CHITAKUNYE
AJA:
This
is an appeal against the whole judgment of the High Court (“the
court a
quo”)
handed down on 15 June 2011 wherein the court a
quo
granted an application for a declaratur that the sale and transfer of
Stand 382 Good Hope Township to the appellant was null and void.
FACTUAL
BACKGROUND
The
matter before the court a
quo
was a court application for a declaration of the sale and
registration of Stand 382 Good Hope Township of Subdivision B of Good
Hope into the appellant's name as being null and void.
In
November 1999 the first respondent entered into an agreement of sale
in terms of which he purchased an immovable property, namely Stand
382 Good Hope Township of subdivision B of Good Hope, from the estate
of the late Johanna Maria Francisca Logan as represented by the
executrix testamentary of the estate.
The
immovable property was transferred to the first respondent on 2 April
2007 by virtue of deed of transfer number 1597/2007.
On
1 October 2006, one Tsungirai Musenha and the appellant, represented
by third respondent, filed an application in the Magistrates' Court
in Case No.12060/06 citing Robert Adrian Campbell-Logan, estate late
Maria Johana Campbell-Logan and the Registrar of Deeds as
respondents.
They
alleged therein that the second respondent had sold to them and they
had purchased Stands Numbers 412 and 382 Good Hope Township of
Subdivision B of Good Hope.
On
5 October 2006 a rule nisi
was granted by the Magistrates' Court, interdicting the 3
respondents and all those acting through them from disposing or
transferring to anyone Stand Numbers 412 and 382 respectively
being subdivisions of the remainder of subdivision B of Good Hope
held under Deed Number 6180/95 pending the return date.
The
return date was, however, not stated in the order.
On
29 November 2006 the sixth respondent issued Letters of
Administration appointing the third respondent as executor dative
to administer the estate of the late Maria Johanna Francisca
Campbell-Logan, for the sole purpose of effecting transfer of
Stand Number 382 into the name of Cosma Chiangwa, (the appellant
herein).
On
4 July 2007 Stand 382 was transferred into the name of the
appellant by deed of transfer 4079/2007.
This
prompted the application in the court a
quo
wherein the first respondent sought an order that
the sale, registration and transfer of the property in question to
the appellant be declared null and void, that the appointment of the
third respondent as executor
dative
of the estate of the late Maria Johanna Francisca Campbell-Logan be
declared null and void and that the first respondent be declared
the sole owner of the property in question.
The
first respondent averred that the
appointment of the third respondent as the executor dative
of the estate during the lifetime of the executrix testamentary and
during a period when the executrix testamentary was still holding
office and was not incapacitated was not valid in law. He also
averred that when the second respondent sold Stand 382 to the
appellant, he had no title to pass and that the sale was done in the
second respondent's personal capacity and without authority.
He
further averred that when the second respondent sold the property to
the appellant he knew that it had already been sold to the first
respondent as he had co-signed the agreement of sale between the
first respondent and the executrix testamentary.
Further,
it was also alleged by the first respondent that the fourth
respondent registered the property into the name of the appellant
without checking his register.
Furthermore,
that the fifth respondent, who was the conveyancer of the property
did not perform due diligence before drafting and lodging
conveyancing papers with the Deeds Registry. Had he exercised due
diligence and care he would have discovered that the immovable
property belonged to the first respondent as it had already been
registered into his name more than two months earlier.
The
first respondent further indicated that the position that was stated
by the executrix testamentary in the letter of 1 September 2007 was
the correct position at law.
The
letter had raised, with the sixth respondent, the invalidity of the
appointment of the executor dative
as it was done when the executrix testamentary had not been removed
from office by a competent court or judge. It was thus averred that
the sixth respondent acted without authority when he appointed the
third respondent as executor dative
and consequently all acts done by the executor dative
in relation to the transfer of the property were of no force or
effect.
On
the other hand, the appellant contended that the application ought
not to succeed for the reason that the first respondent was alleging
fraud on the part of the persons who prepared and authored the
documents which are being challenged and that such persons would need
to be cross examined in trial proceedings.
Secondly,
he contended that there were disputes of fact which could not be
resolved on the papers, such disputes being in relation to how two
agreements of sale could have been concluded for the same property;
how the Master authorized third respondent to deal with the property
and how the first respondent (applicant then) sought to register his
property with the fourth respondent. These issues, he contended,
could not be adequately addressed in affidavits.
Thirdly,
he contended that the first respondent did not challenge or cause the
suspension of the 'compellation order authorizing transfer of the
property in issue emanating from Case No 1206/06 granted by the
Magistrates Court in default on 8 November 2006.
He
further contended that the court therein decided that the property
belonged to him and until that order is suspended, the court a
quo
could not hear the first respondent's case.
The
appellant also contended that the first respondent had no real rights
over the property in question and that the Registrar of Deeds had
confirmed by letter that the property belongs to him. He contended
that the first respondent's supposed title deed is not a valid
title deed and does not confer any rights on him hence the first
respondent could not challenge the registration of a property which
he does not own. As such he averred that there was no double
registration of the immovable property in issue.
The
appellant further contended that the first respondent's purported
agreement of sale dated November 1999 with the executrix testamentary
was invalid because the executrix testamentary did not then have
authority from the sixth respondent to sell the property, such
authority only having been granted by the sixth respondent on 27
February 2006.
He
further averred that the first respondent had sued the wrong party as
he should have sued the estate from which his rights emanate in terms
of the agreement of sale.
The
appellant thus moved the court to dismiss the application with costs
on the higher scale.
After
considering submissions from the parties and papers filed of record,
the court a
quo
found that the appellant's deed was unlawful and therefore null and
void as his registration as owner was subsequent to that of the first
respondent over the same property.
It
was held that this was sufficient justification for the court to
declare the registration of the appellant as owner to be null and
void as
deeds
follow the sequence of their relative causes.
It
also found that at the time ownership was purportedly passed to the
appellant, the property no longer belonged to the estate but to the
first respondent thus it had no rights to transfer to the appellant.
Pertaining
to the executor, the court a
quo
found that the appointment of the third respondent was irregular in
that he was
appointed as executor dative
whilst the executrix testamentary was still alive, holding office,
not incapacitated and still sane, thus rendering any acts carried out
by him in the name of the estate as of no legal consequence.
The
court a
quo
further found that the property was sold to the appellant by the
second respondent who was an heir to the estate at a time when such
property had not yet vested in him.
It
was on this basis that the court a
quo
held the purported sale to be fraught with illegality and therefore a
nullity. It thus concluded that both the agreement of sale and the
deed of transfer in favour of the appellant were in the circumstances
null and void.
Pertaining
to the interdict, the court a
quo
found that the interim interdict granted had no return date and that
it could not have been the intention of the Magistrates Court for it
to be operative indefinitely as it could end up having the effect of
a final interdict.
It
further found that the first respondent was not a party to the
proceedings in that matter in which the interim interdict was granted
hence the order could not bind him.
On
this basis, it found that the purported transfer to the appellant was
invalid.
Aggrieved
by the decision of the court a
quo,
the appellant noted the appeal to this Court on the following
grounds;
1.
The Learned Judge a
quo
erred in failing to appreciate and make a finding that there was a
material dispute of fact regarding the validity of the agreements of
sale between appellant and first respondent and consequently the
deeds of transfer, which disputes could not be resolved on the
papers.
2.
The learned Judge a
quo
erred in her finding that the Regional, Town and Country Planning Act
has no application in this matter yet it is the law that regulates
agreements relating to the sale of land.
3.
The learned judge a
quo
erred at law in invalidating the appointed executor dative
and setting aside his actions when such an appointment was a legal
requirement for the purposes of transferring property into
appellant's name.
4.
The learned judge a
quo
erred at law in relying upon an agreement of sale which was never
placed before the court for its scrutiny.
ISSUES
FOR DETERMINATION
Three
issues arise for determination being;
1.
Whether or not the court a
quo
correctly found that there were no material disputes of fact.
2.
Whether or not the court a
quo
correctly found that the Regional, Town and Country Planning Act did
not apply in the present circumstances; and
3.
Whether or not the court a
quo
erred in invalidating the agreement of sale between appellant and
second respondent, the appointment of the executor dative
and subsequently the purported transfer of the property into the
appellant's name.
SUBMISSIONS
BEFORE THIS COURT
In
motivating the appeal, appellant's counsel submitted that the order
of the court
a
quo
was incompetent as it conflicted with another order of the
Magistrates Court in terms of which a rule
nisi
was issued prohibiting the second and third respondents from
transferring or disposing of the property in dispute.
He
submitted that the court a
quo
ought to have set aside that order, failure of which it remains
extant and commands obedience until set aside.
He
further submitted that the first respondent's agreement of sale
with the executrix testamentary of November 1999 is a nullity because
the executrix testamentary at the point of concluding the agreement
did not have authority to sell the property which consent she only
obtained on 27 February 2006.
Counsel
further submitted that the first respondent's case is premised on
an agreement of sale which is void ab
initio
for the reason that the sale was conditional upon the grant of a
subdivision permit in terms of the Town and Country Planning Act,
[Chapter
29:12].
It
was submitted that the said Act specifically proscribes such
agreements as in
casu.
He
also argued that there were material disputes of fact which could not
be resolved on the papers.
In
that light he moved that the appeal be allowed and that the matter be
referred for trial.
Conversely,
counsel for the first respondent submitted that the rule
nisi
did not have a return date hence it lapsed on 31 of December 2006 as
it could not have been the intention of the Magistrates Court that it
should operate indefinitely.
Counsel
also submitted that the property in dispute was sold to the appellant
by an heir who had no power to sell.
She
stated that the power to sell vested in the executrix testamentary
hence the sale was invalid. She further submitted that the executor
dative
(third respondent) had solicited for his own appointment so as to
transfer the property to the appellant which conduct she alleged was
improper as he was an agent for the appellant.
She
moved that the appeal be dismissed.
DETERMINATION
OF THE ISSUES
1.
Whether or not the court a
quo
correctly found that there were no material disputes of fact
The
appellant in his first ground of appeal averred that the court a
quo
erred in failing to appreciate and make a finding that there were
material disputes of fact regarding the validity of the agreements of
sale between appellant and first respondent and consequently the
deeds of transfer, which disputes could not be resolved on the
papers.
A
material dispute of fact arises where a party denies material
allegations made by the other and produces positive evidence to the
contrary. Generally in considering whether or not there is a material
dispute of fact, the court is enjoined to adopt a robust common sense
approach to such defenses when raised by litigants.
In
Soffiantini
v Mould
1956 (4) SA 150
(E)
the court made the following pertinent comments.
“If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to court on [application], then [application]
proceedings are worthless, for a respondent can always defeat or
delay a petition by such a device. It is necessary to make a robust,
common-sense approach to a dispute on [application] as otherwise the
effective functioning of the court can be hamstrung and circumvented
by the most simple and blatant stratagem. The court must not hesitate
to decide an issue of fact on affidavit merely because it may be
difficult to do so. Justice can be defeated or seriously impeded and
delayed by an over-fastidious approach to dispute raised in
affidavit.”
In
Muzanenhamo
v Officer in Charge CID Law and Order and Others
2013 (2) ZLR 604 (S) at 608A-F PATEL JA aptly stated, inter
alia,
that -
“As
a general rule in motion proceedings, the courts are enjoined to take
a robust and common sense approach to disputes of fact and to resolve
the issues at hand despite the apparent conflict. The prime
consideration is the possibility of deciding the matter on the papers
without causing injustice to either party.……………………
The
first enquiry is to ascertain whether or not there is a real dispute
of fact. As was observed by MAKARAU JP (as she then was) in Supa
Plant Investments (Pvt) Ltd v Chidavaenzi
2009 (2) ZLR 132 (H) at 136F-G:
'A
material dispute of facts arises when material facts alleged by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.'
In
this regard, the mere allegation of a possible dispute of fact is not
conclusive of its existence. …………….
The
respondent's defence must be set out in clear and cogent detail. A
bare denial of the applicant's material averments does not suffice.
The
opposing papers must show a bona
fide
dispute of fact incapable of resolution without viva
voce
evidence having been heard.
See the Room
Hire Co.
case, supra,
at 1165, cited with approval in Vittareal
Flats (Pvt) Ltd v Undenge & Others
2005 (2) ZLR 176 (H) at 180C-D; van
Niekerk v van Niekerk & Others
1999 (1) ZLR 421 (S) at 428F-G.” (underlining for emphasis)
Where
there is a material dispute of fact the court may dismiss the
application, order oral evidence or refer the matter to trial with
such orders as to pleadings as it sees fit.
Upon
a consideration of the alleged disputes of fact I am of the view that
the court a
quo
did take cognizance of the fact that the issue of the validity of the
agreements of sale could be resolved without resorting to trial.
The
appellant did not show that the issue was incapable of resolution on
the papers.
The
first respondent's papers were clear and concise.
He
entered an agreement of sale with the executrix testamentary in 1999.
The executrix received her letters of administration in 1998 and
obtained authority to sell in 2006 and thereafter in April 2007
transfer of the property was effected. That the first respondent's
transfer papers were lodged and signed for by the Registrar of Deeds
in April 2007 is without doubt.
The
executrix as the lawful representative of the estate had the right to
authorise transfer to first respondent when she did so.
On
the other hand, the appellant's registration papers were only
effected in July 2007.
Section
10 of the Deeds Registries Act, [Chapter
20:05]
provides
that:
“10
When registration takes place
(1)
Deeds executed or attested by a registrar shall
be deemed to be registered upon the affixing of the
registrar's
signature
thereto:
Provided
that no such deed which is one of a batch of interdependent deeds,
intended for registration together, shall be deemed to be registered
until all the deeds of the batch have been signed by the registrar.
(2)
If by inadvertence the registrar's signature has not been affixed
to a deed at the time at which the signature should have been affixed
in the ordinary course, the registrar may affix his signature thereto
when the omission is discovered, and the deed shall
thereupon be deemed to have been registered at the time at which the
signature should have been affixed.
(3)
All endorsements or entries made on title deeds or in registers in
connexion with the registration of any deed executed or attested by a
registrar shall be deemed to have been effected simultaneously with
the registration of such deed, although in fact they may have been
made subsequent thereto.” (Underlining for emphasis)
By
virtue of this section the first respondent's title was deemed to
have been registered on 2 April 2007 under transfer number 1597/2007
when the registrar affixed his signature.
Section
11 of the Act further provides for deeds to follow sequence of their
relative causes in these words:
“(1)
Save as otherwise provided in this Act or as directed by the court —
(a)
transfers of land and cessions of real rights therein shall
follow the sequence of the successive transactions in pursuance of
which they are made,
and if made in pursuance of testamentary disposition or intestate
succession they shall follow the sequence in which the right to
ownership or other real right in the land accrued to the persons
successively becoming vested with such right;
(b)
it shall not be lawful to depart from any such sequence in recording
in any deeds registry any change in the ownership in such land or of
such real right unless the registrar is satisfied that the
circumstances are exceptional and has consented to such departure:”
(underlining for emphasis)
From
the foregoing it was clear that the first respondent's registration
of title preceded the appellant's.
There
was nothing unclear about the first respondent's case in this
regard.
It
was the appellant's case that left one with more questions than
answers.
He
had purportedly bought the property from an heir who had no legal
right to deal with the property and appellant's agent was appointed
executor dative
upon his own solicitation when the executrix testamentary was still
in office.
He
then had proceeded to effect transfer of the property three months
after the first respondent had filed his transfer papers and the
registrar had acknowledged their receipt by affixing his signature
thereto thus complying with s10.
The
fact that the appellant's papers were inexplicably finalized first
by the fourth respondent does not detract from the sequence of the
lodging of the papers.
In
his papers the appellant had not proffered any reasonable explanation
to that course of events. Unfortunately for appellant ss10
and 11 protected the first respondent's position as the registrar
had affixed his signature on 2 April 2007.
It
was clear that with regard to the agreements of sale there was no
real dispute as to their sequence and parties thereto. The agreements
of sale had similar suspensive conditions acknowledging the state of
the subdivision.
The
first respondent's agreement of sale was entered into with the
executrix testamentary as the legal representative of the deceased's
estate. The appellant's agreement of sale, on the other hand, was
entered into with an heir who had no authority to deal in the
property to the exclusion of the executrix.
In
the circumstances the appellant's request to have the matter
referred to trial was only a delaying tactic hence it was not
granted.
In
my view there were no real material disputes of fact. The real issues
between the parties were capable of resolution on the papers without
the calling of viva
voce
evidence or referring the matter to trial. There was thus no
misdirection in this regard.
2.
Whether or not the court a
quo
found that the Regional, Town and Country Planning Act did not apply
The
appellant in his second ground of appeal averred that the court a
quo
erred in finding that the Regional, Town and Country Planning Act has
no application in this matter yet it is the law that regulates
agreements relating to the sale of land.
The
court a
quo
stated as follows with regards to this Act:
“None
of the arguments raised by the first respondent as detailed earlier
in this judgment can be of any avail to the first respondent in the
face of the above stated and established facts. It would appear to me
that the issue of whether or not the provisions of the Regional, Town
and Country Planning Act are applicable and if so with what effect,
cannot be of any avail to the respondents in the circumstances of
this case. Neither can it be the basis for this court in these
proceedings, to declare invalid the agreement of sale in favour of
the applicant. That agreement has not been subjected to scrutiny by
this court. The fact is that the applicant is currently registered as
the owner of the property and there is no basis for this court, in
these proceedings, to deny the relief sought by the applicant.”
The
above is what the court a
quo
said with regards to the Act in question.
It
did not make any findings that the Act did not apply but rather that
it would not delve into whether or not it applied in view of its
findings pertaining to the registration of the first respondent's
title that preceded that of the appellant which showed that he was
the owner of the said property as of 2 April 2007.
Such
registration of title was done with the authority of the executrix.
The
facts of the case did not call for such a determination.
A
reading of the judgment of the court a
quo
shows that the court did not make any determination on whether or not
the Act was applicable in this case
hence
the allegation by the appellant pertaining to this issue is misplaced
and this ground of appeal lacks merit and so must fail.
3.
Whether or not the court a
quo
erred in invalidating the agreement of sale between the second
respondent and the appellant, and the appointment of third respondent
as executor dative
and nullifying his subsequent actions
In
the third ground of appeal the appellant alleged that the learned
judge a
quo
erred at law in invalidating the appointment of the executor dative
and setting aside his actions when such an appointment was a legal
requirement for the purposes of transferring property into the
appellant's name.
It
is my view that the court a
quo's
findings with regard to this aspect cannot be faulted.
This
is so because there was a duly appointed executrix testamentary in
terms of the deceased's will. Such appointment had not been
nullified or set aside.
The
court a
quo
aptly made the following findings in this respect:
“Firstly,
the applicant purchased the property in issue from the estate as
represented by the executrix testamentary. The first respondent, on
the other hand, purchased the same property purportedly from the same
estate but in his case the estate was represented by the executor
dative.
It
is an undisputed fact that the executor dative
was appointed to the office while the executrix testamentary was
still alive, holding office, not incapacitated and still sane.
Neither had the executrix testamentary been removed from office.
Secondly,
the applicant's agreement of sale preceded that of the first
respondent.
Thirdly,
it is also clear from the papers that the property was registered
into the applicant's name on 2 April 2007 by deed of transfer
1597/2007 while the transfer to the first respondent was done 3
(three) months later on 4 July 2007 by deed of transfer 4079/2007.”
After
discussing the applicable law including ss
10, 11 and 14 of the Deeds Registries Act, the court a
quo
proceeded to aptly conclude that:
“… the
third respondent having been appointed as executor dative whilst the
executrix testamentary was still alive, holding office, not
incapacitated and still sane, was improperly appointed.
The
deceased had left a will in which the executrix testamentary was
appointed. The sixth respondent was thus not dealing with an
intestate estate. The third respondent's appointment as executor
dative was in the circumstances irregular and any acts carried out by
him in the name of the estate would thus be of no legal consequence.
According
to the affidavit placed before the magistrate in 12060/06, the second
respondent who is the heir to the deceased estate, sold the property
in issue to the first respondent. It thus appears that the second
respondent purported to sell the property before the property had
vested in him; hence arises the illegality and nullity of the
purported sale to the second respondent (sic).
Thus
both the agreement of sale and the deed of transfer in favour of the
first respondent are in the circumstances null and void.”
The
court a
quo's
findings in this regard cannot be faulted.
It
is trite that an executor/executrix is the recognized legal
representative of a deceased estate. He/she is appointed to
administer the estate and to ensure the estate is properly wound up
with all assets and liabilities being accounted for.
In
this regard s23
of the Administration of Estates Act, [Chapter
6:01]
(the Act) provides that:
“The
estates of all persons dying either testate or intestate shall be
administered and distributed according to law under letters of
administration to be granted in the Form B in the second schedule by
the Master….”
It
follows that in a case involving estates of deceased persons there
shall be appointed a representative who is empowered through letters
of administration to act for and on behalf of the deceased's
estate. This is so because the deceased estate cannot represent
itself.
In
terms of s25
of the Act a deceased estate is represented by an executor or
executrix duly appointed and issued with letters of administration by
the Master.
In
Nyandoro
& Anor v Nyandoro & Ors
2008 (2) ZLR 219 (H) at 222H-223C KUDYA J aptly restated the
legal position as follows:
“In
Clarke
v Barnacle NO & Ors
1958 R&N 358 (SR) at 349B-350A MORTON J stated the legal position
that still obtains to this day in Zimbabwe. It is that 'whether
testate or intestate, an executor, either testamentary or dative,
must be appointed…..so that the executor and he alone is looked
upon as the person to represent the estate of the deceased person.'
He
left no doubt that towards the rest of the world the executor
occupies the position of legal representative of the deceased with
all the rights and obligations attaching to that position and that
because a deceased's estate is vested in the executor, he is the
only person who has locus
standi
to bring a vindicatory action relative to property alleged to form
part of the estate.
Arising
from the nature of a deceased estate as described in Clarke
v Barnacle, supra,
and Mhlanga
v Ndlovu, supra,
it must follow that the citation of a deceased estate as a party to
litigation is wrong. The correct party to cite in lieu
of the deceased estate is the executor by name. The citation of the
second plaintiff and second defendant in
casu
was therefore improper and incurable. It makes their presence before
me a nullity.”
The
executor/executrix of an estate has certain rights and powers in
connection with the estate and certain duties to perform both at
common law and in terms of the Act.
In
The
Law and Practice of Administration of Estates,
5th
ed by D Meyerowitz at p123 the esteemed author states that:
“An
executor is not a mere procurator or agent for the heirs but is
legally vested with the administration of the estate. A deceased
estate is an aggregate of assets and liabilities and the totality of
the rights, obligations and powers of dealing therewith, vests in the
executor, so that he alone can deal with them.
He
has no principal and represents neither the heirs nor the creditors
of the estate.”
Further,
at p124 the author firmly states that:
“No
proceedings can be taken against the estate without making the
executor a party to them. Similarly, no person can institute
proceedings on behalf of the estate except the executor. The estate
cannot sue or be sued until an executor has been appointed.”
If
therefore the totality of the rights, obligations and powers of
dealing with a deceased estate is vested in an executor/executrix it
follows that the executor/executrix must invariably be cited by name
in any suit against the estate. Failure to cite the
executor/executrix would be fatal to an action against the deceased's
estate.
In
casu,
it is common cause that an executrix testamentary was still in office
when the second respondent purported to sell the property in question
to the appellant. The sale was without the consent or authority of
the executrix.
It
is also not seriously disputed that the executrix was not cited as a
party to the proceedings in the magistrates' court that the
appellant sought to rely on as authority for the third respondent's
actions.
The
appointment of the third respondent as executor dative
was done without citing or involving the executrix. It would appear
that the appellant and his agents chose to sidestep the executrix.
Such conduct was unlawful and rendered their subsequent actions a
nullity.
A
properly appointed executrix cannot simply be ignored or sidestepped
when dealing with a deceased estate.
If
there are any challenges with the executrix the proper procedure is
to first seek his removal from office.
An
executrix cannot be removed from office or incapacitated from dealing
with any asset of the estate by a purported appointment of an
executor dative.
It
must be acknowledged that courts
do not lightly remove an executor/executrix in the absence of
evidence of serious misconduct or incapacitation that would prejudice
the estate.
In
The
Master v Moyo NO & Ors
2009
(1) ZLR 119 (H) the court
held,
inter
alia,
that the removal of an executor should never be undertaken lightly.
If
the Master applies for the removal of an executor in terms of s117(1)
of the Administration of Estates Act [Chapter
6:01],
the court must be satisfied that the executor had failed to perform
satisfactorily any duty or requirement imposed on him by, or in terms
of, the law.
The
court also alluded to the legal position that in an application for
the removal of an executor, the executor should be cited in his
personal capacity, not in his official capacity as executor. When an
action is brought against an executor in
his
representative capacity, it is an action against the estate, rather
than one against the individual.
In
casu,
there is no evidence on record to show that the executrix
testamentary appointed by virtue of the deceased's will had been
removed from office at the time the executor dative
was appointed. The evidence, in fact, shows that the executrix was
still in office and administering the estate. There was no evidence
of any legal process or complaints for her removal from office.
In
light of this, the court a
quo's
finding that the appointment of the executor dative
was tainted with illegality cannot be faulted. As a consequence all
the actions he did subsequent to that faulty appointment were a
nullity.
This
ground of appeal therefore lacks merit.
The
court a
quo
could not have upheld an irregularity which in
casu
is the
unlawful appointment of an executor dative
to administer the estate in the face of an existing executrix
testamentary.
DISPOSITION
It
is evident from the above that all the grounds of appeal lacked
merit. In the circumstances the appeal must fail. On costs there is
no reason why costs should not follow the cause. The appeal must be
dismissed with costs.
It
is accordingly ordered that:
“The
appeal is hereby dismissed with costs.”
BHUNU
JA: I
agree
MATHONSI
JA: I
agree
Shava
Law Chambers,
appellant's
legal practitioner
Chigwanda
Legal Practitioners,
1st
respondent's legal practitioner
