Monica Siankando v Ndenga (SCZ 188 of 2003) [2005] ZMSC 2 (26 May 2005)

scz Judqment No. 3 of 2005 (33) IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NQ.188/2003 HOLDEN AT KABWE AND LUSAKA (CIVIL JURISDICTION) MONICA SIANKONDO PLAINTIFF (Suing in her capacity as Administratrix of the Estate of the late EDITH SIANKONDO) AND FREDERICK NDENGA DEFENDANT Coram: Sakala, CJ., Chirwa, JS., and Mushabati Ag. JS 6th April, 2005 and 26th May, 2005 For the Appellant: Ms. I. Suba of Kuta Chambers For the Respondent: Mr. A. R. Chipande of Livingstone Partners Sakala, CJ., delivered the Judgment of the Court. JUDGMENT The history of this appeal, with different claims at each court level, originates from Choma Local Court in which the Respondent, as the Administrator of the Estate of the late Given Ndenga, commenced proceedings against the Appellant, (34) the widow of the late Ndenga, claiming for an injunction to restrain the widow from evicting the Respondent, the dependants and the children of the late Given Ndenga from house No. 1199/98, Macha Road, Choma. In the Local Court, after that court heard oral evidence, it ordered that the Appellant should not chase the children from the house. The Court also ordered the Appellant to pay hearing fees and costs. According to the record, the issue of ownership of the house does not seem to have been fully discussed by the Local Court. The Appellant appealed against the decision of the Local Court to the Subordinate Court of the 1st Class holden at Choma. The grounds of appeal, which appear to us unrelated to the orders made by the Local Court, were that the lower court erred to order the Appellant to receive KI,800,000.00 out of K3,722,000.00 for the house which Zambia Railways offered her to purchase; that the lower court had an interest in the matter since the Presiding Justice was related to the Respondent; and that the house was legally bought by the Appellant. In the Subordinate Court, the matter was heard denovo . Only the Appellant gave evidence. After hearing the Appellant's evidence, the learned Magistrate summarized the Appellant's claims as follows:- (a) (b) (c) (d) (e) Restoration of house No. 1199/98; Damages or loss of the right to the house; Rentals of the house that should have been earned from February to March, 1999 estimated at K180,000.00; Interest at Bank Interest rate on the amount of rent; Costs for the proceedings, including fees for legal representation The Appellant's evidence in the Subordinate Court was that she lived in house No. 1199/98, Choma, with her husband from April, 1995. The house belonged (35) to Zambia Railways, the employers of her late husband. She married her deceased husband on 31st December, 1992. He died on 30th May, 1998. The funeral was taken to the village in Kalomo District. After the funeral, the relatives did not allow her to return to the house. She explained that she took nothing from the house apart from personal clothes, plates and two pots after the headman intervened. She testified that her deceased husband's employers offered her the house to buy. She used her husband's terminal benefits to buy the house in question. She paid Zambia Railways K3,722,000=00 on 9th February, 1999, at Kabwe. Subsequently, the Administrator of her husband's estate sued her in the Local Court. She told the court that she was appealing against the decision of the Local Court. She wanted to be given the house. She claimed for costs; money spent on the case including the Lawyer's fees. She also asked for damages. She explained that the Local Court had ordered that she be refunded the total amount of money for the purchase of the house. She was only given KI.800,000.00 which was only half of the money paid for the purchase of the house. The widow further testified that the total amount of her deceased husband's terminal benefits was K10,700,000.00. She was given K4.2 million. She explained that she had only one child who passed away in 1994. The foregoing was the Appellant's evidence before the Subordinate Court which was the only evidence before that Court. In his Judgment, the learned trial Magistrate indicated that he found the record of the Local Court to be of no help in the form in which it was. He identified the questions for determination as being the manner in which the property devolved; and whether or not the Appellant was entitled to buy the house in issue. The (36) learned Magistrate considered the evidence before him. He concluded that the customary law was the yardstick, which determined the devolution of the deceased's property. The court found that there were neither children nor parents of the deceased and concluded that the widow was entitled to 66.6 percent of the deceased's estate. The court pointed out that in terms of Section 9(1) of the Intestate Succession Act, if the estate includes a house, a surviving spouse is entitled to a life interest in the house, which determines upon the spouse re-marrying. According to the learned Magistrate, the Administrator of the Estate must keep watching on the spouse so that upon re-marrying, he repossesses the house. It was the view of the Magistrate that in terms of Section 9, a spouse has no right to buy a house, since the law accords only a life interest depending on the spouse's remaining single throughout. The court rejected the suggestion that the law allowed the widow to purchase the matrimonial home; concluding that in the instant case, the Appellant acted outside the confines of the law by unilaterally purchasing the house without consultations with the Administrator. The court found that the Appellant was not entitled to purchase the house in question. The decision of the Local Court was upheld. The Appellant appealed to the High Court against the decision of the learned Magistrate on the following grounds:- that the Magistrate erred in both law and fact in failing to evaluate the evidence given by the Appellant and in failing to distinguish the estate of her demised husband from her own ; that the Magistrate misdirected himself by failing to determine whether the Respondent was a dependant of the deceased husband. (37) After considering the evidence that was before the trial Magistrate, the learned Appellate Judge identified the issue for determination as being whether or not the house was part of the deceased husband's estate. The Appellate Judge found that the deceased husband had accrued a right to purchase the house; but was unable to exercise the right before he died. The Appellate Judge found that since there was no contract of sale of the house at the time of death of the deceased husband, the house did not form part of the deceased husband's estate. The court held that the Intestate Succession Act did not cover it. The Appellate Judge then pointed out that the learned trial Magistrate erred in law in applying the Intestate Succession Act and holding that the widow had only life interest in the house. The Appellate Judge then examined the Zambia Railways Limited Policy on sale of houses. The court rejected the argument that the deceased husband did not leave any children as the proceedings in the Local Court showed that the deceased husband left four children from another woman or women and their names had been listed in the affidavit of birth filed by the deceased husband with Zambia Railways. According to the Appellate Judge, these four children were the very ones whom the Appellant was prevented from chasing from the house by an injunction granted by the Local Court. The Appellate Judge found that the four children should have been allowed to purchase the house jointly with the Appellant; but they were not afforded this chance because of the conduct of the Appellant who secretly purchased the house. The court ordered that the four children be allowed to buy and own the house jointly with the Appellant; that if the children were not willing or unable to buy the house jointly with the Appellant, then Appellant to buy it alone. (38) The learned Appellate Judge then proceeded to consider what he described as a new development in the matter on which he felt obliged to comment. This development related to documents filed by the Respondent, acting as Administrator of the deceased husband's estate, showing that the house in issue had been sold to a couple in Botswana. According to the court, the documents showed that the sale was done without deducing Title Deeds and without involving Lawyers. According to the learned Appellate Judge, the house was still in the name of Zambia Railways Limited. The Appellate Judge found the whole transaction of selling the house by the Administrator of the deceased husband a nullity. On the chattels, the learned Appellate Judge found that the deceased having died intestate, his estate ought to have been administered under the provisions of the Intestate Succession Act, Cap 59 of the Laws of Zambia. The Court found no evidence of dependants or parents, and ordered that the chattels be distributed in accordance with Section 5(l)(a) of the Act. On loss of mesne profits, the award was given to the Respondent but to be shared if the children were willing to purchase the house. On the quantum of such mesne profits, the court observed that the evidence was scanty and unclear and referred the matter to the District Registrar for assessment. The Respondent was also awarded costs. The Appellant appealed to this court on the following grounds:- that the appellate Judge erred in law and fact when he failed to appreciate that although the matter was not heard denovo in the High Court, there was evidence adduced in the High Court which clarified and or contradicted the evidence in the Local Court; that the Appellate Judge erred in both law and fact by failing to distinguish between possession of the house in which the Appellant and his deceased spouse lived and ownership of the same; that the Appellate Judge erred in both law and fact when he failed to appreciate that the Appellant in (39) this case only invoked the provisions of the Intestate Succession Act, Cap 59 of the Laws of Zambia in so far as both the household goods, the deceased's terminal benefits and the pension were concerned; that the Appellate Judge erred in both law and fact by arriving at the conclusion that the Appellant's late husband had four children born from other women when there was evidence on record that he was merely a legal guardian; that the Appellate Judge misdirected himself both in law and fact by finding that the Appellant secretly purchased the house when she was not infact under a duty to report to the Administrator of the deceased husband; that the Appellate Judge erred in law and fact when he ordered that the house in issue be sold to both surviving spouse and the children of the family when the same had already been bought and paid for by the Appellant and the sale having not been contested nor nullified and that such children being dependants only can not be entitled to purchase the house in issue; and that the Appellate Judge grossly misdirected himself when he failed to regard or make up a completely or correct record of the proceedings in his court. Ms. Suba filed detailed heads of argument based on the foregoing seven grounds. She also made brief oral submissions in which she pointed out that the gist of the appeal which ran throughout the grounds is the finding of fact that the property should be owned by the Appellant and the children. She submitted that the finding, in so far as it relates to the children, was erroneous as there were no children. She drew our attention to the proceedings both in the Subordinate Court and the Local Court and to the whole Appellant's evidence. She contended that the finding by the learned Appellate Judge was contrary to the findings of the learned Magistrate and that the finding was outrageous when it ordered that the house be owned jointly by the Appellant and the children. She submitted that the house did not and does not form part of the deceased husband's estate as he had not and never purchased the house in question and the that house did not fall under the Intestate Succession Act. (40) Counsel also drew our attention to the Zambia Railways Limited Conditions of Sale of houses and that only a registered spouse and children qualified to buy the house and that there being no children of the deceased husband, the Appellate Judge fell into error when he ordered that the house be jointly owned by the widow and the children. She urged us to set aside the judgment of the learned Appellate judge. On behalf of the Respondent Mr. Chipande did not address the court on the merits of the appeal but proceeded to inform the court that on 11th November, 2004, he filed a notice to raise a preliminary issue under Rule 19 of the Supreme Court Rules and Section 45 of the Intestate Succession Act. He invited this court to decide whether it had power to hear this appeal in terms of section 45 of the Intestate Succession Act. He submitted that this appeal is caught up by the provisions of section 45 of the Intestate Succession Act. He pointed out that the Local Court having heard the matter and determined it, the widow, being dissatisfied, appealed to the Subordinate Court and having lost her appeal in the Subordinate Court, she appealed to the High Court and being dissatisfied with the judgment of the High Court, she appealed to this court. He submitted that applying the provisions of Section 45, the judgment of the High Court was final. No appeal can lie against it to the Supreme Court. He further submitted that the appeal was misconceived and irregular and that this court should not entertain it. He pointed out that infact Section 3 of the Intestate Succession Act does not, in the definition of "court," include the Supreme Court. He submitted that the Supreme Court having been omitted in the definition of "court," in the Intestate Succession Act, the power of this court was taken away. In reply to the arguments on the preliminary issue, Ms. Suba submitted that the issue at hand is not in relation to the Intestate Succession Act, but related to the sale and the purchase of the house by the Appellant widow. She contended that the Intestate Succession Act was being brought in to deprive the Appellant (41) widow of her entitlement to purchase the house. She further submitted that the house did not form part of the deceased's estate. She pointed out that the case related to the sale of Zambia Railways houses which was outside the Intestate Succession Act. At this juncture we must mention that we have also considered the written heads of argument filed by Ms. Suba on behalf of the Appellant. On account of the salient facts not in dispute or established in the Subordinate Court when the matter was heard denovo, we do not find it necessary to review the written arguments in great detail. Suffice it to mention that the matter having been heard by the Subordinate Court denovo, the record and the Judgment in issue are those of the Subordinate Court. Above all, Mr. Chipande did not advance any arguments on the merit of the appeal as he relied on a preliminary issue. As we see the issues, the main one for determination before the Subordinate Court centred on the purchase of the Zambia Railways house by the Appellant; the question being whether in the circumstances of this case, the Appellant was entitled to buy the house in issue. In the Subordinate Court, according to the record of appeal only the Appellant gave evidence. Indeed, the learned Magistrate found the proceedings before the Local Court to have been unhelpful. The Salient facts before the Subordinate Court were that the Appellant, who has also since died, lived in house No. 1199/98 Macha Road, Choma together with her deceased husband who occupied the house by virtue of his employment with Zambia Railways, the owners of the house. The deceased husband died before he could be offered the house to buy. There was no child of the family living. (42) The Appellant was offered and bought the house. But she was evicted from the house by the deceased husband's family. On the foregoing facts the learned Magistrate made a number of findings, some of them based on the Intestate Succession Act, which do not go to the root of this appeal. However, in relation to the house, the Subordinate Court found that the Appellant acted outside the confines of the law by unilaterally purchasing the house without consulting the Administrator of the estate of her deceased husband. We totally agree with the Appellant that the learned Magistrate failed, on the evidence and facts not in dispute, to distinguish the estate of the Appellant's deceased husband from her own. The facts clearly established that at the time of the death of the Appellant's husband, Zambia Railways had not offered the house to him for sale. The house, therefore, could not have formed part of the deceased husband's estate. Above all, even if the deceased husband had been offered and purchased the house, it would not have been part of his estate but a matrimonial home to which the Appellant would still have been entitled. The Appellant, in terms of the Zambia Railways Policy on sale of company houses, was the sitting tenant and registered spouse who was entitled to purchase the house. On the issue of the house, we are satisfied that the trial Magistrate seriously fell into error, when he found that the Appellant was not entitled to purchase the house. Indeed, the Appellant did not need to consult the Administrator of the deceased's estate before buying the house. On appeal to the High Court, the Appellate Judge correctly held that the house in issue did not form part of the deceased husband's estate. The Appellate Judge also correctly held that the Intestate Succession Act did not apply to the house in issue. However, the Appellate Judge fell into error when he held that the deceased husband left four children from another woman or women entitled to * (43) jointly purchase the house with the Appellant. The evidence before the Subordinate Court did not support this finding. In any event, the house could only be offered to the registered spouse and the children of the family. There was evidence that the only child of the family died before the purchase of the house. The Appellate Judge misdirected himself by ordering that the four children should buy and own the house jointly with the Appellant when firstly, they were not children of the family and secondly, the house did not form part of the deceased husband's estate. The other issues, described by the Appellant Judge as "new development" had nothing to do with the case that was before the Subordinate Court. In any event, the Administrator of the estate of the deceased husband had no legal title to sell the house in issue. As regards the Intestate Succession Act, we are satisfied on the evidence that the Act did not apply to the house in issue because the house did not form part of the deceased husband's estate as he had not and never purchased it. On all the grounds, this appeal must succeed. The preliminary issue, for reasons already stated, is dismissed. In the result, both Judgments of the Subordinate Court and the High Court, in so far as they relate to the house in issue, are set aside. Judgment is entered in favour of the Appellant with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE D. K. Chirwa C. S. Mushabati SUPREME COURT JUDGE AG. SUPREME COURT JUDGE rmc