J9
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 ADMINISTRATOR –GENERAL& OFFICIAL Respondent
RECEIVER (Suing as Administrator of the Estate
of the late Inonge Sitali)
Coram: Mumba, Ag/DCJ, Wanki and Muyovwe, JJS
On 17th April and 2nd August, 2012.
For the Appellants: Messrs C.L. Mundia 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.
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.
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 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 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 upheld.In 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.
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 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 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.
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 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