Michal Piort Franciszek Leja (Sued in his capacity as Administrator of the Estate of the late Artemis Vassiliki Benos Leja) v Mercy Maria Benos (Suing in her capacity as beneficiary in the Estate of late Artemis Vassiliki Benos Leja) (APPEAL NO. 406 OF 2023) (1 August 2024) – ZambiaLII

IN TIIE COURT OF APPEAL OF ZAMBIA , -- APPEAL NO. 406 OF 2023 /; HOLDEN AT LUSAKA , / \- - ·--/"\ ~ J,.J -) (CTvilJurisdidionJ \ \ 0 1 b"S ZUL~ (JJ. IN THE MATTER. OF: SECTION 7-- OF THE ~- ATE SUCCESSION ........... ..____ ACT, CHAPTER. 59 OF THE LAWS OF ZAMBIA. IN THE MATl'ER. OF: ORDER. 30 RULE 12 (a) (c) (e) (g) AND 13 (b) (d) OF THE HIGH COURT RULES, CHAPTER.270FTHELAWS OF ZAMBIA. IN THE MATTER. OF: ANA PPUCA'I7ONTO BE CONSIDERED AS BENEFICIARY OF THE ESTA'IE OF THE LA'IEAR'IEMIS VASSIUKI BENDS.LEJA. INTHEMATI'ER. OF: THE ESTATE OF THE LATE ARTEMIS VASS1LIKI BENOS L&JA WHO DIED INTESTATE ON lSJH APRIL 2022. INTHEMATI'ER.OF: PROPERTY MJ. F/llOA/165, V1UA EL1ZABETHA, LVSAKA, PROPER'IY NO. WS/4714, WmACRES LUSAKA AND SUB 7 OF SUB'~" OF FARM NO. 396A, MAKENI LUSAKA BETWEEN: MICHAL PIORT FRANCISZEK LEJA APPELLANT (Sued in his capacity as Administrator of the Est.ate oft he late Artemis VCl.fflliJci Berws Leja) AND MERCY MARIA BENOS (Suing in her capacity as RESPONDENT beneficiary in the Estate of late Artemis Vassiliki Benos Leja) J2 CORAM: Chashi, Sichinga and Sharpe-Phiri, JJA ON: 19th June and 1st August 2024 For the Appellant: (1) I.E Suba, (Ms) Mesdames Suba Tafeni & Associates (2) G.D. Chibangula, Messrs G.D.C Chambers For the Respondent: R. Msoni and J. Sichisambwa, Messrs Abercon Chambers JUDGMENT CHASHI JA delivered the Judgment of the Court. Cases referred to: 1. David Ojah Malembe v Thomas Ndonyo - SCZ Judgment No. 22 of 2013 (Appeal No. 60 of2 011) 2. WilsonMasauso Zuht v Avondale Housing Project Limited (1982) ZR, 3. Rosemary Musa Phiri (Suing as Administratrix and benefi.ciary of the Estate of the 'late Charles David Phiri} v Comfort Lozililo Phiri and Another-HP 593/2023, ZMHC 9 (13th February 2014) 4. Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprises -SCZ Judgment No. 4 of 1999 5. Nkumbu'la Nkwilimba (Suing as Administrator of the Estate of the 'late Killian Nkwilimba) v Humphrey Salwanja -HP/590/2014, ZM HC, 174 (23rd July 2014) -(2014) ZR, Vol 1, 135 Legis'lation refetTed to: 1. The Intestate Succession Act, Chapter 59 ofL aws ofZ ambia J3 2. The Companies Act, No 10 of 2017 Rules referred to: 1. The High Court Rules, Chapter 27 oft he Laws ofZ ambia Other Works referred to: 1. Black's Law Dicti.onary, 8'1t Editi.on 2. Halsbury's Laws ofE ngland, 4J1t EditiDn Volume 44 (1) 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Kenneth Mulife, J as he then was, which was delivered on 7th February 2023. 1.2 In the said Ruling, the learned Judge held that, the Respondent herein, who was the applicant in the court below, was the deceased's near relative and pursuant to Section 7 (f) of The Intestate Succession Act1 a beneficiary , in the Estate of the late Artemis Vassiliki Benos Leja (the deceased). 2.0 BACKGROUND 2.1 The deceased died intestate on 18th April 2022, leaving no children, parents, brothers, sisters or dependants. The Appellant was the surviving spouse. The Respondent is the J4 deceased's niece and she and her brother Alex are the only known surviving relatives. 2.2 On 8th September 2022, the Respondent commenced an action by way of originating summons, pursuant to Order 30 / 12 (a) (c) (g) and 13 (b) of The High Court Rules1 (HCR) and Section 7 (f) of The Intestate Succession Act1 (the Act), claiming the following reliefs: (i) An Order that Mercy Benos, as a near relative (niece) of the late Artemis Vassiliki Benos Leja is a beneficiary in the Estate of the late Artemis Vassiliki Benos Leja and an Order that the Respondent has wrongfully and willfully deprived the applicantfrom enjoying her share or interest in the said estate; (ii) An Order that the applicant as near relative (niece) is entitled to her interest in property No. F/ 11 Oa/165, Villa Elizabetta, Lusaka, 33,500 shares in Michalangelo Investments Limited, property No. Lus/47 14, Longacres, Lusaka and Sub 7 of Sub 3 of Sub 'A' of Farm No. 396a, Makeni, Lusaka, forming part of JS the Estate of the late Artemis Vassiliki Benos Leja; (iii) An Order that the Applicant as near relative (niece) is entitled to her interest in the majority 33,500 shares owned by the late Artemis Vassiliki Benos Leja in the company, Michalangelo Investments Limited, which company is the beneficial owner of property No. Lus/4 714, Longacres, Lusaka, forming part of the Estate of the late Artemis Vassiliki Benos Leja; (iv) An Order be made as to how property No. F/l lOa/165, Villa Elizabetta, Lusaka, 33,500 shares in Michalangelo Investments Limited, Property No. Lus/4 714, Longacres, Lusaka and Sub 7 of Sub 3 of Sub 'A' of Farm 396a, Makeni, Lusaka, forming part of the Estate of the late Artemis Vassiliki Benos Leja will be distributed or in the alternative an Order that the said properties be sold and the proceeds thereof be distributed in accordance J6 with Section 7 {fl of The Intestate Succession Act; (v) An ex-parte order of interim injunction restraining the Applicant, by himself, his agents, servants or representative from mismanaging and/or disposing of properties being property No. F/11 0a/165, Villa Elizabetha, Lusaka, 33,500 shares in Michalangelo Investments Limited, property No. Lus/47 14, Longacres, Lusaka and Sub 7 of Sub 3 of Sub 'A" of Farm No. 396a, Makeni, Lusaka, forming part of the Estate of the late Artemis Vassiliki Benos Leja until determination of this matter by this honourable court; (vi) An Order that the Applicant as near relative (niece) is entitled to her interest in the assets forming part of the Estate of the late Artemis Vassiliki Benos Leja; (vii) An Order that the Respondent render an account relating to the estimated ZMW : J7 20,000,000.00 estate of the late Artemis Vassiliki Benos Leja from the time he assumed office as administrator of the said Estate and that all the assets found to be forming part of the Estate of the late Artemis Vassiliki Benos Leja be sold and the proceeds thereof be distributed in accordance with The Intestate Succession Act; (viii) Further or other relief that the court shall deem fit. 2.3 According to the affidavit in support, the Estate of the late Artemis Vassiliki Benos Leja (the estate) was estimated at the value of K20,000,000.00 and comprised of the following real property; (i) Property No. F/11 0(a)/165, Villa Elizabetha, Lusaka; · (ii) S/D 7 of S/D 3 of S/D A off arm 396a Makeni, Lusaka 2.4 The movable property consists of 33,500 ordinary shares in a company known as Michalangelo Investments Limited, (the Company) which owns various assets JS including real property namely, No. Lus/4714, Longacres, Lusaka. 2.5 The application was opposed by the Appellant, who in his affidavit in opposition asserted that the Company was co owned by the deceased and the Appellant. That he is the sole surviving spouse and that the Respondent was not a beneficiary in the Estate because she is not the deceased's relative. 2.6 It was further averred that the Respondent was not a near relative within the meaning of the Act and as such she had failed to show her claim of right. 3.0 DECISION OF THE COURT BELOW 3 .1 After considering the affidavit evidence and the submissions by the parties, the court below (the court) made a finding that the deceased died intestate and that therefore the Estate stood to be administered 1n accordance with Section 4 (1) of the Act. 3.2 The court further opined that the Appellant was the surviving spouse and Administrator of the Estate. That the Respondent's late biological father, Apostolos Theodore Dimitris and the deceased, were siblings born of the same J9 parents. Therefore, the learned Judge concluded that the Respondent was the deceased's niece. Further, that the deceased left no child, parent nor dependants. 3.3 According to the court, what was in dispute was whether the Respondent was a near relative within the meaning of Section 7 (f), as read with Section 3 of the Act, for purposes of benefitting in the Estate. That in the present matter, the question was whether the Respondent, as a niece was a near relative. 3 .4 After examining Section 3 of the Act, the court found that the term niece was not expressly mentioned in the definition of near relative or the term issue. That however, the definition of both issue and near relative includes the term remoter descendant. That therefore the answer to the question if a niece is a near relative within the meaning of Section 3, lay in construing a remoter descendant. 3.5 After looking at the definition of descendant in Black's Law Dictionary1 the learned Judge opined that the , Legislature envisaged a broad, as opposed to a narrow classification of a deceased person's descendants. That thus the Legislature envisages not only descendants in the JlO strict sense such as children, grandchildren and great grandchildren, but also collateral descendants such as nieces and nephews. 3.6 The learned Judge opined that the broad classification of descendants was a result of the legislature's recognition of the entrenched extended family culture in many Zambian communities. The learned Judge then went on to state as follows at page R34: "Further I am of the view that adopting the narrow classification of a descendant as suggested by the Respondent would imply that an Estate would be rendered bona vacantia, even where there are nephews and nieces provided there is no priority beneficiary or persons specifically mentioned in the definition of near relative and issue under Section 3 of the Act." 3.7 The learned Judge found merit in the Respondents arguments and ruled that she was the deceased's near relative and the deceased having left no child, parent and dependant, she was pursuant to Section 7 (f) of the Act, a beneficiary in the Estate. Further, that by the provisions, Jll the combined portion that would have been inherited by the children, parent and dependant, namely 80% of the Estate, shall be shared equally by the Respondent and the Appellant. 3.8 The court then proceeded to determine the deceased's Estate which was amenable to distribution in accordance with Section 7 (f) as follows: (i) The 33,500 shares in Michalangelo Investments Limited - The shares belonging to the deceased, being personal property in accordance with Section 190 (1) (2) (b) of The Companies Act were amenable to distribution in the portions highlighted under Section 7 {/} of the Act. (ii) It was ordered that in default of agreement, the Appellant and the deceased's respective portions in the stated 33,500 shares were to be assessed by the learned Registrar; (iii) S/D 7 of S/D 3 of S/D A of Farm 395a Makeni, Lusaka, was found to be the matrimonial home and by virtue of being the deceased's J12 surviving spouse, he had a life interest determinable upon remarrying or death; (iv) Property No. Lus/4714, Longacres Lusaka - The property owned by Michalangelo Investments Limited, the learned Judge opined that the deceased had an indirect interest in the property by virtue of her shares. That therefore the Appellant could not deal with the property in a manner he deemed fit such as disposing it off as a sole director of the company; (v) Property No. F/11 Oa/165, Villa Elizabetha, Lusaka, the court was of the view that it formed part of the Estate and should be distributed between the Appellant and Respondent in accordance with Section 7 {fl of the Act. (vi) That the property in Villa Elizabetha and the shares should be valued by a valuer jointly chosen by both parties, in default, the -. J13 valuation is to be conducted by a Government valuer; (vii) That once valued, the two properties shall be sold and the proceeds thereof shared in accordance with the provisions of Section 7 {fl of the Act. That however, a party with financial capacity shall be at liberty to buy off the other shares; (viii) To facilitate for the distribution of the properties in issue, the court ordered that the injunction which was earlier granted be sustained. 4.0 THE APPEAL 4.1 Disenchanted with the Ruling, the Appellant has appealed to this Court advancing the following grounds: (i) The honourable court below erred in law and fact when it held that the Respondent herein is a near relative; (ii) The honourable court below erred in fact and law when it made a determination to the effect that the properties and company shares in -. J14 Michalangelo be valued and disposed off without making any further order as to why or how the valuation was to be paid for and from which funds; (iii) The honourable court below erred in law andfact when it did not take into account or make any allowance for estate debts and statutory payments such as owners' rate and ground rent as well as other liabilities due and payable by the estate; (iv) The honourable court below erred infact and law when it failed to appreciate the fact that the Intestate Succession Act mandates courts to make sufficient financial provision and other provisions for the surviving spouse as well as matters connected with or incidental thereto; and (v) The honourable court below erred infact and law when it held that it believed the testimony of the Respondent herein without pronouncing itself or coming up with a holding of fact on the JlS allegations that the deceased the late Artemis Benos had inherited the property that belong to their family. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Ms Suba and Mr Chibangula, Counsel for the Appellant, relied on the heads of argument filed on 18th December 2023, which they augmented with brief oral submissions. 5.2 In arguing the first ground, our attention was drawn to Section 7 (f) as read with Section 3 of the Act. Section 7 (f) of the Act Reads as follows: "Where an intestate leaves_ ... {f) a spouse but no children, parents or dependants, the portion of the estate which the children, parents and dependants would have inherited, shall be distributed equally between the surviving spouse on one hand and the near relatives on the other." 5. 3 Section 3 of the Act defines near relative and issue as follows: .. -. J16 "near relative: means issue, brother, sister, grandparent and other remorter descendants of the deceased." "Issue: in relation to any person means the children, grandchildren and other remorter descendants of that person." 5.4 It was the Appellant's contention that the Respondent being a niece of the deceased does not fall within the ambit of the provisions of Section 7 (f) of the Act, as the law does not expressly mention nieces and nephews under near relatives. 5.5 According to the Appellant, using the literal rule of interpretation, a collateral descendant such as a niece or nephew is strictly not considered a descendant. It was submitted that the court should not have resorted to purposive rule of interpretation. 5.6 Our attention was drawn to the case of David Ojah Malembe v Thomas Ndonyo1 and submitted that the Supreme Court in that case settled who a near relative is and we were urged to follow that case. J17 5.7 In arguing the second ground, it was argued that the court fell into grave error when it ordered the sale of property in longacres that belonged to the Company, a Limited Company which is a separate legal entity. Furthermore, that the court's Order was made in the absence of the Company and it never being a party to the proceedings, despite the Order affecting it. 5.8 The third, fourth and fifth grounds were argued together. It was submitted that as held by the Supreme Court in the case of Wilson Masauso Zulu v Avondale Housing Project Limited2 the court had a duty to adjudicate upon , every issue in controversy between the parties. 5.9 According to the Appellant, one of the contentious issues between the parties was an allegation by the Respondent that the deceased and her late father mishandled the Respondent's late father's and aunt's estate. It was submitted that, there was need for the court to adjudicate upon the issue as it had a bearing on the Estate of the deceased. That had the court done so, it would have found that the Appellant demonstrated that the Respondent confirmed that her late father and aunt predeceased her J18 late grandfather, having died 1n 1987 and 1993 respectively. That it was therefore more plausible that the grandfather was responsible for the estates of his children and not the deceased as alleged by the Respondent in the court. 5.10 Further, the Appellant made reference to Section 19 (1) of the Act, which provides for duties of an administrator and submitted that the court should have made provisions for the settlement of liabilities of the Estate, more so that it was within the administrator's statutory duties. 6.0 RESPONDENT'S ARGUMENTS IN RESPONSE 6.1 In response, Mr Msoni, Counsel for the Respondent, relied on the Respondent's heads of argument filed into court on 18th January 2024, which he augmented with brief oral submissions. In response to the first ground, it was submitted that Section 7 (f) of the Act, is applicable to this matter and it is clear and unambiguous. It was contended that, since the Appellant is the surviving spouse and the deceased did not leave any children, parents or dependants, that portion of the Estate of the deceased J19 should be distributed equally between the Appellant and the Respondent as "near relative." 6.2 It was argued that the definitions of near relative and issue under Section 3 of the Act, both include a class of eligible beneficiaries known as remorter descendants. It was . . contended that the Respondent being a niece is a descendant of the deceased as she is a collateral descendant. 6.3 The Appellant submitted that the purpose rule of statutory interpretation in this matter was the best fit to cure and assist the court meet the ends of justice. 6.4 As regards the David Ojah Malembe1 case, it was submitted that it was clearly distinguishable as it did not deal with nieces or nephews, but unidentifiable individuals who had no relation with the deceased, but were merely looked after and kept by the deceased. Furthermore, the case did not deal with Section 7 (f) of the Act, but was dealing with Section 9. It was also submitted that it did not define the terms near relative, issue or remorter descendants. ... J20 6.5 In response to the second ground, it was submitted that the ground is quite academic as it is based on settled law. Our attention was drawn to Section 190 of The Companies Act2 and submitted that the shares in the Company vest in the Appellant as Administrator of the Estate and does not devolve upon the Respondent. 6.6 In response to the third, fourth and fifth grounds, it was submitted that the grounds are destitute of merit. In respect to Section 19 of the Act, the High Court case of Rosemary Musa Phiri (Administratrix and beneficiary of the Estate of the late Charles David Phiri) v Comfort Lozililo Phiri and Another3 was cited, where Chashi, J as he then was, stated as follows: "The first duty of an administrator in terms of Section 19 ( 1) (a) of the Act is to pay the debts and funeral expenses of the deceased person. This duty has to be performed before the distribution of the estate to the identified beneficiaries. Failure to perform this duty may render the personal representative personally liable." •. J21 6.7 It was submitted that, it therefore follows that, since the court held that the shares in the Company must be valued and the valuation is an exercise that is a condition precedent to the distribution of the assets, the estate must bear the costs of the valuation. It was further submitted that shares are personal property that form part of the estate of the deceased and the court was at liberty to make a pronouncement on the shares held by the deceased in the company as well as the properties owned by the company. 6.8 It was contended that some of the issues being raised by the grounds are being raised for the first time on appeal. The case of Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprises4 was cited to the effect that the law frowns upon a litigant raising issues at appeal when the said issues were not raised in the court below. That therefore the court cannot be faulted for not addressing issues that were not before it. 6. 9 In specifically addressing the fifth ground, it was submitted that the issue raised is not worth commenting • J22 on as it was only deposed to as a rider to the main issues and was not part of the reliefs being sought. 6.10 In concluding, the Appellant submitted that the appeal was informed out of not only selfishness, greed and mischievousness on the part of the Appellant as he believes he is the sole beneficiary. Reference was made to the High Court case of Nkumbula Nkwilimba (Suing as Administrator of the estate of the late Killian Nkwilimba) v Humphrey Salwanja5 wherein A.M Sitali, J as she then was, had this to say: "The Respondents assertion that he is the so le beneficiary of the estate of his late wife and that her brothers and sister and their families have no share in the said estate is not only selfish and mischievous but it has no legal basis given the clear provisions of the law which are set out in Section 7 {I) of the Act which is cited above." 7.0 ARGUMENTS IN REPLY 7 .1 The Appellant filed heads of argument in reply on 29th January 2024. As regards the definition of collateral descendants, we were invited to determine the legal J23 definition in the context envisaged by the Act, as the same has not been defined under the Act. Our attention in that respect was drawn to the learned authors of Halsbury's Laws of England2 at paragraph 1371, where it stated as follows: "To ascertain the meaning of a term used in legislation recourse may be had to a dictionary or other work of reference... A dictionary cited should be well known and authoritative. The court nevertheless remains free to reach its own conclusion which may be different to that expressed in a work of reference." 7 .2 The Appellant urged us to apply a literal and narrow interpretation to the term remorter descendant and limit it to lineal descendant. 8.0 ANALYSIS AND DECISION 8.1 We have considered the arguments by the parties and the Ruling being impugned. The first ground of appeal attacks the court's finding that the Respondent as a niece was a near relative. The court, in its interpretation of near relative under Section 3 and 7 (f) of the Act, applied a • J24 broader classification of the term remorter descendants. As correctly noted by the court, the term niece was not expressly mentioned in the term near relative. It was however, observed that the definition of both issue and near relative, includes the term remorter descendants as earlier alluded to under Section 3 of the Act. We agree with the court that indeed in resolving the issue as to whether a niece is a near relative within the meaning of Section 3 of the Act, the answer lay in construing the term remorter descendants. 8.2 It is clear that the wording of Section 7 (f) and 3 of the Act 1s clear and unambiguous and need no further construction. The only issue outstanding 1n the classification of beneficiaries is as to whether the term remoter descendants extends to the Respondent as a niece. The aforestated provisions under the Act provides for lineal descendants and then goes on to extend to remoter descendants. 8.3 The Act, under Section 7, prescribes the order in which persons succeed to property, if a deceased dies intestate, as was the case in this matter. The Act provides for an J25 orderly administration by identifying successors to an Estate. The Act establishes an order of preferences. If there are no relatives to inherit the property, the estate becomes bona vacantio as it escheats to the State. 8. 4 Generally, a remoter descendant refers to a person who is a distant or indirect descendant of a particular ancestor. Someone who is not closely related to the ancestor in question. In many legal systems, including Zambia, the term remoter descendant typically refers to relatives who are more distantly related. 8. 5 In our view, the term remoter descendants goes beyond the descendants who follow directly in lineage, so as to include even collateral descendants such as nephews, nieces, aunts and uncles. We are persuaded by the court's application of the Zambian cultural tradition. We are further persuaded by the opinion of A.M Sitali, J. in the Nkumbula Nkwilimba case where she stated as follows: "It will be noted from the objective of the Act that the legislators were mindful of the intricacies of the Zambian Society which recognizes both the nuclear and the extended family when they sought ,. .. _ J26 to make adequate financial and other provisions for the immediate and extended family of the intestate." 8.6 In fact, in the Zambia traditional set up, it is a notorious fact that nephews and nieces being the children of ones siblings are considered to be more closely related as near relatives. In the context of intestate succession laws, nephews and nieces are often included as beneficiaries in the distribution of assets, where there are no closer relatives surviving the deceased. 8. 7 In the view that we have taken, Section 7 (f) of the Act extends to nephews and nieces and we therefore find no basis on which to fault the court. We agree with the Respondent that the David Ojah Malembe case is distinguishable from this case, as it did not deal with the effect of Section 7 (f) nor the issue at hand as to whether near relative extended to nephews and nieces. 8.8 The second ground of appeal attacks the court's determination that the property and shares in the Company be valued and disposed off without any further Order as to why or how the valuation was to be paid for. • J27 8.9 We note that the arguments by the Appellant do not speak to the ground of appeal. We will therefore take it that the ground had been abandoned. We however note that there seems to be misapprehension of the court's Order under paragraph 8.24 of the Ruling, where it was stated as follows: "Once valued, the two properties shall be sold and the proceeds thereof shared in accordance with the provi.sions of Section 7 (fl of The Intestate Succession Act." 8. 10 Our understanding of that holding is that the two properties being referred to, which would be subjected to valuation and being sold, were the 33,500 shares in the Company and property No. Fl l0a/ 165 Villa Elizabetha, Lusaka. The court never ordered any valuation and sale of property No. Lus / 4 714, Longacres, Lusaka, belonging to the Company. 8.11 As regards payment for the valuation, it follows that, since that would be part of the administration costs of the Estate, it has to be paid for by the Estate. .-.::. J28 8.12 In arguing grounds three, four and five, which were allegedly argued together, we note that only ground five was argued. We will therefore assume that grounds three and four were abandoned. 8.13 Under the fifth ground, the only allegation which has been brought out in the argument is that, one of the contentious issues between the parties was an allegation by the Respondent that the deceased and her late father had mishandled the Respondent's late father's estate, as well as the aunt's estate. According to the Appellant, there was need for the court to adjudicate on the issue, as it had a bearing on the deceased's Estate. Further, that had the court adjudicated upon the issue, it would have found that the Appellant demonstrated that the Respondent confirmed that her late father and late aunt predeceased her late grandfather, having died in 1987 and 1993 respectively. 8.14 We have perused the reliefs which were being sought by the Respondent as per the originating summons and we are at a loss as to what bearing these allegations would have on the Ruling of the court, had the same been J29 addressed. Our view is that the allegations were neither here nor there and there is no way this issue would assist the Appellant in his appeal. This ground has no merit and it is accordingly dismissed. 8.15 As regards the duties of an administrator, the Appellant is urged to have recourse to Section 19 (1) (a) of the Act and the holding in the case of Rosemary Musa Phiri3 . 9.0 CONCLUSION 9. 1 All the grounds of appeal have no merit and are dismissed. Each party to bear its own c as was ordered in the court below. J. CHASHI COURT OF APPEAL JUDGE D. . "1/'SICHING , C ~ RPE-PH~ COURT OF APPEAL COURT OF APPEAL JUDGE