On
3 May 2007, the plaintiff issued summons out of this court seeking
the nullification of an Agreement of Sale that was entered into
between the first defendant and the late Gladys Mutasa; the
nullification of the appointment of the second defendant as an
executor in the estate of the late Augustine Katsiga; the
nullification of the distribution account that was confirmed by the
third defendant in that estate; a declaration that three minor
children of the late Augustine and Gladys Mutasa are the
beneficiaries of their late father's estate; the transfer of Stand
6673 Ruwa Township of Dispute Estate measuring 609m² into the names
of the three minor children and costs of suit against the first and
second defendants.
The
first and second defendants contested the action.
The
plaintiff and the first and second defendants gave evidence in
person. In addition, the plaintiff produced 14 documentary exhibits
and called two witnesses while the first defendant produced two
documentary exhibits and called four witnesses. The second defendant
produced three documentary exhibits and was the only witness in his
defence. The two witnesses who were called by the plaintiff were two
members of the Norton branch of the Jesus Embassy Church, Gift
Chilengwe and Fadzisai Mutatabikwa, while the four who were called by
the first defendant were her erstwhile legal practitioner based in
Murewa, Benjamin William Chirambasukwa; her nephew Briam Mafemba
Charlie; her maid Gaudencia Gula and Mafunasi Gula.
THE
ISSUES
At
the pre-trial conference that was held on 16 April 2008, seven issues
were referred to trial. They were worded as follows:
1.
Whether or not the late Gladys Mutasa had authority to sell Stand
6673 Ruwa Township.
2.
Whether or not the late Gladys Mutasa sold Stand 6673 Ruwa Township
to the first defendant.
3.
Whether the sale should be declared a nullity.
4.
Whether the appointment of the second defendant as executor was
valid.
5.
Whether the confirmed distribution account is valid or not.
6.
Who is the rightful beneficiary of the estate of the late Augustine
Katsiga.
7.
Whether the Stand should be transferred to the minor children of the
late Augustine Katsiga and the late Gladys Mutasa.
THE
AGREED FACTS
These
were the facts and events which were not disputed during trial. The
late Augustine Katsiga (Augustine) married the late Gladys Mutasa
(Gladys) by civil rites on 7 October 2000. The union was blessed with
three children, that is, Kelvin Philbert Katsiga, born 11 June 1992;
Tafadzwa Ignatious Katsiga, born 8 March 1997; and Augustine
Tinotenda Katsiga, born 4 December 2001. Augustine Katsiga was the
registered owner of an undeveloped Stand in Ruwa, commonly known as
Stand 6673 of Ruwa Township (the Stand). The title deeds were
produced as exhibit 4.
He
died on 26 October 2002 and was survived by his wife and three
children. His wife died on 3 November 2005 and was survived by the
three children. The plaintiff was the sister to Augustine Katsiga. On
16 April 2007 she was appointed the guardian of the three children by
the Children's Court. The information concerning the dates of death
and appointment as guardian are found in exhibits 1, 2 and 3,
respectively.
Exhibit
5, though in contention, was produced by consent. It consists of
three photocopied one-paged documents. The originals of the second
and third documents were produced by the first defendant as exhibit
15. The three documents were prepared by the first defendant. While
the first and third documents are not dated, the second document is
dated 26 April 2005. These documents purport to be a memorial of an
Agreement of Sale entered into between Augustine and Gladys as the
sellers and the first defendant as the buyer.
Gladys
and her children resided at D14 Flamingo, Norton while the first
defendant lived at 3835 Instamac, Norton. They all attended Jesus
Embassy Church in Norton together with Gift Chilengwe (Gift),
Fadzisai Mutatabikwa (Fadzisai) and Mafunasi Gula (Mafunasi). By the
end of October 2005 Gladys was seriously ill. She was in pain, could
not walk, and was bedridden.
Gladys'
condition deteriorated. The first defendant, who was an influential
member of her church, made an appeal in church for the sum of $5
million to buy food and medicines for Gladys Mutasa. The church
failed to raise the amount sought. The first defendant advanced the
required amount to Gladys Mutasa. The church undertook to refund her.
The
plaintiff came to know the first defendant towards the end of October
2005. The first defendant telephoned her and demanded the sum of $5
million. She indicated that she would not surrender the title deed to
the Stand and other documents unless the money was repaid. The
plaintiff went to Norton to pay the money. The first defendant
increased her demand to $7,2 million averring the new amount included
interest. When she attempted to pay the increased amount the first
defendant declined to accept it; intimating that the title deed was
in the possession of her legal practitioners in Murewa.
In
the meantime, Fadzisai Mutatabikwa, Gift Chilengwe, the first
defendant and Marvelous Gula (also known as Floyd's mother) made
what was to be their last visit to Gladys Mutasa. She failed to rise
from her bed. When they were identified as her fellow church members,
she asked them to help her recover the title deed, her national
identity card, her marriage certificate, her husband's death
certificate and her children's birth certificates from the first
defendant. Apparently they had been handed to her by the maid under
the pretext that she required the birth certificates to register the
children for school.
The
maid had given her the file with all the documents. Gift Chilengwe
asked the first defendant, in the presence of Fadzisai Mutatabikwa,
to return the documents. The first defendant stated that she would
only do so after Gladys Mutasa refunded her the $5 million that she
had loaned to her.
Gladys
died at Kadoma on 3 November 2005. The first defendant was advised of
her death by the plaintiff but she did not attend the funeral.
In
November 2005, Mr. Chirambasukwa prepared exhibit 9, an agreement for
the sale of the Stand in question, between the first defendant and
Laston Tachiona (Laston). The first defendant signed the agreement in
November at her residence in Norton while the purchaser, Laston
Tachiona, signed it on 14 December 2005 at Chirambasukwa and
Associates offices in Murewa. Laston Tachiona paid the purchase price
of $220 million on 13 December 2005. On 16 December 2005, the first
defendant executed a power of attorney authorizing Mr. Chirambasukwa
to transfer the Stand to Laston. In both documents she misrepresented
that she was the registered owner of the Stand. The transfer failed
and Laston Tachiona reported her to the police for fraud before he
cancelled the agreement and demanded the purchase price. In exhibit
13, the first defendant agreed to refund Laston the purchase price by
31 January 2006. She then sold the Stand to Florence Sibongo on 18
January 2006 for $750 million.
On
9 January 2006, two events occurred. The plaintiff retrieved the
documents which Gladys's maid had given to the first defendant. She
also registered Augustine's estate, reference DR50/06, oblivious of
the fact it had been registered by Gladys in 2003.
On
15 February 2006, the first defendant filed a court application, case
number HC877/06, against Gladys seeking an order for the transfer of
the Stand to her in terms of the Titles, Registration and Derelict
Lands Act [Chapter 20:20].
She
falsely declared in both her founding and supplementary affidavits,
which were produced as exhibit 19 and 8, respectively, that Gladys
was the executor dative in the estate of Augustine; that she last saw
her in December 2005; that she had only been advised of her death by
the plaintiff in February 2006 and that the plaintiff had declined to
provide her with the names of Gladys' relatives. In exhibit 16, her
opposing affidavit to the urgent application brought by the plaintiff
to stop the transfer of the Stand to her, she indicated that she knew
where Gladys' mother resided. Her court application for transfer
was struck off the roll on 17 May 2006.
On
7 and 16 August 2006, at her instigation, the Master called for an
edict meeting in the estate of Augustine. The Master dispatched
notices of the meeting to the residence of the first defendant and
the house where Gladys used to reside in Norton. The first defendant
did not advise the Master of the address of Gladys's mother. She
was aware, at the time, that the plaintiff was a police woman based
at Mabelreign police station and had her contact details yet she did
not provide this information to the Master. The Master was prevailed
upon by the first defendant to appoint a neutral executor and
appointed the second defendant on 8 September 2006.
On
19 September 2006, the second defendant perused the Master's file
on the estate of Augustine. He noted that Gladys had not been
appointed an executor and that the purported sale of the Stand had
not been sanctioned by the Master. He also noted that case number
HC877/06 had been struck off the roll. He however accepted the
validity of exhibit 5, and, without receipts to prove that payment in
the sum of $135 million had been paid, acknowledged that the first
defendant had done so before accepting payment for the balance of the
purchase price of $65,000= (after the removal of three zeroes from
our currency in August 2006).
The
second defendant compiled exhibit 6, the Distribution Account in the
estate of Augustine Katsiga, on 1 November 2006. He awarded the Stand
to the first defendant on the ground that she was a creditor to
Augustine's estate. He stated that Gladys, as the surviving spouse
of Augustine, was entitled to receive the Stand.
He
submitted his report to the Master and advertised it in the Herald
and Government Gazette of 16 February 2007. Before the advertisements
were flighted, the plaintiff came to his offices with a police
officer who was based at Norton police station and Laston Tachiona.
She complained that he was conniving with the first defendant to
cheat the minor children of Augustine of their inheritance.
On
13 March 2007, at his request, the Master confirmed the account. He
did not advise the Master of the complaint he had received from the
plaintiff. He prepared exhibit 18, the Consent to Transfer of
Immovable Property, E.D.16 Form, for the transfer of the property
from the Estate of Augustine to the first defendant. The Master gave
his consent to the transfer on the same date. He then referred it to
the first defendant's legal practitioners for conveyancing. The
defendant attempted to sell the Stand to Nyarai Nyandoro on 17 April
2007. On that day, the plaintiff registered her complaints with the
Master, who, on 23 April 2007, recalled the Distribution Account and
directed the executor to stop the transfer of the property to the
first defendant pending the resolution of the complaints.
The
transfer was stopped by the urgent chamber application which was
launched by the plaintiff and the subsequent consensual order of this
Court of 17 May 2007. Despite the interdict against her, she
attempted to sell the Stand to Nyikayaramba in October 2007.
THE
DISPUTED FACTS
The
contentious issues between the parties were on the authenticity of
the documents that make exhibit 5 and the validity of the appointment
of the second defendant as the executor in the estate of Augustine
Katsiga. The plaintiff was adamant, both in her evidence in chief and
under cross-examination, that exhibit 5 was a forgery. She also
maintained that the second defendant was appointed as a result of a
flawed process that was driven by the first defendant.
The
first defendant insisted that exhibit 5 was authentic and denied
misleading and manipulating the Master into appointing the second
defendant. The second defendant, on the other hand, opined that he
did not solicit for appointment and stated that once appointed he
acted professionally and scrupulously observed the dictates of the
law.
I
resolved the disputed facts in favour of the plaintiff for the full
reasons that appear in the determination of each issue that was
referred to trial. Suffice it to add that I found the plaintiff and
her two witnesses to be truthful witnesses. Her two witnesses were
unknown to her until after the death of Gladys Mutasa. They
volunteered to testify on her behalf. They were closer to the first
defendant. On the other hand, I did not believe the first defendant
and her witnesses where their evidence differed with that of the
plaintiff. The defendant was a pathological liar. She prevaricated in
her testimony. The version of her witnesses was not canvassed with
the plaintiff's witnesses when they were cross examined. Her
witnesses also differed with her on matters in which agreement was
expected. Mr. Chirambasukwa did not assist her in her bid to show
that exhibit 5 was genuine. He also drew misleading documents which
falsely painted her as the registered owner of the Stand.
As
for the second defendant, I was satisfied that his appointment was
based on a flawed process that was designed to exclude Augustine's
relatives. By his own admission, in cross-examination, the executor
failed to make a diligent search for Augustine's relatives. When
the plaintiff presented herself to him, instead of working with her,
he rebuffed her. He awarded the Stand to the first defendant
well-knowing that the purported sale was invalid. He had no proof
that the first defendant had paid $135 million in reduction of the
purchase price. He deliberately misrepresented that Gladys had been
appointed an executrix. His fees were paid by the first defendant and
he was defended by her legal practitioner in this trial.
RESOLUTION
I
turn to determine each issue that was referred to trial.
1.
Whether or not the late Gladys Mutasa had authority to sell Stand
6673 Ruwa Township.
The
evidence led at the trial demonstrated that Gladys registered the
estate of her late husband but was never appointed executrix. It was
common cause that the Stand in question belonged to her late husband.
Exhibit 4, demonstrated, beyond doubt, that he held title to the
Stand. On his death, the Stand vested in his estate. In our law, an
executor is the only person who is looked upon by the court as the
person to represent the estate of the deceased. This position was
enunciated in 1890 by DE VILLIERS CJ in Fischer
v Liquidators of the Union Bank
8
SC 46…,. It has been religiously followed by our courts ever since
in such cases as Clarke
v Barnacle NO & Two Ors
1958 R&N 348 (SR)…,.; Mhlanga
v Ndlovu
HB54-04; and Nyandoro
& Anor v Nyandoro & Ors
HH89-08.
I
agree with the submission by counsel for the plaintiff that Gladys
Mutasa did not have the legal power to dispose of the property….,.
3.
Whether the sale should be declared a nullity
Counsel
for the first and second defendants made the ingenious submission
that the sale had been validated by the Master when he approved the
distribution account on 13 March 2007.
Neither
the Master nor, for that matter, a court of law could validate an
invalid sale. Such a sale does not exist. It is well to remember the
timeless words of LORD DENNING in McFoy
v United Africa Co Ltd
[1961] 3 All ER 1169 (PC)…, which were quoted with approval in
Jensen
v Acavalos
1993 (1) ZLR 216 (S)…., that:
“Every
proceeding which is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay there. It will
collapse.”
The
Master could not validate a sale that never was. He recalled the
confirmed distribution account in exhibit 7 on 23 April 2007 after
his error had been brought to his attention by the plaintiff.
The
only reasonable conclusion to draw from either of my findings in
answer to the first and second issues is that the sale was a nullity.
Firstly, for the reason that there was no sale in the first place,
and, secondly, that even if the sale was executed, it was invalid
because Gladys Mutasa was not an executor to the estate of her late
husband. It would also appear that even if she were the executor, the
absence of the Master's prior consent to the sale by private treaty
would, in terms of section 120 of the Administration of Estates Act,
have been invalid.
I
hold that the purported sale was a nullity….,.
1.
The Agreement of Sale in respect of Stand Number 6673 Ruwa Township
of Dispute Estate entered into between the first defendant and the
late Gladys Mutasa be and is hereby declared null and void.