Esnart Jere (Sued in her capacity as an Attorney of Mukuka Kangwa) v Charity Njongolo (CAZ/08/330/2020; CAZ Appeal No. 203/2020) [2023] ZMCA 409 (14 March 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) CAZ Appeal No. 203/2020 CAZ/08/330/2020 BETWEEN: AND APPELLANT CHARITY NJONGOL RESPONDENT CORAM : Chashi, Chishimba and Siavwapa JJA On 23rd August, 2022 and 14t h March, 2023 For the Appellant : Mr. K. Mwale of Messrs. K. Mwale & Company For the Respondent : Mr. D, Banda of Messrs . JMP Associates JUDGMENT Chishimba JA, delivered the Judgment of the Court. CASES REFERRED TO: 1) Isaac Tantam eni C. Chali (Executor of the Will of the late Mwalla Mwa lla ) v Liseli M wala (Single woman) ( 1997) ZR 199 2) Stewart Scott (Sued as Executor of the Will of the late Andrija Vidmar) v Edwin Alois Bilal Vidmar SCZ No. 44 of 2018. 3) Attorney General v Marcus Achiume ( 1983) ZR 1 4) Hakainde Hichilema & Others v The Government of the Republic of Zambia SCZ Appeal No. 28 of 20 17 5) Folayinka Fobisaiye Oladipo Esan v Attorney General SCZ Appeal No. 96 of20 14 6) Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others (2005) Z. R. 138 -J2- 7) Vrint v Swain (1940) Ch. D. 920 8) Fenias Mafembi v Esther Sitali (2006) ZR 140 9) Rose Musond a (Suing as Depaenda nt of the E state of Stanislaus Chama ) v Administrator General (2009) ZR 313 10) Enesi Banda v Abigail Mwanza (2011) 3 ZR, 233 11) Ntombie Zibwele Siwale v The Registrar of La nd s and Deeds and Three Oth ers SCZ/ 8 /208 / 2012 12) Rosem ary Chibwe v Austin Chi bwe (2001) ZR 1 13) Pettitt v Pettitt (1970) A. C. 777 14) Gissing v Gissing (1 97 1) A. C.886 15) Dia m ond v Standard Bank of South Africa Limited (Executor ) a nd 4 Ot h er s (1965) ZR 6 1 LEGISLATION CITED: 1) The Wills a nd Administra tion of Testate Estates Act, Chapter 6 0 of th e Laws of Zambia. 2) The High Court Rules Chapter 27 of the Laws of Zambia 3) The Ru les of the Supreme Court of England, (White Book) 1999 Ed ition OTHER WORKS REFERRED TO: 1. Bryan A. Garner. (2009). Black 's Law Dictionary. 9 th edition. USA. West Publishing Co. p .784 1.0 INTRODUCTION 1.1 This appeal s eeks to reverse the judgment of Mrs. Justice G. C. Chawatama, dated 25 th August, 2020 in which she varied the will of Gerlson Jere, the testator. 2 .0 BACKGROUND 2.1 The respondent commenced an action against the a ppellant by way of writ of summons seeking the following reliefs: -J3- 1) An order setting aside the will for having made no provision for the respondent 2) An order setting aside the will for being made when the testator lacked capacity; 3) An order setting aside the will for being made under circumstances which suggest fraud; 4) Any other relief the cou rt may deem fit; 5) inte rest and costs. 3 .0 EVIDENCE ADDUCED IN THE COURT BELOW 3.1 At trial, PW 1, Charity Njongolo testified that she married the widowed testator in 2008. They lived together for ten years until his death on 31 s t October, 2018. Prior to the marriage, the testator requested and moved in with the respondent in order to cut out rent expenses. 3 .2 The marriage between the r espondent and the testator was contracted under Ngoni customary law, the testator having paid dowry in the sum of Kl,200=00 . 3.3 In April 2010, the testator fell ill, he h a d hypertension and suffered from epilepsy which resulted in him havin g seizures or convulsions from time to time until his death. According to the respondent, the testator r eceived both conventional and traditional treatment for his condition. Each time h e suffered a -J4- seizure, the testator would appear confused upon regaining consciousness. 3.4 On 25th January, 2015, the respondent's father died. Enroute to Mongu, whilst in Lusaka, the testator began showing signs of an imminent epileptic seizure. The respondent's husband remained in Lusaka and she proceeded to Mongu. 3.5 The respondent stated that when the testator died, she bought his casket using an insurance policy she had with Barclays Bank. During his burial, she was recognized as the widow and underwent the Ngoni traditional cleansing rituals performed upon the death of a spouse. 3.6 During a meeting held on 7 th December, 2018 to conclude the funeral rites, Mr. David J ere announced that the testator had left a will and proceeded to read it out from his phone. The respondent was surprised to learn that in the will, the testator had included property that she had acquired using her personal resources and had excluded her. These included a stove, LG home theatre , amplifier, four speakers, two big speakers, water dispenser and the pressure cooker which were all bequeathed to the children of the testator. -JS- 3. 7 Further, a house the couple had built on Plot No . 1755, Chilongozi Road, Petauke, while he lived in her house, was also given to the children in the will. 3.8 The respondent testified that the will was not genuine because it had errors on the spelling of the names of the testator; referred to property that was either acquired by herself or jointly with him; did not provide for her as his wife. That she was excluded from the will, despite having kept her husband in her house when they were building their house during their initial years in marriage. Further that the respondent had kept and nursed the husband during his sickness till his death. 3.9 She also observed that the will referred to a Farm No. 174, Musanzala Scheme, which she was not aware of as the only farm known to her was in North Nyampande Scheme. 3.10 PW2 , Chidzero Ndhlovu and PW4, Ngambo Kaliocha confirmed that the testator married the respondent after the death of his wife, Matildah Chipunza Jere. PW3, Ernest Banda told the court that he was hired by the testator and the respondent to build their house in Petauke. Further that, the respondent is the one who completed the payments for the construction of the house. -J6- 3.11 The appellant (DWl), Esnart Jere was present when the will of the testator was read on 7 th December, 2018 and that there were misunderstandings. The respondent, as widow, was supposed to remain in the house while making alternative arrangements to relocate to another house. Prior to his death, the testator gave her documents to process his certificate of title for the house in Petauke. Later, she obtained the title and has been in custody of the said document. 3.12 DW2, Florence Jere , (DW2) a sister to the testator, and her son Grieven Kangwa (DW2) told the court that during a visit to Lusaka, the testator took out a document and asked them to be his witnesses. He signed the document and asked them to sign. The documents were put in two envelopes which were kept by DW2 and DW3. On 7 th December, 2018, the will was read out by David Jere, a brother to the testator during the completion of the funeral rites. According to DW2, the respondent and the testator were not married but cohabiting as she did not witness any marnage ceremony between the brother and the respondent. -J7- 4.0 DECISION OF THE COURT BELOW 4.1 The learned Judge in the court below considered the pleadings and the evidence adduced. The court found that the respondent proved that she was legally married to the testator as there was independent evidence of the marriage from PW2 who was present when the testator paid dowry, and PW4 who was personally informed of the marriage by the respondent and the testator. 4.2 The court stated that the allegations by the respondent concerning the validity of the will, that the will was either not made by the testator or it was made at a time the testator lacked capacity due to mental illness bordered on fraud. However, there was insufficient evidence on record to prove the allegation. She found no evidence to prove that the testator was of unsound mind at the time he was making the will. 4.3 The lower court considered the argument advanced by the appellant that the respondent, having made no specific application for reasonable provision under section 20 of the Wills and Administration of Testate Estates Act, Chapter 60 -JS- of the Laws of Zambia (the Wills Act), the court was precluded from applying the provisions of section 20. 4.4 The learned Judge accepted that no specific application had been made for the alteration of the will as the respondent mainly sought to have the will set aside. However, the court reasoned that section 20 of the Wills Act. seeks to ensure that all dependents of the testator are not caused undue hardships because they have been left out by the person they depended on. The court is given wide discretion to consider all circumstances. 4.5 The court was of the view that considering the matter under section 20 did not offend any rule on pleadings as the function of pleadings is to bring out the issues in dispute so the parties are clear on the claims and each party can argue or bring out relevant evidence to prove their case. 4.6 In the case before her, there was no further evidence that the parties would have had to bring to argue their case under section 20 than what was brought out on the issue of the validity of the will. That the respondent had gone further to prove her entitlement to the estate of the testator by showing -J9- that she was legally married to him and that she had , contributed to the acquisition of the property to which she laid claim. 4.7 All that the respondent needed to bring the case under the ambit of section 20 was to show that the testator had not made reasonable provision whether during his life time or by his will for the maintenance of the dependent, and that hardship will there by be caused. 4.8 The court below found that no provision had been made for the respondent who was legally married to the testator under customary law thereby making her a dependent. It was shown that the respondent and the testator worked together to build the house on Plot No. 1755, Chilongozi Road, Petauke, and that she personally purchased some properties in her name which f had been bequeathed to the biological children of the testator. 4.9 The court below found no evidence that outside the will, the respondent had remained with anything meaningful to carry on her life. That in view of her age, she was not in a position to start building her life from scratch. The learned Judge was -JlO- certain that with the current state of affairs, serious hardship will be caused to her. 4.10 Though the respondent did not specifically plead the variation of the will as an alternative relief, the lower court took the liberty, as a relief that she deems fit to ensure that justice is done, to order variation of the will to give the respondent the house in issue with all the household goods including the vehicles, LG home theatre, amplifier and its four speakers, two big speakers, water dispenser and pressure cooker that were taken from the testator's home to be given back to the respondent. 5.0 GROUNDS OF APPEAL 5.1 Aggrieved with the decision of the lower court, the appellant appealed and advanced seven grounds as follows that: 1. The High Court misdirected itself in law and fact when it varied the will of the late Gerlson Jere in the absence of evidence that the respondent was going to suffer hardship as a result of being left out in the will; 2. The High Court misdirected itself in law and fact when it proceeded to vary the will on account that no prejudice will be suffered by the appellant and other beneficiaries if the court varied the will; 3_ That the High Court misdirected itself in law and fact when it considered the provisions of section 20 of the Wills and -Jll- Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia to vary the will of the late Gerlson Jere in the absence of an application by the respondent; 4 . The High Court misconstrued section 21 of the Wills and Administration of Testate Estates Act which urges the court to give consideration to the financial inadequacies of the dependant in relation (to the) testator's decision to leave out the dependant; 5 . The High Court misdirected itself in law and fact when it found that the respondent had contributed to the acquisition of the property being Plot No. 1755, Chilongozi Road, Petauke; 6. The High Court misdirected itself in law and fact when it found that the respondent had personally acquired properties which were bequeathed to the biological children of the late Gerlson Jere; and 7. The High Court erred in law and in fact when it ruled that there was a valid marriage between the respondent and the late Gerlson Jere. 6.0 APPELLANT'S ARGUMENTS 6. 1 The appellant filed heads of argument into court d a ted 27th October , 2 02 0 . In ground one , the a ppellant attacks the decision of the court below to vary the will of the late Gerlson Jere in the absence of evid en ce that the r espondent would suffer hardship as a result of being left out of the will. 6 .2 It was submitted that section 20 (1) of the Wills Act p ermits a dependant to apply to a court for reasonable provision where -J12- a testator h as failed to make reasonable prov1s1on for that dependant. The said provision is in the following terms: 20(1) If, upon application made by oron behalf of a dependant of the testator, the court is of the opinion that a testator has not made reasonable provision whether during his life time or by his will, for the maintenance of the dependant, and that hardship will thereby be caused, the court may, taking account of all relevant circumstances and subject to such conditions and restrictions as the court may impose, notwithstanding the provisions of the will, order that such reasonable provision as the court thinks fit shall be made out of the testator's estate for the maintenance of that dependant. 6.3 In interpreting this prov1s10n 1n Isaac Tantameni C. Chali (Executor of the Will of the late Mwalla Mwalla) v Liseli Mwala (Single woman) 111, the Supreme Court guided as follows: "The first consideration before varying a Will is that the court must be of the opinion that a testator has or has not made reasonable provision for the dependant in the Will. The second consideration is that the absence of or inadequacy of reasonable provision for the dependant in the Will would cause hardship. The third consideration before making the reasonable provision is that the court may take into account all relevant circumstances." 6.4 The appellant submits that the respondent is not a woman of straw but a woman of means as evidenced by the fact that she -J13- told th e cou rt below that sh e 1s a businesswoman. Her statement of claim showed that during the time of the marriage with the testator, she was employed as Coordinator at a non governmental organization called Petauke Nutrition Group and was also engaged in other businesses. 6.5 Further, that documentary evidence on record further supports this view in that she took out an Umoyo Family Protection Policy; bought a shop as per the sale agreement; had a trading certificate; was registered with the Patents and Companies Registration Agency (PACRA); an ABSA Bank statement and receipts of purchases from Radian Stores. All this evidence shows that the respondent was not going to suffer hardship as a result of being left out of the will of the testator. 6.6 In this r egard , we were invited to consider the case of Stewart Scott (Sued as Executor of the Will of the late Andrija Vidmar) v Edwin Alois Bilal Vidmar 121 where the court found that a p erson running a bar and rearing chickens gave his occupation as businessman, was a man of means and not of straw, and b eing an adult, was effectively excluded as a dependent under section 20 of the Act. -J14- 6.7 Citing the case of Attorney General v Marcus Achiume 131 , we were urged to reverse the findings of the lower court. 6.8 In the second ground, the appellant submits that the question of the likely prejudice to be suffered by the appellant and other beneficiaries is a cardinal one. That material prejudice will be suffered by the appellant by varying the will because the said property was wholly owned by the testator as evidenced by the certificate of title in his name. 6. 9 Secondly, it was argued that the appellant, being a biological child of the testator, has a greater interest in the estate and ought to have been considered above the respondent in terms of entitlement to th e property left by the testator. Thirdly, the appellant contends that the testator, wh o built and wholly owned the property, worked for the benefit of his children and hence the instructions in the will for them to benefit from his estate. 6.10 In the third ground, the appellant con tends that the court below misdirected itself in varying the will in terms of section 20 of the Act with out the respondent making an application for variation. It was submitted that th e pleadings filed by the respondent in -JlS- the lower court reveal that s h e neither made an application for unreasonable provision nor pleaded the same which fact was also acknowledged by the learned Judge. 6.11 It was argued that the respondent should have moved the court pursuant to section 20 of the Act to enable the parties to bring evidence to the fore. The appellant p laced reliance on the cases of Hakainde Hichilema & Others v The Government of the Republic of Zambia (4 l and Folayinka Fobisaiye Oladipo Esan v Attorney General (5l which guide that courts will not grant reliefs beyond what has been prayed for or p leaded, and that courts must confine t h emselves to reliefs that were p leaded. 6.12 Contrary to the above decisions, the learned Judge went an extra m ile in her judgment by considering the matter under section 20 of the Act on the pretext that her actions did not offend any rule on pleadings. This was tantamount to bringing up issues which did not form part of the matter s in con troversy. 6 .13 To buttress their case, the appellant cited the celebrated case of Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others '61 on the functions of pleadings. -J16- 6.14 In gr ou nd four, the appellant submits that the court below m isconstrued the provis ions of section 21 of the Wills Act on matters to be considered by th e court when varying a will. The provision reads as follows: 21(1) The court shall, on any application made under this Part, have regard to the testator's reasons for making the dispositions made by his will or for not making any provision or any further provision, as the case may be, for a dependant, and the court may accept such evidence as it considers sufficient, including any statement in writing signed by the testator and dated; so however that in estimating the weight, if any, to be attached to any such statement, the court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement. (2) The court shall also, upon any application made under this Part, have regard to any past, present or future capital or income from any source of the dependant to whom the application relates, to the conduct of that dependant in relation to the testator and to any other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to that dependent and to the beneficiaries under the will. 6.15 The appellant submits that the lower court did not make any enquiry into the reasons, if any, as to why the testator made such provisions in his will, when he left out the respondent. In the absence of such an inquiry, the orders made by the trial -J17- court cannot be supported in principle and as such, should not be allowed to stand. 6.16 For this, reliance was p laced on the case of Vrint v Swain 171 which enjoins courts to have regard to the testator's reason, so far as ascertainable for making the dispositions made by the will, or for not making any provisions or further provisions for a dependent. 6. 1 7 In the absence of such considerations and enquiry, the appellant prayed that we set aside the orders of the court below as they are not supported by any principles. 6.18 The appellant argued grounds five and six together on the trial court's findings that the respondent contributed towards the acquisition of Plot No. 1755 Chilongozi Road, Petauke, and that she acquired the properties that were bequeathed to the biological children of the testator. 6.19 It was submitted on behalf of the appellant that the testator, being a title holder to the property, is the absolute owner in terms of section 33 of the Lands and Deeds Registry. Further that the testator acquired the property long before he met the respondent. This was evidenced by the residential application -J18- form dated 10th December, 2004; letter of invitation dated 18th February, 2005; offer letter dated 10th July, 2007; agreement to purchase bricks, crashed stones and other building materials between the testator and Bisalomo Sakala dated 27th August, 2007; and the letter of approval for planning permission dated 18th September, 2007. 6.20 The evidence of PW3, Ernest Banda who testified that the respondent contributed to the building of the house was attacked as it did not attest to the fact that the a ppellant also contributed in purchasing building m a t erials. Further that the source of the money allegedly given to PW3 by the respondent was not established . 6. 21 Therefore, the house was lawfully bequeathed to the biological children of the testator as title holder and testator. 6.22 With respect to findings that the other propertie s alleged to have been purchased by the respondent wer e b equeathed to the biological children of the testator, it was submitted that the findings are not supported by evidence. In particular, there was no evidence that the respondent and the testator lived together -J19- before they were legally married in order to build the property 1n issue. 6.23 Such findings were said to be either perverse or made in the absence of any relevant evidence in view of the available documentation on the acquisition of the property by the t estator outlined in paragraph 6.19 above. 6.24 Lastly, in ground seven , it was contended that there was no valid marriage between the testator and the respondent. The appellant argues that the fundamental elements required to prove a valid customary law marriage such a s p ayment of dowry, were not established by the court below. 6.25 In particular, it was argued that the court b elow did not state what type of customary marriage was purportedly entered into between the testator and the respondent. The court merely concluded that it was a customary law marriage without indicating whether it was a Ngoni or Lozi customary marriage. The case of Fenias Mafembi v Esther Si tali 181 was called in aid on the need to comply with the customary law relating to Lozi marnages. -J20- 6.26 It was argued that no evidence was led to prove that bride price for the respondent was paid by the family of the testator and who else was present when it was paid besides the respondent, Mr. Singo and Mr. Muyumbana. The testimony of PW2, Chidxelo Njovu that he accompanied the testator at the time of paying dowry, was said to be at variance with that of the respondent. This is because the respondent did not mention PW2 as having been present. Further that while PW2 told the court that the marriage agreement was evidenced in writing, the respondent said there was no such evidence. 6.27 In the absence of evidence of payment of dowry, and in view of the contradictions, we were urged to find that the respondent failed to prove that she was the wife of the testator. The appellant prayed that the appeal be upheld with costs to be borne by the respondent. 7 .0 RESPONDENT'S ARGUMENTS 7.1 Mr. Banda, learned counsel for the respondent filed heads of arguments dated 22 nd July, 2022. With respect to ground one, counsel, referred to section 20( 1) of the Wills Act and cited the case of Rose Musonda (Suing as Department of the Estate -J21- of Stanislaus Chama) v Administrator General l9 l a High Court decision, on considerations that the court must have before varying a will. 7.2 It was submitted that there is no dispute that the testator made no provision whatsoever for the respondent in his will even when they had been married for ten years. That the appellant has not addressed this question in her submissions. Counsel submitted that by virtue of the evidence on record, it is undeniable that the will of the late Gerlson Jere did not make any reasonable provision for the respondent. 7.3 It was further contended that no reason was given or could be deciphered from the will for the decision by the testator to leave nothing for the r e spondent in his will. However, it was submitted that it can be clearly discerned from the evidence on record that at the time the will was alleged to have been made, the testator was unwell with an epileptic attack. Therefore, in view of the insinuations that the respondent had bewitched the testator, it was argued that the will of the testator was specifically crafted by the testator and his relatives to deprive the respondent of her property or interest therein. -J22- 7.4 In this regard, counsel contended that it is erroneous to isolate one element or requirement under section 20( 1) of the Wills Act to the effect that there was no proof that the respondent will suffer hardship. Counsel further contended that there was evidence from the respondent that she financially contributed towards the construction of the house in issue situated on Plot 1755 Ukwimi/Chilongozi Road, Petauke, which evidence was supported by PW3. This evidence was unchallenged. 7. 5 She further personally purchased two LG television sets and a Defy cooker as evidenced by the receipts, tax invoices and other documents on record. Counsel placed reliance on a High Court decision: Enesi Banda v Abigail Mwanza 1ioi that it is settled law that a wife who contributes directly or indirectly to the acquisition of a house has an equitable share in the house. 7.6 It was further submitted that the mere fact that the will takes away the respondent's interest in the house and unlawfully takes away property specifically acquired by the respondent, amounts to subjecting her to hardship, mental torture and anguish. We were referred to the learned editor, Bryan A. Garner. (2009). Black's Law Dictionary. 9 th edition. USA. -J23- West Publishing Co. p. 784, which defines the words 'hardship' and 'privation' as meaning: "1. Privation: suffering or adversity ... " and Privation as meaning "1 . The act of taking away or withdrawing. 2 . The condition of being depraved." 7. 7 That at the age of 62 at the time of trial means that the respondent is long past her energetic and working/produ ctive age. It would be extremely unbearable for her to recover the loss occasioned by the will and place herself in the position she was in before the will. This, it was su bmitted, is clear evidence that t h e responden t will suffer hardship. Further, that the present and future income of the respondent ought to be taken into account as it is not useful to deal with the respondent's past income. Reliance was placed on the case of Vrint v Swain 17l. 7.8 In arguing grounds two and three, the respondent submitted that the court below did not misdirect itself when it varied the will of the testator and concluded th at the appellant would not suffer any prejudice if it varied the will. This is because, as noted by the trial court, th e parties both addressed the issues which needed to be presented under section 20 of the Wills Act. -J24- 7. 9 The appellant fully participated in the trial and called witnesses, and was therefore , not prejudiced. In addition, the appellant has neither a legal nor equitable interest in the property in question as opposed to the respondent who has both a legal and equitable interest in some of the property forming part of the estate of the testator. Therefore, the interests of the appellant cannot override those of the respondent. 7.10 In view of the contents of the pleadings and the evidence adduced in the court below, it was submitted that this matter is highly contentious and was rightly com menced by way of writ of summons as was the case in Ntombie Zibwele Siwale v The Registrar of Lands and Deeds and Three Others 1111 . At page J24 of that ju dgment, the Supreme Court guided that: "It is i mproper to commence a highly contentious case by originating summons. The re ason for this is t hat matters commenced by originating summons are usually determined based on affidavit evidence. When using this procedure, the veracity of the evidence is not tested through cross examination of witnesses and the court has no opportunit y to observe the demeanour of witnesses. In view of the fact that this case is highly contentious, it was wrong for the appellant to commence it by originat ing summons." -J25- 7.11 Counsel observed that in paragraphs 13 and 15 of the respondent's statement of claim it was pleaded that the house on Plot No. 1755 Chilongozi Road, Petauke was constructed jointly by the respondent and the testator, and the allegations of fraud in the manner the testator, his sister and her children made the will were also pleaded. Therefore, it was submitted that the matter was properly commenced by writ of summons even though the allegations of fraud were not upheld . 7 .12 Reliance was placed on Order 5 rule 2(2) of the Rules of the Supreme Court of England, 1999 Edition which provides as follows: "A claim involving or based on an allegation of fraud must be begun by writ, and ought not to be begun by originating summons, but if it is so begun, it may be continued as though it had been commenced by writ under 0.28, r . 8 . .... " 7.13 Counsel contended that the respondent having clearly pleaded and claimed "for an order to setting aside the will for having no provision for the plaintiff' notwithstanding her contribution, the court below was entitled to vary the will as it did. In so doing, the lower court did not volunteer any relief for the respondent but acted within the law when it ordered for a remedy which is -J26- provided by statute as all the requirements were met for the making of such an order. The court restricted itself to the matters which were pleaded and were in controversy between the parties. 7. 14 Counsel further submitted that the lower court did not misconstrue the provisions of section 21 of the Wills Act but properly directed its mind to the issues before it by taking into account the size of the estate, the past, present and future income and capital of the respondent, the conduct of the claimant in relation to th e testator and the testator's reason for the provision made for the claimant. 7.15 Therefore, taking into account all the evidence on record, the respondent was left out of the will out of spite, malice and ill will in an attempt to 'punish her' and possibly defraud her of her contribution to the property in issue. 7.16 In addressing grounds five and six, it was maintained that the respondent financially contributed towards the construction of the house in issue as supported by the evidence of PW3, which was unchallenged. Further, it was submitted that the respondent personally purchased the two LG television sets and -J27- Defy cooker as evidenced by the invoices and receipts on record. Reliance was again placed on the case of Enesi Banda v Abigail Mwanza '101 . 7.17 It was further submitted that the lower court properly found that the respondent was married to the testator, dowry of Kl200.00 having been paid and supported by the evidence of PW2 and PW3. Even PW3, the bricklayer understood the testator and respondent to be married, while the respondent had even taken out an insurance policy for the testator with her bank. There was also evidence showing that the respondent underwent a traditional cleansing ceremony for the death of th e testator which ceremony can only be conducted on a person who was legally married. 7.18 It was submitted that the appellant did not adduce any evidence to rebut the evidence of the respondent that she was married to the testator. Her only challenge was that she did not witness the marriage which is a baseless claim. Therefore, on a balance of probabilities, the respondent demonstrated and proved that she was legally married to the testator. That there is no -J28- requirement that the payment of the dowry must be evidenced in writing. We were urged to dismiss the appeal with costs. 8.0 DECISION OF THIS COURT 8.1 We have considered the appeal, the arguments advanced and the authorities cited by the learned Counsel for both parties. It is not in dispute that the late Gerlson Jere did not include the respondent in his will and bequeathed property No. 1755 Chalongozi Road Petauke and all household goods to his biological children. 8.2 The appellant has raised 7 grounds of appeal, grounds 1 to 4 are interrelated as they assail the decision of the court to vary the will of the late Gerlson Jere and will be dealt with together. 8.3 The issues raised in the grounds of appeal for determination are as follows; (i) Whether there was a valid marnage between the respondent and the late Gerlson Jere. (ii) Whether the respondent had proved that she had personally acquired the properties bequeathed to the biological children of the testator and contributed to the acquisition of plot No 1755 Chilongozi Road, Petauke. -J29- (iii) Whether the court below was on firm ground to vary the will in issue. 8.4 With respect to the issue of whether there was a valid marriage, PW2 testified that the testator married the respondent under customary law in 2010 after paying the sum of Kl,200.00 as dowry. PW4 confirmed being informed by both the testator and the respondent that they formally married sometime after the memorial service of the first wife to the testator. 8.5 The appellant did not challenge or rebut this evidence and that of the respondent and PW4 that the respondent, as widow of the testator, underwent traditional cleansing at the village soon after burial. We accept, as argued by counsel for the respondent, that such a cleansing ceremony can only be performed on a person recognised as having been the spouse of the deceased person. Therefore, we find that the respondent and the testator were traditionally married under Ngoni customary law in 2010. We uphold the lower court's holding that the couple were married. 8 .6 In grounds five and six, the appellant contends that the respondent did not contribute to the acquisition of Plot No . -J30- 1755, Chilongozi Road, Petauke, and that she did not personally acquire the chattels that were bequeathed to the biological children of the testator. 8. 7 The receipts and other documents at pages 82 to 91 of the record of appeal comprising various fees paid to the local authority and the Ministry of Lands between 21 st July 2003 and 11 th October, 2007, show that the testator acquired the land in issue. Therefore, we find that the testator acquired Plot No. 1755, Chilongozi Road Petauke on which the house is built. 8.8 The respondent testified that in 2008, the testator moved in with her prior to their marriage so as to make savings on rent. Together, they began building the house in issue in 2010 and completed it in 2012. Thereafter, they occupied the house as a couple. The record shows that in 2015, the testator obtained a certificate of title to the property. 8 .9 PW3, Ernest Banda, a bricklayer told the court that he was hired by the testator and the respondent to build the house in 2010. The testator built the house up to window level and ran out of materials. The respondent then began paying him for the works until payments were completed. Further, that the -J31- respondent went on to complete the construction of the house before the couple finally occupied it. This evidence was unchallenged and supported the testimony of the respondent that she and the testator built the subject property. 8. 10 With regard to what constitutes family assets or matrimonial property, the Supreme Court guided in Rosemary Chibwe v Austin Chibwe (12l, that these are: " ... items acquired by one or the other or both parties married with intention that these should be continuing provision for them and the children during their joint lives and should be for the use and benefit of the family as a whole. Family assets include those capital assets such as matrimonial home, furniture, and income generating assets such as commercial properties." 8.11 Therefore, we find that the house built on Plot No. 1755, Chilongozi Road, Petauke, was built by both the testator and the respondent with the intention th at it should be their matrimonial home. 8.12 In the present case, while there is no dispute that the testator purchased the land on his own and began building the house, there was unchallenged evidence showing that the respondent contributed towards its completion by paying the wages of the -J32- bricklayer and buying construction materials. Having contributed to the construction of the house, we are of the view that the respondent has an interest in the property. 8.13 We are persuaded in this regard when we consider the celebrated cases of Pettitt v Pettitt 1131 and Gissing v Gissing 1141 where it was held that as both spouses had contributed to the establishment of the home by their joint efforts, the home was a family asset and, accordingly, the beneficial interest in it belonged to both spouses equally. Therefore, the wife who contributes directly, or indirectly, to the acquisition of a house obtains a share in the house. 8.14 Therefore, we find that the respondent, having contributed to the construction of the house, has a life interest in the property that cannot be overlooked. 8.15 As regards the household goods, the record of appeal at pages 138 to 141 shows receipts and warranties for an LG television set and defy cooker. Therefore, on a balance of probability, we are satisfied that the respondent acquired these household goods including the home theatre and speakers, amplifier, water dispenser and pressure cooker that were bequeathed to -J33- the biological children of the testator. In this regard, we find no merit in grounds five, six and seven. 8.16 In ground thr ee, the appellant contends that the court below misdirected itself when it varied th e will of the testator in the ab sence of an application by the respondent reference was made to section 20 of the Wills and Administration of the Testate Act . Section 20 of the Wills and Administration of Testate Act which p rovides as follows: 20(1) If, upon application made by or on behalf of a dependant of the testator, the court is of the opinion that a testator has not made reasonable provision whether during his life time or by his will, for the maintenance of the dependant, and that hardship will thereby be caused, the court may, taking account of all relevant circumstances and subject to such conditions and restrict ions as the court may impose, notwithstanding the provisions of the w i ll, order that such reasonable provision as the court thinks fit shall be made out of the testator's estate for the maintenance of that dependant. 8.17 A perusal of the record of appeal shows that the matter was commenced by way of writ of summons endorsed with reliefs seeking orders to s et aside the will for having made no provisions for the respondent; having been made when the testator lacked capacity and for being made under circumstances which suggest fraud. -J34- • . 8. 18 Ther e wa s no claim seeking reasonable provision under section 20 of the Wills Act or any such application ex cept tha t among the claims was one seeking to have the will set aside for having made no provision for the respondent. 8.19 We note that applications for reasonable provision pursuant to section 20( 1) of the Wills Act are ordinarily commenced by way of originating summons and supported by an affidavit and skeleton arguments. In this case, the matter was commenced by writ of summons as opposed to originating summons contrary to Order 30 rule 9 of the High Court Rules Chapter 27 of the Laws of Zambia. 8.20 However , guided by the decision in the case of Ntombie Zibwele Siwale v The Registrar of Lands and Deeds & Others 1111 cited by learned counsel for the respondent, we find that this case b ein g one that is high ly contentious, it was proper to commence the action by way of writ of summons as opposed to originating summons. The court below treated the m atter as if b egan by way of writ of summons. 8.21 There are a plethora of cases relatin g to the law on pleadings, th at courts s h ou ld confine themselves to th e reliefs that have -J35- been pleaded and t h at parties are bound by their pleadings. We refer to the case of Hakainde Hichilema & Others v The Government of the Republic of Zambia (4 l where the Supreme Cou rt stated as follows: "We can safely conclude from these authorities that both Zambian and Indian Supreme Courts will not allow trial courts to grant reliefs beyond what has been prayed for. A trial court, therefore, has no jurisdiction to volunteer a relief which an applicant or a respondent has not prayed for . .. . " 8.22 In the case before us, we have for all intents and purposes a valid will that excludes the wife and disposes of a family asset, a house built by the testator and the respondent (wife) on land that was acquired by the testator prior to the marriage and meant to be their matrimonial home. The circumstances of the case require us to make a determination whether such an asset can be bequeathed to a third party who never contributed to its acquisition and construction to the exclusion of the wife who contributed to building the property. 8.23 In the case at hand, th e respondent did not pray for variation of the will but led evidence as to how she participated financially in the construction of the house prior to and during the -136- • • marriage . It is the same house they lived in until the death of the testator which demonstrated that their intention was that it should be their matrimonial home. 8.24 The respondent, was thus shocked tha t the t estator b equ eath ed it to his biological children while leaving nothing for h er in his will. She also produced receipts showing that the goods that were bequea thed to the biological children of the testator were in fact acquired by her. 8.25 In this regard, the learn ed Judge varied the will to give the resp ondent the house in issue and all the household goods that were acquired by her. The court was content to do so under claim "No. 4. Any other relief the court may deem.fit". 8.26 In view of the evidence on record, we find that the testator made an unreasonable provision by bequeathing the s ubject house to his children in his will, because it was their m atrimonial home which the respondent h ad financially contributed to in its construction. The respondent has a legitimate stake in the property in issu e. 8. 27 The appellant also assailed the varying of the will of the late J ere on the basis t hat there was no evidence adduced that the -J37- • respondent would suffer hardship as a result of being left out of the will. Would the absence of reasonable provision for the respondent in the will cause hardship to her in the circumstances of this case or evidence adduced? Courts are employed to take into account all relevant circumstances. 8.28 It is trite that the court has the power to vary the provisions of the will for the purpose of inserting provisions to make it reasonable by taking into account various facts and circumstances of the case. The case of Chali (Execut or of the Will of the late Mwalla Mwalla (supra) alluded to the long standing recognition of unfettered right of disposition by the testator of his property and the departure being limited to circumstances where the court is of the view that the dispositions of a testator did not provide reasonable provision for the dependant. 8.29 As regards the test to be applied, it is an objective one, to determine whether the testator made reasonable provision for a dependent. We ref er to the case of Diamond v St andard Bank of South Africa Limited (Executor) and 4 Others 1151 where relevant circumstances to be determined were stated to -J38- • "include the size of the net estate, the conduct of the claimant in relation to the deceased and the deceased's reasons for the provision made for the claimant" 8.30 In this matter, evidence was adduced that the respondent is a business woman and was at one point employed as a coordinator at an NGO called Petauke Nutrition Group, had taken out a Family Protection Policy and purchased a Shop, held an account with ABSA Bank. It was contended that she would not suffer hardship as a resu lt of being left out of the will of the testator. 8.31 On the other hand, the respondent submits that at the age of 62, she is long past her productive energetic age and it would be extremely hard to recover the loss occasioned by the will, therefore she would suffer hardship. 8 .32 We hold the view that the respondent would suffer hardship by being excluded from the will which b equeathed the matrimonial property to the testator's children. In any event the issue of hardship to be suffered as a result of being left out of the will cannot arise where goods acquired by another person, and a house built b y a couple with the clear intention to live in it as -J39- their matrimonial home, was wrongly and unfairly, bequeathed J by will to another person. 8.33 We are of the view that the respondent would suffer prejudice, as opposed to the appellant, if goods that she acquired using her personal resources , and the matrimonial house whose construction she contributed towards, are given to the appellant. 8.34 In ground four, the appellant contends that the lower court misconstrued the provisions of section 21 of the Wills Act by not giving consideration to the financial inadequacies of the appellant. 8.35 A perusal of the proceedings in the lower court shows that no evidence was adduced by the appellant to show that the appellant and the other biological children of the testator had financial challenges. Therefore, we do not see how the court below could have given consideration to the financial inadequacies of the adult children. 8. 36 We hold that the will by the deceased excluding the wife was unreasonable. The testator did not make reasonable provision for his spouse and as a result great hardship will befall her. The -J40- respondent had been living in t h e matrimonial house with the • testator . 8.37 We hold the view that the lower court was on firm grou nd in varying the will to give the respondent the house in issue as well as th e household goods earlier referred to. 8.38 In conclusion, we find no merit in the appeal. We accordingly dismiss it. In view of the circu ces of the case, we or der that the parties bear th eir o J. Chashi COURT OF APPEAL JUDGE F. M. Chishimba ............. J ................ . M. J . Siavwapa COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE