September 2007
Court Grants Second Wife Share To Late Husband's Estate
By Perpetual Sichikwenkwe in Kitwe
THE Ndola High Court has quashed a decision of the lower court that denied a second wife her share of estate of her deceased husband.
This was after Kitwe's Legal Resources Chambers lawyer Nyuma Ng'ambi appealed to the Ndola High Court on behalf of Carol Mubanga Chileshe Michelo.
Ng'ambi told the High Court that the Magistrates Court misdirected itself by not considering that Carol was also the wife to the late Larson Mainza Michelo.
He contended that Carol had legal documents showing that she was married to the deceased for six years and that she was also entitled to the terminal benefits as she was also legally married to Michelo and she had two children with him, one aged four and the other two.
In his ruling dated July 23 2007 delivered at the Ndola High Court, Judge Mwinyinda Wanki set aside the lower court's decision and held that Carol was married to Larson and as such she was entitled to a share of the deceased's estate.
Earlier Carol had sued Larson's first wife Mambo Michelo and the administrator Jimmy Michelo in the Mufulira's Magistrate Court claiming for her two children's share and her share from the estate of the late husband who was her husband.
Jimmy argued that Carol could not have a share to her later husband's estate because she was not his wife, as she was not traditionally introduced by her husband to his relatives.
After trial, the magistrate in his judgment delivered on January 17 2007 held that the two children would enjoy all the benefits as per law established. The magistrate however dismissed Carol's claim on the share of the estate.
The court further ruled that according to traditional customs, it was not right for anyone to claim marriage when no formal traditional norms were followed and that although they were two children out of wedlock, Carol could not claim to have been a wife to Larson.
Carol approached Kitwe Legal Resources Foundation Paralegal Paul Hibwengwa to seek advise on how she could handle the matter. Hibweengwa referred the matter to Ng'ambi who appealed in the Ndola High Court on behalf of Carol.
Judge Wanki in his judgment said: “I have read the evidence that was adduced before the Lower Court and indeed the learned magistrate's judgment. I have found that there was sufficient proof in form of the affidavit verifying marital status and in lieu of marriage certificate which was not disputed or challenged by the respondents.”
“That the appellant was married by the deceased on 18th September, 2000. The appellant was not even cross-examined by the respondents which was an indication that she told the truth.”
Judge Wanki said that the fact that she was not introduced as per tradition was not material adding that in any case other than Jimmy’s word that according to tradition, Carol was supposed to have been introduced by the late husband, there was no expert in customary law who was called to support his words.
The judge said the lower court was not even told whose tradition Jimmy was talking about and as such there was doubt whether Mambo's contention was a fact or not.
Judge Wanki said Jimmy did not say anything to challenge Carol's evidence other than saying he agreed to the claim of the children.
The judge said on the statement by the lower court that although Carol had two children out of wedlock with the late, she could not claim to have been the wife, the magistrate did not consider the overwhelming evidence before him that of the marriage between Carol and Larson having taken place in September 2000 and the children who were born on November 2001 and thereafter could not be said to have been born out of the wedlock.
“In the light of the foregoing, I set aside the learned magistrate's decision and hold that the appellant was married to the deceased. As such she is entitled to a share of the deceased's estate. The first respondent as administrator of the estate should recognise her as a widow as such she is entitled to a share of the estate” Judge Wanki said.