Fredah Mulenga v Mulenga and Anor (SCZ Appeal 28 of 2000) [2001] ZMSC 93 (26 April 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No. 28 OF 2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: FREDAH MULENGA AND APPELLANT SYDNEY MULENGA AND ONE OTHER GODFREY KAPITOLO MULENGA 1st RESPONDENT 2nd RESPONDENT Corum; Ngulube, C. J., Chirwa and Lewanika, JJS 26th September 2000 and 26th April 2001 For the Appellant: Mrs. K. C. Chisuse of K. C. Chisuse and Associates For 1st Respondents: Mr. B. Kaweche of Kaweche and Company For 2nd Respondent: Mr. B. S. Mumba of Sampa Mumba and Company JUDGMENT Lewanika, J. S. delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court as ordered that:- 1. That the Appellant do pay the 154 respondents the sum of KI 6,669,673-88 each representing their share as beneficiaries of the deceased estate under the Appropriation Agreement together with interest at current bank rate from 20th June 1994 to the date of the order and thereafter at 6% per annum till payment. 2. That the house at plot (farm) No.3293 Itimpi, Kitwe be valued by qualified surveyors or evaluators and that the 1st respondents be paid from the value so found their share of the property. The evidence on record is that the appellant was one of the three widows of the late Shem Kapitolo Mulenga who died intestate on the 23rd March 1992. The ^respondents were two of the twenty-eight children of the deceased who were beneficiaries of the estate of the deceased and the second respondent was one of the administrators of the said estate under the terms of an appropriation agreement executed by all the beneficiaries of the estate. The J2 appellant was entitled to K62,233,449-13 and all the children were entitled to KI 6,669,673-88 each. By a separate agreement made on 17th June 1994 the appellant and ten of the surviving children who included the 1st respondent agreed that they “will exercise their option to have Screen Print Limited and the farm house situate on Farm No.3293 Itimpi, Gameton, Kitwe, as their share of the estate of Shem Kapitolo Mulenga unconditionaly and these beneficiaries will have no further claim from the estate”. At the time that the two agreements were executed the 1st respondents were under age and resided with the appellant at the said farm house. The case for the 1st respondents is that they have since attained the age of majority and have been denied their inheritance because the appellant has chased them from the farm and are not deriving any benefit from Screen Printing Limited which is being run and controlled by the appellant, hence this litigation. We have considered the arguments advanced by Counsel for the appellant, for the 1respondents and for the 2nd respondent which we do not intend to repeat here as they are on record. The late Shem Kapitolo Mulenga died intestate and his estate fell to be administered under the provisions of The Intestate Succession Act, Cap 59 of our Laws and the Apportionment Agreement which was executed by all the beneficiaries took cognizance of this fact. The appellant and ten of the surviving children, who included the 1st respondents, accepted to take the farm house in which they were residing and Screen Printing Limited as their share of the deceased’s estate. Paragraph 9 of the Apportionment Agreement distributed the estate to the surviving children in accordance with Section 5 of the Intestate Succession Act. Section 9 of the same Act contains provisions in cases where the estate includes a house and we reproduce the Section below.: 9(1) Notwithstanding Section five where the estate includes a house, the surviving spouse or child or both, shall be entitled to that house; (a) Where there is more than one surviving spouse or child or both they shall hold the house as tenants in common’ (b) The surviving spouse shall have a life interest in that house which shall determine upon the spouse’s remarriage. : J3 : (2) Where the estate includes more than one house the surviving spouse or child or both shall determine which of the houses will devolve upon them and the remainder shall form part of the estate. The effect of this section is that the appellant as a surviving spouse has a life interest in the farm house situated on Farm No.3293 Itimpi, Kitwe whilst the Is* respondents and the other eight surviving children have a residual interest in the same house. The house cannot therefore be valued and disposed of to enable the 1st respondents to be paid their share of the estate as this would work to the detriment of the other beneficiaries and the learned trial Judge was in error when he made that order and we hereby set it aside. However, notwithstanding what we have said the 1st respondents are entitled to KI 6,669,673-88 each as their share of the estate under the Appropriation Agreement but this amount will have to be realized from their share holding in or the assets of Screen Printing Limited. The learned trial Judge had awarded the 1 * respondents interest at current bank rate from 20th June, 1994 to the date of the order and thereafter at 6% per annum till payment. We would vary this award and award the 1st respondents interest at the average short term deposit rate as determined by the Bank of Zambia from the date of issue of the writ to judgment and thereafter at the current lending rate as determined by the Bank of Zambia. Although the 2nd respondent was made a party to this appeal we fail to understand why it was necessary to do so as the claims against him were dismissed by the learned trial Judge. As to the question of costs, although the appeal has succeeded in part we note that this litigation arose out of a genuine misapprehension by the parties as to what their rights were under the Appropriation Agreement and we order that the costs here and below are to be borne by the parties themselves. M. M. S. W. NGULUBE CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE