Grace Banda (Suing by her Mother and Next Friend Mercy Daka) v Judith Mwanza (Sued in her capacity as administratrix of the estate of the late Martin Banda) and Anor (Appeal No. 188/2022) [2024] ZMCA 315 (20 November 2024)

lN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA !Civil Jurisdiction) Appeal No.188/2U~ BETWEEN: [N THE MATTER OF: ORDER 30 RULE 11 OF THE HIGH COURT ACT CHAPTER 27 OF THE LAWS OF ZAMBIA !\ND [N THE MATTER OF: BETWEEN SECTION 3, 5 AND 19 OF THE INTESTATE SUCCESSION ACT CHAPTER 59 OF THE LAWS C ZAMBIA GRACE BANDA :suing by her Mother and Next Friend .. Ml~~~l'A1~ APPELLANT JUDITH MWANZA Sued in her capacity as administ the estate of the late MARTIN BAN VIOSES BANDA Sued in his capacity as Administrator of :he estate of the late MARTIN BANDA) SPONDENT 2ND RESPONDENT ~ORAM: Siavwapa JP, Chishimba and Patel, JJA On 11 th November and 20th November, 2024 ~or the Appellant: Mr. S. Chibuye Lukwesa of Messrs ~or the Respondent: Non Appearance Legal Aid Board JUDGMENT :HISHIMBA JA, delivered the judgment of this Court. 1. Ngula v Administrator General & Official Receiver (lnonge Sib Appeal No. 132/2010 2 . Freddy Chishimba (sued as administrator of the estate of the hi Pascal Chishimba) v Pascal Chishimba Junior (suing by his moUi and next friend Vivian Mulonda) and Mutate Mabvuto Chisha 3. Mususu Kalenga Building Limited and Another v Richma's Mon Lenders Enterprises ( 1999) ZR 27 4. Lindiwe Kate Chinyanta v Dorren Chiwele Judith Tembo 5. Nkhata and Four Other v The Attorney General of Zambia 141 1966 : 6. African Banking Corporation (Z) Limited v Plinth Technical Wor Limited & Others (SCZ 8 128 of 2015) 7. Ntombie Zibwele Siwale v Registrar of Lands and Deeds and 0th« (Appeal 133 of 2012) [2018] ZMSC 39 8. Mwandila v Phiri SCZ (Appeal 182 of 2013) ~EGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England 2. The Affiliation and Maintenance of children's Act Chapter 64 of the La of Zambia. L. O INTRODUCTION l .1 This appeal is against the judgment delivered by Hon. M Justice Chilombo Bridget Maka, which dismissed the relic:: sought by the appellant for a full inventory of the estate of la Martin Banda, an account distribution and share of the esta1 on the grounds that the appellant was not a child of tl deceased, and as such, was not entitled to benefit from t] estate. !. O BACKGROUND L 1 The appellant commenced an action against the respondents c 1~cu 1v1ay ~v~ 1 oy way 01 ung1nanng ;:;ummons see. Klng 1ne following reliefs: i) That the 1st and 2 nd Defendant should give a full inventc:i of the estate of the late Martin Banda; ii) That the 1st and 2 n d respondent should render an account the administration of the estate; iii) That the 1s t and 2 nd respondent should be ordered distribute the estate of the late Martin Banda according the law iv) That the appellant should be given her share of the estatf v) Any other r~liefs that the Court may deem fit; and vi) Costs incidental to this action ~.2 The applicant, Mercy Daka, is the mother of Grace Banda, minor born out of wedlock on 25th August 2014. The nc deceased Martin Banda, is stated to be the father of the mine Following the death of Martin Banda on 13th August 2017, tl respondents refused to continue paying child maintenance f the child in issue. ~.3 The appellant sued the respondents for child support in tl Local Court. The Local Court ordered a monthly payment K975.00. The respondents complied with the Court Order ar paid part of the amount ordered from February 2018 to Octob 2019. Thereafter, the Respondents stopped payments becau: they alleged that the child in issue was nor rne aeceasea·s cnua. ~.4 On 14th June 2021, the trial Court ordered a Deoxyribonucle Acid test (DNA) to prove paternity of the minor, Grace Band with the samples to come from the deceased's siblings. Th emanated from the discussions with the parties in which tl Court encouraged an amicable ex curia resolution of the matte The DNA test was not done because the applicant was not su of the biological connection between the deceased and h siblings. Subsequently, the Court below set aside the Order£ a DNA test. S. O AFFIDAVIT IN OPPOSITION 1.1 The respondents opposed the claims sought by the appellar They stated that maintenance became scanty and inconsiste: due the estate's financial challenges. Further, that based c information from a friend of the deceased, the deceased h~ disputed paternity of the child, and requested a DNA test. :.2 The respondents further stated that they had no intention depriving any beneficiary of the estate which had not yet be~ distributed. Their intent was to ascertain paternity of the chi and her entitlement to benefit from the estate. ~. O AFFIDAVIT IN REPLY +.1 1ne appeuanr:, 1n reouuai, s1ar:es 1na1 sne a1a nut re1use conduct a DNA test, as long as it was done using the deceasec samples and not other methods, which medical experts had n authenticated. The deceased had at no point disputed paterni of the child, whom he supported for a period of three years un he died. ;.o DECISION OF THE COURT BELOW ,.1 The Judge in the Court below was of the view that the crud issue for determination was whether or not the minor, Gra Banda, could be declared as the child of deceased. She beg~ by noting that the applicant had not taken out an applicati< under section 3 of Affiliation and Maintenance of children Act for an affiliation order as well as maintenance. Therefo1 she had no recourse to the said provision. The learned Judi stated that it was undeniable that the deceased did n undertake any paternity test to be declared the father of t1 child in issue. i.2 The Court acknowledged that the Local Court granted t1 deceased a restraining order against the applicant and orden the payment of the sum of K200.00 to be made to a third part i.3 However, the name of the child, the subject of the child suppc was no1 menuonea 1n 1ne sa1a uraer. .t1unner, 1nere was : evidence to prove that the deceased was paying child suppc ordered by the Court or that before September 2016 t deceased was paying maintenance for the child. Based on t preceding, the Court held that it was unable to find as a fa that the deceased supported the child from the time she w born in 2014 until his demise on 13th August 2017. 5.4 In addition, the Court found that the evidence by the applica that the Local Court had ordered the respondents to p K975.00 as child support, is not reflected in the exhibit, Certificate of Judgment. The Court also alluded to the fact th no maintenance order was made. 5.5 The Court went on to determine whether the child could · declared as a child of the deceased in the absence of a DNA te to biologically determine paternity. The Court held that tl consideration was a legal one as the law provides f presumption of parentage or paternity, if certain circumstanc are proved. Reference was made to our decision in Frede Chishimba (Sued as Administrator of the Estate of the Late Pascal Chishimba v Pascal Chishimba Junior (suing by h mother and next of r rt:u V 1v1an . LY.lUlUDUa anu . LY.lUl.alt: . LY.laOVUl. U '-'.11UU11l11Ui:1. J 111 which we held that the 1st respondent was the deceased's chil The Court below distinguished the facts in the cited case. T1 Court below concluded that the evidence was insufficient hold that the applicant was the deceased's child and had failc to prove the case on a balance of probabilities. Having found that the appellant was not the deceased's chil the Court held that the appellant was not a beneficiary of tl deceased's estate and consequently not entitled to the claims the originating summons. ;.o GROUNDS OF APPEAL >. l Dissatisfied with the decision of the Court below, the appella appealed raising eight grounds of which six, seven and eig: were abandoned. i) The trial court erred both in law and in fact by not treatii this matter as though it began by Writ as it clearly becall contentious and parties needed to adduce further 01 evidence and be subjected to cross-examination; ii) The trial court erred in law and in fact when it found that tl child is not the child of the deceased despite overwhelmii evidence that the deceased never disputed paternity of tl child in question but only wanted a restraining order from tl lllOLllt:I" LO Lllt: cnuu i:lllU c1.grt:t:U LU Ut: pc1.y 111g Cll. maintenance through a third party; iii) The trial court erred in fact and in law when it held that the is no sure way of knowing that the deceased was the father the child in question because there was no DNA that w conducted when the deceased was alive , when in fact the iv) Deceased himself never doubted the paternity of the child question and he never requested for any DNA test; and v) The trial court erred both in law and in fact when it held th Grace Banda is not the child of the deceased because the mother did not take out affiliation proceedings despi overwhelming evidence that the deceased never disputed th he was the father to the child in question, apart from t: hearsay evidence which was adduced by the 1st respondent r.o APPELLANT'S HEADS OF ARGUMENT r . 1 The appellant filed heads of argument dated 22 nd August 202 Grounds six, seven and eight of the appeal were abandoned. r.2 The thrust of the argument in ground one is that the appellan1 affidavit in reply and skeleton arguments revealed that tl matter had become highly contentious. Counsel submitted th Order 28 Rule 4 of the Rules of the Supreme Court 1 England (hereinafter referred to as "RSC") provides that at th earnes1: s1:age 01 proceea1ngs commenceu uy vng1narn summons, the trial judge must consider whether there may 1: dispute of fact. In this case, it was evident that there was nee for the parties to adduce further evidence and or oral eviden in order to put the matter to justice. Due to the contentious nature of the matter, the parties ought to have been subjectc to cross-examination. Pursuant to Order 28 Rule 4 of RSC, t] Court below ought to have deemed the matter as if began 1 Writ and treated the affidavits filed as pleadings. The failure do so resulted in the parties being denied the opportunity tote each other's evidence. The case of Ngula v Administrat1 General & Official Receiver (lnonge Sitali) 111 was cited support of the above contention. r_3 Counsel contended that the failure to treat the matter as thou! began by Writ was a serious misdirection, warranting an ord of retrial. r.4 Grounds two, three, four and five were argued composite] Learned counsel challenged the finding of fact by the Cou below that the name of the child was not mentioned in the ord by the Local Court. This finding is said to be misconceive Counsel's position is that the logical explanation as to why th LUCi::U \...,UUIL uruereu pay111e11L Ul .t'\.~VV. VV Wa.:S lUI Ule CHHU Hl question. 7.5 It was submitted that the respondents, upon being appoint1 as administrators,. continued to pay child support as evideno by the order of the Local Court exhibited at page 60 of the reco of appeal. The said Order remains in force as the respondent: have not appealed the decision of the Local Court. Further, tl affidavit in opposition revealed that the respondents we paying child support, which stopped on account of the esta facing financial challenges and not because they disputed tl child's paternity. r.6 It was argued that the Court below erred by holding that the was no way to establish that the deceased was the appellan· father since DNA was not conducted. Counsel contended th the deceased never asked for a DNA test to establish h paternity. The appellant raised genuine concerns when sl questioned the accuracy of the DNA relating to the deceasec: relatives. The doubts were necessitated by the fact that the were no medical personnel to testify to the accuracy of the te~ In addition, the applicant did not know the deceased's siblini and had doubts as to which persons would be presented as tl ueceaseu s s1unngs. 7.7 We were referred to the case of Freddy Chishimba (sued : administrator of the estate of the late Pascal Chishimba) Pascal Chishimba Junior (suing by his mother and ne: friend Vivian Mulonda) and Mu tale Mabvuto Chisha 121, on t] presumption of parentage or paternity where the applica evidentially proves certain circumstances. The fact that the was no tangible evidence that the deceased disputed paterni and paid maintenance from the time the appellant was born w, sufficient to prove that he was the father. ~. O RESPONDENT'S HEADS OF ARGUMENT t 1 The respondents filed their arguments on 22 nd December 202 They argued grounds one and four together. Learned coun~ contended that Order 28 Rule 8 of the RSC gives the trial cou discretion to deem the matter as if it began by writ of summon Order 28 Rule 8 RSC is not couched in mandatory tern therefore the Court may or may not treat the matter , contentious. L2 It was argued that at trial, the appellant did not raise any issu regarding the contentious nature of the matter. The appellan1 had the opportunity to make an application to the Court duri1 tne proceea1ngs to aeem tne matter as tnougn 1t Degan oy wn of summons but they did not. Their failure to raise the issue the Court below precludes them from raising it on appeal. Tl case of Mususu Kalenga Building Limited and Another Richman's Money Lenders Enterprisesl31 was cited , authority that a matter not raised in the court below cannot 1 raised on appeal. L3 Learned counsel submitted that the appellant refused undertake a DNA test which would conclusively determit paternity. As a result, the Court below was on firm ground wh( it did not consider the matter as contentious and proceeded l way of affidavit evidence. L4 In response to grounds two, three and five, counsel argued th the appellant's evidence at pages 56 to 61 of the record of appe was not sufficient to prove paternity. The Local Court Order , page 59 and the Reconciliation Order at page 60 of the rec01 of appeal do not amount to proof of payment of child suppm The Local Order at page 59 merely reflects that Mercy Daka ar the deceased had unresolved problems which prompted tl respondents to question whether the child wa s indeed the deceased's. As administrators of the estate, the respondents a respons101e 1or a1stnout1ng the estate to the nght oene11c1an<: of the estate. Therefore, it is reasonable for the respondents t require certainty about the child's paternity before t] distribution of the estate. The case of Lindiwe Kate Chinyan· v Dorren Chiwele Judith Tembo141 on the duty of ~ administrator to distribute the estate and render an accou was cited. The respondent's position is that the dispute question is on paternity of the child in question, prior distribution of the estate. tS In Nkhata and Four Other v The Attorney General ofZamb 151 , the Supreme Court outlined instances when it would rever the findings of the lower Court. Counsel in casu, the eviden reveals that the appellant did not produce a birth certificate birth record to prove the paternity of the child, but inste~ produced an under-five card. There was no application t affiliation and maintenance. Further, the respondents on became aware of the child after the death of the deceased ar there were no family meetings regarding the child's paternity. L6 Counsel submitted that the Court below was on firm grour when it found that the child was not the deceased's chil Therefore, there is no basis for the appellate Court to reverse r.ne nna1ng 01 rne 1acr maae oy tne court oe1ow. L 7 We were urged to dismiss the appeal for lack of merit. J. O AT THE HEARING ~.1 Counsel standing in for the appellant, sought to adjourn tl matter on behalf of Mr. Chanda Chungu to a later date. The ground was that counsel seized with conduct of the matter w~ unavailable. We rejected the sought adjournment, because tl Heads of Argument by both parties were on the record of appe:: .0 .0 DECISION OF THE COURT .0.1 We have considered the appeal, the authorities cited and tl heads of argument filed by the learned counsel. It is not i dispute that the applicant is the mother of the child in issu The dispute is in respect of the paternity of the said chili whether the deceased, Martin Banda, is the father. The matti was commenced by way of Originating summons pursuant · Order 30 Rule 11 of the High Court Act and Sections 3, and 19 of the Intestate Succession Act Chapter 59 of tl laws of Zambia in the matter of property sharing. The Respondents opposed the matter on ground of paternity beir in issue. In our view, the grounds of appeal raise two issues fc determination namely: I. I W UC LUC. I" LUC llU\LLC. I" WiUS CUl.lLCl.lLJ. UU:S 7 Wi:l.1".l"i:11.lLJ.llg LUC '-'UUI below to have deemed the matter as if begun by way of W1 and ii) Whether it was proved that the appellant was a child oft: deceased, and entitled to benefit from his estate. l0.2 In respect to the first issue, the position of the appellant is th the Court below ought to have deemed the matter as if began 1 Writ of Summons because contentious issues were raise Order 28 Rule 4 (3) RSC was cited as authority. Order 28 Ru 4 (3) RSC provides as follows: "Without prejudice to the generality of paragraph (2), the Coll shall, at as early a stage of the proceedings on the summons appears to it to be practicable, consider whether there is or m: be a dispute as to fact and whether the just, expeditious a1 economical disposal of the proceedings can accordingly best 1 secured by hearing the summons on oral evidence or mainly c oral evidence and, if it thinks fit, may order that no furth evidence shall be filed and that the summons shall be heard c oral evidence or partly on oral evidence and partly on affida, evidence, with or without cross-examination of any of tl deponents, as it may direct." l0.3 In our view, it is not in issue that the matter commenced 1 originating summons raised contentious issues of fact. On or hand the appellant contended that the child in issue was sin by the deceased. On the other hand, the respondent contention is that paternity must be ascertained to warrai entitlement to a share of the estate. In a nutshell, whether tl said Grace Banda is a child of the deceased. .1v.'-t 1ue 1ecu1u u1 appecll ct. L pages 111 10 1~ 1 snows 1na1 on £f l" JU: 2021, the Court below ordered a DNA test in respect of tl minor Grace Banda to prove paternity. On 23rd August 202 the appellant's advocates applied that the Order for DNA bes aside due to reservations on the applicant's part. This was di to the uncertainty of the persons who would provide samples prove paternity. Counsel stated that they would need an expe to tell them the accuracy of such an undertaking of sampl1 from the deceased's siblings. L0.5 The respondents' position was that the deceased's siblings we his biological siblings born of the same mother and fathe Learned counsel implored the Court below to maintain tl Order for DNA test as it would help the Court arrive at a fa decision. L0.6 The Court below set aside the DNA Order on account of tl applicant's reservations and ordered that the matter wou proceed by way of affidavit evidence. The parties did not obje to matter proceeding by affidavit evidence. -0.7 The Court below, in an attempt to resolve the dispute regardir the deceased's paternity ordered a DNA test. In our view, tl earlier Order of DNA indicated that the Court below recognise rne exisrence 01 a dispute ot paternity that needed to resolved. Additionally, the affidavit in opposition by t respondents highlighted the extent to which they challenged t deceased's paternity. In African Banking Corporation (Z} Limited v Plinth Technical Works Limited & Others 161, tl Supreme Court discussed when the use of originating summrn would be appropriate. The Court stated that: "We are also alive to the fact that applications by originati: summons are appropriate where the decision depends on t: construction of an instrument or statute or the granting of reli in mortgage proceedings; and that the court has refused practice on an originating summons to decide questions priority or disputed questions of fact on the ground th procedure by originating summons is only intended for t l decision of simple questions of fact; so that where there a several conflicting affidavits such procedure is obviously neith convenient nor expedient (The Encyclopedia of Court Forms a1 Precedents in Civil Proceedings, Volume 11, pp. 399-400) . . 0 .8 From the passage above , it is evident that the use of originati1 summons is not convenient for resolving contentious disput( questions of fact. It is for this reason that the Court h, discretion under Order 28 RSC to deem a matter began 1 originating summons as though it began by writ of summo1 and allow for further oral evidence to be adduced. The rationa was explained in Ntombie Zibwele Siwale v Registrar of Lane ana ueeas ana ut.ners 1 • , wnere tne ;::;upreme court stated tJ following: "The reason for this is that matters commenced by originati1 summons are usually determined based on affidavit evidence. When using this procedure, the veracity of the evidence is n tested through cross-examination of witnesses and the Court h no opportunity to observe the demeanour of witnesses." l0.9 Did the lower Court misdirect itself by proceeding to determi1 a contentious matter on affidavit evidence? The Court belc initially ordered a DNA test which was set aside due to t1 reservations of the appellant. We are of the view that in tl circumstances of this case, the Court below cannot be fault< for proceeding to determine the matter on affidavit evidenc The parties were given an opportunity by way of an Order DNA testing to resolve the contentions issue of paternity. Tl appellant resiled from it, despite the respondent confirming th samples would come from the biological siblings of tl deceased. What option was the Court below left with, other the to proceed on affidavit evidence. The Court below stated that would proceed to determine the matter on affidavit evidenc She further stated that in the absence of a DNA test, paterni could not be resolved through biological means. Instead, tl matter would be addressed legally as the law provides for the presumpuon 01 parenrage or paremny, 11 cerrain ev1aenna1 circumstances are proved by the applicant. The Court belo relied on our decision in Freddy Chishimba (sued as administrator of the estate of the late Pascal Chishimba) Pascal Chishimba Junior (suing by his mother and neJ friend Vivian Mulonda) and Mu tale Mabvuto Chisha 121 , outlining the circumstances under which presumption parentage may be considered. These include the evidence of birth certificate, whether the non-marital child was known l the deceased's family and evidence of child support paymen by the deceased. ).10 The Court below distinguished the Freddy Chishimba cai from the facts in this case noting key differences in the eviden< adduced. Unlike in Freddy Chshimba , the appellant in casu d: not provide a birth certificate, instead, she submitted an undi five card. The Court below concluded that the under five card inconclusive because of the manner in which a child particulars are obtained, i.e from the mother and 1s rn validated. The Court below found that no relatives of n deceased knew about the non-marital child. ::>.11 Was there evidence adduced in the absence of a DNA test repo :su111c1ern LU cunc1uae on a oaiance 01 prooao111nes 1na1 urace Banda was the deceased's non-marital child? We have perus( the evidence adduced in the RoA. There is no evidence of an Affiliation Order of child support. The Order at page 59 of tl record of appeal is a restraining order dated 22 nd Septembi 2016. It is against Mercy Daka, the child's mother, who w, causing problems in the deceased's life. The Local Court, in tl said Order, stated that a person likely the defendant's 'moth to be receiving the monthly support of K200' and 'to be tl channel of communication ' . . 12 The Court below challenged this Order on the grounds that tl child's name was not mentioned. Did the Court below err in th assessment, as there was only one child claimed to be bar between the applicant and the deceased? There was also at pa~ 60 of the record of appeal by the Choma Local Court, reconciliation order over child support. At page 61 of the record of appeal is evidence of payment 1 K467 from the administrator of the estate collected on behalf 1 Mercy Daka for the child, Grace. 1.13 The question is does the above evidence prove paternity of t1 child in issue? The respondents' position is that they ca mainiain Ille Clllla once n 1s provea IllaI Slle 1s Ille aeceasec child. In our view, evidence was required to conclusively prov that the child was sired by the deceased. No birth certificate w: adduced. No evidence from the relatives of the knowledge oft] non-marital child. When a DNA test was ordered by the Coui the appellant applied to set aside the Order based on h reservations, without calling expert witnesses to verify h reservations. It is trite that a DNA test is the most conclusi evidence to determine paternity. The onus lies on the appella to prove paternity of the deceased. Where there is uncertaint DNA testing is the best scientific evidence for determini1 paternity, though it is trite that other evidence than medic would be considered on the question of paternity. Where Dl' testing is used, there is no need to resort to presumptions determine paternity. Does the evidence in this matter give ri to presumption of paternity? We refer to the earlier evidence adduced by the appellant. We hold that in circumstances oft] case, paternity was not proved on a balance of probabilities. V cannot fault the Court below in holding that the child in iss1 was not the deceased's and that the a ppellant is not entitled the relief's sought. l 1.1 For the forgoing reasons, we find no merit in the appeal. V uphold the judgment of the lower Court. The parties shall be their own costs . ................... J ................... . M. J. Siavwapa JUDGE PRESIDENT F. M. Chishimba A. N. Patel S. C •.••...•••. ;JJ:?. ~ .. :! .......... . f 1 -- ;OURT OF APPEAL JUDGE COURT OF APPEAL JUDGE