....

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 43 of 2022

HOLDEN AT LUSAKA
( Civil Jurisdiction)

IN THE MATTER OF: ORDER XXX RULE 12 OF THE HIGH

COURT RULES, OF THE HIGH COURT ACT,
CHAPTER 27, VOLUME 3 OF THE LAWS OF
ZAMBIA

IN THE MATTER OF: THE INTESTATE SUCCESSION ACT,

CHAPTER 59, VOLUME 5 OF THE LAWS OF
ZAMBIA

IN THE MATTER OF: THE ESTATE OF KANYUKA ZIMBA

BETWEEN:

YAMMIE ZIMBA (Sued in her capacity a� 5 FEB 2024 1 st Appellant

Administratrix of the estate of the late Kanyuka Zimba)

MARGARET ZIMBA (Sued in her capacity as 2nd Appellant

Administratrix of the estate of the late Kanyuka Zimba)

AND

CYNTHIA ZIMBA (suing in her capacity as Respondent

Surviving spouse of the late Kanyuka Zimba and
Guardian of Niza Zimba)

CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA

on 17 January and 16 February 2024

For the Appellants: Mr. Simunyola and Mr. Silwamba of

Eric Silwamba, Jalasi & Linyama Legal Practitioners
For the Respondent: Mrs. R.P Bwalya of Messrs Amani Legal Practitioners

JUDGMENT

SHARPE-PHIRI, JA, delivered the judgment of the Court.

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Legislation referred to:

1. The Matrimonial Causes Act, No. 20 of 2007

2. The Intestate Succession Act, Chapter 59 of the Laws of Zambia
3. The Matrimonial Causes Act of England, 1973
4. The Intestate Succession Rules, SI No. 38 of 2023
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5. The Wills and Administration of Testate Estates Act, Chapter 60 of the Laws o
Zambia

Cases referred to:

1. Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another
[2023} 3 WLR 189
2. Agro Fuel Investments Limited v Zambia Revenue Authority (Appeal 187 of 2008)
[2012] ZMSC 18
3. Lindiwe Kate Chinyanta v Doreen Chiwele & Judith Tembo (2007) ZR 246
4. Wilson Masauso Zulu v Avondale Housing Project (1982) ZR J 72

Other authorities:

1. Halsbury 's Laws of England, Butterworths, 4th Edition, Volume I 3

2. Rayden 's Law and Practice in Divorce and Family Law Matters, 14th Edition,
Volume I text, 1983 at page 316, paragraph J 33; Effect of Decree of Judicial
Separation

1.0 INTRODUCTION

1.1 This appeal challenges the judgment made by Chibbabbuka J of the High
Cou11 in Lusaka on 29 November 2021.

l .2 In the aforementioned judgment, the trial Judge determined that the

applicant, Cynthia Zimba (now referred to as 'the respondent') and Niza
Zimba ('minor') were beneficiaries entitled to the estate of the late
Kanyuka Zimba ('the deceased'). The Judge ruled that they should be given
their entitlements as the surviving spouse and dependant, respectively.

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1.3 In the initial segment of this judgment, the parties wiII be identified as they
were in the lower Court, with Cynthia Zimba as the applicant and Yammie
Zimba and Margaret Zimba as the 1st and 2 nd respondents respectively.

2.0 BACKGROUND

2.1 On 15 December 2016, the applicant initiated legal proceedings in the High
Court against the I st and 2 nd respondents.

2.2 After a Court ruling on 23 December 2019, the applicant submitted an

amended originating summons to the Com1 on 6 January 2020. The
amended summons sought the following reliefs against the I st and 2 nd
respondents:

i) An Order that the applicant and Niza Zimba (minor) are

beneficiaries of the estate of the Late Kanyuka Zimba.
ii) That the respondents produce an invento,y and account ofthe estate
of the Late Kanyuka Zimba as was distributed lo the beneficiaries.
iii) That the applicant be given her entitlements as surviving spouse
under the estate as provided by law.
iv) That Niza Zimba be given her entitlements as a dependant under the
estate as provided by law.
v) That the Letters of Administration be revoked if it is found that the
applicants ,nisappropriated the funds belonging to the estate of the
late Kanyuka Zimba.
vi) That the applicant be appointed Administrative I Co. Administratrix
of the estate of the late Kanyuka Zimba.
vii) Interest on amount claimed.
viii) Any other reliefs the court deems fit.
ix) Costs be borne by respondents.

2.3 The applicant submitted an affidavit in support of the originating summons

asserting that she legally married the deceased on 23 April 1994 at

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 Kansenshi Chapel in Ndola. They lived together as a maiTied couple from
23 April 1994 until 8 May 2014 when a decree of judicial separation was
issued by the Court, lasting for one year.

2.4 Throughout their marriage, the applicant and the deceased did not have
biological children together. However, they acted as co-guardians for Niza
Zimba (formerly known as Favour Mubanga) from when she was six
months old. On 1 July 2011, they were granted a committal order by the
Magistrates Court in Kabwe and plans were underway for them to formally
adopt the minor at a later stage.

2.5 On the 26 April 2015, while the judicial separation decree was still in
effect, the deceased died intestate. The sisters of the deceased, now the 1st
and 2nd appellants, were granted Letters of Administration on 20 May 2015
to administer the estate of the deceased.

2.6 The applicant fu11her asserted that the respondents, who had already
distributed the estate of the deceased, refused to recognize her as the
surviving spouse and neglected to acknowledge the minor as a dependant
of the deceased. Additionally, she claimed that the respondents failed to
allocate their entitled shares to them. The applicant sought an order for a
compehensive inventory and an account of the deceased 's estate.

2. 7 The respondents countered by filing an affidavit in opposition on 24

November 2021, sworn by the 2nd respondent as the administratrix of the
deceased's estate. In substance, she reiterated the details provided in the
affidavit in supp011 regarding the marriage, judicial separation and the
subsequent demise of the deceased while separated from the applicant.

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4.8 The deponent futher stated that after the death of the deceased, they were
appointed as administratrix of his estate. Subsequent to their appointment,
they identified the properties comprising the estate of the deceased, which
included:

i) Incomplete residential house situated at Stand No. 8533/34, Off

Munkoyo Street, Nkrumah Residential in Kabwe.
ii) Commercial Plot No. 3018, Kapiri Mposhi
iii) Motor Vehicle Toyota Noah registration number ABT 957.
iv) Terminal benefits from ZESCO Limited; and
v) Death benefits from Local Authority Superannuation Fund.

4.9 Regarding the incomplete residential house situated at Stand No. 8533/34,
Off Munkoyo Street, Kabwe, the 1st respondent stated that they enlisted the
services of Sandridge Associates, registered valuation surveyors, to assess
the value of the house in its incomplete state. Subsequently, they finished
the construction and furnishing of the house and then requested the valuers
to reassess value the property in its completed state. Two valuation reports
dated 16 October 2015 and 28 July 2021 respectively were presented as
exhibits, demonstraing the respective valuations of the property.

4.10 As for the commercial Stand no.3018 in Kapiri Mposhi, the I st respondent
indicated that they covered all the expenses related to the offer letter,
surveyor's costs, and transportation costs to and from Kapiri Mposhi. They
also facilitated the issuance of the ce11ificate of title for the plot, which was
granted on 10 March 2021 in the name of the deceased, and was exhibited
as such.

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4.11 Concerning the motor vehicle Toyota Noah with registration number ABT
957, the 1st respondent explained that before the deceased's passing, he had
acquired a loan of K24,000 from a money lender named Catherine
Namumba. To secure repayment of the debt, he had pledged the
aforementioned motor vehicle to her.

4.12 Regarding the terminal benefits, the pt respondent specified that they
had received amounts of K27 l ,302. l 4 and Kl ,085,208.54 from ZESCO
Limited as terminal benefits for the deceased. Additionally, they had
received death benefits from Local Authorities Superannuation Fund.

4.13 The 1st respondent asserted that the applicant and the deceased did not have
any biological children together. At the time of the deceased's demise, he
was survived only by a mother, Rhyness Zimba, and tvvo dependants,
namely Lauren Zimba and Niza Zimba.

4.14 The pt respondent fu1ther mentioned that they had sought legal advice on
the laws on distribution of the deceased' estate. Subsequently, they
proceeded to distribute a p01tion of the estate of the deceased to the
beneficiaries. Exhibits of the inventory and account of the deceased's estate
were presented. The 1st respondent also noted that they were awaiting the
outcome of the Court proceedings to distribute the remaining po1tion of the
estate.

4.15 In relation to their administration of the estate, the l 51 respondent provided

a deailed account of the entire estate as follows:

i) That the real property namely Stand No. 8533/34, Kabwe and Plot
No. 3018, Kapiri Mposhi remain part of the estate.

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 ii) That the Toyota Noah Motor Vehicle was sold for Kl 5,000 and the
funds were distributed as follows: Kl 2,000 was paid to Catherine
Namumba, the money lender in settlement of the debt of the
deceased; and K2,400 as 3 month's salary paid to the maid.
iii) That the death benefits from the Local Superannuation Fund in the
sum of K278, 111.61 had not been distributed.
iv) The terminal benefits from ZESCO had been distributed as follows:
- Kl 00,050 to Lauren Zimba as tuition fees payable to the
University of Zambia (representing 5% of her entitlement of
monies available).
- K93l ,4 l O distributed to Rhyness Zimba, the deceased's mother.
- K22,450 paid as legal fees.
- K6,000 paid as valuation fees.
- K20,400 paid for memorial luncheon and tomb stone.
- K3,500 paid to Niza Zimba for school fees.

4.16 The 1st respondent additionally stated that in the course of administering
the estate, they had rented out the fully constructed house located on Stand
no. 833/3 in Kabwe for a monthly fee of K2,000.

4.17 In summary, the 1st respondent claimed that the applicant was not a
beneficiary of the estate. They argued that the applicant's status as
surviving spouse was negated by the existingjudicial separation at the time
of the deceased' s death, preventing her from asserting a right and
entitlement as a surviving spouse of the deceased.

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3.0 DECISION OF THE LOWER COURT

3.1 After assessing the evidence presented by boh parties, the learned trial
Judge acknowledged that the applicant was legally married to the deceased
on 23 April 1994, and they were granted a judicial separation on 8 May
2014. The deceased passed away while separated from the applicant. Upon
reviewing the provisions of Section 35 ofthe Matrimonial Causes Act, the
Judge concluded that this section explicitly states that a judicial separation
does not impact the rights of the parties in their marriage; they remain
married for all intents and purposes. Consequently, the Judge determined
that there was no doubt that the applicant was the surviving spouse of the
late Kanyuka Zimba and, therefore, entitled to a share of his estate.

3.2 In relation to the child Niza Zimba, the Judge determined from the evidence
on record, that it was clear that Niza vvas been cared for by both the
applicant and the deceased before the latter's demise. Consequently, the
Judge ruled that Niza Zimba qualified as a dependant of the deceased and,
therefore, was entitled to a share of his estate.

3.3 The Judge went on to affirm that the applicant had successfully sustantiated
her claims as outlined in the amended originating summons, establishing
he entitlement to participate in the estate of the late Kanyuka Zimba. As a
result, the Judge concluded by issuing the following orders:

i) An order that the applicant and Niza Zimba are beneficiaries of the
estate of the late Kanyuka Zimba as surviving spouse and dependant
respectively.
ii) That the respondents produce an inventory and account of the estate
of the late Kanyuka Zimba as was distributed lo the beneficiaries
which is to befiled before this Court within 30 days of thisjudgment.

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 iii) That the applicant be given her entitlements as a surviving spouse
under the estate as provided by law which entitlements are to be
assessed by the Deputy Registrar.

iv) That Niza Zimba be given her entitlements as a dependant under the
estate as provided by law which entitlements are to be assessed by
the Deputy Registrar.

v) That the letters of administration be revoked if it is found that the

applicants misappropriated the funds belonging to the estate of the
fate Kanyuka Zimba.
vi) That in the event that the letters of administration are revoked the
applicant be appointed as administrator of the estate of the late
Kanyuka Zimba and in the event that the letters of administration
are not revoked then the applicant be appointed as Co­
Administratrix.

vii) Interest on the amount claimed at the average Bank of Zambia short
term deposit rate from the commencement of this action to the date
of this judgment, and thereafter at the current commercial bank
fending rate tiff the date offidl payment.

viii) Costs of this application to be borne by the respondents and to be

taxed in default of agreement.

4.0 APPEAL

4.1 Expressing dissatisfaction with the judgment delivered by Chibbabbuka, J

on 29 November 2021, the 1 st and 2nd respondents (now referred to as 'the
l 51 and 2nd appellants') initiated an appeal on 17 December 2021. This
appeal was filed by way of notice and memorandum of appeal against the
applicant, hereinafter referred to as 'the respondent'.

4.2 The appellants advanced three grounds of appeal as follows:

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 i) The learned Puisne Judge erred in law when she held that the
applicant Cynthia Zimba who was on Judicial Separation at the time
of Kanyuka Zimba 's death was a surviving spouse and therefore
entitled to the estate of Kanyuka Zimba (deceased).

ii) The learned Puisne Judge erred in law when she ordered the
appointment of the applicant as administratrix or co-administratrix
without examining her eligibility solely on the basis that she was the
surviving spouse of Kanyuka Zim.ba,· and
iii) The learned Puisne Judge erred in law and fact when she
pronounced on the revocation of the appellant's Letters of
Administration of the Joint Administratrix and the possible
appointment of the respondent as Administratrix or Co­
Administratrix before adjudicating on the administration of the
estate therein i.e. the inventory and distribution of the estate.

5 .0 ARGUMENTS OF THE PARTIES

5.1 The l 51 and 2nd appellants filed their heads of arguments on 24 February
2022. The Respondent's arguments arguments were filed on 9 November
2022.

6.0 HEARING OF THE APPEAL

6.1 The appeal was heard before us on 17 January 2024. Both parties were
represented by their respective counsel, as previously mentioned. Both
counsel on record relied on their respective as filed herein. Same will only
be referred to where necessary in our decision section.

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7.0 OUR DECISION ON THE APPEAL

7.1 We have thoroughly reviewed the judgment of the learned trial Judge,
taking into account her considerations, findings, and the evidence
presented on record, along with the arguments of the parties.

7.2 In their first ground of appeal, the appellants assert that the learned Puisne
Judge erred in law by determining that the applicant, Cynthia Zimba, who
was on judicial separation at the time of the deceased Kanyuka Zimba's
death, qualifies as a surviving spouse and is consequently entitled to the
estate of the deceased.

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7.3 The appellants contend that the trial Court's interpretation of Section 36 o
the Matrimonial Causes Act was flawed. They argue that the Legislature's
intention in formulating Section 36 was to establish a legal fiction of the
death of the other spouse concerning devolution of prope1ty when one
party to a marriage or former marriage dies during the continuaion of a
decree of judicial separation.

7.4 The appellants argued that the law safeguatds the rights, obligations, and
benefits of man-ied individuals during the subsistence of the ma1Tiage.
Hov,1ever, they contend that this protection does not extend to situations
where either party to a man-iage dies intestate while a decree of judicial
separation is in effect. They sressed that, in such cases, the property of the
deceased person devolves as if the deceased had outlived the other patty.

7.5 The appellants further emphasized that this legal stance finds support in
Halsbury's Laws of England, 4t1, edition, volume 13, page 326 at

Jll
 paragraph 649, and is also re-einforced by the learned authors of Rayden 's
Law and Practice in Divorce and Family Law Matters, 14th edition,
volume 1, text,1983 at page 316, paragraph 133, Effect of Decree of
Judicial Separation.

7.6 The respondent, in her heads of argument, contended that the trial Cou1t
was justified in concluding that she was the surviving spouse of the
deceased Kanyuka Zimba. This determinaion was based on the fact that
their man-iage had not been dissolved, and she was encompassed as a
surviving spouse and beneficiary by the definition of 'marriage' under
Section 3 of the Intestate Succession Act. The respondent argued that
Section 35 ofthe Matrimonial Causes Act only suspends the obligation to
cohabit while the decree of judicial separation is in effect but does not
impact the continuation of the marriage, status, rights, and obligations of
the parties involved.

7.7 Regarding the provisions of Section 36(1) of the Matrimonial Causes Act,
the respondent supported the trial Judge's conclusion that she qualified as
a surviving spouse in the eyes of the law. As such, she asserted her
entitlement under the deceased's estate, regardless of the ongoing decree
of judicial separation at the time of the deceased 's death.

7.8 It is undisputed that Kanyuka Zimba passed away intestate while a decree
ofjudicial separation from the respondent, granted by the High Court, was
in effect.

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7.9 The resolution of the primary issue raised in the first ground centers on the
interpretation of the provisions of Sections 35 and 36(1) of the
Matrimonial Causes Act, which are restaed below for reference:

"35. A decree of judicial separation relieves the petitioner from

the obligation to cohabit with the other party to the marriage
while the decree remains in operation, but e.xcept as
provided by this Part, does not otherwise affect the marriage
or the status, rights and obligations of the parties to the
marriage.
36. (1) Where a party to a marriage dies intestate as to any
property while a decree ofjudicial separation is in operation
that property shall devolve as if that party had survived the
other party to the marriage."

7.10 A preliminary analysis of these prov1s1ons collectively indicates that

Sections 35 relieves the parties to a marriage of their duty to cohabit as
man and wife during the continuance of a decree for judicial separation.
However, the marriage itself persists for all practical purposes, and the
status, rights and obligations of the parties remain unaltered, except as
specifically outlined in the relevant section of the Matrimonial Causes Act
(Part VI of the Act).

7.11 Section 36(1) of the said Act, incorporated wih Part VI, outlines the
procedures for the devolution of property when a pa11y to a marriage dies
intestate during the existence of a decree of judicial separation. This section
explicitly dictates that 'that property shall devolve as if that party
[deceased] had survived the other party [respondent] to the marriage'.

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7.12 In the hierarchy of provisions, Section 35 is subordiante to Section 36(1)
since Section 35 expressly subjects its stipulations to other provisions
within Part VI of the Matrimonial Causes Act. Notably, Section 36(1) is
highly specific and intentional in delineating the legislative intentions
concerning the devolution of property during the coninuance of a decree of
judicial separation.

7 .13 Our interpretation of Section 36(1) ofAct is that if one of the parties to a
marriage dies intestate while a judicial separation is in effect, the
distribution of the estate of that deceased party will occur as if the surviving
spouse had predeceased them. Consequently, the estate of the deceased will
be allocated among the remaining relatives of the deceased, adhering to the
Intestacy Laws of the country.

7.14 Despite its seeming inequity, the legislation underscores the repercussions
on the distribution of the estate when a judicially separated person dies
intestate. The provision finds its origins and foundations in the English
Common Law. The learned authors of the Halsbwy's Laws of England,
4th Edition, volume 17, state in relaion to the issue of surviving spouse at
paragraph 943 that: 'In the case of deaths on or after JS' August 1970 the
effect ofa decree ofjudicial separation is the same as that of divorce: the
surviving spouse is excluded from all interest in the other's property, and
grants ...

7.15 Likewise, Section 18(2) of the Matrimonial Causes Act of England, 1973
(from which our Act has drawn extensively) stipulates that:

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 "If while a decree of judicial separation is in force and the
separation is continuing either of the parties to the marriage dies
intestate as respects all or any of his or her real or personal
property, that property devolves as if the other party had then been
dead."

7 .16 More recently, in the English Courts, Lord Leggatt, concurring with the
majority decision in the U.K. Supreme Court case of Unger and another
(in substitution for Hasan) v UI-Hasan (deceased) and another 1
expressed his opinion on this provision as follows:

'The complex interplay between Part III (and the 1973 Act) on the
one hand and the Inheritance Act on the other also means that
reform aimed at remedying the injustice that results from the
limited ability to make a financial order after either party to the
marriage has died would require an overall view to be taken of
both legislative regimes and of how they do, and should, interact.
Only Parliament is competent to undertake that task and to make
and implement the policy choices that would be involved. It is not
open to this court to cut the Gordian knot and achieve a solution
by interpretation of the existing statut01y provisions.'

7.17 While this provision may appear inequitable, courts are not empowered to
interpret it differently from what has been explicitly legislated. Regarding
the role of courts in statutory interpretation, the Supreme Court, in the
context of this case, affirmed the primiary role of the courts in the case of
Agro Fuel Investments Limited v Zambia Revenue Authority2. In that
case, the apex cout held that:

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 "According to decided cases, the duty of the Courts in the
interpretation of statutes is to give effect to the intention of the
f
Legislature. And the primcuy rule of interpretation o statutes is
that the meaning of any enactment is to be found in the Literal and
plain meaning of the words used, unless this would result in
absurdity, in which case the Court's authority to cure the absurdity
is limited... "

7.18 Our interpretation is that Section 36(1) of the Matrimonial Causes Act is
plain, clear and unambiguous regarding the legilstature's intention on the
course of action concerning the property of a party who dies during the
continuance of a decree ofjudicial separation. Until legislation changes to
stipulate otherwise, the Courts are bound to interpret the provision
according to its plain meaning.

7.19 Based on the above analysis, we conclude that the trial Judge's
interpretation of the provisions of Section 35 and 36(1) of the Matrimonial
Causes Act, and her subsequent detemination regarding the devolution of
the deceased's assets, asserting that the respondent was the deceasect·s
surviving spouse, while the decree of judicial separation was in effect,
lacks legal foundaion. Ground 1 of appeal is therefore successful.

7.20 Accordingly, in addressing ground 2 of the appeal, the appellants argue

that the learned Puisne Judge erred in law by directing the appointment of
the respondent as administratrix or co-administratrix without scrutinizing
her eligibility solely on the grounds that she was the surviving spouse of
Kanyuka Zimba.

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'

7.21 Counsel for the appellants contended under this ground that, while Section
15 of the Intestate Succession Act allows a Court to issue letters of
administration to a person with an interest in an intestate estate, the trial
Judge was obligated to consider the criteria and qualification for appointing
the respondent as personal representative of the deceased estate in this case.
Counsel argued that the trial Judge's decision to appoint the respondent as
a co-administratrix was erroneous and lacked legal support, as a spouse
does not take precedence over other interested parties in the estate.

7.22 Reference was made to the case of Lindiwe Kate Chinyanta v Doreen
Chiwele Judith Tembo3 , where Mumba, JS (as she was then) expressed
her opinion that, although in some cases widows or widowers may be
appointed as administrators, there is nothing in the Act to suggest that a
surviving spouse has priority eligibility for the position of an administrator.

7.23 The respondent argued in response to this ground that the trial Court having
correctly determined that the respondent was a beneficiary under the
deceased's estate, appropriately appointed her as co-administrator of the
estate. The respondent further asserted that the criteria for appointment as
administrator are stipulated by law, noting that Section 15(2) of the
Intestate Succesion Act specifies that the Court should consider greater
and immediate interests in the deceased's estate as a priority over lesser or
remote interests. The appointment of the respondent as co-administrator,
according to the respondent, safeguards her interest in the estate as a
surviving spouse.

7.24 In our opinion, Courts have the responsibility to assess the suitability of a
personal representative appointed to administer the estate of a deceased

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 person. Some key factors to consider include trustworthiness, good
standing, integrity, honesty, and accountability of the person chosen as a
personal representative. Additionally, the availability to discharge and
oversee the functions of the office of the administrator should be taken into
account. These considerations should exist independently of the legal
qualifications for one to be appointed as administrator of the estate. This is
the rationale for requiring an intending administrator to provide guarantees,
typically in the form of a bond, so that they can be held accountable for
their actions as administrators of the estate. For this reason, Section 50(10
of the Wills and Adminsitration of Testate Estates Act provides that:

"As a condition of granting letters ofadministration to any person,

a court may, subject to subsection (4), require one or more sureties
to guarantee, within any limit imposed by a court, any loss which
any person interested in tile administration of an estate may incur
in consequence of a breach by the administrator of his duties as
such."

7.25 Alhough the Wills Act does not apply to intestates estate, the rationale for
considering the personal attributes of an intending administrator applies
mutatis mutandis to intestate estates as it does to testate estate.

7.26 A review of judgment of the lower Court indicates that the trial Court
referred to the provisions of Sections 35 and 36(1) of the Matrimonial
Causes Act. After reproducing the said provisions as shown at page 21 of
the record of appeal (page JI O of the Judgment) the trial Court concluded
as follows:

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 "There is no doubt therefore that the applicant in this case is
entitled to her share in the case of the late Kanyuka Zimba as she
is the surviving spouse and as such I agree with Counsel for tire
applicant's argument on this score."

7.27 From the above, it is evident that the only basis for the Court's order to
appoint the respondent as a co-administrator is the court's mistaken
conclusion that the respondent was the deceased 's surviving spouse, and
nothing more. This position is flawed as the court should consider more
factors than just the legal attributes and interests of a potential
administrator in the estate, as outlined in the Act. This seems to align with
the reasoning of the Supreme Court in the Lindiwe Kate Chinyanta case
cited above. The cou11 must ensure that an applicant, upon being granted
letters of administration, has the ability to carry out the functions of that
office prudently, diligently, effectively and efficiently.

7.28 In light of our decision in ground 1, we believe that the respondent, in any
case, does not have an interest in the property of the deceased's estate to
warrant her consideration for appointment as administratrix in the said
estate. This is because she is not a surviving spouse for the purposes of
Section 36(1) as discussed earlier. Therefore, this ground of appeal
succeeds based on the fact that the trial Court failed to make other
considerations on the suitability of the respondent as co-administrator of
the deceased's estate.

7.29 The appellants, under the third ground of appeal, contend that the lower
Court erred by pronouncing on the revocation of the appellant's letters of
administration and possible appointment of the respondent as co-

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 administratrix before adjudicating on the administration of the estate,
specficically the inventory and distribution thereof. The appellants argued
that the trial Judge's order regarding the revocation of the letter of
administration was inconclusive and transient, as it did not address all the
issues in controversy. They claim that the trial Court, despite finding that
the deceased died while the decree of judicial separation between him and
the respondent was subsisting, misinterpreted Section 36 of the
Matrimonial Casuses Act by concluding that the respondent was the
deceased's surviving spouse and entitled to share in his estate. The
appellant asse1ts that if the trial Court had considered their arguments
before it, it would not have arrived at the conclusion it did. They contend
that the primary function of the cou1ts is to adjudicate on all issues in
controversy to bring finality to disputes between parties.

7.30 In response to the appellant's argument under the third ground of appeal,
the respondent contends that the trial Court properly adjudicated the matter
when it pronounced itself on the revocation of the appellant's letters of
administration. The respondent refers to Section 29(1) of the Intestate
Succession Act, which provides for circumstances under which letters of
administration may be revoked. It is argued that the appellants improperly
administered the deceased's estate by omiting to consider the respondent
as surviving spouse, thus violating the provisions of Section 5 of the
Intestate Succession Act and depriving her of her rightful share in the
estate. The respondent asserts that the trial Court was well within its powers
to order the revocation of the appellants' letters of administration.

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. .

7.31 For this ground of appeal, the Court references respondent's claim, as
outlined in the originating summons filed in the lower court and recast in
the judgment of the trial court at page 14 of the record. The claim was

"(v) That the Letter of Adminstration be revoked if it is found that

the applicants misappropriated the funds belonging the the estate
of the late Kanyuka Zimba"

7.32 By that claim, the trial Court went on as shown at page 15 of the record of
appeal, to consider the respondent's evidence, which suggested that the
appellants had neglected to recognize respondent and the minor (N iza) as
the beneficiaries of the estate. The Court thus went on to determine that the
appellants had mal-administered the deceased's estate. The respondent's
Counsel suggested that there were no children or parents of the deceased
under the estate in issue, this is as contained at page 17 of the record of
appeal and 16 of the judgment of the trial Court.

7.33 A perusal of the record, pa1ticularly starting with the judgment of trial
Comt as shown at page 120 of the record of appeal, the Court stated as
follows:

"The respondents have not filed an affidavit in opposition neither

has their Counsel filed into Court heads of arguments and
submissions despite being given an opportunity to do so. At the last
sitting on the 3rd June 2021 the respondent's Counsel was given up
to the 24th June 2021 to file in their affidavit in opposition and
submissions while the applicant's counsel was given up to the 8th
July 2021. Leave was granted to the applicant to filed their reply

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.. . . .
to the respondent's submissions. Both parties indicated that the
matter could be resolved on affidavit evidence. In view of this
position taken by the parties, I shall proceed to render a Judgment
based on the documents before this Court."

7.34 The trial court issued a judgment on 29 th November 2021, without taking
into consideration the appellant's response, which included an affidavit in
opposition and heads of arguments. This decision seems to be based on the
appellant's failure to submit the said documents by the specified deadline
of 24th June 2021, as directed by the Court's order on 3 rd June 2021.

7.35 Despite the Court proceeding in that manner, the record also shows that the
appellants had filed their affidavit in opposition to the originating summons
and skeleton arguments on 24th November 2021. Given that the appellants
had been allowed to file the same before Court, whether erroneously or
otherwise, the trial Judge should not have proceeded on the premise that
the appellants had failed to file their affidavit in opposition and heads of
arguments. The trial Court should have first addressed the issue of the
appellant filing the affidavit in opposition late, either by striking it off the
record, reprimanding the appellants with costs, or addressing any
inconvenience caused by the late filing of the documents. However, the
court proceeded swiftly as though the documents had not been filed before
it. We, therefore, assume that these documents were not placed before the
trial Judge at the time she was rendering her decision.

7.36 Furthermore, upon reviewing the claim under (v) in the originating
summons below, it appears that the respondent was seeking the revocation
of the letters of administration granted to the appellants, specifically if it

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 was determined that the appellants had misappropriated the funds of the
estate. This implied that revocation was to be considered only after the trial
Court had made a determination on the propriety of the adminsitration of
the estate's fund.

7.37 A careful examination of the record, especially pages 149 to 152 conaining
the extract of the appellant's affidavit in opposition, confirms the detailed
account provided by the appellants regarding the distribution of the estate.
According to the affidavit, the estate remained largely undistributed, with
the appellants making payments for essential expenses such as salaries,
school fees, and professional fees. Additionally, the affidavit includes a
comprehensive inventory outlining how the appellants have managed the
assets of the estates under their adminsitration. The inventory, along with
supporting documents where applicable, is presented on pages 222 to 224
of the record of appeal.

7.38 Inspite of the foregoing account, the trial Court at page 24 of the record of
appeal adjudged at page J13 of its Judgment as follows:

"Having so found, I am satisfied that the applicant has not only

proved her claims as outlined in the originating sumoons as
amended on the 6th January 2020 but is also entitled to participate
in the administration of the estate of the late Kanyuka Zimba and
hereby order and grant as follows:

i) An order that the applicant and Niza Zimba are

beneficiaries of the estate of the Kanyuka Zimba as
surviving spouse and dependant respectively.

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ii) That the respondents produce an inventory and account of
the estate of the late Kanyuka Zimba as was distributed to
the beneficiaries which is to befiled before this Court within
30 days of this judgment.

iii) That the applicant be given her entitlements as a surviving

spouse under the estate as provided by law which
entitlements are to be assessed by the Deputy Registrar.

iv) That Niza Zimba be given her entitlements as a dependant

under the estate as provided by law which entitlements are
to be assessed by the Deputy Registrar.

v) That the letters of administration be revoked if it is found

that the applicants misappropriated the funds belonging to
the estate of the late Kanyuka Zimba.

vi) That in the event that the letters of administration are

revoked the applicant be appointed as administrator of the
estate of the late Kanyuka Zimba and in the event that the
letters of administration are not revoked then the applicant
be appointed as Co-Administratrix.

vii) Interest on the amount claimed at the average Bank of

Zambia short term deposit rate from the commencement of
this action to the date of this judgment, and thereafter at the
current commercial bank lending rate till the date of fu/1
payment.

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 viii) Costs of this application to be borne by the respondents and
to be taxed in default of agreement."

7.39 Based on the analysis, we concur with the appellant's argument that the
trial Judge made an inconclusive and unclear order regarding the
revocation of the appellant's letters of administration as she merely
reproduced the reliefs that were being sought by the respondent in her
originating summons in the Court below. The trial Judge seems to have
replicated the reliefs sought by the respondent in her originating summons.
However, we do not fully align with the appellants' assertion that the trial
Court would have arrived at a different conclusion had it considered the
documents filed by the appellants. It must be mentioned that the appellants
had in fact filed the same documents in breach of the Court's order
requiring the same to have been filed by 3 June 2022, the appellants instead
filed the said documents 5 months after due date without leave of the Court.
This may have been the reason the trial Judge proceeded without taking the
appellants'doucments into account.

7.40 Given the considerations outlined above, we conclude our assessment of

this ground by refening to the well-esablished principle raised by the
Supreme Court in the case of Wilson Masauso Zulu v Avondale Housing
Project4, which emphasized that:

"I would express the hope that trial Courts will always bear in mind
that it is their duty to to adjudicate upon every aspect of the suit
between the parties so that every matte in controversy is
determined."

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7.41 This ground of appeal, therefore, does not succeed due to the fact that the
trial Judge issued unclear orders regarding the appellants' letters of
administration and the appointment of the respondent, as co-admnistratrix
of the estate without considering the evidence and arguments of the
appellants filed on 24th June 2021. Furthermore, the trial Cou11 pronounced
its unclear decision without dete1mining the fate of the appellnats'
evidence in relation to its late filing into Court. Justice must not only be
done, but must be seen to be done.

8.0 CONCLUSION

8.1 In conclusion, the 1 st and 2 nd appellants having succeeded in 2 out of the 3

grounds of appeal raised, we accordingly allow the appeal and make the
following orders:

i) The decision of the Court below that the respondent is a beneficiary

of the estate of the late Kanyuka Zimba as a surviving spouse, and
that she be given her entitlement as a surviving spouse, as provided
by law, to be assessed by the Deputy Registrar, is hereby set aside.

ii) The decision of the trial Court below, stating that the minor Niza
Zimba is a beneficiary of the estate of the late Kanyuka Zimba as a
dependant, and that she should be given her entitlement as a
dependant under the estate, as provided by law, to be assessed by the
Deputy Registrar, is upheld. This should be done considering that
the minor has a long-life dependence on the assets of the deceased,
owing to her age and educational needs.

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iii) The Order appointing the respondent as co-administratrix of the
deceased 's estate on the premise that she is the survising spouse is
also set aside. However, by order of this Court, she is re-appointed
as co-administratrix of the estate together with the appellants and the
Administrator General on account of her being the next friend and
guardian to the minor beneficiary, Niza Zimba.

iv) That the order of the lower Court awarding interest on amounts
claimed be and is hereby set aside.

v) The appellants are directed to produce an up-to-date account of their

administration of the estate. This account should be availed to all
beneficiaries, co-administrators and the Deputy Registrar within 60
days from date of this judgment.

vi) That despite the appeal being largely successful, each party will bear
its own costs as the appellants failed to disclose that the affidavit in
opposition and skeleton arguments were not filed into the lower
Court within the prescribed timeframe contrary to the directive of
that Court.

C.K. Makungu
COURT OF APPEAL JUDGE

�rpe-Phirr-
COURT OF APPEAL JUDGE

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