Zulu v Zulu & Others (Appeal 218 of 2012) [2017] ZMSC 33 (1 March 2017)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 21812012 HOLDEN AT LUSAKA SCZ/8/342/2012 (Civil Jurisdiction) BETWEEN: PAMELA MTHUNZI ZULU APPELLANT AND PETER ZULU (SR) IDAH CHULU ZULU PETER ZULU (JR) 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: (cid:9) Mwanamwambwa D. C. J., Muyovwe and Kaoma, J. J. S., On 22nd July, 2015 and 1st March, 2017 For the Appellant: (cid:9) Mr. M Chibiya, of Messrs. Lusitu Chambers For the ist Respondent: In person For the 2" Respondent: In person For the .31'd Respondent: In person JUDGMENT Mwanamwambwa D. C. J., delivered the Judgment of the Court. Legislation Referred to: The Intestate Succession Act, Chapter 59 of the Laws of Zambia The Lands and Deeds Registry Act, Chapter 187 of the Laws of Zambia The Wills and Administration of Testate Estates Act, Chapter 60 of the Laws of Zambia The Births and Deaths Registration Act, Chapter 51 of the Laws of Zambia Cases Referred to: Rosemary Chibwe v Austine Chibwe (2000) ZR 1 Watchtel v Watchtel (1973) 1 ALL ER 113 Wesley Mulungushi v Catherine Bwale Mizi Chomba (2004) ZR 96 - J2 - Wilson Masauso Zulu v Avondale Housing Project Ltd (1982) ZR 172 Lindiwe Kate Chinyanta v Doreen Chiwele and Judith Tembo (2007) ZR 246 This appeal is from a Judgment of the High Court, in which the learned trial Judge revoked the appointment of the appellant as co-administratrix for the estate of the late Peter Paul Zulu. Brief facts are that the late Peter Paul Zulu, died intestate in a road traffic accident on loth December 2004. The deceased was survived by a wife, who is the appellant in this appeal. He married her on 28th December 2002, at Lusaka Civic Centre. He had one child with her, called Monase Zulu. The 1st respondent is the father to the deceased. The 2nd respondent is the mother. And the 3rd respondent is the brother. Evidence was led by the respondents in the court below, that the deceased also had a relationship with another woman by the name of Claudina Sakala. That relationship resulted in the birth of a child called Belita Zulu, who was also being referred to as Bertha Zulu in the Court below. The respondents testified that the deceased left Claudina Sakala pregnant at the time he died. Belita Zulu was born on 15th May 2005, five months after he had died. In - J3 - terms of property, the deceased left house No. 10375, Nyumba Yanga, Lusaka. It was registered in his name. There is a letter on record which was purportedly written by the deceased to his mother, giving her the said house. The appellant and the 3rd respondent were appointed by the Local Court as co-administratrix and co-administrator, respectively, on 21st December 2004. A dispute arose between the appellant and the respondents, over the administration of the estate. The appellant filed an Originating Summons against the 3rd respondent, seeking an order from the Court that House No. 10375, Nyumba Yanga, Lusaka, was property of the late Peter Paul Zulu and that the house should devolve upon her as the surviving spouse, and Monase Zulu, as the deceased's only child. She wanted the house sold so that the proceeds could be used to purchase another house for Monase Zulu or in the alternative, that ownership of the house be transferred to Monase Zulu to be held in trust for her by the appellant. On the other hand, the respondents wanted the appellant removed as co-administratrix of her late husband's estate on grounds that she had mismanaged the estate They made an application for - 14 - an order for the appellant to render an account of the money she had collected in her capacity as co-administratrix. Before the matter could be heard, on 27th May 2008, the appellant applied for the proceedings to be continued as if the matter was commenced by Writ of Summons. The lower court granted the application and ordered that the appellant's action be prosecuted as a counterclaim to the respondents' claims. Thereafter, a trial was conducted at which the parties adduced evidence to support their respective cases. On 20th September 2012, the learned trial Judge rendered his judgment on the matter. He addressed his mind to the issue of whether house No. 10375, Nyumba Yanga was family property or matrimonial property of the deceased and the appellant as his surviving spouse. He reviewed the evidence and found that at the time the deceased bought the house in dispute, the appellant was not yet married to him and she never even lived in that house. He took the view that the deceased bought the house for the benefit of his family - .15 - members. And as such, the learned trial Judge found that the house belonged to the deceased's parents and siblings. The learned trial Judge used Section 3 of the Intestate Succession Act and the cases of Rosemary Chibwe v Austine Chibweni and Watchtel v Watchte1121, to determine what constitutes family property. He was of the opinion that property acquired before marriage could only become matrimonial property if the party who buys it makes it clear and known to the spouse that such property was intended to be matrimonial property. He observed that in this case, the appellant had admitted that she never knew anything about the said house and that her late husband never told her about it. The learned trial Judge found that house No. 10375, Nyumba Yanga, Lusaka was not matrimonial property but that it was the property of respondents' family, to which the Intestate Succession Act did not apply. He was of the view that the house did not form part of the estate of the deceased. He ordered that it should vest in the deceased's mother, in accordance with his wish as expressed in a letter that was produced in court. - J6 - The learned trial Judge went on to consider the issue of whether the appellant had properly executed her duties as co- administratrix in accordance with the law. He found that the appellant squandered the estate of her husband and it had suffered massive waste at her hands as co-administratrix. He observed that the appellant had admitted the various allegations which the respondents made against her but she offered flimsy explanations to justify her conduct. He found as a fact that the appellant largely kept the deceased's family out of the administration of the estate and that she had displayed extreme selfishness, greed and lack of accountability. He stated that the evidence on record proved that the appellant was guilty of property grabbing and looting with no accountability of any kind to anyone. He formed the view that the appellant committed offences for which she could be investigated, prosecuted and punished under the Intestate Succession Act. He came to the conclusion that that the appellant's conduct was contrary to the law. - J7 - For this reason, he revoked the appellant's appointment as co-administratrix and ordered her to provide an inventory and to render an account of all the money she had collected, to the exclusion of her co-administrator. The learned trial Judge ordered that the 3rd respondent should continue as sole administrator for the remaining portion of the estate. He further ordered that adequate and equal provisions should be made in the estate to provide for the deceased's biological children, Monase Zulu and Belita Zulu and that the remainder of the estate be strictly administered in accordance with the provisions of the Intestate Succession Act. He held that since the appellant squandered a substantial portion of the state, she would be at the mercy of the sole administrator of the estate only if and when she had rendered a satisfactory account of how she used the money, documents and properties that she single handedly collected and used. He upheld the respondents' claims and dismissed the appellant's counterclaim. Dissatisfied with the judgment of the lower court, the appellant appealed to this Court advancing four grounds of appeal. These read as follows:- 1. That the learned High Court Judge erred both in fact and law when he held that house 10375, Nyumba Yanga should vest in Wall Chulu Zulu and that it does not form part of the estate of the late Peter Paul Zulu; 2 That the learned High Court Judge erred in both law and fact when he held that the appellant had squandered monies in the estate other late husband late Peter Paul Zulu; 3 That the learned High Court Judge erred both in law and fact when he revoked the letters of administration held by the appellant in the estate of the late husband Peter Paul Zulu; 4. That the learned High Court Judge erred in fact when he ordered that Belita Zulu was Peter Paul Zulu's child. Based on these grounds of appeal, the parties filed written heads of argument which they relied on at the hearing of this appeal. For convenience's sake, we will start by addressing ground one and then will move to ground four. Thereafter, we shall deal with grounds two and three together because they are interrelated. In fact, counsel for the appellant argued the two grounds together. Submitting on behalf of the appellant on ground one, Mr. Chibiya argued that the fact that the deceased bought house No. 10375, Nyumba Yanga and it was registered in his name at the time of his death, automatically made it part of his estate. He contended that there was no valid legal document which -J9 - had transferred the property to someone else. He referred us to Section 9 of the Intestate Succession Act, which provides that where the estate includes a house, the surviving spouse or child or both, shall be entitled to that house. He argued that there is no requirement that the family should have lived in the said house for the surviving spouse or child to be entitled to it. Counsel submitted that the letter which the trial Judge said expressed the deceased's wish to give the house to his mother did not satisfy the requirements under the Statute of Frauds because it did not name the person it was addressed to or the full names of the author. He relied on the case of Wesley Mulungushi v Catherine Bwale Mizi Chomba13) for this submission. He argued that the said letter was not a legally binding document; that it was void and unenforceable because it was not registered as required by Section 4 of the Lands and Deeds Registry Act. He contended that the said letter does not qualify to be a Will' because it does not meet the requirements stipulated in Section 6 of the Wills and Administration of Testate Estates Act - J10 - He submitted that there was no proof that the 1St and 2nd respondents gave money to the deceased as top up towards the purchase of the house in issue. He stated that there was no evidence that the house belonged to the respondents' family as a whole. He pointed out that the fact that the deceased was helping his family members once in a while after receiving some rentals from the house, did not qualify the house to be family property. He further argued that the case of Rosemary Chibwe v Austin Chibwei and that of Watchtel v Watchteloc which the trial Judge used in arriving at his decision, are authorities in divorce matters. They do not apply to a case such as this, where a person dies intestate. He submitted that in the cases of death, property forms part of the estate for as long as the property belongs to the deceased. He drew our attention to the definition of 'estate" under Section 3 of the Intestate Succession Act where it is defined as "all the assets and liabilities of the deceased including those accruing to him by virtue of death or after his death and for the purposes of administration of the estate, including personal chattels". -Ill - The respondents opposed ground one of this appeal. They jointly submitted that the appellant was not married to the deceased at the time the family bought the house and that she did not know anything about it. The appellants stated that the family registered the house in the name of the deceased, because he was the oldest son to the 1st and 2nd respondents and he substantially contributed towards the purchase of the house through the loan he obtained from the Public Service Pension Board. It was their submission that the house belonged to the respondents' family as a whole and it was not part of the estate. The respondents stressed that the appellant did not contribute anything towards the purchase of the house and that the appellant and her late husband never even lived in the said house. They pointed out that it was not their claim that the letter which was written by the deceased to his mother was a Will. The real issue as we see it in ground one of this appeal is whether house No. 10375, Nyumba Yanga, Lusaka, formed part of the estate of the late Paul Peter Zulu and whether the appellant is entitled to it under Section 9 of the Intestate - J12 - Succession Act or it is family property for the respondents and the provisions of the Intestate Succession Act do not apply to it. It is abundantly clear that the appellant's claim to the house in dispute is anchored on Section 9 of the Intestate Succession Act, which provides that where an estate includes a house the surviving spouse or child or both, shall be entitled to that house. In deciding whether the appellant was entitled to the house, the learned trial Judge used the case of Rosemary Chibwe v Austine Chibwetil and the case of Watchtel v Watchte1l2 to define what constitutes family property. As rightly observed by Mr. Chibiya, the two cases are leading authorities on what constitutes matrimonial property in divorce matters. We agree with him that it was wrong in principle for the learned trial Judge to have used the two cases in deciding this matter because the issue that was before him was not whether the house in dispute was matrimonial property. The issue was whether the house formed part of the estate and the appellant was entitled to it under Section 9 of the Intestate Succession Act. A perusal of Section 9 of the Intestate - J13 - Succession Act will reveal that a house which a surviving spouse or child is entitled to under that provision, does not necessarily need to be matrimonial property as defined by the two cases. It can be any house provided it forms part of the deceased's estate where the estate includes a house. Such a house can be, but it ought not to be, matrimonial property. However, if a house happens to be family property, then the Intestate Succession Act cannot apply to it and the ultimate result is that it would not form part of an intestate estate and a surviving spouse or child would not be entitled to it. We say this because Section 2(2)(c) of the Intestate Succession Act expressly provides that the Intestate Succession Act does not apply to family property. It does not matter whether such family property is registered in the name of the deceased, as happened in this case. We cannot, therefore, accept Mr. Chibiya's argument that simply because the house in dispute was registered in the deceased's name at the time of his death, then it automatically formed part of his estate and the surviving spouse is entitled to it. -114 - The respondents' claim in this case is that house No. 10375, Nyumba Yanga, Lusaka is their family property and the Intestate Succession Act does not apply to it; and the appellant is not entitled to it. Family property is defined by Section 3 of the Intestate Succession Act as: "'family property' means any property, whether movable or immovable, which belongs to the members collectively of a particular family or is held for the benefit of such members and any receipts or proceeds from such property." It does not matter in whose name the property is registered, provided property falls within this definition of family property as defined by Section 3 of the Intestate Succession Act a surviving spouse or child cannot be entitled to it. Family property can be registered in the names of any member of the family as it is impracticable for each and every member of the family to be registered as joint owner. The question of whether a particular property is family property, is usually a question of mixed law and fact which has to be decided by the court based on the evidence before it. In this case, there is evidence on record that the late Paul Peter Zulu bought the house in dispute for the benefit of his family. The respondents testified that they agreed as a family, -115 - to the deceased's decision to obtain a loan to buy a family house in order to supplement his father's pension who had just retired as a police officer. That the deceased bought the house in dispute on 10th December 2002, using the money he got from the loan he obtained from his employers, the Public Service Pensions Fund, as well as from his father's pension. That the deceased had a shortfall of K5 million which his parents topped up. That he allowed his father and his brother to occupy it immediately after he bought the house. The house was later leased out to the Drug Enforcement Commission and the rentals were being used to educate the deceased's siblings. The respondents testified that the deceased married the appellant on 28th December, 2002, after he had already bought the house. It was their evidence that the deceased had opted to live in a rented house in Kamwala with his wife so that the house he bought could continue assisting his family. On the other hand, the appellant's evidence was that her late husband never told her anything about the house. She conceded that her late husband bought the house before he married her and that she was not aware that the respondents - J16 - had a family meeting before the deceased bought the house. The learned trial Judge who had the advantage of seeing and hearing the witnesses, accepted the respondents' evidence and found as a fact that the house in dispute is family property. In Wilson Masauso Zulu v Avondale Housing Project Lte) we held that: "Before this court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." As we have already shown, there is sufficient evidence on record to support the learned trial Judge's finding that house No. 10375, Nyurnba Yanga, Lusaka is family property. We are satisfied, from the evidence, that the house falls within the definition of family property as defined by Section 3 of the Intestate Succession Act and the Intestate Succession Act does not apply to the house. It follows, therefore, that the said house does not form part of the estate of the late Peter Paul Zulu and the appellant is not entitled to it. Although counsel for the appellant advanced arguments concerning the letter which the appellant purportedly wrote to - J17 - his mother, we see no dispute about it because the respondents in their submissions conceded that the letter is not a Will. As such, the letter has no force of law. A Will must meet the requirements of Section 6 of the Wills and Administration of Testate Estates Act to qualify to be a Will. We take the view that the said letter served no useful purpose other than to buttress the respondents' evidence that the deceased bought the house in dispute for the benefit of his parents and siblings. There being no dispute about its legal effect, we shall say no more. The net result is that ground one lacks merit. We accordingly dismiss it. We shall move to ground four. In support of the fourth ground of appeal, Mr. Chibiya submitted that the 3rd respondent swore an affidavit on 11th January, 2006, in which he had indicated that Monase Zulu was the deceased's only daughter. Counsel pointed out that the first mention of another child only came up in an affidavit of August, 2006. He argued that the evidence of Claudina Sakala that the deceased was taken to court for impregnating her was unreliable in that there was no evidence to prove that indeed -118 - there were proceedings in the Local Court concerning the matter. He pointed out that the Birth Certificate of Belita Zulu indicates that the deceased is the father of the child. In this regard, he drew our attention to Section 15 of the Births and Deaths Registration Act which provides that 'no person shall be bound as a father to give notice of the birth of an illegitimate child, and no person shall be registered as the father of such child except on the joint request of the mother and himself and upon his acknowledgement in writing to be the father of the child." He submitted that in this case there was no evidence on record to show that the deceased acknowledged in writing to be the father of Sento Zulu. It was counsel's contention that the court below misdirected itself to have found that Belita Zulu was the deceased's child, who should rank as a beneficiary under Section 5 of the Intestate Succession Act. He quoted from P. M. Bromley's book on Family Law without giving a full citation, saying: "... entry of a man's name as that of the father on the registration of a child's birth will be prima fade evidence of paternity; if the child is illegitimate, however, this can be done - J19 - only with his consent unless an affiliation order has been made against him." He submitted that an application should have been made under the Affiliation and Maintenance of Children Act in the Subordinate Court but this was not done in this case. He stated that since there were no affiliation proceedings taken in this matter, the arguments by the respondents that the child was the deceased's child, were not justified and not supported in law, as to proof of paternity. The respondents countered ground four of this appeal. The gist of their submissions was that there was evidence to support the finding by the trial Judge that the deceased had another daughter called Belita Zulu. They stated that Claudina Sakala, the mother of that child, had testified in the court below how she met the deceased and became pregnant. The respondents pointed out that Claudina Sakala had produced the child's Birth Certificate to prove that the deceased had another child. They stated that as parents to the deceased, the 181 and 2nd respondents knew about the pregnancy and they accepted the baby. The respondents stated that the matter was even taken to the Local Court where it was resolved. They - J20 - contended that Belita Zulu was born after the deceased had died and he could not have possibly signed any documents relating to the child. They submitted that the appellant denied the child because of greed. The question that lies at the centre of ground four, in our view, is whether the late Paul Peter Zulu was the father of Belita Zulu As rightly pointed by Mr. Chibiya, Section 15 of the Births and Deaths Registration Act stipulates that no person should be registered as a father of an illegitimate child except on the joint request of the mother and himself and upon his acknowledgement in writing to be the father of the child. However, we are of the considered view that on the facts of this case, it would be unreasonable to insist on the strict application of Section 15 of the Births and Deaths Registration Act to this matter. The late Paul Peter Zulu died in a road traffic accident five months before Belita Zulu was born. It was, therefore, practically impossible for him to acknowledge, in writing, that he was the father of Belita Zulu. The mother to the child, Claudina Sakala, appeared before the court below and testified how she knew the late Paul Peter (cid:9) - J22 - never had any other child other than Monase Zulu. Based on the facts in this case, the appellant could not have known the existence of the child when her husband was alive since her late husband died before the child was born. We have not found any basis on which to overturn the learned trial Judge's decision. Ground four of this appeal has no merit. Accordingly, we dismiss it. We shall now address grounds two and three. In support of grounds two and three, which he argued together, learned counsel for the appellant referred us to Section 15 of the Intestate Succession Act, which provides that where the deceased has died intestate, the Court may, on application of any interested person, grant letters of administration of the estate to that interested person. He pointed out that Paragraph (b) of Section 15 of the Intestate Succession Act stipulates that the court shall take into account greater and immediate interests in the deceased's estate in priority to lesser or remote interests. His submission was that maintaining the appellant as co-administratrix would - J23 - ensure that her interest as surviving spouse and the interest of their only child is taken into consideration. Regarding the learned trial Judge's finding that the appellant never accepted Belita Zulu as the deceased's child, Mr. Chibiya submitted that this issue remains in dispute and the appellant does not believe that the child exists and if it does, the appellant does not believe that she is the child of the deceased. He therefore argued that money could not be extended to the child. When it came to the allegations that the appellant had ex-communicated her co-administrator, counsel pointed out that the 3rd respondent had admitted in his affidavit evidence that he was unavailable most of the time. He submitted that rentals could not be shared because the appellant believed that it was only her and her child who were entitled and there was no other child. He stated that the appellant believed that she was entitled to the money she had used. The respondents opposed grounds two and three of this appeal. They argued that there was evidence on record that the 1 - I24 - appellant collected money from the estate of the late Peter Paul Zulu, without the knowledge and consent of the co- administrator and that she did not distribute the money to the beneficiaries. The gist of their submissions was that the appellant breached the provisions of the Intestate Succession Act The respondents supported the decision of the learned trial Judge to revoke the appointment of the appellant as co- administratrix and argued that the appellant did not rebut the evidence that she squandered the estate of the late Paul Peter Zulu. They submitted that the appellant had failed to account for the money that she had collected. It is clear to us that in grounds two and three, the appellant is challenging the learned trial Judge's decision to revoke the appointment of the appellant as co-administratrix, on the basis that she squandered the money from her late husband's estate and the estate had suffered massive waste at her hands. The issue therefore, is whether sufficient grounds existed on which the learned trial Judge found that the appellant mismanaged the estate and revoked her appointment. , (cid:9) (cid:9) (cid:9) - J25 - In a case such as this one, where there are two administrators appointed to manage an estate, it is in the interest of justice that those co-administrators should co- operate and exercise their powers unanimously, unless the letters of administration provide otherwise. Where there are several administrators, their powers should be exercised by the majority of them. This is in line with Section 20 of the Intestate Succession Act, which provides that:- "Where there are several administrators, their powers may, in the absence of any direction to the contrary contained in the letters of administration, be exercised by the majority of them." When it comes to the relationship between the appellant and the 3rd respondent, it is clear that there was no cooperation and unanimity as co-administrators. There is evidence that the appellant ex-communicated the 3rd respondent. She single handedly went to various institutions and collected money belonging to the estate, for her own use, without his knowledge and authority. She single handedly: (a) collected arrears of rent from the Drug Enforcement Commission for the house which was on rent; (b)collected the deceased's social security contributions from National Provident Fund; • - J26 - (c) collected money from Standard Chartered Bank where the deceased used to receive his salary; (d)collected money from the deceased's account at Madison Life Insurance; collected money to the deceased's credit at National Pension Service Scheme (NAPSA); collected money from Zambia Education Publishing House where the deceased was once working; removed the tenants from the house and put up a poster which indicated that it was available for either sale or rent. That she then attempted to obtain authority from the co-administrator to execute a Deed of Assent, which would have vested the house in her and when he refused, she sued. All these allegations were not denied by the appellant. She in fact admitted them in her evidence and claimed that she used the money for her upkeep and that of the child since she was not working. Sadly, she never distributed any of the money she had collected, as required by the law. An administrator or administratrix has a duty under Section • - 127 - 19(1)(b) of the Intestate Succession Act to effect distribution of an estate in accordance with the rights of the persons interested in the estate under the Intestate Succession Act. Failure to do so is a breach of the law. And the court is entitled to intervene, by calling upon an administrator to render an account for the administration of an estate or, to revoke his or her appointment. This is what we said in Lindiwe Kate Chinvanta v Doreen Chiwele and Judith Tembols), where we held that: "An Administrator has legal duties to the beneficiaries and other interested parties including creditors; an Administrator may be called upon by a court to account for the administration of the estate or for default. There are many cases where Administrators have been found liable for conduct in breach of the law. Even an Administrator who is a surviving spouse can also be required to account for the distribution of the estate by any interested person... We wish to make it clear that courts will intervene in matters of administration of deceased's estates where there is sufficient evidence of breach of provisions of the law... courts would intervene where sufficient reasons exist and would remove an Administrator, nullify or revoke a grant under the Intestate Succession Act..."" We have no doubt that the appellant breached the law when she singlehandedly, collected money without the authority of the co-administrator and used it without distributing some of it to all those who were entitled under the law. We agree with the learned trial Judge that the appellant displayed extreme selfishness. Everything was just centred around her and her child, Monase Zulu. She consistently refused to accept Belita Zulu as the deceased's child, even at - J28 - the time we heard this appeal, because she did not want to share the money with this child. We are satisfied that sufficient reasons existed upon which the learned trial Judge intervened and revoked the appointment of the appellant as co- administratrix and ordered her to provide an inventory and to render an account of all the money she had collected to the exclusion of her co-administrator. It is our considered view that grounds two and three have no merit. We hereby dismiss them. Since all the four grounds of appeal in this appeal have failed, this appeal stands dismissed for lack of merit. We hereby uphold the decision of the learned trial Judge in this matter. We shall, in the circumstances, order the parties to bear their respective costs. E. N. C. MUYOVWE SUPREME COURT JUDGE . C. ICAOMA SUPREME COURT JUDGE