The deceased was resident and domiciled in the Republic of Zambia for many years, clearly with the intention of staying here permanently. Both the deceased and his widow were Rhodesian, members of the Kalanga tribe which is a sub-division of the Shona tribe. In 1961 the deceased had married his wife in Zambia by Shona law. The deceased and his wife were living in Zambia as ordinary Africans but among a fairly large Shona community in the Mumbwa District. Apart from their marriage their life had not been affected by Shona law. The deceased was killed in an accident. The widow of the deceased took out a summons to obtain an order that the deceased's estate be administered by the High Court under the English Probate law which applied in Zambia and not under the African customary law. The respondent, a cousin of the deceased, claimed that the estate was governed by Shona customary law. Neither party in the proceeding claimed that the deceased was subject to the African customary law other than Shona law.
Held:
(i) That as the deceased was domiciled in the Republic of Zambia, no question of Rhodesia Shona law arose by reason of domicile.
(ii) That on the question whether the deceased as a member of the Shona tribe retained his personal law when he came to Zambia, there was no specific law which in terms stated that non - Zambian Africans on arrival in Zambia retained their personal law.
(iii) That s. 38 of the Local Courts Act, Cap. 54, appears to indicate that there were circumstances in which an African's estate in Zambia should not be administered or distributed in accordance with African customary law, and though such circumstances are not indicated in the Act, it would be either because African customary law never applied to the particular African or that he had in some way divested himself perhaps by his way of living, from the application of customary law.
(iv) That s. 38 (1) (b) of the Act was a procedural provision which prevented the local court from exercising jurisdiction until the High Court had determined the matter before it, and in any event it did not prohibit the High Court from making an order or direction in terms of subs. 2 of that section in respect of an application to the High Court under subs. 1, that the estate should be administered or distributed by African customary law and under the authority of a grant from the local court, and s. 38 (1) (b) did not permanently oust the jurisdiction of the local court.
(v) That on the evidence before the court, the parties to the marriage were living in a Shona community and had been married by Shona law, that the deceased was living among and after the manner of an expatriate Shona, and that it would be catastrophic if it were held that persons living in the manner of the deceased did not retain their customary law, as this would also mean that the customary marriage law would not apply and would bring into doubt the validity of a marriage celebrated under such laws; and that since the deceased had not lived in a manner to divest himself of his customary law, it followed that the law to be applied to the administration or distribution of his estate was Shona customary law.
(vi) That whether the administrator was appointed by the High Court or by the local court, he would still have to distribute the estate in accordance with the Shona law applicable and, since there did not appear to be any good reason why the estate should be administered through a grant by the High Court rather than the local court, the application would be refused.
