Humphrey Musopelo (Administrator) and Ors v Hardson Musopelo (2012/HP/0608) [2014] ZMHC 387 (20 June 2014)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (Civil Jurisdiction) 2012/HP/0608 IN THE MATTER OF: SECTION 9 OF THE INTESTATE SUCCESSION ACT, CHAPTER 59 AND IN THE MATTER OF: THE ESTATE OF THE LATE JOHN MUSOPELO BETWEEN: HUMPHREY MUSOPELO (SUING AS ADMINISTRATOR OF THE ESTATE OF THE LATE JOHN MUSOPELO) RUTH MUSOPELO STEWARD MUSOPELO OBBY MUSOPELO DORCAS MUSOPELO JOE MUSOPELO (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, RUTH MUSOPELO) PRISCA MUSOPELO (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, RUTH MUSOPELO) JOSAYA MUSOPELO (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, RUTH MUSOPELO) AND 1st APPLICANT 2nd APPLICANT 3rd APPLICANT 4th APPLICANT 5th APPLICANT 6th APPLICANT 7th APPLICANT 8th APPLICANT HARDSON MUSOPELO RESPONDENT - J l - Before the Hon. Mrs. Justice A. M. Sitali on the 20th day of June, 2014 For the Applicants : Mr. Brigadier Siachitema o f Messrs Lusitu Chambers For the Respondent : No Appearance J U D G M E N T Case referred to: 1. Monica Siakondo (suing in her capacity as administrator of the late Edith Siakondo^ v. Fredrick Ndenga (2005^ ZR 22 Legislation referred to: 1. The Intestate Succession Act, Chapter 59 of the Laws of Zambia, sections 3, 4 and 9 (1). The Applicants commenced this action against the Respondent by originating summons filed in the Principal Registry on 6th June, 2012, seeking the following reliefs: 1. a declaration that Plot No. 11A/19/19174 Matero, Lusaka, being the only house left as part of the estate of the late John Musopelo should belong to the surviving spouse Ruth Musopelo who has a life interest in the property and the children of the deceased as tenants in common, according to section 9 of the Intestate Succession Act and are entitled to lawful possession of Plot No. 11A/19/19174, Matero, Lusaka; 2. an order of eviction be made against the respondent in order to grant possession of Plot No. 11A/19/19174 to the lawful beneficiaries of this property; 3. an order that the Respondent pay the estate all the money the Applicants would have received as rentals from the time the Respondent took illegal and unlawful occupation up to the time he will give vacant possession; 4. damages and loss for the period the Respondent illegally occupied Plot No. ll/A/19/19174. Matero Lusaka; 5. any other relief as this honourable court may deem fit; and 6. costs of this application. The originating summons is supported by an affidavit sworn by the Applicants, Humphrey, Ruth, Steward, Obby and Dorcas Musopelo. The facts of the matter as revealed by the affidavit in support of the application are that the applicants are the widow and children, respectively of the late John Musopelo who died intestate on 21st September, 2006. Following the death of John Musopelo, Humphrey Musopelo, the 1st applicant was appointed as administrator of the estate of the late John Musopelo on 12th October, 2006. A copy of the order of appointment of administrator is exhibited marked "HRDSOM1". The applicants state that at the time of his death the late John Musopelo owned Plot No. 11A/19/19174 Matero, Lusaka which he purchased from the Lusaka City Council. A letter written by the Director of Legal Services of the Lusaka City Council confirming that the deceased had purchased the house is exhibited marked "HRDSOM2". It is stated that the property was still registered in the late John Musopelo's name even after his death as evidenced by a receipt for property rates dated 9th January, 2008 which is exhibited marked "HRDSOM3". The applicants state that after John Musopelo's death in September, 2006, they were forcibly and illegally evicted from subdivision 11A/19 of Stand No. 19174, Matero, Lusaka which is the only house which forms part of the estate of the late John Musopelo by the respondent who is neither a beneficiary nor an administrator of the estate. The applicants further stated that the respondent is still in possession of the -J3- house although he has been advised to give vacant possession of the house to the surviving spouse and children of the deceased. As a result of the respondent's illegal occupation of the house, the 1st applicant who is the administrator of the estate of late John Musopelo has failed to perform his duties as the respondent is in possession of the title deeds to the property. The applicants contend that as a result of the respondent's illegal occupation of the house, they have been deprived of the use and occupation of the house and have suffered loss and damage. The respondent did not file any affidavit in opposition to the originating summons. The record shows that he was served with the court process. At the hearing of the application, Mr. Siachitema, Counsel for the applicants relied on the affidavit in support deposed to by the applicants. Counsel submitted that the applicants are surviving spouse and children of the late John Musopelo and the affidavit stated that at the time of his death the deceased left vested in him Plot 11A/19/19174 Matero, Lusaka which was the only house he owned at the time of his death. Counsel submitted that in terms of section 9 (1) of the Intestate Succession Act, Chapter 59 of the Laws of Zambia, the only house left by the deceased devolved upon the spouse and children of the deceased. Counsel submitted that the respondent is not a child of the deceased nor is he the administrator of the estate of the late John Musopelo and that his possession of the house is, therefore, illegal. Counsel went on to submit that the applicants have suffered loss and damage as a result of the respondent's unlawful action and that only this court can remedy the wrong committed by the respondent by granting the reliefs sought by the applicants in the originating summons. Counsel further submitted that the applicants are indigent and as they have been deprived of their only source of livelihood, they would be unable to enforce the judgment by way of a writ of possession in the event that this Court determines the matter in their favour. He stated that it is for this reason that the applicants specifically ask for an order of eviction which can be enforced by the police without paying 5 percent of the value of the property as required by the Sheriff's Act. The respondent was not present at the hearing. There is evidence on record that he was aware of the date of hearing as he was served the notice of hearing. I have considered the affidavit evidence as well as the submissions by counsel for the applicants. The undisputed evidence on record is that the 1st, 3rd, 4th, 5th, 6th, and 7th applicants are children of the late John Musopelo who died intestate on 21st September, 2006 and that the 2nd applicant is the surviving spouse. As such all the applicants are beneficiaries of the intestate's estate. At the time of his death, John Musopelo owned Subdivision No. 11A/19 of Stand No. 19174, Matero, Lusaka. The house which is the only asset forming the estate is currently occupied by the respondent. Hence this action. The applicants' first claim is for a declaration that Plot No. 11A/19/19174 Matero, Lusaka, being the only house left as part of the estate of the late John Musopelo should belong to the surviving spouse Ruth Musopelo who has a life interest in the property and the children of the deceased as tenants in common according to section 9 of the Intestate Succession Act, Cap. 59 and are entitled to the lawful possession of the said house. The affidavit evidence adduced by the applicants in support of this claim is that the late John Musopelo purchased subdivision 11A/19 of Stand No. 19174 Matero Lusaka from the Lusaka City Council and to support this claim the applicants exhibited a letter written by the Director of Legal Services in the Lusaka City Council marked "HRDSOM 2" as proof of the deceased's ownership of the subject property. The applicants state that the house was vested in John Musopelo at the time of his death and that it is the only house in the estate of the late John Musopelo. The applicants have adduced further evidence that as late as January 2008, the receipts for property rates issued by the Lusaka City Council were in the late John Musopelo's name. The -J5- evidence on record is that John Musopelo died intestate on 21st September, 2006. It is the applicants' evidence that when the late John Musopelo died, the respondent Hardson Musopelo evicted the spouse and children of the deceased from the said house and took possession of their house which he currently occupies and that they as beneficiaries of the estate have been unlawfully deprived of the said house. In the case of Monica Siakondo (suing in her capacity as administrator o f the late Edith Siakondo) v Fredrick Ndenga (1), the court held that when the deceased dies intestate, his estate ought to be administered under the provisions of the Intestate Succession Act, Chapter 59 of the Laws of Zambia. Section 4 (1) of the Intestate Succession Act Chapter 59 of the Laws of Zambia (hereinafter referred to as the Act) provides that a person dies intestate under the Act if he has not made a will disposing off his estate at the time of his death. As John Musopelo died intestate, his estate ought to be administered in accordance with the provisions of the Act. According to section 3 of the said Act, an estate comprises all the assets and liabilities of the deceased person and includes his personal chattels for purposes of administration under the Act. In the present case there is documentary evidence produced by the applicants marked "HRDSOM2" and HRDSOM 3" to prove that the house on Subdivision 11A/19 of Stand No. 19174, Matero, Lusaka was owned by John Musopelo prior to his death and, therefore, the property forms part of his estate. Section 9 (1) of the Act provides that where there is only one house in the estate the surviving spouse and children are entitled to the house. To that effect section 9 (1) provides as follows: "9. (1) Notwithstanding section five, where the estate includes a house, the surviving spouse or child or both shall be entitled to that house: Provided that - (a) where there is more than one surviving spouse or child or both, they shall hold the house as tenants in common; and -J6- (b)the surviving spouse shall have a life interest in that house which shall determine upon that spouse's remarriage." The provisions of section 9 (1) of the Act are clear and unambiguous. In the present case the house on subdivision No. 11A/19 of Stand No. 19174, Matero, Lusaka being the only house in the estate of the deceased should vest in the applicants as surviving spouse and children of the deceased respectively. I, therefore, grant the applicants the declaration that they are entitled to the possession of Subdivision 11A/19 of Stand No. 19174, Matero, Lusaka which is the only house in the estate of the late John Musopelo in their capacity as surviving spouse and children of the deceased. The 2nd Applicant Ruth Musopelo has a life interest in the property which will determine if she remarries. I further order that the respondent should immediately surrender to the 1st applicant who it the administrator of the estate of the late John Musopelo all the documents relating to the said plot No. 11A/19/19174, Matero, Lusaka which are in the respondent's possession to enable him transfer title in the property to the applicants who shall hold the house as tenants in common. The applicants also seek an order of eviction against the respondent from Subdivision 11A/19 of Stand No. 19174, Matero Lusaka. The applicants' evidence to the effect that Hardson Musopelo is not a beneficiary of the said house has not been challenged or rebutted by the respondent. As the respondent is not a beneficiary of the estate of the deceased he has no legal right to occupy the said house. I, therefore, order that the respondent shall yield vacant possession of the house to the applicants within two weeks of the date of this judgment. If the respondent does not vacate the house by the end of that period, I order that the respondent be evicted from the house. The applicants further seek an order that the respondent pays the estate the money the applicants would have received in rentals for the house from the time the respondent took unlawful occupation of the house to the time he will give vacant possession. However, the applicants have not adduced any evidence regarding the money that would have been chargeable in rentals for the property had the house been on rent since September, 2006. The Court cannot grant the order in the absence of such evidence. I will therefore not grant this order as prayed. The applicants also claim damages for the period the respondent has illegally occupied the property in issue. On the evidence before me, I find that the applicants are entitled to nominal damages for the loss they have suffered as a result of the respondent's action. I will, therefore, award them the sum of K3,000.00 as damages under this claim. The sum of 3,000.00 shall attract 10 percent simple interest from the date of the originating summons to the date of payment. I award costs to the applicants which are to be borne by the respondent. The costs are to be agreed and taxed in default of agreement. Leave to appeal is hereby granted. Dated the 20th day of June, 2014. A. M. SITALI JUDGE