IN THE SUPREME COURT OF ZAMBIA Appeal No.

11/2019
HOLDEN AT LUSAKA SCZ/8/70/2016 (Civil

Jurisdiction)

BETWEEN:

BRENDA

MUZYAMBAAPPELLANT
AND
MARTHA MUZYAMBA SINABBOMBA & 21 OTHERS RESPONDENTS
Coram: Wood, Kaoma and Mutuna, JJS
On 11 th August, 2020 and 4th September, 2020

For the Appellant: Mr. O. Sitimela of Frazer and Associates

For the 18th , 19th and 20th Respondents: Mr. E.M. Mukuka of
E.M. Mukuka and Company

JUDGMENT
Kaoma, JS, delivered the Judgment of the Court.
Cases referred to:
1. GL Baker Limited v Medway Building and Supplies Limited
(1958) 2 All ER 532
2. Stanbic Bank Zambia Limited v Bentley Kumalo & 29 others
Appeal No. 182 of 2014
3. Seong San Company Limited v Attorney General, Drug
Enforcement Commission (2010) 1 Z.R. 57
4. Mirriam Mbolela v Adam Bota — SCZ Judgment No. 26 of
2017
5. Base Property Development Limited v Neggie Nachilima
Chileshe (As Administratrix of the Estate of the Late Michael
Dereck Chileshe) and others — Appeal No. 211 of 2015
6. Investrust Bank Plc v Hearnes Mining and Trading Limited &
others — Appeal No. 137 of 2015
Legislation and Works referred to:
 1. Limitation Act, 1939, sections 19(1), 20 and 31
2. Intestate Succession Act, Cap 59, sections 14, 19, 24 and
35
3. Trustees Act, 1925
4. Halsbury's Laws of England, Volume 27, paragraph 317 and
Volume 68, 5th Edition, Lexis Nexis, 2016, paragraphs 1138
and 1139.

1. INTRODUCTION

1.1 This is an appeal from a decision of Sharpe-Phiri, J dated 6th November, 2015,

whereby she dismissed the appellant's action for being statute barred on

ground that it exceeded the twelve-year limitation period prescribed by

section 20 of the Limitation Act, 1939, following a preliminary issue raised by

the present 18th 19th and 20th respondents.

1.2 The question, which we have to determine, in this

appeal, is whether the respondents could rely on

section 20 of the Limitation Act, 1939 to defeat the

appellant's action in view of the provisions of section

19(1) of the said Act.

2. BACKGROUND FACTS

2.1 The facts as revealed by the pleadings are long and alarming but for

our purposes, we shall give only a short synopsis. The appellant, as

plaintiff, brought the action, in which this appeal arises, against the
th
respondents, as defendants, by a writ of summons issued on 20
th
June, 2013 that she last amended on 6 May, 2015.

2.2 Her claim was for an order for possession of farms Nos. 3974 and

3974A, Kabwe and an injunction to restrain the respondents whether

 by themselves, servants or agents from carrying out farming

activities, erecting structures, cutting down trees or interfering with

her quite enjoyment of the farms and/or disposing of any part

thereof pending trial.

2.3 She also sought a declaration that the subdivision carried out by

John Muzyamba was illegal and must be declared null and void; loss

of animals, farm equipment; and profits from the animal income;

special and general damages; loss of mesne profits; costs; and any

other relief the court may deem fit.

2.4 The conflict in this case relates to assets that formed part of the
th
estate of one Jacob Muzyamba who died intestate on 1 I August,

1989, leaving behind a wife and seven children, including Fleefort

Muzyamba and the appellant. He also left behind land in Kabwe

District known as Farm No. 3974, in extent 987.1754 hectares and

animals and farm equipment. The appellant was one of the

beneficiaries of the estate.

2.5 The statement of claim disclosed that the Ministry of Lands

and Natural Resources allocated the subject farm to Jacob

Muzyamba in 1986. At the time, the latter lived with

John Muzyamba his young brother and in 1987

Martha Muzyamba Sinabbomba (alias Malita

st
Sinabbomba), the 1 respondent, who was their

sister migrated from Batoka in Southern Province to

live with them at the farm. The two lived on the farm

with Jacob Muzyamba as his dependants.

2.6 Following the death of Jacob Muzyamba, on 10
th
October, 1989, John Muzyamba was

appointed by the Local Court as administrator

of his estate. The appellant alleged in

paragraph 6 of the statement of claim that,

without the consent of the beneficiaries, John

Muzyamba, as administrator of the deceased's

estate fraudulently changed ownership of the

subject farm into his name. She gave

particulars of the fraud in sub-paragraphs (a)

and (b).

2.7 The appellant also alleged that the biological

children were the rightful heirs to the

deceased's estate, which comprised land,

equipment and animals while John Muzyamba

and the 1 st respondent as dependants, had

minority interest under the Intestate

Succession Act.

2.8 The appellant further alleged illegalities in the application for the

subdivision and sale of the subdivision to Steven Mutinta by the

administrator; in the sale of portions of the farm to other people by

 st th
the administrator, Steven Mutinta, the 1 respondent and the 20
st
respondent; and in the subletting of parts of the farm by the 1

respondent.

2.9 The appellant also alleged that the administrator and the 1 st

respondent sold all the farming equipment and cattle which formed

part of the estate of the deceased and failed to account for these

assets to the beneficiaries.

2.10 The respondents in their defences denied knowledge of any fraud

committed by the administrator. The respondents represented by

Kabesha & Company averred that the appellant was part of a family
th
meeting of 13 February, 2011, which apportioned land to family

members, including the 1 st respondent.

2.11 On her part, the 1 st respondent asserted that she could not account
for what the administrator sold; that she only sold cattle which were

paid for her and her sister's dowry; and that the administrator sold

some land to pay for a loan obtained by the deceased.

2.12 The first group of respondents also averred that they were legally
occupying portions of the farms as some were family

16

members who were entitled to occupy the land, others

legally bought the land while others were legally

renting.
th th
2.13 The 18 19 and 20th respondents asserted in

paragraph 6 of their defence that the

particulars of fraud referred to in paragraph 6

 of the statement of claim even if true could not

be attributed to Steven Mutinta who was an

innocent purchaser for value. That he bought a

portion of the farm after John Muzyamba

showed him a title deed in his name, which the

Lands and Deeds Registry confirmed.

2.14 The 20 th respondent also denied any illegalities

in the sale of parts of the farm to other persons

or participation in the plunder of the subject

farm or being in illegal occupation of the land.

She asserted that her father's estate was

legally in occupation of the portion of the land

sold to him.

2.15 She also counter-claimed for damages for false imprisonment

arising from detention by the police following a report made by the

appellant and for an order that the appellant subdivides the farm and

marks off the respondents' portions. The appellant denied the

counterclaim.

J7

2.16 After the close of pleadings, the matter was set down

for trial but before trial could commence, on 21 st July,

2015 counsel for the 18th 19 th

and 20 th
respondents
 filed a notice of intention to raise preliminary issues.

The question that has brought about this appeal was

whether it was lawful to commence an action when

the cause of action relating thereto arose over 12

years earlier.

2.17 The argument advanced by counsel for the three

respondents was that the pleadings did not disclose any

unlawful acts committed by the purchaser who was an

innocent purchaser for value without notice of any

mischief especially that the Lands Registry did not

reflect any covenants or changes on the records. Hence,

no fraud could be attributed to the purchaser and his

survivors and they were entitled to the benefit of the law.

2.18 It was also the respondents' argument that the cause of

th
action arose on 11 July, 1992 (when John Muzyamba
sold part of the farm to Steven Mutinta) while the
th
application to subdivide was made on 16 July, 1992.
Therefore, the period exceeded the twelve-year limitation
period provided in section 20 of the Limitation Act, 1939
2.19 The appellant agreed that under section 20, an action must be brought to court

within twelve years, but argued that the issue to determine was when the

twelve-year period started to run. It was said that the period ought to have

started running from 2011, when the appellant obtained the second order of
 appointment as administratrix and that at the time her father died, she was a

minor, aged 14 years.

2.20 The appellant also argued that the administrator did not own the land and the

sale was an abuse of the provisions of sections 14 and 35 of the Intestate

Succession Act, Cap

59 of the Laws of Zambia. Further, in terms of section

19(2) of the said Act, an administrator could only sell

property with the authority of the court, which

authority the former administrator did not have. That

he sold the land fraudulently to the detriment of the

beneficiaries of the estate; and so, the sale ought to

be declared null and void.

3 DETERMINATION OF THE PRELIMINARY ISSUE

3.1 In determining whether the action was statute barred,

the learned judge was alive to the fact that sections

19 and 20 of the Limitation Act 1939, deal specifically

with actions in
respect of personal estates of deceased persons. She quoted section 20 which
provides:

"Subject to the provisions of subsection (1) of the

last foregoing section, no action in respect of any
claim to the personal estate of a deceased person
or to any share or interest in such estate, whether
 under a will or an intestacy, shall be brought after
the expiration of twelve years, from the date when
the right to receive the share or interest accrued..."
(Underlining ours for emphasis only)
3.2 The judge stated that under this section, the period of
limitation of actions in respect of claims to the

personal estate of a deceased person must be

brought to court within a period of twelve years from

the date when the right to receive the share of the

estate accrued.

3.3 Next, the learned judge considered when the cause of

action or the right to receive a share of the estate

accrued to the appellant. She considered the sale

transaction between the former administrator and

th
Steven Mutinta of 1 I July, 1992 and the note titled

"To whom it may concern" written by the

administrator on 16th July, 1992 and opined that the

appellant's right to receive her share of the estate

accrued soon after the date of the sale of the property,

in 1992.

3.4 The judge applied section 20 and found that the twelve-year period within

which the appellant could bring an action in

JIO
 respect of any claim to the personal estate of the

deceased or to any share or interest in such estate

lapsed in 2004.

3.5 The learned judge further considered the appellant's argument that she only

obtained letters of administration in January 2001 and concluded that the

appellant must have or ought to have become aware soon thereafter of the

assets of the estate of the deceased and the sale of the property.

3.6 The judge also held that if the appellant was unhappy

with the actions of the former administrator, as a

beneficiary of the estate, she was at liberty to

commence legal action against him and the

respondents but she only did so after 21 years. She

concluded that the matter was statute barred and

dismissed it with costs.

4 APPEAL TO THIS COURT AND THE PARTIES'

ARGUMENTS
4.1 Disgruntled by the judgment on assessment, the appellant brought this appeal

on two grounds. In ground one, she alleged that the judge erred in both law

and fact by failing to satisfy herself with the requirements of section 19(1) of

the Limitation Act prior to enforcing the provisions of section 20 seeing that

section 20 relied upon by the judge is subject to the provisions of section 19(1).
Jil
4.2 The appellant's plain submission in support of this
ground was that, the learned judge correctly interpreted
section 20 of the Limitation Act but erred when she did
not satisfy herself with the provisions of section 19(1)
before she applied the provisions of section 20.

4.3 In ground two, the appellant faulted the learned judge for dismissing the action

for being statute barred under the Limitation Act when the Act did not apply to

this matter as per the provisions of section 19(1).

4.4 The core argument by counsel for the appellant was that since section 20 is

subject to section 19(1), the judge should not have dismissed the action due to

the twelve-year limitation period, as that period did not apply.

4.5 In the course of his argument, counsel for the appellant referred us to some

case authorities. The first was G L Baker Limited v Medway Building and

Supplies Limitedl In that case, Danckwerts, J held that it seemed no limitation

period was applicable as the origin of the proceedings against M. , Ltd. was T.

's fraudulent payments and the action was in respect of a fraud or fraudulent

J12

breach of trust to which the trustee was party or privy

within s.19(1)(a) of the Limitation Act, 1939.

4.6 The second case was Stanbic Bank Zambia Limited v

Bentley Kumalo & 29 others2 where we affirmed that

section 19(1)(a) of the Limitation Act, 1939 relates to

 an action in respect of any fraud or fraudulent breach

of trust to which the trustee was a party or privy.

4.7 The third was Seong San Company Limited v

Attorney
General and Drug Enforcement Commission3 , where the High Court held that

constructive trust attaches by law to a specific property which is neither

expressly subject to any trust nor subject to any trust but which is held by a

person in circumstances where it would be inequitable to allow him to assert a

full beneficial ownership of the property.

4.8 To show that the matter fell within section 19(1),

counsel referred to paragraph 6 of the statement of

claim, which alleged fraud and paragraphs 9 to 12 that

alleged illegal sale of portions of the farm to various

respondents. He also quoted section 31 of the

Limitation Act, 1939 for the definition of 'trust' and

'trustee' and paragraph 1140 of

Volume 68, 5th edition of Halsbury's Laws of England

 J13
(actually note 2 at para. 1138), which states that the expressions extend to

implied and constructive trusts.

4.9 He argued that since John Muzyamba was

administrator of

the deceased's estate, there was a constructive trust

created
specifically over the property in issue. He also referred to
paragraph 1141 of the same Halsbury's Laws of England
(actually para. 1139) and G L Baker Limited v Medway
l
Building and Supplies Limited , where he said the
phrase "fraud or fraudulent breach of trust', is defined
as follows:
"For the purpose of the provision excluding the
operation of limitation period in the case of claims
by beneficiaries in respect of fraud or fraudulent
breaches of trust to which the trustee was party or
privy to, it is necessary that the fraud in question
amounts to dishonesty. The provision does not in
terms refer to claims against trustees and, it seems,
will apply to claims against innocent third parties
into whose hands trust property has come as a
result of fraud to which the trustee was party or
privy."
4.10 He concluded that because the action was based on the fraudulent conduct of

the administrator, it was excluded

from the operation of the limitation period under section 20 and that the judge

erred in dismissing the action on ground

that it was commenced after the expiration of twelve

 years.
4.11 Counsel for the 18 th , 19
th th
and 20 respondents asserted in response to ground

one that the learned judge did not err when she concluded that section 19(1) of

the Limitation Act

J 14

did not apply to this matter. He argued that the respondents had no

relationship with the appellant or her father whether as trustees or

administrators and that Steven Mutinta was a bona fide purchaser for

value without notice.

4.12 Counsel also submitted that while counsel for the appellant had tried to show

that the matter falls under section 19 and to explain the appellant's

relationship with her father and uncle, he had not referred to any document,

such as a certificate of title in the deceased's name or an order of

appointment of the administrator of his estate.

4.13 Counsel agreed that the appellant alleged fraud and fraudulent

transactions, the most outstanding being in paragraph 6 of the

statement of claim but contends that without any proof, the remain

mere allegations. That when

Steven Mutinta bought a portion of the farm, entries at the Ministry of

Lands did not show any document in the deceased's name for the

matter to fall under section 19(1).

4.14 Counsel questioned what else Steven Mutinta should have done in

addition to checking the land register before buying the land. He

submitted that G L Baker Limited v Medway Building and Supplies

Limited l does not apply because in

 J15
that case, actual evidence of the fraud was given to

the court while in this matter; only allegations are

made in the pleadings without documents to support

them.

4.15 Concerning Stanbic Bank Zambia Limited v Bentley

Kumalo & 29 others2 , he submitted that the case is

actually favourable to the respondents. Hence, it was

inconceivable that the appellant brought an action

against them, when they were not party or privy to

anything other than being beneficiaries of an innocent

purchaser for value.

4.16 Counsel submitted that the absence of any evidence to show that the deceased

owned the subject farm and that the seller was an administrator prompted

them to ask the court to terminate the action; and that in the absence of

documents it could not be said that John Muzyamba was a trustee or

administrator and that the appellant was a beneficiary of land sold over 20

years ago.

4.17 In his oral responses to the questions put to him by the Court, counsel

insisted that Steven Mutinta was not part of the fraud and that the land

register showed that John Muzyamba was the owner of the land.

Counsel invited us to dismiss the appeal with costs.

 J16

5 DECISION OF THIS COURT

5.1 We have considered the record of appeal and the written and oral

arguments by counsel on both sides. As we have already said, the

question in this case is whether the learned judge was right to dismiss

the appellant's action for being statute barred, based on section 20 of

the

Limitation Act, 1939

5.2 The appellant's first argument was that the judge

ought to have satisfied herself with the requirements

of section 19(1) before enforcing the provisions of

th th
section 20. The position of the 18 19 and 20th

respondents was that the judge did not err when she

concluded that section 19(1) did not apply.

5.3 The wording of section 20 of the Limitation Act

(quoted in paragraph 3. 1), which the learned judge

relied upon to dismiss the action, is such that, at first

sight at least, the appellant's argument is attractive

because the section is 'subject to' the provisions of

section 19(1), which provides:

"19 (1). No period of limitation prescribed by this Act

shall apply_ to an action by a beneficiary under a
trust, being an action —
(a) in respect of any fraud or fraudulent breach
 J17

of trust to which the trustee was a party or

privy; or
(b) to recover from the trustee trust property or
the proceeds thereof in the possession of
the trustee, or previously received by the
trustee and converted to his use."
(Underlining for emphasis)
5.4 We hasten to mention that, the learned judge did not,

as claimed by counsel for the respondents conclude

that section 19(1) did not apply, apart from

recognising that sections 19 and 20 deal specifically

with actions in respect of personal estates of

deceased persons. It is plain, that the learned judge

did not apply her mind to the provisions of section

19(1) before enforcing the provisions of section 20.

5.5 The appellant's second argument is, to our minds, the

most significant and perhaps the most difficult. It is

whether the Limitation Act at all applied given the

provisions of section 19(1) and the fact that the

action was based on the alleged fraudulent conduct

of the administrator. If section 19(1) applied, then the

respondents could not rely on any period of limitation

at all to defeat the appellant's action.

 J18

5.6 We acknowledge that the aim of a statute of

limitation is to prevent the public from being

oppressed by stale claims, to protect settled

interests from being disturbed and to bring certainty

and finality to disputes. While these are laudable

aims, they can conflict with the need to do justice in

individual cases where an otherwise unmeritorious

defendant can play the limitation trump card and escape

liability.

5.7 We also realise that the argument the appellant is

making now that the Act does not at all apply was not

the viewpoint advanced in the High Court; the

argument had centred on when the time started to

run. However, the appellant has raised an important

point of law based on a statutory provision, which is

applicable to our jurisdiction and it trite that there can

be no estoppel against a statute.

5.8 We agree with counsel for the appellant that section

19 of the Limitation Act, 1939 simplifies the law of

limitation of actions in respect of trust property and

that all constructive trustees are now subject to the

 J19

same restrictions when claiming the protection of the

statute as express trustees.

5.9 We are also aware that by section 20 of the

Limitation Act, 1939 personal representatives are

subjected to the same restrictions in claiming the

protection of the statute, which formerly applied to

express trustees and now under section 19(1) and

section 31(1), to all trustees. We are also alive to the

fact that actions claiming personal estate are only

barred after 12 years.

5.10 In the present appeal, the 18 th

19
th th
and 20 respondents contended that there

were no documents at the Ministry of Lands at the time of the sale of the land

to Steven Mutinta to show that the deceased owned the subject farm or

evidence that the seller was an administrator. Therefore, the appellant could

not say that John Muzyamba was a trustee and administrator or that she was

a beneficiary.

5.11 We are satisfied from the pleadings and the documents on record, as the
learned judge found, that the Ministry of Lands allocated the subject farm to

the deceased in 1986 and at the time of his death, the land was not yet on title.

It is also clear that after the deceased's death, the local court appointed John

Muzyamba as administrator of his estate. Thereafter, he applied to the

Commissioner of Lands to have the lease for the subject farm prepared in his

name.
 J20

5.12 It seems to us that approval was granted, a lease

th
was executed in John Muzyamba's name on 15 July,

1992 and on the same date, a certificate of title was

issued also in his name for the unexpired residue of a

term of 99 years from the 1 st day of October, 1985.

5.13 As the learned judge found the former administrator and

Steven Mutinta executed the contract of sale on 11th

th
July, 1992. On 16 July, 1992, he wrote the note "To
whom it may concern", declaring that as owner of the
farm he wished to sell a subdivision of 355 hectares
to S. Mutinta because the children of the deceased,
Jacob Muzyamba should get their share as an
inheritance from the property.

5.14 On the same date, John Muzyamba applied to the Natural Resources Board,

under the Town and Country Planning Act for permission to subdivide

agricultural land for agricultural purposes and to the Commissioner of Lands

for consent to subdivide, sell, transfer and assign part of the subject farm.

The application did not mention any animals, crops or farming equipment on

the land.

th
5.15 A letter to the Commissioner of Lands dated 28
April, 1993 shows that in actual fact John Muzyamba
 J21

intended to assign the whole farm to Steven Mutinta

and had requested that the earlier application for
subdivision be processed as an application for
assignment of the whole farm. The record also
rd
shows that as at 23 February, 1993, John
Muzyamba

had mortgaged the whole farm to Lima Bank to secure a

loan of

5.16 The record further shows that Steven Mutinta sold portions of the 355

th
hectares to some of the respondents who also sold to others. On 6 July,

2000 Steven Mutinta died and on 25th July, 2000 his daughter, Bridget Mutinta,
th
the 20 respondent was appointed administratrix of his estate, after which,

she also sold part of the land to various other people.

5.17 Because of the controversy surrounding the sale of

the land, the appellant reported the matter to the

Victim Support Unit of the Zambia Police and on 5th

January, 2001 she also obtained an order of

appointment as administratrix of the estate of her

late father. However, it is not clear whether the

appointment of John Muzyamba was revoked or

whether the appellant took over the administration of

 J22

the estate.

5.18 On 25th June, 2009, John Muzyamba also died and on

th st
9 July, 2009 the 1 respondent was appointed

administratrix of his estate. On 3 rd November, 2009 a

certificate of title was issued in John Muzyamba's

name for the subdivision of 355 hectares. Later on 27

th st
April, 2011 the 1 respondent released the 355

hectares to the 20th respondent.

5.19 On 9 th
June, 2011 the appellant also obtained an order of appointment from

the local court as administratrix of the estate of John Muzyamba. This is

what she refers to as the second order of appointment as administratrix.

5.20 Subsequently, on 11 th March, 2013 the appellant and

Fleefort Muzyamba obtained two certificates of title in their joint names, one

for the subdivision of 355.2601 hectares and the other for the remaining extent

631.9153 hectares of the subject farm. Armed with the certificates of title the
th
appellant commenced the legal action on 28 June, 2013 as registered owner

of the subject farms.

5.21 From what we have explained above, there can be no

doubt whatsoever that the subject farm was

allocated to the deceased, Jacob Muzyamba or that

the late John Muzyamba was appointed

 J23

administrator of the deceased's estate. There can be

no doubt also that John Muzyamba acquired title to

the subject farm in his capacity as administrator of

the deceased's estate or that the appellant was one

of the beneficiaries of the estate of the deceased.

5.22 Now, we wish to make it very clear at this point, that

since the deceased died intestate, on his
appointment as
administrator of the deceased's estate, John Muzyamba assumed the duties

and powers of an administrator under section 19 of the Intestate Succession

Act, Cap 59, which had come into effect on 19 th May, 1989.

5.23 It was the administrator's responsibility, primarily, to

take control of all assets comprising the estate, to

protect and secure the assets, including real estate

and any business interests as soon as possible. He

was also required to pay the debts and funeral

expenses of the deceased and estate duty, if payable

and eventually to distribute the estate property in

accordance with the rights of the beneficiaries or

persons interested in the estate under the Act.

5.24 Section 19(2) of the Intestate Succession Act

 J24

proscribes the sale of any asset belonging to the

estate of a deceased person, without the authority of

the court. We have affirmed this provision in a

number of cases such as Mirriam

Mbolela v Adam Bota4 and Base Property

Development Limited v Neggie Nachilima Chileshe

(administratrix of the estate of the late Derreck

Chileshe) and two others 5

5.25 We held in those cases that section 19(2) was intended to prevent

administrators of estates of deceased persons from

abusing their fiduciary responsibilities by selling

property forming part of such estate, without due

regard to the interests of the beneficiaries, and that

prior authority of the court is a sine qua non of a valid

sale of such property.

5.26 In Mirriam Mbolela v Adam Bota4 we also pointed out that the administrator's
powers and duties are limited to those required to manage and preserve the

deceased's assets during the period of administration. He or she has no duty

or authority to carry on a business owned by the deceased.

5.27 Therefore, if the appellant were to prove, at the trial

of the action, that the administrator did not obtain the

 J25

authority of the Court before selling any portion of

the subject farm or disposing off any other assets of

the intestate, the transactions would be an absolute

nullity. Counsel for the appellant had made this

fundamental point in the lower court but the learned

judge, did not reflect on it.

5.28 We also wish to restate that an administrator serves as a fiduciary of the

beneficiaries of the estate. He or she has the duties of loyalty, honesty, and

good faith, including the duty not to self-deal, that is to say, taking advantage

of his or her

position in a transaction and acting in his or her own

interest rather than in the interests of the
beneficiaries.

5.29 If the administrator has not acted reasonably and in the best interests of the
estate and beneficiaries, he or she could be held personally liable for any

losses resulting from actions taken in bad faith, for mismanagement, and

undue mistakes made in the administration of the deceased's estate or for

breach of fiduciary duty.

5.30 It is also important to state that there are two types

of ownership of land: the legal ownership and
beneficial ownership. The legal owner is the person
who owns the legal title of the land or the person
 J26

registered at the Land Registry on the title deeds. The

legal interest gives the owner a right of control over
the property; they can decide to sell or transfer the
property. However, the registered owner will not
necessarily be the same as the beneficial owner.

5.31 The beneficial owner is the person entitled to the

benefits or financial value of the property, regardless
of the title entries at the Land Registry. Beneficial
interest gives a right, for example, to the income from
the property or a share in it,
and to the proceeds of sale of the property or part of

the proceeds.

5.32 We should mention that under section 24 of the

Intestate Succession Act, 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

administration had been granted at the moment of

his death. However, this does not give the

administrator the right to convert the property to his

 J27

own use or to deal with the property in a manner

detrimental to the rights or interests of the

beneficiaries under the Act.

5.33 Furthermore, as argued by counsel for the appellant,

there was a constructive trust created in this case

given that John Muzyamba acquired title to the

subject farm in his capacity as administrator. It is

quite clear that a constructive trust arises by

operation of law whenever the circumstances are

such that it would be unconscionable for the owner

of the legal title to assert his own beneficial interest

and deny the beneficial interest of another person in

the asset. We confirm the High Court decision in the

Seong San

Company Limited3 case.

5.34 It is also clear to us that a constructive trust arises

where one holds an asset that he has obtained by

means of fraud or dishonesty, or where the trustee

has a beneficial interest in the trust property and to

the duties incident to the office of a personal

 J28

representative. Paragraph 1148 of Halsbury's Laws

of England (supra) confirms that for the purpose of

the Limitation Act, personal representatives are

trustees.

5.35 Under a trust, the legal owner, whose name is

registered in the Lands Register, equally holds the
beneficial interest in the property 'on trust' for the
beneficial owner, who holds the beneficial interest in
the trust property and is compelled in equity to
administer the trust property for the benefit of the
beneficiaries and has strict fiduciary obligations.
5.36 In the current case, as we have said, the respondents

acknowledged that the appellant pleaded fraud on

the part of the administrator and gave particulars of

the fraud and other alleged illegalities in the sale

transactions relating to the subject farm. However,

they averred that the fraud could not be attributed to

them or to Steven Mutinta who was an innocent

purchaser for value without notice.

5.37 We appreciate that beneficial owners are not registered

on the title deeds in the Lands Register, and that,
 J29

therefore, it is difficult for anyone who is neither a legal

owner nor a beneficial owner to find out who the
beneficial owners might be and what benefits they have.
Nonetheless, only a bona fide purchaser for value
without notice may defeat a beneficial or equitable
interest in land.

5.38 In Investrust Bank Plc v Hearnes Mining and Trading Limited and

others6 , we held that the appellant, in conducting due diligence, should

have been alive to the limits placed upon the powers of an

administrator of an estate in Zambia and should not have proceeded

on its erroneous understanding that the 2nd respondent, as

administrator, had absolute power to deal with the properties as she

deemed fit.

5.39 We admit that in this case, apart from the allegation

of fraud on the part of the administrator, no

th th
allegation was made against the 18 19 and 20th

respondents that they had knowledge of the fraud.

However, the learned judge was dealing with a

defence under section 20 of the Limitation

Act, which as we have said, is subject to the provisions of section 19, and the appellant

had pleaded fraud. Therefore, the judge had a duty to consider the plea of fraud, and to

determine whether section 19(1) applied in light of the allegations of fraud and

fraudulent breach of trust.

 J30

5.40 From the documents on record, it seems that the

administrator may have breached the duty not to self-

deal. He sold the land to Steven Mutinta, allegedly

without authority of the court, he applied for the

assignment of the entire farm and mortgaged the

farm. The appellant also alleged that he illegally

disposed of animals and farm equipment belonging

to the estate of the deceased.

5.41 There are also allegations of illegality and complicity on the part of the
st
1 respondent, who laten became the administratrix of the estate of

the late John Muzyamba. She surrendered the 355 hectares to the 20 th

respondent, she admitted to selling some cattle and letting portions of

the subject farm to some of the respondents.

5.42 As explained in the G L Baker Limited l case, section

19(1)(a) of the Limitation Act does not in terms refer

to an action against a trustee, or a trustee who has

been guilty of fraud; it also applies to a person who

was not the original trustee, but who has acquired

trust property, which was fraudulently made out of

the trust property.

5.43 Therefore, section 19(1) will apply to claims against

 J31

innocent third parties, into whose hands trust

property has come, because of fraud to which the

trustee was party or privy. We affirmed in Stanbic

Bank Zambia Limited v Bentley Kumalo & 29 others2 ,

that section 19(I)(a) of the Limitation Act relates to

an action in respect of any fraud or fraudulent breach

of trust to which the trustee was a party or privy.

5.44 In that case, we found that section 19(1) did not apply and that the action was
statute barred because the appellant was not a trustee and the respondents

did not plead fraud. In contrast, in the present case, there was a constructive

trust and the appellant had pleaded fraud.

5.45 The 18th , 19th and 20th respondents also argued that

there was no evidence or proof in the statement of

claim of the allegations of fraud and that for that

reason; G L Baker Limitedl is distinguishable. We have

held in various cases, including Stanbic Bank Zambia

Limited v Bentley Kumalo & 29 others2 , that where

fraud is in issue in the proceedings, a party wishing to

rely on it must ensure that it is clearly and distinctly

alleged and at the trial of the cause, equally lead

evidence, so that the allegation is clearly and

 J32

distinctly proved.

5.46 The only way the appellant could prove the allegations of fraud and illegalities
in the sale transactions relating to the subject farm and the disposal of other

assets forming part of the estate of the deceased was to lead evidence at the

trial and not to assert evidence or prove the allegations in the pleadings as

suggested by the respondents.

5.47 As regards the respondents' argument that Steven Mutinta was a bona fide
purchaser for value without notice, the learned judge accepted that the

contract of sale between the former administrator and Steven Mutinta was
th
executed on 11 July, 1992. This was five days before the certificate of title

was issued in the administrator's name. That being the case, the lease and

certificate of title for the subject farm could not have been in the

administrator's name at the time of contract as claimed by the respondents.

5.48 Moreover, as the judge further found, following the sale of the land to Steven

Mutinta, the former administrator

th th th
authored a letter, which was shown in the 18 19 and 20

respondents' bundle of documents, from which it was clear that the

purpose of the sale was to enable the beneficiaries of the estate

receive their share.

5.49 From the said letter, the judge concluded that the
appellant's right to receive her share of the estate

accrued soon after the date of the sale of the

property in 1992. However, it is not clear whether the

 J33

administrator consulted or informed the beneficiaries

about the sale of the land for us to be certain that she

was aware of the transaction.

5.50 It is also clear that the administrator who was selling

the land as the owner of the farm, by the said letter

put the buyer on notice that there were beneficial

interests involved, in that children of the late Jacob

Muzyamba ought to get their share as an inheritance

from the property. This might defeat the respondents'

plea that Steven Mutinta was an innocent purchaser

for value without notice.

5.51 We find and hold that the respondents could not rely on the Limitation Act to
defeat the appellant's action and that the learned judge erred when she

dismissed the action based on section 20 when section 19(1) excludes the

operation of any

limitation period in the case of a claim by a beneficiary in

respect of fraud or fraudulent breaches of trust to which

the trustee was party or privy.

5.52 As the learned judge said if the appellant was unhappy with the actions of the
former administrator, as a beneficiary of the estate, she was at liberty to

commence legal action against him and the respondents. For the reasons we

have given, her action was not stale.

 J34

6 CONCLUSION

6.1 In all, we allow this appeal and reverse the dismissal of

the action by the learned judge. Real justice in this

case resides in hearing the parties in full. We send the

matter back to the High Court for trial before a

different judge.
th th th
6.2 Costs of this appeal are for the appellant as against the 18 19 and 20

respondents to be taxed in default of agreement.

A.M. WOO

SUPREME COURT JUDGE

JUDGE