This
trial rests on the sale of a house that belonged to a deceased's
estate.
To
grasp the essence of the dispute start with the misfortune of “tardy”
executorship in the initial instance to grasp one of its possible
consequences as being the opening of doors for the stealthy. Stir in
the factual reality of a deceased whose lifestyle was de
facto
far from monogamous even if his legal choice of marriage may have
dictated otherwise. What emerges is a legal drama that unravels from
the grievance of exclusion and the machinations to gain centre stage.
Stir to this mix an innocent purchaser to appreciate the blend of
interlocking realities from which this court has to unearth legal
positions and fashion its decision.
What
the plaintiff, Jonasi Dondo, seeks, in his capacity as executor, is,
in essence, an order setting aside the sale and transfer by the first
defendant, Magana Muganhiri, to Ricky Kandemwa who is the second
defendant, certain property known as Stand 4303 Highfield township.
Also sought by the plaintiff is the cancellation of that transfer by
the fourth defendant, the Registrar of Deeds.
More
than ten years ago, on 11 February 2004, the plaintiff was issued
with Letters of Administration to the estate of the late Isaac
Chabveka, hereinafter referred to as the deceased. He died on 20
September 2003 without leaving a will. He left a widow, one Liya
Chabveka nee Apololi (Liya) with whom he had a civil marriage
registered on 12 June 1995. When his estate was registered he was
said to have been survived by his two children with Liya, namely,
Anna Chabveka and Audrey Chabveka who were minors at the time. Also
included were two other children from previous unions. However, the
first defendant and her son were not among the beneficiaries.
The
deceased's estate was registered as DR2768/03. However, for reasons
which the plaintiff says stemmed from the widow's ill-health
resulting in her inability to provide him with documents that he
required, such as values of vehicles, bank account statements, and
insurance policies, the administration of the deceased's estate
remained unresolved for nearly a decade. He had therefore taken the
position that he would wait out and that the family would come when
they were ready.
It
was some time in 2011 when this eventuality ensued.
He
was approached by one of the children who also informed him that the
widow, Liya, had died on 9 July 2010. He was asked to finalise the
winding of the estate. Following this, he had drawn up the final
liquidation and distribution account which he lodged with the Master
in June 2012. It was whilst waiting for its auditing that he was
approached by a sitting tenant at the property enquiring why they
were being evicted. An examination of the documents revealed that the
tenant was being evicted by a third party on account of having
purchased the house.
The
plaintiff's investigations with the Master's office unearthed
that the property had been sold by the first defendant to the second
defendant for US$36,000= as captured in the Agreement of Sale. The
second defendant transferred a sum of US$38,200= to her legal
practitioners for the purchase and transfer. The sale was on the
strength of Letters of Administration granted to the first defendant
on 4 December 2012 in her capacity as a widow of the deceased. She
had also sworn an affidavit that she and her son were the deceased's
only surviving relatives. Under these Letters of Administration, the
estate was registered as DR560/12. Consent to the sale of the
property was granted by the Master in terms of section 120 of the
Administration of Estates Act [Chapter 6:01] in July 2013. The Deed
of Transfer by the fourth defendant is dated 10 September 2013.
Following
the plaintiff's investigation, a letter was written to the Master
enquiring why he had allowed the estate to be administered for the
second time without cancelling the first Letters of Administration.
According to the plaintiff, the Master's office did not respond
directly to the letter but he did request the first defendant to
render an explanation. The Master thereafter called for all
interested parties to attend but the plaintiff said he did not go as
his firm view was that the proper legal procedure to follow was for
the second set of Letters of Administration to be revoked by the
Master.
The
Master filed a report confirming a double registration emanating from
different names having been used by the registering parties for the
same estate. The report is also unequivocal that the resolution of
the dispute lies in resolving who the deceased's beneficiaries are.
It urges that the second defendant be interdicted from selling the
property pending the resolution of the dispute. While the Master was
not represented at this trial his report makes it clear that he will
abide by the decision of this court.
The
gist of the plaintiff's argument was that the transfer of the house
from the deceased estate to the second defendant was irregular and
unlawful and that it ought to be set aside as the plaintiff's
Letters of Administration are still extant. He further stated that
the first defendant obtained her letters through misrepresentation as
she could not have been the deceased's wife since he had a
monogamous marriage. He also argued that the first defendant had
conveniently waited for Liya's death to assert her claim as a
surviving spouse. Regarding the sale of the house, his position was
that this was a matter between the first and the second defendant
since if she was not supposed to be appointed she had no right to
sell nor transfer the property.
The
plaintiff also called a second witness, Sekai Mukahana, a sister to
Liya's mother. Her evidence, though factual about Liya's marriage
to the deceased, was of no value in clarifying to this court whether
the deceased had another wife.
The
first defendant denied that she misrepresented herself as a wife and
argued that the obtainment of the letters and the sale of the house
were all above board in accordance with the law. Her evidence was
that she met the deceased in 1989 and had a child with him in 1991.
She said their relationship had continued until 1993 when the
deceased expressed his intention to marry and that he had done so at
her parents' house in Highfields. She said the deceased was
accompanied by his brother, one Raphael Nyaunga, since deceased.
However, he did not finish paying for everything charged.
Asked
if there was any documentation regarding the payment of lobola
she stated that her brother, who took notes, had since died and
therefore she could not confirm proof of the ceremony. She admitted
knowing that Isaac had a wife but insisted he had denied that they
had a registered marriage. She also confirmed, in cross-examination,
that besides herself she knew of a total of three other women who had
been in the deceased's life and mentioned them by the names of
their children. Her evidence was that Isaac resided with her in her
flat in Mufakose initially spending one night there but that he had
gradually moved in with her.
Regarding
the registration of the estate she said she had waited to be
approached but no one had approached her. She also claimed that she
was unaware that the plaintiff had been made an executor of the
estate. When no one approached her that is when she decided to
register the estate in 2012. She did admit though that soon after the
deceased's death a car belonging to the deceased had been taken
away from her. She had tried to assert her claim to the car on the
basis that she had paid for it. Of relevance is that the judge in
that case, namely HH82-04, had alluded to the deceased's monogamous
marriage, a fact that the first defendant admitted had not been
challenged by appealing the decision as having been founded on an
incorrect set of facts. The judge had described the facts relating to
the deceased's marital as follows:
“The
background to the main application is that the Respondent was married
to the late Isaac Chabveka on the 12th
June 1995 in terms of the then Chapter 37 which is now Chapter 5:11.
This type of marriage is a civil marriage which does not co-exist
with any other marriage - it is monogamous.
During
the subsistence of the civil marriage, the late Isaac Chabveka
entered into a sexual relationship with the applicant, Magna Mureche
Muganhiri. The two cohabited as man and woman resulting in the birth
of a child.”
The
first defendant admitted that when she came to register the estate
she was only accompanied by her brother's child and her own son.
She stated that she only became aware of the double registration when
the buyer of the property was trying to evict the tenants.
The
second defendant's main assertion was that she purchased the
property as an innocent person and followed all the necessary
procedures as required by the relevant authorities and as facilitated
by her lawyer. Any wrongful acts, she maintained, were outside her
purview as a bona
fide
purchaser. She argued that there was no basis for reversing the sale
to her prejudice since the other beneficiaries to the estate could
address their prejudice by claiming their share from the first
defendant.
In
laying out the first defendant's position, counsel
for
the first defendant
painted a picture, in cross examination, supported by documented
letters of complaint, of gross incompetence in the winding up of the
estate stemming not only form the inordinate delay it was taking to
wind up the estate but also from the fact that the plaintiff was
unaware, as executor, that there were other beneficiaries. The fact
that the plaintiff is a lawyer of 23 years standing was also used to
highlight that despite this reality the winding was anything but that
of a professional and experienced executor. In particular,
correspondence from Dururu & Associates, lawyers acting on behalf
of one Kednus Chinanzvavana and Tendai Chabveka, who had registered
claims against the estate, was used in support of the contention of
grave incompetence and lethargy on the part of the plaintiff in
winding up the estate. Also put in the open was that on 10 January
2011, upon enquiry, this firm of attorneys had been advised by the
plaintiff, in a response dated 8 March 2011, that his firm were not
the executors and that they in fact were no longer administering the
estate as the widow had failed to put them in a position to conclude
the matter. The Master had, however, clarified by attaching Mr
Dondo's Letters of Administration that he was in fact still the
appointed executor. But
despite resuming his administration the dissatisfaction with his pace
of operation was so deep that in one of the letters to the Master, in
October of that year, Dururu & Associates had sought from the
Master his removal as executor.
The
issues placed before this court in the joint pre-trial conference
minute as calling for decision are:
1.
Whether the first defendant was lawfully married to the late Isaac
Chabveka taking into account that the late Isaac Chabveka was married
to Liya Apololi in terms of the Marriage Act [Chapter 5:11]?
2.
Whether the disposal and transfer of Stand 4303 Highfield Township,
Harare by the first defendant to the second defendant was valid at
law under the circumstances?
3.
Whether the second defendant purchased the Stand in dispute and
acquired transfer thereof in good faith?
4.
Whether the plaintiff is entitled to the relief sought?…,.
Whether
disposal of Stand 4303 was lawful under the circumstances
Disposal
of assets of the estate falls in the hands of the executor upon due
authority from the Master. Furthermore, an executor remains in office
unless and until they have been lawfully relived of their duties
whether statutorily, at the instance of the Master, or at the
instigation of a beneficiary under common law.
See
F
Katirawu v D Katirawu
2007
(2) ZLR 64.
Counsel
for the first defendant argued that section 26 of the Administration
of Estates Act [Chapter 6:01] permits the appointment of two
executors and therefore the fact that there are two executors cannot
be the basis for failure to recognise the second appointment.
Factually,
this case is not one where two executors were appointed with the full
knowledge of each other or with the knowledge of the Master. It is
clear that the second appointment was made oblivious of the fact that
the estate had been registered already and that an executor had been
appointed by the Master.
The
argument by counsel for the first defendant cannot salvage the first
defendant's appointment on this basis.
Also
put forward was the argument by same counsel that in reality what
this court ought to decide is whether the estate, in fact, had an
executor at the time that the first defendant approached the court to
register the estate. This argument draws strength from the letter
dated 11 February 2011, written by then the plaintiff's firm to
Dururu Associates referred to earlier in which it was stated that to
the best of their recollection they had not been put in a position to
finalise the estate and that they were not the duly appointed
executor.
The
plaintiff's explanation was that the letter had been written in
error due to the effluxion of time that had elapsed without the
parties furnishing him with the necessary information.
That
the letter was written largely in error is supported by the fact that
when the appointment of the new executor was sought by Dururu and
Associates in light of the response they had received from the
plaintiff, the Master had written them a letter attaching the
plaintiff's Letters of Administration granted to him in 2004. This
letter is dated 29 March 2011. These letters were all produced as
exhibits by counsel for the first defendant. That the Master regarded
the plaintiff as still being the appointed executor is further
confirmed by yet another letter produced in evidence written by the
Master to the plaintiff on 23 November 2011, in his capacity as
executor, and calling for a special meeting with him and the
beneficiaries. The meeting had been moved to January 2012.
Clearly,
therefore, when the first defendant registered the estate in 2012 it
cannot be claimed that the estate was rudderless, in the legal sense,
as the plaintiff was most certainly still the executor….,.
The
first defendant's falsification of vital information in order to
obtain Letters of Administration can never be sanctioned by any court
of law as justifying her behaviour. Since the first defendant
confirmed that she was aware that the deceased had children with
three other women in total and that she knew their names, she knew
fully well that she could not possibly have been the only beneficiary
with her son. Furthermore, her explanation that she excluded the
other beneficiaries because she too had been excluded does indeed
confirm that she must have known then that the estate had been
registered - a fact that she should have drawn to the attention of
the Master. Thus, when she approached the Master and indicated that
she and her son were the only survivors she knew she was lying. Her
attempt at explaining away the detail in her affidavit placed before
the court as an exhibit in which she swore to being the deceased's
only surviving relatives as having been made with reference to his
having no relatives here since the deceased's father was Malawian
cannot stand. It lacks veracity as clearly she knew that by saying
she and her son were his only beneficiaries her statement would
mislead. Her omission of the detail relating to the other children
was deliberate and designed to deceive the Master into granting her
the Letters as a surviving spouse.
Where
a person deems themselves to be a beneficiary then they must register
their claim with the executor. Thereafter, if they are dissatisfied
with the manner of administration there are statutory provisions in
place that ought to be harnessed for the removal of such an executor
at any point during the course of administration. While generally
courts will not remove an executor lightly, they will most certainly
do so in the face of legitimate reasons, since, at all times, the
guiding principle is always to protect the interests of the
beneficiaries. In practice, the factual basis upon which removals
have been sought include omission of beneficiaries, the source of
grievance and machination herein, mismanagement and delays in winding
up the estate as also alluded here. That the plaintiff was not
removed as executor was probably to give him a chance to rectify his
ways.
As
for the disgruntled, the answer does not lie in falsifying
information to gain an upperhand. There is no evidence that the first
defendant, despite her disgruntlement as a purported beneficiary
together with her son, had ever properly placed her claim before the
executor. The law does not, and will not, condone the assertion of
claims through devious machinations. Deplorable and inexcusable as
tardiness in administration always is, the reality is until such
executor is legally removed whether in terms of the Administration of
Estates or under common law they remain in office. A party who
clandestinely re-registers such an estate without the formal removal
of the first executor cannot hope to excuse their illegal act on the
basis of surrounding circumstances relating to the administration.
The
first appointment remains valid.
This
position is amply covered in case law. In Julius
Ndemera & Anor v Siphelile Moyo & Ors
HH107-09
CHITAKUNYE J commented as follows as regards the appointment of a
subsequent executor in circumstances where the first had not been
removed:
“It
is my view that the 1st
Respondent's purported appointment as executrix cannot
automatically invalidate an earlier appointment. The appointment of
an executor dative is not revoked by a mere subsequent appointment of
another executor.”
Where
it has been shown that an executor materially misrepresented facts
that led to his appointment, he will always be removed.
Legal
Standing of Purchase by the Second Defendant
It
is not disputed that the second defendant bought the house from the
first defendant. What falls for decision is whether she can maintain
title as a bona
fide
purchaser under circumstances where the first defendant clearly got
her Letters of Administration through misrepresentations of fact that
she was a spouse and that she and her son were the only survivors.
The
attempt to put the purchaser on par with those instances where a
party buys property from one with title unaware of an ongoing
dispute, is, in my view, also misplaced. In
casu,
the Letters of Administration had been granted on the basis of false
information. The first defendant's actions were therefore a nullity
and she had no title to pass. Cases where executors obtain Letters
under misrepresentations and proceed to sell such property have been
equally dealt with by our courts. It is such cases that will guide
this court in this instance as there are the ones of relevance. The
Master's report is clear that when consent was granted to the sale
of the property this was on the basis of the information that had
been given to him by the involved parties. In this instance, the
information was given by the first defendant - which information was
materially false.
As
for the person who, however, innocently purchases property from such
an illegally appointed executor, our case law is clear too in this
regard. In Ndemera
& Anor v Siphelile Moyo & Ors
HH107-09,
where parties had acquired property through a second executor whose
appointment was deemed void
ab initio,
it was held that such executrix had no title to pass. Accordingly,
the Agreement of Sale was said to be a nullity and that the
contention by the applicants that they were innocent purchasers could
not give life to a nullity. See also
M
Katsingo v H Charlie & Ors
HH06-09.
Also,
in F
Katirawu v D Katirawu
2007
(2) ZLR 64,
an executor had obtained Letters of Administration on the pretext
that he was a son of the deceased and that he was the only
beneficiary. When his appointment was challenged, the purchaser of
the property opposed the application to have the sale declared null
and void on the grounds that she was an innocent purchaser. MAKARAU
JP…, held that the appointment having been procured by fraud
nothing legal could flow from it. Furthermore, the rights which the
purchaser believed they had acquired were deemed to be tainted by the
same illegality. As she put it:
“It
is as if there was never a sale between her and 1st
Respondent, and, consequently, no rights can flow from a non-sale in
her favour. The sale and consequent cession in her favour amount to
nothing at law for nothing legal can flow from a fraud.”
So,
whether the second defendant purchased in good faith is neither here
nor there since the key point is that the first defendant could not
legally pass title as she had been appointed as executor under a
clear misrepresentation of facts. She and her son were not the only
survivors and neither was she the deceased's wife. The second
defendant's claim for the return of the purchase price ought
accordingly to be against the first defendant.
It
would open the floodgates of abuse for the administration of deceased
estates in particular were the courts to allow property sold by a
person who had obtained authority through misrepresentation to be
retained by the so-called innocent purchaser.
The
plaintiff is therefore entitled to the relief sought….,.
Accordingly,
it is hereby ordered as follows:
1.
The sale and transfer to the second defendant of Stand 4303 Highfield
Township is set aside.
