Ruth Daka Mutakwa (2017 /HPF / 0046) [2017] ZMHC 533 (19 December 2017)

IN THE HIGH COURT FOR ZAMB IA AT THE PRINCIPAL REGISTRY 19 DEG ZOH H OLD EN AT LUSAKA (Probate J urisdiction) ·:i.,i)'-:,,, __ I , .,.,'·i. ' . 2 01 7 /HPF / 0046 : I I . I IN THE MATTER OF: . _ .. ,.· SECTION 11 OF THE HIGH COURT ACT, CAP 27 OF THE LAWS OF ZAMBIA AS READ TOGETHER WITH RULE 53 OF THE NON CONTENTIOUS PROBATE RULES 1987 IN THE ESTATE OF: WEBBY CHILULU MUTAKWA AND RUTH DAKA MUTAKWA APPLICANT Before t h e Hon. Mrs. Justice N. A. Sharpe-Phiri on the 19th December 2017 . - _ .. -'· ··~ For thc=:/pplicant • ... • ~ • • ♦ ~ • - • .. ~ .. , : Mrs A. Mum ba of Messrs CKM As sociates ,,,.. . "r/' _,,,. . r••~ ,•., :_" I,, . "r/' .,. ,r JUDGMENT Authorities referred to: 1. The High Court Act, CAP 27 of the Laws of Zambia 2. The Non-Conte ntious Probate Rules 1987 of the Suprem e Cou rt of England and Wales 3. Chard v Chard (1955) 3 A ll ER 721 4. Halsbury's Laws of England, Volume 1 7 J 1 .; .; This action was commenced the Applicant on the 18th August 2017 by Originating Summons. By this application, th e Applicant seeks for an order of presumption of death of her husband Webby Chilulu Mutakwa. In support of the application, the Applicant filed an affidavit in which she contends that she was lawfully married to Webby Chilulu Mutakwa on the 23rd October 2002 in Kitwe, in the Copperbelt Province of the Republic of Zambia. She states that at the time of their marriage her husband was a police officer by profession and they last cohabited at M. U. Police Training School in Kamfinsa, Kitwe District of the Copperbelt Province of the Republic of Zambia. She also contends that they h a d 3 children of the family. She states further that during their m a rriage h e r hus band was unwell and had been undergoing medical treatme nt. Tha t on the 3 rd June 2006 whilst resting with her newly born infa n t , s he heard her hus band tell their children that he was going .. - . . '... . • .. .... out for a walk. .. He was a t th e tune not in a conciition to go out . Gn his .pwn, s o s he t riep t~ fo llow him .put· he' had aire_~y ·left the hoU~f- a,;;d .. could n ot trace h im. Sh e so ught the help of her neighbours to look for • . _ ·.:.:.i. , ...... '....a:. ~ ... ~.,J.. · ~ -ix. ...,~ .. , · ~ • • • • • . ' him a s he did not retur n hom e. She also reported his disappearance to the police. The fa mily a lso pl aced an advert in the Post Newspaper of 2 0 th May 20 J 4 in a final a ttempt to determine his whereabouts. Despite all this effort, he h a s not been seen by anyone and it has been 11 years since h e was seen alive . There is no indication whatsoever that her husband is still alive . She said further that the police authorities have decided to pay his sala ry to her. However, she was advised to seek an order declaring her husband dead in order to facilitate the release of J 2 his pension. She urged the Court to grant an order for presumption of death. The matter came up for hearing on the 28th September, 2017. Counsel for the Applicant, Mrs A. Mumba relied on the affidavit in support. She requested that the Applicant be given more time to file a further affidavit by the sister of the said Wehby Chilulu Mutakwa. The Court directed that the further affidavit be filed no later than the 29 th September 2017. However, at the time of writing this ju~gment the Court had not had sight of the further affidavit. I have consider ed the affidavit evidence of the Applicant and the submissions of counsel. The issue for my determination is whether to grant an Ord er of presumption of death of one Webby Chilulu Mutakwa . .,, .. ":'• • - . · : · ,, - - • .,, • .. - . ._)'his application,;vas made purs~t to· Sectfon_f l ~'r the High _fou-~t: .. ~ • • _ ..&. . """> , - --~ - : • -~ ,.·- ·.:.'"" · .,,. . ,<' .. Act, Chapter 27 of the Laws of Zambia as read together with The Non-Contentious Probate Rules 1987. Rule 53 of the Non Contentious Probate Rules 1987 provides that: ' "An application for leave to swear the death of a person in whose estate a grant is sought may be made to a registrar, and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased together J 3 with such further evidence as the registrar may require." The above provision refers to an application for leave to swear the death of a person in whose estate a grant is sought. However this is not the application before the Court. The application is for the Court to presume one Webby Chilulu Matakwa as having died. It is trite law that the High Court has inherent and original jurisdiction to hear and determine any matter subject to law. In the case of Chard v Chard the court held as follows: ' ... where no statute lays down an applicable rule, the issue whether a person is, or is not, to be presumed dead is, generally speaking, one of fact and not subject to a ~- .• •~ .... : "': "' presumption of law. To that there is an~x_ception which c;an . ,- ": '"~ - be assume.p without affe_<1-ing the prese_n.; case. By vir:tpe of .,- .. :;~:: . - ·: :; - .... ..,.,.,. • ---. • '.• • .... . : • - ~· . a long sequence of judicial statements, which either assert or assume such a rule, it appears accepted that there is a convenient presumption of law applicable to certain cases of seven years' absence where no statute applies. That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows: Where as regards "A B" there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first, that there are persons who would be likely to have heard of him over that period, secondly, that those persons have not J 4 heard of him, and thirdly, that all due inquiries have been made appropriate to the circumstances, "A B" will be presumed to have died at some time within that period. (Such a presumption would, of course, be one of law and could not be one of fact, because there can hardly be a logical inference from any particular set of facts .• • ' The learned authors of Halsbury's Laws of England a lso state on pr esumption of death at paragraph 115 of Volume 17 at page 85 state: 'Certain exceptions to this general rule are provided by statute and in addition, where there is no acceptable affirmative evide nce that a person was alive at some time during a continuous period of seven years or more and it is proved t hat t h ere are persons who would be likely to have • .... heard of h im over t hat p .eriod, that thqse_ persons haT?J: not h eard of pim a nd t hat .pl(dii.e inquir!,1s ii.ave been _rp.ade .. appropriate t o t h e circumstances, there arises a rebuttable - •-:..'-!:'. • ~. • V1<\. :_"• "" · :. · "" · • • • .. • ... · ·~ .• - i presumption of law that he died sometime during that period' The foregoing authority is clear that where there is no evidence that an individual is alive at sometime during a continuous period of seven years and such persons who arc likely to have heard from him and h a ve not h eard from him and that a ll due inquiries have been made, t h en a presumption of death of such a person arises at law. J S ., ..:.__!...:~,..~<- In the present case, the Applicant has shown that she last sm~, her husband alive on 3rd June 2006 and that he has not been seen by any relatives or colleagues since 2006. Further, that she reported his disappearance to the police and several inquiries as to his whereabouts have been made without success. The family also placed an advert in the Post Newspaper in 2014 in a final attempt to trace the said Webby Chilulu Mutakwa but all their efforts have yielded no results. From the foregoing, I am satisfied that there is no evidence that the said Webby Chilulu Mutakwa has been seen alive since 2006. That a period of over 11 years has passed and all due efforts to prove whether the said Webby Chilulu Mutakwa is alive have been made without success. I am therefore of the view that this is a proper case in which a presumption cou ld be made that the said Webby Chilulu Mutakwa died sometime during lhe period of 2006 to date. I accordingly order that the said Webby Chilulu Muta kwa be and is hereby presumed d ead. The Applicant. is therefore at liberty to apply _ for a grant -~f. letters of . .. . ... . -~ .. -. . . · .. ·' ··~ .. - ·· ... '"' · ··~ ,, - ~' "· ·· a dministIJl-tion for the es t¥ e ~f the late W~by Chilulu Mu_~~ - · Delivered at Lusaka this 19th day of December 2017 ~ ~ :;:_-=-...::-.:.:.:::::::~ -~ . A. Sharpe-Phiri - High Court Judge J 6