James Ndambo and Anor v Billy Siakasasa (Sued as Administrator of the Estate of the Late William Siakasasa) and Ors (CAZ Appeal No. 19/2022) [2023] ZMCA 390 (8 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) CAZ Appeal No . 19/2022 BETWEEN: JAMES NDAMBO GILBERT SIACHAYA AND 1 ST APPELLANT 2ND APPELLANT BILLY SIAKASASA (Sued as Administrator of the Estate of the Late Wilson Siakasasa) 1st RESPONDENT OZAS SIAKASASA OBERT SIAKASASA MAGABBA SIAKASASA SUNDAY SIAKASASA HAMUS SIAKASASA KANJEBWE SIAKASASA ANY PERSONS UNBEKNOWN TO THE APPELLANT BUT ILLEGALLY OCCUPYING FARM No. 3276/A KALOMO THE ADMINISTRATOR GENERAL (Sued as the Personal Representative of The Estate of the Late Wilson Siakasasa) .. ;,, ~ ... ;...,, 6 TH RESPONDENT 7TH RESPONDENT 8TH RESPONDENT 9TH RESPONDENT CORAM : Chishimba, Sichinga and Ngulube JJA On 10th October, 2023 and 8 th December, 2023 For the Appellant s : Mr. N. Dindi of Messrs. Dindi & For the 1st Respondent For the 2 nd to 8 th Respondents: Mr. C. Krunelu of Messr s. M. L. Company : No appearance Mukande & Co. For the 9 th Respon den t : No appearance - Administrator General Ch ambers JUDGMENT J.2 CHISHIMBA JA, d elivered the Judgment of the Court. CASES REFERRED TO: 1) Administrator General v Paul Meyn (1990 - 1992) ZR 15 2) General Nursing Council of Zambia v Mbangweta (2008) 2 ZR 105 3) YB and F Transport Limited v Supersonic Motor s Limited (2000) ZR 22 LEGISLATION REFERRED TO: 1) The Intestate Succession Act Chapter 59 of the Laws of Zambia 2) The Administrator General Act Chapter 58 of the Laws of Zambia 3) The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 4) The High Court Act Chapter 27 of the Laws of Zambia 5) The Legal Aid Act Chapter 34 of the Laws of Zambia 6) The Law Reform (Miscellaneous Provisions) Act Chapter 74 OTHER WORKS CITED 1. Mick Woodley. 2013. Osborns Concise Law Dictionary. Sweet & Maxwell 2. Williams and Mortmore on Executors Administrators and Probate. (1 5 th Edition) 3. Brian A. Garner. Black's Law Dictionary, 7 th Edition 1.0 INTRODUCTION 1.1 This appeal is against the judgment of Mrs. Justice P. K. ) Yangailo dated 30th September, 2021 in which she cancelled the certificate of title issued to the 1st a ppellant having found that he was not a bona fide purchaser for value without notice. 1.2 The learned Judge instead awarded the 1st appellant refund of the purchase price in the sum of K420,000.00 and J.3 K21,000.00 being fees incurred in the conveyancing against the 1st respondent as well as the ground rent in the sum of K45,554.89 against the estate of the late Wilson Siakasasa. 2.0 BACKGROUND 2.1 The 1st appellant by deed of power of attorney, appointed t he 2 nd appellant as his attorney. The said 2 nd appellant commenced an action against the respondents by way of writ of summons accompanied by statement of claim. The appellant sought possession of Subdivision A of Farm No. 3276, Kalomo (hereinafter the subdivision); damages for trespass; refund of the sum of KSS,899.86 with interest from the 1st respondent being money paid during the assignment of the property: and an injunction against the respondents from entering the said farm. 2.2 In his statement of claim, the appellant averred that he ) entered into a contract of sale for a subdivision of the farm with the 1st respondent who is the administrator of the estate of the late Wilson Siakasasa (the deceased) on 14th June, 2009 for the sum of K420,000.00. On 1gth February, 2016, a certificate of title was issued in favour of the appellant. Prior to the above, in furtherance of the contract of sale, the 1st respondent had requested the appellant to pay for property J.4 transfer tax, ground rent for the period 2010 and 2015 , consent fees and fees for the certificate of title amounting to KSS,899.86 in total. The 1st respondent has not paid back this money to the appellant. 2.3 Around mid-2016, the 2nd to 8 th resppndents took possession of the subdivision from the appellant and have continued to trespass thereon despite demands by the appellant that they vacate the property. 2.4 In his defence, the 1st respondent denied owing the sum of KSS,899.86 stating that he is not liable for the property transfer tax as his advocates advised him that it had been paid. He denied that there were any ground rent arrears for 2010 and 2015. The 1st respondent reiterated that his advocates paid the consent and certificate of title fees. In addition, the 1st respondent refuted taking possession and ) trespassing on the subdivision of the said farm. 2.5 In his reply, the appellant maintained that the sums claimed were paid following a request from the 1st respondent's advocates. 2.6 The 2 nd to 8 th respondents filed a defence and counterclaim. In the defence , they averred that at the time the contract of sale was executed, the 1st respondent was not administrator J.5 of the estate of the deceased as his order of appointment as administrator had been revoked. Therefore, the contract of sale is null and void and that the purported assignment by the 1st respondent was fraudulent. They also denied illegally occupying the subdivision or being trespassers thereon. 2.7 In their counterclaim, the 2nd to 8th respondents, who are children of the late Wilson Siakasasa, averred that their father died on 15th August, 1985 leaving, among other assets, Farm No. 3276, Kalamo. The 1st respondent was initially appointed administrator of the estate. His appointment was revoked in 1987 on account of mismanagement in favour of Boberty Machona. Unknown to the respondents who are beneficiaries of the estate, the 2 nd respondent fraudulently sold the subdivision. 2.8 The particulars of fraud are stated as follows: (l)Non-disclosure of sale of the subdivision of Farm 3276, Kalamo to all beneficiaries; (2) Failure to account for the proceeds of the sale; (3) Concealing the sale of the subdivision in his capacity as administrator knowing that his order of appointment was revoked and he was no longer an administrator; and J.6 (4) Selling the subdivision without the authority of the beneficiaries as to whether the land was for sale. 2.9 The respondents further averred that the appellant failed and did not make inquiries from the beneficiaries as to whether the land was for sale or to obtain the authority of the court in terms of section 19(2) of the Intestate Succession Act Chapter 59 of the Laws of Zambia. Consequently, the 2 nd to 8 th respondents counterclaimed for an order of cancellation of the certificate of title relating to the said subdivision of Farm 3276, Kalomo 2.10 In his reply to the 2 nd to 8 th respondents' defence and counterclaim, the appellant averred that he is a bona fide purchaser for value without notice of the subdivision in that the 1st respondent's order of appointment of administrator was registered at the Ministry of Lands while the certificate of ) judgment purporting to revoke the appointment of administrator of the 1st respondent was never registered. He further stated that the 1st respondent was represented by counsel and the failure of the law firms to comply with the provisions of the Intestate Succession Act cannot lead to cancellation of his certificate of title for the subdivision. 2.11 The 9 th respondent averred that the any purported sale of the J.7 subdivision was illegal and done fraudulently by the appellant and 1st respondent because the 1st respondent's administratorship of the estate of the deceased had been revoked in 1987. That it is now the lawful administrator of the estate and that the appellant is not entitled to any of the claims. 3.0 EVIDENCE IN THE COURT BELOW 3.1 The parties filed a statement of agreed facts and admissions on 18th January, 2021 in which it was stated that Wilson Siakasasa was assigned Farm No. 3276, Kalomo on 2 nd December, 1981 and obtained title thereto. The said Wilson Siakasasa died on 15th August, 1985 leaving 41 children. The 1st respondent was subsequently appointed administrator of the estate but that this was revoked on 18th August, 1987. On 19th October, 1987, Boberty Machona was appointed administrator of the estate of the deceased until 19th August, 2013 when the same was revoked by the Kalamo Local Court. 3.2 Following the revocation of Mr. Machona's administratorship, the beneficiaries agreed that the Administrator General be appointed to administer the estate. This was done on 1 Ith November, 2015 and the 9th respondent continues as ) ) J.8 administrator to date. On 4 th October, 2018, the Administrator General registered his order of appointment of administrator at the Lands and Deeds Registry. 3.3 During his tenure as administrator, Mr. Machona neither approved any sale of part of the estate to the appellant, nor did he approve any mortgage to be obtained from the Food Reserve Agency. However, on 26th Januaiy, 1999, the 2 n d respondent mortgaged Farm 3276, Kalomo to the Food Reserve Agency (FRA) to secure a loan of K46,080.00 with interest. The loan remained unpaid for 10 years and the principle and interest stood at KlS0,000.00 as at 2009. At that time, the FRA demanded payment of the outstanding loan and decided to sell the farm measuring 990. 9820 hectares. 3.4 In order to save the farm, the 1st respondent, who is the eldest ) son of the deceased, decided to subdivide the farm and sell 600 hectares so as to enable the estate to settle the loan owed to the FRA. Without explaining that his letters of administration had been revoked, the 1st respondent engaged the appellant to purchase 600 hectares. The 1st respondent held himself out as the administrator of the estate and had his letters of administrator albeit revoked, registered at the J.9 Ministry of Lands. 3.5 After explaining to the appellant the predicament the family was in regarding the outstanding loan to the FRA, the appellant agreed to buy the 600 hectares of land at a price of K420,000.00. A contract of sale was drawn. The appellant was represented by Messrs. Dindi & Company while the 1st respondent was represented by Messrs. MAK Partners. The law firms took charge of the conveyancing. On 24th November, 2009, the 1st respondent registered his order of appointment of administrator at the Lands and Deeds Registry. 3.6 Due to some challenges and short comings by the 1st respondent, the process of applying for permission to subdivide, place beacons on the farm and eventually assign the subdivision took about 6 years 7 months to complete and was only completed on 13th February, 2016 when a certificate of title was issued in favour of the appellant. 3.7 Immediately upon taking possession of the subdivision, the appellant paid the deposit of KlS0,000.00 to the FRA and had the property fenced. He employed a farm manager and staff to run the farm, and also moved some of his cattle on the land. While in possession of the land, some children of the ) ) J.10 deceased began claiming ownership of the subdivision. The 2 nd to 8th respondents actually took possession of the subdivision and opened fields for cultivation, built houses and other supporting structures. 3.8 In response, in 2018, the appellant removed his staff and cattle from the said subdivision and took them to one of his other farms for safety. He then commenced this action. The appellant also claims the sum of K38, 118.56 from the 9 th respondent being a refund of money paid on behalf of the estate of the deceased in order to facilitate the conveyance of the subdivision. 4.0 DECISION OF THE COURT BELOW 4.1 The learned Judge considered the agreed facts and the ) submissions filed by the parties. She was of the view that the issues for determination were as follows: 1) Whether the ]st respondent fraudulently sold the subdivision to the appellant in order to redeem the mortgage from the FRA; 2) Whether the appellant is a bona fide purchaser for value without notice of a prior interest; 3) Whether the beneficiaries of the estate of the deceased are entitled to possession of the subdivision and the whole of Farm 3276, Kalamo; and J.11 4) Whether the appellant is entitled to a refund of the sum of KSS,899.86 from the estate of the deceased being statutory fees paid on behalf of the ]st respondent during assignment of the subdivision. 4.2 On the first legal issue, Justice Yangailo found that the 1st respondent's letters of administration were revoked in 1987 and that he had no authority to subdivide or sell the farm. Therefore, his actions in selling the property cannot be said to have been for the preservation of the estate. That in any case, the sale would still have been void for failure to obtain the authority of the court to sell in terms of section 19{2) of the Intestate Succession Act. Consequently, the sale of the subdivision was invalid. 4.3 On the counterclaim of the 2nd to 8 th respondents for cancellation of the certificate of title issued to the appellant, the learned Judge found that there was fraud in the manner the title was obtained in that there was no consent obtained by the 1st respondent from the other siblings. Further that, at the material time, the 1st respondent was no longer the administrator of the estate. 4.4 The court below found that the appellant was not a bona fide purchaser for value because the 1st respondent had no authority to sell as he had no legal estate in the subject ) J.12 property to pass to the appellant. Further, the appellant was informed of the circumstances of the intended sale of the subdivision, and being represented during the transaction, counsel ought to have established that the letters of administration registered at the Lands and Deeds Registry by the 1st respondent, were null and void, as they were not registered within the time allowed by law, and were obtained from the Local Court. 4.5 That in terms of section 43( 1) and (2) of the Intestate Succession Act, the Local Court has no jurisdiction to issue letters of appointment of administrator for estates whose value exceeds KS0,000.00. In addition, the lower court found no evidence that either the appellant or his advocates made inquiries regarding the interests of the other beneficiaries or the authority of the 1st respondent to sell. Therefore, the ) appellant had constructive notice of the interests of the other beneficiaries. The court granted an order cancelling the certificate of title issued to the appellant. 4.6 As a consequence of the above, the lower court dismissed the appellant's claim for damages for trespass and an order of injunction. 4.7 With respect to the fourth legal issue involving the claim for J.13 KSS,899.86, the court found the claims for K21,000.00 and K45,554.89 paid by the appellant for property transfer tax and ground rent proved. The court ordered assessment on the claim for KlS00.00 spent on the application for a duplicate certificate of title. It found no evidence that the appellant was entitled to K433.00 being money spent on consent fees. 5.0 GROUNDS OF APPEAL 5.1 Displeased with the decision of the court below, the appellant has launched this appeal advancing four grounds couched as follows: The court below erred in both law and in fact when she ordered that the 1st respondent alone be the one to: 1. Refund the appellant the sum of K420, 000. 00 being the full purchase price paid to the 1st respondent for 600 hectares of Farm 3276 Kalamo, without including the gth respondent, ) the (Administrator General); 2. To refund the appellant the sum of K21,000.00 being property transfer tax paid by the appellant to Zambia Revenue Authority in respect of 600 hectares of Farm 3276, Kalamo without including the 9 th respondent; 3. To refund the sum of KlS00.00 being legal fees paid by the appellant for applying and obtaining a duplicate certificate of title for Fann 3276, Kalamo without including the 9 th respondent; and J.14 4. Bear and pay the cost awarded to the appellant without including the gth respondent. 6.0 APPELLANT'S HEADS OF ARGUMENTS 6.1 Counsel filed heads of argument dated 2 nd February, 2022 and argued grounds one, two and three together. The common thread in these grounds is that besides the 1st respondent, the administrator of the estate of the deceased, being the 9 th respondent, should also have been included in refunding the appellant the purchase price of K420,000.00, property transfer tax of K21,000.00 and Kl,500.00 being legal fees for applying and obtaining the duplicate certificate of title. 6.2 The appellant contends that this is because the 9th respondent had been negligent and not used due care and diligence in looking after the interests of the estate. That the principle of devastavit applies to the 9 th respondent. The learned author, Mick Woodley. 2013. Osborn's Concise Law Dictionary. Sweet & Maxwell at page 145 was cited for the definition of devastavit as meaning mismanagement or waste of the assets in the estate of a deceased person by the fiduciary in charge of the estate. J.15 6.3 It was submitted that the 9 th respondent did not comply with the provisions of section 20 of the Administrator General's Act Chapter 58 of the Laws of Zambia which states that: 20. In every case where administration shall have been committed to him, the Administrator-General shall cause a notice to be published in the Gazette calling upon creditors and others to send in to him their claims against the estate on or before the date mentioned in such notice, which shall not be less than one month after the date of the publication of such notice. That had the 9 th respondent placed the said notice to creditors and claimants in the Gazette, the appellant would have been alerted to the fact that 1st respondent was not the administrator of the estate of the deceased, and would have taken remedial steps to abort the purchase of the 600 hectares subdivision. 6.4 The appellant further contends that the 9 th respondent did ) not and neglected to comply with sections 4 and 5 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia by not registering the probate of the estate of the deceased at the Lands and Deed Registry within. That the contract of sale is dated 16th June, 2009 while the 1st respondent only assigned the subdivision to the 1st appellant J.16 on 18th February, 2016. It was argued that 6 years, 9 months and 1 day elapsed without the 9 th respondent registering the probate for the estate of the deceased. That the 9 th respondent only registered probate on 13th February, 2016. 6.5 The failure to place an advert in the Gazette and to register probate at the Lands and Deeds Registry Act amounted to negligence, and a lack of due care and diligence. The case of Administrator General v Paul Meyn <11 was cited as authority where it was held that the appellant was negligent and did not use due care and diligence in looking after the interests of the estate, which included those of the beneficiaries. As a result, damages were awarded against the Administrator General for failing to pursue an insurance claim in time resulting in loss to the respondent. 6.6 The appellant submits that the 9th respondent failed to secure ) the interests of the estate through negligence resulting in a loss. That the estate of the deceased has been mismanaged by the 9 th respondent and must be ordered to pay the sums of K420,000.00, K21,000.00 and Kl,500.00 instead of the 1st respondent. 6.7 The appellant further submits that the sum of K150,000.00 out of the purchase price of K420,000.00 was paid to the J.17 Food Reserve Agency to redeem the mortgage incurred by the 2 nd respondent who obtained a loan. That the 1st respondent, as an inter-meddler in the estate in terms of section 6(1) of the Administrator General's Act, settled the mortgage and by this action, the 2nd to 8 th respondents are enjoying their stay on the said farm. That the 1st respondent's action preserved the entire estate from being foreclosed by the FRA using the money obtained from the appellant. ) 6.8 That the lower court ought to have invoked its power to concurrently administer law and equity under section 13 of the High Court Act Chapter 27 of the Laws of Zambia and order the estate of the deceased that was a major beneficiary, to refund the money back to the 1st appellant. That it will amount to unjust enrichment on the part of the estate if it were to retain the benefit of the appellant's money without itself furnishing consideration for the same in form of a refund. That even though the 1st respondent does not appear to have properly accounted for the balance of K270,000.00, the 9 th respondent can ably deal with him under section 19(2) of the Intestate Succession Act. 6.9 The appellant reiterated that had the g th respondent registered the probate of the estate at the Lands and Deeds J.18 Registry, the public including the appellant, would have been alerted and warned that the 1st respondent was not the administrator of the estate, but the 9 th respondent. The order of appointment was only registered on 23rd November, 2018 by which time, the pt respondent had already assigned the subdivision on 18th February, 2016. 6.10 Lastly, in ground four, the court awarded costs to the appellant to be borne by the 1st respondent, in default of agreement to be taxed. The appellant submits that the 1st respondent, being a legally aided person, the applicable law is section 20(1) of the Legal Aid Act Chapter 34 of the Laws of Zambia. This provision guides that whatever amount a legally aided person is ordered by the court to pay in costs, that amount will be limited to the amount or will not exceed the amount that he contributed to the cost of legal aid. 6 .11 The appellant argued that the court should note the fact that in most cases, such contribution does not exceed K2,000.00. However, the nature of this case suggests that it is most likely possible that the taxed costs of this case shall exceed the contributed amount as over and above all, the 1st respondent is an indigent. As a result, the appellant is most likely to lose out on costs. ) ) J.19 6.12 For this reason, the appellant prayed that the 9 th respondent be joined to the order for paying costs of the action because the 9th respondent has the means to convert a portion of the Farm 3276, Kalomo to raise and pay the judgment sums and costs. 7.0 2N°TO 8™ RESPONDENTS' HEADS OF ARGUMENTS 7.1 Mr. Kamelu, Learned Counsel for the 2 nd to 8 th respondents filed heads of argument dated 4 th February, 2022 and argued grounds one, two and three together. Counsel submitted that the court below was on firm ground to order the 1st respondent to refund the 1st appellant the sums of K420,000.00, K21,000.00 and Kl,500.00. This is because the 1st respondent and 1st appellant entered into a contract of sale when the 1st respondent knew that he was not the administrator of the estate, his letters of administration ) ' ) having been revoked on 19th October, 1987 by the Local Court. 7 .2 Therefore, the fact that the 1st respondent had no authority to sell the land in question, the court below was on firm ground to order the 1st respondent to refund the said sums of money as the same had been fraudulently obtained from the 1st appellant. 7.3 As regards the principle of"devastivit", counsel objected to its J.20 application to the 9 th respondent because at no point did the 9 th respondent spend or misapply assets belonging to the estate. We were referred to Brian A. Garner's Black's Law Dictionary, 7 th Edition which defines "devastivit" as follows: "A personal representative's failure to administrate a decedent's estate promptly and properly, especially by spending extravagantly or misapplying assets. A personal representative who commits waste in this way becomes personally liable to those haui.ng claims on the assets, such as creditors and beneficiaries. '' 7.4 In accordance with the aforesaid, the 9 th respondent never at any point spent or misapplied assets belonging to the estate. Furthermore, the 1st appellant has never dealt with the estate to be deemed a creditor of the estate. The sale in issue was solely done by the 1st respondent, who at law, had no capacity to sell or transfer any title to the 1st appellant as he had not obtained consent from the beneficiaries or a court order permitting him to sell the land in question. Therefore, the principle of devastavit does not apply to the 9 th respondent who were only appointed and granted probate on 11th November, 2015 when the 1st appellant and 1st respondent entered into the contract of sale on 16th June, 2009. ) 7.5 As regards ground 4, Counsel adopted the submissions of the J.21 9 th respondent. 8.0 9TH RESPONDENT'S HEADS OF ARGUMENTS 8.1 Heads of argument dated 25th February, 2022 were filed on behalf of the 9 th respondent. In arguing grounds one, two and three, the 9 th respondent submits that it was initially not a party to the proceedings but was subsequently joined following an application for non-joinder. 8.2 The 9 th respondent prayed that we should find that the appellant did not exercise the necessary due diligence as a prudent purchaser, and that as such, the loss must fall on him. That the principle of caveat emptor still holds sway in land transactions in that the appellant cannot claim a refund from the 9 th respondent because the purported transaction was between him and the 1st respondent. J 8.3 It was further submitted that the appellant transacted with gross negligence in that the letters of administration used by the 1st respondent to register his interest as administrator at the Lands and Deeds Registry, were issued by the Local Court. That section 43(1) and (2) of the Intestate Succession Act grants jurisdiction to the High Court in matters relating to succession while limiting the jurisdiction J.22 of the Local Courts to estates not exceeding the value of KS0,000.00. In this case, the value of the estate exceeds KS0,000.00. 8.4 It was further contended that the appellant and 1st respondent were both represented by counsel who ought to have advised their clients that letters of administration from the Local Court are incompetent to authorize or underlie a transaction where the certificate of title is issued pursuant to the Lands and Deeds Registry Act. Therefore, the court below rightly found that there was impropriety in the acquisition of the land by the appellant. 8.5 It would be unfair to the 9 th respondent to refund the appellant the sum of K21,000.00 being property transfer tax for a transaction that has been impugned and reversed by the court. The loss suffered by the appellant can be traced to the ) ) 2009 transaction between him and the 1st respondent. To compound the appellant's predicament, he has not appealed against the cancellation of the certificate of title. That the 9 th respondent cannot assume a liability incurred prior to its appointment by the High Court. 8.6 The 9 th respondent cited section 6 of the Administrator General's Act and submitted that the appellant's argument J.23 that the 1st respondent is an intermeddler because he sold the subdivision to avert a foreclosure from the Food Reserve Agency (FRA), is disingenuous for three reasons: the first is that while both parties knew that the amount due to the FRA was KlS0,000.00, they contracted for the sum of K420,000.00 from which the 1st respondent profited K270,000.00 to the detriment of other beneficiaries; Secondly, the transaction was not disclosed to the other beneficiaries, and third, section 6(1) cited above requires an intermeddler to immediately inform the Administrator General of the steps taken, which in this case, did not happen. In this case, the underlying transaction spanned over four years. ) 8.7 It was submitted that the appellant cannot attribute his loss, in whole or in part, to the failure of the 9 th respondent to ) register its pro bate at the Lands and Deeds Registry within the prescribed period. At the time that the 9 th respondent was appointed, the purported transaction was by and large completed. 8.8 It was submitted that the appellant's advocates in the conveyance did not do their due diligence. That the appellant also proceeded without caution and partly caused his own J.24 loss. To this end, section 10 of the Law Reform (Miscellaneous Provisionsl Act Chapter 74 was cited which provides: 10. (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the ) responsibility for the damage: Provided that- (i) this subsection shall not operate to defeat any defence arising under a contract; (ii) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable. 8. 9 As regards the allegation of devastavit, the 9 th respondent ) submits that a careful scrutiny of the timelines will show that the material time of the transaction was prior to the 9th respondent's appointment as administrator. The contract of sale between the appellant and the 1st respondent was signed on 16th June, 2009. The other steps of the purported conveyance took place between that date and 2012. J.25 8.10 With respect to the Kl,500.00 refund claim, the 9 th respondent supports the decision of the court below that it be assessed and paid to the appellant. 8.11 In ground four, the 9 th respondent submits that the lower court dismissed the appellant's case and ordered cancellation of the certificate of title but found special circumstances to award the appellant costs from the 1st respondent. We were referred to Order 40 rule 6 of the High Court Rules which provides that the cost of every suit or matter shall be in the discretion of the court or judge. Further, section 20(2) of the Legal Aid Act was also called in aid as authority that costs awarded against a legally aided person shall be paid out of the moneys provided for the purpose by Parliament. The case of General Nursing Council of Zambia v Mbangweta 12 , was called in aid where the Supreme Court held that: "In awarding costs, the court has to consider the particular circumstances of the case otherwise a winner in litigation is usually entitled to his/her costs. '' 8.12 We were urged to dismiss the appeal with costs. 9.0 DECISION OF THE COURT 9.1 We have considered the appeal, the heads of arguments and authorities cited by the Learned Counsel for the parties. 9.2 Grounds one, two and three shall be dealt with together as J.26 they all seek the inclusion of the 9 th respondent in settling the judgment sums of K420,000.00, K21,000.00 and Kl500.00. Therefore, the issue for determination is whether the 9 th respondent is liable to the appellant in respect of these awards. 9.3 There is no dispute that the 1st respondent held himself out ' ) as the administrator of the estate of his late father to the appellant. By so doing, the appellant believed that he was dealing with the proper person in the sale of the subdivision, when in fact not. From the agreed facts, it is also not in dispute that the 1st respondent informed the appellant that the subdivision was being sold so as to avert a sale of the entire farm by the Food Reserve Agency on account of an outstanding loan at the instance of the 2nd respondent. It is not in dispute that K150,000.00 of the purchase price of K420,000.00 was directly paid by the appellant to the FRA. As a result of this payment, Farm 3276, Kalamo was not sold by the FRA. Over and above, there is no dispute that the appellant did pay the purchase price of K420,000.00 in full. 9 .4 The letter dated 23rd August, 2011 at page 95 of the record of appeal shows that the 1st respondent's advocates requested J.27 the appellant to pay the property transfer tax. In the same letter, the 1st respondent undertook to pay back the money. The invoice, receipt and tax clearance certificate at pages 96 to 98 confirm that the appellant paid the K21,000.00 property transfer tax. 9.5 The letter dated 20th October, 2011 by Messrs. RJA Legal Practitioners to the appellant's advocates authorized the appellant's advocates to apply for a duplicate copy of the certificate of title for Farm No. 3272, Kalamo so that the sale may be concluded. This was done at the cost of Kl00,000.00 unrebased as per the receipt at page 100. The evidence on record also shows that the appellant incurred additional costs in settling outstanding ground rent leading to the claim of Kl,500.00 as per the letter dated 14th December, 2011 at page 105 of the record. ) 9.6 There is no doubt that the appellant paid all these moneys believing that the 1st respondent had the requisite power to sale when in fact not. The appellant contends that the 9 th respondent, being the administrator of the estate, must also pay the sums awarded. He argues that as an intermeddler, the 1st respondent's action actually saved Farm No. 3272, Kalamo from being sold by the FRA. Secondly, he argues that J.28 the failure of the 9 th respondent to advertise his appointment in the Gazette or a newspaper of wide circulation, would have given the appellant notice that the 1st respondent is not the administrator of the estate. It was also argued that it would be unjust enrichment to let the estate escape liability to pay the KlS0,000.00 paid to the FRA. 9.7 The 9 th respondent was granted probate on 11 th November, 2015 and had it registered on 23rd November, 2018, three years after the grant (see the grant at page 176 and the Lands Register at page 180 of the record of appeal). 9.8 The starting point in our view is that of authority to sell 600 hectares of Subdivision Farm 3276, Kalomo. In our view, it is not in issue that the 1st respondent's appointment of administrator was revoked in August 1987 and replaced with Boberty Machona on 19th October, 1987 as administrator until 9 th August, 2013. The Administrator General was appointed to administer the estate on 11 th November, 2015. Whose appointment was registered at the Lands and Deeds Registry on 4 th October, 2018. 9.9 Despite revocation of his orders of appointment as Administrator, the 1st respondent registered his order of appointment on 24th November, 2009 at the Lands and Deeds ) J J.29 Registry. The contract of a sale for a subdivision of the farm was entered into between the 1st respondent and the appellant on 14th June, 2009. 9.10 We hold the view that at the time of the contract of sale, the 1st respondent's order of appointment as administrator had been revoked. The replaced administrator refuted entering into any contract of sale of the said subdivision. Clearly, the 1st respondent had no authority to sale the said subdivision. The effect of the said sale being that it was null and void. The question is, did the appellant exercise due diligence in the sale transaction? ) 9.11 The evidence on record shows that the appellant, who was represented during the conveyance, failed to exercise caution or conduct due diligence in the sale. He proceeded with the sale without insisting on the 1st respondent obtaining the ) authority of the court to transact. Section 19(2) of the Intestate Succession Act provides that: {2) 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 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. J.30 9.12 Had the appellant insisted on this legal requirement being observed prior to the sale, he would have discovered the irregularity with the purported letters of administration held by the 1st respondent. 9.13 Secondly, the jurisdiction of the Local Court in succession is limited to estates whose value does not exceed KS0,000.00 in terms of section 43(2) of the Intestate Succession Act. The land in this case, was valued at K420,000.00 and was on title. The appellant's advocates ought to have advised the appellant that the land being on title, letters of administration from the High Court ought to have been obtained by the 1st respondent for the sale to be valid and lawful. 9.14 The next issue to be considered is whether the 9 th respondent ought to have been ordered to pay the costs of the case. It is trite that costs are in the discretion of the court and that, generally, they follow the event. This principle is only departed from where in the circumstances of the case, the successful party has by misconduct in the proceedings, conducted itself in such a manner as to disentitle it to costs. 9.15 The appellant contends that costs should be borne by the 9 th respondent because it failed to register the probate of the estate within the requisite time frame and failed to advertise J.31 in the Gazette. Therefore, it was negligent, leading to the loss incurred by the appellant and that the principle of devastavit applies to the 9 th respondent. 9.16 The principle of devastavit, i.e. wasting of assets, applies where a personal representative becomes liable where he has mismanaged the estate and effects of the deceased in squandering and misapplying assets contrary to the duty of the representative. If found liable, the said personal representative must account out of his own pocket for the assets had or wasted. 9 .1 7 We are of the view that the principle of devastavit does not apply in the circumstances of the estate against the 9th respondent. There has been no mismanagement, squandering or misapplication of the deceased's assets by the Administrator General. If anything, the 2nd respondent's ) conduct of selling a portion of the farm without consent would be applicable to the principle of devastavit. 9.18 The record shows that the 9 th respondent was only granted probate on 11 th November, 2015 long after the appellant and 1st respondent had contracted and completed the sale. Therefore, the 9 th respondent is not liable for any loss suffered J.32 by the appellant. The failure of the appellant to conduct due diligence in the sale means he has only himself to blame. 9 .19 In that regard, we uphold the decision of the court below ordering the 1st respondent to refund the purchase price of K420,000.00, property transfer tax of K21,000.00 and registration fees of Kl500.00 subject to assessment. We find no merit in grounds one, two and three. 9.20 In ground four, the appellant seeks to have the 9 th respondent joined in settling the costs awarded to him. As earlier stated, costs are only awarded against a successful party where it misconducted itself in proceedings. We refer to the case of YB and F Transport Limited v Supersonic Motors Limited 131 where the Supreme Court held that: "The general principle is that costs should follow the event; in other words a successful party should normally not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct of it.'' 9.21 The basis upon which the appellant seeks costs to be awarded against the 9 th respondent are untenable. The court below properly exercised its discretion to a~ard costs against the 1st respondent only. Inability of the 1st respondent to pay J.33 on the basis that he is a legally aided person is without merit. We uphold the order of costs made by the court below. 10.0 CONCLUSION 10 .1 All the four grounds of appeal having failed, we uphold the decision of the court below and dismiss the appeal. Costs to the 2 nd to 7 th Respondents to be taxed in default of agreement. F. M. Chishimba COURT OF APPEAL JUDGE D. L. . Sich ga, SC P. C. M. Ngulube COURT OF APP :AL JUDGE COURT OF APPEAL JUDGE )