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Zambia Supreme Court Estate Appeal

This judgment summarizes a Supreme Court appeal regarding a property dispute over a flat owned by a deceased woman. The appellant disputed how the case was commenced through originating summons rather than a writ of summons. The trial judge dismissed this preliminary issue. The Supreme Court analyzed the background of the case, previous related judgments, and the arguments of both parties. The Supreme Court affirmed the trial judge's decision, finding that the issues could be determined based on interpretation of the previous Supreme Court judgment through affidavit evidence.

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51 views10 pages

Zambia Supreme Court Estate Appeal

This judgment summarizes a Supreme Court appeal regarding a property dispute over a flat owned by a deceased woman. The appellant disputed how the case was commenced through originating summons rather than a writ of summons. The trial judge dismissed this preliminary issue. The Supreme Court analyzed the background of the case, previous related judgments, and the arguments of both parties. The Supreme Court affirmed the trial judge's decision, finding that the issues could be determined based on interpretation of the previous Supreme Court judgment through affidavit evidence.

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Leonard Tembo
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© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

J1

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 132/2010

HOLDEN AT LUSAKA

(Civil Jurisdiction)

IN THE MATTER OF: Section 5(2) and S.14 of the Intestate


Succession Act Chapter 59 of the Laws of Zambia

B E T W E E N:

ESTHER SITALI NGULA Appellant


AND
THE ADM INISTRATOR –GENERAL& OFFICIAL Respondent
RECEIVER (Suing as Administrator of the Estate
of the late Inonge Sitali)

Coram: M umba, Ag/DCJ, W anki and M uyovwe, JJS


On 17 th April and 2 nd August, 2012.

For the Appellants: M essrs C.L. M undia and Company.

For the Respondent: The Administrator-General and Official


Receiver.

JUDGMENT

Mumba, Ag/DCJ, delivered the Judgment of the Court.

Cases Referred to:


1. Fenians Mafemba Vs Ester Sitali: (2007) ZR 215.

2. New Plast Industries-vs. The Commissioner of Lands and


the Attorney General (2001) ZR, 51.
J2

Legislation referred to:


1. The High Court Act, Cap 27.

2. The Intestate Succession Act, Cap 59.

3. The Local Courts Act, Cap 29.

This is an appeal against the Ruling of the learned trial judge in


which he dismisseda preliminary issue raised by the appellant
against the mode of commencement of the action.

The respondent, as Administrator-General,instituted Originating


Summons supported by affidavit, seeking reliefas follows:-

1. The Respondent give possession to the applicant of flat


No. 3, Plot 1181, Nambala Close Rhodes Park, Lusaka.

2. The Respondent surrenders all the money collected as


rentals from the said flat.

3. Damages for wrongful and illegal and fraudulent


execution of writ ofPossession on flat No. 3, Plot 1181
Nambala close Rhodes Park, Lusaka.

4. Costs.

In order to appreciate the contested claims in this appeal a brief


background is necessary.
J3

The appellant’s late daughter, Inonge Sitali who died intestate


cohabited with Fenias Mafemba for fourteen years (14), and had two
children with him. When she died, Mafemba and the two children
continued to live in flat No. 3, Plot 1181, Nambala Close, Fairview,
Lusaka, the property of the deceased. The appellant obtained
letters of administration and administered the estate of her late
daughter which included the said Flat which she leased out.
Mafemba sued the appellant in the Local Court, claiming
entitlement to the property and that he was the widower. The Local
Court revoked letters of administration held by the appellant, found
that Mafemba was entitled to remain in the flat until his death
together with the two children. The appellant appealed. The
Subordinate Court of the first class heard the case denovo. After
receiving evidence from the parties, the subordinate court held that
as the deceased and Mafemba had lived together for fourteen (14)
years it would be unfair to conclude that there was no marriage.
The subordinate court discussed what constitutes marriage by the
neighborhood test and the principle of presumption of marriage,
and upheld the local court’s decision. The appellant appealed to
the High Court.

The two grounds of appeal advanced in the High Court, were that
the learned magistrate erred in law and in fact when he ordered
that Mafemba was a surviving spouse and beneficiary to the estate,
thus entitled to occupy Flat No. 3, 118, Nambala Close, Fairview,
Lusaka, and, secondly, that the learned trial magistrate erred in law
J4

and in fact by finding that Mafemba and the deceased had a valid
marriage.

The appellate Judge identified the initial conflicts which were, the
appointment of the appellant as administrator of the estate and the
claim by Mafemba that he was the widower and beneficiary of the
estate of the late Inonge Sitali. The appellate Judge noted that no
formalities were followed under lozi customary law to constitute a
marriage between the late Inonge Sitali and Mafemba, he held that
there was no marriage.

The appellate Judge determined that the status of the deceased and
Fenias Mafemba was to be decided on the evidence available,he
observed that the Local Court treated the relationship as a
customary law marriage whereas the evidence was that no formal
steps were taken and no dowry was paid to constitute a Lozi
customary marriage. The appellate Judge considered that the local
court magistrate did not address these facts even though section 12
(1) of the Local Courts Act, Cap 29, grants jurisdiction to deal in
African Customary law. After reviewing lozi customary law on
marriage, the appellate Judge found that there was no valid
marriage between Fenias Mafemba and the deceased
notwithstanding the lengthy period they lived together. The
appellate Judge also found that under the provisions of the
Intestate Succession Act, Cap 59, Fenias Mafemba was not a
J5

beneficiary of the estate of the deceased because Section 9 (1) (b)


specifically refers to a surviving spouse which Mafemba was not.

The Section reads as follows:-

9.(1) Notwithstanding section five where the estate includes a


house the surviving spouse or child or both, shall be entitled to that
house:
Provided that-
(a) …

(b) the surviving spouse shall have a life interest in that house
which shall determine upon that spouse’s remarriage.

The appellate Judge considered that both the Local Court and the
Subordinate Court did not follow provisions of the law. Upon appeal
to the Supreme Court the High Court Judgment was [Link] a
detailed judgment discussing what amounted to a valid marriage in
Zambia, among other facts on record, this Court found that the
appellant was the biological mother of the late Inonge Sitali, the
deceased and Fenias Mafemba cohabitated for fourteen years (14)
and raised two children; that after the death of Inonge Sitali, the
appellant was appointed Administrator of the deceased’s estate.
This Court held that, notwithstanding the lengthy relationship,
formal steps to constitute a Lozi customary marriage not having
been taken, there was no marriage, Fenias Mafemba was not a
widower and was not entitled to the deceased’s estate.
J6

After obtaining letters of Administration from the Local Court, the


appellant dealt with the estate which included the flat in dispute,
which she leased out and collected rentals. Throughout earlier
proceedings upto the Supreme Court judgment, issues concerning
the appointment of an administrator of the estate or custody of the
children were never adjudicated upon. The sole question
adjudicated upon was whether Fenias Mafemba was married to the
late Inonge Sitali, if so, whether he was a widower, and, therefore,
entitled to the estate of the deceased.

In this appeal, the Administrator-General is on record as


administrator of the estate of the late Inonge Sitali, andas such
instituted proceedings as aforesaid.

The appellant raised a preliminary issue regarding the mode of


commencement of proceedings in the court below. The appellant
submitted that Originating Summons as a mode of instituting
proceedings was misconceived as reliefs sought could not be
adjudicated upon through affidavit evidence as that was contrary
to the provisions of Section 8 of the High Court Rules read together
with Orders 5/2 and 5/4 of the Supreme Court Practice Rules 1999
edition. The appellant submitted that on account of the reliefs
sought, proceedings should have been commenced by writ of
summons because it was necessary to adduce evidence, test it and
J7

evaluate it. As things stood, affidavit evidence would not be


appropriate.

The respondent submitted that matters in dispute were not


determined by the Supreme Court in the Judgment of Mafemba vs
Sitali1 as the sole question that was determined was the status of
the surviving father of the children and not the appointment of an
administrator of the estate of Inonge Sitali. The respondent also
submitted that, in any case, by the time the
MafembaJudgment¹was delivered, the Administrator-General had
already been appointed by the High court. The respondent finally
submitted that what was before court were matters of law which
could be dealt with by affidavit evidence in chambers.

The learned trial judge analysed the submissions on the preliminary


issue and stated that the issues between the parties as raised in the
Originating Summons could be decided by affidavit evidence in
chambers as they were premised on the interpretation of the
Supreme Court Judgment of 2007, in Fenias Mafemba¹.

The Learned Trial Judge went on to say “Moreover, if the court


finds at any stage of the proceedings that the proceedings
should for any reason be continued as if the cause or matter
had been began by writ it will order the proceedings to
continue as if the cause or matter had been so begun and
J8

order that any affidavit shall stand as pleading with liberty


to any of the parties to add thereto or to apply for particulars
thereof as per Order 28r 8 of the Supreme Court Practice
(1999) edition.”

The learned trial Judge dismissed the preliminary issue.

The appellant filed three grounds of appeal as follows:-

(a) The Trial Judge erred in law and in fact by


misdirecting himself when he decided to hear the
matter commenced by Originating Summons when it
raised contentious issues.

(b) The Trial judge erred in law and in fact when he


decided to hear this matter when the issues involved
were already determined by the High Court and the
Supreme Court and therefore res judicata.

(c) The Trial judge erred in law and in fact when he


decided to hear the matter already determined the
effect of which amounted to multiplicity of actions
and less litigation.

Looking at the grounds of appeal the second and third grounds of


appeal if discussed are likely to pre-empt what may be contentious
issues in the trial. We find that they go beyond the preliminary
issue raised. This appeal, therefore, turns only on the first ground
of appeal.
J9

The mode of commencement for any action is provided for in the


relevant statute and rules, it does not depend on the reliefs sought.
It is clear that contentious issues require exhaustive evidence,
evidence which can be examined and evaluated by the parties as
well as the trial court, such evidence would be the basis for findings
of fact upon which the verdict may be based. Clearly, the claims
enumerated by the respondent cannot be sufficiently dealt with by
affidavit evidence alone. For general damages to be assessed one
requires proof by way of evidence, both oral and, where available,
documentary. It was pointed out in the case of New
PlastIndustries² that evidence can be written or oral but it has to
be tested and evaluated, clearly, that is only possible in an open
trial.

The learned trial judge was equivocal when he pointed out that it
would be possible to turn the proceeding around, order further
pleadings and receive more evidence just as in a normal trial
commenced by writ of summons.

We are of the view that where there are clear provisions of the law
on the mode of commencement of an action, such provisions must
be complied with. In this appeal we find it necessary not to leave it
to the trial judge to decide how the trial should be proceeded with.
We find that the irregular mode of commencement did not
render the proceedings null and void. We order that the trial
J10

proceeds as if begun by writ. Further pleadings maybe ordered as


found necessary. We, therefore, uphold the appeal with costs to the
appellant in any event.

……………………………………
F. N. M. Mumba
ACTING DEPUTY CHIEF JUSTICE

……………………………… ….…………………………..
M.E. WANKI E.C. MUYOVWE
SUPREME COURT JUGE SUPREME COURT JUDGE

Common questions

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The application of the Intestate Succession Act was pivotal in the court's decisions on estate distribution by clearly defining who qualifies as a surviving spouse entitled to the estate. The Act specifies that a surviving spouse has a life interest in the deceased's house, provided they are not remarried. The courts found that despite the lengthy cohabitation and children involved, Mafemba did not meet the criteria of a surviving spouse because no legal marriage was established under customary law. This interpretation excluded Mafemba from inheriting as a surviving spouse, and thus he was ineligible to have a life interest in Sitali's estate .

In handling the appeal, the Zambian courts made procedural adaptations by treating the case as if commenced by writ to accommodate the complex and contested nature of the evidence and legal questions involved. The initial use of Originating Summons was challenged due to the contentious issues requiring detailed examination, including cross-examination of evidence. Recognizing this, the courts allowed the proceedings to continue with additional evidence and pleadings akin to a standard trial, ensuring all evidence could be thoroughly tested and evaluated, as open trials permit. This approach addressed the need for an exhaustive judicial process to achieve a fair and comprehensive determination of the issues at hand .

The appellant invoked the principle of 'res judicata,' arguing that issues regarding the relationship between Mafemba and Sitali had already been resolved in previous court decisions, thus precluding further litigation. The appellant contended that these issues were legally settled, suggesting that revisiting them would constitute a procedural irregularity and a multiplicity of actions. However, the court maintained that while the relationship issue was adjudicated, procedural questions regarding commencement of proceedings still warranted examination. Therefore, it determined that the presence of procedural deviations warranted fresh judicial consideration, thus res judicata was not applicable in precluding the procedural matters raised .

The concept of 'presumption of marriage' played a significant role in the court's initial interpretations of Sitali's relationship with Mafemba. This presumption generally allows long-term cohabitation and social reputation as a couple to be treated as indicative of a marriage. However, despite considering this presumption, the appellate courts emphasized the necessity of fulfilling specific procedural aspects of Lozi customary law (e.g., payment of dowry) to establish a legitimate marriage. Ultimately, the Supreme Court found that despite the lengthy cohabitation, the lack of formal customary marriage formalities meant the presumption of marriage could not substitute for legal recognition under Zambian law .

The Zambian courts balanced customary law and statutory provisions by carefully evaluating customary practices against the requirements of statutory laws, specifically the Intestate Succession Act. They acknowledged the social aspects of customary law, such as cohabitation and community recognition of a relationship, but ultimately prioritized statutory requirements which demanded formalities for marriage recognition to establish succession rights. The courts ruled that lacking formal customary marriage steps meant Mafemba was not a legal spouse under statutory law, thereby upholding statutory provisions over customary assumptions in estate allocation, emphasizing the necessity of meeting legal definitions of a surviving spouse for inheritance eligibility .

The preliminary procedural disputes in the Ngula case, concerning the mode of commencement of proceedings, created challenges in adjudicating substantive issues since reliefs sought required evidence that could not be adequately addressed through affidavit evidence. The appellant contested the use of Originating Summons for initiating proceedings, arguing it was inappropriate due to the contentious nature of the issues, and that a writ of summons was necessary. The learned Judge recognized the need for a more thorough evidentiary examination typical of open trials, thus ordering the proceedings to continue as if begun by writ, allowing for detailed evidence evaluation. This addressed the procedural concerns while ensuring the legal matters at stake were properly explored .

The central legal issues in the appeal regarding Inonge Sitali's estate were whether Fenias Mafemba was legally recognized as a surviving spouse and beneficiary to the estate and whether there was a valid marriage between him and the deceased under Zambian law. The Zambian courts addressed the concept of marriage by evaluating whether formal steps were taken to constitute a marriage under Lozi customary law. Both the Local Court and Subordinate Court initially treated the relationship as a customary marriage. However, the High Court later held that no formalities such as dowry were paid to constitute such a marriage, thereby concluding there was no valid marriage. Consequently, Mafemba was not recognized as a surviving spouse under the Intestate Succession Act and was not a beneficiary of the estate .

The Zambian Supreme Court justified the decision to treat the proceedings as if commenced by writ by recognizing that the issues at hand, including those concerning the status of the marriage and entitlement to the estate, required exhaustive evidence that could be tested and evaluated, not suitable for determination by affidavit alone. The Court emphasized that such contentious issues would best be handled in an open trial, allowing both oral and documentary evidence to be examined, which could not be adequately addressed through affidavit evidence. This approach was necessary to ensure a comprehensive examination and adjudication of the facts involved .

In determining what constitutes a valid marriage, the Zambian courts considered the principles of presumption of marriage and the necessity of formalities under applicable customary law. In the Ngula case, the courts evaluated whether the prolonged cohabitation between Inonge Sitali and Fenias Mafemba and their shared children amounted to a valid marriage. The appellate Judge found that no dowry was paid and no formal steps were fulfilled to constitute a Lozi customary marriage, thus ruling out a legal marriage. This determination affected Mafemba's status under the Intestate Succession Act, making him ineligible as a surviving spouse to the estate .

The contradictions in court rulings concerning the relationship between Mafemba and Inonge Sitali arose from different interpretations of their cohabitation. The Local and Subordinate Courts initially treated their relationship as a customary marriage, which would entitle Mafemba to the estate. However, the High Court contradicted this by ruling that no formal Lozi customary marriage existed, given the lack of dowry and traditional formalities, thus excluding Mafemba as a 'surviving spouse' under the Intestate Succession Act. The Supreme Court resolved these contradictions by upholding the High Court's position, determining no valid marriage under customary law, and confirming Mafemba's lack of entitlement to the estate .

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