Ruth Yolamu and Anor v Lungu (SCZ Appeal 30 of 1999) [2001] ZMSC 92 (10 April 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) SCZ APPEAL NO. 30/99 BETWEEN: ruth yolamu LEVY YOLAMU (An infant by his next friend Priscilla Mulauzi) AND 1st appellant 2xd APPELLANT 3rd APPELLANT FANNY LUNGU RESPONDENT Coram: Bweupe. DCJ; Chaiia, Lewanika. JJS 2"d November. 1999 and 10th April. 2001 For the Appellants: Mr. S. Zulu of Zulu and Company For the Respondents. Ms D Neves of Shamwana & Company _ __________________JUDGMENT___________________ Chaiia, JS, delivered the Judgment of the court. When the appeal came up for hearing before us. counsel for the appellants. Mr. Zulu, informed us that the C’ Appellant had withdrawn from the appeal. The appeal is therefore by 2'“‘ and 3rd Appellants. The appeal by the two appellants is against decision of the High Court (Mambilima. .n dismissing the application to change or revoke the letters of administration granted to the respondent. Briefly, the facts of the case arc that the respondent was a widow of the husband who had died intestate. 3 he husband left a number of children. - .12 - which included Levy Yolamu who was an infant bom out of wedlock. The mother to Levy Yolamu was Priscilla Mulauzi who was suing as next friend to the infant. After the death of the husband and father to the children, the members of the family failed to agree on who was to be appointed an Administrator of the estate. The estate comprised a lot of property and shares in one or two companies. The family was divided, some wanted the Administrator General to administer the estate, and others wanted one of their relations to administer. The wife (the widow) wanted to administer the estate. The Administrator General's office was approached and they initiated a move by applying for letters of administration at the High Court. Meanwhile, the respondent had applied to the High Court for letters of administration to administer the estate and since there was no objection to the application, she was given the letters of administration. The Administrator General's application was later fumed down since the respondent had already been given letters of administration. The Learned trial Judge in her judgment dismissed the applicants* application and confirmed the High Court's appointment. Mr. Zulu has relied on two grounds of appeal. The first ground is that the learned trial Judge misdirected herself by ignoring the provisions of Section 16(1) of the Intestate Succession Act Cap. 59 of the Laws of Zambia which provided that letters of administration shall not be granted to more than four persons in respect of the same estate and if there is a minority or a life interest, letters of administration shall be granted to the Administer General, to a Trust Corporation solely or jointly with an individual or to not less than two individuals. Mr. Zulu submitted that the deceased died on 25lb April 1996 and that when the letters of administration were obtained on 28dl November 1996, there were minority interests in the estate. Mr. Zulu maintained that there were minors in the estate. He drew our attention to Section 3 of Cap. 59 of the Laws of Zambia, which defines the minor as a person who has no, attained the age of 18 years. He further drew the court's attention that in November when the letters of administration were obtained, there were four (4) minors. These were: (i) Levy Yolamu, who was an infant; (ii) Lina Zondiwe Yolamu. who was 1 7 years; (iii ) Njeleka Yolamu, who was 15 years; and I iv) Charles Yolamu. who was 12 A years. Mr. Zulu further submitted that when the letters of administration were granted, there was a life interest in the estate, namely that the respondent was a surviving spouse. He further argued that the couple had a farm at No. 488a Leopards Hill road. Kabulonga. Lusaka and that according to the provisions of the Intestate Act. the surviving spouse had a life interest which determines upon that spouse’s remarriage or death. The second ground was that the learned trial Judge misdirected herself bv ignoring the provisions of Section 16(2) Cap. o9 ot the Laws of Zambia, which provides that the letters of administration may be revoked or annulled for any of the following reasons: (c) That the grant was obtained by means of an untrue statement of a fact essential in point of law to justify the grant though that statement was made in ignorance or inadvertently. - J4 - In support of these grounds, Mr. Zulu has argued that the respondent in the Oath of Administration to enable her obtain letters of administration swore that there is neither a minority nor life interest arising under the said intestate. Mr. Zulu maintained that at that time although she may not have been aware, there was a Levy Yolamu who had been fathered by the deceased husband. There was evidence further that there were minority interests in the estate since her own children Njeleka and Charles were 15 and 12 ’-2 years, respectively. In addition, the respondent herself has lite interest in the matrimonial home, that is Fann No. 488a Leopards Hill Road, Kabulonga. Lusaka. Mr. Zulu urged the court to cancel the letters of appointment and allow7 the Administrator General to be appointed as the administrator of the estate. Ms Neves did not respond to the appeal on the ground that she did not receive instructions. We have carefully considered the evidence on record, the judgment and the submissions of the learned counsel and we have taken them into account in our judgment. The evidence shows that the same children of the respondent were aged below 18 years and according to Section I6( I) Cap. 59. they were minors. The evidence further show's that there was an infant, a child of the deceased whose interest had to be taken into account Hie evidence further shows that the respondent or the surviving spouse who had a life interest in the house. The learned trial Judge in her judgment said: “The Intestate Succession Act is very clear. The widow should be allowed to administer the estate of the late Charles Yolamu in accordance with this Act and to take into account the concerns of all the legitimate beneficiaries of the estate. She must bear in mind that she should be ready to give an account if need be”. The learned trial Judge did not consider in detail the provisions of the Intestate Act. She did not address herself to the interest of the minorities and also to the contentious position taken by some relations and beneficiaries of the deceased. Section 15 of the Intestate Succession Act Cap. 59 deals with letters of administration and provides: 75. (1) Where the deceased has died intestate the court may, on the application of any interested person, grant letters of administration of the estate to that interested person. (2) Subject to section sixteen where more than one person applies for letters of administration, the court may make a grant to any one or more of them, and in the exercise of its discretion the court shall take into account greater and immediate interests in the deceased’s estate in priority to lesser or more remote interests. (3) Where not person applies for letters of administration, letters of administration may be granted to the Administrator General or to a creditor of the deceased. The evidence shows that the interested parties were not agreeable on who should applv for letters of administration. They approached the Administrator General to help but meanwhile the respondent had taken out letters of administration to the High Court. In our view, in order to satisfy - J6 - the interests of all parties concerned, it was going to be fair to bring in the Administrator General, together with a neutral person of the respondent’s own choice. We vary, therefore, the order that the Administrator General, together with a person of the respondent’s own choice, to join the letters of administration. We therefore allow the appeal and make the order we have referred to above. To that extent, the appeal succeeds. This is a family matter and we make no order as to costs. We have read from the letters of the counsel Mr. Zulu that the respondent died sometime. We are sure a personal representative of the respondent may be brought in together with the Administrator General to run the affairs of the late husband’s estate. B. K BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D M. LEWANIKA SUPREME COURT JUDGE