Gary Nachandwe Mudenda v Dorothy Chileshe Mudenda (Appeal No. 210/2004; SCZ/12/2006) [2006] ZMSC 34 (7 March 2006)

IN THE SUPREME COURT OF ZAMBIA SCZ/12/2006 HOLDEN AT LUSAKA/NDOLA AppealNo. 210/2004 (Civil Jurisdiction) IN THE MATTER OF: THE INTESTATE SUCCESSION ACT (146) AND IN THE MATTER OF: THE ESTATE OF THE LATE GILLIOT MUDENDA BETWEEN: GRAY NACHANDWE MUDENDA Appellant AND DOROTHY CHILESHE MUDENDA Respondent Cor am: Chirwa, CJ. Chibesakunda and Chitengi, JJS. on 7 th September, 2005 and 7 th March, 2006. For the Appellant : Mr. I. C . T. Chali of Messrs Chali, Chama & Company For the Respondent: Mrs. Chisanga of National Legal Aid Clinic for Women JUDGMENT Chitengi, JS, delivered the judgment of the court. Case ref erred to: - 1. In Re: Wills and Administration of Testate Estates Act and In Re Section 20(1) of Act 6 of 1989 Between Isaac Chibulu Tentameni Ch ali (Executor of the Wi ll of the Late Mwalla Mwalla V Liseli Mwalla (1995/1997) ZR 199 - 12 - In this appeal, we shall refer to the Appellant as the Respondent and the Respondent as the Applicant, which were their designations in the High Court. {147) The facts of this case, according to the Applicant and her witness, are that one Gilliot Mudenda, hereinafter referred to as the deceased, married the Applicant in 1983 under Bemba customary law after paying dowry of K300 to the Applicant's aunt, Miriam Lukonde, who was the Applicant's witness at the trial. The dowry • was paid by the deceased's uncle one Gideon Mudenda. At the time the dowry was paid the deceased was at the University and the Applicant was living with her parents in Ndola. Before the marriage the Applicant and the deceased had a relationship resulting in the birth in 1981 of a child called Brian Mudenda. In 1984 the Applicant and the deceased started living together 1n Kitwe. The deceased, who appears to have been inclined to promiscuous sexual relationships, made pregnant another woman called Christine Kanungwe . It appears, true to his promiscuity, the deceased wanted Christine to be a second wife. However, Christine • did not want to be a second wife in the same house and she left and went to Ndola where the deceased rented a house for her in Kansenshi and paid her frequent visits. In addition to Brian, the deceased and the Applicant had three more children, Gift Chanda, Gilliot and Twambo. - J3 - (148) In 1998 Christine died and in 1999 the deceased and the Applicant went to live in Choma. While in Choma the Applicant had a stormy relationship with the deceased's mother who criticized her over food and boasted of the deceased being the only provider of food in the house. Because of the conduct of the deceased's mother, the Applicant left the matrimonial home in 2001 and went to live with her grandmother in Livingstone. Later the deceased got ill but the Applicant did not go to the matrimonial home because of her fear of the deceased's mother . On 18th February, 2003 the deceased died. After the death of the deceased, the Respondent refused to talk anything about the three children who were in Choma. The Applicant is unable to visit the children. The Applicant said she is fit to look after her own children as a surviving parent. She has a house in Pamodzi township and wants her share of the estate. About a letter produced by the Respondent purporting to show that her father wrote the deceased saying the deceased had never married her, the Applicant said it was a forgery . The Respondent's position is that the Applicant was the mother of the deceased's four children. The Respondent first met the Applicant in Nakonde in 1989. The Respondent said the deceased started living with Christine in Kitwe in 1984 and that he visited the deceased in Kitwe, Kafue, Lusaka and Choma. The Respondent said he met the Applicant at the deceased's house in Choma but he never met the Applicant between 1989 and 2000. While in Choma • • - J4 - (149) the Applicant was taken to the house of Alfred Mudenda (RW2) the de ceased's uncle and told that the family did not recognize her. Alfred Mudenda also confirmed seeing the Applicant at the deceased's house in Choma in 2000 . According to Alfred Mudenda, he did not know what the Applicant was doing at the deceased's house and that the deceased was also married to the Applicant in addition to Christine. Alfred Mudenda said the deceased did not want the Applicant to live in his house in Choma. Alfre d Mudenda also confirmed tha t the relationship between the Applicant and the • deceased's family was not good and there was no peace in the house. According to Lapson Muntanga, a brother to the deceased, he knew the Applicant in 1982 when she had the first child with the deceased. He said later the Applicant bore the deceased three more children. He said in 2003 he received a letter from the Applicant's father showing that the deceased never married the Applicant. After the death of the deceased the Applicant's family met to • discuss the welfare of the children and the letter allegedly written by the Applicant's father. It appears nothing conclusive came out of the meeting. The Respondent was appointed administrator of the estate of the deceased. He said he continues to do what the deceased was doing for the children. The Respondent keeps Michela the child the deceased had with Christine. Brian is training as a teacher while - 15 - Gift is at Zambia Institute of Business Management. Gideon is going Grade 7 and Twambo is doing Grade 2. He said he has not sold any of the property but he had instead enhanced the estate. (150) The Respondent said he feared that if custody of the children was given to the Applicant money could be squandered. He is married with two children of his own and lives in the deceased's house. He had not stopped the Applicant from visiting the children. He said the Applicant was not consulted on the welfare of the children. The • Applicant was chased from the funeral of the deceased. He also confirmed of the bad relationship between the Applicant and the deceased's mother. On these facts the Applicant took an originating Summons out of the District Registry at Ndola for the following reliefs: - (i) A declaration that as the surviving parent, the Applicant is entitled to have custody of the children of the family of the late Gilliot Mudenda who are currently in the custody of • the Respondent. (ii) A declaration that both the Applicant (as the widow of the late Gilliot Mudenda) and her 4 children (as the children of the late Gilliot Mudenda) are beneficiaries of the estate of the late Gilliot Mudenda. ..... • - J6 - {iii) An order for legal custody of the 4 children of the family in favour of the Applicant. (151) {iv) An order for distribution of the estate of the late Gilliot Mudenda to the rightful beneficiaries. {v) Any other relief the Court may deem fit and just. (vi) An order that each party bears their own costs of these • proceedings. After carefully reviewing the evidence the learned trial Judge accepted the evidence of the Applicant and found as a fact that the deceased married the Applicant. The learned trial Judge discounted the evidence of the Respondent and his witnesses which he said was, at any rate, hearsay. The learned trial Judge also found as a fact that the Applicant was disliked and not accepted by the deceased's family and hounded out of the matrimonial home. About the letter allegedly written by the Applicant's father, the • learned trial Judge said any one could have written it. The learned trial Judge observed that the letter had no address of the sender and no signature or thumb print. The learned trial Judge said he attached no weight to the letter. In the event, the learned trial Judge said that he had no doubt in his mind to find that the Applicant was married to the deceased and, therefore, the surviving spouse or widow of Gilliot Mudenda (deceased). , · . • I - J7 - (152) Having found that the Applicant was the deceased's surviving spouse the learned trial Judge held that in terms of Section 5(1) of the Intestate Succession Act, the Applicant and her children and the dependants and parents of the deceased are the beneficiaries of the estate of the deceased. Further, the learned trial Judge held that in terms of Section 19(1) of the Intestate Succession Act, the administrator is not an automatic beneficiary of the estate of the deceased. The learned trial Judge observed that in this case the Respondent has posthumously become a dependant of the • deceased; that the Respondent has moved in the deceased's house with his wife and two children; that the Respondent as an administrator has given himself legal custody and guardianship of the d eceased's children contrary to the law. With respect to the share of the deceased's estate due to minors, the learned trial Judge held that in terms of Section 5(2) of the Intestate Succession Act the minor's share should be held by the mother, father or guardian in trust until he ceases to be a minor. In this case, the learned trial Judge observed that there was no • reason why the Applicant as the mother of the minor children cannot be the trustee of their share of the estate. The learned trial Judge observed that the fears that the Applicant will squander the estate are speculative and b aseless as there is no concrete evidence of wrong doing by the Applicant or that she is irresponsible and reckless. Accordingly, the learned trial Judge appointed the Applicant as the trustee of the minors' share of the deceased's estate. The learned trial Judge also observed that there was no ·• • I • - J8 - reason why the Applicant as a biological mother and the surviving parent should not have legal custody of her children. Accordingly, the learned trial Judge granted the Applicant custody of the children of the family. (153) In conclusion, and on his own motion, the learned trial Judge also ordered the Respondent to produce to Court the full inventory of the estate and to render an account of the administration of the estate . The Respondent was dissatisfied with the judgment of the High Court, hence the appeal to this Court. The Respondent filed three grounds of appeal. The first ground of appeal is that the learned High Court Judge erred in fact by finding that the Respondent was the surviving spouse or widow of Gilliot Mudenda (deceased) and therefore a beneficiary of the deceased's estate. • The second ground of appeal is that there was no compelling reason for the learned trial Judge to appoint the Respondent as trustee of the minors' share of the estate. The third ground of appeal is that the learned trial Judge's order as to costs operates unfairly against the Appellant. • . , - J9 - (154) Counsel filed written heads of argument. Mr. Chali, learned Counsel for the Respondent entirely relied on his written heads of argument while Mrs. Chisanga, learned Counsel for the Applicant, supplemented her heads of argument with oral submissions which . are basically a repeat of her written heads of argument. Mr. Chali also relied on his submissions in the Court below which are actually the same as his submissions before this Court. In his submissions on ground one Mr. Chali recounted the evidence • at length and then attacked the learned trial Judge's holistic approach to the determination of this matter, saying it was wrong. According to Mr. Chali, the fact that the deceased had four children with the Applicant, rented and bought a house for the Applicant, used to visit the Applicant and that the deceased's relatives knew the Applicant were irrelevant consideration when determining whether there was a marriage. It was Mr. Chali's submission that the evidence does not even show marriage by cohabitation and that the learned trial Judge had no good reason to reject the letter written by the Appellant's father showing that the Applicant's • father did not regard the relationship between the Applicant and the deceased as a marriage . On ground two, Mr. Chali submitted that the Respondent is more qualified to look after the entire estate in the interest of the beneficiaries. He said the Respondent has enhanced the value of the estate from where he found it. ·• -JlO- (155) On ground three Mr. Chali submitted that since it is the duty of the administrator to institute or defend actions to protect the estate it was unfair to order the Respondent to bear his costs. It was Mr. Chali's submission that the Respondent's act to defend the action was reasonable and not motivated by ulterior motives and, therefore, the costs should have been ordered to be borne by the estate. As authority for this statement, Mr. Chali cited the case of In Re Wills and Administration of Testate Estate Act and In Re S. 20(1) of Act 6 of 1989 Between Isaac Chibulu Tandameni • Chali (Executor of the Will of the Late Mwalla Mwalla) V Liseli Mwallaf1J. The arguments of Mrs. Chisanga on ground one are that the learned trial Judge attached great weight to the evidence of the Applicant's witnesses and found that the Applicant had been married to the deceased. That being the case, Mrs. Chisanga submitted that the Applicant is the surviving spouse of the deceased and a beneficiary of the deceased estate. • With respect to ground two, Mrs. Chisanga submitted that the Applicant is the biological mother of the children; that there is no evidence that she is incapable or unfit to have custody of the children and to be a trustee of the minors' share of the estate. It was Mrs. Chisanga's submission that although the Respondent was not appointed guardian of the children, h e imposed himself on the children as their guardian. It was Mrs. Chisanga's submission that •' • - J11 - (156) Section 34(1) of the Intestate Succession Act prohibits an administrator or guardian from deriving pecuniary advantage from his office. Further, it was Mrs. Chisanga's submission that under the Intestate Succession Act, for one to be a guardian of a minor, he must be appointed by the Court under Section 32 of the Act. Furthermore, Mrs. Chisanga submitted that Sect ion 5(2) of the Intest ate Succession Act provides that the minors' share shall be held in trust by the father, mother or guardian until he ceased to be a minor . On ground three, Mrs. Chisanga cited several authorities on award of costs and the Judge's direction to award costs. In the view we take of this matter we do not intend to recount these authorities. None of the parties was condemned in costs. And the thrust of Mr. Chali's submissions is that in respect of the Respondent, the costs should be paid by the estate because, the Respondent's action of def ending the estate was reasonable and not motivated by an ulterior motive. • • We have considered the evidence that was before the learned trial Judge, the submissions of Counsel and the judgment appealed against. We propose to deal with ground three first. This ground relates to the order for costs made by the learned trial Judge to the effect that each party will bear his own costs. The position taken by Mr. Chali - . ·• . ,, - J12 - (157) is that that order is unfair because the Respondent was reasonably defending the estate. To support his arguments and submissions on this ground, Mr. Chali cited the case of the Administrator of The Wills of Mwallaf1J. We have looked at the Mwalla casef1J. We are satisfied that the facts of the Mwalla casef1J are not applicable to this case. The case of Mwalla basically dealt with varying of a will. This case deals with the conduct of the administrator in relation to the estate. In this case the action has arisen as a result of the administrator's actions, which we shall show later to be • illegal. In the event, the Respondent cannot be said to have been acting in reasonable defence of the estate as Mr. Chali submitted. Accordingly we cannot fault the learned trial Judge's order as to costs. The third ground of appeal fails. We now deal with the first ground of appeal which relates to the issue whether the Applicant and the deceased were husband and wife. Counsel addressed us at length on this issue. As we see it, the issue before the learned trial Judge was one of credibility. The persons who could properly testify to the marriage were the • Applicant herself and her aunt. The Respondent and his witnesses were not witnesses to what transpired. As the learned trial Judge observed, if anything, the evidence of the Respondent and his witnesses was hearsay. What the Respondent and his witnesses could properly testify to is their seeing the Applicant with the deceased and the children the deceased had with the Applicant. .. • . \ - Jl3 - (158) On the evidence the learned trial Judge believed the version of the story given by the Applicant and her witness and rejected the story given by the Respondent and his witnesses and found that the decea sed married the Applicant. Mr. Chali asked us to reverse this finding. But on the evidence taken as a whole, and we are sure this is what the learned trial Judge meant by holistic approach, we do not agree with Mr. Chali's submissions that there was no marriage between the Applicant and the deceased. We are not prepared, as Mr. Chali's submissions suggest, to find on the facts • of this case that for 19 years, from 1984 to 2003, when the deceased died, the Applicant and the deceased were living in sin and were not husband and wife although they were having children. As the learned trial Judge did, we also observe that the Applicant , for whatever reasons, was not liked by the deceased's mother , the Respondent and relatives . Indee d , it is in evidence by the Respondent and his witnesses that the relationship b etween the Applicant and the deceased's family was not cordial. However, it is significant to note that there is no evidence that there was stormy relationship between the Applicant and the deceased and • that the deceased, during the over 22 years the deceased and the Applicant knew each other, chased the Applicant away and that the Applicant was forcing herself on the deceased. Mr. Chali referre d to a letter allegedly written by the Applicant's father showing that there was no marriage between the Applicant and the deceased. The Applicant said the letter was not written by her father and that it was a forgery. The learned trial Judge r ejecte d - Jl4 - • I .. • (159) the letter on the ground that it had no address and no signature or thumb print. The learned trial Judge said that anyone could write the letter more so that the demands in the letter were more in tune with Tonga customary law than Bemba customary law. We do not, therefore, agree with Mr. Chali that the learned trial Judge rejected the letter without reasons. We cannot fault the learned trial Judge's rejection of the letter. All in all, we are satisfied that the learned trial Judge was on firm • ground when he found as a fact that the deceased married the Applicant and that at the time of the deceased's death the Applicant was the surviving spouse and widow of the deceased and, therefore, a beneficiary of the deceased's estate. The first ground of appeal, therefore, fails. The matters raised in ground two are matters of law. As Mrs. Chisanga rightly submitted under the Intestate Succession Act, to be a guardian of a minor one has to be appointed by the Court. In this case, the Respondent was not appointed by the Court to be • guardian of children. He just imposed himself. If the Respondent is not a guardian it follows that in terms of the Intestate Succession Act he cannot hold in trust the minors' shares of the estate. The custody of the minor children and the trusteeship of their shares of the estate should now be vested in the Applicant as the learned trial Judge ordered. It has been said and argued that the Applicant will squander the money and that the Respondent is properly qualified and that he has even enhanced the estate. There -J15 - (160) 1s no evidence as the learned trial Judge found and as Mrs. Chisanga argued that the Applicant is irresponsible and reckless. Rather it is the Respondent whose conduct in relation to the estate is suspicious. The Respondent has in fact inherited the deceased's property and children without recourse to any law. The only thing the Respondent has refused to inherit, for obvious reasons, is the Applicant who he conveniently denied being the wife of his deceased brother, knowing that his deceased brother safely lies in • his grave and cannot talk from the grave. The Respondent has moved in the deceased's house with his children as if the house was bequeathed to him when in fact he is only an administrator. The Respondent claims he has enhanced the estate, whatever that may mean. But there is no evidence to that effect. In any case, the duty of an administrator is not to enhance the estate but to collect the deceased's assets distribute them to the beneficiaries and render an account. Ground two also fails. > All t h e three grounds of appeal havjpg been unsuccessful, the a ppeal fails and we dismiss it. We "affti-6~ the judgment of the learned trial Judge and the orders he made. We make no order as to costs. ···········~·················· D. K. CHIRWA SUPREME COURT JUDGE r ·i i. · ).'..:v ··········~·-: ••••.••....•...••.•.•• ..... L. P. CHIBESAKUNDA SUPREME COURT JUDGE ( \('\\A~ ,,- . . ~~p\f ;R··c-iiwiN~i ...... SUPREME COURT JUDGE