Yammie Zimba (Sued in her capacity as Administratrix of the estate of the late Kanyuka Zimba) and Anor v Cynthia Zimba (suing in her capacity as Surviving spouse of the late Kanyuka Zimba and Guardian of Niza Zimba) (Appeal No. 43 of 2022) [2024] ZMCA 10 (15 February 2024)

.... IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) Appeal No. 43 of 2022 IN THE MATTER OF: ORDER XXX RULE 12 OF THE HIGH COURT RULES, OF THE HIGH COURT ACT, CHAPTER 27, VOLUME 3 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE INTESTATE SUCCESSION ACT, CHAPTER 59, VOLUME 5 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE ESTATE OF KANYUKA ZIMBA BETWEEN: Y AMMIE ZIMBA (Sued in her capacity Administratrix of the estate of the late Kanyuka Zimba) a� 5 FEB 2024 1st Appellant MARGARET ZIMBA (Sued in her capacity of the estate Administratrix Zimba) of the late Kanyuka as 2nd Appellant AND CYNTHIA ZIMBA (suing Surviving Guardian spouse of the late Kanyuka of Niza Zimba) in her capacity as Zimba and Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 17 January and 16 February For the Appellants: For the Respondent: of Mr. Simunyola Legal Practitioners Eric Silwamba, Mrs. R. P Bwalya of Messrs Amani Legal Practitioners and Mr. Silwamba Jalasi & Linyama JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. Jl to: Legislation referred Succession Causes Act, No. 20 of 2007 1. The Matrimonial 2. The Intestate 3. The Matrimonial 4. The Intestate 5. The Wills and Administration Causes Act of England, Succession Rules, SI No. 38 of 2023 Act, Chapter of Testate Estates 59 of the Laws of Zambia Act, Chapter 197 3 f 60 of the Laws o Zambia Cases referred to: 1. Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023} 3 WLR 189 2. Agro Fuel Investments Limited v Zambia Revenue Authority (Appeal 187 of 2008) [2012] ZMSC 18 3. Lindiwe 4. Wilson Kate Chinyanta v Doreen Chiwele Housing & Judith Project Tembo (2007) ZR J 72 (1982) Zulu v Avondale Masauso ZR 246 Other authorities: 's Laws of England, 1. Halsbury 2. Rayden 's Law and Practice th Butterworths, in Divorce Edition, Volume I 3 and Family Law Matters, Edition, th Volume I text, Separation 1983 at page 316, paragraph J 33; Effect of Decree of Judicial 1.0 INTRODUCTION 1.1 This appeal challenges the judgment made by Chibbabbuka J of the High Cou11 in Lusaka on 29 November 2021. l .2 In the aforementioned judgment, the trial Judge determined that the applicant, Cynthia Zimba (now referred to as 'the respondent') and Niza Zimba ('minor') were beneficiaries entitled to the estate of the late Kanyuka Zimba ('the deceased'). The Judge ruled that they should be given their entitlements as the surviving spouse and dependant, respectively. J2 1.3 In the initial segment of this judgment, as they the parties wi II be identified were in the lower Court, with Cynthia Zimba as the applicant and Yammie Zimba and Margaret Zimba as the 1st and 2nd respondents respectively. 2.0 BACKGROUND 2.1 On 15 December 2016, the applicant initiated legal proceedings in the High Court against the I st and 2nd respondents. 2.2 After a Court ruling on 23 December 2019, the applicant submitted an amended originating summons to the Com1 on 6 January 2020. The amended summons sought the following reliefs against the I st and 2nd respondents: i) An Order that the applicant and Niza are Zimba (minor) beneficiaries ii) That the respondents of the Late Kanyuka of the estate produce of the Late Kanyuka Zimba. and account an invento,y of the estate lo the beneficiaries. Zimba as was distributed be given her entitlements provided by law. as surviving spouse be given her entitlements as a dependant under the iii) That the applicant under the estate as iv) That Niza Zimba estate as v) That the Letters provided by law. applicants late Kanyuka Zimba. of Administration be revoked the funds belonging that the if it is found of the to the estate ,nisappropriated vi) That the applicant be appointed I Co. Administratrix of the estate of the late Kanyuka Administrative Zimba. on amount claimed. vii) Interest viii) Any other reliefs ix) Costs be borne by respondents. the court deems fit. 2.3 The applicant submitted an affidavit in support of the originat ing summons asserting that she legally married the deceased on 23 April 1994 at J3 Kansenshi Chapel in Ndola. They lived together as a maiTied couple from 23 April 1994 until 8 May 2014 when a decree of judicial separation was issued by the Court, lasting for one year. 2.4 Throughout their marriage, the applicant and the deceased did not have biological children together. However, they acted as co-guardians for Niza Zimba (formerly known as Favour Mubanga) from when she was six months old. On 1 July 2011, they were granted a committal order by the Magistrates Court in Kabwe and plans were underway for them to formally adopt the minor at a later stage. 2.5 On the 26 April 2015, while the judicial decree separation was still in effect, the deceased and 2nd appellants, died intestate. The sisters now the 1st of the deceased, were granted Letters of Administration on 20 May 2015 to administer the estate of the deceased. 2.6 The applicant fu11her asserted that the respondents, who had already distributed the estate of the deceased, refused to recognize her as the surviving spouse and neglected to acknowledge the minor as a dependant of the deceased. Additionally, she claimed that the respondents failed to allocate their entitled shares to them. The applicant sought an order for a compehensive inventory and an account of the deceased 's estate. 2. 7 The respondents countered by filing an affidavit on 24 in opposition November 2021, sworn by the 2nd respondent as the administratrix of the deceased's estate. In substance, she reiterated the details in the provided affidavit in supp011 regarding the marriage, judicial and the separation subsequent demise of the deceased while separated from the applicant. J4 4. 8 The deponent futher stated that after the death of the deceased, they were appointed as administratrix of his estate. Subsequent to their appointment, they identified the properties comprising which of the deceased, the estate included: i) Incomplete Munkoyo Street, residential house situated Nkrumah Residential in Kabwe. at Stand No. 8533/34, Off Plot No. 3018, Kapiri Mposhi ii) Commercial iii) Motor Vehicle iv) Terminal v) Death benefits benefits Toyota Noah registration number ABT 957. and from Local Authority from ZESCO Limited; Superannuation Fund. 4.9 Regarding the incomplete residential house situated at Stand No. 8533/34, Off Munkoyo Street, Kabwe, the 1st respondent stated that they enlisted the services of Sandridge Associates, registered valuation surveyors, to assess the value of the house in its incomplete state. Subsequently, they finished the construction and furnishing of the house and then requested the valuers to reassess value the property in its completed state. Two valuation reports dated 16 October 2015 and 28 July 2021 respectively were presented as exhibits, demonstraing the respective valuations of the property. 4.10 As for the commercial Stand no.3018 in Kapiri Mposhi, the I st respondent indicated that they covered all the expenses related to the offer letter, surveyor's costs, and transportation costs to and from Kapiri Mposhi. They also facilitated the issuance of title of the ce11ificate for the plot, which was granted on 10 March 2021 in the name of the deceased, and was exhibited as such. JS 4.11 Concerning the motor vehicle Toyota Noah with registration number ABT 957, the 1st respondent explained that before the deceased's he had passing, acquired a loan of K24,000 from a money lender named Catherine Namumba. To secure repayment the of the debt, he had pledged aforementioned motor vehicle to her. 4.12 Regarding the terminal benefits, the pt respondent specified that they had received amounts of K27 l ,302. l 4 and Kl ,085,208.54 from ZESCO Limited as terminal benefits for the deceased. Additionally, they had received death benefits from Local Authorities Superannuation Fund. 4.13 The 1st respondent asserted that the applicant and the deceased did not have any biological children together. he At the time of the deceased's demise, was survived only by a mother, Rhyness Zimba, and tvvo dependants, namely Lauren Zimba and Niza Zimba. 4.14 The pt respondent fu1ther mentioned that they had sought legal advice on the laws on distribution of the deceased' estate. Subsequently, they proceeded to distribute a p01tion of the estate to the of the deceased beneficiaries. Exhibits of the inventory and account of the deceased's estate were presented. The 1st respondent also noted that they were awaiting the outcome of the Court proceedings to distribute the remaining of the po1tion estate. 4.15 In relation to their administration of the estate, the l51 respondent provided a deailed account of the entire estate as follows: i) That the real property namely Stand No. 8533/34, Kabwe and Plot No. 3018, Kapiri Mposhi remain part of the estate. ii) That the Toyota Noah Motor Vehicle was sold for Kl 5,000 and the funds were distributed as follows: Kl 2,000 was paid to Catherine Namumba, the money lender in settlement of the debt of the deceased; and K2,400 as 3 month's salary paid to the maid. iii) That the death benefits from the Local Superannuation Fund in the sum of K278, 111.61 had not been distributed. iv) The terminal benefits from ZESCO had been distributed as follows: - Kl 00,050 to Lauren Zimba as tuition fees payable to the University of Zambia (representing 5% of her entitlement of to Rhyness Zimba, the deceased 's mother. monies available). - K93 l ,4 l O distributed - K22,450 paid as legal fees. - K6,000 paid as valuation - K20,400 luncheon - K3,500 paid to Niza Zimba for school paid for memorial fees. fees. and tomb stone. 4.16 The 1st respondent additionally stated that in the course of administering the estate, they had rented out the fully constructed house located on Stand no. 833/3 in Kabwe for a monthly fee of K2,000. 4.17 In summary, the 1st respondent claimed was not a that the applicant beneficiary of the estate. status They argued that the applicant's as surviving spouse was negated by the existingjudicial separation at the time of the deceased' s death, preventing her from asserting a right and entitlement as a surviving spouse of the deceased. 3.0 DECISION OF THE LOWER COURT 3.1 After assessing the evidence presented by boh parties, the learned trial Judge acknowledged that the applicant was legally married to the deceased on 23 April 1994, and they were granted a judicial on 8 May separation 2014. The deceased passed away while separated from the applicant. Upon reviewing the provisions of Section 35 of the Matrimonial Causes Act, the Judge concluded that this section states explicitly that a judicial separation does not impact the rights of the parties in their marriage; they remain married for all intents and purposes. Consequently, the Judge determined that there was no doubt that the applicant was the surviving spouse of the late Kanyuka Zimba and, therefore, entitled to a share of his estate. 3.2 In relation to the child Niza Zimba, the Judge determined from the evidence on record, that it was clear that Niza vvas been cared for by both the applicant and the deceased before the latter's demise. Consequently, the Judge ruled that Niza Zimba qualified as a dependant and, of the deceased therefore, was entitled to a share of his estate. 3.3 The Judge went on to affirm that the applicant had successfully sustantiated her claims as outlined in the amended originating summons, establishing he entitlement to participate in the estate of the late Kanyuka Zimba. As a result, the Judge concluded by issuing the following orders: i) An order that the applicant and Niza Zimba are beneficiaries of the of the late Kanyuka Zimba as surviving spouse and dependant estate respectively. ii) That the respondents of the late Kanyuka which is to be filed before produce Zimba as was distributed account an inventory and lo the beneficiaries of the estate this Court within 30 days of this judgment. iii) That the applicant under the estate assessed as provided by the Deputy Registrar. be given her entitlements as a surviving spouse by law which entitlements are to be iv) That Niza Zimba be given her entitlements by law which entitlements are to as a dependant by under the be assessed as provided estate the Deputy Registrar. v) That the letters of administration be revoked the funds belonging if it is found that the of the to the estate misappropriated applicants fate Kanyuka Zimba. vi) That in the event that the letters of administration of the estate are revoked the of the late as administrator be appointed Zimba and in the event that the letters applicant Kanyuka are not revoked then the applicant Administratrix. be appointed as Co­ of administration vii) Interest on the amount claimed at the average rate from the commencement of this action and thereafter at the current Bank of Zambia short to the date bank commercial term deposit of this judgment, fending rate tiff the date of fidl payment. viii) Costs of this application to be borne by the respondents and to be taxed in default of agreement. 4.0 APPEAL 4.1 Expressing dissatisfaction with the judgment delivered by Chibbabbuka, J on 29 November 2021, the 1st and 2nd respondents (now referred to as 'the l51 and 2nd appellants') initiated an appeal on 17 December 2021. This appeal was filed by way of notice and memorandum of appeal against the applicant, hereinafter to as 'the respondent'. referred 4.2 The appellants advanced three grounds of appeal as follows: J9 i) The learned Puisne Judge erred in law when she held that the applicant Cynthia Zimba who was on Judicial Separation at the time of Kanyuka Zimba 's death was a surviving spouse and therefore entitled to the estate of Kanyuka Zimba (deceased). ii) The learned Puisne Judge erred in law when she ordered the appointment of the applicant as administratrix or co-administratrix without examining her eligibility solely on the basis that she was the surviving spouse of Kanyuka Zim.ba,· and iii) The learned Puisne Judge erred in law and fact when she pronounced on the revocation of the appellant's Letters of Administration of the Joint Administratrix and the possible appointment of the respondent as Administratrix or Co­ Administratrix before adjudicating on the administration of the estate therein i.e. the inventory and distribution of the estate. 5 .0 ARGUMENTS OF THE PARTIES 5.1 The l51 and 2nd appellants filed their heads of arguments on 24 February 2022. The Respondent's arguments arguments were filed on 9 November 2022. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard before us on 17 January were 2024. Both parties represented by their respective counsel, as previously mentioned. Both counsel on record relied on their respective as filed herein. Same will only be referred to where necessary in our decision section. JlO 7.0 OUR DECISION ON THE APPEAL 7.1 We have thoroughly reviewed the judgment of the learned trial Judge, taking into account her considerations, findings, and the evidence presented on record, along with the arguments of the parties. 7.2 In their first ground of appeal, assert the appellants that the learned Puisne Judge erred in law by determining that the applicant, Cynthia Zimba, who was on judicial separation at the time of the deceased Kanyuka Zimba's death, qualifies as a surviving spouse and is consequently entitled to the estate of the deceased. 7.3 The appellants contend that the trial Court's of Section interpretation 36 of the Matrimonial Causes Act was flawed. They argue that the Legislature's intention in formulating Section 36 was to establish of the a legal fiction death of the other spouse concerning devolution of prope1ty when one party to a marriage or former marriage dies during the continuaion of a decree of judicial separation. 7.4 The appellants argued that the law safeguatds the rights, obligations, and benefits of man-ied individuals during the subsistence of the ma1Tiage. Hov,1ever, they contend that this protection does not extend to situations where either party to a man-iage dies intestate while a decree of judicial separation is in effect. They sressed that, in such cases, of the the property deceased person devolves as if the deceased had outlived the other patty. 7.5 The appellants further emphasized that this legal stance finds support in Halsbury's Laws of England, 4t1, edition, volume 13, page 326 at Jll paragraph 649, and is also re-einforced by the learned authors Law and Practice in Divorce and Family Law Matters, of Rayden 's 14th edition, volume 1, text,1983 at page 316, paragraph 133, Effect of Decree of Judicial Separation. 7.6 The respondent, in her heads of argument, contended that the trial Cou1t was justified in concluding that she was the surviving spouse of the deceased Kanyuka Zimba. This determinaion was based on the fact that their man-iage had not been dissolved, and she was encompassed as a surviving spouse and beneficiary by the definition of 'marriage' under Section 3 of the Intestate Succession Act. The respondent argued that Section 35 of the Matrimonial Causes Act only suspends the obligation to cohabit while the decree of judicial separation is in effect but does not impact the continuation of the marriage, status, rights, and obligations of the parties involved. 7.7 Regarding the provisions of Section 36(1) of the Matrimonial Causes Act, the respondent supported the trial Judge's conclusion that she qualified as a surviving spouse in the eyes of the law. As such, she asserted her entitlement under the deceased's estate, regardless of the ongoing decree of judicial separation at the time of the deceased 's death. 7.8 It is undisputed that Kanyuka Zimba passed away intestate while a decree of judicial separation from the respondent, granted was by the High Court, in effect. J12 7.9 The resolution of the primary issue raised in the first on the ground centers interpretation of the provisions of Sections 35 and 36(1) of the Matrimonial Causes Act, which are restaed below for reference: "35. A decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation, but e.xcept as provided by this Part, does not otherwise affect the marriage or the status, rights and obligations to the of the parties marriage. 36. (1) Where a party to a marriage as to any dies intestate property while a decree of judicial that property shall devolve other party to the marriage. is in operation separation as if that party had survived " the 7.10 A preliminary analysis of these prov1s1ons collectively indicates that Sections 35 relieves the parties to a marriage of their duty to cohabit as man and wife during the continuance of a decree for judicial separation. However, the marriage itself persists for all practical and the purposes, status, rights and obligations of the parties except as remain unaltered, specifically outlined in the relevant section Act of the Matrimonial Causes (Part VI of the Act). 7.11 Section 36(1) of the said Act, incorporated wih Part VI, outlines the procedures for the devolution of property dies when a pa11y to a marriage during intestate the existence of a decree of judicial separation. This section explicitly dictates that 'that property shall devolve as if that party [ deceased] had survived the other party [respondent] to the marriage '. J13 7.12 In the hierarchy of provisions, Section 35 is subordiante 36(1) to Section since Section 35 expressly subjects its stipulations to other provisions within Part VI of the Matrimonial Causes Act. Notably, Section 36(1) is highly specific and intentional in delineating the legislative intentions concerning the devolution of property during the coninuance of a decree of judicial separation. 7 .13 Our interpretation of Section 3 6(1) of Act is that if one of the parties to a marriage dies intestate while a judicial separation is in effect, the distribution of the estate of that deceased party will occur as if the surviving spouse had predeceased them. Consequently, will of the deceased the estate be allocated among the remaining relatives of the deceased, adhering to the Intestacy Laws of the country. 7.14 Despite its seeming inequity, the legislation underscores the repercussions on the distribution of the estate when a judicially separated person dies intestate. The provision finds its origins and foundations in the English Common Law. The learned authors of the Halsbwy's Laws of England, 4th Edition, volume 17, state in relaion to the issue of surviving spouse at paragraph 943 that: 'In the case of deaths on or after JS' August 1970 the effect of a decree of judicial separation is the same as that of divorce: the surviving spouse is excluded from all interest in the other's property, and grants ... 7.15 Likewise, Section 18(2) of the Matrimonial Causes Act of England, 1973 (from which our Act has drawn extensively) stipulates that: J14 "If while a decree of judicial separation is in force and the separation is continuing either of the parties dies to the marriage intestate as respects all or any of his or her real or personal property, that property devolves as if the other party had then been dead." 7 .16 More recently, in the English Courts, Lord Leggatt, with the concurring majority decision in the U. K. Supreme Court case of Unger and another (in substitution for Hasan) v UI-Hasan (deceased) and another1 expressed his opinion on this provision as follows: 'The complex interplay between Part III (and the 1973 Act) on the one hand and the Inheritance Act on the other also means that reform aimed at remedying the injustice that results from the limited ability to make a financial order after either party to the marriage has died would require an overall view to be taken of both legislative regimes and of how they do, and should, interact. Only Parliament is competent to undertake that task and to make and implement the policy choices It is not that would be involved. open to this court to cut the Gordian knot and achieve a solution by interpretation of the existing statut01y ' provisions. 7.17 While this provision may appear inequitable, courts are not empowered to interpret it differently from what has been explicitly legislated. Regarding the role of courts in statutory the Supreme interpretation, Court, in the context of this case, affirmed the primiary role of the courts in the case of Agro Fuel Investments Limited v Zambia Revenue . In that Authority case, the apex cout held that: JlS "According to decided cases, the duty of the Courts in the interpretation of statutes is to give effect to the intention of the Legislature. And the primcuy rule of interpretation f statutes is o that the meaning of any enactment is to be found in the Literal and plain meaning of the words used, unless this would result in absurdity, in which case the Court's authority to cure the absurdity is limited ... " 7.18 Our interpretation is that Section 36(1) of the Matrimonial Causes Act is plain, clear and unambiguous regarding on the the legilstature's intention course of action concerning the property of a party who dies during the continuance of a decree of judicial separation. Until legislation changes to stipulate otherwise, the Courts are bound to interpret the provision according to its plain meaning. 7.19 Based on the above analysis, we conclude that the trial Judge's interpretation of the provisions of Section 35 and 36(1) of the Matrimonial Causes Act, and her subsequent detemination regarding the devolution of the deceased's assets, asserting that the respondent was the deceasect·s surviving spouse, while the decree of judicial separation was in effect, lacks legal foundaion. Ground 1 of appeal is therefore successful. 7.20 Accordingly, in addressing ground 2 of the appeal, the appellants argue that the learned Puisne Judge erred in law by directing the appointment of the respondent as administratrix or co-administratrix without scrutinizing her eligibility solely on the grounds that she was the surviving spouse of Kanyuka Zimba. J16 ' 7.21 Counsel for the appellants contended under this ground that, while Section 15 of the Intestate Succession Act allows a Court to issue letters of to a person administration with an interest in an intestate estate, the trial Judge was obligated to consider the criteria and qualification for appointing the respondent as personal representative of the deceased estate in this case. Counsel argued that the trial Judge's decision to appoint the respondent as a co-administratrix was erroneous and lacked legal support, as a spouse does not take precedence over other interested parties in the estate. 7.22 Reference was made to the case of Lindiwe Kate Chinyanta v Doreen Chiwele Judith Tembo3, where Mumba, JS (as she was then) expressed her opinion that, although in some cases widows or widowers may be appointed as administrators, there is nothing that a in the Act to suggest surviving spouse has priority eligibility for the position of an administrator. 7.23 The respondent argued in response to this ground that the trial Court having correctly determined that the respondent under the was a beneficiary deceased's estate, appropriately appointed her as co-administrator of the estate. further The respondent asserted that the criteria for appointment as administrator are stipulated by law, noting that Section 15(2) of the Intestate Succesion Act specifies that the Court should consider greater and immediate interests in the deceased's estate as a priority over lesser or remote interests. The appointment of the respondent as co-administrator, according to the respondent, safeguards her interest in the estate as a surviving spouse. 7.24 In our opinion, Courts have the responsibility to assess the suitability of a personal representative appointed to administer the estate of a deceased J17 person. Some key factors to consider include trustworthiness, good standing, integrity, honesty, and accountability of the person chosen as a personal representative. Additionally, the availability to discharge and oversee the functions of the office of the administrator should be taken into account. These considerations should exist independently of the legal qualifications for one to be appointed as administrator of the estate. This is the rationale for requiring an intending administrator to provide guarantees, typically in the form of a bond, so that they can be held accountable for their actions as administrators of the estate. For this reason, Section 50(10 of the Wills and Adminsitration of Testate Estates Act provides that: "As a condition of granting letters of administration to any person, a court may, subject to subsection (4), require one or more sureties to guarantee, within any limit imposed by a court, any loss which any person interested in tile administration incur of an estate may in consequence of a breach by the administrator of his duties as such." 7.25 Alhough the Wills Act does not apply to intestates estate, the rationale for considering the personal attributes of an intending applies administrator mutatis mutandis to intestate estates as it does to testate estate. 7.26 A review of judgment of the lower Court indicates that the trial Court referred to the provisions of Sections 35 and 36(1) of the Matrimonial Causes Act. After reproducing the said provisions as shown at page 21 of the record of appeal (page JI O of the Judgment) the trial Court concluded as follows: J18 "There is no doubt therefore that the applicant in this case is entitled to her share in the case of the late Kanyuka Zimba as she is the surviving spouse and as such I agree with Counsel for tire applicant's argument on this score." 7.27 From the above, it is evident that the only basis for the Court's order to appoint the respondent as a co-administrator is the court's mistaken conclusion that the respondent was the deceased 's surviving spouse, and nothing more. This position is flawed as the court should more consider factors than just the legal attributes and interests of a potential administrator in the estate, as outlined in the Act. This seems to align with the reasoning of the Supreme Court in the Lindiwe Kate Chinyanta case cited above. The cou11 must ensure that an applicant, upon being granted letters of administration, has the ability to carry out the functions of that office prudently, diligently, effectively and efficiently. 7 .28 In light of our decision in ground 1, we believe that the respondent, in any case, does not have an interest in the property of the deceased's estate to warrant her consideration for appointment as administratrix in the said estate. This is because she is not a surviving spouse for the purposes of Section 36(1) as discussed earlier. Therefore, this ground of appeal succeeds based on the fact that the trial Court failed to make other considerations on the suitability of the respondent as co-administrator of the deceased's estate. 7.29 The appellants, under the third ground of appeal, contend that the lower Court erred by pronouncing on the revocation of the appellant's of letters administration and possible appointment of the respondent as co- J19 administratrix before adjudicating on the administration of the estate, specficically the inventory thereof. and distribution argued The appellants that the trial Judge's order regarding the revocation of the letter of administration was inconclusive and transient, as it did not address all the issues in controversy. They claim that the trial Court, despite that finding the deceased died while the decree of judicial separation between him and the respondent was subsisting, Section misinterpreted 36 of the Matrimonial Casuses Act by concluding was the that the respondent deceased 's surviving spouse and entitled to share in his estate. The appellant asse1ts that if the trial Court had considered their arguments before it, it would not have arrived at the conclusion it did. They contend that the primary function of the cou1ts is to adjudicate on all issues in controversy to bring finality to disputes between parties. 7.30 In response to the appellant's argument under the third ground of appeal, the respondent contends that the trial Court properly adjudicated the matter when it pronounced itself on the revocation of the appellant's of letters administration. The respondent refers to Section 29(1) of the Intestate Succession Act, which provides for circumstances under which letters of administration may be revoked. It is argued that the appellants improperly administered the deceased's estate by omiting to consider the respondent as surviving spouse, thus violating the provisions of Section 5 of the Intestate Succession Act and depriving her of her rightful share in the estate. The respondent asserts that the trial Court was well within its powers to order the revocation of the appellants' letters of administration. J20 . . 7.31 For this ground of appeal, the Court references claim, respondent's as outlined in the originating summons filed in the lower court and recast in the judgment of the trial court at page 14 of the record. The claim was "(v) That the Letter of Adminstration be revoked if it is found that the applicants misappropriated the funds belonging the the estate of the late Kanyuka Zimba" 7.32 By that claim, the trial Court went on as shown at page 15 of the record of appeal, to consider the respondent's evidence, that the which suggested appellants had neglected to recognize respondent and the minor (N iza) as the beneficiaries of the estate. The Court thus went on to determine that the appellants had mal-administered the deceased's estate. The respondent's Counsel suggested that there were no children or parents of the deceased under the estate this is as contained at page 17 of the record of in issue, 16 of the judgment appeal and of the trial Court. 7.33 A perusal of the record, pa1ticularly starting with the judgment of trial Comt as shown at page 120 of the record of appeal, the Court stated as follows: "The respondents have not filed an affidavit in opposition neither has their Counsel filed into Court heads of arguments and submissions despite being given an opportunity on the 3rd June 2021 the respondent's Counsel to do so. At the last was given up sitting to the 24th June 2021 to file in their affidavit in opposition and submissions while the applicant's counsel was given up to the 8th July 2021. Leave was granted to the applicant to filed their reply J21 .. . . . to the respondent's submissions. Both parties that the indicated matter could be resolved on affidavit evidence. In view of this position taken by the parties, I shall proceed to render a Judgment based on the documents before this Court." 7.34 The trial court a judgment issued on 29th November 2021, without taking into consideration the appellant's response, which included an affidavit in opposition and heads of arguments. This decision seems to be based on the failure appellant's to submit the said documents by the specified deadline of 24th June 2021, as directed by the Court's order on 3rd June 2021. 7.35 Despite the Court proceeding in that manner, the record also shows that the appellants had filed their affidavit in opposition to the originating summons and skeleton arguments on 24th November 2021. Given that the appellants had been allowed to file the same before Court, whether erroneously or otherwise, the trial Judge should not have proceeded on the premise that the appellants had failed to file their affidavit in opposition and heads of arguments. The trial Court should have first addressed the issue of the appellant filing the affidavit in opposition late, either by striking it off the record, reprimanding the appellants with costs, or addressing any inconvenience caused by the late filing of the documents. However, the court proceeded swiftly as though the documents had not been filed before it. We, therefore, assume that these documents were not placed the before trial Judge at the time she was rendering her decision. 7.36 Furthermore, upon reviewing the claim under (v) in the originating summons below, it appears that the respondent was seeking the revocation of the letters of administration granted to the appellants, if it specifically J22 was determined that the appellants the funds of the had misappropriated estate. This implied that revocation was to be considered only after the trial Court had made a determination on the propriety of the adminsitration of the estate's fund. 7.37 A careful examination of the record, especially pages 149 to 152 conaining the extract of the appellant's affidavit in opposition, confirms the detailed account provided by the appellants regarding the distribution of the estate. According to the affidavit, the estate remained largely undistributed, with the appellants making payments for essential expenses such as salaries, school fees, and professional fees. Additionally, the affidavit a includes comprehensive inventory outlining how the appellants the have managed assets of the estates under their adminsitration. The inventory, along with supporting documents where applicable, is presented on pages 222 to 224 of the record of appeal. 7.38 Inspite of the foregoing account, the trial Court at page 24 of the record of appeal adjudged at page J13 of its Judgment as follows: "Having so found, I am satisfied that the applicant has not only proved her claims as outlined in the originating sumoons as amended on the 6th January 2020 but is also entitled to participate in the administration of the estate of the late Kanyuka Zimba and hereby order and grant as follows: i) An order that the applicant and Niza Zimba are beneficiaries of the estate of the Kanyuka Zimba as surviving spouse and dependant respectively. J23 ii) That the respondents produce an inventory and account of the estate of the late Kanyuka Zimba as was distributed to which is to the beneficiaries be filed before this Court within 30 days of this judgment. iii) That the applicant be given her entitlements as a surviving spouse under the estate as provided by law which entitlements are to be assessed by the Deputy Registrar. iv) That Niza Zimba be given her entitlements as a dependant under the estate as provided by law which entitlements are to be assessed by the Deputy Registrar. v) That the letters of administration be revoked if it is found that the applicants misappropriated the funds belonging to the estate of the late Kanyuka Zimba. vi) That in the event that the letters of administration are revoked the applicant be appointed as administrator of the estate of the late Kanyuka Zimba and in the event that the letters of administration are not revoked then the applicant be appointed as Co-Administratrix. vii) Interest on the amount claimed at the average Bank of Zambia short term deposit rate from the commencement of this action to the date of this judgment, and thereafter at the current commercial bank lending rate till the date off u/1 payment. J24 viii) Costs of this application to be borne by the respondents and to be taxed in default of agreement. " 7.39 Based on the analysis, we concur with the appellant's argument that the trial Judge made an inconclusive and unclear order regarding the revocation of the appellant's letters of administration as she merely reproduced the reliefs that were being sought by the respondent in her originating summons in the Court below. The trial Judge seems to have replicated the reliefs sought by the respondent in her originating summons. However, we do not fully align with the appellants' assertion that the trial Court would have arrived at a different conclusion had it considered the documents filed by the appellants. It must be mentioned that the appellants had in fact filed the same documents in breach of the Court's order requiring the same to have been filed by 3 June 2022, the appellants instead filed the said documents 5 months after due date without leave of the Court. This may have been the reason the trial Judge proceeded without the taking appellants'doucments into account. 7.40 Given the considerations outlined above, we conclude our assessment of this ground by refening to the well-esablished principle raised by the Supreme Court in the case of Wilson Masauso Zulu v Avondale Housing Project 4, which emphasized that: "I would express the hope that trial Courts will always bear in mind that it is their duty to to adjudicate upon every aspect of the suit between the parties so that every matte in controversy is determined." J25 7.41 This ground of appeal, therefore, does not succeed due to the fact that the trial Judge issued unclear orders regarding the appellants' letters of administration and the appointment of the respondent, as co-admnistratrix of the estate without considering filed on 24th June 2021. Furthermore, the trial the evidence appellants and arguments of the Cou11 pronounced its unclear decision without dete1mining the fate of the appellnats' evidence in relation to its late filing into Court. Justice must not only be done, but must be seen to be done. 8.0 CONCLUSION 8.1 In conclusion, the 1st and 2nd appellants having succeeded in 2 out of the 3 grounds of appeal raised, we accordingly allow the appeal and make the following orders: i) The decision of the Court below that the respondent is a beneficiary of the estate of the late Kanyuka Zimba as a surviving spouse, and that she be given her entitlement as a surviving spouse, as provided by law, to be assessed by the Deputy Registrar, is hereby set aside. ii) The decision of the trial Court below, stating that the minor Niza Zimba is a beneficiary of the estate of the late Kanyuka Zimba as a dependant, and that she should be given her entitlement as a dependant under the estate, as provided by law, to be assessed by the Deputy Registrar, is upheld. This should be done considering that the minor has a long-life dependence on the assets of the deceased, owing to her age and educational needs. J26 iii) The Order appointing the respondent as co-administratrix of the deceased 's estate on the premise that she is the survising spouse is also set aside. However, by order of this Court, she is re-appointed as co-administratrix of the estate together with the appellants and the General Administrator on account and of her being the next friend guardian to the minor beneficiary, Niza Zimba. iv) That the order of the lower Court awarding interest on amounts claimed be and is hereby set aside. v) The appellants are directed to produce an up-to-date account of their administration of the estate. to all This account should be availed beneficiaries, co-administrators and the Deputy Registrar within days from date of this judgment. vi) That despite the appeal being largely successful, each party will bear its own costs as the appellants failed in to disclose that the affidavit opposition and skeleton arguments were not filed into the lower Court within the prescribed timeframe contrary to the directive of that Court. C. K. Makungu COURT OF APPEAL JUDGE � rpe-Phir r- COURT OF APPEAL JUDGE J27