Elsie M. Moobola v Harry M.M. Muwezwa (Appeal no. 6 of 1991; SCJ JUDGMENT NO. 3 OF 1991) [1991] ZMSC 78 (19 June 1991)

The respondent obtained a grant of the letters of · ad111inistration sometime j_n July. 19E9. _The appellant issued the or"iginating summons on IGth August, 1989 i'il which si1e asked For two things, n~mely, that it be oroe~,ed that sne was entitled to a wid0~! 1 s 20% sh~re of -the es tat~ under the said Act and forti1er. tilat certain personal chattels and property belonging to ~,er in her own right and which were i.ving in the· famU.y tiOme be surrend~red to her and .not be admin.i_stered by the responient. as part of the deceased' s esta.te. T!1e • . ~spondent disputed both the e·t'erment that t:-,e appel 1 ant was married" to the deceased OY' that the-re• ~,ere stii l ~ any of he\~ personal goo<1s in the family honi.:~. At the~ hearing of Hie action, counsel foi- the respondent raised >i . ~ ' ' ;:,r:eliminary objection to the application under the ~ct -on the gro,md that the Act, ' though enacted, had not come into effect at tiie time 'of the deceased I s death s;that it shouid not apply to this estate and the appellant ought not to be h~ard under this Act. After he5ring arguments; the learned trial juCge upr1e!d the objection anri dismissed the whole of , tf1e summons. The appellant ~1as aooealed to this court~ . . . .,,, . . . ... • In the first instance, it is clear ~ and Mr. Cfldli very- properly concedes - that it was wrong to dismiss the .who!~ ilCtion when there were two distinct claims ,md the objection could not conceivably apply to her clcdm for the retui'n of personal ~roperty and its exclusion from the assets of .t~e esti\t~. It is oLwious tnat t!iis part of · the appeal has to be allowed _and tnis pc.rt of th€: action remitted below for the hearing to continue Ofi the • ~n • ~..,. ~ ' .. merHs., 1p,4 . '!-1 i. . !$; ~ ' ~ ~ . - . . . . r--;:~ . ~ .-~ .. The mZ:._jor issue 1s whether the ~ppecl should also be al!o1.1eci on the claim under the Act so t:1at i.t toc .should •oe remitted b~low for -the hearing to continue on the mei'its. Jhe p-.:oblem aris~s from the timing ·bet.ween. the ~eclth· of the de'ceased and the CO!Yl!nencement of 'the o--perat'ion . of {tne Act.: Mr. ChaH has ·argued that, having ~regard to the-.wording of Section 4B of the Act;·' this Act could not be made to.apply to the estate of. the deceased nor to the rights of-the appellant in such estate. Sectioh 48 neads: - "S. 48.. Except as is expre;sly· provided, ndthi~ in thts ~ ·-. Act shall affact":- a) l any rights. duties or obligations of an administrator under any la~ relating to the, acbr(tnistration of estates .exlsttng inmediately before th~ c00111encement of thi_s Act; or · · in u1y event, wlli'2f1ever· law is applicabis .' I ndee_d, the 1~espondent in n is ,:;fficia•:it see;'i1ed to c.ckr_io1"1ledge that a \tH'lov: ~vould have such rig!_1ts but ulamed t t1e appellant's parents f or refusing to attend a meeting to discuss the estate and for alleging ·that thera was no marriage. ~ ' ,,,;· ... ... I As already noted, Section 48 of tile Act makes it clear that th€ Ir,' , rigi'1i s of a i-,ictow as a beneficiary of'"' someone \~ho di~d before its commence- a men't cannot ~e aff~cted by anything contained in tnis Act. Ti1e ~•mrd •1aff~ct 11 is an ordinary English ::wrd and tlie sectio11 can be understood to meant among other t~ings, 't h~t the D.reviously ,existing right; of suchjoeneficia,y ·cannot b~ '.fi°dated, ir'lvalldated or. <1ltered to his <.:!isddvantage. Section 43 was neces~ary. in our considered opinion, to cq_ver those si tuatioi'ls wh·ate _,foe admi n i st;-ator hc1d a 1 ready discharged his fun ct i ans Ol' ta Ken some steps under , the .custo~ari :aw pre~iouslv appl.ic8ble and when it wdu4d .be nec~ssary to· offer hfm prote-:ti~n imcl to relieve him of any advers€ claims or liat>.i!ities which may ~ave just arisen or been created by the statute. Similarly, ±ectlon 48 was necessary to offer li~~ prot~ction to beneficiaries -who nad alfeady t~ken a benefit or assu1ned duties or obligations o It ,-,ould ulso operate to bar ~~ch beneficiaries from reopening administrations which have been fi~~lised ' 1" \. ~ . • ~ . ' . . . . ·witl1_ a vie\11 to takel advantage of th~ better -t erms off~red by ~he Act. The appellant's ciaim if she establishes tirnt Si1e ~,as the lawful •~ddow : 1--1oul_d . cmount to n•) more than that he·,-- existing :"ignts should - now be 4w.mtified as ; a def inlte and fixed 2~1% of the estate rc1ther' than toe previously'· indett:rminate· sh~re to be fixed at tne mercy of customary p·ractices~ . . ·do not· con's i"der thJt t:1.:: Act has crec1ted · any nc~-i- substantive rights but it nas merely , soeci.f ied the quantum.•of thi2 entitlement-< al ready due- to a widow in the pos,i tion of thi s appellant ~ In this reoard, w~ - ·. .. ... . . -~ ' ,• • I ~ - - ' ' , , ~ ., 'r; ";' ' " . ~ •~f_ JJ ~ · ~ •• I - ,c . ·. . . • • . ' • ' The A~t is concerned with the administr~tiorr and distrJbution ·of ~. ' . ''; ,. to i ! lust.rate , the customal"y int:estate estate. As we haye endeavoured wording of Sectton 48, prec l u~es the acQuisition of newly create~ substantive ~·ignts or t i1e impositi.:m of newly :reated disadvantages in an ongol ,1g a · admfnistrat..ion ,us well as in -one 1-thich"wa s findlisr,:d at th2 time of the cJmmencement of t i1e Act . . As thr: Act is concerned 'rtl th ad;ninistrations and distributions after its comm?ncement ~ it can only be rega,ded as proseec£ive in its operation and the question of ret;.•osp,;!ctive opc;'ation -does not., even arise . This ~ rings us lci the quesiion whather the application of the qua~tum f ixed by t11e Act to t ;1e sil,'W-2, of a widm-1 whose rigi,ts as a .bene(iciary' are not af fected results in any retrospect iv€ operation of the Act. Mr. Chali in effect argued that this ~o~ld be th~ result because the beceased died · ore the coi"112ncement and Section 4i3 'meant tl1dt she was .stuc" ~,i t h v1i1 at ever . , -~ . ' ' r,. ' . . ' . ' . • • S/ . • •... , share customary 1 aw \'JOU id· l)i~oduce~ i,,r. Chali. 's psotion was that this ne1>1 )ie rsspectfu.1.iy disagree tiith this vie\.-i. Section 2 of the Act illal:.es Act should not even apply to such estates and this- view was upheld by t~e . belmi. clear t~at it shall apply -to al! persons domiciled 1n ·th1s country Who ate fJ.s already discussed; Secti0n 48 makes provision subject to customary ia1~. • •• i' .,. i·1e aie, of course. a~are that i-ir. ~ :<azoka- sougi1t to uttacic the • for administ;-ato':"s and beneficiaries in r espect of es}.ates wi1ose .~dmtnistration ~,as either col1JleteC: or peilding c1t the tim2 of th:: corrr.nencement of thJ.s new Act, There is no suggcstiort jn Section 4G that applications ca~not be made )Y a ;:,1-2ntficiary in the appellant's position. - What is more~ tnei"e is nolning in ~ection 4-a 1·1i1ich precludes th~ intended p:·ospective operation of the~,\ct wh~re r.o ne\,i su,)stanti ve rights are cia11ned and _no new disadvt'!ntages are sougrrt. to ;)e imposed. decision 'below on an argument that t~e Act was intended to have a retrospective ,~ffect. H~ do not Jgree \.:ith 'him either. _ Hm~ever, ha ;,ad an alternative sub- mission which v-1as on fir.riier ground. The nppellant•·s ciaim unc!er . t,1e Act is in fc::.ct s:.ippo,-·tai:>le on the basis that rt attracts tn~ .operation of t!rn ,~.ct in ihe prospective mann~r in which· it was so clearly iniended to O!,lera·c~. The_ fact th:.t the i-\.ct has fixed a quantum to existing rights clai;r.ed by a wicio'W in respect~ of en estate which has not yet .been adm1 n i stered does not mean that there is to be a ret:--ospective -operation~ Ladies Tailors Organisation and Another -v~ Minister of Labour and National 1.i~: aJso draw attention. once ~gain, ·to para. 643 -in Halsoury's Service (1). Laws of England al:-ieady quoted. .ct.-i.011 ·do,~s not apply to Jegisla_tion dealing ~./i"th mi;:tters of p,ocedu;~e -and pi•ovisions introducing new ·remedies, as opposed to. new su9stantive rights, have gerier~Ily ba1?n classed with provisions~ as to procedure so that th~y •::ieneraUY ~- . . - apply bo~h to proceedings subsequently tommenced in• respect of <:!Xisting causes of action and t o existtng proc~edings: i' See, gene,al'iy. para 547. Halsbury Laws of England\ third edition. volume, 36. it fol lows fro:n the foregoing that w;:: , are pe1~suaded 'Jy Mr. Kazoka's '.a_Iternativ:e submission .based on tne fact that In ~ny -.case, tile presumption against retrospe- In ~his regard we cite Master " . ~ .· ii ~ :;.. ~ . ., ~ . ' ; I ~~ 1·t;\Ole of the ad;i:ir.istration and distribution of the estate of the deceased .. i,1 this case is to ta~e place in the future~ after the Act has co~a into effect, and l'lhen only its prospective operation will he callea !li)On, &s He have i:ttr.mptec to adumbrate . For ti1e f oregofog reasons~ the appe,:i l oi-, tile second aspect must dsc