Mushipe (T/A Mushipe & Associates and Suing as Executor and Trustee of the Estate of the late Funny Lunga Yolamu) v Rossi ( Suing as Executor and Trustee of the Estate of the Late Funny Lunga Yolamu) (APPEAL NO. 12/2022) [2023] ZMSC 10 (31 May 2023)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 12/2022 AT THE SUPREME COURT REGTO'tl\S>u'r.£ ~-~iu~~-- 1 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MARTHA MUSHIPE (Tl A Mushipe & Associates and APPELLANT Suing as Executor and Trus tee of the Estate of the Late Funny Lungu Yolamu) AND GAUDENSIA ROSSI (Suing as Executor and Trustee RESPONDENT of the Estate of the Late Funny Lungu Yolamu) Coram Musonda DCJ, Wood and Mutuna JJS On 2nd March 2023 and 31 st May 2023 For the Appellant Mr. P. G. Katupisha of Messrs Milner and Paul Advocates For the Respondent : Ms. S. Namusamba of Messrs Shamwana and Company JUDGMENT Mu tuna JS, delivered the judgment of the court. Cases ref erred to: 1) Mwamba v Nthenge, Kainga and Chekwe Appeal No. 17 of 2010 J2 2) Bidvest Food Zambia Limited and others v CAA Imports & Exports Appeal No. 56 of 2020 3) Blackwell v Blackwell (1877) 2 P. D. 72 4) Grover v Burningham (1850) 5 Exch 184 5) The Attorney General v Marcus Kampumba Achiume SCZ Judgment No. 2 of 1983 6) Itowala v Variety Bureau de Change SCZ Judgment No. 15 of 2001 7) In the Goods of Brown (1877) P. D. 110 8) In the Estate of Dianah Hubbuck (1905) P. D. 129 Legislation referred to: 1) The Wills and Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia 2) The Legal Practitioners (Practice) Rules 2002 Works referred to 1) Halsbury's Laws of England (4th Ed) Volume 17, paragraphs 707 and 708 2) Sir Raymond Walton, The Encyclopedia of Forms and Precedents (5th Ed) Volume 42 'Wills and Administration on Wills' 3) Thomas Jarman, A Treatise on Wills (8th Ed) Volume 1 J3 Introduction 1) The Appellant in this appeal, Martha Mushipe, is a renowned lawyer, trading under the name and style of Martha Mushipe and Associates. She launches this appeal in her capacity as the executrix and trustee of the estate of the late Funny Lungu Yolamu (the Testatrix), an issue which is being contested, and challenges the decision of the Court of Appeal, in terms of which it dismissed her claim that she is both the appointed counsel and co executor and trustee of the estate of the Testatrix. 2) The appeal brings into sharp focus the art of drafting legal documents and interpretation of clauses in a will. Background 3) The facts surrounding this appeal are by and large uncontested. In 1999, the Testatrix instructed the Appellant to prepare her last and final testament. Pursuant to these instructions, the Appellant prepared the draft of the will and invited the Testatrix to approve and execute it on 8t h March 1999. J4 4) As is normally the practice, the Appellant as counsel charged with the responsibility of preparing the Will, witnessed the execution of the Will. This was done in the presence of the Testatrix and one Selina Banda, who in the presence of the other two also witnessed the execution of the Will. The significance of the foregoing becomes apparent later. 5) The Will named the Respondent and one Kani as executors and trustees of the will under clause 1. The Testatrix also directed, by the said clause, that in the administration of her will upon her demise, the two should be assisted by her lawyers. 6) On 11th May 2000, the Testatrix passed away prompting the Appellant to apply and obtain probate on 11 th August 2000 naming herself and her firm, Kani and the Respondent as co-executors and trustees. The act of including herself and her firm as co-executors and trustees was a unilateral one on the part of the Appellant which she justified by contending that she and her firm were, by implication, appointed as such in the will. This JS contention, by the Appellant, is in issue in this appeal and we shall deal with in the later part of this judgment. 7) The Respondent accepted the Appellant's contention and took up the appointment as co-executor and trustee while Kani refused and declined to take up his appointment. Notwithstanding the objection by Kani, the Appellant proceeded to embark on the exercise of administering the estate of the Testatrix both as co-executor and trustee and counsel until differences arose between herself and the beneficiaries of the estate resulting in revocation of her appointment. This prompted the Appellant to commence an action before the High Court claiming fees for professional work done in relation to obtaining probate and work done as counsel for the estate and distribution of the estate of the Testatrix as co-executor and trustee. Matter before the High Court 8) The action in the High Court was commenced on 29th January 2003 and the Appellant sought the following reliefs: J6 8.1 Legal fees in the sum of K309,651,808.70 being 10% of the value of the estate chargeable; 8 .2 Legal fees in the sum of USD27,000.00 being 10% of the value of the estate chargeable with interest at [the] current bank lending rate with effect from 11th August 2000 to date of payment; 8.3 The sum of Kl 8,178,150.00 being legal fees in respect of cause number 2000/ HP/ 1264 Ruth Yolamu v Kani and Rossi and interest at [the] current bank rate from date of writ to date of payment; 8.4 The sum of K23 ,690,873 .00 in respect of cause number 2002/HP/0525 Mushipe and Associates v Cutline Ltd plus interest at [the] current bank rate of payment; 8 .5 The sum of Kl 15,004,000 .00 being legal and professional fees in respect of the Estate of the late Funny Lungu Yolamu General file for legal services rendered plus interest at [the] current bank rate from date of the writ to date of payment; J7 8.6 An order that the [Appellant] is the legally appointed lawyer for the estate of the late Funny Lungu Yolamu pursuant to a will dated 8 th March 1999; 8.7 An order that all outstanding debts such as maintenance and rehabilitation of the properties herein and other bills be redeemed by the estate; 8 .8 An order that Mushipe and Associates continue to collect rentals until all outstanding debts which should include the clients' account if in debt have been redeemed or paid through other means; 8. 9 An order that the letter of revocation dated 24th January 2003 is irregular and illegal. An injunction restraining the defendants from interfering and in termeddling, collecting rentals, disposing, selling leasing and subdividing the property aforementioned and or in any way dealing with the estate until the determination of the matter or until further order of the court; 8 .10 Any other relief that the court may deem fit; 8.11 Costs. J8 9) The action was initially commenced against Vutiwe Yolamu, Lina Yolamu and Njeleka Yolamu (sued on her own behalf and as next of kin to Charles Yolamu, a minor). By way of summons for non-joinder and mis-joinder dated 3 rd September 2003, the said defendants sought an order to be removed from the proceedings as the Appellant's action was premised on a debt allegedly due to her from the estate. The High Court granted the order removing the defendants as parties to the proceedings and in their place ordered that the Respondent be joined as defendant. 10) After the Respondent was joined as a party, process was served upon him following which he filed a defence and counter claim. In the defence, he denied liability and counterclaimed the following relief: 10.1 An order that the Appellant's appointment as executrix of the estate of the late Funny Lungu is unlawful and, therefore, null and void; 10.2 An order that the Appellant is not entitled to charge fees for assisting the executors to administer the estate; J9 10.3 An order that the Appellant forthwith render an account on the financial state of the estate; 10.4 Damages suffered as a result of the Appellant having failed to properly advise on the affairs of the estate; 10.5 Any other relief the court may deem fit. Decision of the High Court 11) The matter went to trial and following consideration of the evidence and arguments the trial court held as follows: 11. 1 the wording of clause 1 of the will expressly named the Respondent and one Kani as the executors and trustees of the estate and that these were to be assisted by the Testatrix's lawyers who were not specifically named; 11 .2 the fact that the Testatrix's lawyers to assist the executors were not specifically named created an ambiguity; 11. 3 the burden of adducing evidence to prove the contention by the Appellant that she was the JlO appointed lawyer lay on her and that the evidence presented by her reacted against her because it confirmed that the Testatrix had informed her that she had appointed another law firm to represent her in another matter. Further, she conceded under cross examination that she did not have written instructions from the Testatrix appointing her firm to assist the executors and trustees 1n the administration of the estate; 11.4 the fact, in and of itself, that the deceased had instructed the Appellant to draft the will, was not sufficient evidence to prove that she was also instructed to assist in the administration of the will. Where a testator intends to appoint a lawyer to act as executor of the estate, the testator ought to explicitly name the law firm and give clear directions regarding the number of partners to act on the instructions; 11.5 the Appellant trading as Mushipe and Associates were not expressly or by implication appointed as Jll executor of the estate or lawyers to assist m the administration of the will. 11. 6 the Learned High Court Judge concluded by dismissing the action with the costs. She partially upheld the Respondent's counterclaim. Appeal to the Court of Appeal and decision of the court 12) The Appellant launched an appeal to the Court of Appeal fronting seven grounds of appeal which questioned the finding by the Learned High Court Judge that the Appellant and her firm were not appointed either expressly or by implication as executors of the estate of the Testatrix or lawyer to assist in the administration of the estate. The grounds of appeal also challenged the decision by the Learned High Court Judge dismissing the monetary claims . 13) After the Court of Appeal heard the arguments and considered the matter, it agreed with the findings by the learned High Court Judge that the Appellant was not J12 appointed executrix and trustee of the estate or counsel to assist the executors and trustees in the administration of the estate. It held that the finding of fact by the Learned High Court Judge was supported by the evidence presented. 14) In arriving at its decision, the Court of Appeal considered the provisions of sections 5(6) and 3 of the Wills and Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia. The former provides for a testator having the option of appointing one or more persons to be his executors, while the latter defines executor of an estate. The court also considered the manner of appointment of executors by a testator according to the learned author of Halsbury's Laws of England (4th Ed) Volume 17, para 707. This text sets out the four ways in which an executor can be appointed: expressly by the testator in the body of the Will; by the exercise of a power of nomination of an executor conferred by the testator by his Will; by implication from the testator's Will, when the J13 executor is known as an executor according to the tenor of the will; and, by virtue of statutory provisions. 15) The court then explained the instance when it would find that a person was appointed an executor of a Will by implication in accordance with Halsbury's Law of England. It said that such a situation arises where " ... upon a reasonable construction of his will, it appears that a particular person has been appointed to perform the essential duties of an executor, such an appointment is sufficient to constitute that person an executor". The court went on to examine clause 1 of the will and held that it explicitly named two persons as executors and trustees, namely, the Respondent and one Kani. 16) The second consideration which the court made was in relation to the contention by the Appellant that she was the appointed lawyer to assist the executors and trustees in the administration of the estate. The court considered the undisputed facts surrounding this issue that: it was the Appellant who drew up the Will for the Testatrix and retained it after she drew it up; the Appellant did not have J14 specific instructions to assist in the administration of the estate; and, there were other lawyers retained to represent the Testatrix in other matters. This latter fact was, according to the court, what created the uncertainty as to which of the Testatrix's lawyers she intended to assist her executors in the administration of her estate. 1 7) The court concluded that the mere fact that counsel is retained to draft a will does not necessarily imply that he is also appointed legal representative to assist the executors of the will. According to the court, a lawyer needs specific instructions to act as such. 18) In justifying its conclusion, the court considered the argument by the Respondent that clause 1 provided for counsel to assist the executors and not take over the administration of the estate. It considered this argument in light of the undisputed evidence that upon the death of the Testatrix, the Appellant applied for probate and declared that she and her firm and the two executors were named as executors and trustees of the estate. The court held this to be a deliberate misinterpretation on the part JlS of the Appellant as she knew that neither she nor her firm were expressly named as executors and trustees of the will. 19) The court described the actions by the Appellant aforestated as contravening the provisions of rules 3(2)(b) and 16(3) of the Legal Practitioners (Practice) Rule, 2002 which recognizes a person's freedom to appoint a practitioner of one's choice and bars counsel from acting without instructions from a client. 20) Arising from the court's holding 1n the preceding paragraph, it concluded that the Appellant's claim for fees for services rendered could not be sustained because she imposed herself on the estate. It accordingly held that the grounds of appeal had no merit and dismissed the appeal. Appeal to this court and arguments by the parties 21) The Appellant is unhappy with the decision of the Court of Appeal and has launched this appeal fronting 5 grounds of appeal. The grounds of appeal contest the decision by the Court of Appeal upholding the finding by the Learned J16 High Court Judge that the Appellant was not appointed executrix and trustee of the estate of the deceased and neither was her firm appointed to assist the executors in the administration of the estate of the deceased. As such, she was not entitled to the fees claimed. 22) The grounds of appeal also contest the alleged omission by the Court of Appeal to rule on the appellant's claim for outstanding debt allegedly owed to her by the estate in regard to rehabilitation of house number 1 Leopards Hill road, Lusaka and rentals for lease of flat number 6 Luangwa flats, Kabulonga, Lusaka. 23) In her written arguments, the Appellant began by addressing the holding that she was not validly appointed as executrix and trustee of the estate of the Testatrix or as counsel to assist in the distribution of the estate. 24) The thrust of Mr. Katupisha's argument was that the Appellant had adduced sufficient evidence to prove that she was validly appointed as one of the executors in the will of the Testatrix. He argued that clause 1 of the will makes it clear that the Testatrix intended to appoint the J17 Appellant as executrix of the estate. This, counsel argued, is reinforced by the fact that the Appellant appended her signature to the will. 25) As for the appointment as counsel to assist the executors and trustees in the administration of the estate, Mr. Katupisha argued that this can be inferred from the will. He also denied the contention that the Appellant led evidence in the two lower courts that the deceased had other lawyers, who by implication, may have been the ones intended to assist the executors in the administration of the estate as per clause 1 of the will. In addition, counsel stated that the Appellant's appointment as counsel was reinforced by the fact that the Respondent engaged her to act on behalf of the estate in the matter titled Ruth Yolamu (Suing on her behalf and as next friend of Levy Yolamu - Minor) v Kani and Rossi, cause number 2000/HP/1264. 26) Counsel spiritedly argued that the wording of clause 1 of the will represents an intention by the Testatrix to appoint the Appellant as counsel, by implication, to assist the J18 executors 1n the administration of the estate. He submitted further that the beneficiaries of the estate were also authorized by the will to appoint the Appellant to act on their behalf by virtue of clause 8 of the Will. The clause reads as follows: "[the] Statutory power of appointment of new trustees of this my Will shall be exercisable by my children". 27) Advancing his argument, counsel submitted that the act of assisting the executors is equal to being appointed to the office of executor as long as such appointment is made by a testator in a Will. According to counsel, an executor cannot be assisted by a person who is not similarly appointed executor of the estate. For this reason, he argued, the Appellant was properly and validly appointed by the Testatrix pursuant to the Will. 28) As a consequence of the aforestated appointment, counsel contended, that all the executors including the Appellant drew their mandate from the Will and enjoyed equal power. This, according to counsel, entitled the Appellant to, what he termed, "all professional benefits as bequeathed by the J19 [Will of the Testatrix]". To justify the foregoing, counsel referred us to clause 6 of the Will which states as follows: "6. My trustees and lawyers shall be entitled to charge and be paid out of the residue of my estate, all professional such as legal or other charges for all businesses or acts done by them in connection with the trusts thereof." He also referred us to section 29 of the Wills and Administration of Testate Estates Act which provides for the court to grant probate to executors appointed by a will and that such appointment may be express or implied. 29) In addition, counsel drew our attention to the finding by the Learned High Court Judge in regard to fees payable to the executors which he argued reinforced the Appellant's contention that she was indeed appointed as executrix and trustee. He urged us to construe clause 1 in accordance with the principle we laid down in the case of Mwamba v Nthenge, Kaing'a and Chekwe1 . 30) In that case, we quoted a passage from the learned author Kim Lewinson on the need for courts to construe written agreements in accordance with the objective factual background known to the parties at or before the date of J20 execution of the agreement. To this end, counsel urged us to consider the following facts: the Appellant was the only lawyer who drafted the Will; she had knowledge of the existence and custody of the Will; and, was specifically appointed as executrix and trustee. These facts, he argued, support the Appellant's contention that she was appointed executrix and trustee of the will. Further, the facts negate the finding and holding, respectively, by the Learned High Court Judge and Court of Appeal, that the Appellant was not the appointed counsel because there was evidence that the Testatrix had other lawyers. 31) We were invited to consider a number of cases and Halsbury's Laws of England, (4th Ed) Volume 17 on the interpretation of wills and the four ways in which an executor can be appointed. We have not summarized the cases because they have little or no bearing on the decision we have reached in the later part of the judgment. As for the reference to Halsbury's, the passage is in line with the reasoning by the Court of Appeal referred to at paragraph 14 of this judgment. J21 32) In his concluding remarks, counsel argued that the findings by both the Learned High Court Judge and Court of Appeal were bereft of a proper consideration of the evidence before the two courts and hence amenable to setting aside. He relied on four of our decisions which set out the principle that an appellate court Will not reverse findings of fact unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial court can reasonably make. Counsel urged us to allow the appeal. 33) At the hearing, we engaged counsel on the Appellant's contention that she was one of the appointed executors and trustees and counsel to assist in the administration of the estate and he made the following concessions: 33.1 clause 1 of the will does not name the Appellant as one of the executors and trustees and specifically names the Respondent and one Kani; J22 33.2 the clause does not also name the Appellant or her law firm as the lawyers to assist in the administration of the estate; 33.3 the sources of our laws in Zambia are, among other things, precedent. The Appellant in preparing the will did not follow such precedent in respect of draftsmanship of clause 1; and, 33.4 if the Appellant had followed precedent in drafting clause 1 of the will, the matter would probably not have escalated in the dispute before us. 34) In opening the arguments for the Respondent, Ms. Namusamba began by questioning the parameters of the appeal laid before us. She argued that the Appellant is compelled by the order of the single Judge of this court granting leave to appeal, to restrict her arguments to the grounds of appeal which raise points of law of public importance. Our attention was drawn to the decision in the case of Bidvest Food Zambia Limited and others v CAA Imports and Exports2 in which we said that where leave is granted on the basis that the appeal raises a point J23 of law of public importance and it is possible to isolate such point of law of public importance in the proposed appeal, this court will confine itself to considering only such point in dealing with the appeal. As long as the other issues in an appeal do not satisfy the threshold of raising a point of law of public importance, they do not qualify for individual separate consideration by the Supreme Court. 35) Counsel argued that as a result of our decision in the Bidvest2 case, we should confine our consideration of the appeal only to the first three grounds of appeal which raise points of law of public importance. The other grounds of appeal are not deserving of consideration by this court because they have not met the threshold set by the Bidvest2 case. 36) In respect of the grounds of the appeal which challenged the finding that the Appellant was not appointed executrix and trustee and counsel to assist in the administration of the estate, Ms. Namusamba began by quoting at length from the judgment of the Court of Appeal and agreed with the court that the evidence led before the Learned High J24 Court Judge did not support the Appellant's contention that she was appointed executrix. To this end, she submitted that the two courts went to great length in explaining what constitutes an express and implied appointment as executor with reference to the relevant legal authorities. 37) She proceeded to interpret clause 1 of the will and submitted that it only expressly appointed the Respondent and one Kani as executors and trustees and not the Appellant. In addition, the clause does not name counsel who were to assist the executors in the administration of the estate of the Testatrix, a fact which the Appellant conceded. This was along with acknowledging the fact that the Testatrix had other counsel, namely Shamwana and Company. 38) To augment her arguments, Ms. Namusamba referred us to Halsbury's Laws of England (4th Ed) Volume 17 at paragraph 708 which states that where there is only one individual answering to the name and description of executor, the court will not admit evidence to show that J25 some other person was intended to be executor. She also drew our attention to the case of Blackwell v Blackwell3 in which the English courts held that the testator must always provide means by which an executor can be identified. 39) In concluding her arguments on the issue, counsel requested us to dismiss the argument by the Appellant that her appointment as counsel to assist the executors and trustees in the administration of the estate was equal to an appointment as executrix. She also argued that the Appellant's contention that she was appointed executrix by virtue of the fact that she was the one who prepared the will and appended her signature as a witness was untenable. 40) In the arguments 1n reply, Mr. Katupisha restated his initial arguments. The departure to these arguments was as follows : 40. 1 the reference to section 2 of the Wills and · Administration of Testate Estates Act which defines executor and the argument that the Appellant J26 was appointed executrix by implication 1n accordance with this section; 40. 2 reference to the English case of Grover v Burningham4 which held the intention of a testator to be the paramount consideration by the court in ascertaining who the executor of an estate is; 40.3 a reiteration of the argument that the interpretation which should be given to clause 6 of the will is that the intention of the Testatrix was that the Appellant should execute the duties of the executors; and 40. 4 the court should consider all the grounds of appeal advanced notwithstanding the argument by the Respondent that our consideration should be restricted to those grounds of appeal which satisfy the test set out in the Bidvest2 case. The reason being that the leave to appeal granted was all encompassing. 41) Coming to the issue of the Appellant's appointment as Counsel to assist in the administration of the estate, Mr. Ka tupisha opened his arguments by contending that both J27 the High Court and Court of Appeal acknowledged that the Appellant was properly appointed to act as counsel for the estate. Further, in terms of section 57(1) of the Wills and Testate Estates Act, personal representatives who include executors are permitted to charge fees where the Will expressly so provides. Therefore, since clause 6 did make such provision, the Appellant, as duly appointed executrix, was entitled to charge fees for services rendered out of the residue of the estate. Counsel concluded that the services provided to the estate by the Appellant were in line with the provisions of Rule 16(3) of the Legal Practitioners (Practice) Rules, 2002. 42) In response, Ms . Namusamba began by rev1ew1ng the decision of the Court of Appeal in so far as it concluded that the evidence before the High Court revealed that the Appellant proceeded to obtain probate at the death of the Testatrix without being formally appointed to do so. She referred us to the declaration and oath of executor executed by the Appellant in which she declared she was the named executor of the estate of the Testatrix. She J28 concluded by stating as follows: section 57(1) of the Wills and Testate Estates Act prohibits personal representatives from deriving a benefit from the estate through performance of their duties; while clause 6 of the Will expressly authorized the executors and trustees to charge their fees to the estate, the Appellant was not entitled to payment of any of her fees because she was not appointed as executrix or counsel to assist in the administration of the estate; Rule 16(3) of the Legal Practitioners (Practice) Rules 2002 specifically prohibits counsel from providing services without instructions from a client, a fact which the Appellant acknowledged in the High Court when she testified that it would be wrong for counsel to send out a bill in respect of work he was not instructed to do; and, the Appellant has failed to demonstrate that the finding by the High Court Judge on the issue of her appointment as counsel to assist in the administration of the estate was so flawed that it met the threshold set in the case of the Attorney General J29 v Marcus Kampumba Achiume5 warranting its setting aside. 43) In the submissions in reply, counsel for the Appellant referred us to section 51 ( 1) and (2) of the Wills and Testate Estates Act and argued that the section makes provision for a person who wrongly assumed the role of executor to recover fees legitimately earned. 44) Mr. Katupisha advanced his arguments to the contention that the Court of Appeal failed to make a pronouncement on the Appellant's claim for a refund of the expenses incurred in the administration of the estate. He listed the Appellant's claims against the estate as follows: 44. 1 mesne profits or rental arrears relating to the property known as flat number 6, Luangwa flats, Roan road, Kabulonga, Lusaka which was not part of the estate; 44. 2 moneys advanced to the beneficiaries by the firm Mushipe and Associates pending the administration of the estate; BO 44.3 the sum of K144,600.00 which the Appellant will be compelled to pay on behalf of the estate for renovations to house number 1, Leopards Hill road, a property belonging to the beneficiaries; and 44.4 legal fees in respect of the cases titled Ruth Yolamu (Suing on her behalf and on behalf of the Minor Levy Yolamu) v Gaudensia Rossi and Kani, cause number 2000/HP/1264 and Mushipe and Associates v Cutline Limited, cause number 2001/HP/0525. 45) The augment by Mr. Katupisha in respect of the four claims was that in terms of section 52 of the Wills and Testate Estates Act, the Appellant is entitled to recover the amounts claimed because they arise from payments she made on behalf of the estate. The payments, he argued, have nothing to do with the disputed appointment of the Appellant as executrix and trustee and the omission by the Court of Appeal to make a determination on her claim has the effect of unjustly enriching the estate. Counsel drew our attention to the case of ltowala v J31 Variety Bureau de Change6 in which this court ordered the refund of moneys to the appellant which were paid in an illegal contract on the ground that it would be unjust enrichment to allow the respondent to hold on to the funds. 46) Counsel concluded by urging us to reverse the decision of the Court of Appeal condemning the Appellant to costs because she was in that suit acting on behalf of the estate and not her own behalf in the action. 4 7) In response, Ms. Namusamba argued that the claim for rehabilitation of house number 1, Leopards Hill road, in respect of which the Appellant and other beneficiaries were sued by the contractor, AT Tyetye Enterprises, for the sum of K144,600.00, had failed before the High Court and the appeal to this court was dismissed under appeal number 156 of 2010. As for the monetary claims, she argued that the Learned High Court Judge had found that the evidence led by the Appellant did not convince her on a balance of probabilities tha t she was owed money by the estate. Further, on appeal to the Court of Appeal, the Court J32 pronounced itself on the issue and agreed with the finding by the Learned High Court Judge. Most important is the fact that this appeal is anchored on claims for fees for professional services rendered 1n the absence of instructions from the client to render the said professional services rendered in the absence of instructions from the client. 48) In the arguments in reply, Mr. Katupisha contended that it is not in dispute that the beneficiaries of the estate benefitted from the use of flat number 6 Luangwa Flats, Roan road, Kabulonga, Lusaka which belonged to the Appellant. She was, therefore, entitled to recover rentals claimed in respect of that flat. Consideration and decision by this Court 49) In our determination of this appeal, we have considered the record of appeal and arguments by counsel. Ms. N amusamba has argued that we should not consider all the grounds of appeal because the leave to appeal granted by the single Judge of our court was restricted to only J33 those grounds which reveal that the appeal raised points of law of public importance. Mr. Katupisha argued to the contrary. We have had the opportunity to revisit the decision of the single Judge of this court regarding the leave to appeal which she granted and are of the firm view that the leave to appeal was all encompassing. I did not segregate the grounds that revealed points of law of public importance from those that did not and accept the Appellant's argument that all the grounds of appeal should be considered by us. We therefore find no merit in the objection raised by Ms. Namusamba and accordingly dismiss it. 50) We now turn to consider the appeal and shall deal with it by identifying-and determining the issues which arise from the grounds of appeal. The first two issues are as follows : 50.1 Whether or not by clause 1 of the Will the Appellant was, by implication, appointed executrix and trustee of the estate of the Testatrix; 50.2 Whether or not by clause 1 of the Will the Appellant was by implication appointed counsel to assist the J34 executors and trustees in the administration of the estate of the Testatrix. 51) In determining these two issues, we begin by setting out the content of clause 1 of the Will of the Testatrix which is at the heart of this dispute. The clause reads as follows: "I appoint Mr. Kani of plot No. 26 Nalikwanda Street, Woodlands, Lusaka, and Mr. Rossi of Ndeke Motel, Lusaka to be executors and trustees of this will who will be assisted by my lawyers." 52) The arguments by Mr. Katupisha under this issue in support of the contention by the Appellant that she was appointed by implication as executrix and trustees are as follows : 52.1 the wording of the clause is clear to that effect; 52.2 the Appellant was the one who drafted the will and was custodian of the Will; 52.3 the Appellant having been appointed lawyer to assist the executors stood on the same footing as the named executors ; and, J35 52.3 the Appellant witnessed the execution of the Will by the testatrix and as such, she was appointed executor. 52.4 The Appellant witnessed the execution of the Will by the testatrix and as such, she was appointed executor. 53) To say that the arguments are bereft of reasoning is an understatement. The view that we have taken is that they are so ridiculous that we were surprised that counsel, while conceding that the latter three arguments had no support of any legal authorities, still ventured to advance them. We have already said that clause 1 clearly names the two executors specifically and leaves us in no doubt that no one else was intended to be a third executor. The clause does not even suggest the possibility of a third executor. 54) In giving an example of a situation where a person can be appointed executor by implication, the Learned High Court Judge referred to the English case of In the Goods of J36 Brown7 and quoted the clause in the will which fell for interpretation as follows: "I appoint my said sister Susannah Brown my executrix, only requesting that my nephews, Frederick Poynder and John Arthur Beddone, will kindly act for or with this dear sister." This clause, while not expressly appointing the two nephews, Frederick Poynder and John Arthur Beddone, as executors, was held to appoint the two co-executors by implication. We are persuaded by the decision and see a clear distinction between that clause and clause I of the Will of the Testatrix because the former mentions two other people as appointed as well, albeit not expressly, while clause I does not mention the Appellant at all. 55) Our holding aforestated is reinforced by the Appellant's evidence under cross examination where she admitted that clause I specifically appoints the Respondent and one Kani as executors and that her name is not mentioned as such co-executor. She still insisted that her appointment was by implication although she gave no explanation to justify the assertion. J37 56) The Learned High Court Judge also explained that where there is a latent ambiguity 1n the appointment of an executor, extrinsic evidence to show who the testator intended to appoint as executor may be received by a court. She demonstrated this by the use of the English case of In the Estate of Dianah Hubbucks8 where a testatrix appointed as executrix a person described in her Will as "my granddaughter", evidence was admitted for purposes of explaining the latent ambiguity which arose from the fact that at the date of the Will and at the date of the death of the testatrix, the testatrix had three granddaughters. The Learned High Court Judge found that there was no ambiguity in clause 1 requiring extrinsic evidence to be adduced because there is an express appointment of the two executors unlike in the Dianah Hubbuck8 case which was vague as regards the particular granddaughter appointed. 57) As for the second argument, that since the Appellant was the one who drafted the will and was custodian, by implication, she was one of the executors, the view we take J38 is that not only does this argument defy legal precedent, it also fails to realise that there was no connection between the instructions given by the Testatrix to prepare the will and those regarding the administration of the estate as the Learned High Court Judge found. 58) The Court of Appeal upheld this finding by the Learned High Court Judge. The appointment of executors was totally separate from the instructions to prepare the will. 59) Our holding in the preceding paragraph is reinforced by the fact, and as Mr. Katupisha agreed, that the appointment of counsel as executor must follow a specific precedent. In this regard, we referred Mr. Katupisha to The Encyclopedia of Forms and Precedents (5th Ed) · Volume 42 'Wills and Administration', which at page 94, sets out a standard clause for ''Appointment of named partner in firm of solicitors to be executor" as follows: "I appoint (names of partners) [both or all] of (address of firm) solicitors ('my Trustees') to be the executors and trustees of this my will" This precedent attests to the fact that where counsel, as in this case, the Appellant, is being appointed executor or J39 trustee in a Will, he/ she must specifically be named, along with his/her partner, if it is the desire of the Testator to appoint both. The name and address of the firm should also be indicated in the clause. 60) The foregoing is to be distinguished from a general clause appointing an executor such as clause 1. The Encyclopedia states, 1n regard to such general appointment, that all that is required is to state the name or names of the executors and trustees and their addresses as the Appellant did in clause 1. It sets out the precedent of such a clause at page 92 as follows: "I appoint (full true name) of ( address) and (full true name) of (address) ('my Trustees') to be the executors and trustees of this my will" It is apparent from the foregoing that the Appellant preferred and adopted the general clause. 61) The third argument by the Appellant was that since she was appointed counsel to assist the two executors and trustees, she stood on the same footing as the two and was indeed an executrix and trustee of the estate herself. We will deal with the contention of appointment as counsel to J40 assist in the administration of the estate later as we discuss the second issue. At this stage, our determination is limited to establishing whether indeed an appointment can be made of an executor by virtue only of that executor being appointed as counsel to assist in the administration of the estate. 62) In our determination of the question before us, we begin by recapping the evidence led by the Appellant under cross examination in which she conceded that she was not specifically named in clause 1 as executrix but that two other persons were named as such. Further, in our engagement with Mr. Katupisha, he failed to refer us to a legal authority which supported the contention by the Appellant. This all points to an unmeritorious argument. 63) An executor can be appointed in one of the four ways we have set out earlier in paragraph 14 of this judgment. This was the finding by the Learned High Court Judge which was upheld by the Court of Appeal. The mode of appointment does not suggest an automatic appointment arising out of an appointment as counsel to assist the J41 executors in the administration of the estate. The argument by Mr. Katupisha was that the appointment as executrix could be implied in the appointment as counsel to assist in the administration of the estate. 64) We have gone to great length in setting out the finding by the Learned High Court Judge on instances when an appointment can be inferred from the circumstances of the case. At the expense of repetition, these are instances where, though not expressly named as executor, it can be inferred that the Testator intended appointing a person as executor. This is not the line of argument Mr. Katupisha took but merely sought to justify the appointment by virtue only of the alleged appointment as counsel to assist the executors in the administration of the estate. This is not acceptable as we have said because it has no supporting legal authority. 65) The last argument by Mr. Katupisha was that the Appellant was appointed executrix and trustee by implication because she witnessed the execution of the Will. The Appellant did indeed witness the execution of the J42 Will as is apparent from the record of appeal. It is important here to state that it is a formality and requirement of the law that a Will be attested to by two witnesses. Thomas Jarman, Esq. writing in A Treatise on Wills, 8 th edition, Volume 1 at page 134 states as follows : "It follows from what has been above stated that the will must be signed by or for the testator, and his signature must be acknowledged, before either of the witnesses signs. The signature must be made or acknowledged in the presence of the witnesses simultaneously, and not at different times, and they must themselves subscribe their names in the presence of the testator, though not necessarily in the presence of each other." The Testator must, therefore, sign the Will in the presence of the witnesses who should also ascribe their signatures to the will in his presence. 66) Our section 6 of the Wills and Administration of Testate Estates Act states in the relevant parts as follows: "6. (1) A will shall be valid if it is in writing and - (a) is signed at the foot or end, by the testator or by some other person in the testator's presence and by his direction and J43 (b) the signature referred to in paragraph (a) is made or acknowledged by the testator in the presence of two witnesses present at the same time who have also signed at the foot or end of the will ... " The conclusion to be drawn from the passage 1n A Treatise on Wills and section 6 of the Wills and Administration of Testate Estates Act is that the act of witnessing the signature of the testator or duly appointed agent is a confirmation that the testator or his duly appointed agent signed the will, thereby, validating it. The act does not signify the appointment of the witness as an executor or such intention. 67) In answer, therefore, to the first issue, we hold that the Appellant was not appointed executrix and trustee, expressly or by implication, of the estate of the Testatrix. She, as the Court of Appeal correctly held, imposed herself on the estate. 68) Coming to the second issue of whether or not the Appellant was appointed counsel to assist in the administration of the estate, Mr. Katupisha's arguments were that the appointment is implied from clause 1 of the will. He also J44 repeated the earlier argument that the Appellant was counsel to the Testatrix and prepared the will. She was, thus, appointed as counsel. 69) In determining this issue, we begin by revisiting the finding by the learned High Court Judge on this issue which was upheld by the Court of Appeal. The Judge found that if the Testatrix intended to instruct the Appellant as her counsel she should have specifically stated so. She also found that the Appellant admitted in cross examination that she did not have specific instructions in this regard and was informed by the Testatrix at the time of drafting the will that Shamwana and Company had acted for the Testatrix in another matter. The significance of this latter finding is that the reference to "lawyers" in clause 1 of the will could have been any one of the lawyers the Testatrix had instructed at the time in a number of matters and not only the Appellant. 70) A review of the Appellant's evidence 1n the High Court confirms the finding by the Learned High Court Judge. It also reveals that the Appellant did acknowledge that as J45 counsel she could not act for a client without specific instructions. She appeared to draw her conviction that she was instructed from the mere fact that she was the custodian of a number of documents belonging to the Testatrix. We shall come to this point later. 71) The Court of Appeal upheld the finding by the Learned High Court Judge and held that a legal practitioner is barred by the Legal Practitioners (Practice) Rules, 2002 from impairing a persons' right to appoint counsel of choice and to offer services without instructions from a client. 72) The specific rules which the Court of Appeal referred to were Rules 3(2)(b) and 16(3). Rule 3(2) provides that: "3. (2) A practitioner shall not do anything in the course of practice or permit another person to do anything on the practitioner's behalf, which comprises or impairs or is likely to compromise or impair any of the following .... (b) a person's freedom to instruct practitioners of choice" And Rule 16(3) reads: "A practitioner shall not offer services without instructions from a client." J46 These two prov1s1ons of the Legal Practitioners (Practice) Rules bar counsel from impairing a client's right to engage counsel of choice. They grant to the client the right to choose counsel and bar counsel from acting where there are no instructions. 73) The Appellant clearly breached these two rules because she imposed herself on the estate both as executrix and its counsel. She denied the estate, through the executors, its right to choose counsel to represent it and the Testatrix her right to have her estate administered by executors of her choice. 74) We have dismissed the argument by the Appellant that she derived her instructions from the act of being custodian of a number of important documents belonging to the Testatrix including the will. From time immemorial, counsel, bankers, a ccountants and doctors have been used by their clients and patients as custodians or vaults for the storage of important documents such as wills and title deeds to properties, to name but a few. This 1s a practice which stems from the position of trust and J47 confidence which the clients and patients hold the professionals and not any provision of the law. The trust and confidence, does not suggest that, in the event of a dispute arising which relates to one of the documents in their custody, it is only that particular counsel, in the case of the legal profession, who has instructions to act. 75) The inescapable conclusion we must reach following our consideration in the preceding paragraphs is that the Court of Appeal did not err when it upheld the finding by the Learned High Court Judge that the Appellant was not appointed counsel to assist the executors in the administration of the estate. 76) The position we have taken is reinforced by our holding, which Mr. Katupisha conceded that the fact, in and of itself, that the Appellant drafted the will does not further authorise her to administer it as counsel to the executors and trustees . There has to be specific instruction given to counsel in accordance with Rule 16(3) of the Legal Practitioners (Practice) Rules, 2002 as the Court of Appeal held. In addition, the Appellant's own evidence to J48 the effect that there were other lawyers who acted for the Testatrix reinforces just how broad the reference to "my lawyers" in clause 6 is. 77) The next consideration is the contention by the Appellant that the Court of Appeal omitted to pronounce itself on to the claims by the Appellant as reflected in paragraph 45 of this judgment. 78) We must agree with Ms. Namusamba that the Court of Appeal did indeed pronounce itself on the claim. This is apparent from its decision, regarding ground 6 of that appeal which contended that the Learned High Court Judge erred both at law and in fact when it dismissed all the Appellant's monetary claims. The Court of Appeal dismissed the Appellant's claim on the basis that she was not entitled to recover those moneys because she imposed herself on the estate. The Appellant's contention is, therefore, lacking in merit as there was a clear pronouncement on the issue. 79) The matter, however, does not end here because as we will show later, although the Appellant did indeed impose J49 herself on the estate, she may be entitled to recovery of some of the costs she expended on the estate. To this extent, a dismissal of her claim by the Court of Appeal based solely on the want of instructions is a misdirection. 80) The Learned High Court Judge made a more robust approach to the claim when she held that the Appellant did not lay before her sufficient evidence to prove her claim. Ms. Namusamba referred us to the record of proceedings in the High Court and concluded that the evidence led by the Appellant did not sufficiently prove her claim. 81) On his part, Mr. Katupisha referred us to various payment vouchers and receipts, prepared by the Appellant's law firm and in respect of payments made by her firm and reconciliations and a lease agreement. These documents exceeded five hundred folios in number. On the other hand, the evidence-in-chief by the Appellant which was supposed to explain and justify these claims and folios is in one and half folios and does not fully explain the claims nor did it take the Learned High Court Judge through the JSO more than five hundred folios specifically explaining each document and justifying the claim it related to . For this reason, we cannot fault the Learned High Court Judge at arriving at the decision she did in relation to the evidence. 82) At the expense of repetition, a plaintiff is compelled by law to prove his or her case to the satisfaction of the Court if he or she is to have judgment. In so doing, the plaintiff is compelled to lead evidence, vice voce and documentary which properly explain the case. In the case with which we are engaged, while the Appellant laid before the High Court voluminous documentary evidence, she omitted to explain it to the satisfaction of the court. She must suffer the consequence of her default. 83) Mr. Katupisha made reference to section 52 of the Wills and Administration of Testate Estates Act and argued that on the basis of this section, the Appellant is entitled to recover all costs she incurred in administering the estate and the professional charges. The section states as follows: JSl "52. (1) Where any probate or letters of administration are revoked, all payments made in good faith to any executor or administrator under that probate or letters of administration before revocation shall, notwithstanding the revocation be a legal discharge to the person making the payment. (2) The executor or administrator who acted under any revoked probate or letters of administration may retain and reimburse himself out of the assets of the deceased in respect of any expenses incurred or fees paid out by him which any person, to whom probate or letters of administration are afterwards granted, could have lawfully incurred or paid." This section under subsection (2) provides for reimbursement of expenses incurred by an executor during his appointment upon the revocation of his appointment. We are thus of the firm view that the Appellant is entitled to recover all the expenses she incurred in the administration of the estate up to the time the probate was revoked. 84) These expenses include, fees paid to court in obtaining probate and fuel expenses incurred while traveling in pursuit of administering the estate. This award arises from the fact that it is not disputed that the Appellant did obtain J52 probate and performed some of the duties of an executor. It must be distinguished from her disputed claims in the five hundred plus folios upon which she did not lead convincing evidence entitling her to judgment. The entitlement to reimbursement does not include payment of the professional charges because, as counsel, the Appellant can only recover those fees incurred in services rendered pursuant to a client's instructions. In this case, no instructions were given to her and as such she cannot recover professional fees . To her credit, she did admit during cross examination, as we have explained in paragraph 78 of this judgment, that counsel would not be entitled to charge fees in the absence of instructions from a client. Our Legal Practitioners scale of fees does not also provide for counsel recovering fees on a quantum merit basis. 85) As for the costs of these and the proceedings in the two courts below, Mr. Katupisha argued that since the Appellant was suing on behalf of the estate, she should not bear them but that these should be bourne by the estate. J53 Ms. Namusamba did not address us on the issue. The starting point is a recognition of the fact that although the Appellant contends in the pleadings that she is suing in her capacity as executor and trustee of the estate, the probate granted to her has since been revoked. This was prior to institution of the proceedings in the High Court. The significance of this is that at all material times she acted on her own behalf and not that of the estate in respect of the proceedings before the Courts. Any condemnation of costs would, therefore, be directed at her and not the estate. Conclusion 86) In our introductory remarks we described the Appellant as a renowned lawyer. The Court of Appeal, in its judgment described her as " .. . a seasoned and senior member of the legal profession [who} upcoming lawyers look up to for inspiration ... ". This is the esteem within which the Appellant is held in the profession. J54 87) During our engagement with Ms. Namusamba, we asked her what lessons, if any, she had learned from this matter having dealt with it from the court of first instance. Her response was that as counsel, she needs to be more cautious when dealing with her clients in the execution of their instructions and ensure, in particular, that the client's instructions are clearly understood and reflected in any documents she prepared. 88) Mr. Katupisha, on his part, while acknowledging that precedent is of paramount importance in the preparation of Wills, admitted that if the Appellant had referred to the appropriate precedent, she would not have encountered the problems she now faces. 89) These are wise words from both Ms. Namusamba and Mr. Katupisha which we hope the Appellant will embrace if she is to maintain the esteem within which she is held by the profession. 90) The inevitable outcome of our decision is that all grounds of appeal lack merit except that the Appellant is entitled to claim the expenses we have set out at paragraphs 83 and 't JSS 84 of this judgment. The matter is, therefore, remitted to the Deputy Registrar for assessment of those expenses only. We accordingly uphold the decision of the Court of Appeal and dismiss this appeal. The costs will be the Respondent's, in this and the other two courts, and payable by the Appellant. They shall be taxed in default of agreement. M. C. MUSONDA SC DEPUTY CHIEF JUSTICE A. M. WOOD SUPREME COURT JUDGE ···r ·· . K. M MECO - ....... . t:>GE