Mirriam Muleya v Edna Nangoyi (APPEAL NO.128/2018) [2019] ZMCA 315 (17 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) APPEAL NO.128/2018 BETWEEN: MIRRIAM MULEYA AND EDAH NANGOYI I ~( : ~~ Z09 r., 0 8 I( 5()067 I. APPELLANT RESPONDENT Coram: Mulongoti, Sichinga and Nf1ulube, J . J . A On the 16th October, 2018 and J.1 October, 2019 For the Appellant: Mrs. L. C Mbaluku of Messrs L. K Mbaluku and Company For the Respondent: No Appearance JUDGMENT Sichinga, JA delivered the Judgment of the Court. Cases referred to: 1. H enry Kapoko v. The People 20 16/ CC/ 0023 Selected Judgment No. 43/ 2016 2. A ccess Bank (Zambia) Limited v. Group Five / ZCON Business PARK Joint Ventur e (Suing as afirm) SCZ/8/ 52/2014 3. Wilson Masauso Zulu v. Avondale H ousing Project Limited (1982) ZR 172 4. Re: Application of Chalokwa Njobvu as Administrator of the Estate of Katuta Banda (Deceased ) ( 1971 ) ZR 18 7 5. Mususu Kalenga Building and another v. Richman 's Money Lenders Enterprises (1999) ZR 27 6. Nevers Mumba v Muhabi Lungu SCZ No. 200/ 2014 Legislation referred to: 1. Intestate Succession Act Chapter 59 Laws of Zambia 2. Local Court's Act Chapter 29 of the Laws of Zambia 3. Supreme Court Rules (White Book) 1999 Edition 4. Constitution of Zambia Chapter 1 of the Laws of Zambia (Amended) 5. Subordinate Courts Act Chapter 28 of the Laws of Zambia 6. High Court Act Chapter 2 7 of the Laws of Zambia This is an appeal against the Ruling handed down by the High Court at Kitwe on 15th December, 2017, following the preliminary issues raised on behalf of the appellant, Mirriam Muleya. Namely, whether the respondent, Edah Nangoyi, who is not an adminstratrix of her late husband's estate, is a competent person to sue and appeal on behalf of the deceased's estate. For this reason, whether the whole action or appeal is incompetent. Secondly, whether it is not irregular for the respondent (Nangoyi) to proceed with the appeal without serving the record of appeal and memorandum of appeal on the appellant (Muleya). In the Ruling, the learned trial Judge dismissed both questions raised on behalf of the appellant. -J2- In the summary of the evidence and the Ruling of the court below, we shall refer to the parties by their names for ease of reference and their designations in the courts below. The facts , to the extent that we can decipher from the record , are that the matter commenced in February, 2013 in the local Court at Buchi in Kitwe where Edah Nangoyi , as plaintiff, brought an action against Mirriam Muleya, claiming that she was the owner of House No. 9 Lufwanyama Road, Mindolo, Kitwe. She claimed she had paid the purchase price for the house, was availed receipts in respect of the sale and that she had obtained the title deed to the house. She conceded at trial in the local court that she had n ever lived in the house. Her witness , one Oscar Ngosa, told the court that Ms. Nangoyi had been an employee of the Zambia Consolidated Copper Mines Limited (ZCCM) by virtue of which she obtained title. In her defence, Ms. Muleya told the court that her late husband had been an employee of ZCCM. In 1986 they were allocated House No. 9 Lufwanyama Road, Mindolo to live in. They were subsequ ently offered the property to purchase which they bought from ZCCM, as -J3- sitting tenants. Ms. Muleya said she had lived in the house for 27 years at the time that she was served with summons by the plaintiff. She said she bought the house from ZCCM. Her witness, one Tyson Banda, told the court that he was Ms. Muleya's neighbour residing at house number 10 Lufwanyama Road, Mindolo. He testified that Ms. Muleya's husband was allocated house number 9 Lufwanyama, where she has been living prior to the offer to purchase by ZCCM. The Senior Local Court Magistrate found in favour of the defendant, Ms. Muleya, on account of the fact that she had been a sitting tenant for 27 years and that she had produced receipts for proof of purchase from ZCCM. On 29 th May, 2013, Ms. Nangoyi appealed the Local Court decision to the Subordinate Court citing the fact that she had title to the disputed property. She asserted that she was entitled to the house because her husband had been an employee of ZCCM whilst Ms. Muleya's husband had b een an employee of Mpelembe Properties Limited, a subsidiary company of ZCCM. She submitted that she -J4- had title to the house, which evidence the local court magistrate did not consider. On appeal to the Subordinate Court, Ms. Muleya, retained the services of Mrs. Mbaluku as counsel. She submitted that the matter was misconceived as Ms. Nangoyi could not bring the action in her own name but that of the administrator of her late husband's estate. Counsel submitted that Ms. Nangoyi was not entitled to purchase the house as she was not a sitting tenant. She cited the case of Victor Katundu (unreported) in which the Supreme Court disregarded title deeds of a claimant and awarded the house to a sitting tenant. She argued that in casu, Ms. Nangoyi's husband was deceased and as such only an administrator has capacity to sue on behalf of the deceased's estate. Counsel prayed that the matter be dismissed mainly on irregularity. In reply, Ms. Nangoyi, who appeared in person, submitted that even though they (her husband and herself) were not sitting tenants , they were offered the disputed property to purchase after being offered another property. Ms. Nangoyi argued that there was no -JS- mistake on her title deeds . In response to her capacity to sue, she claimed she was the person that had been appointed administrator of her husband's estate. On 15th August, 2013, the learned trial Magistrate rendered his verdict. The court found that it was not in dispute that on 22 nd September, 1997, house No. 9 Lufwanyama Road, Mindolo was offered to Benson Lufeyo Ngosa (Ms. Nangoyi's now deceased husband) at the price of Kl ,535 ,000=00 unrebased . On 24 th December, 1997, the said offer was accepted by the said Benson Lufeyo Ngosa who was subsequently issued with certificate of title No .78364. The court found that on 17th April, 2009, the same house was offered to Ms. Mirriam Muleya at a price of K3 , 175,000=00 (unrebased). That she had been a sitting tenant since 1986. On 3 rd June , 2009 she accepted the offer. By December, 2009 she had settled K2 ,900,000=00(unrebased) towards the purchase price. Therefore, the plaintiff, Ms. Nangoyi was not entitled to purchase -JG- the house becau se she had never been a sitting tenant. The court then dismissed the appeal with costs. The appellant (Nangoyi) elevated her appeal to the High Court raising three (3) grou nds of appeal, namely: 1. That the court below did not consider the fact that the offer was first made to her husband; 2. That the respondent's husband was not an employee of ZCCM but Mpelembe Properties; and 3. That the court below overlooked the fact that the certificate of title in respect of the property was in the name of her husband. When the matter came up for hearing before the High Court, the respondent's advocates raised the preliminary issue which is the subject of this appeal. In its Ruling, the court below held that the appellant was competent to bring th e action on h er own behalf since as a widow, by virt u e of Section 9 of the Intestate Succession Act1 , she was a beneficiary in the house, and if the interest had been passed to her, she could sue as an owner. The learned trial Judge further reasoned that -J7- since the issues were not raised in the court below, it would be contrary to the letter and spirit of Article 118(2) (c) of the Constitu.tion2 for the Court to have undue regard for procedural technicalities at the expense of justice. It was the learned Judge 's opinion that the question that should have been raised was whether or not it was competent for the appellant to sue on her own behalf. He noted that the preliminary issue presupposed that if an administrator has been appointed, he or she had not passed the proprietary interest to the beneficiaries. The Judge dismissed the preliminary issue. Dissatisfied with the Ruling, Ms. Muleya, the respondent has appealed to this Court raising three (3) grounds of appeal as follows: 1. The Court erred in law and fact when it dismissed the first preliminary issue on ground that the same was not raised in the court below when it was raised and it is on record. 2. The court below erred in law and fact when it held that the widow could sue over her late husband's purported -J8- house which is supposed to be long to his estate when such a right is only vested in the administrator in line with Section 24(1) and (2) of the Intestate Succession Act. 3. The court below erred in law and fact when it presumed that the interest in the property had already passed to the widow and therefore she could sue, when there was no such evidence on record to support that position. The respondent clearly stated that she was suing for possession of her late husband's house which he bought from ZCCM which was in possession of the appellant (a third party). The appellant filed written heads of arguments dated 21 st August, 2018 wherein ground one is argued alone and grounds two and three are argued together. Mrs. Mbaluku, counsel for the appellant herein relied on her filed heads of arguments and in addition placed reliance on the cases of Henry Kapoko v. The People1 and Access Bank (Zambia) Limited v. Group Five/ Z con Business Park Joint Venture (suing as a firmf on the importance of following the rules of court. -J9- In ground one, it is submitted that the issue of the respondent's locus standi was raised in the Subordinate Court. According to counsel, the respondent wrongly su ed a third party for her late husband's claim for possession of the property purchased from ZCCM which was in the appellant's possession, as the sitting tenant who was offered and equally p u rchased it. Mrs. Mbaluku submitted that the trial Judge did not go through t h e proceedings in the Subordinate Court to ascertain that the a p pellant had in fact raised the issue of irregularity in that the respondent sued for possession of the house purchased by her late h u sband in her own name. It is argued that the court could not h ave dismissed the preliminary issu e on grounds that the appellant did not raise the issue in the Subor dinate Court because the cou rt could have d iscovered th at she did . It is submitted that there was a clear misapprehension of facts. Reliance was placed on the case of Wilson Masauso Zulu v. Avondale Housing Project Limited3 and the holding by the Supreme Court that a finding of fact which is perver se, not supported by evidence, or on misapprehension of facts , which in proper view of the evidence no court can reasonably make, can be reversed by the appellate cou rt. Mrs. Mbaluku -JlO- submitted that the finding of the learned Judge that the appellant herein did not raise the issue when in fact the record shows that she did was a clear misapprehension of facts which ought to be reversed and the first preliminary issue upheld. As regards the second ground of appeal, it is submitted that the right to sue on behalf of an estate vests in the administrator of the estate. Section 24(1 ) and (2) of the Intestate Succession Act 1 was cited as authority. It is submitted that the dispute h erein is between the respondent's late husband who was offered the house despite not b eing a sitting tenant and the appellant who is in occupation of the house and has refused to move out on the belief that as a sitting tenant she equally has a right to purchase it. Counsel submitted that the law vests the rights of the d eceased whether h e is survived by a widow or not, into the administrator. That the widow on her own cannot bring up a valid action claiming the deceased husband's property in her own name against a third party. -Jll- On ground three, the submissions are somewhat repetitious of ground two. It is submitted that the facts reveal that the respondent made the claim in her own name but claims possession of the house which her late husband purchased from ZCCM. It is submitted that the court below made a finding that the respondent had already inherited the house or an interest in the house, which was perverse and not supported by the evidence. The case of Wilson Masauso Zulu supra refers. Counsel contends that the court's assumption that the estate may have been distributed already and the widow had already been granted the house in issue, so as to bring her within the confines of Section 9 of the Intestate Succession Act is not supported by evidence. Reference was made to the case of Re: Application of Chalokwa Njobvu as Administrator of the estate of Katuta Banda4 where it was held that the appointment of an administrator by the Local Court constitutes the appointee a personal representative of the deceased. At common law the ' chattels real' devolve on the personal representative. Reference was made to Section 37(2) of the Local Court Act2 which provides that an administrator may bring and -J12- • defend an action in the Local Court on behalf of the estate. Further that Order 15/7 / 10 of the Supreme Court Rules3 provides that: "If a so le defendant dies and the cause of action is one that survives, the plaintiff may obtain an order to continue the proceedings as agai nst the executor or the administrator of the deceased defendant, or such executor or administrator may h imself apply to be substituted or added as a defendant .... but unless and until the executor or admi nistrator is added, the action cannot be continued. " Counsel submitted that these authorities show the importance of the office of an administrator in bringing or defending an action. She contended that the learned trial Judge erred in law and fact when he held that interest had already been transferred to the widow since Ms. Nangoyi had no capacity to sue in her own name. We were thus urged to allow the appeal and uphold the preliminary issue. -J13- • The respondent's counsel was not in attendance at the hearing. However, counsel filed heads of arguments dated 11 th October, 2018. In response to the first ground of appeal , it is submitted that the appellant never raised the preliminary issue in the Local Court and Subordinate Court. When the appellant raised the issue of the respondent not being able to sue in h er name but by administrator, the respondent stated in h er submission that she was duly appointed as administrator and the issue was put to rest. Counsel submitted that throughout proceedings in the Local Court and Subordinate Court, the r espondent's capacity to sue or to be sued never arose. On the con t rary, what was raised was the appellant capacity and the same was resolved. That, if the a ppellant was aggrieved, then the procedure should h ave been for her to appeal on that issue. Counsel argued that in the absence of such appeal by the appellant, it is assumed that she was satisfied with the position taken by the court below on the matter. Counsel submitted that the court b elow was on firm ground when it sta ted that th e appellant did not raise the preliminary issue 1n the Subordinate -J14- Court, and as such this ground is frivolous and vexatious, and intended to delay the proceedings. We are therefore , urged to dismiss ground one. On ground two, it is submitted that there is no holding by the court below that the respondent, as a widow could sue a third party in possession of her late husband's house. What the lower court stated at page 8 of the record of appeal is captured as follows: "As a widow the appellant is by Section 9 of the Intestate Succession Act chapter 59 of the Laws of Zambia, a beneficiary in the house and as a beneficiary, if the interest has been passed to her, she is competent to sue as an owner. That no objections were earlier taken, and no evidence has been brought to support the position as claimed in the preliminary issue ... " Counsel stated that it is clear that Ms. Muleya was sued for her illegal stay in the house, and therefore Ms. Nangoyi could not possibly have sued the administrator of the estate for the trespass of the appellant. That these matters ought to have been dealt with -JlS- . ' ' at trial and not through this Court as there was no appeal against these issues. It is submitted that it is too late for the appellant to seek the indulgence of this Court on a finding of fact that the respondent is the administrator, which was never challenged in the Subordinate Court. Counsel conceded that the endorsement on the court proceedings from the Local Court should have read that the respondent was suing as administrator of her late husband's estate . That this was never corrected both in the Local and Subordinate Courts. Counsel stated that there was an application made by the respondent's counsel to reflect the parties correctly. Counsel reiterated the submission that the respondent is the administrator of her late husband's estate. That even if she was not, it was too late in the day to raise this issue as it was resolved in the Subordinate Court and the appellant did not see the need to appeal and challenge this position. Reliance was placed on Article 118 (e) of the Constitution of Zambia4 that justice shall be administered without undue regard to procedural technicalities. Counsel contended that this matter involves a dispute over a house and two -J16- .. ' ' widows claimin g the same. That justice demands that the court makes a decision on the rightful owner of the house without being entangled in procedural technicalities. It is submitted that this ground lacks merit and must be dismissed. In ground three, it is submitted on behalf of the respondent that the court below was called upon to decide on a preliminary issue in its appellate jurisdiction on matters of fact not raised in the Subordinate Court. The court below had this to say at page R2 of its Ruling: "As can be noted from the record, these are not issues which were raised, and they need to be raised with evidence to show what the actual position on the ground is. Without any evidence, it will be wrong for me to assume to the disadvantage of the appellant that the rights still reside in the administrator when no obligations were earlier taken. " It is submitted that the appellant, seeks to move this Court from the grounds of appeal raised, to decide a matter on issues of technicalities. That the appellant ought to have raised these issues -J17- • ' . • with evidence in the trial court. Counsel submitted that on appeal, it is incumbent upon an appellate court to focus on matters that deal with the grounds of appeal and not matters th at were never canvassed in t h e court below. Tha t deciding this appeal on matters of technicalities not raised in t h e trial court would be a clear violation and con trary to the spirit of Article 118(2) (e) of the Constitution. We were u rged to d ismiss ground t h ree for lack of merit. Counsel fur ther prayed for the whole appeal to be dismissed with costs for being frivolous and vexatious. We have considered the record of appeal and the arguments of both p arties. We s h all address grou n d one first. Grounds two and three shall be dealt with together as they are interrelated. Th e fir st ground of appeal raises the qu estion of whether the preliminary issue regarding the respondent's capacity to sue had been raised in the Subordinate Court. The learned trial Judge in h is Ruling at p age 8 of the record of appeal had this to say: "The preliminary issue before me further supposes that if the administrator was appointed, such administrator has not -J18- passed the propriety i nterests to the beneficiaries. As can be noted from the record, these are not issues which were raised, and they need to be raised with evidence to show what the actual position on the ground is. Without any evidence, it will be wrong for me to assume to the disadvantage of the appellant that the rights still reside in the administrator when no objections were earlier taken." A perusal of the proceedings on record shows that the respondent's capacity to sue was not raised in the Local Court. On appeal to the Subordinate Court, the matter was just heard on 1st August, 2013 after two prior adjournments on 29th May, 2013 and 4 th July, 2013, to enable the now appellant engage counsel. At the hearing on appeal in the Subordinate Court, Ms. Nangoyi presented her appeal to the Court. In response to her submissions, Mrs. Mbaluku, for the appellant herein informed the court that they would rely on their filed response. In counsel's oral submissions, the issue of the respondent's capacity to sue was then raised. In her reply to those submissions, the respondent herein submitted that in fact she was th e person appointed as the administrator of the estate. The matter -J19- . ' '. was thereafter adjourned to 15th August, 2013 for Judgment. Pages 58 and 59 of the record of appeal ref er. Our view on ground one is that it is a matter of fact whether or not the issue of Ms. Nangoyi's capacity to sue on behalf of her deceased husband's estate was raised before the Subordinate Court. It is trite that in civil proceedings a preliminary issue can be tried before the main trial of the case. A hearing of a preliminary issue may be granted by the court if the preliminary issue raised, which may be a question of law, would be d ecisive or potentially decisive. In the case of Nevers Mumba v. Muhabi Lungu6 the Supreme Court gave guidance on points of law raised on appeal. The Court had this to say: "As regards the first issue in limine, we accept as correct, the submission by Mr. Lungu that a party cannot raise, ·on appeal, any issue that was not raised in the lower Court. We have not departed, nor do we intend to depart, from the guidance we gave in the case of Buchman v. Attorney-General4 , which Mr. Lungu referred to namely that: "a matter not raised in the lower court cannot be raised in a higher court as a ground of appeal" -J20- That guidance was reiterated in Mususu Kalenga Building Limited and Another v. Richman's Money Lender's Enterprises5 , to which, again, the learned counsel rightly referred. The reason for this position in our view, is that in an adversarial system of justice, such as obtains in this country, it is generally considered fair to afford the opposing party an opportunity to respond to every issue raised. Furthermore, we are loath to reverse a lower court based on an issue that the trial court has not ruled upon. This court will, however, affirm or overrule a trial court on any valid legal point presented by the record, regardless of whether that point was considered or even rejected." Having noted from the record that the issue of Ms. Nangoyi's capacity to sue was raised by Mrs. Mbaluku , we hold that the court below fell into grave error when it did not consider this point of law. The court was obliged to deal with the issue as it was a point of law but was in fact appropriately raised. We find merit in ground one of the appeal and we allow it. -J21- We move to consider grou nds two and three together. We agree from the ou tset with Mrs. Mbaluku's submission that the law vests t h e rights of a deceased in the administrator of his/her estate. The learned t rial Judge in his Ruling stated that there was insufficient evidence to show what the actual position on the grou nd was. He pointed out however, that the respondent was by virtu e of Section 9 of the Intestate Succession Act, a beneficiary in the house and as su ch s h e was comp eten t to s u e, if interest h ad been passed to her. As correctly s u bmitted b y Mrs. Mbaluku, Section 24 of the Intestate Succession Act deals with the effect of grant of letters of administration. Section 24 (1) provides as follows: "fl) Subject to any limitations and exceptions contained in a grant of letters of administration, the grant entitles the administrator to all the rights belonging to the deceased, as if the administrator had been granted at the moment after his death except that letters of administration shall not render valid any intermediate acts of the administrator tending to dimunition or damage of an intestate's estate. " -J22- .. . .. - It is trite that when a letter of administration is granted, it will entitle the administrator of th e estate to all rights belonging to the deceased except acts that would dim inish or damage the estate. In th e case of an intestate the law recognizes an administrator as the personal representative of the deceased's estate. This is what the learned t rial J udge was called to determine. Instead the court below fell into error wh en it delved into the domain of Section 9 of the Intestate Succession Act which provides as follows : "9 . (1) Notwithstanding Section five, where the estate includes a house, the surviving spouse or child or both, shall be entitled to that house ... " The appellant's contention is not that Ms. Nangoyi is undeserving of benefitting from her deceased husband's estate. Au contraire, that she has no capacity, in th e absence of letters of administration h aving been gr anted to her, to bring an action on behalf of the estate of her deceased h u sband. There is no evidence in this matter that the respondent herein was appointed administrator of the deceased's estate. The record s h ows at page 59 line 25 that she told the court she was appointed the administrator of the estate. The -J23- implication of this is that she ought to have brought the action in her representative capacity. In the absence of letters of administr ation having been granted to the respondent, she has no capacity to bring an action on behalf of the deceased's estate. We therefore agree with the submissions made by Mrs. Mbaluku. We find merit in grounds two and three of the appeal. However, the issue in contention remains, as submitted by the respondent's counsel that this matter, involving two widows, is about a dispute over a house purportedly bought by their deceased husbands. We are constrained to say anything further in our judgment as the issues in contention are before the court below. Save that a case shall not be defeated by reason of the misjoinder or nonjoinder of a party. The court may, in any case, determine the issues in dispute so far as they affect the rights and interests of the persons who are parties to the case. Order 14 Rule 5 of the High Court Rules as read together with Order 15 rule 6 of the Rules of the Supreme Court 1999 (supra) refer. -J24- In the net result, all three grounds of appeal succeed. The appeal is allowed. We award costs for this appeal to the appellant to be taxed in default of agreement. J . Z. Mulon ti COURT OF APPEAL JUDGE ..................•.••....... .......... P. C. M. Ngulube COURT OF APPEAL JUDGE -J25-