Linda Tembo (Sued in her capacity as Executrix of the estate of the late David Lastone Tembo) v Kako Tembo (suing in her capacity as Executrix of the estate of the late David Lastone Tembo) (Appeal No 125 of 2022) [2024] ZMCA 66 (23 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA ( Civil Jurisdiction) Appeal No. 125 of 2022 BETWEEN: IN THE MATTER OF: ORDER 30 RULE (12) OF THE HIGH COURT RULES AND SECTION 51 (2) OF THE WILLS AND ADMINISTRATION OF TESTATE ESTATES ACT, CHAPTER 60 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE WILL AND ESTATE OF THE DECEASED DAVID LASTONE TEMBO BETWEEN: LINDA TEMBO (Sued in her capacity as. Executrix of the estate of the late David Las ton Tlelizo<t,)B 2024 (,,.__ -----t:-\ lant ;rh ~'-1, AND ~ . ~0067. LUS~'c<J'- KAKO TEMBO (suing in her capacity as Executrix of the estate of the late David Las tone Tembo) MTUKUZI-TUKUZA TEMBO VUNDUMUKU TEMBO l st Respondent 2 nd Respondent 3 rd Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 21 and 23 February 2024 For the Appellant: Ms. M. Nsofu of Messrs AB & David For the Respondent: Mr. K. Wishirnanga of Messrs AMW & Company JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. J1 Legislation referred to: 1. Wills and Administration of Testate Estate Act, Chapter 60 of the Laws of Zambia Cases referred to: 1. Scale v Rawlings [1892} AC 342, HL 2. Isaac Tantameni Chali (Executor of the Will of the late Mwala Mwala) v Liseli Mwala (Single woman) (1997) S. J 22 (SC) Other authorities: 1. Williams on Wills, volume 1, 9th Edition, 2008 1.0 INTRODUCTION 1.1 This appeal concerns a judgment delivered by Justice Mapani-Kawimbe of the Lusaka High Court (as she was then) on 23 March 2020. 2.0 BACKGROUND 2.1 The dispute relates to the Will of David Lastone Tembo ('the Testator') who passed away in Harare, Zimbabwe on 23 May 2013. In his Will dated 5 May 2010, the testator nominated and appointed ~inda Tembo (currently the pt Appellant), Tamina Tembo and Kako Tembo (now the 1 st Respondent) as Executrixes and Trustees of his estate. The Will also identified ten beneficiaries of the estate namely: Tamina Tembo, Kako Tembo, Mtukuzi-Tukuza Tembo, Mbuto Tembo, K wasu Tembo, Vundumuku Tembo, Chitinthi Tembo, Lucy Tembo, Kalipeni Nkuwa, and Linda Tembo as the spouse. J2 2.2 By the Will, the testator bequeathed his property located at number 1589, Westgate, Harare, Zimbabwe and all the household effects unconditionally to his wife, Linda Tembo. He left a legacy of US$5,000 each to his sister Lucy Tembo and grandson Kalipeni Nkuwa. He distributed equal beneficial shares in the trust property among his seven children, constituting his residual estate, which included: i) Subdivision 9 of Farm number 283a, Lusaka West, including the clinic, pharmacy, and all other buildings on the said Farm 283a, Lusaka West. ii) House number 19, John Hunt Road Livingstone in Southern Province; iii) All motor vehicles registered in his name at the time of his death; iv) All cash in bank accounts wherever they may be; and v) Any other property whether realty or personality which he possessed at the time of his death. 2.3 On 10 January 2017, four years after the Grant of Probate, Kako Tembo, Mtukuzi-Tukuza Tembo and Vundumuku Tembo (as Pt, 2nd and yct Respondents) commenced an action in the High Court at Lusaka against Tamina Nicolai and Linda Tembo (as P1 and 2nd Defendants therein) in their capacitates as Executrixes of the estate of the Testator. They contended that they failed to administer the estate in accordance with the provisions of the Will, by which they were appointed. J3 2.4 By that action, the Respondents sought the determination of the Court for the following reliefs, namely: 1. An order for the removal and substitution of the l51 and 2nd defendants as executrixes of the estate of the deceased with Mutukuzi-Tukuza Tembo the 2nd plaintiff. 2. An order for the administration and winding up of the estate in accordance with the provisions of the Will dated 5th May 2010. 3. An order for the sale of Subdivision 9 of Farm No. 283a, Lusaka West and that the proceeds of the sale be distributed amongst the beneficiaries in accordance with the Will. 4. An order for the sale of House No. 19 along John Hunt Road Livingstone and that the proceeds of the sale be distributed amongst the beneficiaries in accordance with the Will. 5. In the alternative to paragraphs 3 and 4 above, an Order for: (i) The purchase of the Plaintiffs interest in the aforesaid properties within a period not exceeding 40 days or within any reasonable period that this Court may deem fit; or (ii) The appointment of an independent real property surveyor to evaluate the properties and make a determination as to what portion of the properties including inter alia the developed and underdeveloped sites can be equally subdivided amongst the beneficiaries or sold off where it is not practicable to make a subdivision. J4 6. 7. 8. Interpretation of Clause 19 of the will dated the 5th May 2010. Costs. Further, or other relief that the Court may deem fit. 3.0 DECISION OF THE LOWER COURT 3 .1 After careful consideration and evaluation of evidence before her, the trial Judge made several determinations which have not been challenged, and we see no need to repeat those decisions, except for the Court's determination of the respondent's sixth claim. The trial Judge was invited to interpret clause 19 of the Will dated 5 May 2010. 3.2 In relation to this claim, the trial Judge held as follows: 'My interpretation of the clause is that the 2"d respondent was appointed trustee of the deceased's World Health Organization pension benefits solely for the benefit of his minor children. Thus, the mandate depended on there being minor children in the family. After they grew up, the pension benefit reverted to the residuary estate. The applicants 'evidence which was not gainsaid by the respondents is that at the time of their father's death, the youngest child was an adult. That being the case, I hold that clause 19 of the will is spent and the World Health Organization pension benefits belong to the residuary estate of the deceased.' JS 3.3 Consequently, based on this determination, the trial Court issued an order stating that the pension benefits of the Testator from the World Health Organization would become part of the residuary estate and be distributed equally among the beneficiaries. 4.0 THE APPEAL 4.1 Being dissatisfied with the judgment of Mapani-Kawimbe, J delivered on 23 March 2020, the appellant filed a notice of appeal and memorandum of appeal on 11 March 2022. 4.2 The appeal challenges a portion of the judgment, specifically the determination that, 'the pension benefits of the deceased.from the World Health Organization vest in the residuary estate and be shared equally amongst the beneficiaries.' 5.0 HEARING OF THE APPEAL 5.1 The appeal was heard before us on 21 February 2024. All the parties were represented by their respective counsel, as previously mentioned. Counsel for the appellant relied on their arguments of 13 June 2022 and in reply of 19 October 2022. Counsel for the respondents relied on their arguments dated 19 August 2022. The arguments will not be recast here but referenced in the subsequent analysis section, where necessary below. J6 5 .2 During the hearing, counsel for the respondent expressed concern that the appellant's counsel's reference to the UN guidelines and regulations amounted to offering evidence from the bar. Counsel asserted that this was not evidence presented before the lower court and was only brought up in the appellant's counsel's argument. Counsel for the appellant acknowledged that the reference to the guidelines was not presented as evidence before the lower court. Since this evidence was not part of the affidavit evidence but was introduced through counsel's submission, we will not refer to that part of the appellant's arguments in the context of it being evidence. 6.0 OUR DECISION ON THE APPEAL 6.1 We have carefully considered the evidence presented in the Record of Appeal, the judgment under scrutiny, and the arguments put forth by the parties. In the single ground of appeal, the Appellant contended that: 'The learned Court below erred in Law and fact and misdirected itself when it held and ordered that the pension benefits of the deceased.from the World Health Organization vest in the residuary estate and be shared equally amongst the beneficiaries. ' 6.2 The appellant's counsel augmented that the correct interpretation of clause 19 of the Will means that none of the children or other beneficiaries of the deceased is entitled to the World Health Organization benefits. This is because they are no longer minors, and the appellant, as a widow of the deceased, is still alive. J7 6.3 Counsel emphasized that the pension benefits cannot vest in the residuary estate to be shared equally among the deceased' s beneficiaries, as clause 19 explicitly states that such benefits vest in the residuary estate only if the appellant predeceases the deceased or if none of the children are mmors. 6.4 The appellant underscored the importance of the Court's interpretation of clause 19 of the Will. According to counsel, in the absence of minor children, the spouse (appellant) was the sole beneficiary entitled under the United Nations Joint Staff Pension Fund (UNJSPF). Counsel supported this argument by referencing the UNJSPF as follows: 'The United Nations Joint Staff Pension Fund is a fund established by the General Assembly of the United Nations to provide retirement, death, disability and related benefits for the staff of the United Nations and other organizations admitted to membership in the Fund.' 6.5 Counsel also referred the to Article 36 of the Regulations and Rules of the Fund which he cited as stating the following: '(a) A child's benefit shall subject to (b) and (c) below, be payable for each child of a participant who is entitled to a retirement, early retirement or disability benefit or who has died in service, while the child remains under the age of 2 I. J8 (b) A benefit shall be payable for a child who is over the age of 21 if the child is found by the Board to have been incapacitated by illness or injury for substantial gainful employment: (i) On reaching the age of 21, if immediately prior thereto a child's benefit was payable,· or (ii) At the time of death in service or entitlement to a benefit of the participant. (c) A child's benefit shall, notwithstanding (a) above, not become payable, if the participant has chosen an early retirement benefit, until the participant dies or reach the normal retirement age, except to a child under the age of 21 found by the Board to be disabled. ' 6.6 In response, the respondent argued that the lower Court was tasked with giving effect to the intent of clause 19 of the Will as articulated by the testator. They contended that the lower Court was justified in interpreting the clause based on its apparent meaning as expressed in the Will. 6.7 Counsel for the Respondent referred us to the case of Scale v Rawtings 1 [1892) AC342, HL where it was held that 'The Court will not guess or add to the meaning of the words used by the testator by speculating upon what the testator may have intended to do. The duty of the Court is to only determine what the words, phrases or the clauses the testator has used mean.' Jg 6.8 Our further attention was drawn to the learned authors of Williams on Wills, volume 1, 9th Edition, 2008 who stated as follows: 'General Principle. The first and great rule to which all others must bend is that effect must be given to the intention of the testator, but intention here in question is not the intention in the mind of the testator at the time he made the will, but declared and apparent in his will. The application of the rule resolves itself into two questions of construction: first what is the intention of the testator disclosed by the will: and secondly, how can effect be given to that intention. ' 6.9 The aforesaid author states further at paragraph 49.2 as follows: 'Ascertaining the intention of the testator. The Court of construction must ascertain the language of the will, read the words used and ascertain the intention of the testator from them. The Courts detail is not to ascertain what the actual intentions were. The only question for the court of construction is what is the meaning of the words used, and the expressed intention in all cases is considered to be actual intention; the court cannot give effect to any intention which is not expressed or employed in the will. Though this principle is not questioned, it is still possible for judges to disagree with what intention the words show.' JlO 6.10 The respondents submitted that the appellant' s attempt to tilt the Court towards distributing the pension benefits in accordance with the United Nations Joint Staff Pension Fund (UNJSPF) was not in clause 19 of the Will to warrant the sustenance of such argument. It was argued that the intention of the testator was very clear from a reading of Clause 19 of the will and that such intention cannot be ascertained by referring to the UNJSPF which is not mentioned or referenced in the Will. 6.11 The respondent highlighted the unfettered right of disposition by the testator of his property and the limited circumstances when the Court can depart from the dispositions of a testator as outlined by the Supreme Court in the case of Isaac Tantameni Chali (Executor of the Will of the late Mwala Mwala) v Liseli Mwala (Single woman). 6.12 In the above case, the Supreme Court acknowledged the unrestricted right of the testator to dispose of their estate as they see fit. The Court highlighted that the only circumstances in which it can intervene with the dispositions in a Will is when the testator has neglected their obligations as they existed during their lifetime by making unreasonable provisions that deprive those who depended on them for benefits. In such cases, if not altered or intervened by the Court, hardship may ensue. 6.13 The sole ground of appeal in this case challenges the lower Court' s interpretation of clause 19 in the Will of the late David Lastone Tembo, dated 5 May 2010. Jll 6.14 The mentioned clause 19 is reproduced here below for convenience: "I APPOINT AND NOMINATE my wife LINDA TEMBO to be trustee limited to my WORLD HEALTH ORGANIZATION pension benefits payable to my children who may be minors at the time of my death. In the event that my wife LINDA TEMBO, shall predecease me, my WORLD HEALTH ORGANIZATION pension benefits OR if none of my children shall be minors at the time of my death the said benefits, shall form part of the residuary estate. 6.15 Clause 19 of the Will consists of two parts. The first part reads: 'I appoint and nominate my wife Linda Tembo to be trustee limited to my World Health Organization Pension Benefits payable to my children who may be minors at the time of my death. ' There is no contention that the plain and ordinary interpretation of this part of the clause, is that the testator appoints his wife, Linda Tembo, as the Trustee of his World Health Organization Pension Benefits. Our understanding is that this appointment is limited to managing the pension benefits for the benefit of any children who may still be minors at the time of the testator's death. This means that Linda Tembo would be responsible for managing and distributing the pension benefits to the children until they reach the age of majority. 6.16 The second part of the clause states: 'Jn the event that my wife, Linda Tembo, shall predecease me, my World Health Organization pension benefits, or if none of my children shall be minors at the time of my death, the said benefits, shall form part of the residuary estate. ' This part of the J12 clause indicates what happens if certain conditions occur. It outlines specific conditions under which the pension benefits will become part of the residuary of the estate. If Linda Tembo passes away before the testator, or if none of the children are minors at the time of the testator's death, the pension benefits will form part of the residuary estate. 6.17 From the above examination, it is evident that the testator intended for the appellant to serve merely as a trustee for his minor children concerning his World Health Organization pension benefits accruing at the time of his death and did not make reference any child's benefits as Counsel of the appellant is attempting to portray. If the appellant were to pass away before the testator, and none of his children were minors at that time, the testator intended for his World Health Organization pension benefits to become part of his residuary estate. The intention behind this provision is unmistakably clear from the language used in clause 19 of the Will, indicating that the benefits were designated for the benefit of the testators' minor children at the time of his passing or the residuary of his estate if there were no minors at his time of death. 6.18 Based on the foregoing, we concur with the trial Court's interpretation of clause 19 of the Will. That the testator appointed the appellant as trustee of his pension benefits from the World Health Organization solely for the benefit of his minor children, and if there are no minor children of the family at the time of his demise, the benefits are to become part of the residuary of the estate. Therefore, this sole ground of appeal fails. J13 7.0 CONCLUSION · 7 .1 Since the appeal is unsuccessful, it is hereby dismissed accordingly. Costs are awarded to the respondents, to be taxed in default of agreement. ~ C. K. Makungu lf COURT OF APPEAL JUDGE ~~~. . A. Sharpe-Plliri COURT OF APPEAL JUDGE J14