Edith Siankondo v Fredrick Ndenga (2002/HLA/01) [2003] ZMHC 2 (1 January 2003)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT LIVINGSTONE (Civil Jurisdiction) BETWEEN: 2002/HLA/01 EDITH SIANKONDO APPELLANT AND FREDRICK NDENGA RESPONDENT Before Honourable Justice Mr. M. S. Mwanamwambwa this .. ....... day of ............ 2003. For the Plaintiff For the Defendant Mr. A. R. Chipande - Livingstone Partners Miss I. Suba Chambers - Kuta JUDGMENT ON APPEAL Cases referred to: 1. MHANGO v NGULUBE - 1983 Z. R. 61 Legislation referred to: Section 3 and 5 of the interstate succession. This is an appeal by the Defendant, Monica Siankondo, against the decision of the Subordinate Court, Class I, Choma dismissing the appeal from the Local Court, in respect of house No. 1199, Macha Road Choma. The case for the Defendant is that on 6th April 2001, she was appointed the administrator of the estate of the late Edith Siankondo (herein after referred to as "the deceased"}. The deceased was married to the Given Ndenga who died on 30th May 1998. (herein after referred to as "the late husband"). The deceased and her late husband, were married on 31st December 1992. Between them they had only one child who died earlier than both of them. The late husband was an employee of Zambia Railways Limited, by reason whereof he was occupying the house in dispute, with the deceased, up to the date of his death. As such employee and sitting in tenant of the house in dispute, the late husband was entitled to buy it from Zambia Railways Limited. However as at the date of his death, he had not yet been offered the house. The Plaintiff is the Administrator of the estate of the late husband. After the death of the late husband, the deceased bought the disputed house from Zambia Railways Limited, without the knowledge of the Plaintiff, as Administrator of the estate of the late husband. Thereafter, that it was alleged that she chased from the house, children of the late husband, from a different mother, who numbered about four. At that stage, the Plaintiff sued her in the Local Court for an injunction to restrain her from evicting the children. The Local Court granted the injunction. The deceased appealed against that decision, to the Subordinate Court. The Subordinate Court dismissed the appeal and upheld the decision of the Local Court; holding that the deceased was not entitled to buy the house in her name. That as a widow, she was only entitled to a life interstate in it, pursuant to section 9 of the Interstate succession Act, Cap 59 of the Laws of Zambia. After Judgment was passed, the Defendant applied to the Subordinate Court to review the matter, wishing to adduce further evidence which was not adduced at trial. The Subordinate Court refused the application, stating that there was no reason given as to why the evidence was not given at the hearing. On 3rd July 2002, the matter came up for the first time before this court. Miss Suba, Counsel for the Defendant, applied :- 1. For leave to amend parties, by substituting Monica Siankondo, as Administrator of the estate of Edith Siankondo, who had passed away on 16th February 2001. 2. For leave to file a supplementary record of appeal. She said that the Record of appeal she had just received that morning, did not have the receipt issued to the late Edith Siankondo, over the house, which receipt was produced before the Subordinate Court, and 3. For leave that the matter be heard denovo. The Court granted all the 3 applications. A supplementary record of appeal was fitted. On 29th August 2002, when the matter came up for hearing, the Defendant changed her stance. She now said that she wanted the matter heard by way of record and not denovo. The Plaintiff, who was then acting in person, consented to the move. A perusal of the supplementary record of appeal filed on 6th August 2002 shows that the Defendant put into this case, three documents that were not put in at trial before the Subordinate Court, yet they were already in existence them. Apparently, this is the very evidence which the Defendant tried, but failed, to put in when she applied for review of the Subordinate Court Judgment. I wish to observe that the Defendant having made up her mind to have this appeal heard by way of record and not by way of re hearing, it was not in order for her to use the supplementary record of appeal to put in new evidence which she inexplacably did not adduce at trial. However, I note that the Plaintiff did not challenge the move. The general principle governing appeals is that the appellate court will not reverse findings of fact by a trial court unless it is satisfied that the findings in question were either pevase or made in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of evidence, no reasonable trial court acting correctly could reasonably make: See MHANGO v NGULUBE (1) The Plaintiff, then acting in person, put in written submissions. I have not been able to find anything of substance in them, in terms If law. In the submissions, the Plaintiff has in fact attempted to give evidence. Submissions are supposed to be comments on law and evidence given in court on Oath. It is improper for a party to give evidence in submissions, I appreciate the fact that the Plaintiff is a Layman. But if he chooses to handle a court matter in person, then he is bound by all the rules governing court process. By consenting to the matter being heard by way of record, he deprived himself the chance to give evidence. He can not use submissions to give evidence. have discounted the evidence contained in the submissions. In ground one of the Defendant's Submissions, Miss Suba attacked the trial Magistrate's ruling that under Section 9 of the Interstate Act, the Defendant had only a life interest in the house; and was not entitled to buy it. She argued that the finding is not supported by government policy and Law; because the Interstate succession Act gives the right to possess and or live in a deceased spouse's house if there are children and a wife. That in this particular case, there were no children. That the house was not for the deceased spouse but for Zambia Railways Limited at the time of his death. I must state here that I have some difficult in understanding the meaning of this argument. To me, it is self contradictory. It suggests that the house in dispute was not part of the estate of the late husband because at the date of his death, it was property of Zambia Railways Limited. At the same time, the argument suggests that a surviving wife is entitled to own and live in her deceased's husband's house only if they were surviving children, which was not the case in this matter. Either the house forms part of the late husband's estate, in which case it is covered by the Interstate succession Act. Or it is not from part of the late husband's estate, in which case it is not covered by the Interstate succession Act. One cannot argue that it is not part of the estate and at the same time invoke the Interstate succession Act. The issue I have to resolve is whether or not the house is part of the late husband's estate. Under Section 3 of the Interstate succession Act, the word "Estate" is defined as : all the assets and liabilities of a deceased, including those accruing to him by virtue of death or after his death and for the purpose of administration of the estate under part Ill includes personal chattels." In the instant case, the late husband accrued a right to purchase the house in dispute. But he had not been able to exercise that right before he died. As at the date of his death, he had not been offered purchase of the house. Had he been given an offer to purchase the house, accepted the offer and a deposit paid towards the purchase price, then a contract would have been made between him and Zambia Railways Limited. In that case, the balance of the purchase price would constitute a liability within the definition of "estate" under Section 3 of the Interstate succession Act. Hence the house would have constituted part of the late husband1 estate. Since at the death of the late husband, there was no contract of sale of the house, I find that the house is not part of the late husband's estate. Accordingly, it is not covered by the Interstate succession Act. Only other assets and liabilities of the late husband are covered by that Act. Accordingly, the trial Magistrate erred in law in applying the Interstate succession Act and holding that the deceased had only life interest in the house. I hereby reverse and set aside that finding. That being the case, the sale of the house in question is wholly governed by Zambia Railways Limited policy on the sale of houses. This document is at pages 12-18 of the supplementary record of appeal. Under clauses 3.3 and 3.5,the registered spouse to the deceased Railway employee, who died after 1st March 1998 and was a sitting tenant at the date of death of the deceased, or registered children of such deceased employee, so long the children have attained the age of 16 years, qualify to buy the deceased employee's residence. Under clause 4.3 of the document, the Administrator of the deceased employee•s estate does not qualify to buy the house unless such Administrator is the registered spouse to the deceased Railway employee or registered child of the deceased employee, under clauses 3.3 and 3.5 above. The arguement by Miss Suba that the late husband did not leave children is not correct. Pages one and four of proceedings in the Local Court show that the late husband left four children from another woman or women. Their names are listed on the affidavit of birth filed by the late husband with Zambia Railways Limited on 9th January 1990 (page 4 of the Local Court proceedings). They are Derick Ndenga, male, born on 14th August 1976, Dickson Ndenga, male, born on 6th May 1980, Mildred Ndenga, female born on 15th March 19978 and Beauty Ndenga, female, born on 31st February 1984. These are the very children whom the deceased was prevented from chasing from the house by an injunction in the Local Court. Intact, the first one gave evidence in the Local Court. All of them are now above 16 years, and qualify to buy the house. Accordingly, on proper consideration of this matter, these four children should have been allowed to purchase the house jointly with the deceased. They were not afforded that chance because of the conduct of the deceased. She secretly bough the house. Unless they are unwilling or unable to buy the house, I order that they be allowed to buy and own the house jointly with the Defendant. In the event the children are unwilling or unable to buy the house jointly with her, then she will buy it alone. There is a new development in this matter I wish to comment on. Documents filed into court in January 2003, show that the Plaintiff, acting was Administrator of the late husband's estate, sold the house to a couple in Botswana. The same documents show that the sale was done without deducing title and without involvement of Lawyers. Some property consultant was used. From the look of things, the house is still in the name of Zambia Railways Limited. I must state that this is a very unsafe way of buying real property. It is unwise to buy a house without seeing it's Title Deeds and without ensuring that the person one is buying from is the registered owner. In this case, it is quite obvious that the Plaintiff has never been the registered owner of the house. He had never had Title to the house and accordingly, he can pass none to anybody. The whole transaction is a nullity and is hereby set aside. I now move on to the claim for chattels. The late husband died interstate. Therefore, his estate ought to be administered under the provisions of the Interstate Succession Act, Cap 59 of the Zambia Laws. I have so far found that the late husband is survived by 4 children. There is no evidence of dependants or parents. That being the case, his chattels should be distributed in accordance with Section 5 ( 1) (a) of the Act. The Defendant is not entitled to 90% as claimed. Finally, I move to the claim for toss of mesme profits. Following my finding above, I award mesme profits to the Defendant. But in the event the surviving children are willing and able to buy the house jointly with the Defendant, then such Mesme profits shall be shared between the Defendant and the children, in the mode prescribed by Section 5 of the Interstate Act. As to quantum of such mesme profits, I note that the evidence is scanty and un clear. For instance, on 4th December 2002, the Defendant filed an affidavit supporting summons for an injunction. Paragraphs 6 and 8 of that affidavit show that she had possession of the house and even put in a Tenant. So, it is not clear as to what period the claim for loss of mesme profits or loss of use of the house relates. This is yet another aspect of the matter where the parties deprived themselves of the chance to give evidence by agreeing to have the appeal heard by way of record. As the record stands, I am not in apposition to assess quantum on this claim. So, I am referring this particular claim to the District Registrar for assessment. I award costs to the Defendant. They shall be agreed upon and in default to be taxed. Leave to appeal granted. DELIVERED ............ THIS DAY OF .............. 2003