K. E. E. Estates Limited v Josephat Phiri (CAZ Appeal No. 200/2019) [2020] ZMCA 171 (20 November 2020)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ Appeal No. 200/2019 BETWEEN: K. E. E ESTATES LIMITED APPELLANT AND JOSEPHAT PHIRI NJIVWA MULWANDA PHIRI (Sued as joint adrninstratrix of the estate of the late Gilbert Phiri ) EPHRAIM SAKALA (Sued as joint a drninstratrix of the estate of the late Gilbert Phiri ) 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM : Kondolo, Chishimba and Sichinga, JJA 11th November, 2020 and 20th November, 2020 For the Appellant : Mr. N. K. Mubonda of Messrs D. H Kemp & Co. Associates For the 1st Respondent: Mr. L. C. Zulu and Mr. C. Sianondo of Messrs Malambo & Co For the 2 nd Respondent : Mr. E. Sichone of Messrs National Legal Aid Clinic for For the 3rd Respondent : No appearances Women JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court. -J2 - CASES REFERRED TO: 1. Borniface Kafula and 8 others v. Billings Choonga Mudenda Appeal No. 202 2000 2. Mirriam Mbolela v. Adam Bota Appeal No. 146 of 2014 Selected Judgment No. 26 Of 2017 3. Zambia National Holdings and United National Independence party v. The Attorney General ( 1993-1994) ZR 115 4. Wilson Masauso Zulu v. Avondale Housing Project Limited( 1982) ZR 5. Re Sentor Motors Limited and 3 Other Companies S . C. Z Judgment No. 9 of 1996. 6. 7. Mohammed S. Itowa la v. Variety Bureau De Change S. C. Z Judgment No. 15 of 2001. 8. Base Property Development Limited v. Neggie Nachilima Chileshe (Adminstartix of the estate of the late Micheal Dereck Chileshe) and 2 Others Appeal No. 211/2015 9 . Zega Limited v. Zambezi Airlines and Diamond General Insurance Limite d (S. C. Z/8 / 006 /20 14) 10. China Copper Mines Limited v. Tikumbe Mining Limited Appeal No. 17/2017 11. Lyons Brook Bond (Za mbia) Limite d v. Zambia Tanzania Roa d Services Limited( 1977) ZR 31 7 12. Billingsley v. Mundi (S. CZ. judgment No. of 10 1998) 13. Photo Bank (Z) Limited v. Shengo Holdings Limited(2008) l. Z. R 108 14. The Minister of Home Affairs, The Attorney General v Lee Ha b a sonda (Suing on his own behalf and on behalf of the Centre for Constructive Dispute Resolution)(2007) ZR 2 0 7 -J7 - and unenforceable, that is , the transaction would be null and void ab initio. 3.3 The court below held that in view of the cited prov1s10ns of Section 19(2) of the Intestate succession Act it had no jurisdiction to hear the matter. As regards a claim for refund of money paid towards the purchase price, the court held that the claim is not tenable because it was dismissing the matter for want of jurisdiction to hear and determine a matter founded on an illegal, unenforceable and null and void contract of sale. The court declined to make an order as to costs and dismissed the action. 4.0 APPEAL 4.1 Dissatisfied with this decision, the appellant appealed to this court, raising the grounds that: (1) The trial judge misdirected herself at law in holding that she lacked the jurisdiction to try and determine the matter. (2) The lower court erred in law when it declined to make an order relating to the sum of K600, 000.00 claimed by the appellant. -J8 - (3) The lower court erred in law and in fact in holding that the pleadings showed that the appellants admitted that the 2 nd and 3 rd respondent had no authority from court before they entered into the contract of sale. (4) The lower court erred in failing to determine the fate of the respondent's counter claim. 5.0 ARGUMENTS ADVANCED BY THE APPELLANT: 5.1 In its heads of arguments filed on 14th November, 2018, the appellant began by making reference to the findings and conclusions reached by the learned trial judge at pages 40-43 of the record. It is submitted that the learned trial judge's holding that she lacked jurisdiction to try and determine the matter that was before her was unsound and wrong in law, because under Article 134 of the Constitution of Zambia, the High Court has inter alia unlimited and original jurisdiction in all civil and criminal matters. 5 .2 Further Section 9(1) and (2) of the High Court Act, vests jurisdiction in the court to hear and determine matters in dispute. In terms of Section 13 of the High Court Act in every civil matter law and equity shall be administered -JlO- founded upon an illegal, unenforceable and null and void contract. 5.5 The learned trial judge fell into serious error arriving at such a sweeping adverse conclusion without hearing oral evidence at trial. The appellant's claim to its money is unaffected and did not result from an illegal transaction. As authority the case of Mohamed S. ltowala v. Variety Bureau De Change f6J was cited. 5.6 The case of Base Property Development Limited v. Neggie Nachilima Chileshe (As adminstratrix of the estate of the late Michael Dereck Chileshe) and Others f7J was cited where the court held that the appellant must pursue the 3 r d respondent for its money. 5 .7 In respect of ground 3, that the pleadings showed a clear admission on the part of tl:+e appellant, 2 nd and 3 r d respondent that it did not seek the authority of court before it executed the contract of sale of the property in issue. The appellant argued that the Supreme Court and this court have made various pronouncements on when a set of facts can be said to be admissions. Reference was thus made to the case of Zega -J12 - counter claim by the 1st respondent and the defense by the 2 nd respondent where the latter averred ignorance about the legal requirement to obtain prior authority of the court to sell the stand in issue and admitted being party to the contract. 5.9 The averment referred to was made by the 2 nd respondent on her own behalf and purportedly on behalf of the 3 rd respondent and could not be extended to the 3 rd respondents so that it could be bound by it. The appellant stated that in fact , the said averments by the 1st and 2 nd respondent allege ignorance of the requirement to obtain the requisite authority of court to sell the said property. Both attributed the alleged failure to obtain the requisite authority of the court unto the appellant. This cannot be an admission within the context of the test. An admission must be free from uncertainty and devoid of any condition whatsoever and must show an intention to be bound by it. 5 .10 The appellant argued that in light of the 1st respondent's failure to admit or deny the appellant's allegation of fact in paragraph 15 of the amended statement of claim, coupled with the 1st respondent's alleged attribution of the alleged failure -J13 - unto the appellant, the learned trial judge should not have found that the pleadings clearly showed that no authority of court was obtained nor that there was a clear admission by the 3 rd respondent who had not entered a defence. 5.11 The appellant submits that pleadings serve the purpose to assist the court by defining the bounds of the action and not to prove or adduce evidence upon which the court can act. Facts alleged are to be proved at trial. 5.12 The appellant in ground 4 argued that the lower court misdirected itself in law and erred when it held that it was immaterial that the respondent could neither admit nor deny the appellant's averments. Reference was made to page 38 of the record namely the ruling of the court to that effect. The appellants cited the cases of Billingsley v. Mundi f11J on the need for the court to only deal with a particular application before it and to give reasons for its decision. The appellant contends that the foregoing is still good law vis-a-vis the 1s t respondent's application for dismissal of the action. The only question which fell for determination was whether t he lower court had jurisdiction to entertain the action following the -J14 - admission by all parties on the face of the pleadings that they did not obtain authority from the court before execution of the contract. It was argued that though the lower court correctly considered the question to be determined it addressed it wrongly. 5.13 The appellant submits that it was necessary that the pleadings show an admission by all parties and thus a misdirection for the lower court to hold that it was immaterial that the 1st respondent could neither admit nor deny the appellant's averment. The 1st respondent's admission was material 1n answering the above question and the same could not be answered without the learned trial Judge first finding as a fact that that there was an admission by all parties. Reasons for immateriality ought to have been given by the trial court. 5 .14 The appellant in ground 5 submits that the lower court erred by not determining the counterclaim made by the 1st respondent. The said counter claim sought an order that the purported contract of sale is null and void ab initio for want for authority and the setting aside of the said contract of sale of the property in issue, on grounds of want of authority . The -JlS- ruling of the court only dealt with the plaintiffs claim and did not address the respondent's counter claim. The court ought to have given directions on how to proceed with the action. Reference was made to Section 13 and 9(2) of the High Court Act, and the earlier cited cases of Re Sentor Motors and Wilson Masauso Zulu (supra) on the duty of the courts to adjudicate and determine every aspect of the suit or all the matters in controversy between parties with finality thereby avoiding the multiplicity of legal proceedings in the long run. 5.15 As regards the nature of a counter claim the case of Photo Bank (Z) Limited v. Shengo Holdings Limited f12J was cited where it was held that: "a counterclaim is more of set off and has to be proved." The appellant cited the provisions of Order 15 Rule 2(4) of the Supreme Court Rules on a counter claim being a cross action to be treated for all purposes as an independent action which can nevertheless be proceeded with. The matters in controversy submitted for determination consisted of the appellant's claims and the respondent's counterclaim. The lower court erred by not determining all the issues in dispute. -J16 - The ruling in issue only dealt with the appellant's claim at length. The 1s t respondent's counterclaim is an independent action and the same could have been proceeded with notwithstanding the dismissal of the appellant's claim. 6.0 18 T RESPONDENTS HEADS OF ARGUMENT: 6.1 The 1st respondent filed his heads of arguments dated 18th December, 2019, supporting the finding of the lower court in its judgment dated 28th May, 2018. He submitted that the basis of the challenge is the question whether the lower court had the jurisdiction to deal with a matter founded upon a contract of sale which contravened Section 19(2) of the Intestate Succession Act. 6.2 The 1st respondent made reference to page 35 of the judgment lines 3-14. It is contended that the trial judge took time to consider the provisions of the Intestate succession Act and made a finding of fact that no authority of the court had been obtained prior to execution of the contract of sale. The lower court rightly found that there was a contravention of the above provision of the law. The trial judge made a finding that the execution of the contract of sale of the property in issue -J17 - without prior authority of the court rendered the said contract 'illegal, unenforceable, null and void ab initio '. The lower court had to decide whether she had jurisdiction under the circumstances to hear and try the matter before her. It found as a fact that the court was deprived of the necessary jurisdiction. The 1st respondent made reference to the Daniel Mwale (supra) case and the provision of Order 33 Rule (7) of the Rules of the Supreme Court. 6.3 The 1st respondent went on to refer to Article 134 of the Constitution of Zambia and the case of Zambia National Holdings Limited(supra) on the definition of the term jurisdiction' and the various aspects of jurisdiction and the need for the High Court to use its unlimited and original jurisdiction with due regard to the law and procedure. Having found that there was a contravention of Section 19(2) of the Intestate Succession Act, the court below could not assume any jurisdiction to try and determine the matter. The 1st respondent further contends that section 9 (1) and (2) of the High Court Act on jurisdiction is not exhaustive but illustrates some matters over which a court can exercise its -J18 - authority to adjudicate. That the jurisdiction of the High Court to take cognizance of matters before it in relation to disputes relating to properties affected by Section 19(2) of the Intestate succession Act is limited to those matters in which prior authority of the court had been obtained. The High Court cannot assume authority in matters where no prior authority had been sought and obtained from the High Court. 6.4 The 1st respondent stated that section 13 of the High Court Act relied upon by the appellant does not apply to the matter at hand. It deals with the court's power to administer the principles of common law and equity concurrently. The rules of equity prevails only when there is a conflict with the rules of common law. Where there is a conflict between statute provisions and the rules of equity, the statutory enactment prevails. In this case, the provisions of section 19(2) of the Intestate Succession Act cannot be overruled by the rules of equity. Therefore, when the trial court found that it lacked the jurisdiction to try the matter, it disposed off the matter with finality and there was nothing left undetermined. -J19 - 6.5 In response to ground 2, the 1st respondent submits that the learned trial judge was on firm ground when she refused to make any orders in respect to the claim for refund or repayment of money paid towards the purchase price. It was submitted that the Judge complied with the guidelines stated in case of The Minister of Home Affairs, The Attorney General v Lee Habasonda (Suing on his own behalf and on behalf of the Centre for Constructive Dispute Resolution f13J by outlining her reasoning for declining to grant the order sought by the appellant. Granting the order would have amounted to a lower court assuming powers that it did not have in this matter. 6.6 The 1s t respondent, in the alternative, submitted that if we are inclined to make an order for refund of money paid towards the purchase price, then the order should be directed at the 2 n d and the 3 r d respondent in their individual capacities and not against the estate. 6.7 It was pointed out that the orders of appointment of administrator of the estate of the late Gilbert Phiri by the 2 nd and 3 rd respondents was obtained from the Local Court when -J20 - the value of the estate exceeds the jurisdiction of the Local • Court. The 1st respondent cited the cases of Charity Oparaocha v. Winifridah Muram.biwa 1141, Base Property Development Limited v. Neggie Nachilima Chileshe (Adminstartix of the estate of the late Micheal Dereck Chileshe) and 2 Others (supra) where the Supreme Court nullified the appointment of administrators made by the Local Court in respect of estates whose value exceeded the jurisdiction of the court. Further that the issue of appointment of administrator goes to jurisdiction of the Local Court. Section 43(2) of the Intestate Succession Act limits the jurisdiction of the local court in matters of estates to amounts not exceeding the value of K50,000.00. It was the 1st respondent's submission on the strength of the above authorities that the 2nd and 3 rd respondent were acting as administrators de son tort, therefore the consequences of their intermeddling should befall them personally. Though the Local Court's lack of jurisdiction to appoint administrators is being raised for the first time, it was submitted that the court is duty bound to entertain the point of law and declare post -J21- facto that the appointment of the 2nd and 3 rd respondents as joint administrators of the estate of the Late Gilbert Phiri was null. and void post facto as the issue being raised is one of law and not fact. As authority, the case of Aristogerasimos Vangelatos, Vasiliki Vangelatos v. Metro Investments Limited, King Quality Meat Products, Demetre Vangelatos and Maria LikiardoPoilou 1151, Elirema and Another v Republic 1161 and the learned authors of Halsbury's Laws of England at paragraph 717 was drawn to our attention. The authorities allude to the court's power to entertain a point law or plea of jurisdiction at any stage. The 1st respondent contends that a plea on a point of law can be raised for the first time on appeal. We were urged to dismiss the appeal as the 2 nd and 3rd respondent did not deal with the estate with due prudence. 6.8 As regards ground 3, the 1st respondent submits that the court below made a finding of fact in the course of ascertaining whether authority had been sought from court by the vendors before executing a contract of sale for the property in issue. It was further submitted that the learned Judge was not dealing -J22 - with an application for judgment on admission for which the considerations are very different from those applicable in the application challenging the jurisdiction of the court. That an appellate court will only reverse findings of fact if they are found to be perverse or made in the absence of any relevant evidence as was pronounced in the Wilson Masauso Zulu (supra). None of the parties to the action had alleged that authority to deal with the said property had been obtained from court. Therefore, there is no basis for us to reverse the finding that was made by the trial Judge. 6.9 The 1st respondent submitted that the appellant's arguments in respect of ground 3 are misplaced as the matter had nothing to do with an application for judgment on admission of facts and that this ground should be dismissed. 6.10 In response to ground 4, the 1st respondent contends that reference 'to all parties' referred to the 2nd and 3 rd respondent as the 1st respondent was not a party to the contract of sale of the property in issue. The trial court rightly opined that it was immaterial that he could neither admit nor deny the averment by the appellant that the administrators of the estate had not -J23 - obtained authority of the court. Seeing that there was no party that produced evidence to prove that authority had been obtained, it was a fact properly found by the court below. 6.11 As regards ground 5, the 1st respondent submits that the appellant misapprehended the ruling by arguing that the trial judge did not address the 1st respondent's counter claim. The trial judge did not deal with the claims as per writ of summons. The preliminary challenge to the lower court's jurisdiction, if found to be valid in substance, entailed that the lower court then would not proceed to trial with the entire action which included the counter claim. The lower court could not decline jurisdiction in respect of the appellant's claim and then assume the same jurisdiction in respect of the respondent's counterclaim, doing so would be a contradiction. 7.0 2 nd RESPONDENTS HEADS OF ARGUMENT: 7.1 The 2 nd respondent filed his heads of arguments on the 3rd July, 2020, and submits that the lower court was on firm ground when it held that it had no jurisdiction to try and determine the matter. Reliance was placed on Article 119 and 134 of the Constitution of Zambia on judicial authority -J24 - vested in courts being exercised in accordance with the constitution and other laws. As well as on the unlimited and original jurisdiction of the High Court to hear matters within the confines of the law as held in the cited case of Zambia National Holdings. Further, the definition of the High court's unlimited jurisdiction adopted by the Supreme Court in the . case of Kelvin Hang'andu and Company (a firm) v. Webby Mulubisha11 7J was cited in which it was held that: "the jurisdiction of the High Court is unlimited but not limitless as the court must exercise its jurisdiction in accordance with the law" 7 .2 The 2nd respondent's contention is that the property in dispute forms part of deceased's estate whose mode of disposal is provided by Section 19(2) of the Intestate Succession Act. This section of the law was explained in the case of Mirriam Mbolela v. Adam Bota (supra); that the sale of property of a deceased estate must be sold with authority from court to ensure that the best interest of the beneficiaries is secured. Prior authority of the court was said to be a sine qua non of a valid sale of such property. In the absence of authority, such a -J25 - contract of sale would be illegal and unenforceable, and the transaction null and void . The 2nd respondent further . contended that the record will show that no authority that was obtained from court and the court was therefore on firm ground to find that it had no jurisdiction to hear the matter. 7.3 The 2nd respondent stated that he was alive to the provisions of Section 13 of the High Court Act on the power to administer law and equity concurrently. It was submitted that equity supplements the law and cannot supersede the prevailing statutory provisions of Section 19(2) of the Intestate Succession Act. 7.4 The 2nd respondent in response to ground 2 submitted that having found that the contract was illegal, null and void, the lower court could not proceed to make any pronouncement on the claim for the sum of K600, 000.00., interest and damages. The case of The Rating Valuation Consortium and D. W. Zyambo & Associates (sued as firm) v. Lusaka City Council and Zambia National Tender Board <181 was cited on the principle of law that the court cannot enforce a contract rendered illegal by statute. The 2nd respondent conceded that -J26 - he was alive to the holding in the cases of Mohammed S. Itowala v. Variety Bureau De Change and Borniface Kafula (supra). 7.5 The 2 nd respondent's position from inception of the proceedings is that the contract was frustrated when Zambia Revenue Authority assessed the property transfer tax to be paid at a value exceeding the contractual purchase price. This brought the contract to an end. A number of authorities to that effect were cited. See the cases of Fibrosa Spolka Akoyjina v. Fairbair M. Lawson Conbe Barber Ltd 1191, British Movietonews Ltd v. London and District Cinemas 1201 and Sam Amos Mumba v. Zambia Fisheries and Fish Marketing Corporation Limited 1211, The 2 nd respondent submitted that should we take the approach taken in the case of Mohamed Itowala (supra), the appellant is only entitled to the refund of K600, 000.00 and not to the claim for interest and damages. 7.6 The responses to grounds 3 and 4 are argued as one. It was submitted that all the parties admitted that the 2 nd and 3 rd respondents did not obtain prior authority from the court -J27 - before executing the contract of sale. Though the parties blamed one another for the lack of authority, no order of the court was obtained prior to the sale and it is immaterial that the 1st respondent neither admitted nor denied the averments in the pleadings. 7.7 In response to ground 5, the 2 nd respondent submits that it supports the lower court's decision not to proceed with the 1st respondent's counter-claim. The respondent argued that the counter claim could not stand as the contract of sale on which it was based was null and void and therefore unenforceable. The case of Philips v. Copping 1231 was cited on the principle that once an illegality has been brought to the attention of the court, all questions of pleading are overiden. On the strength of the arguments advanced, we were urged to dismiss the appeal with costs. 8.0 APPELLANTS ARGUMENTS IN REPLY: 8.1 The appellant in reply argued that the 1st respondent has not cited any law to support its contention that the High Court does not have jurisdiction to try a matter which arises from an illegal contract. That the Mirriam Mbolela case cited by the -J28 - 2 nd respondent is not of general application and it did not apply to the facts of this case. The jurisdiction of the court is spelt out in the Constitution of Zambia and High Court Act. 8.2 The appellants further argued in reply that the Zambia National Holdings Limited case cited by the respondents does not aid the case at all. That 1st respondent's submission that Section 19(2) of the Intestate Succession Act deprived the learned trial Judge of its jurisdiction is misleading. Reference was made to Blacks Law Dictionary which defined substantive law as: "the part of the law that creates, defines, and regulates the rights and powers of the parties" 8.3 Section 19 of the said Act does not define or regulate the power of the High Court. The power of the High Court is defined and regulated by the Constitution and the High Court Act, that the High Court has unlimited and original jurisdiction. The appellant argued in response to the 1st respondent's argument that even if the contract of sale was found to be illegal, the trial court had power to make an order for repayment. -J29 - 8.4 It was argued that the Judge's distinction of the Kafula case • from the present case was not supported by law leaving an impression that only the Supreme Court can order a repayment. We were invited to correct this position. The appellant contended that the question of repayment can only be resolved after hearing the parties and the court determines whether K600,000.00 was indeed paid by the appellant to the 2 nd and 3rd respondent and the circumstances and conditions under which the said sum of money was paid. 8.5 The appellants argued that the issue surrounding the sum of K600, 000.00 are contentious and it is alleged that the said money was paid to the estate of the deceased and the estate benefited seeing that the same money was used by the 2nd and 3rd respondent to discharge the Mortgage and Further Charge which was registered against the property in issue. The manner in which the 2 nd and 3 rd respondent were appointed joint administrators did not arise in the lower court. It would not be fair on the lower court to advance this argument on appeal since this appeal is only concerned with the decision of the lower court dated 28th May, 2019. It cannot be argued as -J30- to whether or not that the learned trial judge was wrong on an issue she did not adjudicate upon. 8.6 The appellant further made reference to the case of Mususu Kalenga Building Ltd and Anor v. Richman's Money lenders Ent 1221 where it was stated that an issue not raised in the lower court cannot be raised on appeal. Reference was made to Section 4(1) of the Court of Appeal Act on the appellate court's jurisdiction. The appellant argued that this jurisdiction does not include appeals from the Local Court or the power to re-open matters which have already been adjudicated upon by the Local Court. The 1st respondent can be allowed to raise the issue of the 2nd and 3rd respondent's appointment as admintstrators as this would be a leap frog of the lower court's ruling. In respect of the Aristogerasimos case relied upon by the 1st respondent, it was argued that it does not apply to this case as it deals with an appeal made without jurisdiction. Even the cases of Charity Oparaocha and Base Development cited by the 1st respondent did not aid his case. -J31- 8. 7 In the Oparaocha case the Supreme Court stated at page 148 line 45 that the effect of the appointment of an administrator by the Local Court beyond its powers can be cancelled post facto. The appellant argued that after such cancellation, the acts done prior to the revocation were still valid and binding on the estate of the deceased. Court orders continue to be in force until reversed, vacated or terminated by the court or legislative intervention. The order of appointment has not been revoked and is still in effect. Reliance was placed on Section 15(1), 3 and 30 of the Intestate Succession Act on the legality of the acts of the administrator before a revocation of his appointment. 8.8 The appellant argued that in the Base properties case, the provisions of Section 15(1), 3 and 30 of the Intestate Succession Act were not brought to the attention of the court. The principle of administrator de son tort does not exit. What in fact exists is the principle of executor de son tort. On ground 3, the appellant submitted that the issue of admission by both parties had to be determined first before answering the issue -J32 - of jurisdiction. The test in the Zega Limited case is very clear • that an admission must be clear and unequivocal. 8.9 On ground 4, the appellant stated that reference to admission by all parties meant the parties to the contract and was an . attempt to mislead the court as the terms of the summons were very clear. That whether this court had jurisdiction to hear and entertain the action owing to the fact that the contract of sale of the said property was illegal following an admission by all parties that the parties did not get authority of the court before executing the said contract. The summons are clear that the admission was in respect of all the parties. The respondent raised the question whether there was an admission by all parties. If this question was answered in the negative the lower court could have proceeded to dismiss the action. 8.10 On ground 5, the appellants argued that the issue of a counterclaim . cannot be answered from the reliefs sought as the ruling was self-explanatory and shows that the trial Judge did not address its mind to the counter claim. The appellant prayed that this court should allow the appeal. -J33 - 8.11 In reply to the 2nd respondent's heads of argument, as regards ground 2, the appellant stated that that the lower court was on firm grounds to have found that it had jurisdiction and the appellant was in agreement with the authorities cited thereto. That the unlimited and original jurisdiction is to be exercised in accordance with the law. See Zambia National Holdings Limited and United National Independence Part v. The Attorney General (supra). The appellant argued that Section 19(2) of the Intestate Succession Act does not deprive or limit the jurisdiction of the High Court in circumstances where the contract in question is alleged to be illegal. Such an assumption would be wrong because it will be calling this court to rewrite the law. 8.12 As regards ground 2, the appellant submitted that the refusal to make an order relating to the sum of K600,000.00 was wrong. The amount of K600,000.00 was not as a result of an illegal contract. Reliance was placed on the case of Mohamed ltowala (supra) and the appellant maintained that there is no need rely on the contract of sale in order to recover the K600,000.00. The appellant stated that there was no basis -J34 - upon which the respondent can pocket the K600,000.00. The respondent has not demonstrated that money paid under an illegal contract cannot be recovered. That the 2 nd respondent's argument that the contract was frustrated because Zambia Revenue Authority made an assessment of the property at a value more than the contractual price is misplaced as this allegation of fact still needed to be proved. The appellant stated that the failure by the 2 nd and 3rd respondent to pay property transfer tax cannot be said to have frustrated the event. Even then, the appellant can recover its money. The question of how much the appellant has to be paid has to be determined after hearing evidence of the parties. The appellant submitted that the respondent's argument on the appellant's entitlement is premature and ill-fated. 8.13 It was the appellant's submission that the case of The rating Valuation Consortium (supra) cited by the 2 nd respondent does not aid their case. In the above case, the respondents were estopped from seeking shelter in the doctrine of illegality and the appellants were awarded damages despite the illegality. -J35 - 8.14 On ground 3, the appellant in response submitted that the test ' espoused in the Zega Limited case is that an admission must be certain, clear, unequivocal and must show an intention to be bound. The finding that the pleadings particularly paragraph 8 of the 1st respondent amended defence and counter claim at page 331-336 of the record, reveal an admission is wrong as it does not meet the above test and has no deducible intention to be bound. The judge in the court below made the decision based solely on the pleadings thereby allowing the 2 nd respondent to rely on witness statements which should not be allowed. 8.15 As regards ground 4, the appellant stated that the 2 nd respondent did not address this ground. The court was moved by summons and an accompanying affidavit on the question whether the judge had jurisdiction to hear and determine the action seeing that it was based on an illegal contract owing to the effect that all parties had admitted that there was no authority which was obtained from court to execute the contract of sale. -J36 - 8.16 On ground 5, the appellant stated that the lower court did not • deal with the issue of the counterclaim which is an independent action. 8.17 In conclusion, the appellant urged us to allow the appeal and remit the case back to the High Court for re-trial before a different Judge. 9.0 DECISION OF THE COURT 9.1 We have considered the appeal, the authorities cited and the arguments advanced by the learned Counsel for the parties. The parties raised extensive arguments on the issue of jurisdiction and cited a plethora of authorities on the subject matter. We have considered all the authorities. We will delve straight into the issue for determination. 9.2 It is not in dispute as earlier stated in the factual background that the appellant and 2nd and 3rd respondents had entered into a contract of sale of stand number 18972 Olympia Lusaka. The appellant made a part payment towards the purchase price in the sum of K600,000.00. Upon failure to complete the transaction, the appellant commenced an action -J37 - seeking the repayment of the sum paid towards the purchase of the property, interest and damages for breach. 9.3 The 2 nd and 3 rd appellants executed the contract of sale as administrators of the estate of the late Gilbert Phiri. 9.4 On the 13th of March, 2018, the 1st respondent raised a preliminary issue for the determination of whether the court below had jurisdiction to hear and determine the matter owing to the illegality of the purported contract, on account that no authority was obtained from the court pursuant to Section 19 (2) of the Interstate Succession Act and that the contract therefore is illegal, unenforceable and null and void. 9.5 The court below upheld the preliminary issue and held that the provisions of Section 19(2) of the said act was violated and it had no authority to hear the matter. The court below further held that the claim for refund of money paid towards the purchase price was not tenable because "it was dismissing the matter for want of jurisdiction to hear and determine a mater founded on an illegal, unenforceable and null and void contract of sale". -J38 - 9.6 Though three grounds of appeal have been raised, the main ~ issue for determination is as raised in ground one. Whether the trial Judge misdirected herself at law in holding that she lacked Jurisdiction to try and determine the claim. 9.7 Jurisdiction denotes the authority or power to hear and determine judicial disputes or even to take cognizance of the same. Before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. Where a court proceeds to hear a dispute without jurisdiction, the result will be a nullity ab initio. There is a plethora of decisions by superior courts on the question of jurisdiction. Without it, a court has no power to make any further step or continue proceedings. 9.8 Article 134 of the Constitution of Zambia vests unlimited and original jurisdiction on the High Court to hear and determine civil and criminal matters. Section 9(1) 2 of the High Court Act vests in the court jurisdiction to hear and determine all matters in dispute. Further, Section 13 of the -J39 - High Court Act provides for the administering of law and equity concurrently. 9.9 Reverting to the issue of whether or not the court lacked jurisdiction to hear and determine the claim in respect of the refund sought, the basis for refusal by the court was that because no authority was obtained by the administrators to sell the property subject of the estate of the deceased, the contract therein was illegal, unenforceable, null and void. That Section 19(2) of the Intestate Succession Act was violated. As regards the position of the court on the effect of lack of prior authority, the same is settled. An administrator must seek prior authority before sale of a property forming part of the estate of a deceased person. In the absence of such authority the transaction is illegal and unenforceable. 9.10 The important issue for determination is whether the claim for the sum of K600,000 paid as part payment of the purchase price is affected or unenforceable. What happens to the claim for the money? It is affected on account of the illegal, null and void contract entered into? In the cited case of Mohamed S -J40 - • Itowala v. Variety Bureau De Change 161 the Supreme Court in reference to a contract arising from an illegal transaction, stated and held that; "the plaintiffs title to his money is unaffected and did not result from an illegal transaction. Quiet clearly he did not obtain the K24 million kwacha from an illegal traction. In the circumstances of the case, therefore, it could not be said that the money is irrecoverable. The plaintiff did not need the alleged illegal transaction in order to find his cause of action based on his clear title to the K24 million which must be paid back. It would have been exceedingly strange if in fact it could be properly accepted that the other party to the transaction could pocket the money and benefit from the alleged illegality." 9.11 This amptly sums up the position as regards money paid arising from an alleged illegal contract or in this case a transaction entered into for sale of the property forming part of the estate of the deceased by administrators without prior authority of the court. -J42 - • and determine the claim for refund of the sum of K600, 000. 00 paid to the respondents as part payment of purchase price. 9.15 In as much as the law is clear that prior to sale of a property forming part of the estate of a deceased person, authority of the court is required and that such transactions are null and void ab initio such a sale is illegal and unenforceable. However, the claim for a refund of K600,000.00 remains unaffected by the illegality in issue and is subject to proof on a baiance of probability. It would be unjust enrichment if the claim is proved to allow the respondents to keep both the property and the money. 9.16 Having held that the court below erred in law and fact by dismissing the claim for want of jurisdiction, grounds two and three are rendered otiose. 9.17 As regards the issue of costs, it is trite that the same follow the event. However, the appellant at the hearing of the appeal raised an objection to the supplementary record of appeal filed by the 1st respondent on 3 rd of March, 2020; containing a document namely the Notice of grant of legal Aid dated 4 th May -J43 - ... 2015, under which the 1st respondent was granted legal aid from 14th April, 2015 as a legally aided person represented by Messrs Malambo and Company. 9.18 The basis of the objection being that the supplementary record of appeal was filed on the 3 rd of March, 2020 after expiration of 30 days from 18th November 2019, when the 1st respondent was served with the record of appeal. The same is improperly before the court. 9.19 1st respondent objected to the issue raised on the basis that there is no prescribed time frame for filing of a supplementary record of appeal under the Court of Appeal Rules. 9.20 We have perused the provisions of the Court of Appeal Rules Act No.7/2016. Order 10(1) provides for the filing by the respondent of a supplementary record of appeal. As regards the time frame, within which to file a supplementary record of time, our rules are silent. Nonetheless, the same must be filed within reasonable time. We did inquire from Counsel if the document was part of the record in the court below. Counsel for the applicant stated that he could not trace it. -J44 - • 9.21 The view we take is that the document dated 4 th May, 2015 appears to have been part of the record in the court below. Therefore we will accept the supplementary bundle of documents filed on record, in the interest of justice. It is trite that costs cannot be awarded against a legally aided person. 9.22 We therefore only award costs against the 2 nd and 3 rd respondents. 9.23 The appeal having been upheld, we set aside dismissal of the matter in the court below by the learned trial Judge and remit back the record for trial before another Judge. ,......c:: ......, ....................... :.--n ............... . M. M. Kondolo, SC COURT OF APPEAL JUDGE F. M. Chishimba •••••••••••••••••••• D. L. Y. Si ing COURT OF APPEAL JUDGE COURT OF APPEAL -