Agness Kuwani (Widow) v Union Bank Zambia Ltd (In Liquidation) and Ors (Appeal 100 of 2001) [2002] ZMSC 117 (17 January 2002)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 100/2001 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: AGNESS KUWANI (WIDOW) APPELLANT AND UNION BANK ZAMBIA LIMITED 1ST RESPONDENT (In liquidation) ABDUL SAT AR PATEL 2nd RESPONDENT LAINESS KUWANI (WIDOW) 3rd RESPONDENT Coram: LEWANIKA, DCJ., SAKALA, CHIBESAKUNDA JJS On January 17, 2002 and.................2002 For the Appellant: For the 1st Respondent: C. KACHAPULULA, Legal Counsel For the 2nd Respondent: A. J. MUMBA of A. J. Mumba & Associates For the 3rd Respondent: Col. C. MUDENDA of National Legal Aid Clinic S. S. ZULU of S. S. Zulu & Co. for Women. JUDGMENT LEWANIKA, DCJ, delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court that ordered a fresh survey and demarcation of the property known as Subdivision 68 of farm No. 396a "Paaineers Rust" Lusaka. In this appeal we shall refer to the Appellant as the Applicant which is which she was in the court below. The facts of this rather unfortunate family dispute can be briefly summarised as follows: the Applicant is the widow of the late Mr. B. R. KUWANI, the 1st Respondent is the executor of the will of the said Mr. KUWANI, the second Respondent is the purchaser of a portion of the real estate left by Mr. KUWANI and the third Respondent is the widow of the eldest son of Mr. KUWANI who sold a portion of the real estate to the second Respondent. The late Mr. KUWANI was the registered owner of S/D 68 of Farm No. 396a Makeni, Lusaka in extent of 10 acres. There are two dwelling houses on this property separated by a wall fence between them and there is a wire fence separating the house in the western direction from the garden at the back when facing the southern direction. Mr. KUWANI occupied the house on the eastern side whilst his son Godwing and his family occupied the house on the western direction. Whilst Mr. KUWANI was alive, the family ploughed the garden as a single unit. It was also common cause that while Mr. KUWANI was alive the portion that he and the applicant occupied was called ’A’ whilst the portion that his son and the 3rd Respondent occupied was called 'B1. In his last will Mr. KUWANI bequeathed the portion that his son and the 3rd Respondent occupied to his son. To pay off the debts that his father left, the son sold 21/? acres including the dwelling house on 'B' to the 2nd Respondent, In his will Mr. KUWANI did not give the sizes or acreages of either 'A' or ’B' that he bequeathed to the Applicant and his son Godwin who also later died. The issue before the learned trial Judge was to determine the sale or acreage of the portions that the late Mr. KUWANI had bequeathed to the Applicant and his son. The learned trial Jude in her judgment found that the will of the late Mr. KUWANI was not of much assistance to her in determining what was bequeathed to the Applicant and the son as it did not give any acreages of the bequeathed portions. She also said that she was not assisted by the various diagrams that were produced to her as she found them to be contradictory of each other. She visited the farm in dispute and conducted a physical inspection and ordered a demarcation of the property and a farm survey to give effect to what she perceived to be the intentions of the testator. It is against this order that the Applicant is appealing. Counsel for the Applicant has filed six grounds of appeal, namely:- 1. That the learned trial Judge misdirected herself by finding that "in his will, Mr. Bitwell R. KUWANI does not mention the garden when either talking about the portion that he bequeathed to his wife or to his son or at all. In arguing this ground, counsel drew our attention to the copy of the will in particular clause 3(a) which provided as follows: "1 bequeath the following specific legacies: (a) to my wife Agness KUWANI absolutely the whole of the chattels including motor cars, all her wearing apparel, jewellery, trinkets and personal ornaments and all such household goods, utensils, furniture and effects and my dwelling house at S/D 68 A of farm 396,a Makeni, Lusaka, stable, out buildings, gardens or curtilege and the garage thereof... etc" He submitted that the finding by the trial court that in his will the late Mr. KUWANI does not mention the garden when either talking about the portion that he bequeathed to his wife or to his son or not at all is clearly a serious misdirection. 2. That the learned trial Judge misdirected herself when she decided that the late Mr. KUWANI bequeathed to his son a portion of the gardens at the back of a house on S/D 68 of farm 396a, Makeni, Lusaka. Counsel submitted that there was no evidence on record that There was no evidence on record that the late Godwin KUWANI earned his livelihood from ploughing in the gardens. He said that the learned trial Judge misdirected herself by finding that the late Mr. KUWANI did not intend his son to be completely without a garden and did not intend his son to be completely enclosed in the portion at B. 3. That the learned trial Judge misdirected herself when she decided that when Godwin KUWANI sold 2.5 acres there must have been a remaining extent to be transferred to his widow. He said that the extent of S/D B of the farm which the late KUWANI bequeathed to his son was physically demarcated on one side by a wail fence and on the other side by a wire fence in accordance with the diagram marked red on page 101 of the record. This plot is 1.0116 hectares or 2.5 acres. He submitted therefore that it was a misdirection by the trial Judge to find that when Godwin KUWANI sold 2.5 acres there must have been a remaining extent to be transferred to his widow. 4. That the learned trial Judge misdirected herself when she found that the boundary between the two houses on S/D B of the said S/D 68 of farm 396 a should be a wall fence in a straight line up to the southern boundary. He said that on this ground he relied on his argument in the third ground where the late Mr. KUWANI physically demarcated the plot which he described as S/D B of S/D 68 of farm No. 396a Lusaka. 5. That the learned trial Judge misdirected herself by ordering the Surveyor-General to re-survey the area, demarcate and put beacons in such a way that the gardens would be divided by marking a straight line were the wall fence dividing S/D A and B and ends up to the Southern boundary. Counsel submitted that the directive given by the trial Judge to The Surveyor-General to re-survey and demarcate and put beacons in such a way that the gardens would be divided by marking a straight line were a wall fence divides S/D A and B and ends right up to the Southern boundary is not in line with the provisions of the will of the late Mr. KUWANI. 6. That the learned trial Judge misdirected herself by giving a portion of the gardens to S/D B thereby depriving the Appellant of the only bore hole located in the gardens which supplies water to S/D A as there are already two bore holes supplying water on S/D B. In arguing this ground counsel referred to the evidence of the Applicant when she said that there are two bore holes on S/D B the property bequeathed to Godwin and one bore hole in the gardens bequeathed to her. In reply counsel for the third Respondent submitted that with regard to the first ground of appeal, that there was no mention of a garden in the bequest as the late Mr. KUWANI in his will gave his son a whole sub division as shown on the........ on page 29 and survey diagram No. 473/1981 of 30th July, 1981 appearing on page 53 of the record of appeal drawn during the life time of the testator, whose extent was 2.5827 hectares or 5 acres. With regard to ground 2, counsel submitted that there was evidence on record that the late Godwin Kuwani used the gradens on his part on the submission for a quantum purposes. Turning to the 3rd ground of appeal counsel submitted that the learned trial Judge did not err when she discarded the view the late Godwin KUWANI sold 2.5 acres there which have been a remaining extent to be transferred to the widow. He said that the diagram on page 101 of the record is unverified and unauthenticated and does not conclusively prove the applicant's claim. He submitted that diagram no. 2088/1999 dated 6lh September, 1999 is the true reflection of the situation as it stands after the sale of a portion to the 2nd respondent. Turning to the fourth ground of appeal, counsel submitted that the diagrams he has referred to confirm the existence of two similar submissions and the asempting to move the boundary anywhere other than that expressed by the Court below would be both unjustified and incorrect. With regard to the fifth ground, we submitted that the learned trial Judge was in order in directing the Surveyor General's office to make appropriate surveys, demarcations and put beacons in accordance with her finding. He said there having had appropriate surveys diagrams produced and entemtucated on court by the Assistant Surveyor General who gave evidence, it was only reasonable and correct than a ground survey be conducted to place beacons in the appropriate prices. Turning to the sixth ground of appeal, counsel submitted that the subdivision as ordered by the Court was in order and the consideration over bore holes should not be allowed to alter bequest in their will of the late Mr. Kuwani to his son Godwin. That the question of bore holes is not one that should arise for determination by the Court, but alter the extent of the land given to the beneficiaries. Counsel for the 1st and 2nd respondents told us that their clients were taken on rental stence in this matter and will abide by the decision of the Court. We have considered the submissions made by counsel as well as the evidence on record. In his will the late Mr. KUWANI made two specific legacies which are of concern to us in these proceedings. 5. (a) " To my wife AGNESS KUWANI absolutely the whole of the chattels including motor cars all her wearing apparel, jewellery, trinkets and personal ornaments and all such household goods utensils, furniture and efffects and my dwelling house at S/D 68A of Farm 396a Makeni, Lusaka, Stable outbuildings, gardens or cartilege and the garage thereof... (b) To my eldest son Godwin KUWANI, my property at 68 B of farm 396 a, Makeni, Lusaka. ” The will does not specify the extent of the bequests to the two beneficiaries. It was common cause that during his life time the portion occupied by the late Mr. KUWANI and the Applicant was referred to as A and the portion occupied by the late Godwin and the 3rd Respondent was referred to as B. Although there was a wall fence and a wire fence separating the two portions, they were not formally demarcated. There was also evidence on record that what has been referred as the gardens were being ploughed and utilised both by the late Mr. KUWANI and his son. It is common cause as well that the extent of farm No. 396a, Makeni, Lusaka was 10 acres. After the demise of Mr. KUWANI, there is evidence on record that the children met and decided to sell the house and 2’/a acres on the portion known as B to the Respondent to pay off the debts left by the late Mr. KUWANI. The question that arises is whether or not the late Godwin KUWANI sold off the whole of his inheritance to pay off the debts left by his late father. Counsel for the Applicant is relying on a site plan and diagram which appears on page 101 of the record which shows that the proposed subdivision showed the extent of 'B' as being 2.5 acres. We would point out that this site plan and diagram is undated and does not have the name of the individual who prepared it. On the other hand, counsel for the 3rd Respondent has referred us to diagram N. 473/1981 which appears on page 53 of the record. This diagram was prepared in May, 1981 and was approved by a government surveyor on 20th July, 1981. This diagram shows the proposed S/D A of S/D 68 of Farm No. 396a Makeni, Lusaka. The extent of the proposed subdivision is 2.5827 hectares or 5 acres. An examination of the diagram shows that the property was divided in half in equal shares. The evidence on record is that the late Mr. KUWANI executed his will on 25th April, 1984 and died in 1989. A.though it is not clear on whose instructions diagrame No. 473/1981 was prepared, it was prepared during the life time of the late Mr. KUWANI some three years before he executed his last will and testament. The function of the court was to ascertain the intentions of the testator in his will and to put into effect those intentions. The question we ask ourselves is whether it was the intention of Mr. KUWANI to bequeath 7‘A acres of the property to the Applicant and 2/2 acres to his eldest son? We think not. The learned trial Judge had the advantage of physically inspecting the property before ordering the demarcations that she did and we would be reluctant to interefere her directions. As we stated earlier on, this is an unfortunate dispute between members of the same family living in close proximity to each other. Having said that, we find no merit in the appeal which we dismiss with costs, the costs are to be taxed in default of agreement.