sued in her capacity as Administrator of the estate of the Late George Nkhowani

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TITLE sued in her capacity as Administrator of the estate of the Late George Nkhowani

Benny Nkhowani v Nkhowani (sued in her capacity as Administrator of the estate of the
CITATION
Late George Nkhowani) (HPF 312 of 2019) [2020] ZMHC 326 (10 February 2020)

PARTIES Benny Nkhowani v Nkhowani

JUDGES "[\"Lombe Phiri, J\"]"

DATE
10 February 2020
DELIVERED

CASE COURT High Court of Zambia

IN THE MATTER OF:

AMB4BL'C OF ZAMBIA
,HIGH COURT OF ZAMBIA

ILYAILY & CHILDRENS DIVISION

REGISTRY
P.01 BOX 60067,

1 _LUS , J

2019/HPF/312

F THE LATE

IN THE MATTER OF:

ORDER 30 RULE 12 OF THE HIGH

COURT RULES CHAPTER 27 OF THE

LAWS OF ZAMBIA

IN THE MATTER OF:

SECTION 5, 19 AND 42 OF THE

INTESTATE SUCCESSION ACT

CHAPTER 59 OF THE LAWS OF

ZAMBIA

BETWEEN:

a I I e ui'aui : i.',ip i

APPLICANT

CONSTANCE NKHO WANT (sued in her capacity

Before the Honorable Mrs. Justice C. Lombe Phiri in Chambers

For the Applicant : Mr E. M. Kani ? EMK & Associates

For the Respondent . N/A

JUDGMENT

CASES REFERRED TO:

1. Gray Nachandwe Mudenda v Dorothy Chileshe Mudenda (2006) Z.R. 57

2. Lindiwe Kate Chinyanta v Doreen Chiwele Judith Tembo SCZ Judgment NO 28

of 2007

LEGISLATION REFERRED TO:

Intestate Succession Act Cap 59 of the laws of Zambia

1. BACKGROUND

This is a matter wherein Benny Nkhowani, the Applicant, has moved the

Court by way of Originating Summons claiming the following Orders against

the Respondent:

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i. An Order that Constance Nkhowani, as Administrator of the Estate of the Late

George Nkhowani, discloses the inventory of the estate of the late George

1\Tkhowani namely; real estate, moveable assets, moneys and other chattels;

ii. A further Order compelling the said Constance Nkhowani to account for the

manner in which she has so far distributed the estate of the late George

Nkhowani,

iii.An Order compelling the Administrator to grant or avail Benny Nkhowani his
full share of the estate of the late George Nkhowani,

iv. Cost of the action be borne by the estate of the late George Nkhowani;

and

v. Any other order that the Court may deem fit.

2. FACTS

The said Originating Summons are supported by an Affidavit in support sworn

by the Applicant himself. He deposed that he was born on 41h March, 1998

and produced a copy of his National Registration Card. He further deposed

that he is the biological son of the late George Nkhowani who died intestate on

14th March 2018. That the Respondent is the first born daughter of the

deceased and was appointed Administrator following the death of Mr. George

Nkhowani. It was deposed that due to his status as a child born out of

wedlock the Applicant had been disadvantaged by the Respondent in the

administration of the estate of late George Nkhowani. That the Respondent

had never given him a true account of the assets that form part of their late
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father's estate despite his numerous attempts to be availed the said

information. It was further deposed that after a family meeting it was agreed

that all the beneficiaries receive an equal share of the proceeds of rentals from a

house in Chalala. That consequent to this the Applicant has been receiving

K300 per month since August, 2018. Further, that he was given the sum of

K24, 436.00 from his late father's NAPSA contribution. It was further

deposed to the Respondent and other beneficiaries of the estate have been

hostile towards the Applicant and his mother. Also that attempts to settle the

matter excuria have proved futile. It was further deposed to that the Applicant
believes that his late father's estate also comprises of two houses - one in

Mtendere and another in Chalala Lusaka, three motor vehicles and pension.

The Applicant deposed that all his efforts and enquiries to the Respondent on

the inventory of the Estate have been in vain as the Respondent and other

family members have been hostile.

The Respondent in turn filed into Court an affidavit in Opposition to the

Originating Summons before Court deposed to by the Respondent herself. It

was deposed to that the Applicant has been accepted and recognized by the

whole family as being a child of the family. She further stated that she had

verbally given an account to the Applicant of the remaining assets of the

deceased. That the Respondent was aware of the three houses, two in Chalala

and another in Mtendere East, 2 cars and a bus that is not in working

condition. Regarding the pension it was deposed to that the said money was

drawn and used by the deceased before he died. Further, that any remaining

amount was used for funeral expenses. The pension documents were exhibited

as exhibit "CN1". It was further deposed to that the houses in Chalala have

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been shared amongst the various beneficiaries. One house was taken by the

widow and the other house is rented out and the income shared out among the

beneficiaries. It was stated that the only properties to be shared are the house

in Mtendere East and 2 cars being the personal car belonging to the deceased

and the bus. It was stated that the Respondent did not have any trouble in

giving the Applicant what is due to him just as he had received his share of the

NAPSA contributions.
3. SUBMISSIONS

The Applicant filed into Court skeleton arguments in support of the

Originating Summons. The same were mainly to demonstrate that the

Originating Summons are premised on the law. That the Applicant is indeed

the son of the deceased. Further, that there was an error in distribution of the

estate taking into consideration Section 9(2) of the Intestate Succession Act

which relates to what happens when the estate includes more than one house.

It was concluded in the arguments that the Applicant is entitled to a share of

the estate commensurate to his age and educational needs. It was submitted

that considering the hostile environment in the family the Court is urged to

grant the orders for the Administrator to give a full inventory of the estate

within a specified time, account for the manner in which she has so far

distributed the estate and grant the applicant his full share commensurate with

his age and educational needs.

At the hearing of the proceedings, having satisfied myself that the Respondent

had been served with the Notice of Hearing for that day, I proceeded to invite

Counsel for the Applicant to argue the case. In so doing total reliance was

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placed on the Originating Summons, Affidavit in Support of the Originating

Summons and the skeleton arguments filed into Court and the prayers

contained therein.

4. LAW

The cause before the Court is premised on the Intestate Succession Act,

Chapter 59 of the Laws of Zambia. Of particular reference the provisions

5. (1) Subject to sections eight, nine, ten and eleven the estate of an intestate shall

be distributed as follows:

(a) twenty per cent of the estate shall devolve upon the surviving spouse; except

that where more than one widow survives the intestate, twenty per cent of the

estate shall be distributed among them proportional to the duration of their

respective marriages to the deceased, and other factors such as the widow

contribution to the deceased's property may be taken into account when justice so

requires;

(b) fifty per cent of the estate shall devolve upon the children in such

proportions as are commensurate with a child's age or educational needs or both;

(c) twenty per cent of the estate shall devolve upon the parents of the deceased;

(d) ten per cent of the estate shall devolve upon the dependents, in equal shares:

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Provided that a priority dependent whose portion of the estate under this

section is unreasonably small having regard to his degree of dependence on

the deceased shall have the right to apply to a court for adjustment to be made

to the portions inherited and in that case, Part III of the Wills and

Administration of Testate Estates Act shall apply, with the necessary

changes, to the application.

(2) In respect of a minor, the mother, father or guardian shall hold his share of

the estate in trust until he ceases to be a minor.

19. (1) The duties and powers of an administrator shall be-

(a) to pay the debts and funeral expenses of the deceased and pay estate
duty ifestate duty is payable;

(b) to effect distribution of the estate in accordance with the rights of the

persons interested in the estate under this Act;

(c) when required to do so by the court, either on the application of an

interested party or on its own motion-

(1) to produce on oath in court the full inventory of the estate of the

deceased and

(ii) to render to the court an account of the administration of the estate.

(2) Where an administrator considers that a sale of any of the property

forming part of the estate of a deceased person is necessary or

desirable in order to carry out his duties, the administrator may,

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with the authority of the Court, sell the property in such manner as

appears to him likely to secure receipt of the best price available for

the property.

42. On application in the prescribed manner, by an interested person, a

court shall have jurisdiction in relation to a deceased person's estate-

(a) to decide whether or not the deceased person died intestate;

(b) to decide what is the property to which the deceased person was

entitled at the date ofhis death;

(c) to decide how the distribution of the property forming part of a

deceased person estate should be carried out;

(d) to order the sale or other disposition of property belonging to a

deceased person's estate for the purpose of paying the debts of the
deceased orfor the purpose of distribution;

(e) to appoint a guardian in place of a guardian who has acted

improperly, or who has died.

Considering the nature of the claims contained herein it is important to here

further state the following provisions of the Intestate Succession Act in order to

put the issues in context:

8. Notwithstanding section five where the intestate in the case of a monogamous

marriage is survived by a spouse or child or both, the spouse or child or both of

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them, as the case may be, shall be entitled equally and absolutely to the personal

chattels of the intestate.

9. (1) Notwithstanding section five where the estate includes a house the

surviving spouse or child or both, shall be entitled to that house:

Provided that-

(a) where there is more than one surviving spouse or child or both they shall

hold the house as tenants in common; and

rb) the surviving spouse shall have a life interest in that house which shall

determine upon that spouse's remarriage.

(2) Where the estate includes more than one house the surviving spouse

or child or both shall determine which of the houses shall devolve

upon them and the remainder shall form part of the estate.

In the case of Gray Nachandwe Mudenda v Dorothy Chuleshe Mudenda

(2006) Z.R. 57(1) the Supreme Court held inter alia that:

2. "The duty of an administrator is not to enhance the estate, but to

an account"

This principle was restated in the case of Lindiwe Kate Chinyanta v Doreen

Chiwele Judith Tembo SCZ Judgment NO 28 of 2007(2) .

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5. ANALYSIS

Turning to the facts of this case it is clear that there is no dispute regarding the

following facts:

1) That the deceased George Nkhowani died intestate;

2) That the deceased was survived by one wife and children, who include the

Applicant herein;

3) That the Respondent was duly appointed as Administrator of the estate of the

deceased and has been distributing the Estate;

4) That the Estate includes among others 3 houses - 2 in Chalala and one in

Mtendere, some motor vehicles, pension benefits; and

5) That one house in Chalala is occupied by the widow while one house has been

rented out and the children share the proceeds of the rentals on a monthly

basis. As a result the Applicant has been receiving his share of K300.

The foregoing facts not being in dispute I find them as facts of this case.

Now, the issues in contention herein relate to the following:

1) how the houses, forming part of the Estate have been dealt with;

2) how money from the deceased Pension was distributed, and

3) failure by the Respondent to render an account for distribution of the Estate.

1. The houses
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The Applicant claims that the manner in which the distribution of houses was

done was erroneous. It was submitted that allowing the widow to pick one

house was contrary to the law. That the law provides that where there are

more than one house, one house shall devolve to the widow and children and

such house shall be held in common. That there is no provision of the law

that allows the surviving spouse to own the said house in exclusion of the

children. Clearly, this is the position of the law as provided in Section 9 of the

Intestate Succession Act. However, the said provision further goes to provide

that the surviving spouse shall have a life interest in the house. Also that

where the Estate comprises more than one house "the surviving spouse or the child

or both" shall determine which house shall devolve upon them and the others

shall form part of the Estate. From the foregoing it is clear that either the

surviving spouse or the child or both may decide which house devolves on

them to be held in common. The law does not state that this decision ought to

be made jointly by the spouse and child(ren). The law is deliberately couched

in such a manner. Had the drafters of the law intended that the decision was

to be a joint decision the wording would have been "and" and not "or". In

this case the liberty was given to the surviving spouse to determine which

house would devolve to her and the children to be held in common. Further,

no evidence has been put before the Court to state that the house is not held in

common by the surviving spouse and the children. According to the affidavit

evidence the surviving spouse actually surrendered the better located house in

order to allow the children rent it out for income to share. From this I deduce
that the surviving spouse resides in this house. Clearly, the mischief that was

being cured in ensuring that there is a house that devolves to the surviving

spouse and children was to avoid them being destitute in the event that even a

dwelling house is claimed as part of the general estate of the deceased. That is

ill I

why a surviving spouse is granted a life interest in a dwelling house only

extinguished if they remarry. I therefore find that there was no error in

allowing the surviving spouse to choose a house which she would occupy.

2. Distribution of the pension and rendering of account

There is a claim by the Applicant that he has been denied his share of the

pension payout which forms part of the Estate of the deceased. The evidence

of the Respondent as contained in the affidavit in opposition has attempted to

render an account of how the distribution of the pension payments was used by

the Administrator. The basic explanation is that the pension was drawn out by

the deceased before he died to meet some of his medical expenses. That

whatever was left of it at the time of his death was used to meet funeral

expenses. Clearly, this explanation by the Respondent has not been satisfactory

to the Applicant. It is for that reason that he has sought the Court's

intervention to order that the Respondent, in her capacity as Administrator of

the Estate, render an account for the distribution of the Estate. Section 19 (c)

of the Intestate Succession Act clothes the Court with jurisdiction not only to

order the Administrator to produce on oath in court the full inventory of the

estate of the deceased but also to render to the court an account of the

administration of the estate. I will therefore order that the Respondent,

on Oath in Court a full inventory of the deceased's estate within 60 days of

receipt of this Order.

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Further regarding an order that the distribution of the estate take into account

the age and educational needs of the applicant I will so accordingly order.

However, I will be prompt in stating that the Applicant cannot just make

general and sweeping demands for his tertiary educational needs to be met.

He needs to clearly state what these needs are. He also ought to be considerate

of the needs of all other beneficiaries as he makes his demands.

Before I conclude I also wish to touch on the issue of the motor vehicles.

Section 8 of the Act (cited above) clearly states how personal chattels ought to

be dealt with. Personal chattels are described in Section 3 of the Act as:

"clothing, articles of personal use or adornment, furniture and furnishing,

appliances, utensils and all other articles of household use or decoration, simple

agricultural equipment, hunting equipment, books, motor vehicles and

consumable stores but does not include chattels used for business purposes, money

or secu rities for money;"

It is therefore the duty of the Administrator to ensure that the surviving spouse

and children all draw an equal benefit from the vehicles that form part of the

Estate.

6. CONCLUSION

From the foregoing the Application by the Applicant succeeds as it relates to

the Administrator being ordered to render an inventory and account and to

take into account the age and educational needs of the Applicant. The Orders

are as contained in the body of the Judgment.

Owing to the nature of the case I will order that each party bears its own costs.

Leave to Appeal is granted.

Delivered at Lusaka this 10' day of February, 2020.

ll~~ -
C. LOMBE PIITRI

JUDGE

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