Odiile Loukombo Chelemu and Anor v Chana Chelemu (Sued as Administratrix of the Late Weddie Chemlesya Chelemu) and Ors (2022/HPF/453) [2024] ZMHC 300 (2 August 2024)

CamScanner I IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Family Jurisdiction) J1 2022/HPF/453 IN THE MATTER OF: ORDER 30 RULE 12 (c) and (e) OF THE HIGH COURT RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA IN THE MATTER OF: SECTION 19 (1) OF THE INTESTATE SUCCESSION ACT CHAPTER 59 OF THE LAWS OF ZAMBIA IN THE MATTER OF: AN APPLICATION FOR AN ACCOUNT AND ADMINISTRATION AND OF AN ESTATE IN THE MATIER OF: THE ESTATE OF THE LATE WED DIE CHEMLESY A CHELEMU BETWEEN: ODIILE LOUKOMBO CHELEMU CLAIRE BUPE CHELEMU AND CHANA CHELEMU (Sued as Administratrix of the Late Weddie. Chemlesya Chef emu) MARGARET CHELEMU ' ·. (Sued as Administratrix of the Late Weddie Chemlesya Chelemu) . ~ .. . ;' ' ~i' 1, • CAROLINE CHELEMU (Sued as Administratrix of the Late . Weddie Chemlesya Chelemu) 1 ST APPLICANT 2ND APPLICANT 1sr RESPONDENT 2ND RESPONDENT JRD RESPONDENT Before the Hon. Mrs. Justice T. S. Musonda For the Applicants Mr. J. Tembo of Messrs. August Hill & Associates For the Respondents Mr. P. K Chibundi of Messrs. Mosha & Co . Legislation referred to: JUDGMENT J2 (1) (2) (3) The Intestate Succession Act, Chapter 59 of the Laws of Zambfo The High Court Rules, Chapter 27 of the Laws of Zambia The Rules of the Supreme Court (White Book) 1999 Edition Cases referred to: (1) In Re Adoption of Dally, 36 III. App.3d 962 (III. App. Ct.1976) (2) Charity Oparaocha v. Wlnifrfdah Muramblwa, (2004) Z. R 141 (S. C) (3) Lyons Brooke Bond (Zambia) Ltd v. Zambia Tanzania Road Services Ltd, (1977) Z. R 317 lnvestrust Bank PLC v. Pamagwe Investment Limited and Others, (2020) ZMHC 175 John Sangwa v. Sunday Nkonde (SC), SCZ Appeal No. 2 of 2021 Rosemary Musa Phlrl (Suing as Administrator and Beneficiary of the Estate of the Late Charles David Phiri) v. Comfort Lozilifo Phiri, 2013/H P /0593 (4) (5) (6) (7) Mike Msandine Phiri & Another v. The Registered Trustees of the Catholic Diocese of Mpika, 2017/HP/0587 (8) Benny Nkhowani v. Constance Nkhowani (Sued in her capacity as . . Administrator of the estate of late George Nkhowani), the ~ I ,: . • .-. • ,' 2019/HPF/312 (9) Lindiwe Kate Chinyanta v. Doreen Chiwele Judith Tembo, SCZ Judgment No .. 28 of 2007 . · (10} Gray Nachandwe Mudenda v. Dorothy Chileshe Mudenda, (2006) Z. R (11) Mrs. Margaret M. S. Mulemena v. Benny Chiholyonga, Getrude Matokwani Chfolyonga and Chilambwe Tindye Mapulanga, SCZ Appeal No.14 of 2019 INTRODUCTION l. The Applicants, Odile Loukombo Chelemu and Claire Bupe Chefemu approached this Court by way of Originating Summons dated 5th September 2022, filed pursuant to . Sections 19 (1) of the Intestate CamScanner J3 succession Act, Chapter 59 of the Laws of Zambia. The Applicants seeking the following reliefs: (i) An Order that the Res·pondents in their capacity as Administratrices of the estate of the late Weddie Chemlesya Chelemu disclose and produce before this Honourable Court an inventory of the estate of the late Weddie Chemlesya Chelemu namely; real estate, money and other chattels; (ii) A further Order compelling the Respondents to account for the manner in which they have so far distributed the estate of the late Weddie Chemlesya Chelemu; : : ~ ., ! (iii) An Order deta_iling and listing the individuals who are legally and beneficial_ly entitled to the estate of the late Weddie . . ; . . Chemlesya Chelemu and the proportion that each of those individuals listed is entitled to receive; (iv) An Order compelling the Respondents to grant or avail the Applicants with their full share of the estate of the late Weddie Chem,esya Chelemu; (v) An Order that the Respondents refrain from taking any further actions ir. the administration of the estate of the late Weddie ·Chernlesya Chelemu until the production of the inventory afor,estated an_d subsequent order being made -. . by the Court; ·' •:· . {vi) An Order that_ costs of the action be borne by the Respondents; and (vii) Any other reliefs the Court. may deem fit. 2. This application is supported by an . Affidavit and Skeleton Arguments dated 21 st June 2021. 3- The application is opposed by way of an Affidavit in Opposition and Skeleton Arguments dated 3rd August 2021. . ' CamScanner THE APPLICANTS' CASE 4. The pt Applicant claims to be a beneficiary of the estate of the late Weddie Chemlesya Che_lemu -(hereinafter . referred to as the · "deceased"). She was ma:rried fo the .deceased on 5th December 1992 under_ the laws of the Repu'biic of (:()ngo Brazzavile as shown by exhibit . "OLCCBCl ", a copy of the tv\arriage ~.ertificate . . 5. The ~eceased passed away on 15th May 2012, as confirmed by a · copy . , , . . ; . . . of the Death Certificate, exhibit "OLCCBC2". Initially, the 1st Applicant and two of the deceased's children were appointed as Administrators of the deceased's estate as evidenced by a copy of the Letters of Administration, exhibit "OLCCBC3( a)". However, they were subsequently removed from their roles as Administrators by a Consent Order ( exhibit ,_ · . . ' ' "OLCCBC3(b )"). Following this, the Respondents commenced an action • • ' ' '. I ~- • ,, in the High Court under CaL,Jse No. 2017 /HPF/0028. 'l : . .. -· . ·_ . . 6. The High court issued a · Judgment dated 28th February 2020 ( exhibit . ' ·, , .•.: "OLCCBC4"), declaring ,tre . 1st . Applicant a dependant of the ., I , I , ' . • ;,• • , , deceased's estate. Despite the. Judgement, the Respondents have ' . .-· . ·. . ' . . ·. . ' _. ; \- faile'd and or ·neglected . to ;Provide }he 1 s_t Applicant with her rightful share of the estate. 7. According to · the Applica0t, the ~~spondents contend that the l st Appncant failed to account_ for and provide an inventory . of the deceased's estate during her tenure as Administrator. ' . • 11 ' . 8. As evident from Cause N<?, . 2017 /riff /0028, the reliefs sought by the Respondents included an order that the 1st. Applicant account for and or provide an inventory , of the deceased's estate. However, the ' . ' ) ! _ _;f, .• I • . · I , ' . ! • inventory sought was alrea.qy provided in the said action. ' ' . 9. · According to the 1st Applicant, a~ the time she ceased to be .. Administrator of the deceased's estate, she was aware that the I deceased had an active account with the United Nations (UN) credited with approximately US$ 106,000.00 and real property in Lusaka,· specifically, Stand Number 1139, Lumumba Road and Farm No. 874. CamScanner JS 10. The 1st Applicant alleges that the Respondents, since their appointment as Administrators of the de~eased's estate, have failed to administer the · estate. Furthermore, they hqve not give_n the l st Applicant her 10% share · which she is entitled to follo'Ning her declaration as a dependant of the deceased's estate by the High Court. · 11. Th~ 2nd Applicant claims to. be the ~aughter of the deceased and a ·_ beneficiary of his estate. T~e; 1st Applicant is her mother. • ... ··,·. · .. ··: . , . . . . ' ' 12. At the time this action was filed, the 2nd Applicant was 22 years old and · a law student at the University of Lusaka,. as evidenced by the copy of her. student identification card (exhibit, 110LCCBC5"). 13. The l st Applicant who is her mother, iniJially provided her with all her basic . needs, including school fees, clothing, .food and accommodation. After , ; __ ;_ \ . ( . ' ·, ' the 1st Applicant was rem,oved as, Administrator of the deceased's ', estate, the Respondents paid for the 2nd Applicants' basic necessities. I • , These necessities included university school fees and books. Despite this, . the 2nd Applicant still required money for various expenses; including ' 1:·. ' ' . : '.! , . internet services for her stu_dies, transport allowance to and from school, -<.· clothes and food. 14. During a meeting on 7th Nqyember 2020, the Respondents provided an .'• .. i, r • .·.;,, • ' ' update on the status of the. 9eceased 's estate. A copy of the proposed . ' ' ' agenda for this meeting is,, attach!3<:L as exhibit "OLCCBC6.". After this ' : I I l' ; ' \ 1 .. , · ' meeting, the Respondents _ credited the 2nd Applicant's account with KS0,000.00 . . Previously, they had paid her an upkeep allowance of > , ' ,'_ K2,500.00 from July 2020 to . November 2020. However, this upkeep l •j • allowance was insufficient t6 meet her monthly needs which included, talk time, toiletries, transport expenses to and from the university and ... •. printing of school materials. This was in consideration that she was the ,,,· ; ' youngest of the deceased's children. 15. Consequently, she had to rely on the 1st Applicant to fully meet her monthly needs. Additionally, she cl9ims that her mother had been deprived of her benefits under the deceased's estate. CamScanner J6 16. The 2nd Applicant further alleges that despite the Respondents' disclosure of some of the deceased's assets, they have never provided her with a comprehensive and documented inventory of the deceased's estate. The .· inventory · was required to enable her understand and appreciate the full extent of the deceased's assets. 17. The Applicants jointly contend that the Respondents have refused to properly administer the deceased's _estate. Instead, the Respondents have indicated their intention to transfer the assets of the deceased into a Trust, which themselves would manage. 18. The Applicants contend that the Respondents had commenced construction works on one: of the deceased's properties namely, Stand •• , • • 1· No. 1139, Lumumba Road, Lusaka, as evidenced by images of the said . • ' , . _, . ,·, . / . •' ' 110LCCBC7". The construction sites collectively marked exhibit, Applicants allege that. the f Onstru_ction services were provided by a spouse of one of the Respor:,~ents. :·. ~. :_ . ____ . . . ' : 1. . "' 19. Additionally, the Applicants discovered that the Respondents · had . l . commenced constructing houses on another of the deceased's > l I • • properties namely, Farm No .. 874, Lusaka. To verify this information, the · . ' . Applicants conducted a site visit and have provided photos of the . . ' ' , ' ~ construction, which are collectively marked as exhibit "OLCCBC8". 20. During a family meeting on 23rd July 2022, the Respondents revealed that 1 • • • ' .•• ' ' they had begun building houses for their siblings who are serving as . . caretakers of the estate. .·, ', .. ,' . . ·:. ~ i . .,, ), '. . • . ~- ~ • ;.- . 21. The Respondents have 91~0 adde,? new members to the list of beneficiaries, including Yambala Chelemu, which the Applicants claim I , · ' ' · is not tenable at law. 22. The Applicants assert that the only rightful beneficiaries of the deceased' s estate are as follows: · (i) Children (a) George Chelemu; (b) Kelvin Chelemu; CamScanner J7 (c) Micheal Chelemu; ( d) Magaret Chelemu; (e) Caroline Chelemu; (f) Matanga Chelemu; (g) Chana Chelemu; (h) Alilabwishe S:helemi. J; · (i) Katende C_hel_emu; :. (j) Weddie Chelemu; [k) Ronah Chelemu; [I) Kapembwa Chelemu; and (m) Claire Chelemu .. · (ii) · Dependants; · : .. (a) Odil~ Cheler:nu; (b) Micheal ·chelemU;· and ' . (c) Vinny Mbernba 23. It is against the background of the Applicants' case that they are I ' ' • ' opposed the continued administration of the deceased's estate by the Respondents. •":;; , 24. The Applicants sought the provision of the following by the Respondents: · (a) An inventory of the deceas'ed's estate; (b) An account of the for real estate, money and other chattels of the deceased; and ( c) The distribution of the estate to the beneficiaries. THE RESPONDENT'S CASE : ·,:_ 25. The Respondents' case, -as stated · in the jointly sworn Affidavit in Opposition, is as follows: 26. The fact of the deceased's death was not in dispute. However, the 1st Applicant's marriage to the deceased was declared void ab initio under the High Court Judgment exhibited as "CCMCCl ". CamScanner JS 27. Contrary to the 1st Applicant's claim, it was not true that she and the deceased's children were appointed as Administrators of the deceased's estate. Instead, one of the Administrators was the deceased's nephew. Furth~rmore, the 3rd Respondent was not a party . to the action under Cause Number 2017 /HPF/0028. 28. Additionally, the Respondents had not failed and or neglected to provide the 1st Applicant's 10% share of the deceased's estate. Instead, the 1st Applicant failed to render a true and proper account of the income and expenditure of the deceased's estate during her tenure as Administrator, despite being called upon to do so on several occasions. · This was evident from copies of 1.~tters addressed the 1st Applicant's previous .and present Adv6c:qtes ( ex~i.bit "CCMCCC2"). ' . :: 29. The Respondents are willing, and ready to give the 1st Applicant her 10% I • , • share, provided she renders a true and proper account of the income • '> I • • . and expenditure of ·the deceased' s estate and pays back any monies found ,due to the estate. The Respondents' reconciliation showed tha~ the l st Applicant owed the deceasesJ's estate the sum of K2, 385,611.53. This affected the Responder,ts' ability to clear debts of the estate and pay out the amounts due ... : · 30. The Respondents dispute th~ l st Applicant's claim that she provided an ,inventory. They argue thot the J.st Applicant's knowledge .of the l· -' , . :·· . . . ~ ·.: . . . . . , . deceased' s estate comprising US$ .l06,000.0Q is within her peculiar , , . . ···''- .. , i. ·,., .. ,;, _ . . . . ' knowledge. She should provide the necessary details to benefit · the . . .' ! estate. 31 . The Respondents agree that the deceased' s estate includes real property, namely Stand No .. 1139 and : Farm No. 87 4, situate in Lusaka. They claim that they were unable to clear the debts and liabilities of the deceased's estate due to a Caveat placed on the properties (exhibit "CCMCCC8"). 32. The Respondents argue that they would be seeking the determination ,' l • t of the status of the 2nd Applicant as a child of the deceased, given the '. J CamScanner J9 Judgment under Cause Number. 2017 /HPF/0028, which annulled the marriage between the 1st Applicant ar,d the deceased. In the absence ·of a valid husband and wife relationship, it was not possible for the pt _ . Applica_nt and the deceas~d to hav~ adopted an infant. . . . . 33. The Respondents acknow,ledge that the 2nd Applicant was initially provided with basic nece,ssities as a beneficiary of the estate. They continued ' to prioritize ·. her educational ; •.·: . . . .. . interests, despite ' the 1st Applicant's failure to properly account for the deceased's estate. 34. The Respondent's agree that they provided the 2nd Applicant with a monthly stipend from July 2020 to November 2020, and paid her school fees, considering she was still,a student. In response to her claim that the ". ' . . l stipend was insufficient, they considered the cost of living and available · . t _I·. . . resources. Further, they provided th~ · 1st Applicant with a tabulated , -1 ' \ calculation of the stipend presente,d in the Administrators' meeting minutes of 23rd April 2020. Ttie l st Appl it ant was tasked to transmit the ·· .. , .. ,_ ' . \_ . calculation to the 2nd Applicant, . as. evidenced by the copy of the minutes, exhibit "CCMCC9". Furthermore, . they informed . ,. -· ; • ' .1 • . the 2nd . ' Applicant of the discontinuation of the monthly stipend following the . ' . partial distribution of the estate. 35. The Respondents agree that they gave beneficiaries an update on the , . · , status of the estate on 7th November 2020 and credited the 2nd Applicant's account with the sum of K50,000.00. The Respondents . consulted and made interi.m paymet1ts after reaching consensus with ·:· ;- <.- the beneficiaries as evidenced by the copy of minutes of the minutes, I , '._. , exhibit "CCMCCCl O". . i ,,.. . ,· . .. . 36. The Respondents also contended that they had been transparent in their dealings with the deceased's est_ate, contrary to the 2nd Applicant's claim. They had called for beneficiaries' meetings and provided updates on all assets and related affairs of the deceased 's estate. The 2nd Applicant had attended most of the meetings. The inventory and accounts of the estate sought by the Applicants were readily available CamScanner JlO upon request. Furthermore, the Respondents had rendered an inventory of the deceased's estate during the initial family meeting of 6 th June 2020, following their appointment as Administrators, as evidenced by exhibit 11 CCMCCCl l ", the copy of the meeting minutes. 37. The Respondents accordingly disputed the Applicants' claim that the Respondents had failed to administer the deceased's estate. They claim that their capacity to clear the debts owed by the estate and pay out . ·. due amounts to the beneficiaries had been negatively affected by their failure to recover funds owed by the 1st Applicant to the estate. The Respondents exhibited the summary of the preliminary account of the income and expenditure of the deceased's estate for the period May 2012 to April 2020, and supporting documents from which the summary was created, based on income records and invariable receipts provided by the l st Applicant ( exhibit "CCMCCCl 9"). 38. According to the Respond,~nts, the d~ceased's estate was now stable compared to the state it was in at the time they were appointed as I ' , , Administrators. 39. The creation of the trust referred to by the Applicants, was done with the . 1 . ',. consent of the majority of the beneficiaries as demonstrated by the ',. ' ' . , • copy of meeting minutes, . exhibit "CC::MCCCll-12". The trust _aimed to allow the estate to continl!e generating income for the benefit of its beneficiaries. 40. According to the Respondents at the time they were appointed as Administrators, Stand No. 1,139, Lumumba Road was in a dilapidated and hazardous state. The demolition and subsequent patch up work on the property were undertaken to comply with the Fire Brigade inspection recommendations to address fire hazards. The Respondents claim that the Applicants' claim that_ construction works were being done by an ' ,! . individual or entity who was a spouse to one of the Respondents was within their peculiar knowledge. CamScanner J11 41 . The Respondents further deny the accuracy of the Applicants' claim that the Respondents were constructing houses on Farm No. 87 4 and admitted in a family meeting of 23rd J~ly 2022, that the houses were for · caretakers of the decease.d's estate.>The two houses were already in existence before the deceased's death. Further, as evidenced by meeting minutes of 3rd October 2020 (exhibit "CCMCCC13-14") , the beneficiaries were present when the decision to renovate the houses was made. 42. The Respondents contend that the ex-gratia principle was used to include children of the beneficiaries' siblings who had passed prior to the deceased's death. The beneficiaries unanimously agreed in the . . . . . meeting attended by the Applicants that, Yambala Chelemu and Nale Chelemu were to benefit only from the 90% share due to the deceased's children. This was evidenced by exhibits "CCMCCC15-16", copies of the meeting minutes and dedsion. 43. Furthermore, the Applicants' list of beneficiaries was inaccurate because it did not include the deceased's late wife, Mary Chelemu . 44. In conclusion, notwithstanding the challenges presented on account of theist Applicant's default, the Respondent had produced a preliminary inventory, accounts status .?nd administratorship activity report, exhibit "CCMCCC20". I . ', THE APPLICANTS' CASE IN REPLY '. · , 45. The l st Applicant contends that if she · did not render a proper account of the administration of the deceased 's estate, the Respondents had an opportunity to address the issue under Cause No. 2017 /HPF/0028. They could not unjustly withhold the 1st Applicant's 10% share of the estate without a Court Order or in the absence of breach of a Court Order. 46. The l st Applicant reiterated that she was aware that the deceased had a UN account with the Union Bank of Switzerland (UBS) until his death. She acquired this knowledge through his employment with the UN during her cohabitation with him. She requested for a detailed statement from CamScanner J12 UBS, as evidenced by exhibit "OLCCBCl ". The account statement (exhibit "OLCCBC2") as of 31 st March 2012, showed there was a balance of US$ 106,834.33 . . 47. The 1st Applicant claims that she was informed by family members that the 1st Respondent's mother received money from the UN Joint Pension Fund. Acting on the inforrnation, the .ist Applicant wrote to the Fund's legal officer to inquire about .the mon,ey. However, the information could . not be released without a Court Order as the email exchange, exhibit "OLCCBC3" demonstrates. 48. The 1st Applicant contends that she discovered that the deceased's UN account was blocked. Her. inquiry revealed that the account was blocked on the 2nd Respondent's instruction. 49. The pt Applicant was also aware of the deceased's current account held . at the Standard Charted Bank Zambia Limited Pie, as evidenced by exhibits, "OLCCBC4". The 2nd Respondent was a signatory to the - .•, , , '. I Account and concealed . this ..in,formation . Consequently, the Respondents were falsifying facts on oath. I ( ; 50. The Applicants agreed that they had placed a Caveat on Stand ·. "··' . ' ' No.1139, Lumumba Road and Farm No.87 4. They acknowledge that they received a request through the Respondents' Advocates to partially lift the Caveat. The Applicants were apprehensive about the administration of the deceased's estate by the Respondents and declined the Respondents' fequest. 51 . However, the Applicants on two occasions requested the Chief Registrar of the Lands and Deeds Registry to par_tially lift the Caveat for the benefit . . of persons in the letter authored by the Respondents' Advocate, as i , . ! . I . evidenced by exhibit, "OLCCBC6". ' ,, 52. Regarding the adoption, th.e 2nd Applicant contends that the annulment of her mother's marriage to the deceased had no effect on her adoption. The 2nd Applicant was accordingly a child of the family as CamScanner J13 demonstrated by exhibit "OLCCBC9", the copy of the Adoption Order which had never been vacated. · 53. The 2nd Applicant also c_ontends that exhibit, "OLCCBC7", a letter authored by the Attorney General showed that it was the relationship . between the 1st and the Respondents, which led to the removal of the l st Applicant as Administrator of the deceased's estate. 54. The 2nd Applicant reiterated that she was unable to meet her monthly needs and the K50,000.00 she received had since depleted. 55. Additionally, the tabulated calculation of the meeting of 23rd April 2020 referred to by the Respondent was generated in 2020. The cost of living had since escalated. Furthermore, the Applicants were never asked to , ~ ,.• • I make any contributions during the meeting. 56. Notwithstanding the pay~ents rec~ived by . the 2nd Applicant, . the Respondents were still un'der an obligation to administer the deceased's . estate. 57. The 2nd Applicant could not ascertain .whether her monthly stipend was paid out of available resovrc,es because of the Respondents failure to ,' . • t • provide her with a true and accurate inventory. • ! • • • • • I 58. Furthermore; two beneficjqries, Ma,ta_nga Chelemu and Kapambwe ; .. ·. Chelemu were receiving monthly stipends despite being paid lump · ::,.• '. . '• ,I sums. This position could ohly be disput~d if the Respondent proy)ded an :, ·, -· ,' ' inventory which included bank c:ind rer:-ital income statements. ' . '~: '. . . . . . . . 59. The Respondents claim that the 1st Applicant owed the estate the sum . ', , ; \ of K2, 385,611.53, could only be ascertained through the production of . : ., · . . ' ' factl,Jal evidence. 60. The 1st Applicant was transparent during her tenure as Administrator. She provided for the l st Applicant, other beneficiaries, and many other family members of the deceased. 61. The 1st Applicants through her Advocates C. Chonta Advocates I j • • provided the Respondents with a handover report (exhibit "OLCCBC8"). The Respondents failed to point out discrepancies in the report to justify CamScanner J14 the withholding of the ist Applicant's 10% share of the deceased's estate. . ·. 62. Additionally, the Responderts' failed Jo prove their claims regarding the · .. : ' 1st Applicant's mismanagerr1ent of the .estate -through the production of l . , . • bank statements or other evidence . showing the withdrawal of funds . . '• . · which could not be accounted for. ; · ·• · . ~ .. · 63. The 2nd Applicant notified_- fhe 2nd R:e:spondent that she did not wish to be part of the trust referred to by the Respondents. The consent of most of the beneficiaries to create a trust did not take precedence over the 1st and 2nd Applicants rights for an order to account and administer the estate. 64. Additionally, it was necessary for fhe Applicants to understand the extent of the deceased's estate and what it was comprised of before the trust could be created.,,:-:: 65. The Applicants therefore rejterated their request for a proper inventory I . of the deceased's est9t_e, . backed by bank statements and ) . '. • • • :• _ • • ' • ' • ~ • • • • • • independently verified reports. This yvould also prove the Respondents claim regarding the stability of the estate. ', ' • , 66. The Respondents had also failed to produce pictures of the dilapidated state of Stand Number 1139, Lumumba Road and the Fire Brigade · Inspection Report upon which the Court could rely. . 67. Contrary to the Respondents' assertions, the buildings on Farm No. 874, ' ' were new buildings and this fact could be verified if the 1st and 2nd . ,, . ,'· ; ' ,, ,· I • I , , , Applicants' prayers under 1his application were granted. 68. In _ conclusion, the Respondents could further not invoke the principle of ,-,.1 • •! I • ex-gratia, which could not override the law. They could therefore not l ,A ;> , ••• declare Mary Katili as a dependant. ISSUES FOR DETERMINATION 69.1 have reviewed the partes' rival Affidavits and Skeleton Arguments. 70. The main issue for determination is whether the Applicants are entitled to the reliefs sought. CamScanner JlS THE LAW, ANALYSIS AND DETERMINATION 71. Order 30 Rule 12 of the High Court Rules and Section 19 of the Intestate Succession Act grant this <::ourt the ·power to determine any question arising in the administration· of a dec~ased person's· estate. This matter is .· thus properly before me. 72. It is a well-established principle that · a party seeking to establish the existence of a given , set ·of facts has the burden of proving their -.: -· . existence, and such proof rnust be on a balance of probabilities. 73.1 will deal with the reliefs ·sought by the Applicants in a manner that facilitates a clear and efficient resolution of the issues, rather than adhere to the order they w,e/f;; listed_. :f-d.ditionally, certain pertinent issues have been raised by both parties that cannot be overlooked, as they . -· require resolution before' _ I can make · informed decisions on the '. -, respective· reliefs sought. I will therefore consider and addres_s these key ' j . . -.. : issues.before pronouncing rr\y decision on the reliefs sought . . 7 4. In my opinion, it shall· be pn)9ent for 11)6 to firstly address the third relief • I / ( . ' , . • ' • :· , ~ ' , . •• ' sought by the Applicants, wrii,ch seeks. a pronouncement on the persons . . rightfully entitled to benefi,t, from the deceased's estate and the . \: !· \• . . ' ' . ' . • ,•.· . ·, proportion that 'each of the _benefickJries is entitled to receive. . . , ,._ ; (I) . ·. The · Applicants claim · for an· / order detailing and listing the individuals who are legally and beneficially entitled to the estate . of the late Weddie Chemlesya Che/emu and the proportion that each of those individuals listed is entitled to receive • ' •. . I 75. Firstly, I will address the Respondents,, argument regarding the status of the 2nd Applicant, who is listed as one of the beneficiaries of the · deceased's estate. The status of the 2nd Applicant 7 6. The Respondents argue that pursuant to the Judgment under Cause No. 2017 /HPF/0028, the marriage betw~en the l st Applicant and the deceased was declared null and void ab initio. Consequently, in the absence of a valid husband and wife relationship, it was untenable for CamScanner Jl6 the l st Applicant and the deceased to have adopted a child (the 2nd Applicant). . . 77. In response, the Applicants' ·skeleton 'Arguments cited Sections 3 and 4 of the Adoption Act, Chapter 54 of the Laws of Zambia. They argue that despite the annulment of the 1st Applicant's marriage to the deceased, the Adoption Order was issued prior to the said annulment. Therefore, the 2nd Applicant's status as an adopted child could not be affected. , The Court was urged to look at the circumstances of this case as a whole, including that the Adoption Order was granted when the marriage was deemed valid; the best interests of the child should be considered; and a legal father-child relationship existed between the . i :. ' 1• '.: •• ~ I , • . deceased and the 2nd AppHcant until the deceased's death. 78. Further, they argue that und_er Section 13 (4) of the Adoption Act, the I • ' • ' Adoption Order remains vqlJd in the . 9bsence of any order quashing it. ' : Therefore, · the 2nd Applicant . should · be treated like a child born within :, .~ .. ( ; : . . . • • I ! , ,._. , , ',: ,_ wedlock, as provided for in Section ·15 of the Intestate Succession Act. . ' ,79. Furthermore; the Respondeots cannot question the 2nd Applicant's status bec·ause the matter is statute barred. The Applicants rely on Section 2 (4) of the Limitation Act which states)ha1 ~o action can be brought on a judgment . 12 years after the · judgment took force. Additionally, · I • j ' pursuant to Section 2 of the High Court Act, an adoption order falls under ' .. · , ' . ' \ . ' ' the definition · of a judgment,. which includes decrees and orders of the ' ' - 1,: '.. ,J ' . court. Similarly, Section 2 of, the Court of Appeal Act, No. 7 of 2016 defines . : . • ,· : ; • 'J ' t· . . . ' ' • • \ a judgment as including a decree, ruling, order, conviction, sentence, and decision. 80.1 found the persuasive American case of In Re Adoption of Dally (1) to be helpful in resolving the Respondents' contention regarding the 2nd Applicant's status. 81 . The brief facts of the case are as follows: the Appellant/Petitioner appealed against the trial C?urt's decision to dismiss a Petition to vacate the adoption decree because the marriage between his former wife a l ' )It I · . CamScanner J17 and himself, both parties to a joint adoption, was dissolved by a subsequent annulment. 82. The Petitioner argued two main points. 83. Firstly, since his former wife . and himself. were never legally married, they . . . were not married at the time· of the a_qoption. 84. Secondly, if they were nofmarried during the adoption proceedings, ' ' •• • ' # • they were not legally capqple of jointly adopting -a child under Section . ' .,,, . 2 of the Illinois Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-2). 85. The Appeal Court noted that this issue was relatively unique and · there were few precedents in this area. However,. there were cases that dealt with the questior,i.of whether the doctrine of annulments "relating back" · to the beginning of a marriage, makin·g it void from the start, should apply to affect the rights of third parti_es. In considering this doctrine, the : ' Court had to keep in mind the impact, on the rights of third parties, such · . , . • • . j ' as · the adopted minors · before it .· and not merely the rights and . obligations of the two pcfr~riers .to the marriage. 86. The Court · noted that the Petition to . vacate the adoption was solely based on the fact that the marriage between the Petitioner and his • .; ·· . I. I ' • former wife was annulled after their joint adoption of the minors. , I , ' , I , . 87. The Court held that it would be improper to apply the doctrine that declares an annulled marriage void-from the beginning to the_ v1alidity of the adoption, as it would unfairly affect the rights of the minors, who ' ., l • • ' were. third parties to the annulment action. The adopted minors were I ; _ ' - ,11•;· , . not parties to the alleged, f(aud the Petitioner's former wife may have 1' 1 ' ,' ' • perpetrated against him qr:id were not to suffer the consequences of I_., ,· ' ' another's actions. This view was consistent with the Illinois Adoption Act's , I • ' , ~ ' ' strong emphasis on prioritizing the best interests of adopted children . . ' 88. In considering the case before me, I acknowledge that the facts can be distinguished from the cited case in ~:>ne respect. This is because the Dally case emanated from a divorce petition where the Petitioner sought to annul the marriage based on his former wife's alleged fraud. CamScanner 89. In contrast, the present case involves a different set of circumstances. The annulment of the marriage between the 1st Applicant and the deceased did not emanat_E{ from divorce proceedings. . -·. 90. Although circumstances differ, I notice some similarities with the Dally case. The annulment in that case declared the marriage void ab initio, ~-. . just like the annulment of the 1st Applicant's marriage to the deceased . . Additionally, the Petitioner ,n the Dallycase made a similar argument to the Respondent's argument in this case, that the annulment should : . . . . . ~ ' retroactively invalidate the.2nd Applicants adoption. 91. To illustrate, the Petitioner 1~ the Dally case argued that following the · annulment of tne marriag~ between . himself and his former wife, they were , never married , and . therefore , n·ot . married at the time of the . . ', adoption. If . they . were . ~ot_ marri __ ~d at the time of the adoption ..·. ,· ;· '. .·-,·-: . . . ' proceedings, they were· not legally capable of jointly• adopting a child ' • ' · under the Illinois Adoption Act. 92. Similarly, in th_is case, it was .argued th~t following the declaration of the •~ • ' J ("I marriage of the 1st Applicant to the deceased as null and void ab initio, there was no valid husban~, and wi;~ :~elat.ionshi~. -Therefore, i.t was not • I • , t , , • 1 • l ' ' ' possible for -the : 1st Ap.plicant and the deceased to· have adopted a . ~ J. . child. • , . • 1 ; ' J·/ • ' 93. ls the Respondents' argument merited? · ' • • • , ' • L . ! , - I 94. Based on the persuasive rea'soning of the Court in the Dally case, which I ado_pt, my short ansVv'.er is rhat the Respondent's argument has no merit. 95. Why do I say so? 96. As reasoned in the Dally case, it would be improper to hold that the declaration of the 1st Applicant's marriage to the deceased as nu/I and void ab initio should annul the 2nd Applicant's adoption. Such a course ._, would adversely affect the rights of an innocent third party (the 2nd , ,. Applicant) who was adopted at the time parties to the annulled .. marriage believed they were married. \ CamScanner J19 97. It is apparent from the Affidavit in Opposition that the Respondents in any case contradict themse_lves. On one hand, they attack the status of the 2nd Applicant (paragraph 17), but on the other hand, they claim to have prioritized her educational inte~ests and made payments · for her maintenance (paragraph 21). Furthermore, they have consistently endorsed the 2nd Applicant as a beneficiary of the deceased's estate, as evident from their own . exhibits: 11CCMCCC2" ( a letter addressed to the l st Applicant at page 2 point 4), exhibit 11CCMCCC3" (minutes of the inaugural Administrators and beneficiary meeting of 7th April 2020, agenda item 4), exhibit 11CCMCCC6" (page 2 point 4), and exhibit "CCMCCC9" (minutes of another Administrators and beneficiaries meeting of 23rd April 2020, qgenda iteni 1) . . . ·,. ··. ., ' . ·,, .. , ' ' ' . 98. It is equally important to note that S_ection 13 (4) of the Adoption Act, ,, ' I • ' ' ' • . clearly-stat.es that an adoption order can only be quashed by a Court order. · 99. In the absence of a . Court order va_cating the 2nd Applicant's adoption, ' ' ,,J, I • •: • , • • th~ deceased was the 2nd l}PPlicant'.s adoptive parent at the ~ime of his death; making the 2nd Applicant the 1st Applicant's child as well. I hereby declare that the. 2nd Appli~ant shall continue to be deemed a child of ' I . · the decease,d.·. As · a result, she is legally entitled to a share of her adoptive father's estate, as per Section 3 of the Intestate Succession Act, wl;1ich defines a child entitled to inherit as: a child born in or out of •• '•,• \ ••·1 . • ., • • I • • , I ' ' ' ' ' '. I, i . 1• - · i · marriage, an adopted chil_d., or a chil_q_ .. conceived but not yet born . . ' l ' . . , ' Who are the rightfully entitled beneficiaries of the deceased's estate? ) ,.: . ' , , .. , l 00. The Applicants' assert that, to the best of their knowledge, the beneficiaries of the deceased's estatE; are as follows: (i) Children namely: (a) George Chelemu; (b) Kelvin Chelemu; (c} Micheal Chelemu; (d} Margaret Chelemu; CamScanner J20 (e) Caroline Chelemu; (f) Matanga Chelemu; (g) Chana Chelemu; (h) Alilabwishe Chelemu; (i) Katende Chelemu; (j) Weddie Chelemu; (kl Ranah Chelemu; (I) Kapembwa Chelemu; and [m) Claire Chelemu (ii) Dependants namely: (a)Odile Chelemu; (b) Micheal Chelemu; and (c)Vinny Mbemba l 01. The Respondents arg.ue that the above list was incomplete, as it did not include Mary Chelemu, who was the deceased's surviving spouse at the time of his d_eath, and therefore, a rightful beneficiary of his estate. 102. I note that the de.~eased died on 15th May 2012, and Mary Chelemu was alive at that .time, as confirmed by the Death Certificate l· ( exhibit "CCMCCCl 7"). It is . undisputed that she later passed away on 7th July 2015. I accordingly agree with the Respondents that Mary Chelemu's survival of the deceased made her a beneficiary of his estate. Consequently, the list of beneficiaries excluded Mary Chelemu's estate. 103. must now address the Applicants' contention that the Respondents improperly adopted additional beneficiaries through a vote at a meeting on 23rd of July 2022. . · ' · ! .. 104. The Respondents argue that,, the meeting used the ex- gratia • I ~ • ' principle to include children of the beneficiaries' two siblings who had already passed away at the time of the deceased's death. They contend that the meeting unanimously agreed for Yambala Chelemu CamScanner J21 and Nale Chelemu to benefit only from the 90% share due to the deceased's children, so · ·as not to dilute the 10% share of the dependants. 105. However, the Applicants counterargue that the ex-gratia principle cannot override the law and that the Respondents had no lawful power to declare Mary Kaliti as a dependant. 106. According to the Black's Law Dictionary Delux 10th Edition, 'ex- · gratia' is defined as: Made as a favor or gift, and not because of any legal duty; not legally necessary. 107. . Furthermore, an ex-gr_atia payment is specifically defined as: . A payment not legally required;, l 08. In the realm of succession law, it is well-established that an ex- · gratia agreement involves ~ voluntary payment or arrangement made voluntarily, typically made as a gest~re of goodwill, without any legal obligation. 109. To resolve the parties' rival positions, I have carefully reviewed the ex-watia agreement (exhibit "CMCCC 16"}. The relevant part of the agreement is reproduced below: :,!, . ·., 23-07-2022 BENEFICIARY DECISIQN ON EX:- GRATIA FOR YAMBALA CHELEMU & .. ' ' , , , NALE CHELEMU 23RD JU. LY 2022 THE MEETING AGREED TO INCLUDE YAMBALA CHELEMU AND NALE CHELEMU AS PART OF THE BENEFICIARIES AND WHOSE SHARE UPTO AND NOT EXCEEDING 2.5% EACH, WILL BE GIVEN AS EX GRATIA FROM THE SHARE OF THE 90% SHARE DUE TO THE CHILDREN. IT IS CATEGORICALLY _STATED THAT THE DEPENDANT SHARE OF 10% SHALL NOT AT ALL BE DILUTED BY THE ADDITION OF THE TWO EXTRA BENEFICIARIES. CamScanner J22 110. It is uncontested that Yambala Chelemu and Nale Chelemu, being the children of the beneficiaries' siblings who predeceased the deceased, do not qualify as beneficiaries under the Intestate ( Succession Act. 111. · However, it is noteworthy that fifteen beneficiaries consented to the inclusion of Yambala Chelemu and Nale Chelemu as beneficiaries . . on an ex-gratia basis. Upon review of the agreement, I identified the following names, listed in the order they appeared, as having agreed to this arrangement. ( i) ( ii) (iii) (iv) (v) Alilabwishe Chelemu; Ranah Chelemu; Katende Chelemu; Kelvin Chelemu; .: ;· :\ , Claire Chelemu; (vi) Odile Chelemu; (vii) George Chelemu; (viii) Chana Chelemu; (ix) Caroline Chelemu; (x) Margaret Chelemu; (xi) Weddie Chelemu; (xii) Magamba Chelemu; (xiii) Matanga Chelemu; (xiv) Kapembwa Chelemu; and (xv) Vinny Mbemba 112. In my opinion, a Court may enforce an ex-gratia agreement if it reflects the parties' true intention and does not violate the law. To be enforceable, the agreement must be executed by all beneficiaries, signifying their unanimous consent. 113. The subject ex-gratia agreement reveals that during the meeting of 23rd July 2022, it was agreed to include Yambala Chelemu and Nale CamScanner J23 Chelemu as beneficiaries, with each allocated a share not exceeding 2.5%, drawn from the 90% portion of the estate designated for the deceased's children. 114. I have identified two individuals named Micheal Chelemu in the Applicants' list of beneficiaries. One is listed a child and the other as a dependant. It is unclear if this a duplication. However, neither of these individuals or the individual signed the ex-gratia agreement. I cannot speculate on the reason for the absence of the name or names from the list without evidence. the absence of evidence from the parties on the issue. Additionally, it is evident that Mary Che/emu's personal representatives were not part of the agreement. 115. The agreement was .thus entered into without the participation of beneficiaries whose interests may be adversely affected by the terms of the agreement, considering that the rights of beneficiaries are protected under the Intestate Succession Act. 116. I find that the subject ex-gratia agreement is unenforceable, as it excludes rightful beneficiaries and lacks unanimous consent. As a result, • , any payments made to Yambala Chelemu and Nale Chelemu under the agreement were unlawful and must be refunded to the estate. I ,, , , 117. In concluding the discourse regarding who the rightfully entitled beneficiaries of the deceq~_ed's estate are, I note that the Respondents have not challenged the Applicants' the list of beneficiaries, except to question the status of the 2nd Applicant and the absence of Mary Chelemu's estate. Therefore, I find that the beneficiaries of the deceased's estate are as follows: (i) (ii) Mary Chelemu's estate, Children: ( a) George Chelemu (b) Kelvin Chelemu (c) Micheal Chelemu (d)Margaret Chelemu CamScanner ( e) Caroline Chelemu (f) Matanga Chelemu (g) Chana Chelemu (h) Alilabwishe Chelemu (i) Katende Chelemu (j} Weddie Chelemu .. (k} Ranah Chelemu (I) Kapembwa Chelemu (m} Claire Chelemu (iii) Dependants: ( a) Odile Chelemu , ... . , I (b) Micheal. Chelemu .. ' . . / .\ ,..: (c) Vinny tv'lbemba The issue of the proportion each beneficiary is entitled to receive from ' the deceased's estate ·. , ' 118. Having established who, the rightfully entitled beneficiaries of the ' I ' ,··1 ' • ' · ',. decease,d 's estate <;Jre, _I : will .· now address the second part · of the • • ,' ,. ' • ' • • , : • • • I • I • • •, requested relief: determining · the .. proportion of the estate each ' ' ' beneficiary is entitled to .receive . . i . . ' ' .... ' ' 119. At this point, I must, state . that it is not the d'-;JtY of the Court to ' ' ' distribute the deceased 's estate or dictate the proportion of assets each . beneficiary should receive. This resporsibility lies wi,th the administrator of ,' . . . '~).l , \ , ' ' . . 1 • , , , , the estate, as stipulated in the Infest.ate Succession Act. However, in the I •·, • • • interest of justice and to ensure a fair . outcome, a Court can provide '.' . guidance on the distribution of an estate, taking into account the · 1_ .. ~\:\.' : -.': \ ,• ' ' -·: ·· -.. ,' • '. : . . . . . . unique circumstances of a case. 120. . Considering the circumstances_ of this case, I will provide general . ; ' guidance on the distribution of the estate by' referring to the applicable law, · the · Intestate Succession Act which outlines the · general percentages or shares that beneficiaries are entitled to receive. The CamScanner J25 Respondents must then apply these legal principles to determine which proportion each beneficiary is entitled to receive. 121. Section 5 of the Intestate Succession Act provides as follows: 5. (1) Subject to sections eight, nine, ten and eleven the estate of an intestate shall be distributed as follows: ( a) twenty per cent of the estate shall devolve upon the surviving spouse; except thaf where more · than one widow survives the intestate, twenty per cent of the estate shall be distributed among them proportional to the duration of their respective marriages to the deceased, and other factors such as the widow's contribution to the deceased's property may be taken into account when justice so requires; (b) fifty per cent of the estate shall devolve upon the children in such proportions as. are commensurate with a child's age or . educational needs or .. J:>oth; . t'i ; . :-' ~ ;,:·. ( c) twenty per cent 9t t~e esta~~' shall devolve upon the p~rents of the deceased; . l , . ( d) ten per cent of th~ .e~tate ~h~n devolve upon the dependants, in equal _shares: Provided that a . priority dependa"!t whose portion of the estate · • - i ·' , •.. ,I ' -. • • under this section Is unreasonably small having regard to his degree of dependence on the deceased shall have the right to apply · to a court f~r adjustment to be made to the portions inherited. and in that case, Part ~1:1 oUhe Wills and Administration of Testate Estates Act stj_all apply, with the necessary changes, to the application. 122. Drawing from Section 5 (1) (b), the beneficiaries of the deceased's estate were entitled to the following: ·\:• (i) (ii) Mary Chelemu's estate - 20% of the estate. Children -50% of the estate: in such proportions as were commensurate with a child's age or educational needs or both. It I, CamScanner J26 follows that although children of a deceased person are by law entitled to 50% of ·the share of an estate, Administrators are . .. obliged by law to c·onsider the . age or educational needs of a . . . . . child in the distribution ·of an estate. The share to be received by children may not be : equal. This is further demonstrated by the · proviso to Section 5 (1) which gives a priority dependant whose · portion is u~reasonably small h~ving regard to his or her degree of · dependence on the deceased, the right to apply to a court for adjustment to be made to the portions inherited. (iii) 123. Dependants -10% of the estate. As regards the pare.0ts 20% s~9re, it has not been disput~d that deceased was not ,,.survived by · parents . . Consequently, · the the deceased was survived by ~i_s spouse,_ children and dependants. Section 7 (a) accordingly applies t<? the circ,~:mstances of this case. It provides as follows: •• • f · 7. Where an intestate leaves- ( a) a spouse, children·; depend~nts b:ut no parents, the proportion . . ,, ' ~ of the estate which· the parents would have inherited shall be _ shared equally be~~en .the surviving spouse and children on the . . ·. . one hand and the dependants on the other; . ' ' ' ' ' 124. Section 7 (a) is self"".e?(planatoty. In this case, the deceased's spouse and children were entitled to their equal share of the 20% which L . • , would have been inherited ·· by parents of the deceased, whilst dependants were equally entitled to their share of the 20%. Following the death of Mary Chelemu, her share of the 20% formed part of her estate to be distributed to beneficiaries of her estate pursuant to Section 5 (1) if she died intestate. . ., . .. :j CamScanner J27 The issue regarding the Respondents' decision to withhold the 1st Applicant's 10% share of the estate 125. The Respondents agree that the 1st Applicant is entitled to her 10% share of the deceased' s estate, having been declared a beneficiary under Cause No. 2017 /HPF/0028. However, they contend that the 1st Applicant's share has bee11 withheld following her failure to render a . proper account of the income and expenditure of the estate during her tenure as Administrator. Furthermore, the l st Applicant is required to pay back any monies which would be found due to the estate. According to the Respondents' reconciliation, the l st Applicant owes the deceased' s estate the sum of K2, 385,61 l .53. 126. The 1st Applicant co~_tends that she provided a handover report, exhibit "OLCCBC8", through her Advocates. It has been argued that the ! ·; ' I , Respondents had not sho~~m the C~urt discrepancies in the report to justify their withholding of th,e 1st AppHcant's share. It is also contended · that the Respondents' : several . claims of I ., the 1st Applicant's mismanagement of the est~te wer~ , ,not based on evidence through bank statements or other, .~videnc~. 9f the . 1st Applicant withdrawing • ! I , funds whic_h could not be accounted for. Furthermore, any issues regarding . mismanagement_ of the estate . ought to have been addressed under Cause No. 2017 /HPF/0028. I ' 127. As regards the counterclaim by the Respondents, it is argued that . . the same had not properiy,. beeri pleaded. The case of Lyons Brooke : )'. •- . . ' i , , , .' .! • • Bond (Zambia) Ltd v. Zambia Tanzania_ Road Services Ltd (3), w?s cited where the Court stated th9t the ful'l~tion of · pleading was to assist the court by defining the b_ounds ·of the _action. The bounds could not be extended without the _ l~ave . of _ the court and consequential amendment of the pleading. 128. The Applicants also relied on the . case of lnvestrust Bank PLC v. Pamagwe Investment Limited and Others (4) where the Court extensively discussed the procedure to be followed where a Defendant seeks to CamScanner J28 bring a counter claim in a matter commenced by way of Originating Summons. The Court referred to Order 28 Rule 7 of the Rules of the Supreme Court (RSC) which permits a Defendant to file a counterclaim in the action in respect of a matter instead of bringing a separate action. As regards procedure, the Court referred to the explanatory note. 28/7 /1 A RSC where it was acknowledged that there was no procedure · that was outlined for the filing of a counterclaim. It was suggested that the Defendant is required to serve points of the counterclaim before the hearing of the application. The Court thereafter proceeds to give directions as may be appropriate. The Court in the lnvestrust Bank PLC case concluded that the application to be filed would logically be one I ' to file his counterclaim. 129. Based on the aforementioned arguments and authorities, the court was urged to dismiss the Respondent's opposition. 130. \ agree with the 1st ,Applicant'.s argument that the Respondents cannot withhold her 10% sh_<Jre due to ,herwithout any Court order. After reviewing the Judgment urider Caus~ No. 2017 /HPF/0028 and the letter ' ' 1 , , , . ..,,... ' . . exhibit "CCMCCC6", which was . addressed to the Applicants' Advocates dated 15th ?ctober 2015, I found that a Mediation settlement Order required t:he 1st Applicant to account for the estate's administration. 131 . I also note that the Respondents have raised a counter claim of K2,47 6,611.53, which they claim the 1st Applicant must refund before receiving her share. 132. I entirely adopt the persuasive position of the Court in the lnvestrust Bank PLC case. Th~ Respond.ents having failed to comply with Order 28 Rule 7 RSC regarding their counterclaim, I cannot uphold the alleged debt as a justificati~:m for withholding the l st Applicant's share. 133. In any case, if the 1st Applicant failed to render an account in the manner asserted by the Respondents, as correctly argued by the ,.. ., ' . Applicants, they ought to have raised that issue in the proceedings CamScanner J29 under Cause No 2017 /HPF/oo28 1 t· . . rnd that this issue cannot be raised in these proceedings. Furthe'.ryiore, the Respondents are in effect inviting me to adjudicate on an is~ue which ~as subject of proceedings before a Court of concurrent jurisdi_ction. This is· not permissible. (See Section 4 of the High Court Act and John Sangwa ·~. Sunday Nkonde SC) (5)) 134. I shall now move on to determine simultaneously the first and _ second reliefs claimed as they are interrelated. (II) . The Applicants' claim for: (i) An Order that the Respondents in their capacity as Administratrices of the estate of the late Weddie Chemlesya Chelemu disclose and produce before this Honourable Court an inventory of the estate of the late Weddie Chemlesya Chelemu namely: real estate, money and other chattels, and · (ii) . A further Order compelling the Respondents to account for the manner in which they have so far distributed the estate of the late Weddie Chemlesya Che/emu The Applicants' legal arguments _ 135. . The gist of the Applicants' Skeleton_ ·Argument's is that relevant questions relied on by the ':'AppHcants\ as set out in _Order 30 Rule 12 (c) and (e) HCR , include the ~· furnishing :;of any particular accounts by executors or administrators .and the vouching, when necessary, of such accounts and the directing of an ·executor or administrator, to do or abstain from _ doing any act in their character as executor or administrator. ' . , ; 136. It is submitted that this position was confirmed in the cases of Rosemary Musa Phlri (Suing as Administrator and Beneficiary of the Estate of the Late Charles ~avid Phlrl) v. Comfort Lozllifo Phlrf (6) and Mike Msandlne Phlrl & Another v. The Registered Trustees of the Catholic Diocese of Mpika (7). '·. ··- CamScanner J30 l 3l · It is also argued that Section 19 (1 )(b) and ( c) of the Intestate Succession Act mandates an Administrator to perform among other duties, the distribution of an .estate and also produce a full inventory and render an account of the ;dministration. The case of Benny Nkhowanl v. Constance Nkhowani (8) was cited to confirm the effect of the provision. 138. Considering the Respondents' defaults as highlighted in the Applicants' case, they are under an obligation to render an account of their administration of the estate. 139. Furthermore, pursuant to Section 19 (1) of the Intestate Succession Act and the Supreme Court case of Lindiwe Kate Chlnyanta v. Doreen Chiwele Judith Tembo (9), beneficiaries of an estate are protected under the law through duties that are imposed on an Administrator. 140. The case of Gray Nachandwe Mudenda v. Dorothy Chileshe Mudenda (1 O) was also cited where t~e Supreme Court emphasized the principle that 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. The Respondents' legal arguments 14 l. It is argued that pursuant to Order 30 Rule 12 (c) HRC the Applicants could easily access the Respondents' preliminary inventory, accounts status and administratorship activity report which had been prepared. The Respondents agree with the principals set out in the Rosa Musa Phiri and Benny Mussa Nkhowanl cases, cited in the Applicants' Skeleton Arguments. 142. However, the Applicants had never made any formal request to the Respondents requesting them to render an account of the administration of the deceased's estate or distribute their share of the estate until the commencement of this action. CamScanner J31 143. Consequently, in the absence of a formal request or demand to the Respondents to produce an inventory of the deceased's estate, the Applicants' allegations regarding the Respondents ' default were false. 144. Furthermore, the Respondents had challenges to clear the debts owed by the estate due to their failure to recover funds owed by the 1st Applicant to the estate, and the Caveat on Stand No.1139, Lumumba Road and Farm No.87 4. These factors affected the Respondents' ability to render a full and complete inventory of the deceased's estate and perform their duties efficiently as required by Section 19 (1 )( a) of the Intestate Succession Act. 145. It is thus argued t,hat the Respondents have not failed to administer the deceased's ~state. The Applicants' legal arguments in reply 146. The Applicants Skeleton Argu ments in Reply were anchored on the status of the 2nd Applicant as a . beneficiary, and the arguments pertaining to the failure of the 1st Applicant to file a counterclaim in respect of the estate funds. she is . allegedly owing. I have already addressed and resolved these issues. Resolution of the parties' rival arguments 147. Section 19(1) ( a) to ( c) of the Intestate Succession Act outlines the · duties and powers of an administrator in the following terms: 19. (1) The duties and powers of an administrator shall be- (a) To pay the debts and funeral expenses of the deceased and pay the estate duty if the estate duty is payable; (b) To effect distribution of the estate In accordance with the right persons interested in the estate under the Act; (c) When required to do so by the Court, either on the application of an interested party or on its own motion- (i) To produce on oath in court the full inventory of the estate of the deceased; CamScanner J32 (II) To render to the Court an account of the administration of the estate. 148• It should be noted that whilst Section 19 (1 )(c) empowers a Court either on its own motion or on application by an interes ted party to order an Administrator to produce a full Inventory of the es tate of th e deceased and render an account of the administration of an es tate, it does not detail the form of an account. 149. Order 30 Rule 12 (c) HCR, on the other hand empowers a Court to not only determine a question regarding the furnishing of any particular accounts by an Administrator but also, where necessary, require the vouching of such accounts. 150. The purpose of accounting is to explain to the Court and beneficiaries what has transpired during the period of administration ' ' and gain court approval f9r all acts. ~\)mpleted and to be completed. (See Mrs. Margaret M. S. Muleme~a. v. Benny Chlholyonga, Getrude Matokwanl Chlolyonga and Chllambwe Tlndye Mapulanga (11). 151. In light of the legal provisions, the Applicants are seeking bank statements and independently verified reports, as they have raised concerns regarding the Respondents' preliminary report (Exhibit "CCMCCC20"), which details the income and expenditure of the deceased's estate. 152. The Respondents' counter argument is that they have submitted ' ,, a preliminary report of the account of the income and expenditure of the deceased's estate fo\ the period 15th May 2012 to June 2020 and supporting documents from which the summary was created based on ,' ' income records and invariable receipts provided by the 1st Applicant. It follows that the Respondents have accounted for their administration of ' " the estate. 153. I have reviewed the Respondent's preliminary report on the deceased's estate, covering the period 15th May 2012 to June 2020, along with the supporting documents. Before determining whether this CamScanner J33 report justifies dismissing the Applicants' claim for the Respondents to render an account of their administration and produce a true and accurate inventory, I will address other relevant issues raised by the Applicants that have a bearing on my decision, as will be demonstrated. The issue regarding the USS 106,000.00 allegedly held in the deceased's UN account 154. The l st Applicant's asserts that at the time she ceased to be the Administrator of the deceased's estate, she was aware that the deceased held an active account with the UN, which was credited with an approximate sum of US$ 106,000.00. She contends that she requested for a detailed statement from UBS, as evidenced by exhibit "OLCCBCl ". The statement showed that as of 31 st March 2012, the account balance was US$106,834.33. 155. Additionally, the pt Applicant alleges that the ist Respondent's mother received funds from the UN Joint Pension Fund. However, when the 1st Applicant inquired about this with the Fund's legal officer, she was informed that the Fund could not disclose any information regarding the · . , • t • • • matter without a court order as shown in exhibit "OLCCBC3", the email ' ·~ , : r . exchange. . ,, :,. 156. The · Respondents' r~sponse was that the l st Applicant's claim I regarding the US$ 106,000.00 was within her peculiar knowledge. They ,. I ' . ' , ; ., • . ' asserted that it was up to . the 1st Applicant to provide the said details, which would benefit the estate of the deceased. 157. My finding is that exhibit "CCMCCC7", a demand letter from the Applicants' Advocates dated 29th Mmch 2022, shows that the issue of the US$ 106,000.00 was raised, putting .the Respondents on notice of the l st Applicant's claim. Despite this, the . Respondents failed to address the claim for the benefit of the estate. r , . • :. • , ·; 158. Although the l st Applicant initially failed to provide details regarding the US$ l 06,000._00, the Respondents as Administrators, had a duty to account not only for the assets of the estate that came into their CamScanner J34 possession, but also any potential assets of which they had knowledge, such as the US$ 106,000.00. 159. An Administrator must carry out his or her duty with such care, skill, diligence, and caution that a reasonably prudent person would in similar matters of their own. In this case, I have not found any justifiable reason for the Respondents' failure to act diligently on the issue of the US$ 106,000.00. The issue regarding construction works on Stand No. 1 139, Lumumba Road and Farm No.874, Lusaka 160. The Applicants allege that the Respondents commenced construction on one of the deceased's estates, Stand No.1139, Lumumba Road Lusaka. 161. The Respondents' response is that the property was in a dilapidated and hazardous state at the time they were appointed as Administrators. Furthermore, demolition and subsequent patch works were undertaken to comply with the Fire Brigade inspection recommendations. The Respondents thus do not dispute the Applicants' claim regarding construction works on the property. 162. However, the AppliS_?nts assert that the Respondents failed to produce pictures of the d/lapidated state or produce the Fire Brigade inspection recommendation on which the Court could rely as proof of the Respondents' defence. 163. The Applicants further allege that the Respondents have commenced constructing houses on Farm No.87 4. However, the Respondents dispute this and assert that the houses on Farm No.87 4 existed before the deceased's death. Furthermore, they claim that the beneficiaries had agreed to renovate the houses during a meeting held on 3rd October 2020. To support their assertion, the Respondents have relied on copies of the _deceased's documentation regarding the property and meeting minutes, collectively marked as exhibit "CCMCCC13-14". CamScanner J35 164. The Applicants argue that the buildings referred to are new and can be verified if the Court grants the reliefs sought in this application. Resolution of the parties' rivararqum~nts . . 165. . The Gray Nachandw.e case, cited in the Applicants' Skeleton Arguments will be helpful in resolving the issues raised regarding the . . . . . ' subject properties (Stand No.1139, L~mumba Road and Farm No.874, . . . Lusaka). l 66. The Supreme Court in that case, held that 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. It follows that administrators · should nev.er lose sight of their role when it comes to their lawful duties. · 167. . It can be discerned from the Gray Nachandwe case that once an . 1,,: ' administrator lawfully distrit>l,Jtes the estate, what beneficiaries thereafter i- --v ~, · , . ' . , , do with it, is not his or her ·concern, . Enhancements of an estate are . ' ' \ ·: ' . . ' ' _; actions and duties of beneficiaries, ar)c:i whiie an administrator can assist, ' . . : . it is not their legal duty. ' ., . ' 168. Further, all beneficic)ri.es would have to formally agree · to any . , . ' ' ' . ~ . . . enhancements as it could,.likely incur .costs and impact on estate funds. . . . Any enhancement must :t~erefore . be in the collective interests of . ; • .. . ' :. • .. . ' ' . beneficiaries. 169. · I observed that regarding Farm· No.847, the pictures in exhibit "OLCCBC7", show buildi~9s under ____ r~novation._ Upon reviewi_ng the minutes of the meeting held on 7th • of November 2020, I noted the . . " .· . , 1 . . following points under pa~9graph 6.~, yvhich are reproduced below: 6.3 Property maintenance and sustainability: (I) Mkapallla gate needs to be replaced; water pump was replaced; electrical works need to be undertaken. (It) Farm project CamScanner J36 (a)Farm fencing project commenced with foundation setting for footing. The administrators engaged road and road reserves, which were duly followed. Regarding the garbage dumping, the administrators engaged LCC and a letter and pictures delivered to the LCC Town Clerk's office requesting for the mounting of bill boards to the garbage dumping (b) Construction of flats is in progress. The meeting requested that administrators share the bill of quantities (BOQ). Meeting informed that roofing would start in two weeks' time. , . · (c)The beneficiaries req~ested that administrators ensure ·, . . , • • : • 4 ,, • • that contracts setting milestones for the probation period be signed by each of the farm employees and that the contracts should be li11ked to projects with clear TORs and timeframes. (d)The beneficiaries agreed to the following four projects: ■ Mertiqrial project ■ Fencing project _ · .· t, ~-.. ~-- . ■ Flat c~nstructio~ Project •. p;;.~~· • Farming Project 170. I further, observed that the . J st Applicant was present in the meeting at which the flat :construction project on Farm No.847 was discussed . It appears that beneficiaries present at the meeting agreed to the construction project. However, such a project required the formal consent of all beneficiaries. The beneficiaries who were present at the meeting could therefore .. not make . decisions on behalf of absent beneficiaries . 171. As a result, the Respondents • cannot therefore not justify any actions based on majority votes of some beneficiaries to the exclusion CamScanner J37 of others. The same rea · . soning applies to the creation of the disputed trust and any fundraising v~_ntures . . 1 ?2. It is noteworthy that inihe case of Stand No.1136, Lumumba Road, the Respondents took it upon them?eives to demolish the old building · and commence construction works based on the Fire Brigade inspection · report which was never produced. The Respondent's action would still · have been unlawful, even .. if they had produced the Fire Brigade. inspection report. This is because they acted beyond their mandate, which is clearly outlined in Section 19 (1) of the Intestate Succession Act. The decision to demolish the building required the unanimous agreement of all beneficiaries after the distribution of the estate. The issue regarding the Respondents' failure to pay out debts and liabilities of the estate 173. The Respondents claim that there are debts which remain unpaid due to the Caveat on two properties (Stand No. 1139, Lumumba Road and Farm 87 4). They also' claim that their ability to pay debts was affected by the debt owed by l st Applicant to the estate. 17 4. I note that the Respondents were appointed Administrators on 17th April 2020. I further note that, the Respondents acknowledged receiving Certificate of Titles for both properties on 26th May 2020 (See exhibit . . . "CMCCC2"), more than a year before the Caveat was received by the Respondents on 21st Decer:nber 2021 .. .. j i. . '. '. I~ .:,. 17 5. I find that the Respondents have no reasonable justification for relying on the Caveat as one of the excuses for paying the estate's debts, given their prior possession of the Certificates of Title. 17 6. Furthermore, the Respondents could have timeously addressed I any issues with the l st Applicant's alleged mismanagement under Cause No. 2017 /HPF/0028. 177. The Respondents' inaction constitutes a default under Section 19 (1) of the Intestate Succession Act, indicating failure on their part to perform their duties diligently. CamScanner J38 The Standard Chartered Bank estate kwacha and dollar accounts 178. Upon reviewing the _ Respondents' preliminary report of the account of the income and expenditure of the deceased's estate, I observed that separate details for the Standard Chartered Bank estate kwacha and dollar account numbers were not indicated. The account numbers, credits, disbursements and balances, were essential for accountability. Whether the Respondents should be ordered to account and produce an accurate and true inventory of the deceased's estate 179. After considering key issues, I will now determine whether to grant the Applicants' request to . compel the Respondents to account and produce a true and accurate inventory of the deceased's estate. 180. . Pursuant to Section 19 (1 )( c) of the Intestate Succession Act, an administrator has a duty to file an inventory and render an account as and when required by the. Court, on application by an interested party, or even on its own motion. _An Administrator suffers no prejudice as the duty is imposed by law and the position of administrator is one of trust and not for personal gain. 181. · I find that it will be in the best irit~rest of the estate that I order and ·._ ::: . . . ( ' . . direct that the Responde:n~s and the 1st Applicant work together to ascertain the existence of the US$ 106,000.00, the l st Applicant · alleges was paid into the deceased's UN account. The money shall form part of . the estate should it be found to exist ... 182. Further, any money paid ou: of the estate funds to Yambala Chelemu and Nale Chelemu will have to . be accounted for for the ,., .• ,;· I purpose of reimbursement to the estate. I 183. Furthermore, all est~t~ funds spent on the construction works on Stand No.1139, Lumumba Road and F~rm No.87 4, Lusaka will have to be accounted for. 184· The Respondents must address the issues regarding the Standard Chartered Bank estate kwacha and dollar accounts, specifically the CamScanner J39 credits, disbursements, and current balances which they failed to provide. 185. The Respondents claimed that they had filed a preliminary report, which essentially meant' . that further reporting was unnecessary. However, considering all the above · findings, I find that an updated inventory and account of their administration of the deceased's estate is still required. In my opinion, a vouching of accounts will only be necessary at the final accounting stage, upon conclusion of the distribution of the estafe. I shall accordingly not order the Respondents to file vouched accounts at. this stage. 186. I shall now proceed to address the fourth and fifth claims, which l • •• ~ ' • • ' • , are interrelated. (Ill) The Applicants' claim for: (i) . An Order that the Respondents refrain from taking any further actions in the administration of the estate of the late Weddie Chemlesya • Che/emu until the production of the inventory aforestated and subsequent order being made by the Court: and . (ii) An order compelling the Respondents to grant or avail the · Applicants with : their full share of the estate of the late Weddie Chemlsya Chelemu 187. Having directed the . Respondents to file an updated inventory and account of their administration of the ·deceased's estate, I further direct that the distribution: be hdlted<'until the updated inventory and account are filed. This decision is also informed by two additional factors. Firstly, the Respondents have admitted there are still outstanding debts and liabilities of the deceased's estate that remain unpaid. Secondly, I have directed verification of the existence of the US$106,000.00 allegedly held in the deceased's UN account with UBS. Until these matters, are addressed the distribution of the estate shall be stayed pending further order of the Court. · CamScanner J40 188. Accordingly, this disposes of the Applicants' claim for on order compelling the Respondents to grant or avail the Applicants with their full share of the deceased's estate. The said order cannot be granted at this stage. CONCLUSION 189. In conclusion for avoidance of doubt, I have made the following orders: ."..::'· . -. (i) The beneficiaries of the estate of the deceased as at his death were his spouse, the now deceased Mary Chelemu; children (including the 2nd • Applicant); and dependants listed in this Judgment; . I (ii) On the issue of the proportions each benefidary was entitled . ' I . to receive, I guided that: (a)Mary Chelemu the deceased's spouse, was entitled to 20% of the estate. Upon her death, this 20% share formed part of her own estate and was to be distributed according to the . ' .) ) ' ; . . '-. ' Intestate Succession Act if she died intestate. · (b) The deceased's children .were entitled to receive 50% of the l. , ~ . ,- ' estate; in such proportions as were commensurate with a child's age or educational needs or both; ' ' ' (c)The dependants were entitled to receive 10% share of the estate; (d)The deceased'.s.spou~e, Mary Chelemu and children were .. .. , ,, entitled to thei_r . equal share of the 20% of the estate which ' ! . , -~: -. . .': ': . ' . ' • would have be.en inherited by parents of the deceased. • . ' ' • k ; Upon Mary Che.lemu's death, her share formed part of her .... ; own estate and was to be distributed according to the Intestate Succession Act i.f she died intestate. (e)The deceased's dependants were equally entitled to their share of the 20% which would have been inherited by the deceased's parents. CamScanner J41 (f) It is not withing my power to stipulate the proportion that each of the beneficiaries is entitled to receive as this duty is vested in the Respondents as Administrators and shall be exercised pursuant to the Intestate Succession Act. (iii) The 1st Applicant is entitled to a share of 10% of the estate share due to dependants pursuant to the High Court Judgment under Cause No. 2017 /HPF/0028. (iv) The Respondents shall file an updated inventory and account of their administration of the deceased's estate for reasons given in the Judgment within 90 days of the date of this Judgment. (v) The distribution of .the deceased's estate shall be halted until . · ' the updated inventory and account are filed. Accordingly, the Applicants' claim for an order compelling the Respondents to grant or avail t,he Applicants with their full share of the deceased's estate_ cannot ~e granted at this stage. (vi) Save for the orde,~s: granted in this matter, the Applicants are not entitled to any_pther re~ief this Court may deem fit. (vii) . This being a family matter, each party shall bear its own costs . . I , . • • . , • . CamScanner