MAKONESE J:
In the early 1980s the late Dr John Joseph Manolakakis arrived in
Zimbabwe. He is of Egyptian descent. He set up a medical practice
in Bulawayo where he resided until his death on the 2nd of July
2006. At the time of his demise the late Dr. Manolakakis lived with his
girlfriend of 12 years, Evangelia Patrinos. A Will dated 3rd
June 2005 was found at the late Dr Manolakakis's residence soon after his death.
In terms of the Will, which is now the subject matter of these proceedings, the
deceased bequeathed his entire estate, in Zimbabwe, Greece, and South Africa to
Evangelia Patrinos. Evangelia Patrinos was appointed Executrix
testamentary in the estate of Dr Manolakakis. Evangelia Patrinos later
died in Greece on 11th November 2008.
The sole issue for determination by this court is whether
the handwritten Will dated 3rd June 2005 was written and signed by
the late Dr John Joseph Manolakakis.
Validity of Claim and parties to the action
Before dealing with the merits of the Plaintiff's claim it
is necessary to determine whether the claims brought by the Plaintiff are valid
and are properly before the court. The court must also make a
determination as to whether the Defendants were in default.
The original Plaintiff, Maria Manolakakis passed away in Greece on the 16th
September 2013 at an advanced age of 104 years. At the commencement of
the trial on 31st May 2012 an application was made for the Plaintiff
to be excused from attending the proceedings on the basis of ill health.
A medical report produced indicated that Mrs Manolakakis was not able to travel
by reason of her extreme old age and a heart condition. I exercised my
judicial discretion and considered that in the interests of justice it was
reasonable to excuse the Plaintiff from attending court. I accepted a
Power of Attorney from the Plaintiff in terms of which she appointed Gamila
Atwa Ibrahim Yousef EL Zont as her representative at the trial. The
original Plaintiff has since been replaced by the Administrators of her estate
in terms of a notice filed on 20th November 2013 in accordance with
the provisions of Rule 85 A (3) of the High Court Civil Rules, 1971. The
rule provides as follows:
“Where a party to any
proceedings dies or ceases to be capable of acting as such, his executor,
curator, trustee or other legal representative may, by notice filed with the
registrar and served on all other parties to the proceedings, state that he
wishes to be substituted for that party, and thereupon, subject to subrule (4),
he shall be deemed to have been so substituted in his capacity as curator,
trustee or legal representative as the case may be.”
The Defendants have sought to argue in their closing submissions that there are
no valid proceedings before the court. This issue was never raised in the
pleadings. It was not brought up during the course of the trial.
When Miss Zont took to the witness stand her authority to represent the
Plaintiff was never challenged. The issue is raised for the first time
after all the evidence has been led. If the Defendant had the intention
to challenge the validity of the summons, then the Defendants should have
raised the issue in the pleadings. The issue should have been
incorporated in the Pre-Trial Conference memorandum. In any event a close
scrutiny of the challenge shows that the challenge is without any merit.
The Late Dr. Manolakakis was a resident of Zimbabwe and has assets in Zimbabwe.
His estate is registered with the Master of the High Court at Bulawayo under
DRB 611/06. The proceedings before the court seek to establish the
validity of the will purportedly executed by the late Dr. Manolakakis.
The court therefore has full jurisdiction to entertain the matter. The 2nd
Defendant is not peregrine. The estate of the late
Evangelia Patrinos is also registered with the Deputy Master of the High Court
under DRB 578/08. The estate falls under the jurisdiction of this court
and accordingly this court enjoys full jurisdiction over any matters in
relation to the estate. The 3rd and 4th Defendants
are the beneficiaries under 2nd Defendant's estate. The court
under case number HC 475/11 noted that there were the ones who particularly
wanted security costs in order to bring in expert witnesses from abroad.
Their claim was dismissed by MATHONSI, J on the basis that security for costs
cannot be granted to a pregrini. I have examined this judgment
and observe that there has been an attempt by Defendant's counsel to quote
parts of the judgment out of context. I note that portions of that
judgment have been extracted where they seem to support the Defendants.
At page 3 of the cyclostyled judgment, MATHONSI, J states as follows:
“The 1st Applicant in
fact states in his his founding affidavit that he makes the application in his
capacity as the “director of National Executor Trust (Pvt) Ltd.” This is
not helpful at all because he holds letters to administer the 3rd
Applicant's estate in his personal capacity. He can only bring an
application on behalf of the 3rd Applicant.”
It is my view that the claims before the court are valid and properly before
the court. The 3rd and 4th Defendants are properly
cited in the summons as they have not denied that they are beneficiaries of the
2nd Defendant's estate.
The Plaintiff contends that the representation of the 1st to 5th
Respondents in these proceedings is not clear in that when proceedings resumed
on the 14th October 2013, the Defendants opened their case by
calling a handwriting expert Cecil Greenfield to give evidence.
Thereafter on the 3rd of June 2014 Defendants called two further
witnesses, namely, another handwriting expert Mrs Louricka Buckley and an
accountant Mr Lunat who both testified. After the evidence of these
witnesses was recorded the Defendants closed their case. None of the
cited Defendants were called to give evidence to rebut the Plaintiff's
claims. The presence of the Defendants in court was not formally
registered. The current position is that there is no executor at present
in the estate of the late Dr. Manolakakis. The last Executor was
Evangelia Patrinos who died on the 9th March 2008. After the
death of Mrs Patrinos, the 5th Defendant Robert Malcom Bowes
attempted to have himself appointed as the executor in the estate of the late
Dr. Manolakakis but was barred from such appointment by virtue of an order of
this court under case HC 2236/08 which order effectively interdicted the Deputy
Master from holding an edict meeting pending the resolution of the dispute in
this matter.
During the course of the proceedings no one appeared to represent 1st
Defendant nor were any documents placed before the court to show any
representation of 1st Defendant. The 2nd
Defendant's executor ought to have at least given evidence if only to formally
place before the court his proof of authority in the form of Letters of
Administration. The 5th Defendant did not formally appear in
court as a party to the proceedings. It must be noted that during
the proceedings counsel for the Defendants appeared to be receiving
instructions from the 5th Defendant who continuously followed the
proceedings and handed notes to his legal counsel. It seemed quite evident
that the 5th Defendants has a deep rooted interest in the matter and
the outcome of the proceedings and possibly is the only person who could have
facilitated attendance of the expert witnesses, two of whom were from South
Africa. What is disconcerting, and perhaps rather strange is that 5th
Defendant was not formally referred to at any stage during the
proceedings. There was no explanation as to the origin of all the
documents introduced into the record on behalf of all the Defendants. It
seems probable that the 5th Defendant was in the predicament that
having attempted to have himself appointed as the executor of 1st
Defendant, he could not be seen to be actively opposing the Plaintiff's claims
because there would be a conflict of interest. The Defendants have chosen
not to show their hand and in doing so they were actually in default.
Even without dealing with the merits of the matter it is clear that the
Plaintiff would be entitled to the relief sought by reason of the default of
all the Defendants. In the absence of any reasonable explanation, where a
party fails to attend court the Plaintiff is ordinarily entitled to the relief
sought. If the Defendants were represented by virtue of a Power of
Attorney, then the agent should have appeared in court on their behalf to
produce proof of such representation and formally register their interest in
the matter.
The questions to be asked are, without any of the Defendants' appearance, on
whose behalf were the defence witnesses giving evidence? To whose benefit
were the witnesses called? Inspite, however, of my finding that the
Defendants were in default, I shall proceed to determine the merits of the
matter.
The Merits
The sole issue for determination is whether the
disputed will is that of the late Dr Manolakakis. It is not in dispute
that the will that is at the centre of these proceedings was allegedly executed
by the late Dr. Manolakakis while he was admitted at Milpark Hospital, at
Johannesburg, South Africa on 3rd June 2005.
The Plaintiff's Evidence
The Plaintiff led evidence from Leonard Nhari
a handwriting expert. He produced his curriculum vitae and proof of his
qualifications. He presented his report and his findings based on the
examination of the questioned document and the standards handed to him. His
conclusion was that the questioned document was not authored or signed by the
late Dr Monalakakis. I found his evidence to be straightforward and easy
to follow. His evidence did not have any tinge of exaggeration and he
explained that the other expert witnesses for the defence had the handicap that
they worked with photocopies and based their conclusions on the photocopies
presentenced to them. Mr Nhari indicated that he found no physical
evidence in the design and construction of the words in the questioned
documents to indicate that it was authored by the late Dr Manolakakis. I
accept the report of Mr Nhari as a fair report which is accepted by the court.
The Plaintiff then led evidence from Dr EL Madawy a close
friend and professional friend of the late Dr Manolakakis. He explained
that they both settled in Zimbabwe in the early 1980s and became friends as
they both hail from Egypt. This witness produced the standards that were
used by Mr Nhari in his forensic examination, namely a letter dated 16th
November 2005, a compliment slip dated 21 February 2006, and a letter addressed
to the Registrar General dated 24 October 2005. Dr EL Madawy testified
that when the late Dr Manolakakis died on the 6th July 2006 Mrs
Patrinos came to inform him of his death. He enquired whether the burial
would take place in Greece or Zimbabwe. It was then that the issue of the
will was brought up. Mrs Patrinos indicated that the late Dr Manolakakis
had prepared a will. She then produced the will from one of the cupboards
in their flat. At that stage Dr EL Madawy, his wife, and another friend
were present. He looked at the flimsy piece of paper which was the
alleged last will and testament and could not believe that the late Dr Manolakakis
would not have authored such a will for the following reasons:-
(a)
the will was executed at 2312 hours when the late Dr Manolakakis would have
been heavily sedated because he was undergoing an operation the following day.
(b)
he would have prepared a proper will because he had access to competent lawyers
and other professional people.
(c)
he was familiar with this handwriting as Dr Manolakakis used to refer patients
to him and the document purporting to be his will was not possibly authored by
him.
Plaintiff then led the evidence of Mrs EL Madawy (also
referred to as Gamila Atwa Ibrahim Yousef El Zont). She was also a close
and personal friend of both the late Dr Manolakakis and the late Mrs
Patrinos. She tendered the Power of Attorney given to her by the
Plaintiff. She led evidence of the circumstances surrounding the
discovery of the will. She was present when the will was opened by her
husband in the presence of Mrs Patrinos. She says that she simply laughed
at the suggestion that the purported will was an authentic document from the
manner it was written and produced by Mrs Patrinos. The witness conceded
that she could not state that Mrs Patrinos was the one who had forged the
document.
I found the evidence of Dr EL Madawy and his wife to be credible. They
spoke of events they were familiar with and they were very close friends to the
late Dr Manolakakis. They knew him to be a sophisticated person who would
not have prepared his will on some piece of paper. He loved his mother
and looked after her. They found it strange and impossible
that the late Dr Manolakakis would have failed to adequately provide for his
aged mother in the purported will. The late Dr. also had three sisters
whom he was looking after prior to his death. They were not provided for
under the will.
In examining the evidence presented on behalf of the Plaintiff the following
are pertinent observations regarding the evidence of the expert witness, Mr
Nhari:-
(a) the
Plaintiff's expert testimony is based on the examination of the original
documents.
(b)
the pictures, impression, enlargements and charts contained in the report of Mr
Nhari were all produced from the original will.
(c)
the standards which were used by Mr Nhari were originals save for the letter
dated to the Registrar General dated 24 October 2005.
(d) the origins of the
standards were verified by Dr El Madawy.
(e) the
Plaintiff's expert evidence was therefore based on the best evidence available.
(f)
a naked eye perusal of the signatures on the standards shows that the letters M
and J at the beginning of the signature are always presentenced in the form of
a ballon whereas in the questioned document the construction is narrow.
(g)
consistency was also found in the constriction of the letter “o” in the
standards but many variations of the same letter exist in the questioned
document.
(h)
the only reasonable inference is that the author of the questioned document was
forgetting how to construct the letters in the process of writing the
will. Such dissimilarities cannot be attributed to natural variations.
The Defendant's case was opened by leading evidence from Cecil
Greenfield, a handwriting expert based in South Africa. He
confessed that he did not have the advantage of working with original
documents. He only saw the original will for the first time a few minutes
before he gave his evidence. His report and conclusions was based on photocopies
supplied to him. The origin of his standard documents was not disclosed,
although the court may reasonably conclude that he obtained them from the 5th
Defendant. Mr Greenfield tendered a very long and impressive curriculum
vitae. He conceded that his credentials as they appeared on his
documents were not quite accurate. He was no longer an associate member
of the American Association of Handwriting Analysts. He stated that he
was still an active member of the Forensic Science Organisation (UK) and a
member of the South African Association of Forensic Documents Examiners.
He indicated that he had no formal training as a handwriting expert. He
indicated that he was “self taught.” He averred that his reports and
findings have been accepted in the South African courts. Mr Greenfield
stated that in his expert opinion the questioned document was authored by the
late Dr Manolakakis. He said the variations observed by Mr Nhari are
attributed to natural variations.
The defence then led evidence from another expert witness, Mrs Louricka
Buckley. She indicated that she is a professional handwriting
examiner. She operates from Johanesburg in South Africa. She stated
that she holds a certificate in Forensic Handwriting Identification, a course
accredited by the Tecknicon of Pretoria. She was unable to produce any
documentary proof of her qualifications. It is noted that where experts
are called in as expert witnesses they should always anticipate that their
professional qualifications can be challenged. It is therefore in
my view prudent for an expert witness to have his/her academic and professional
qualifications at hand, more particularly where such an expert is testifying in
a foreign jurisdiction. The court must not be left to speculate on
whether an expert witness is indeed an expert. It is not helpful for an
expert to simply state that their evidence has been accepted in the courts in
South Africa or any other jurisdiction for that matter.
In casu, both experts for the defence were adamant that the questioned
document was in all probability or with 100% certainty authored by the late Dr.
Manolakakis. Both experts failed to explain how the will could have been
authored at around midnight before a major operation was performed on the
author and yet there were no signs in the document that the writer was shaking
or was not comfortable. Mrs Buckley explained that the document was
written with ease and there was no evidence that the author was
struggling. She criticised Mr Nhari's report on the grounds that he only
used three standards. She stated that he should have used more standard
documents. She however did not comment of the evidence of Cecil
Greenfield at all. Mrs Buckley did not produce any charts or diagrams and
the basis for her conclusions had no real foundation. The evidence
of the two expert witnesses for the defence is therefore not accepted by this
court.
The defence then called Ismail Moosa Lunat to testify.
He confirmed that he was a close friend to the late Dr. Manolakakis and that he
worked as his accountant for several years. He had known him for more
than 10 years. He also knew the late Mrs Patrinos. He told the
court that after the late Dr. Manolakakis had left Milpark Hospital, after his
operation he had confided in him that he had executed a will. He stated
that the late Dr. Manolakakis informed him that he kept the will in a safe at
his flat at Ascot. He says he saw a copy of the will. He verified
that the document was authored by the late Dr. Manolakakis. He said he
was familiar with his handwriting because he filed tax returns for him.
The evidence of Mr Lunat is problematic in that he was given a Power of
Attorney by the late Mrs Patrinos to bank monies from her businesses.
When the late Mrs Patrinos died in Greece he failed to account for all the
funds collected on her behalf. He stated quite boldly in court that all
the monies he had collected “disappeared with the zeros”, meaning to say all
the monies were eroded by the effects of hyperinflation. It is common
cause that during the era of hyperinflation various business entities lost
monies. Some companies and individuals converted their funds into foreign
currency to hedge against inflation. Mr Lunat hopelessly failed to
account for all the funds he collected on behalf of Mrs Parinos. His
evidence sounded hollow. He did not impress as an honest witness.
His evidence does not pass the credibility test. He initially denied any
association with Mrs Patrinos apart from a mere “friendship” but when further
pressed he revealed that he was involved with Mrs Patrinos in respect of the
estate late Dr. Manolakakis. He is the one who gave a Bond of
Security. I have no hesitation in rejecting his entire evidence as
being untruthful in all material respects. His evidence could not be
taken seriously at all.
The Law
Section 18 of the Civil Evidence Act [Chapter 8:01],
provides as follows:-
“comparison of any disputed
handwriting with any handwriting proved to be genuine may be made by any
witness, and such writings and evidence of any any witness with respect to them
may be adduced to prove the genuiness or otherwise of the handwriting in
dispute.”
In the case of R v Mayahle 1968(1) RLR 133 at page 134, the learned
BEADLE CJ, dealt with the issue of the evidence of handwriting experts, in a
criminal case decided on similar principles. He pointed out that:-
“It is desirable, when such
experts give evidence, that not only should they produce the photographs
supporting their evidence, which show the points of similarity between the
accused's handwriting and the handwriting on the questioned documents, but they
should point out why they are similarities and their significance.”
In another decision in R v Chidota 1966 (3) SA 428, the learned judge
QUERIET (JP), held in a criminal case which is also relevant in the present
case, that:
“where the sole evidence
concerning an accused with the commission of an offence is that of a
handwriting expert, precaution should be taken to remove the possibility of
error.”
It is evident that the position to be taken by the court where evidence of
handwriting experts is concerned is that the court must observe for itself the
similarities and differences in the handwritings and then also take into
account other relevant circumstantial evidence in the matter. The court
must then assess all the evidence before it, including the evidence led from
the handwriting experts and satisfy itself that indeed the document was authored
by the person who is alleged to have authored it.
It is my view that from all the evidence presented before the court, the
circumstances surrounding the writing and discovery of the will are somewhat
suspicious in that the will is supposed to have been made on the eve of a major
operation at around midnight. This was a will made when the testator
feared that he may not survive the operation. The reality though is that
Dr. Manolakakis survived for another year and had ample time to put his affairs
in order and write a proper will. It is highly unlikely that he would
have reduced his wishes on a handwritten piece of paper. He made no
provision for his family, namely his mother and sisters whom he was known to
have loved as testified by Dr El Mandawy. The fate of his aged mother was
left in the hands of Mrs Patrinos. From visual observations of an
untrained eye it is clear that the manner in which the signature on the
questioned document was executed is different from the handwriting in the body
of the will itself. There was no shaking or uneasiness in the
signature. It is logical to conclude that the author of the will took
time to insert the signature to the document (an act consistent with forgery),
or that the signature was on the piece of paper before the document was
prepared.
For the reasons given above I am of the firm view that the disputed will was
not written by the late Dr. Manolakakis. Further, the Plaintiff has
proved its case on a balance of probabilities and is entitled to the relief
sought in the summons.
Costsion was given regarding their
absence. The only party that was involved in the proceedings even though
he did not formally indicate to court in what capacity he organised the defence
witnesses and actively monitored the matter to ensure that the validity of the
will was upheld, is the 5th Defendant. The Plaintiff has
already been put to considerable expense and is entitled to recover all the
costs on the higher scale. There is no reason why the Plaintiff should be
out of pocket.
In the result I make the following order:-
1)
The Will dated 3 June 2005 purported to have been written by Dr. John Joseph
Manolakakis be and is hereby declared null and void and set aside.
2) It is
ordered that the late Dr. John Joseph Manolakakis died intestate.
3)
It is declared that the Plaintiff is the sole heir to the deceased estate of
the late Dr. John Joseph Manolakakis (Estate Number DRB 611/06), and in respect
of any other assets wherever situate.
4)
It is ordered that the appointment of Evangelia Patrinos as the Executrix
Dative of the Estate Late John Joseph Manolakakis be and is hereby set aside.
5)
The 2nd, 3rd, 4th, and 5th
Defendants to pay the costs of suit on an attorney and client scale, jointly
and severally.
Sansole and Senda, plaintiff's legal practitioners
Majoko
and Majoko, defendants' legal practitioners
