MAKONESE J: This
matter has a somewhat long history dating back to July 2006. The late Dr
John Joseph Manolakakis arrived in Zimbabwe in the early 1980s. He
established a medical practice at 41A Fort Street, Bulawayo. At all
material times he was ordinarily resident at a flat at Kenilworth Towers,
Ascot, Bulawayo. Dr Manolakakis became unwell and subsequently died on 2nd
of July 2006. He owned a number of assets including motor vehicles,
certain immovable property and furniture and medical equipment at his
surgery. He also held bank accounts in South Africa and Greece as well as
in Zimbabwe. At the time of his demise the late Dr Manolakakis was living
with Evangelia Patrinos who also died in Greece on the 9th March
2008.
The dispute in this matter relates to a “Will” dated 3rd June 2005
which was discovered after the death of the later Dr Manolakakis. The
document was accepted as a valid Will by the Assistant Master of the High
Court, Bulawayo on the 6th July 2006. The estate of the late
Dr Manolakakis was registered under DRB 611/06. The late Evangelia
Patrinos was issued with letters of administration on the 23rd
August 2006 and appointed ExecutRIX Dative. The estate of the later Dr
Manolakakis was then administered with the assistance of National Executor and
Trust.
The plaintiff in this matter is Maria Manolakakis, the mother of the late Dr
Manolakakis. She resides in Greece. She is over 100 years old and
because of her advanced age she could not attend court and gave a Power of
Attorney to Mrs Gamila Atwa Ibrahim Youssef El Zont to represent her in these
proceedings. At the commencement of the trial an application was made by
plaintiff's counsel to proceed in the absence of Maria Manolakakis and in
support of the application a medical report prepared in Greece on the 15th
of May 2012 was tendered into evidence by consent of both the plaintiff and
defendants' counsel. The report reads as follows:
“Mistress Maria Manolakakis
103 years old suffer from chronic heart failure. Also, 15 years ago was
implanted to her stable pacemaker. Because of these critical situation,
any travel is very dangerous to her. (sic)
Signed
DER MED GEORGIOS DERMITZAKIS
Cardiologist
Reg No. 047594”
I granted the application to proceed in the absence of the plaintiff in the
interests of justice and bearing in mind that at the age of 103 years it would
have been difficult to bring the plaintiff to court.
The plaintiff's claims in essence seek an order declaring the Will dated 3rd
June 2005 purported to have been executed by Dr Manolakakis to be null and
void. Further the plaintiff seeks an order declaring that the late Dr
Manolakakis died intestate. The plaintiff additionally seeks an order
declaring the plaintiff to be the sole heir to the estate of the late Dr
Manolakakis.
The plaintiff led evidence from three witnesses and then closed her case.
The first witness Leonard Tendai Nhari is the holder of a Bachelor of Science
degree in Zoology and a Master of Science degree in Biochemistry. He was
previously employed by the Government of Zimbabwe at the Forensic Laboratory between
1980 and 1999. His duties in Government involved forensic
investigations. He also dealt, whilst in that position with questioned
documents. Mr Nhari stated that he now does private consultancy and in
the main his work involves examination of questioned documents. He
examines documents to establish the authenticity or otherwise of disputed
documents. In the instant case he was requested to examine the “Will” of
the late Dr Manolakakis and provide an opinion as to whether it could have been
authored by the late Dr Manolakakis. Mr Nhari said he compared the
handwriting on the disputed will or questioned document and other specimen
handwritten notes by the late Dr Manolakakis. As a result of the
examination he came to the conclusion that the design and construction of the
handwriting on the disputed Will was not similar to the “standard” documents
being the handwritten notes by the late Dr Manolakakis. Mr Nhari opined
that there was no physical evidence that the late Dr Manolakakis could have
authored the disputed Will. The full written report of Mr Nhari was
tendered into evidence by consent and reads as follows:
“SL04/09
REPORT
On 5 August 09 the following
documents were received from Sansole & Senda Legal Practitioners
Questioned Document
The last Will & Testament of J.J. Manolakakis dated 3/6/05
Standard Documents
Two letters dated 24 October & 16 November 2005 respectively
A copy of note on complimentary slip dated 21 February 2006
I have examined and compared
the handwriting & signatures on the above named documents and observed the
following,
1.
I have found the design and construction of the signature on the questioned
document (i.e. The last Will & Testament of J.J. Manolakakis dated 3/6/05)
not to be similar and therefore not consistent with the standard signatures of
J. J. Manolakakis. The differences between the question and standard
signatures cannot be attributable to natural variation, which is a common
feature of an individual's handwriting. The apparent differences between
the standard signatures of J. J. Manolakakis are attributable to natural
variation. See comparison charts attached.
2.
Similarly I have found the design and construction of handwriting on the
question document (i.e. The last Will & Testament of J. J. Manolakakis
dated 3/6/05) not to be similar and therefore not consistent with the standard
handwriting of J. J. Manolakakis. See comparison chart attached.
3.
I have therefore found no physical evidence (in the design and construction) to
indicate that J. J. Manolakakis could have authored the questioned document
(i.e. The last Will & Testament dated 3/6/05)
L.T. NHARI (Forensic
Scientist – Consultant)
For SCREENLAB (PVT)
LTD.”
The plaintiff then led evidence for Dr Elmaadway a close friend of the late Dr
Manolakakis. His evidence was essentially that he had known Dr
Manolakakis for more than 20 years and they were very close family
friends. He was present when the disputed Will was discovered in a drawer
by the late Evangelia Patrinos. The witness said he was surprised to
learn that Dr Manolakakis had left a Will and he was generally suspicious about
the circumstances the Will was found in the drawer. Dr El Maadway further
testified he found it strange that the late Dr Manolakakis could have written a
Will in South Africa, at Milpark Hospital, at a time he was unwell. The
Will was opened by the late Evangelia Patrinos in his wife's presence and another
family friend.
The last witness to be called to testify on behalf of the plaintiff was the
wife of Dr El Maadway, one Gamila Atwa Ibrahim Youssef. She and her
husband were close friends with the late Dr Manolakakis. She was very
close to Evangelia Patrinos. Her evidence was substantially similar to
that of her husband. She said that she laughed when the late Evangelia
Patrinos produced the document now referred to as the disputed Will. She
also gave evidence to the effect that she did not believe that the Will was
written by Dr Manolakakis. She fairly conceded, in my view, that, she
could not state that Evangelia Patrinos had written and signed the Will.
I found the last two witnesses to have presented simple and straight forward
evidence.
The plaintiff closed her case and Mr Majoko launched an application
for absolution from the instance premised on two main grounds, namely:
(a) The plaintiff's declaration in paragraphs
13.3 and 13.4 makes specific averrements that the disputed Will was written and
signed by Evangelia Patrinos. The first part of attack is that since no
evidence has been placed before the court that Evangelia Patrinos authored the
Will, then the defendants should not even open their case and absolution from
the instance ought to be granted.
(b) The disputed Will complies with the
provisions of the Wills Act (Chapter 6:06). The defendant's counsel
argues that since no one challenged the accepted Will in terms of section 6 (6)
of the Wills Act within the stipulated period the Will should be accepted as
the Last Will and Testament of the Late Dr Manolakakis. Section 6(6) of
the Wills Act provides as follows:
“Any person who is aggrieved by a decision of the Master
may appeal to an appropriate court within 30 days of being notified of the
decision of the Master.”
The law on absolution from the instance is now well transversed in this
jurisdiction. The law is fairly clear and settled. The test to be
applied in deciding whether to grant absolution from the instance is whether at
the close of the plaintiff's case sufficient evidence has been led to establish
a prima facie case upon which a reasonable court exercising its mind
to the evidence led could reasonably find for the plaintiff.
The principle was reiterated in the case of United Air Carrieirs (Pvt) Ltd vs
Jarman 1994 (2) ZLR 341 in these terms:-
“A plaintiff will successfully
withstand such an application if at the close of his case, there is evidence
upon which a court, directing its mind reasonably so such evidence, could or
might (not should or ought to) find for him.”
In the case of Walker v Industrial Equity Ltd 1995 (1) ZLR
87, the principles in the case of United Carriers (supra) were
accepted and applied.
In the instant case, the court must first determine whether the failure by the
plaintiff to place before the court evidence showing that the disputed Will was
authored by Evangelia Patrinos is fatal to the plaintiff's case to the extent
that absolution from the instance must be granted at the close of the
plaintiff's case. I am of the considered view that the plaintiff's claims
are premised on the fact that Dr Manolakakis did not author the disputed
Will. As a consequence of that the court is being asked to declare that
he died intestate. The facts placed before the court at the close of the
plaintiff's case certainly cast a lot of doubt about the validity of the
disputed Will. I am alive to the fact that the court may never know who
actually authored the Will but the evidence before the court establishes a prima
facie case.
The court must secondly determine whether the provisions of section 6 (6) of
the Wills Act referred to above precludes the plaintiff from mounting an
application challenging the validity of the Will. The provisions are
certainly not peremptory and there is no provision that a litigant who seeks a
declaration that a Will is invalid ought to have first complied with the
provisions of section 6 (6) of the Wills Act. I am satisfied that the
plaintiff properly approached the court and in any event there is no reason why
the defendants did not except to the plaintiff's claims if it was their
contention that the claims were not properly before the court.
I am therefore satisfied that sufficient evidence has been led at the
conclusion of the plaintiff's case upon which a reasonable court acting
reasonably and exercising its mind on the evidence led, may find for the
plaintiff.
In the result, I make the following order.
1.
The application for absolution from the instance is hereby dismissed.
Sansole & Senda,
plaintiff's legal practitioners
Majoko & Majoko 1st and 5th defendant's
legal practitioners
