Damalekani v Damalekani (MSCA Civil Appeal 35 of 1996) [1998] MWSC 4 (9 April 1998)

s, an IN TH I SUP E RT OF APPEAL na — ON AT BLANTYRE NOT oo / MLS. C. A. CIVIL APPEAL NO. 35 OF 199 — (Being High Court Civil Cause No. 44 of 1994) BETWEEN: GRACE DAMALEKANI AND MADALO DAMALEKANI (The Administrators of the Estate of A Damalekani)...........csccccccsescsccecesssseneecesssceeeesssssnseeeesesenseecesecsneeeeceeseenees APPELLANTS CHARLES DAMALERAAN Lb wiccsssaxasvsncaassasnmewasnsnsanncuvesnaravscennveses RESPONDENT BEFORE: THE HONOURABLE THE CHIEF JUSTICE THE HONOURABLE MR JUSTICE MTEGHA, JA THE HONOURABLE MR JUSTICE TAMBALA, JA Kaphale, of Counsel, for the Appellants Masumbu, of Counsel, for the Respondent .” * Ngatyaye (Mrs), Official Interpreter - aN Kuseke, Recording Officer woe,” NA JUD T + 7 a, The 2nd appellant is a brother to late Alfred Damalekani who died on 1 1th May 1990. The 1st appellant is the widow of the late Alfred Damalekani. Both appellants are Administrators of the estate of the late Alfred Damalekani. Late Alfred Damalekani had, before he married the 1st appellant, married the respondent’s mother whom he divorced. From the first marriage late Damalekani had three children, Mtegha, JA zZ ~ namely, the respondent and two daughters. From the second marriage with the Ist appellant he had seven children, the first being a boy, George, who was born in 1972. The rest of the children are minors. The brief history of the matter is this. Some time in 1973, the 2nd appellant and the deceased started a fish business. The deceased was working as a driver and financing the business, while the 2nd appellant was doing the actual buying and selling of fish. At that time, the 1st appellant was living with the deceased and his family, that is, the 1st appellant and the children. With the money realised from the fish business they developed a second-hand clothes business. With the money realised from this business they bought a car and used it as a taxi. This taxi was being operated and driven by the 2nd appellant. This taxi business expanded and eventually they bought a second-hand Isuzu truck, Registration No. BE 7577. This was in 1979. The Ist appellant operated the truck business including the driving of it. A sum of K40,000.00. was realised on this transport business and was paid to the Leasing and Finance Company of Malawi as a deposit for another truck and they were supplied with a Nissan truck, Registration No. BH 3391 which they used in the transport business as well. On 8th May 1990, three days before he died, the deceased gave instructions as to how his property would be distributed. This was in the presence of both appellants and one, Sanudi. The instructions were that the operation of the transport business would continue by the 2nd appellant until all the monies owed to the Leasing and Finance Co. of Malawi were repaid. The 2nd appellant worked tirelessly until he finished paying for the truck. It was the deceased’s other instructions that after paying off for the truck the 2nd appellant should take it and that the Isuzu truck, the K40,000.00 which was paid as a deposit for the truck and which was going to be refunded, and the interest thereon should be paid to the 1st appellant and her children, excluding the children of the first marriage. The plot and the house which was built on it were also given to the Ist appellant. After the death of the deceased, the 2nd appellant carried out these instructions; he finished paying for the truck; got the K40,000.00 and interest of K31,897.87. He used the interest for the repair of the Isuzu truck which he handed over to the Ist appellant together with the K40,000.00.; and the house, of course, was left with her. The children of the first marriage did not get anything. This prompted the respondent to bring this action, and it came before Mbalame J. before he died. After hearing all 3 the parties, the late Judge held that it would be in the interest of justice that the Nissan truck be sold and the proceeds realised therefrom should be divided equally between the respondent and the 2nd appellant. It is against this decision that the appellants appealed to this court. It was contended by Mr Kaphale, on behalf of the appellants, that the learned Judge’s ruling that half of the proceeds of sale of the said vehicle be paid to the respondent is without basis and wrong in law. He contended that the 2nd appellant’s share of the 50% of the partnership property was not part of the intestancy and should not have been distributed between him and the respondent. He further contended that according to ss.16(2) and 17(b) of the Wills and Inheritance Act, the widow would get the house and the contents, and since the Isuzu truck, which had been repaired, the wrecked Fiat and the bank accounts had already been given to the widow and her children, it would not have been right for the late Judge to have ordered that the proceeds of the sale of the Nissan truck be divided equally between the 2nd appellant and the respondent. This was because the second appellant had invested a lot of money by paying the instalments which were more than K300,000.00. It appears to us that there are two issues which must be determined before we decide this matter. The first issue is to determine the owner of the Nissan truck. It has been argued by Mr Kaphale that the 2nd appellant was a partner in the business and the Nissan truck represents his 50% of the partnership property and therefore it should not be sold in order to share the proceeds. We do not know how that partnership arose. There was no decision by the lower Court on this matter. The question of partnership did not even arise in the proceedings. From the affidavit of the 2nd appellant, it is clear that the 2nd appellant was residing with the deceased as a dependant up to the death of his brother and was part of the family and contributed considerably to the development of the family business. The truck must therefore be taken as part of the deceased’s estate, and since the deceased died intestate, his estate must be distributed in accordance with the Wills and Inheritance Act. The second issue to be determined is whether the 2nd appellant is entitled to inherit part of the deceased’s estate. There is no doubt that he was a brother to the deceased and the deceased brought him up. He was therefore a dependant who should be considered when distributing the estate. He certainly played a very important role in the running of the business. 4 The inheritance of intestate property is governed by ss.16 and 17 of the Wills and Inheritance Act. The provision that is relevant for our purpose is s.16(2)(b), which is in the following terms: ‘16 (2) In the case of a man who dies leaving a wife, issue or dependant surviving him, then - (b) ifthe marriage of the deceased was arranged in any other area of Malawi the persons entitled to such intestate property shall be - (i) as toa3/5ths share thereof the heirs in accordance with customary law; (ii) as to the remaining 2/Sths share thereof, the persons entitled upon a fair distribution thereof in accordance with section 17.’ Section 17 stipulates: ‘(1) The persons entitled upon a fair distribution shall be the wife, issue and dependants of thé intestate whose shares shall be ascertained upon the following principles - (a) protection shall shall be provided for the dependants of the intestate as far as the property available for distribution can provide such protection}............ (d) as between the widows and children of the intestate, their shares shall be decided in accordance with all the special circumstances including - (i) | any wishes expressed by the intestate in the presence of _ reliable WItNeSSES}............ (iii) any contribution made by a widow or child to the value of any business or other property forming part of the estate of the intestate............ , It appears to us that we can apply these provisions to arrive at a fair distribution. We have looked at,the affidavits in this case. We have heard both counsel in this matter. In our view, the distribution of the deceased’s estate as it is, would have been proper had it not been that the children of the first marriage had been included. But, as it is, they were excluded. A fair distribution would have been to include them. Now, the only property left for distribution is the Nissan truck which had been valued at K150,000.00. We therefore make the following order: The 2nd appellant will have the truck on condition that he pays the sum of K75,000.00 to the respondent. He should pay the respondent within two months of the date of this judgment. If he fails to do so, the truck should be sold and the proceeds realised therefrom should be divided equally between the 2nd appellant and the respondent. The appellants are condemned in costs.. DELIVERED in open Court this 9th day of April 1998, at Blantyre. Sed. se neseerercrcace sgeisig Helen araiaie ¢ eioreiy aA Blecw e use.wieie nase see wee R A BANDA, CJ . Af f_ & FR 9 ee wee seco nn eresererecueecoronoresseuneresesevesdsneses HM MTEGHA, JA / D G TAMBALA, JA