Mutinta and Others ( Administratrix of Mazoka) v Lundu Mazoka (Appeal 89 of 2014) [2017] ZMSC 267 (28 April 2017)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 89/2014 HOLDEN AT KABWE (Civil Jurisdiction) SCZ/8/68/2014 BETWEEN: MUTINTA CHRISTINE MWITANGETl MAZOKA MUTINTA BUMBA M’MEMBE NEE MAZOKA (Sued jointly as Administratrix of the estate of the late Anderson Kambela Mazoka) AND 1ST APPELLANT 2nd APPELLANT LUNDU MAZOKA RESPONDENT CORAM: Mwanamwambwa D. C. J., Kaoma and Musonda, On 1st November, 2016 and 28th April, 2017 For the Appellants: For the Respondent: Mr. K. Kaunda, of Messrs. Ellis and Company Mr. B. Sitali, of Messrs. Butler and Company JUDGMENT Mwanamwambwa D. C. J., delivered the Judgment of the Court. Legislation Referred to: (1)The Wills and Administration of Testate Estate Act, Chapter 60 of the Laws of Zambia - Sections 20 (1), 22 (1), and 24 (1) & (2). 42/Ord er 40 Rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia. Cases Referred to: 1. Re BIDIE Ch. 12 2. Lindiwe Kate Chinyanta v Doreen Chiwele and Judith Tembo (2007) Z. R. 246. 3. John Chisata v Attorney General (1990/1992) ZR 15. 4. Collett v Van Zyl Brothers Limited (1966) ZR 65 5. General Nursing Council of Zambia v Ing’utu Milambo Mbangweta (2008) 2 ZR 105 - J2 - This appeal is from a Ruling of the High Court in which the learned trial Judge dismissed the appellants’ preliminary objection on a point of law. Brief facts are that the respondent is a son to the late Anderson Kambela Mazoka, who died testate on 16th May, 2006. The respondent sued the appellants in their capacities as Administratrices of the estate of his late father. Letters of Administration With a Will Annexed, were issued to the appellants by the High Court of Zambia on 22nd December, 2009. This was after the two executors who were appointed by the deceased in his Will could not take up office: one executor predeceased the testator and the other one renounced his office. Following the appointment of the appellants as Administratrices, the respondent brought an action against them on 17th January, 2012. He claimed that the appellants had neglected their duty to pay his school fees and his maintenance and as a result, he failed to complete his Bachelor of Science degree at the University of Zambia. He alleged that the appellants lamentably failed to diligently discharge their duties and as such he had been disadvantaged as a beneficiary to the estate of his late father. Before trial could commence, the appellants filed a notice to raise a preliminary objection on a point of law based on the following grounds: - J3 - (i) That this action is statute barred as it was commenced on 17th January, 2012, more than 6 months from the date of probate, contrary to the provisions of section 22(1) of the Wills and Administration of Testate Estates Act (hereinafter referred to as “the Wills Act”)'. (ii) That this action is incompetently commenced by the respondent, whose mother was never married to the late Anderson Kambela Mazoka and therefore he is not a beneficiary of the Will, as provided by clause 4 of the said Will which reads in part: “...in equal shares if more than one for all my children of both my marriages... ” The learned trial Judge dismissed the preliminary objection after hearing the parties. He observed that Section 22 (1) of the Wills Act imposes a statute bar of six months for applications made under Part III of the Wills Act and only exempts applications that fall within the provisions of section 24 of the Wills Act. He formed the view that the essence of Part III of the Wills Act is the variation of Wills and that this was the relief which the respondent was seeking. He found that since the respondent’s application was made under Part III of the Wills Act, it was subject to a statute bar imposed by Section 22(1) which is itself subject to section 24 of the Wills Act. He pointed out that Section 24 permits applications to be made after six months, for an order to make provision for the maintenance of another dependant of the testator, but that such order shall be limited to property the income of which, is at that date applicable for the maintenance of a dependant of the testator. - J4 - He referred to section 3 of the Wills Act which defines a dependant as “a wife, husband, child or parent’ and found that the respondent is a biological child of the late Anderson Mazoka and therefore a dependant under the Wills Act. That as such, section 24 exempts the respondent from the statute bar imposed by section 22(1). He came to the conclusion that the respondent’s action was not statute barred. When it came to the second limb of the preliminary objection, the learned trial Judge took the view that since the respondent is a biological son of the late Anderson Mazoka and a dependant under the Wills Act; he had locus standi and an arguable case because the Wills Act provides for causes of action for dependants. For these reasons, he dismissed the appellants’ preliminary objection. The appellants were not satisfied with the ruling of the learned trial Judge. They have now appealed to this Court advancing four grounds of appeal. These read as follows: - 1. That having agreed that the action is statute barred, the court below erred in both law and fact by holding that the action is within the exceptions in section 24 of Cap 60 of the Laws of Zambia when there is no specific property from which income is applied for the maintenance of a dependant, no order varying a previous order or for making provision for the maintenance of another dependant; 2. That the court below erred in law and fact by relying on the exceptions in Section 24 when the reliefs sought by the respondent in his Writ of Summons do not border on maintenance as envisaged in section 24; -J5- 3. That the court below erred in both law and fact by concluding that the respondent has an interest in the estate herein notwithstanding that the respondent is not a beneficiary under the Will of Anderson Kambela Mazoka, the deceased; 4. That the court below erred in both law and fact by awarding costs to the respondent. The parties filed written heads of argument. The written arguments were augmented with oral submissions. We shall address grounds one and two together because they are interrelated. Then, we shall deal with the rest of the grounds separately. In support of the first ground, Mr. Kaunda submitted that the court below agreed with the appellants that section 22(1) of the Wills Act imposes a statutory bar for applications made after the expiration of six months from the date on which representation in relation to the testator’s estate for general purposes is first taken out. That however, the court below misunderstood or appears to have had some difficulty with the meaning and intent of the words ‘for general purposes’. He argued that sections 22 (1) and 24(1)(2) of the Wills Act, cannot be properly understood or interpreted in isolation, without understanding the meaning or intent of Part III of the Wills Act, under which they fall. He submitted that in order to understand the meaning and intent of Part III, it is necessary to understand the meaning of the words in section 20(1), which he said is the parent section. In support of his submission, counsel referred us to the case of Re BIDIE Ch(1). - J6 - He submitted that Section 20(1) of the Wills Act is concerned with reasonable provision for the maintenance of a dependant of a testator, to avoid hardship being caused to such a dependant. He argued that the key word in section 20(1) is ‘maintenance’. That therefore, a dependant who relies on section 20(1) is not entitled to capital interest by way of distribution of the estate. It was his submission that when the words used in section 20 have been appreciated, the rest of Part III falls into place to help in implementing the provisions of the said section. Mr. Kaunda contended that in order to understand the meaning of the words “for general purposes” in section 22(1), it should be noted that there are different types of grants of representations that can be granted by a probate court. He pointed out that out of the many grants, there are only three grants that are issued for general purposes, namely, (a) grant of probate, (b) grant of letters of administration and (c) grant of letters of administration with a Will annexed. He pointed out that in this case, the appellants were granted letters of administration with a Will annexed, which he said is a grant for general purposes. He argued that the court below had difficulty appreciating the meaning and intent of section 24(1) of the Wills Act particularly in relation to the words: “2 4. (1) ...the court may make, only as respects property the income of which is at that date applicable for the maintenance of a dependant of the testator: (a) (b) an order for varying a previous order... an order for making provision for the maintenance of another dependant of the testator.” - J7 - Counsel submitted that section 24 applies to a situation where an application under section 20(1) was earlier made to the court within the six months’ period, as stipulated by section 22, and the court made an order that a particular property in the estate of the testator should provide income for the maintenance of a dependant of the testator. It was his contention that section 24(1) is only concerned with such property. He submitted that after such an order is made, the court, upon application, can invoke the provisions of section 24 (1) to make a second order varying the previous order or to make provision for the maintenance of another dependant of the testator, from the same property comprised in the first order. He further submitted that section 24(1) is invoked only if an order under section 20(1) was made upon an application made within six months. He contended that an order for a life interest in an immovable property under Section 20 (2) (b) of the Wills Act can only be made within six months from the date representation for general purposes was granted. He argued that on this basis, the respondent’s action is not within the exceptions in section 24 of the Wills Act. He stated that the record would show that there was no order under section 20(1), charging any property from which income is applied for the maintenance of a dependant. He submitted that it followed that there can be no order for varying a previous order made under section 20 or for making provision for the maintenance of another dependant as - J8- envisaged by section 24. He argued that the facts of this case do not entitle the respondent to benefit from the exceptions in section 24. On the second ground, counsel for the appellant submitted that his arguments in ground one had demonstrated that the primary purpose of section 24 and Part III of the Wills Act is to provide for maintenance to a dependant. He pointed out that ‘maintenance’ is one of the key words under part III. He stated that however, a perusal of the endorsement on the writ and statement of claim categorically shows that the respondent is not seeking maintenance from the estate. He said on the contrary, one of the things the respondent was seeking was capital interest in the estate. He submitted that it is only beneficiaries of the Will who are entitled to the distribution of their shares after the estate’s liabilities have been settled. He said he would show in ground three that the respondent is not a beneficiary of the late Anderson Mazoka’s Will. On behalf of the respondent, Mr. Sitali opposed grounds one and two. He supported the decision of the lower court and submitted that the respondent is a biological son of the late Anderson Kambela Mazoka and this established his interest in the estate. He said the legal issue which the court below considered was whether or not the respondent, being a biological son of the late Anderson Mazoka, could take action against the estate. He submitted that the court below correctly held that the - J9 - respondent could do so and it anchored its decision on the provisions of section 24(f)(2) of the Wills Act. Counsel stated that the respondent was indeed a dependant of the late Anderson Mazoka. He referred us to section 3 of the Wills Act which defines ‘a dependant’ as a wife, husband, or parent and submitted that the respondent fits in this definition being a biological son of the late Anderson Mazoka. He argued that under section 24(l)(b), the respondent is entitled to bring an action before the court as an exception to section 22 of the Wills Act. He stated that contrary to what had been submitted by counsel for the appellants, there is no need for a prior order for an application to be made under section 24(l)(b). He submitted that a prior order would only be relevant under section 24(1)(a). He further contended that the only limitation under Section 24(1 )(b) is the type of order that the court hearing the application can make. He pointed out that the order by such a court would be limited only to the property the income of which is being used to maintain other dependants of the testator. He submitted that section 24 takes cognizance of the fact that a testator may omit in his will to make provision for a dependant and the dependant in such a situation has the liberty to apply to the court. He submitted that it is for this reason that the Wills Act under section 17, adopts the doctrine of equity in the interpretation of a Will so as to do justice. He contended that the appellants’ argument that the respondent is not mentioned -J10- or provided for in the Will, is actually the reason which necessitates this action so that the court can invoke its powers as provided in section 20 of the Wills Act, which empowers the court to make a reasonable provision for a dependant to avoid hardships being caused on him. He argued that a Will is not a ‘closed shop’ which can be allowed to cause hardships on the dependants of a testator. He submitted that the court below was on firm ground, in holding that the respondent’s action is not statute barred. He contended that it is a misdirection for the appellants to argue that the respondent is not claiming for maintenance in this action when so much hardship had been caused to him. He drew our attention to paragraph four of the statement of claim and contended that the respondent’s situation fits in section 24(1) (b) of the Wills Act, which allows the application for the maintenance of a dependant of the testator. We critically examined the issues raised by the parties in grounds one and two. The real issue as we see it in these grounds is whether or not the respondent’s action is statute barred by section 22(1) of the Wills Act. The appellants’ main argument is that section 22(1) barred the respondent from bringing his action after six months from the date on which representation to his late father’s estate was first taken out. Section 22(1) of the Wills Act provides that: -Jll- “22. (1) Except as provided by section twenty-four, an order under this Part shall not be made except on an application made within six months from the date on which representation in regard to the testator's estate for general purposes is first taken out.” It must be noted that Section 22(1) is found in Part III of the Wills Act and the reference to “this Part” in the section, is reference to “Part III of the Wills Act” under which it falls. In opposing the appellant’s argument, the respondent contends that his action is excepted from the statute bar by section 24(1) (b). Section 24(1) of the Wills Act provides that: “24. (1) On an application made on a date after the expiration of the period specified in section twenty-two, the court may make, only as respects property the income of which is at that date applicable for the maintenance of a dependant of the testator: (a) an order for varying a previous order on the ground that any material fact was not disclosed to the court when the order was made, or that any substantial change has taken place in the circumstances of the dependant or a person beneficially interested under the will in the property; or (b) an order for making provision for the maintenance of another dependant of the testator.” We are of the considered view that the applications envisaged in both sections 22(1) and 24(1), are applications for variation of Wills, as stipulated under Part III of the Wills Act. It should also be noted that Part III deals with matters relating to family provisions in a Will. It gives power to the court, on an application made by a dependant, to vary a Will where a testator has not made reasonable provisions in his Will for the -J12- maintenance of a dependant. This power is conferred on the court by Section 20(1) of the Wills Act which provides that: “20. (1) If, upon application made by or on behalf of a dependant of the testator, the court is of the opinion that a testator has not made reasonable provision whether during his life time or by his will, for the maintenance of the dependant, and that hardship will thereby be caused, the court may, taking account of all relevant circumstances and subject to such conditions and restrictions as the court may impose, notwithstanding the provisions of the will, order that such reasonable provision as the court thinks fit shall be made out of the testator's estate for the maintenance of that dependant.” Section 21 of the Wills Act goes on to set out the matters which the court should consider when varying a Will. From the foregoing, it is quite evident that the essence of Part III of the Wills Act under which sections 22(1) and 24(1) fall, is to make provision for variation of Wills. This, therefore, means that the respondent’s action can only be subject to the statute bar in section 22(1) or the exception in section 24(1), if this action can be said to be an application to vary a Will. A question that arises at this stage is: can the respondent’s action in this matter be said be an application to vary a Will? We do not think so. A perusal of the respondent’s pleadings shows that the respondent was not requesting the court to vary his late father’s Will. We are of the view this action is not subject to the statute bar in section 22(1) of the Wills Act. For the avoidance of any doubt, the respondent’s statement of claim reads as follows: -J13- 1. “The plaintiff is the son of the late Anderson Kambela Mazoka and consequently beneficiary of the estate of Anderson Kambela Mazoka who died on 16th May, 2006. 2. The 1st and 2nd defendants were appointed by probate to administer the estate of the late Anderson Kambela Mazoka on 22nd December, 2009. 3. From 22nd December, 2009 to date, the defendants have not disclosed the full extent of the estate and neither have they rendered an account for the estate. 4. From 22nd December, 2009 to date, the two defendants have neglected their duty and responsibility to pay education fees and maintenance to the plaintiff to the extent that the plaintiff has failed to complete his BSC degree at the University of Zambia on account of failure to pay fees. 5. The plaintiff is now in a destitute situation and is extremely apprehensive of the defendant’s inordinate delay in disclosing the full extent of the estate and failure to render an account and their negligent attitude to the plaintiff. 6. The defendants have lamentably failed to diligently discharge their duties and have greatly disadvantage the plaintiff as the beneficiary of the estate of the late Anderson Kambela Mazoka. And the plaintiff now seeks the following reliefs: (1) An order that the defendants disclose the full extent of the estate of the late Anderson Kambela Mazoka, who died on 16th May, 2006. (2) An order that the defendant renders an account of the estate of the late Anderson Kambela Mazoka as from 16th May, 2006 to date. (3) An order that the defendants distribute the estate to all the beneficiaries, including the plaintiff, in accordance with the law. (4) In the alternative, an order that the defendants be replaced by the Administrator General as Administrator of the estate of the late Anderson Kambela Mazoka. (5) Further or other reliefs. (6) Costs.” -J14- It is very clear from the statement of the claim that the respondent did not ask the court to vary his late father’s Will. Neither did he suggest, even faintly, that his late father did not make reasonable provisions in his Will for his maintenance as a dependant. He did not even bring out the fact that his late father left a Will. The reliefs which the respondent was seeking are clearly set out. These are: an order that the appellants should disclose the full extent of his late father’s estate; an order for the appellants to render an account of the estate and; an order for the appellants to distribute the estate to all the beneficiaries including himself, in accordance with the law. In the alternative, the respondent sought an order that the appellants should be replaced by the Administrator General as Administratrices. None of these reliefs is statute barred. As a matter of fact, the law allows any interested person to bring an action against an Administratrix to seek any of these reliefs that the respondent was seeking. See:- a. Lindiwe Kate Chinyanta v Doreen Chiwele, Judith Tembo(2) b. Section 45 (1 )(b)(c) of the Wills Act; c. Section 51(1)(e) and (2) of the Wills Act. We hold that the respondent’s action is not subject to any statute bar and the appellants’ objection was totally misconceived. The appellants seemed to have raised their preliminary objection because they entertained a misapprehension that the respondent was seeking to vary his father’s Will. -JI 5- Therefore, we uphold the lower court’s decision to dismiss the preliminary objection even though its reasons for doing so were wrong. The appellants’ objection was totally misconceived. We hereby dismiss grounds one and two, for lack of merit. We shall now move to ground three. In support of ground three, Mr. Kaunda submitted that the respondent has no interest in the estate of his late father. He pointed out that a perusal of the late Anderson Kambela Mazoka’s Will shows that the respondent is not a beneficiary of the said Will. He stated that the beneficiary children under the Will are those from the testator’s marriages. Counsel referred us to clause 4 of the Will which reads in part: “I DEVISE AND BEQUEATH all the residue of my estate both real and personal...in equal shares if more than one for all my children of both my marriages who attain the age of twenty-one years... He submitted that it was an undisputed fact that the respondent’s mother was never married to the late Mr. Anderson Kambela Mazoka. He argued that whilst a dependant may have an interest in an estate, such an interest is not infinite and may not last the lifetime of the dependant. He contended that on the basis of his arguments in ground one, a dependant’ interest is kept alive if that dependant makes an application under section 20 (1) of the Wills Act within six months as provided by section 22. His argument was that the failure to do so extinguishes the dependant’s interest or locus standi in the estate. -J16- Mr. Kaunda submitted that a Will can be varied, but for a limited period only to lessen hardship, if an application for such variation is made within six months from the date of a grant of representation for general purposes. He argued that since the respondent did not seek an order under section 20(1) within the statutory period of six months, the respondent’s interest lapsed by operation of the law on 22nd May, 2010, which is six months from 22nd November, 2009, the date of the grant of the Letters of Administration with a Will annexed. He observed that the respondent’s writ of summons was filed on 17th January, 2012, which was twenty-six months after the grant. On behalf of the respondent, Mr. Sitali opposed ground three. He submitted that the court below was on firm ground when it arrived at the conclusion that the respondent has an interest in the estate and that his exclusion in the Will did not bar him from taking legal action against the estate. He contended that the appellants’ argument that the respondent is not a beneficiary under the Will of the late Anderson Mazoka, does not mean that he has no interest to protect in the estate. He pointed out that it was an admitted fact that the respondent is a biological son and a dependant of the late Anderson Mazoka. For this argument, counsel referred us to section 20 of the Wills Act. He observed that the appellants did not appeal against a ruling of the Deputy Registrar which found that if the respondent is a biological son of the deceased and was left out of his father Will, then that fact could give rise to a cause of action as to the -J17- reasonableness of that Will. It was counsel’s submission that the respondent has an interest to protect and he was justified to have brought this action. We anxiously considered the appellants’ contention in ground three that the respondent is not a beneficiary under the Will of the late Anderson Mazoka and that he has no interest in the estate. We found it rather strange, that counsel for the appellants relied on this Will, a document which was not duly admitted into evidence in accordance with the rules of evidence. It was premature and procedurally wrong for the appellants to invoke the provisions of the Will at interlocutory stage, before it could be admitted into evidence. The appellants should have produced the Will as part of their evidence during trial to support their case. Clause 4 of the Will which they invoked only goes to show that there are indeed triable issues in this matter. The question of whether or not the respondent is entitled to benefit from his late father’s estate is a matter which can only be conclusively determined if the matter is heard on the merits, at trial. Here, we repeat what we have said before that: “...cases should, wherever possible, and where there is no prejudice to either party by some irregularity, be allowed to come to trial, so that the issues may be resolved. Interlocutory orders which prevent this should be avoided.” See: John Chisata v Attorney General(3). -J18- In this case, the appellants were not going to suffer any prejudice if this matter had been allowed to go to trial. We wish to categorically state that we frown upon the growing tendency by advocates to try to stop matters from being heard on their merits, by raising unnecessary preliminary objections calculated to prematurely terminate legal proceedings. The appellants’ preliminary objection that the respondent is not a beneficiary was premature and misconceived. Ground three lacks merit and it is accordingly, dismissed. We shall proceed to ground four. On the fourth ground, Mr. Kaunda submitted that since the appellant had demonstrated that the court below failed to fully appreciate the law that he cited in this appeal, the lower court gravely erred when it condemned the appellants to pay costs. It was his submission that this appeal should be allowed with costs. Ground four was countered by Mr. Sitali. He argued that the decision of the court below to award costs to the respondents was justified following the event of the appellants’ unsuccessful application. He submitted that this appeal should be dismissed with costs. We considered the arguments by counsel for the parties regarding the issue of costs. It is trite law that the awarding of costs is in the discretion of the court and such discretion should be -J19- judicially exercised. As a matter of principle, a successful party in an action is entitled to costs. Here, we shall draw the attention of the parties to: (a) Order 40 rule 6 of the High Court Rules; (b) Collett v Van Zyl Brothers Limited*4’ and; (c) General Nursing Council of Zambia v Inq’utu Milambo Mbangweta.*5’ When it comes to this matter before us, there is no dispute that the respondent was the successful party after the lower court dismissed the appellants’ preliminary objection. The court below accordingly awarded costs to the respondent as the successful party. Undoubtedly, its decision was in accordance with the principles of law that we have highlighted regarding the award of costs. There is no merit in ground four. It is accordingly dismissed. All in all, this appeal lacks merit. We hereby dismiss it. We shall in the circumstances send this matter back to the High Court so that it can be heard on the merits. We award costs to the respondent. These are to be taxed, in default of agreement. Supreme court judge Supreme court judge