Bliss Maundu v Mirriam Chanda and Anor (Appeal No. 173/2016) (26 August 2019) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA Appeal No.173/2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BLISS MAUNDU ./ ~~t-~ COURT APPELLANT / ..,\) JUDICIARY I, AND 1 ·q& 2 6 AUG 2019 ( \ MIRRIAM CHANDA RESPONDENT 1ST . Mc COURT R · 80x soo67, L PAULINE MAKUNGU RESPONDENT 2ND CORAM: Muyovwe, Hamaundu, and Kajimanga JJS On 9th July 2019, }st August 2019 and 26th August 2019 For the Appellant: Ms B. L. Pizo, Senior Legal Aid Counsel For the 1st Respondent: In Person For the 2nd Respondent: Capt. F. B. Nanguzyambo (Rtd), Messrs F. B. Nanguzyambo & Associates JUDGMENT Kajimanga, JS delivered the. judgment of the court Case referred to: 1. Mirriam Mbolela v Adam Bota - Selected Judgment No. 26 of 2017 2. Aristogerasimos Vangelatos and Anothe.r v Metro Investments Limited and 3 Others - Selected Judgment No. 35 of 2016 Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia; order 36 rule 8 J2 2. Intestate Succession Act, Chapter 59 of the Laws of Zambia; sections 9, 19,24,29,38,43 3. Judgments Act, Chapter 81 of the Laws of Za·mbia; se,ction 2 4. Supreme Court Rules, Chapter 25 of the Laws of Zambia; rule 58{3) Introduction 1. This is an appeal against the decision of the High Court (Mwikisa, J) dated 17th July 2015 which dismissed the appellant's claims against the respondents. 2. The appeal discusses the effect of sale of property forming part of a deceased's estate by a beneficiary who is not an administrator of the estate. It also examines the jurisdiction of the local court in matters of succession. Background to the appeal 3. On 2nd April 2014, the appellant took out an originating summons against the respondents claiming: 3.1 An order that the caveat placed on Hous,e No. 7 Ka:n,on:gesha Street, Lukanga, Kabwe be removed forthwith; 3.2 Vacant possession of House No. 7 Kanongesha Str,eet, Lukanga, Kabwe; 3.3 Costs; 3.4 Further or any other relief. 4. The affidavit in support of the originating sum.mans disclosed that on 7th October 2006, the appellant purchased House No. 7 J3 • Kanongesha Street ("the property") from the 1st respondent through an estate agent at a total sum of K28,000,.000.00 (unrebased). The 1st respondent sold the property to her after the death of her husband, one Ernest Lombe Makungu (the deceased), on the strength of an order of the local court dated 3rd October 2006. The appellant deposed that she was the bonafide purchaser of the property without notice of any encumbrances and that from the date of the said purchase, she had been in receipt of rentals from tenants that she leased the property to and had been paying ground rent for the property. However, when sh e pursued the certificate of title from the 1st respondent she was informed that it was in the custody of the 2nd respondent and all attempts to recover the same proved futile. Further, that a search at the Kabwe Municipal Council revealed that a caveat was placed on the property in question by the 2nd respondent. She, therefore, urged the court below to order the removal of the caveat to enable her to obtain title in her name. 5. In her affidavit in opposition, the 1st respondent admitted the appellant's claims and contended that the caveat was placed on the property after it was sold to the appellant. Further, that the J4 property was not sold illegally but by the order of the local court and that there was no order of stay filed prohibiting her from selling the said property. In addition, the interested parties and/ or beneficiaries were given their percentages of the proceeds of the sale. 6. On the other hand, the 2nd respondent filed an affidavit in opposition which disclosed that the alleged sale of the property was null and void due to the fact that the 1st respondent had no authority, express or implied, to dispose of the family property by way of sale as she was merely one of the beneficiaries of the estate of the deceased; that she had no capacity to sen the property as she was not the duly appointed administrator of the deceased''s estate; that the other beneficiaries or their guardians did not consent to the alleged sale and neither were they consulted. In addition, the 1st respondent did not account for the proceeds of the sale of the property to the beneficiaries of the estate which included the 2nd respondent but instead opted to give, Matildah Bwalya, Emmanuel Makungu's mother, the sum of K6,.000,000.00 (unrebased) when in fact she abandoned him when he was only three months old. JS 7. The affidavit evidence also disclosed that the Local Court order dated 3rd October 2006 was appealed against by the 2nd respondent the day it was issued and was later quashed by the Kabwe Magistrate Court on 5th January 2007. Therefore, the sale was incompetent as the 1st respondent was fully aware that the property was still the subject of litigation in the Magistrate Court. Further, that the appellant could not claim to have bought the house on 7th October 2006 as the 1st respondent testified on oath before the Kabwe Magistrate Court in December 2006 that the house had not been sold. 8. The 2nd respondent also contended that the contract of sale executed by the appellant and the 1st respondent does not conform to the accepted format and lacks details; and that there was no assignment attached to the sale. Additionally, the alleged sale was null and void ab initio for failure by the appellant to deduce title or carry out further steps as required by the provisions of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia to ascertain that there were no encumbrances on the property as the 2nd respondent had on 22nd September 2006, placed a caveat on the subject property. The 2nd respondent asserted that as the J6 duly appointed administratrix of the estate of the deceased, she refused to release the certificate of title to the property due to the fact that she was protecting the interests of two minor children of the deceased, namely Emmanuel Makungu and Ernest Makungu Jr. She, therefore, urged the court below to nullify the alleged sale of the property. 9. The 1st respondent filed an affidavit in response to the 2nd respondent's affidavit in opposition in which she deposed that she had authority to dispose of the property as she was a beneficiary of the deceased 's estate and had an order from the Local Court as the wife of the deceased and surviving spouse. Secondly, the other beneficiaries were informed of the sale and that the mother to one of the minor children agreed to the sale of the property and even received K6,500,000.00 (unrebased) from the proceeds of the sale. Thirdly, the contract of sale and description of the property and conditions signed by the 1st respondent and the appellant were detailed and conform to the accepted format because the estate agents involved were fully competent registered agents. 10. The 1st respondent contended that the respondent was 2nd appointed administrator without the consent of the two families J7 and of all concerned; and that at the time of the sale, the 2nd respondent was not a beneficiary of the matrimonial home left behind by the deceased nor was she the administratrix of the estate. According to the 1st respondent, the 2nd respondent only assumed administratorship six years after the demise of the deceased. She also contended that Emmanuel Makungu was not abandoned by his mother. On the contrary., the 1st respondent and her late husband assumed responsibility over him at the age of 9 months and he remained in their custody until the deceased's death when he went to stay with his mother until her death when the 2nd respondent took him in. 11. In her reply to the 2nd respondent's affidavit in opposition, the appellant contended that the 1st respondent had authority to sell the property as her application to do so was granted by the local court and no stay of execution was filed by the 2nd respondent preventing the sale of the property. 12.According to the appellant, there was no administrator of the deceased's estate at the time she purchased the property and as such, she purchased it from the deceased's widow who at the time was living and controlling the use of that property on her uwn J8 behalf and on behalf of the deceased's minor children. She added that all the beneficiaries of the deceased's estate benefitted from the sale of the property. 13. The appellant asserted that the 1st respondent engaged estate agents to ensure that all due diligence checks were done and that the contract of sale is in writing as per the requirements of the law. It was also contended that if the caveat was genuinely placed on the property by the 2nd respondent she did not qualify as she was not entitled or interested in the property as the matrimonial home beneficially belonged to the widow and the deceased's two surviving children. As such, the caveat was entered in error. That at the alleged time of placing the caveat, the 2nd respondent was not the administrator and as such, she did not have any legal authority to place the caveat on the property. Further, that the letters of administration issued to the 2nd respondent were obtained from a local court and do not give the administrator authority to deal with real property in a deceased's estate. That authority to deal with or distribute a deceased's real property by an administrator can only be obtained from the High Court. J9 Evidence of the parties in the High Court 14. At the hearing of the matter, the appellant essentially restated the position in her affidavit evidence and, therefore, it is unnecessary for us to reproduce it. 15. In her oral evidence, the 1st respondent stated that she sold the house in question to the appellant as a beneficiary being the widow of the deceased. She admitted, however, that she did not disclose that the process of selling the house had started when she appeared before the Magistrate's Court. She stated that at the time she sold the house, there was no caveat on the property and that it was only after judgment was passed in the Magistrate's Court that she came to discover it. 16. She testified that the beneficiaries of the property were her son Ernest Lambe Makungu Jr aged 4 years at that time, her step-son Emmanuel Makungu who was 6 years old, and herself. She stated that she shared the proceeds of sale equally amongst the beneficiaries. At that time, the 2nd respondent was not the administrator but had the title deed of the property in her custody. She stated that she did not give the 2nd respondent a share of the proceeds of sale as she was collecting rentals from the tenants of J10 the property. 17. The 2nd respondent's evidence was that the Kabwe Local Court magistrate had advised or ordered that the property should be shared between the parents to the deceased, the children of the deceased and the widow but the 1st respondent did not adhere to that order. She also testified that prior to this, the 1st respondent had taken the 2nd respondent to the Administrator General who told the 1st respondent not to sell the family property in question but just collect rentals therefrom; and that when the 1st respondent started collecting the rentals, she did not give any to her step son, Emmanuel Makungu. 18. The 2nd respondent testified that she was the one taking care of Emmanuel Makungu and that she had no money to pay for his school fees. She, however, later discovered that the property had been sold. Further, that the 2nd respondent confirmed that she became Administrator of her late son's estate in 2011, after the house had been sold and that the 1st respondent did not give her a share of the proceeds of the sale of the said house. Consideration of the matter by the High Court 19. After considering the evidence and arguments of the parties, the J11 learned trial judge found that the 1st respondent did not have any authority to sell the property; that she was not an administratrix at the time of the sale; and further, that she did not get consent from the other beneficiaries taking into consideration that two of the beneficiaries to the property were minors. She added that the 1st respondent committed perjury before the Subordinate Court by lying that the property had not been sold when in actual fact, it had already been sold. She reasoned that this action on the part of the 1st respondent indicated that she acted in a fraudulent manner and not in good faith. 20. The learned trial judge also found that the 1st respondent did not possess title to the property in question to enable her to pass a good title to the appellant and that it was the responsibility of the appellant to conduct investigations into issues pertaining to the property before committing to purchase it. She opined that it was reckless and negligent on the part of the appellant to have relied completely on the strength of the information she was given by the estate agent who purchased the house on her behalf without bothering to find out whether there were encumbrances on the property or not. J12 21. The learned trial judge went on to find that the appellant was in breach of the contract of sale between herself and the 1st respondent and that it was not drafted in line with the provisions of the Law Association of Zambia Conditions of Sale as the description of the property was not accurate. That the appellant should have investigated the legalities pertaining to the property that she was purchasing to ensure that there were no encumbrances on the property. That having failed to do so, she should bear the consequences of her actions. 22. She further found that section 29 (b) and (c) of the Intestate Succession Act Chapter 59 of the Laws of Zambia provides for revocation and annulment of letters of administration if there is evidence of fraud or if the grant was obtained by means of an untrue statement of a fact though the statement was made in ignorance or inadvertently. That even assuming that the 1st respondent in this case was the administrator at the time of the sale of the property, she did not have good title to pass to the appellant. Further, that even if the 1st respondent had good title to pass to the appellant, the fraud on her part would have led to the J13 revocation of the letters of administration in view of the fact that she admitted committing the offence of perjury in the court below. 23. The learned trial judge, therefore, found that the 1st respondent acted fraudulently and should pay back the purchase price of K28,000,000.00 to the appellant. She then ordered the 1st respondent to refund the appellant accordingly. It was also ordered that the appellant gives vacant possession of the property to the legal beneficiaries in line with section 9 of the Intestate Succession Act. Further, that the 1st respondent should bear the costs of the action which were to be taxed in default of agreement. The grounds of appeal to this Court 24. Aggrieved by this decision, the appellant has appealed to this court on three grounds as follows: 24.1 The trial court erred in law and in fact when it ordered the Appellant to surrender possession of House No. 7 Kanongesha Street in Lukanga to the beneficiaries of the estate of the late (Ernest Lombe] Makungu when there was evidence before it that the beneficiaries received the proceeds of sale in respect of the property from the appellant that they sought to recover through the High Court. 24.2 The trial court erred in law and in fact when it held that the 1st respondent had no authority to [sell] House No. 7 Kanongesh.a, Lukanga, Kabwe and consequently could not pass g·ood title to the appellant without addressing the order J14 of the local court dated 3rd October 2006, the basis upon which the sale was effected. 24.3 The trial court erred in law and fact when it concluded that a caveat was subsisting at the time of the sale without resolving the conflicting documentation evidenced by the 1st and 2nd respondents regarding the date on which (the] ,caveat was entered. Arguments presented by the parties in the appeal 25. In arguing grounds one and two, counsel for the appellant stated that the sale between the appellant and the 1st respondent was legitimate and that title should accordingly pass to the appellant despite the fact that the 1st respondent was not an administrator of the estate of the deceased. According to counsel, authority to sell the property emanated from the local court order dated 3rd October 2006 in an action between the 1st respondent and the 2nd respondent. She submitted that section 38 of the Intestate Succession Act makes provision for an interested party to apply to court for the sale of an asset for the benefit of the beneficiaries, who in this case were the 1st respondent and two of the deceased's minor children, one of whom is the biological son of the 1st respondent. That there was no evidence brought before court to prove that the 2nd respondent had obtained a stay of execution JlS when she appealed against that decision in the subordinate court and that it was trite law that an appeal does not act as a stay of execution to an order made by the lower court. Consequently, the appellant, having proof of the order of the court and no notice of any alleged encumbrances, purchased the property legitimately and was a bonafide purchaser. 26. It was contended that in ascertaining the legitimacy of the transaction that forms the subject matter of the appeal, the court below did not address the question regarding the effect of the Local Court order of sale relied on by the appellant at the time that the property was purchased; it also did not resolve the discrepancies between the two conflicting caveats dated 22nd September 2006 and 22nd December 2006. 27. Counsel further argued that since there was no administrator of the deceased's estate, the 1st respondent in consultation with Matilda Bwalya agreed to sell the property. She stressed that when children are minors the biological parents are legally responsible to make decisions on their behalf. In this case, the 1st respondent, having a life interest in the property and being the mother to one of the deceased's two minor children, together with the mother of J16 the other minor beneficiary, agreed to this transaction. Not only did they agree to the sale, counsel contended, they also received the proceeds of the sale which were shared between the three recognized beneficiaries being the 1st respondent, her son and the other minor child. That on the strength of section 38 of the Intestate Succession Act, their application and subsequent action was not misplaced; and that section 9 of the Intestate Succession Act confirms the composition of the beneficiaries to the matrimonial home. Thus, the claims by the 2nd respondent that she is a beneficiary to the matrimonial home by virtue of being the deceased's parent is not supported by law. 28. In support of ground three, counsel highlighted that the appellant sought an order in the court below to have the caveat placed on the property by the 2nd respondent removed following the purchase of the property by the 1st respondent. She contended that the court erred in not granting this relief to the appellant because it did not resolve the conflicting caveats filed before court by the appellant which was dated 22nd December 2006 and by the 2nd respondent dated 22 nd September 2006. That a finding should have been made as to which caveat represents or is in fact the operative caveat. She J17 argued that it was the 1st respondent's claim that there was no encumbrance on the property when she sold it and that she conducted a search before effecting the sale. According to counsel, it was also the appellant's position that the estate agents who assisted her with the purchase of the property did not come across any encumbrance at the time of the transaction. Consequently, it was submitted that there is no proof that there was a caveat subsisting at the time of the sale. 29. In the 1st respondent's heads of argument, the three grounds of appeal were argued as one under the heading of "legitimacy and legality of the contract of sale". It was submitted that section 19(2) of the Intestate Succession Act makes it mandatory for one to obtain leave of court when selling any property forming part of an estate of the deceased and that this provision is intended to secure the interest of the beneficiaries and allow the court to exercise supervisory functions over such matters. Thus, the lower court was in order to have reversed the sale of the house subject of this appeal as the 1st respondent did not obtain any leave of court in selling such property. To buttress this argument, we were referred to the case of Mirriam Mbolela v Adam Bota1 where this court J18 held as fallows: "The import of Section 19(2) of the Act is very clear. It proscribes the sale of property (including real property) forming part of the estate of a deceased person without prior authority of the court. In the m.ind 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 regard to the interest of the beneficiaries. No doubt, the court can only grant such authority when satisfied that the sale would be in the interest of the beneficiaries. In our view, prior authority of the court is sine qua non of a valid sale of such property. ... In our opinion, therefore, the proper interpretation of Section 19(2) of the Act is that 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 court 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 transactions would be null and void ab initio." 30. The 1st respondent, therefore, contended that this is not a proper case for this court to grant the reliefs sought by [the appellant] and that the lower court cannot be faulted for holding that the sale was unenforceable as the 1st respondent did not obtain a court order prior to the sale of the house in question. She concluded by submitting that the appeal has no merit and she urged us to J19 dismiss it with costs. 31. In the 2nd respondent's heads of argument, it was argued by counsel that the 1st respondent, as the surviving spouse, had no capacity or authority to sell the subject house to the appellant when her interest in the matrimonial property was terminable by death or remarriage as per section 9( 1 )(b) of the Intestate Succession Act and that the property would revert to the two children of the family. He pointed out that at the time of the sale, the 1st respondent was not the administratrix of the deceased's estate and even if that were the case, she would still have been incompetent to sell the property without the express consent of all other entitled beneficiaries. 32. According to counsel, Matilda Bwalya, the mother of Emmanuel Makungu who the 1st respondent consulted, was not a proper person to furnish the required consent as she had long abandoned the custody and care of her son to the 2nd respondent from the age of 3 months. Thus, the proceeds of sale of K6,500,000.00 given to her by the 1st respondent have never benefitted Emmanuel Makungu who was at all material times in the custody and care of the 2nd respondent. He contended that the 2nd respondent had J20 interest in the property arising from her having care and custody of Emmanuel Makungu, the biological son of the deceased, a minor and beneficiary of the estate of his late father. 33. He also submitted that the provisions of section 19(2) are not applicable in the present case as the 1st respondent was not the administratrix of the estate of the deceased and as such the sale transaction between her and the appellant was null and void as held in the Mirriam Mbolela 1 case. 34. Counsel went on to argue that the lower court faulted the appellant for failure to investigate the status of the property thereby inviting the maxim of 'caveat emptor' for which she ought to bear the consequences of her actions. He contended that the 1st respondent failed to disclose to the appellant the true status of the property which she sold within 4 days of the Local Court order without even consulting the 2nd respondent, who by virtue of her custodianship of Emmanuel Makungu had interest in the property. Thus, the learned judge in the court below was on firm ground when she ordered the reversal of the sale and refund. We were, accordingly urged to dismiss the appeal with costs . .35. At the hearing of this appeal, all the parties indicated that they J21 were relying on their written heads of argument. Decision of this Court 36. We have considered the record of appeal, the judgment appealed against and the arguments of the parties. 37. We noted that the appellant's heads of argument contained two additional grounds of appeal (4 and 5) when the memorandum of appeal only lists three grounds. There is, however, no indication on the record suggesting that leave was sought by the appellant to include these additional grounds as required by rule 58(3) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia. This rule states that: "The appellant shall not thereafter with.out the leave of the Court put forward any grounds of. objection other than those set out in the memorandum of appeal, but the Court in deciding the appeal shall not be confined to the grounds put forward by the appellant ... " [Emphasis added] 38. In view of the failure by the appellant to comply with rule 58(3) of the rules of this court, the additional grounds of appeal are hereby struck out. 39. We shall now proceed to consider the three grounds of appeal as filed. We will start by addressing the second ground of appeal as it J22 is on this ground that, in our view, the entire appeal hinges. In sum, ground two attacks the lower court's finding that the 1st respondent had no authority to sell the disputed property and could not pass good title to the appeHant without addressing the order of the Local Court dated 3rd October 2006 upon which the sale was effected. 40. The appellant contends that the 1st respondent's authority to sell the property was legitimate as it emanated from the order of the local court and that although the 2nd respondent appealed against the order, she did not obtain any stay of execution against it. As such, title should pass to the appellant despite the fact that the 1st respondent was not an administratrix. 41. Although the 1st appellant supported the appellant in the court below, she now contends in her heads of argument, that this appeal has no merit and accordingly urges us to dismiss it. On her part, the 2nd respondent contends that as the 1st respondent was not the administratrix of the deceased's estate, the sale transaction between her and the appellant was null and void. 42. As a starting point, it is noted that the property which the 1st J23 respondent is alleged to have sold to the appellant formed part of the estate of the deceased and that the purchase price of the property was K28,000,000.00. Arising from this is the question whether the Local Court had jurisdiction to make an order for the sale or disposition of property of that value. 43. In this respect, section 43 of the Intestate Succession Act states as £allows.: ( 11 The High Court shall hav,e j1urisdfoUon in matters relating to succession. . (2} A local court shall hav•e and may exercise jurisdiction. in matters •r,elating to succession if the value of the estate does not exceed fifty thousand kwacba. 44. The Intestate Succession Act was enacted in 1989, long before the Zambian Kwacha was rebased. There can be no doubt, therefore, that the value of the estate of the deceased in the present case exceeds the sum of K50,000.00 (now KS0.00) provided for under section 43 of the said Act. What this effectively means is that the Local Court did not possess the necessary jurisdiction to make the order it made., thus, rendering the same a nullity. We are fortified by our decision in the case of Aristo.g,erasimos Vangelatos and Another v Metro I:n·vestments Limited and 3 Others2 where we , J24 held that: " ... the absen.ce of jurisdiction nullifies whate:ver decision that follows fro,m such proceedings." 45. Even assuming that the Local Court did have the requisite jurisdiction, our view is that the 1st respondent would still not have had the authority to sell the property to the appellant as she was not the administratrix of the deceased 's estate. In arriving at this decision, we are guided by the provisions of section 19 as read with section 24 of the Intestate Succession Act. Section 19 states that: (1) The. d.u.ties and powers of an administrator shaU b,e-• (a) to pay the debts and funeral expen.ses. of the deceased, and pay estate duty if estate duty is payable.; (b) to, effect distribution o,f the estate in accordance with the rights of the persons interested iin the estate under this, Act; (c) when required to do so• by the c.ourt,, eil.ther on the application of an interested party or· on its own moti.on- (i) to produce on oath in court the fuU inventory of the estate. of the deceased; and (ii) to render to the court an account of the administration of the estate. (2) Where an administrator considers that a sale of any of the property forming part of the estate of a d.eceased person. is necessary or desirable in order to carry out his dutiles. the: administrator may. with the authority of the Court, s.en the prope.rty in such manner as appears to him Uke~ly to secure J25 r,eceipt of the best p:rice available for the pro,perty. [Emphasis added! 46. And section 24 reads as :follows: 1,t Subject ·to any limitations and e~c,eptions contained in a grant " 1( of fotters of administratio,n tbe ,grant entitles the administrator to all rights belonging to the deceased as if the administration had been grant,ed at the mo:ment after his death except that letters of administration shall not ren,d,er valid any intermediate acts of the ad·ministrator tending to the diminution or damage of an intestate's estate. . (2) Subject t,o subsectio:n flJ, letters of administration shall have effect over the whole of the ,estate ,of the deceased throughout Zambia and shaH- ,('a) be conclusive against aU debtors of the deceased and all persons holding any :property of the deceased; (b) affo,rd full ind·emnity to aU debtor,s paying their debts, and all persons delivering up tlhat prop,erty to the administrator." 4 7. The import of these sections is that the person who assumes control over an estate of a deceased person who dies intestate is an administrator. It is this person, and this person alone, who has the power to effect the sale of property forming part of an estate (upon obtaining the authority of the court) and to distribute any proceeds from such sale in accordance with the rights of the persons interested in the estate. In addition, an administrator has no powers or rights until the actual grant of letters of J26 administration and cannot, therefore, perform any functions until he/ she becomes such administrator. 48. The appellant submits, however, that section 38 of the Intestate Succession Act makes provision for an interested! party to apply to court for the sale of an asset for the benefit of the benefidaries. This section states that: "A court may, on application by a receiver' of pro,perty appoiinted under section thirty-seven or any person interested in the estate, order the sale of the whole or any part of the property, if iit appears to the court that the sale will be beneficial to th.e estate. ." 49. We note that whilst section 38 of the Intestate Succession Act allows for any interested person to apply to the court for the sale of property forming part of an estate if it appears to the court that the sale will be beneficial to the estate, the provision does not grant any power to such person to effect the actua] sale o.f the property. 50. Therefore, the 1st respondent, having not been granted with any letters of administration had no capacity to seH the property in question. In the circumstances, the appellant cannot then claim to be a bonafide purchaser, as she was aware at the time she purchased the property, that the deceased was the legal owner of the same and that there was no administrator for his estate. This J27 is evident from the appellant's supplementary affidavit in support of originating summons where she stated at paragraphs 5 to 8 as follows: "5) That Mirriam Chanda informs me and l beUeve that the said house was the matrimonial home left behind fo,r he:r and the children of [her] late husband Emmanu.el Makung,u. 6) That she further informed me that upon his de:miis,e the o:nly beneficiaries of the property were herself as tb.e deceased's widow, and the deceased's 2 minor children. 7) That Mirriam did receive the full purchase p,rice· for the property on 7th October 2006. 8) That at the time there was no administrator for the estate of the late Emmanuel Makungu." [Emphasis added} 51. Further, at paragraph 7 of her affidavit in reply to the 2nd respondent's affidavit in opposition, the appellant stated: "7. That there was no administrator of the es,tate of th.e, late, Ernest Makungu at the time I purchased the property and as such I purchased it from the deceased's widow who at the tim.e was living and controlling the use of that p,roperty on h.er behalf and on behalf of the deceased's minor child. . " [Emphasis added] 52. In the absence of authority by the 1st respondent to sen the property and there being no evidence that the appellant was a bonafide purchaser, we agree with the court below that the l st respondent could not have passed good tit]e to the appellant. This J28 ground, therefore, fails. 53. We now turn to ground one. The appellant's gnevance 1n this ground is that the court below erred in ordering the appellant to surrender possession of the disputed property to the beneficiaries of the estate of the deceased when there was evidence before it that the beneficiaries received the proceeds of sa]e in respect of the property. 54. Given the position we have taken in ground one, we reiterate that the sale of the property by the 1st respondent to the appellant was irregular for want of authority on the part of the 1st respondent as the Local Court order upon which the sale was effected was inva]id and she was not the duly appointed administratrix of the estate of the deceased but merely a beneficiary. Consequently, the court below was on firm ground in ordering the appellant to surrender possession of the property to the beneficiaries of the estate of the deceased. The fact that the beneficiaries received the proceeds of the sale does not negate the irregularity of the sale transaction. In any event, the court below did order that the purchase price be paid back to the appellant by the 1st respondent. We endorse that decision. As such, the appellant will not lose out completely from J29 • the reversal of the transaction. Ground one, accordingly, has no merit. 55. Turning to ground three, the appellant alleges error on the part of the court below in concluding that a caveat was subsisting at the time of the sale without resolving the conflicting documentary evidence adduced by the parties regarding the date on which the caveat was entered. 56. ·we have perused the record and we agree with the appellant's argument that there were two conflicting caveats filed by the parties in the court below. The 1st respondent produced a caveat dated 22nd December 2006 which was after the sale, whereas the 2nd respondent produced one dated 22nd September 2006 which is before the sale. The contention by the appellant is that the court below erred by not ordering the removal of the caveat placed on the property because it should have made a finding as to which of the two caveats was the operative one. 57. In our view, there was insufficient evidence adduced before the court below for it to have made such a finding. The onus was on the parties, particularly the appellant, to prove that the caveat which supported her case was valid. For instance, the appellant J30 • could have produced a print out of the lands register in respect of the property or she could have called a witness from the ministry of lands to clarify as to which of the two caveats was genuine. Having failed to do so, she cannot now be heard to say that the court below did not resolve the conflicting caveats before it. 58. Regardless of when the caveat was placed, our view is that the appellant was not a bonafide purchaser as we have indicated in paragraph 50 above. The trial court, therefore, cannot be faulted for not ordering the removal of the caveat. For these reasons, the third ground of appeal also fails. Conclusion 59. In the final analysis, we conclude that this appeal has no merit. It is accordingly dismissed with costs which shall be taxed in default of agreement. 60. For the avoidance of doubt, we re-affirm the lower court's order that the 1st Respondent pays back the purchase price of K28,000.00 (rebased) to the appellant. We also endorsed the trial magistrate's order that the property should not be sold but continue to be on rent. The rentals must be paid to the 1st respondent who will in turn pay part of it to the 2nd respondent for J31 • o: the ~r..:.~;::-: Ernest Makungu Jr. who is under her custody. The : ~: =-=spondent will continue to have a life interest in the property •.;:hich shall subsist until she remarries. ~ _.,,,., ~ E. C. Muyovwe SUPREME COURT JUDGE MJ'.k E. M. ~ u SUPREME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE