James Mitchell Davidson and Phillip Raymond Oliver v The Administrator-General (Personal Representative Of Luigi Giovanni Cicuto (Deceased) (Civil Appeal No. 2 of 1969) [1969] ZMCA 9 (13 May 1969)

JAMES MITCHELL DAVIDSON AND PHILIP RAYMOND OLIVER v THE ADMINISTRATOR-GENERAL (PERSONAL REPRESENTATIVE OF LUIGI GIOVANNI CICUTO (DECEASED) (1970) ZR 38 (CA) I COURT OF APPEAL 5 DOYLE JA, EVANS J AND HUGHES AGJ 13th MAY 1969 Civil Appeal No. 2 of 1969 Flynote Administration of estates - Administrator -General - Liability - Liability for actions taken by him as personal representative - Liability for costs - Whether protected by Administrator -General Ordinance, s. 29. Headnote The appellants were defendants in an action taken by the Administrator -General in his capacity as personal representative of the deceased 15 infant Giovanni Cicuto. The action was dismissed and the appellants applied to the trial judge for an order that costs be paid by the Administrator -General de bonis propriis. The trial judge held that s. 29 of the Administrator -General Ordinance was a complete protection to the Administrator - General in connection with any action except where the 20 action was illegal or done wilfully or with gross negligence. He refused the application on the ground that the Administrator -General did not act illegally or wilfully or with gross negligence. On appeal the appellant contended inter alia that s. 29 did not protect the Administrator -General I as held by the trial judge. 25 Held: • • (i) The trial judge misinterpreted the section. The intention of s. 29 of the Administrator- General Ordinance is to protect the Administrator-General from tortious or wrongful acts if done bona fide and not from the legal effect of legal acts. The 30 Administrator-General was therefore liable de bonis propriis for the costs of the action. • (ii) Order for costs made accordingly. Legislation referred to: I Administrator -General Ordinance, 1965 (Cap. 20), s. 29. 35 Judgment Doyle JA: delivered the judgment of the court. The appellant was the defendant in an action taken by the Administrator -General in his capacity as personal representative of the deceased in fact, Luigi Giovanni Cicuto. The I action was unsuccessful and was dismissed. 40 An application by the appellant to the learned trial judge for an order that the costs be paid by the Administrator -General de bonis propriis was refused, the learned judge holding that s. 29 of the Administrator -General Ordinance was complete protection to the Administrator -General in connection with any action by him unless the action 1970 ZR p39 DOYLE JA was illegal, or the Administrator -General had done the act wilfully or with gross negligence. The learned judge found that the Administrator General did not act illegally or wilfully or with gross negligence. The appellant appeals against that refusal. The grounds of appeal are as follows: 5 I "1. The learned Judge was Wrong in law in dismissing the application for an order that the costs of the action be paid by the Respondent de bonis propriis in that • (a) Section 29 of the Administrator -General's Ordinance Cap. 20 of the Laws of Zambia does not operate to protect 10 the Administrator -General therefrom, alternatively (b) so much of such section as purports so to protect the Administrator -General was repealed by the State Proceedings Act No. 27 of 1965 by implication, further and in the alternative 15 I (c) the Administrator -General failed to act in good faith, or acted illegally and wilfully or with gross negligence in commencing this action or prosecuting the same when he knew or ought to have known (i) that the Grant of Probate dated the 8th day of 20 November, 1967 was a nullity or should not in the circumstances have been obtained by him and/or ■ (ii) the action had no reasonable prospect of success. 2. The learned Judge was wrong in failing or refusing to order that the costs of the application be set off against ■ ■ the costs of the 25 action which were awarded to the appellants. I see no merit whatsoever in grounds (b) and (c). I agree entirely with the learned trial judge's findings that the Administrator -General did not act illegally, wilfully or with gross negligence in connection with the action. The fact that the action was unsuccessful does not mean that 30 it had no merits. Indeed, the record shows that the learned judge might well have found for the plaintiff had he taken even a slightly different view of the evidence. I can seen nothing in the State Proceedings Act of 1965 which repeals s. 29 of the Administrator -General Ordinance. The result of this appeal depends on the interpretation to be given 35 to s. 29. As is stated in the 3rd Edition of Halsbury, Vol. 16 at para. 970, an executor or administrator who sues as such and fails is personally liable for the costs, though he can ordinarily indemnify himself out of the estate. In the instant case there are no funds in the estate, so that the Administrator -General gets no benefits from his right to indemnify. In 40 the instant case also the Administrator -General took the precaution of obtaining an indemnity from the father of the infant deceased. Section 29 of the Administrator -General Ordinance reads as follows: ■ ■ "Neither the Administrator -General nor any of his agents shall be personally liable to any person in respect of goods or chattels 45 in the possession at the time of his death of any person whose ■ 1970 ZR p40 DOYLE JA estate shall be administered by the Administrator -General which shall be sold by the Administrator -General or such agents unless the Administrator -General or agent shall know or have actual notice before the sale that such goods or chattels were not in fact 5 the property of the person whose estate is being administered by him, and generally neither the Administrator -General nor any agent shall be liable for any act done by him bona fide in the supposed and the intended performance of his duties unless it shall be shown that such act was done not only illegally, but wilfully or with 10 gross negligence: I Provided always that in case of any sale by the Administrator General or any agent of goods or chattels ■ ■ ■ belonging in fact to any third person the amount realised by such sale shall be paid over to the owner upon proof by him of such ownership unless 15 the same shall have already been applied in payment of the debts of the deceased or shall have been distributed in the ordinary course of administration whilst the Administrator - General or agent was in ignorance and without actual notice of the claim of such persons to the goods or chattels sold." The relevant words are "and generally neither the Administrator -General nor any agent shall be liable for any act done by him bona fide in the supposed and the intended performance of his duties unless it shall be shown that such act was done not only illegally, but wilfully or with gross negligence". The learned trial judge has held that these words 25 protect the Administrator -General from any action unless he has acted illegally, wilfully or with gross negligence. Such a construction would have far - reaching results. The Administrator -General, in the course of his duties, enters into contracts upon which ordinarily and in common law he is liable. If the learned trial judge's interpretation of s. 29 is 30 correct, no person could safely contract with the Administrator -General. In my view, however, the interpretation given by the learned judge of s. 29 is not correct. It is plain from its context that the intention of s. 29 is to protect the Administrator -General from tortious or wrongful acts if done bona fide, not to indemnify him against his legal acts. The relevant 35 words, which I have referred to, in my opinion ■ mean that the Administrator -General is protected where he acts illegally provided that he has not acted wilfully or negligently. I do not consider that the words protect the Administrator -General from any legal effect of his legal acts. I am therefore of the opinion that the Administrator -General was 40 liable de nobis propiis for the costs of this action, and I would allow the appeal accordingly. The order, of course, for the costs affects the Administrator -General in his capacity as such and not in his personal capacity. It has been pointed out that the Administrator -General may have no funds to pay such costs. This may or may not be so. It is not, however, 45 a matter for this court, and I consider that the order of costs should be made in the terms I have already stated. ■ ■ ■ Appeal allowed