedure under this Order are the following: (b) the defendant must have given notice of intention to defend; (c) the question of law or construction is suitable for determination without a full trial of the action (para. 1 (i)(a)); (d) such determination will be final as to the entire cause or matter or any claim or issue therein (para. 1 (i)(h)); and (e) the parties had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination 10 .8 Order 33 Rule 7 of the RSC provides as follows: "If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such order or give such judgment therein as may be." J.25 10. 9 In the case of Bisalomo Mumba (Suing on behalf of the Kalindawalo Mndikula Royal family) v Michael Nsangu & Others 1171, we held that: "Our position is that by its very nature, an application under Order 14A of the Rules of the Supreme Court, 1999 Edition seeks to determine the cause or dispose of it on a point of law, without a full trial." 10. 1 OWe have had recourse to the notice of motion to dispose of a case on point of law by which the respondents moved the court pursuant to Order 14A and 33 Rule 7 of the RSC. The questions raised for the determination of the court below were as follows: 1) Whether beneficiaries have power to sell property which forms part of an e state; 2) Whether leave of cou rt is required prior to the sale of real property forming part of an estate; 3) Whether a contract of sale of real property forming p art of an estate entered into without leave of court, is null and void ; 4) Whether the court can order specific performance on a contract of sale that is null and void; and 5) Wheth er the 1st and 2 nd respondent are entitled to mesne profits from the appellant. 10.10 And in the said motion, the respondent prayed for the J.26 following: (i) An Order that the appellant yields possession of the premises situated at Stand No 9031, Buluwe Road, Woodlands. (ii) An Order that the 1st respondent is entitled to set off the sum of K288, 000.00 against the sum of K815, 000.00 paid by the appellant to the 1s t respondent with respect to the t ransaction for the sale of Stand 9031. (iii) An Order that the a ppellant pays the 2 nd respondent Mesne profits from July, 2018 to the date that the appellant will yields vacant possession of Stand 9031 Lusaka and interest on the Mesne profits. 10.11 Could this matter be disposed of without the necessity of a full trial? The answer lies in recourse to the pleadings on record. We shall not rehash the background earlier stated, save as follows. The 1st respondent in the court below sought an order of set off of the sum of K288, 000.00 from the sum of K815,000.00 paid by the appellant in respect of the failed alleged transaction of sale of the Stand J.27 9031, Lusaka and vacant possession. The 2 n d respondent sought an order of mesne profits in the sum of K6,000.00 per month from the date he purchased the same property to date of vacant possession with interest. 10.12 The counter claim by the appellant sought specific performance of contract of sale of property, declaratory reliefs that the said contract/ assignment to the 2 nd respondent was null and void and that he is the legal purchaser of Stand No 9031. In the alternative, refund of the sum of K815, 000. 00 plus interest, refund of all monies spent on renovation and improvements of the property as well as damages for loss of use of funds and breach of contract. 10.13 Before delving further into the matter, we want to state that Order 33(3)of the RSC on trial of questions or issues arising in a matter to be tried before or after trial, the preliminary issue is tried by the court hearing the parties where evidence is a dduced in respect of the preliminary issue raised. 10. 14 Reverting to the issue whether the claims by the parties could be determined without a full trial, we are of the view that the pleadings raised contentious issues which could J.28 not be disposed of without a full trial. The position of the law in respect of the issue of whether beneficiaries can sell property forming part of an estate without leave of court and effect of such sale, is settled. 10.15 However, other claims such as the declaration that the contract of sale and subsequent assignment of the property to the 2 nd respondent being null and void, could only be disposed of at full trial. Equally the claim for refund of monies spent on the renovation and improvement of the property alleged by the appellant, could only be disposed of at full trial. Equally the claim by the respondent for mesne profits could only be determined at full trial. The appellant in its defence raised contentious issues . He averred that he occupied the property as an intending purchaser, having paid 10% deposit of the purchase price. We refer to the defence and counter claim at pages 39 to 43 of the record of appeal. 10 .16 We are of the view that the questions of law raised would not have fully determined the entire cause or claims in dispute between the parties. In deciding the questions of law, where it is necessary to ascertain the facts beyond those appearing in pleadings, the courts should not order J.29 the trial of those questions as a preliminary point of law or determine it as such. In casu, there being contentious issues that can only be determined fully at trial, the court below erred by determining the matter pursuant to Order 14A and dismissing the matter. The determination of the points of law raised would not have disposed of the matter without the need for a full trial. 10.17 For the forgoing reasons, we hold that the lower court erred in law and fact by proceeding to disp ose of the matter between parties under Order 14A and 33 (7) of the RSC. The matter ought to have proceeded to a fu ll trial in order to determine and resolve the contentious issues in dispute. 10.18 Having held that the matter ought not to have been disposed of, summarily pursuant to Order 14A, we find merit in the appeal. We shall not belabour to determine grounds 1, 2, 4 and 5 in view of our holding as the same are otiose. 10. 19 Equally the cross appeal falls away and is academic in view of our holding that the court below erred in law and fact in proceeding to dispose of the matter pursuant to Order 14A of the RSC. 11.0 CONCLUSION J.30 11.1 We accordingly set aside the entire decision of the court below. We Order that the matter proceeds to full trial before another judge in the court below. We award costs to the appellant against the respondents to be taxed in default of agreement. M. J. Siavwapa JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE ......... -1.~,._.r.~2 .... A. N. Patel S. C COURT OF APPEAL JUDGE