Kizito Kamuvwi Mulaisho and Dominic Mazuwa Mulaisho (Suing in their capacity as joint Administrators of the Estate of the late Dominic Chola Mulaisho) and Anor v Development Bank of Zambia and Ors (Appeal No. 117/2022) [2023] ZMCA 344 (24 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: KIZITO KAMUVWI MULAISHO AND DOMINIC MAZUWA MULAISHO (Suing in their capacity as joint Administrators of the Estate of the late Dominic Chola Mulaisho) -- Appeal No. 117/2022 . ' . . . .,,. ...... . " .,..,· \,} J .... "1 Vi ... , ,,, I ~~-. ,- ~-,l ·.., '-,, ., -· -~-- , '\ . J - I I u. • I I , ..,1 J _..,_., . - • ~ - -- '-. -. · .. ,._,. ,.,'. .. -2 I - • , ., • • - I . I t \ '---·· - 1 ST APPELLANT KALULUZI INVESTMENTS LIMITED 2ND APPELLANT AND DEVELOPMENT BANK OF ZAMBIA 1 ST RESPONDENT SIPHO M. PHIRI (Sued in his capacity as joint receiver of Kaunga Investments Limited) WILLIAM KABEMBE (Sued in his capacity as joint receiver of Kau nga Investments Limited) 2ND RESPONDENT 3RD RESPONDENT ANNABEL FLOWERS LIMITED 4TH RESPONDENT CORAM: Makungu, Chishimba and Muzenga, JJA On 17th November 2023 and 24th November 2023. For the Appellants: Ms. J. R. Mutemi of Theotis Mutemi Legal Practitioners For the 4th Respondent: Mr. M. Ndalameta & Mr. Y. G. Yosa of May & Co. JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: J2 1. Chifuti Maxwell v. Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa - Appeal No. 9 of 2016 2. Mulenga v. Nangoyi - Appeal No. 128 of 2018 3. Evaristo Mwaba Chitwaka (as administrator of the Estate of Pascal David Chitwala deceased) v. Dunlop Zambia Limited - SCZ Appeal No. 129 of 2010 4. William David Carlisle Wise v. E. F. Harvey Limited (1985) ZR 179 5. Daniel Katongo v. Sara Kalambo Mbelwa & Ndola City Council (2014) 3 ZR 158 6. Chrispine Malambo v. Moses Malambo - CAZ Appeal No. 150 of Legislation referred to: 1. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 2. The High Court Act, Chapter 27 of the Laws of Zambia. Other works referred to: 1. Halsbury's Laws of England 4th Edition, Vol 32 and para 574 1.0 INTRODUCTION 1.1 This is an appeal against a Ruling by Wanjelani, J delivered on 25th March 2022 dismissing the entire cause on a point of law following a preliminary objection. 2.0 BACKGROUND J3 2.1 The background to this appeal is that Dominic Chola Mulaisho (now deceased) together with the second appellant commenced a matter in the High Court by way of writ of summons against the respondents. Following his demise, letters of administration were obtained from the Probate Registry, in which Kizito Kamuvwi Mulaisho and Dominic Mazuwa Mulaisho were appointed as joint administrators of his estate. He was thus substituted by the two administrators, who appear as first plaintiff in the court below and as first appellant in this appeal. 2.2 The letter of administration was dated 22nd February 2019. 2.3 The matter was scheduled to come up for trial on 7th April 2021. The 4th respondent filed a notice of intention to raise preliminary issues on 18th March 2021, which the trial court heard. 3.0 ARGUMENTS IN THE LOWER COURT 3.1 The 4th respondent contended that the pt appellant having failed to register the letters of administration as required by Section 5(3) of The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, cannot prosecute the cause on behalf of the deceased (Dominic Chola Mulaisho). 3 .2 It was the 4th respondent's contention that the effect of non registration is that the letters of administration are void for all intents J4 and purposes. It was submitted that since the document which gave authority to the administrators to be in the stead of the deceased (initial plaintiff) were null and void, the administrators had no locus standito participate in the cause and as such it should be dismissed. 3.3 It was argued further that the 2nd appellant, in the absence of the 1st appellant, has no interest and cannot proceed to prosecute the matter. 3.4 The p t appellant contended that having been granted letters of administration, they had capacity to sustain the action, following the transition of the deceased's interest to themselves, as the interest had not abated on the death of a party to the proceedings. 3.5 The 1st appellant contended that at the time of obtaining the letters of administration, there was no longer an interest in land existing as the title had been changed into the 4th respondent's name and attempts to register the same and placing of a caveat proved futile. 3.6 With respect to the 2nd appellant, it was argued that the cause of action could stand on its own as per amended statement of claim . 4.0 DECISION OF THE COURT BELOW 4.1 The court below considered the preliminary objection and the arguments by the parties. She found that the letters of administration should have been filed within 12 months from the date of issue, which in casu, was not the case. She also found that the effect of non- JS registration as per Section 6 of the Lands and Deeds Registry Act is that the letters of administration are null and void. The lower court went further to hold that the 1st appellant had no capacity to prosecute the matter and were improperly before her. 4.2 Having found that the 1st appellant were incompetently before her, the lower court found consequently that the 2nd appellant could not maintain the cause on its own as the central issue connecting its interest hinges on the 1st appellants' cause. 4.3 Consequently, the court below dismissed the entire cause with costs as it was improperly before her. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the decision of the court below, the appellants lodged an appeal to this court on the following grounds: it held that the 1. The court below erred in law and in fact when at page letters of R13 of the Ruling, administration issued in 2013 and 2019 ought to have been registered within 12 months of issuance and were null and void for want of registration when in fact, the evidence on record showed that registration of the grant was curtailed by the change in ownership of the property between 2002 and 2015, prior to the grant of the letters of administration. 2. The court below erred in law and in fact when it held that 1st appellant herein lacked capacity to prosecute the matter and dismissed the action when in fact, a cause of action survives a claimant's death and vests J6 in the personal representative and the want of registration was curable. 3. The learned court below erred in law and in fact when at page R14 of the Ruling the court found that the 2 nd appellant could not maintain the action independent of the 1st appellant when in fact the 2nd appellant's cause of action was distinct and arose from a contract of sale executed between the 2 nd appellant and the 2nd and 3 rd respondents. 6.0 APPELLANT'S ARGUMENTS 6.1 In support of ground one, learned counsel for the appellant argued that the learned court below erred when it found that the failure to register the letters of administration rendered them invalid as at the time they were obtained, no interest was subsisting in the estate of the deceased as ownership of the subject the property was changed into the name of the 4th respondent. It was contended that a certificate of title was conclusive evidence of ownership until set aside. Reliance was placed on the case of Chifuti Maxwell v. Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa 1 • It was learned counsel's submission that the foregoing situation is what made registration impossible. 6.2 According to counsel, at this time there was no interest in land against which the 1st appellant could register the grant of letters of administration. J7 6.3 It was argued that section 5(3) of the Lands and Deeds Registry Act does not affect the appellant's capacity to prosecute the matter on behalf of the deceased, especially that there was already a certificate of title in respect of the subject property. 6.4 Counsel further contended that Section 6(i) of the Lands and Deeds Registry Act provides for extension of time in which to register a document which requires registration under the Act. It was argued further that Order XVI Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia, empowers the lower court to order the substitution of a party or the curing of any defect. It was argued that this is an exceptional case in which the court should have exercised discretion and allowed the matter to proceed to trial as the administrators were continuing an already existing cause and the circumstances could not allow the registration of the letters of administration. 6.5 We were urged to allow the appeal. 6.6 The arguments in support of ground two are similar to some of the arguments in support of ground one. The gist simply being that the 1st appellants having been appointed administrators have the requisite capacity or locus standito maintain and sustain proceedings. We were referred to a number of authorities among them the case of Mulenga J8 v. Nangoyi2 and the case of Evaristo Mwaba Chitwaka (as administrator of the Estate of Pascal David Chitwala deceased) v. Dunlop Zambia Limited. 3 We were urged to allow this ground of appeal. 6.7 In support of ground three, it was submitted that the 2nd appellant entered into a contract with the 2nd and 3rd respondents, which contract was subsequently rescinded by the 2nd and 3rd respondents and by virtue thereof, the 2nd appellant acquired independent status to sue under the contract. 6.8 Learned counsel referred us to the specific reliefs sought by the 2nd appellant as reflected in the Amended Statement of Claim . 6.9 Our attention was drawn to the decision of the Supreme Court in the case of William David Carlisle Wise v. E. F. Harvey Limited4 where a cause of action was defined as a factual situation, the existence of which entitles one person to obtain from a court a remedy against another person. 6.10 It was contended that in the circumstances, the 2nd appellant had the requisite locus standi and cause of action independent of the ist appellant. 6.11 We were urged to allow the appeal on the grounds advanced. 7.0 RESPONDENT'S ARGUMENTS J9 7.1 In response to ground one, learned counsel for the 4th respondent has argued that the first ground discloses no error by the lower court as the effects of non-registration of letters of administration makes them void. Counsel submitted that it is settled law that the letters of administration must be registered within 12 months failure to do so makes them null and void and consequently the 1st appellants lack locus standito sue. Reliance was placed on the High Court decision in the case of Daniel Katongo v. Sara Kalambo Mbelwa & Ndola City Council5 where the court held that the failure to register letters of administration as required by section 5(3) makes the same void. 7.2 It was submitted that the appellants have not furnished any ground of appeal relating to a claim for extension of time and this argument should be disregarded. 7.3 It was contended further in the alternative that there was no application for extension of time as per the Katongo case supra. It was contended that the appellant ought to have made an application to register out of time before making their application for substitution of parties. 7.4 With respect to Order XVI Rule 1 of the High Court Rules, counsel for the 4th respondent submitted that the lower court could not have JlO exercised such power on account that a court cannot substitute a party, where the same has no proper standing. 7.5 Counsel contended that the trial court was on firm ground when it held that the letters of administration were void for want of registration. 7.6 The 4th respondent's response to ground two is similar to the arguments in opposition to ground one since they stressed the fact that letters of administration are subject to limitations, in this case the limitation being the requirement for registration within 12 months of issue. 7.7 In response to ground three, it was argued that the action as commenced was one of redemption of property mortgaged to the 1st respondent by the late Dominic Mulaisho, who was at the time of the mortgage, the beneficial owner of the property and held a right of redemption. 7 .8 We were referred to the learned authors of Halsbury's Laws of England 4th Edition, Volume 32 and paragraph 574, where they set out persons who can redeem under a mortgage. The authors posit that: "The following persons claiming under the mortgage can redeem: an assignee of the equity of redemption, including a volunteer; a subsequent incumbrancer; a tenant for years under a lease made subsequent to the mortgage which the mortgagee refuses to confirm; a Jll surety on payment by himself or refusal by the principal debtor to discharge the mortgage debt; or if the surety has mortgaged his own estate as security for the debt." 7.9 It was contended that the 2nd appellant does not fall under any of the categories of persons capable of redeeming the mortgage and therefore it has no legal standing to present the action independent of the 1st appellants. 7.10 We were urged to dismiss the appeal with costs. 8.0 THE HEARING 8.1 At the hearing of the appeal, learned counsel for the appellants, Ms. Mutemi, relied on her filed arguments which she briefly augmented. Learned counsel for the 4th respondent, Mr. Ndalameta and Mr. Yosa, equally relied on their documents and briefly augmented. 9.0 OUR DECISION 9.1 We have carefully considered the record, the arguments for and against the appeal. The core issue in this appeal as we see it, is whether the lower court was on firm ground when she dismissed the cause . 9.2 We note that the cause was commenced by the deceased in the year 2002, who passed on in the course of prosecuting the same. The Administrators were appointed and substituted to carry on the cause. J12 We have no hesitation in holding that the administrators herein were continuing to pursue an interest in land, hence the requirement for registration. 9.3 It is trite that in accordance with Section 5(3) and Section 6 of the Lands and Deeds Registry Act, the letters of administration ought to have been registered and that the failure to do so renders them null and void. The trial court cannot thus be faulted for finding that the letters of administration must be registered where there is an interest in land and failure to register renders the same void. 9.4 We however hold the view that a holistic reading of Section 6, is that the defect or failure to register is curable. The most important question is whether or not the other party has suffered prejudice as a result thereof. At the time of the preliminary objection, the trial court ought to have exercised its discretion to extend the time for registering the letters of administration in terms of Section 6(i) and Order 16 Rule 1 of the High Court Rules in order to cure the defect, especially that the respondents would not have suffered any prejudice. This is more so in the light of the explanation for non-registration. 9.5 It is not in the interest of justice to kill a cause simply for want of registration when the defect is curable. In the case of Chrispine Malambo v. Moses Malambo6 where the issue of non-registration J13 of probate arose, we allowed the appellant to register the letters of administration in the view that there were triable issues, and in the interest of justice, we referred the matter back to the High Court for determination. 9.6 The High Court Judge in the Katongo case supra and in casu, were right only to the extent that they interpreted the provision as relates to the effect of non-registration. They were however wrong when they dismissed the entire cause on the basis that the letters of administration were not registered. They ought to have tapped into their inherent jurisdiction and instead extend time or make any other order which would ensure compliance with the requirement, so that the matter is determined on its merits. 9.7 We therefore find merit in the appeal, especially the arguments in ground one. We find it unnecessary to consider the arguments in the rest of the grounds. 9.8 We allow the appeal, send back the matter for retrial and order the registration of the letters of administration within 60 days hereof . We also direct that the matter be set down for hearing so that it can be determined on its merits. 10.0 CONCLUSION J14 10.1 Having found merit in the appeal, we allow it. We set aside the Ruling of the court below and send the matter back to the High Court for trial. 10.2 We order the registration of the letters of administration within 60 days hereof and that the matter be set down for trial. 10.3 Costs will be in the cause. ·········· ···~ ······· · C. K. MAKUNGU COURT OF APPEAL JUDGE F. M. CHISHIMBA COURT OF APPEAL JUDGE ···· ···········~ ·· ··············· K. MUZENGA COURT OF APPEAL JUDGE