Mrs. Margaret M. S. Mulemena v Benny Chiholyonga and Ors (APPEAL No. 165/2017) [2019] ZMCA 326 (1 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NQ 165/2017 BETWEEN: MRS. MARGARET M. S. MULE RIMINAL i' EGISTRY 1 i , .,. PELLANT AND BENNY CHIHOL YONGA 1 ST RESPONDENT GERTRUDE MATOKWANI CHIHOLYONGA 2 ND RESPONDENT CHILAMBWE TINDYE MAPULANGA 3 RD RESPONDENT CORAM: Chashi, Lengalenga and Siavwapa, JJA On 23rd May, 2018 and 1st August, 2019. For the Appellant: Mr. R. Msoni - Messrs Willa Mutofwe & Associates For the Respondents: Mr. A. J. Shonga Jnr, SC - Messrs Shamwana & Company JUDGMENT LENGALENGA, JA delivered the Judgment of the Court. Cases referred to: 1. WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT (1982) ZR 172 J1 2. THE ATTORNEY GENERAL v ABOUBACAR TALL & ANOR - SCZ APPEAL NQ 77 OF 1994 3. MIRRIAM MBOLELA v ADAM BOTA - SCZ SJ NQ 26 OF 2017 4. BORNIFACE KAFULA & ORS v BILLINGS CHOONGA MUDENDA - SCZ APPEAL NQ 202 OF 2003 5. PHILIPS v COPPING (1935) 1 KB 1 6. NEVERS SEKWILA MUMBA v MUHABI LUNGU (suing in his capacity as National Secretary of the MMD) - SCZ SJ NQ 55 OF 2014 7. BUCHMAN v THE ATTORNEY GENERAL - SCZ JUDGMENT NQ 74 OF 1994 (unreported) 8. MUSUSU KALENGA BUILDING & ANOR v RICHMAN'S MONEY LENDERS ENTERPRISES (1999) ZR 27 9. EDITH NAWAKWI v LUSAKA CITY COUNCIL - SCZ APPEAL NQ 26 OF 2001 10. NORA MWAANGA KAYOBA & ANOR v EUNICE KUMWENDA NGULUBE & ANOR - SCZ JUDGMENT NQ 19 OF 2003 11. YB AND F TRANSPORT LTD v SUPERSONIC MOTORS - SCZ JUDGMENT NQ 3 OF 2000 12. EMMANUEL MUTALE v ZAMBIA CONSOLIDATED COPPER MINES LTD - SCZ SJ NQ 67 OF 1994 13. YANGO PASTORAL CO PTY LTD v FIRST CHICAGO AUSTRALIA LTD (1978) 139 CLR 410 14. ZAMBIA EXTRACTS OILS AND COLOURANTS LTD & ORS v ZAMBIA STATE INSURANCE PENSION TRUST FUND BOARD OF TRUSTEES - SCZ SJ NQ 31 OF 2016 15. NKHATA & ORS v ATTORNEY GENERAL (1966) ZR 124 16. BLACKWELL v BLACKWELL (1929) ALL ER 71 17. McCORMICK v GROGAN (1869) LR 4 HL 82 18. NATIONAL DRUG COMPANY LTD & ANOR v MARY KATONGO - SCZ APPEAL NQ 79 OF 2001 19. COMMUNICATIONS AUTHORITY v VODACOM ZAMBIA LTD (2009) ZR 196 Legislation referred to: 1. THE LANDS AND DEEDS REGISTRY ACT - Chapter 185 of the Laws of Zambia J3 Respondents approved diagrams from the Lusaka City Council and Ministry of Lands. 2.2 In furtherance of the said agreements, the Respondents made payments towards the purchase price. Consequently, the relevant conveyance documentation was drawn up, executed and lodged at the Ministry of Lands. However, later on, unknown to the Respondents, the Appellant withdrew the said documents claiming that there was an error on the survey diagrams and she, thereafter, refused to give the Respondents the documents for them to process certificates of title. 2.3 Consequently, the Respondents took out an action against the Appellant in the Court below, claiming the following reliefs: 1. Specific performance of the contracts of sale. 2. Damages for breach of contract. 3. Declaration that the plaintiffs (Respondents) are the rightful proprietors of Subdivisions B and C of Lot NQ 2745/M, Ibex Hill, Lusaka in extent of 1.5 acres or 6010 square metres respectively. 4. Vacant possession of Subdivisions Band C of Lot NQ 2745/M, Ibex Hill, Lusaka. J4 5. An order of injunction to prevent the defendant (appellant) or her agents, servants from interfering with the plaintiffs' (respondents') possession of the said properties. 6. An order for delivery of all documents relating to Subdivision B and C of Lot NQ 2745/M, Ibex Hill, Lusaka. 7. Costs; and 8. Any other relief the Court deemed fit. 3.0 FINDINGS BY THE COURT BELOW 3.1 In her judgment, the learned trial judge found that the act of receiving the purchase price money was consistent with the terms of the contracts of sale between the parties. She further found that the Appellant freely and voluntarily executed the respective contracts of sale. She also was of the view that the Respondents were entitled to orders for specific performance and vacant possession of the property, as they had taken steps beyond the executor stage of the contract. 3.2 With regard to the Appellant's allegation of forgery of her signature on the conveyance documents, the learned trial judge found that she had not adduced sufficient evidence to show that the signatures were not hers. JS 3.3 With respect to the counter-claim that the transaction between the parties was a nullity because the documents were prepared by unqualified persons, the learned trial judge found that the import of section 90 of the Lands and Deeds Registry Act, is not to invalidate the contracts but merely to fine the unqualified person who prepared the documents. She further found that the Appellant had failed to prove on a balance of probabilities that the agents transacted on behalf of the parties. 4.0 GROUNDS OF APPEAL 4.1 Dissatisfied with the judgment of the Court below, the Appellant filed this appeal and advanced two grounds of appeal. that the 1. The learned trial judge erred both in law and fact when she held transaction between the parties was not null and void at law, notwithstanding that the contracts of sale and the assignments were prepared by unqualified persons as required by section 90 of the Lands and Deeds Registry Act and also for failing to consider that there was need for leave of court in accordance with section 19(2) of the the Intestate administrator can sell the property forming part of an estate, failure to which renders the sale null and void. Succession before Act, J6 2. The learned trial judge erred in law when she ordered specific performance of the contracts of the sale Respondents; the Appellant and the Respondents being null and void at law. transaction between the Appellant between and the 4.2 Heads of argument were filed into court on behalf of both the Appellant and the Respondents. 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF APPEAL 5.1 In support of ground one, Mr. R. Msoni, the Appellant's Counsel submitted that the Court below erred when it failed to adjudicate on all issues in controversy, particularly for failing to consider that there was need for the authority of the court to be granted before the administrator can sell any property forming part of an estate in accordance with section 19(2) of the Intestate Succession Act Chapter 59 of the Laws of Zambia. He further submitted that failure to do so renders the sale null and void ab initio at law. 5.2 To support his argument that the court has a duty to adjudicate on all issues in controversy, he relied on a number of cases, namely, WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT1 J7 and THE ATTORNEY GENERAL v ABOUBACAR TALL & ANOR2 in which the Supreme Court stated that: "I would express the hope that trial courts will always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. A decision which because of uncertainty or want of finality, leaves the doors open for further litigation over the same issues between the same parties can and should be avoided." 5.3 In this regard, it is the Appellant's contention that the learned trial judge failed to adjudicate on the effect of the Appellant's failure as the administrator of the estate to obtain leave of court prior to the sale. To support this position, Mr. Msoni relied on the case of MIRRIAM MBOLELA v ADAM BOTA3 in which the Supreme Court held that: "The import of section 19(2) of the Act is very clear. It precludes the sale of property (including real property) forming part of the estate of a deceased person without prior authority of the court. In the mind of the legislature, this statutory provision was intended to prevent administrators of estates of deceased persons from abusing their fiduciary responsibilities by selling property forming part of such estates, without due regard to the interest of the beneficiaries. No doubt, the court can only grant such authority when it is satisfied that the sale would be in the interest of J8 In our view, prior authority of the beneficiaries. the court is a sine qua non of a valid sale of such property contrary to the opinion of the learned trial judge, nowhere in section 19(2) of the Act does it allow an administrator of the estate to obtain court authority before a sale transaction is concluded ............. in our opinion therefore, the proper interpretation of section 19(2) of the Act is that court authority must be sought before an offer is made to an intending purchaser by an administrator of the estate. The evidence in the Court below shows that no authority was obtained by the Appellant to sell the property to the Respondent. In the absence of such authority, we agree with Counsel for the Appellant that the purported sale would be illegal and unenforceable. If we may add, such a transaction would be null and void ab initio." 5.4 The Appellant further relied on the earlier case of BORNIFACE KAFULA & ORS v BILLINGS CHOONGA MUDENDA4 in which the Supreme Court ordered a refund of the purchase price under circumstances akin to the MIRRIAM MBOLELA case. 5.5 Appellant's Counsel argued that the Appellant in her evidence in the Court below testified and maintained that she did not execute the Contracts of Sale and Deeds of Assignment and that the money she was paid was merely commitment fee for holding on to the property so that it would not be sold to other people. J9 5.6 He further argued that even if the Appellant had signed the said documents and intended to sell the subject property for which she received part payment from the Respondents, the sale transaction would still be null and void ab initio and unenforceable for lack of court authority. 5.7 He further relied on the case of PHILIPS v COPPING5 which was referred to by the Supreme Court in the MIRRIAM MBOLELA case. In that case it was stated that: "It is the duty of the court when asked to give judgment which is contrary to statute to take the point, although the litigants may not take it. Illegality once brought to the attention of the Court overrides all questions of pleadings, including any admission made therein." 5.8 Mr. Msoni further argued that with regard to section 19(2) of the Intestate Succession Act, the alleged sale of the property to the Respondents was not in the interest of the beneficiaries and that the sale did not secure the best price available for the property according with the market price at that time in 2011 in the high cost Ibex Hill residential area of Lusaka. 5.9 He submitted that the illegality of the alleged contracts of sale is further compounded by the fact that the transaction documents were n o prepared by unqualified persons contrary to section 90 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 5.10 Appellant's Counsel submitted that whilst they conceded that the issue of illegality of the sale transaction on account of non compliance with section 19(2) of the Intestate Succession Act, was not raised and argued in the Court below, the Appellant is not precluded from raising it on appeal as it is a matter that hinges on a principle of law as opposed to facts. 5.11 To support his argument that either party was at liberty to advance new legal arguments in the appellate court, Mr. Msoni relied on the case of NEVERS SEKWILA MUMBA v MUHABI LUNGU (suing in his capacity as National Secretary of the MMD)6 in which the Supreme Court gave guidance that: "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 GENERAL7 that: "{a}matter not raised in the lower court cannot be raised in a higher court as a ground of appeal." Jll 5.12 It was submitted that the same guidance was reiterated in the case of MUSUSU KALENGA BUILDING LTD & ANOR RICH MAN'S MONEY LENDERS' ENTERPRISES8 • The Supreme Court's reasoning 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 that the trial court has not ruled upon. 5.13 Further reference was made by Appellant's Counsel to the NEVERS SEKWILA MUMBA case where the Supreme Court held that: "It would indeed be calamitous were we to accept the argument respondent's Counsel's submission that any legal argument and lower court, authority not advanced before a cannot be made before this Court." implied the in 5.14 With regard to ground two where the Appellant faults the learned trial judge for ordering specific performance, this Court was referred to CHITTY ON CONTRACT: GENERAL PRINCIPLES, 27th Edition, paragraph 27-002 where the learned authors state that: "The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract ....... it will not be ordered if the contract suffers from some defect, such as informality, mistake or illegality which makes the contract invalid or unenforceable." J12 5.15 The Appellant further relied on the HALSBURY'S LAWS OF ENGLAND, Fourth Edition Re-issue, Volume 44, paragraph 859 where the learned authors state that: "The court does not interfere directly to enforce an illegal contract by specific performance, any more than it assists directly to enforce it either by awarding damages or compensation, or ordering an account of profits among the parties interested." 5.16 Mr. Msoni submitted that the import of the cited authorities is that before the court can grant the remedy of specific performance, the contract must be one that is legal and capable of being enforced. He further submitted that in this case, the Appellant (to whom the claim for specific performance has been made) did not obtain leave of court for the alleged sale and that as such the contracts of sale were a nullity at law and cannot be specifically performed or enforced. 5.17 He submitted that the remedy of specific performance is an equitable remedy to which equitable principles apply. He referred to one such principle that states that: "He who comes to equity must come with clean hands." 5.18 He reiterated that the Appellant stated that she did not sign the J13 Contracts of Sale and the Deeds of Assignment and he submitted that, therefore, the irregularities are attributed to the Respondents. He further submitted that the Respondents were aware that they were not acquiring a good title to the property because they did not even see the Appellant's order of appointment as administrator. It is the Appellant's contention that the Respondents were negligent in their approach to the purchase of the subject property. He fortified his submission by relying on some decided cases such as EDITH NAWAKWI v LUSAKA CITY COUNCIL9 and NORA MWAANGA KAYOBA & ANOR v EUNICE KUMWENDA NGULUBE & ANOR10 , where the Supreme Court observed that: "In purchasing of real properties, parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property in question has no encumbrances. Buying real property is not as casual as buying household goods or other personal property." 5.19 In concluding the Appellant's arguments, Mr. Msoni submitted that costs follow the event. He relied on the cases of YB AND F TRANSPORT LTD v SUPERSONIC MOTORS11 and EMMANUEL MUTALE v ZAMBIA CONSOLIDATED COPPER MINES LTD12 J14 where the Supreme Court held that the general principle is that costs should follow the event, and that a successful party should not be deprived of his costs, unless the successful party's conduct in the course of the proceedings merits the court's displeasure. 6.0 RESPONDENTS' ARGUMENTS IN OPPOSITION TO THE APPEAL 6.1 In response to ground one, Mr. A. J. Shonga, Jnr, SC, on the first limb submitted on behalf of the Respondents that they are alive to the decision in the case of WILSON MASAUSO ZULU v AVONDALE HOUSING PROJECT and the other authorities cited by the Appellant, which support the principle that a trial court must ensure that all matters in controversy between the parties are determined. He further submitted that the court can only establish what the issues in controversy between the parties are from the pleadings in the trial court. 6.2 With regard to this case, he submitted that on the strength of parties' pleadings in the Court below, they led evidence in support of their respective cases. He further submitted that, however, upon consideration of the said pleadings and evidence in the Court below, there is no direct or indirect reference to section 19(2) of the JlS Intestate Succession Act, as the application of that provision was not in controversy between the parties. 6.3 He, accordingly, submitted that therefore, the Appellant's attack against the Court below is unwarranted as the Court below cannot be faulted in arriving at the decision that it did. Respondents' Counsel argued that it is a well settled principle of law that a matter not raised in the Court below cannot be raised in an appellate Court. He referred the Court to the cases of BUCHMAN v THE ATTORNEY GENERAL and MUSUSU KALENGA BUILDING & ANOR v RICHMAN'S MONEY LENDERS ENTERPRISES. 6.4 He submitted that the purpose of section 19(2) of the Intestate Succession Act is to protect the interest of the beneficiaries by requiring administrators to seek leave of court prior to entering into contracts of sale. Mr. Shonga, Jnr, SC drew the Court's attention to the fact that in this case, the Appellant as administrator entered into contracts of sale with the Respondents for her own interest as the sole beneficiary of the late Mulemena's estate. He submitted that by so doing, she was safeguarding her own interest, thereby negativing the requirement of protection from the Court. J16 6.5 He further submitted that consequently, the Appellant's allegation that the respective contracts of sale entered into by the Appellant and the Respondents were illegal and have no basis as there is no evidence to show that the Intestate Succession Act applies. He argued that even if it applies, the Appellant actually transacted with the Respondents, for her own benefit and that as such she cannot rely on section 19(2) of the Act which is intended to protect beneficiaries of intestates. 6.6 In supporting his position that there is no illegality in the contracts of sale entered into between the Appellant and the Respondents, he referred to the case of PHILIPS v COPPINGS that was cited by the Appellant and he submitted that it is not relevant to this appeal, in the absence of illegality. 6.7 With respect to the case of MIRRIAM MBOLELA v ADAM BOTA Mr. A. J. Shonga, Jnr, SC submitted that the Appellant in her heads of argument before this Court, acknowledged that her arguments with respect to section 19(2) of the Act have come belatedly and that she advanced no reasons why she only raised them on appeal and not at trial. J17 6.8 With regard to the second limb of the Appellant's argument that as the contracts of sale in question were prepared by unqualified persons, the transactions are null and void in breach of section 90 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia, he acknowledged that section 90 prohibits unqualified persons from making conveyancing transactions that fall under the Act. He, however, argued that it does not automatically mean that such documentation prepared by unqualified persons renders the entire transaction unenforceable or invalidate the contracts of sale. He submitted that whilst the contravention of section 90 does not invalidate the transactions, there is provision of imposition of a penalty. To support this position, Mr. A. J. Shonga Jnr, SC referred the Court to the case of YANGO PASTORAL CO PTY LTD v FIRST CHICAGO AUSTRALIA LTD13 , approved by the Supreme Court of Zambia in the case of ZAMBIA EXTRACTS OILS AND COLOURANTS LTD & ORS v ZAMBIA STATE INSURANCE PENSION TRUST FUND BOARD OF TRUSTEES14 where it was stated that: "Where a statute imposes a penalty upon the making or performance of a contract, it is a J18 question of construction whether the statute intends to prohibit the contract in this sense, that is, to render it void and unenforceable or whether it intends only that the penalty for which it provides shall be inflicted if the contract is made or performed." 6.9 In view of the foregoing, Mr. A. J. Shonga, Jnr, SC argued that if it was intention of the legislature to void documentation prepared by unqualified persons and to render the conveyancing transactions unenforceable, section 90 would have explicitly stated so. He submitted that in the absence of such provision, they do not find any reason why this Court should depart from the decision of the Court below on this aspect. 6.10 In response to the Appellant's contention and argument under ground two that the Court below erred in law when it ordered specific performance of the contracts of sale between the Appellant and the Respondents when the transactions are null and void, Mr. A. J. Shonga, Jnr, SC submitted that as he earlier argued, under ground one, the respective contracts of sale entered into by the parties hereto, are not null and void as alluded to by the Appellant. 6.11 It was submitted on behalf of the Respondents that the Appellant argued that the Respondents had not come to Court with clean J19 hands due to her claim that she did not sign the respective contracts of sale. This Court's attention was drawn to the fact that the learned judge in the Court below found as a fact that the contracts of sale which the Appellant seeks to disown, were signed by the parties concerned, including the Appellant in the judgment appearing in the record of appeal. 6.12 Mr. A. J. Shonga, Jnr, SC noted the Appellant only testified in the Court below that the signature appearing on the contracts were not hers and as a result, a forgery, but that she did not adduce any other evidence of the alleged forgery, even though she was given an opportunity to call a handwriting expert to assist her in proving her allegation of forgery. 6.13 He, therefore, urged this Court not to disturb or interfere with the finding of fact by the Court below and he relied on the case of NKHATA & ORS v ATTORNEY GENERAL 1 • 6.14 It was submitted that in light of the case cited, and the evidence presented before the Court below, the only conclusion that the learned trial judge could have drawn, is that the Appellant executed the contracts of sale with the Respondents. It was submitted, J20 therefore, that if anyone's hands are not clean in this matter, it is certainly not the Respondents. 6.15 Mr. A. J. Shonga, Jnr, SC further relied on the equitable principle that: "equity would not allow statute to be used as an engine of fraud." 6.16 He emphasized that equity will not ignore statutory requirements normally, but only, as the maxim implies, where it would be unconscionable to allow a party to rely on a statutory requirement to another's detriment. 6.17 To support this view, he relied on the case of BLACKWELL v BLACKWELL 16 where reference was made to Lord Westbury's observation in the case of McCORMICK v GROGAN 17 when he stated that: "It is a jurisdiction by which a court of equity, proceeding on the ground of fraud, converts the party who has committed it into a trustee for the party who is injured by that fraud. The court of equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of fraud an Act of Parliament perpetrating a intervenes, the court of equity, it is true, does not set aside the Act of Parliament, but it fastens on J21 the individual who gets a title under that Act, and imposes on him a personal obligation, because he applies the Act as an instrument for accomplishing a fraud. In this way the court of equity has dealt with the Statute of Frauds, and in this manner, also, it deals with the Statute of Wills." 6.18 In relation to this case, it was submitted that the Appellant as the administrator of the estate of the late Mr. Mulemena and sole beneficiary of the said estate, cannot use section 19(2) of the Intestate Succession Act to escape liability under the contracts of sale entered into with the Respondents, by using it as an engine of fraud and that the award of specific performance should be sustained. 6.19 To fortify the Respondents' submissions, Mr. A. J. Shonga, Jnr, SC further relied on the case of NATIONAL DRUG COMPANY LTD & ANOR v MARY KATONGO18 where the Supreme Court stated that: "It is trite law that once the parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the Court is to give efficacy to the contract when one party has breached it by respecting, upholding and enforcing the contract." 6.20 Based on the cited authority, the Respondents' Counsel urged this Court to order specific performance of the respective contracts • J22 entered into between the Appellant and the Respondents in accordance with the decision in the case of COMMUNICATIONS AUTHORITY v VODACOM ZAMBIA LTD19 where it was stated inter alia that: is available in certain cases, "Specific performance is an equitable remedy which the aggrieved party to a contract. When it is available, he may obtain an order that the other party to the thereunder, contract performs his obligations letter of the substantially according contract." the to to 6.21 It was further submitted that if for some reason, this Court is of the view that an order for specific performance is inappropriate, the Respondents are entitled to compensation. It was emphasized that an award for compensation should include an order for a refund of payments made towards the purchase price received by the Appellant, with interest, in accordance with the Supreme Court's decision in the case of BORNIFACE KAFULA & ORS v BILLINGS CHOONGA MUDENDA. It also submitted that the Court should also order the payment of the market value of any buildings or structures erected by the Respondents on the subject pieces of land, so that J23 there should not be any unjust enrichment of the Appellant to the Respondents' detriment. 6.22 Mr. A. J. Shonga, Jnr, SC finally submitted that on the strength of arguments advanced, the appeal should fail and be dismissed with costs. 7.0 DECISION OF THIS COURT 7.1 We have considered the grounds of appeal, respective arguments by the parties, authorities cited, evidence on record and judgment appealed against. 7.2 In ground one the Appellant seeks to have respective contracts of sale she entered into with the Respondents nullified for the following reasons: (i) (ii) That they were prepared by unqualified persons contrary to section 90 of the Lands and Deeds Registry Act; and That no leave or authority of the court was obtained to sell the properties pursuant to section 19(2) of the Intestate Succession Act. 7.3 With regard to the first limb of ground one relating to section 90 of the Lands and Deeds Registry Act, we noted that whilst the said provision seeks to prohibit unqualified persons from transacting in J24 any conveyancing business under the Act, contravention of the said provision does not provide for nullification or invalidation of the transactions. 7.4 It provides for the penalty of payment of a fine, and we are of the view that if the legislature intended to have the transactions invalidated, it would have been expressly stated. We find that the YANGO PASTORAL CO PTY LTD case followed by the Supreme Court of Zambia in the ZAMBIA EXTRACT OILS AND COLOURANTS LTD case is instructive on this issue. 7.5 In the circumstances, we find that the first limb of ground one cannot succeed as it is not supported by the provision of the law relied on. 7.6 With regard to the second limb of ground one, and the arguments advanced, we are alive to the Supreme Court decision in the case of MBOLELA v BOTA in which the Court stated that section 19(2) of the Intestate Succession Act precludes the sale of property forming part of the estate of a deceased person without prior authority of the Court. It further stated that the intention of the legislature was to prevent administrators of estates of deceased persons from abusing J25 their fiduciary responsibilities by selling the property forming part of the estate, without regard to the interests of beneficiaries. 7.7 From the evidence on record and arguments advanced by the Respondents, and by the Appellant's own acknowledgment, the Appellant is both the administratrix and sole beneficiary of the deceased Mulemena's estate. 7.8 Upon perusal of section 19(2) of the Intestate Succession Act, it indicates that it is for the administrator to demonstrate to the court that it is in the interest of the estate and beneficiaries for the property to be sold. Therefore, we are of the view that the administrator has a primary responsibility to seek the Court's authority to sell the property. 7.9 We, however, noted from the arguments advanced by the Appellant in support of ground one that she shifted that responsibility to the Respondents, who are neither administrators nor beneficiaries of the estate of the late Mulemena. 7.10 We, therefore, find that the Appellant's attempt to invoke a statutory provision so as to have the respective contracts of sale entered into with the Respondents nullified or invalidated, amounts to the • J26 Appellant trying to use a statute as an engine of fraud, which is precluded by equity. In other words, equity will not allow a person to benefit from his or her fraud by relying on a statutory provision. 7.11 Based on the said arguments and principles of equity, we find that the Appellant cannot be allowed to rely on the statutory provision to have the contracts of sale nullified; as that would amount to allowing her to use the statutory provision as an engine of fraud. 7.12 We, therefore, find that this second limb of ground one lacks merit. The net result is that ground one lacks merit and we, accordingly, dismiss it. 7.13 We turn to ground two in which the Appellant seeks to challenge the order for specific performance of the contracts declared null and void. 7.14 From the evidence on record and arguments advanced by both parties it is not disputed that the Appellant received payments in respect of the subject properties. Therefore, we are of the view that the Appellant is estopped from claiming that she did not execute the contracts. 7.15 We noted that the Appellant in her arguments seeks to persuade this Court that the signatures on the respective contracts are fraudulent. J27 We, however, further noted from the record that she failed to adduce evidence of the alleged fraud. It is trite law that fraud must be precisely alleged and strictly proved and that there is no presumption of fraud. 7.16 We, therefore, find that the Appellant failed to prove the alleged fraud and that, in the circumstances, the trial judge was on firm ground in dismissing the allegation. 7.17 We find that ground two is devoid of merit and we, consequently, dismiss it. 8.0 CONCLUSION 8.1 Both grounds of appeal being unsucce e net effect is that the appeal fails and it is according! The Appellant is J. Chashi COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE ............................................. M. J. Siavwapa COURT OF APPEAL JUDGE