M.G.M Sakubita v Chama and Anor (SCZ Appeal 25 of 2000) [2001] ZMSC 95 (20 March 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.25 OF 2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: M. G. M. SAKUBITA APPELLANT AND A. M. CHAMA V. C. MULENGA 1st RESPONDENT 2nd RESPONDENT Coram: Sakala, Acting D. C. J., Late Justice Muzyamba and Lewanika, JJS 19th September 2000 and 20th March 2001 For the Appellant: Mr. J. Sangwa, Simeza, Sangwa and Associates For the Respondents: Mr. W. Mubanga of Permanent Chambers JUDGMENT Lewanika, J. S. delivered the judgment of the court. CASES REFERRED TO: 1. SUGDEN vs SUGDEN, (1957), 1 A. E. R. 300 2. GORDON vs GORDON, (1963-1964) N. R. L. 61 Our brother, Mr. Justice Muzyamba, who sat with us having since died, this judgment may now be treated as by the majority. This is an appeal against the decision of a Judge of the High Court that ordered that the Appellant’s application under Section 2 of the Inheritance (Provision for Family and Dependants) Act, 1975 be stayed until after the determination by the Deputy Registrar of the Appellant’s application for property settlement pursuant to Section 23 and 24 of the Matrimonial Causes Act, 1973 as amended. J2 The evidence on record is that the appellant was married to the late Dr. Safelino Mulenga on 9th June 1979 and that the marriage was dissolved on 28th October 1994 when the decree absolute was granted by the court. The issue of property settlement was transferred to the Deputy Registrar for determination, but before this could be determined the said Dr. Mulenga died intestate on 27th January 1997. The appellant felt that the disposition of the late Dr. Mulenga’s estate pursuant to the provisions of the Intestate Succession Act, Cap 59 of the laws would not make reasonable provision for her and she decided to institute proceedings under Section 2 of the Inheritance (Provision for Family and Dependants) Act, 1975 which the learned Judge in the court below declined to entertain, hence this appeal. Counsel for the appellant has filed one ground of appeal namely that the learned trial Judge misdirected himself on a point of law by ordering that the appellant’s application under Section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 be stayed until after the determination by the Deputy Registrar of the appellant’s application for property settlement pursuant to Section 23 and 24 of the Matrimonial Causes Act, 1973 as amended under cause Number 1993/HP/D.40. In arguing this ground Counsel submitted that at the time of the respondent’s death the decree absolute had already been granted and the only issues remaining to be determined by the Deputy Registrar were the appellant’s applications for matrimonial and property settlement pursuant to Sections 21 and 23 of the Matrimonial Causes Act, 1973. He said that the applications are not causes of action within the meaning of Section 2 of the Law Reform (Miscellaneous Provisions) Act. He further said that even if the Deputy Registrar delivers his ruling in relation to these applications the same will not be enforceable as against the respondent’s estate as they will have arisen after his death. He referred us to the cases of SUGDEN Vs SUGDEN : J3 : (1) and GORDON Vs GORDON (2) on the point. He said that it was this problem which the Inheritance (Provision for the Family and Dependants) Act, 1975 was enacted to resolve as under the said Act a former spouse, such as the Appellant, has the right to apply for Orders similar to those that can be made under Sections 21, 23 and 24 of the Matrimonial Causes Act, 1973 out of the estate of the deceased. There is much force in the argument being advanced by Mr. Sangwa save for the fact that the Act on which he relies, the Inheritance (Provision for Family and Dependants) Act, 1975 was enacted by Parliament in the United Kingdom. The Intestate Succession Act, Cap 59 of our laws which came into effect on 14th May 1989 makes provision for the administration of estates of persons who die intestate and whose estates would otherwise have been administered under customary law. The Act also sets out who the beneficiaries of an intestate estate would be and these do not include a former spouse. The Act on which the appellant is relying does not apply to Zambia and we would dismiss the appeal and direct the Deputy Registrar then, Judge T. Katenekwa who is now Deputy Chairman of the Industrial Relations Court to deliver his Ruling without further delay, if he has not already done so. We make no order as to costs. E. L. SAKALA D. M. LEWANIKA ACTING DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE