CHITAKUNYE
JA: This
is an appeal against the whole judgment of the High Court (the court
a
quo)
handed down on 27 January 2022 dismissing the appellant's
application. After hearing submissions, we dismissed the appeal on
20 July 2023 for lack of merit. We indicated that our reasons will
follow. These are they.
THE
FACTS
The
appellant and the first, fifth to eleventh respondents are all
surviving children of the late Melusi Sibanda who died on 5 September
2005. On 7 May 2019, Clever Sibanda was appointed executor
dative
of the estate of the late Melusi Sibanda by Letters of Administration
issued on that date.
The
second respondent purchased an immovable property, being house number
501 Nkulumane, Bulawayo, from the estate of late Melusi Sibanda
during its administration by the executor
dative.
Though
the appellant alleges that he was named heir in a document purporting
to be a Will of the deceased, such assertion did not curry favour
with the appointing authority hence the appointment of Clever Sibanda
as executor dative
(executor)
on 7 May 2019.
The
appointment has not been challenged and is extant.
At
a meeting called by and held before the third respondent (the Master)
on 25 June 2019, it was resolved that the late Melusi Sibanda's
immovable property, that is house Number 501 Nkulumane, Bulawayo,
registered under a Deed of Transfer number 3478/2001 (“the
property”), would be sold with the consent of all the beneficiaries
thereto. The meeting was attended by the appellant and some of the
cited beneficiaries. The minutes of the above meeting before the
Master quote the appellant as having stated as follows in respect of
the property:
“Rental
was $120 per month to 2019 I have collected the rentals as the heir I
was chosen by my father, I am responsible to bring these siblings
together. I have archived (sic)
to take care of my mother, share the cattle, buried my father. I was
supposed to take care of my siblings I am surprised that they say
they do not know the Will. At law, the house can be sold according to
my father legacy, they can share rent if possible.
I agree to let the house be sold.”
On
12 March 2020, the Master, upon the executor's
application, issued a certificate of consent to sell the house
otherwise than by public auction in terms of section 120 of the
Administration of Estates Act, [Chapter
6:01].
On
1 September 2020, the executor duly entered into an agreement of sale
of the aforesaid property with the second respondent. He duly
received the purchase price and it was submitted that he distributed
the proceeds amongst the beneficiaries.
The
appellant was aggrieved by the disposal of the immovable property.
He
alleged that neither himself nor his other siblings, who are also
beneficiaries, had been consulted and hence they had not consented to
the sale.
Accordingly,
on 9 March 2021, he approached the third respondent for a meeting.
During that meeting, he had an opportunity to peruse the file
pertaining to the Estate Late Melusi Sibanda. He noted that a
certificate in terms of section
120 of the Administration of Estates Act [Chapter
6:01]
(the Act) had been issued on 12 March 2020. He also noted that
the immovable property had been valued at US$15,000.
Armed
with this information, the appellant filed a court application “for
unlawful disposal of deceased's immovable property”.
That
application was essentially a challenge to the issuance of a
certificate in terms of section 120 of the Act by the Master, which
authorised the executor to sell otherwise than by public auction, the
deceased's only immovable property.
In
his founding affidavit, the appellant alleged that no due inquiry was
undertaken by the Master before the issuance of the certificate and
that not all of the children of the late Melusi Sibanda had given
their consent for the disposal of the property. He averred that this
was contrary to the agreement of 25 June 2019 that this property
would only be sold with the consent of all the beneficiaries.
The
application was opposed by the second respondent who averred that he
was an innocent purchaser of the property in question. Further, he
denied that the beneficiaries had not been consulted and, in this
regard, he attached affidavits from the beneficiaries consenting to
the sale. In the second respondent's view, the executor's action
was bona
fide
as
all the beneficiaries had consented to the sale.
At
the hearing of the application, the appellant and the second
respondent raised preliminary objections which were all dismissed by
the court a
quo.
On
the merits, the court a
quo
held that the appellant could not competently challenge the sale
because the deceased's property had been properly sold. It found
that at the meeting of 25 June 2019, the appellant is recorded as
having unequivocally accepted that the house be sold. In regards to
the value of the property, the court a
quo
made a finding that no legal basis had been established for
interfering with the decision of the Master in issuing his authority
under section 120. Accordingly, the court a
quo
dismissed the appellant's application with costs.
Aggrieved
by the decision of the court a
quo, the appellant
noted the present appeal on four grounds of appeal. These are:
“GROUNDS
OF APPEAL
1.
The court a
quo
grossly erred in making a finding that the “applicant has not made
a case for the relief he is seeking” yet the appellant's Court
Application for Unlawful Disposal of the Deceased's Immovable
Property was heard in contravention of peremptory rules of the High
Court Rules, 1971 for filing and serving the notice of opposition and
peremptory rules of the High Court Rules, 2021 for setting down
opposed matters. The court a
quo
misunderstood and/or misinterpreted the appellant's points in
limine.
2.
The court a
quo
grossly misdirected itself in making a finding that “applicant has
not made a case for the relief he is seeking” yet the court a
quo
conveniently misinterpreted the resolution of the meeting held on 25
June 2020 (sic)
and ignored the executor's letter.
3.
The court a
quo
grossly erred in making a finding that “applicant has not made a
the case for the relief he is seeking” yet the court a
quo
did not apply the law according to section 5(1)(a) of the Deceased
Estates Succession Act [Chapter
6:02].
4.
The court
a
quo
grossly misdirected itself in making a finding that “the applicant
has not made a case for the relief he is seeking” yet the Deputy
Master of the High Court failed to conduct
proper due diligence in terms of section 120 of the Administration of
Estates Acts [Chapter
6:01].”
The
appellant prayed for
the
appeal to be allowed and for the setting aside of judgment of the
court a
quo.
He
also prayed for:
(i)
the setting aside of the certificate issued by the Master in terms of
section 120 of the Act;
(ii)
the setting aside of the sale of the immovable property in question;
(iii)
the placement of a caveat on the said property;
(iv)
for the Master to ensure that all beneficiaries consent to the sale
before the property can be validly sold; and
(v)
that the Registrar of Deeds is forbidden from transferring the
property to anyone without an order of the court and that if any
transfer had occurred it be reversed.
The
court holds that only two issues commend themselves for determination
and these are:
1.
Whether or not the court a
quo
erred in dismissing the appellant's preliminary points that the
application was heard in contravention of Rule 233 of the High Court
Rules, 1971 and Rule 59 of the High Court Rules, 2021.
2.
Whether or not the court a
quo
erred and misdirected itself in finding that the immovable property
was sold with the consent of all the beneficiaries and in accordance
with the law governing the administration of deceased estates.
SUBMISSIONS
BEFORE THIS COURT
The
appellant submitted, inter
alia,
that the court a
quo
erred in making a finding that he had failed “to make a case for
the relief he was seeking” yet his application challenging the
unlawful disposal of the deceased's immovable property was heard in
contravention of peremptory rules of the High Court Rules, 1971 for
filing and serving the notice of opposition and peremptory rules of
High Court Rules, 2021 for setting down opposed matters. He
submitted that the court a
quo
misunderstood and/or misinterpreted his points in
limine.
On
the merits, he submitted that the court a
quo
misinterpreted the resolution of the meeting held on 25 June 2019 and
ignored the executor's letter resulting in it holding that the
appellant failed to make a case for the relief he sought.
He
further took issue with the court a
quo's
alleged failure to apply section 5(1)(a) of the Deceased Estates
Succession Act [Chapter
6:02].
Lastly,
he submitted that the Master failed to conduct due inquiry in terms
of section
120 of the Act before issuing the authority to sell.
Per
contra,
Mr T.
Ndlovu,
Counsel for the respondent, submitted that, regarding service of the
notice of opposition, the appellant admitted that he was served with
the first notice of opposition. He further submitted that the
appellant also admitted to receiving the second notice of opposition
as well.
In
this regard, counsel submitted that the court a
quo
was correct in holding that the appellant did not suffer any
prejudice.
Counsel
further contended that rules are made for the benefit of the court
and that the court in terms of Rule 4C of the then applicable High
Court Rules, 1971 had the power to condone a departure from the rules
as the appellant had been served. The infractions the appellant
alluded to in his preliminary points were properly condoned by the
court a
quo.
On
the merits, counsel submitted that at a meeting held on 25 June 2019
before the Master, where it was resolved that the immovable property
would be sold by consent of all beneficiaries, the appellant
consented to the sale of the house.
He
contended that the minutes of the said meeting were never challenged
by the appellant as such he could not approbate and reprobate. He
submitted that the court a
quo
correctly found that according to the minutes, the appellant had
consented to the sale.
Further,
Counsel submitted that the other beneficiaries deposed to affidavits
in which they consented to the sale of the house.
In
this light, he averred that the Master did carry out due inquiry as
required of him. Counsel, as a result, prayed that the appeal be
dismissed with costs.
ANALYSIS
1.
Whether or not the court a quo erred in dismissing the appellant's
preliminary point that the application was heard in contravention of
Rule 233 of the High Court Rules 1971 and Rule 59 of the High Court
Rules 2021
The
nub of the ground of appeal relating to the preliminary points
dismissed by the court a
quo
is that the application a
quo
was heard contrary to the rules of the High Court.
The
appellant's gripe seemed to be that he had not been properly served
with the notice of opposition as it was not addressed to him. He thus
argued that the matter be treated as unopposed.
However,
the court a
quo
made
a specific finding of fact that the second respondent's notice of
opposition was filed and served in accordance with the Rules as the
appellant had admitted receipt of the Notice of Opposition.
On
this issue, the court a
quo
stated
at pp4-5 that:
“Applicant
by his own version first found the first copy of a notice of
opposition in the letter box, and was again on the 5th
November
2021 served with a second copy of the notice. Again, the copy of a
notice of opposition in the court file is copied to the applicant.
However applicant's name and address is in long-hand. The notice is
clearly copied to the applicant. This is what the rules require.”
It
is apposite to note that the second respondent's notice of
opposition was filed on 10 May 2021. On that date, the High Court
Rules of 1971 were still in force. Rule 233(1) of the High Court
Rules, 1971 provided that:
“(1)
The respondent shall be entitled, within the time given in the court
application in accordance with rule 232, to file a notice of
opposition in Form No.29A, together with one or more opposing
affidavits.”
The
date stamp on the application shows that it was filed on 26 April
2021. It was served on the second respondent on 27 April 2021. The
second respondent filed his notice of opposition on 10 May 2021 and
subsequently served it at the appellant's address by placing it in
a letter box after a person found at the address refused to accept
service.
In
terms of Rule 232, a notice of opposition and affidavit attached
thereto is required to be filed in not less than ten days, exclusive
of the date of service.
The
respondent must soon thereafter serve a copy of the notice of
opposition on the applicant.
A
respondent who fails to file a notice of opposition and opposing
affidavit within the period specified in the court application shall
be barred.
In
casu,
the appellant's contention was not that the second respondent had
failed to act within the dies
induciae
but that the notice of opposition filed was not properly addressed to
him.
The
alleged infraction as noted by the court a
quo
was that the applicant's name and address were hand-written and not
in typed form. The appellant having admitted to receiving the notice
of opposition, did not allude to any prejudice he suffered as a
consequence of his address being handwritten as opposed to being
typewritten.
It
was such an infraction that the court a
quo
held as not fatal and condoned it in the interest of justice.
As
aptly noted in Darangwa
v Kadungure
SC
126/21 at p11:
“The
rules of court are designed for the benefit of the court and the
proper administration of justice. As has been said, they are 'not
laws of Medes and Persians'. See Scottish
Rhodesian Ltd v Honiball
1973
(2) SA 747 (R) at p748. The rules are just the court's tools
fashioned for the court's own use and are not an end in themselves
to be observed for their own sake. See Federated
Trust Ltd v Botha
1978 (3) SA 645 at 654.”
This
Court will not easily interfere with findings of fact by a lower
court or tribunal unless it is satisfied that such findings are
contrary to the evidence adduced or so outrageous in their defiance
of logic that no reasonable person could have arrived at them. See
Nyahondo
v Hokonya & Ors
1997 (2) ZLR 475 (S) and Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S).
In
casu,
the facts evident from the record of proceedings show that the second
respondent's notice of opposition was filed within the requisite
period and served within time at the appellants address of service.
The
appellant admitted receipt thereof.
His
only gripe was that the pleadings were not addressed to him in the
typed form. He did not refer to any rule to the effect that the
address on pleadings must be in typed or printed form. The pleadings
filed of record show that the appellant's name and address were
handwritten. That is the 'infraction' the court a
quo,
in the exercise of its discretion, condoned.
The
court holds the view that the court a
quo
cannot be faulted for condoning such an 'infraction' if any, in
the interest of justice. There is thus no merit in the appellant's
argument on this aspect of the preliminary point.
On
the contention that the matter was set down contrary to peremptory
rules of the High Court Rules 2021 relating to the setting down of
opposed applications, the appellant was not clear as to which rule,
in particular, he believed had not been complied with.
As
a self-actor we allowed him to make his submission on the particular
aspects he felt had not been properly determined.
The
appellant submitted that the second respondent should not have filed
his heads of argument before the matter had been set down. His
understanding of the applicable rules was that a respondent could
only file its heads of argument after the court application had been
set down. In his view, it is only the applicant who can file heads
of argument before the matter is set down. In this regard, the
court a
quo
concluded
that
there was nothing in Rule 59 of the High Court Rules 2021 providing
that heads of argument could not be filed before an application was
issued with a set-down date. At p5 of its judgment the court a
quo
stated
thus:
“Applicant's
complaint is that second respondent's heads of argument were filed
before this matter was provided with a set-down date. I
take the view that this is a flimsy and meritless preliminary point.
Rule 59(60) (sic) cannot be interpreted to mean that heads of
argument cannot be filed before an application has been provided with
a set-down date. In fact, rule 65(10) is clear that a matter cannot
be set-down if the papers are incomplete, and my view is that if
heads of argument have not been filed the papers would be incomplete
and the matter would not be ripe to be provided with a set-down date.
This preliminary point has no merit and is refused.”
The
finding of the court a
quo
is
beyond reproach.
It
is pertinent to refer to the applicable sub-rules at the outset. Rule
59 sub-rules 18,19,20, 24 and 25 of the High Court Rules, 2021
provide, inter
alia,
as follows:
“(18)
If, at the hearing of an application, exception, or application to
strike out, the applicant or excipient, as the case may be, is to be
represented by a legal practitioner -
(a)
before
the matter is set down for hearing, the legal practitioner shall file
with the registrar heads of argument
clearly outlining the submissions he or she intends to rely on and
setting out the authorities, if any, which he or she intends to cite;
and (my emphasis)
(b)
immediately after awards (sic),
he or she shall deliver a copy of the heads of argument to every
other party and file with the registrar proof of such delivery.
(19)
An application, exception, or application to strike out shall
not be set down
for
hearing at the instance of the applicant
or
excipients, as the case may be, unless —
(a)
his or her legal practitioner has filed with the registrar in
accordance with sub-rule (18) —
(i)
heads of argument; and
(ii)
proof that a copy of the heads of argument has been delivered to
every other party; and
(b)
in the case of an application, the pages have been numbered in
accordance with rule 58(1).
(20)
Where an application, exception or application to strike out has been
set down for hearing in terms of rule 65 and any respondent is to be
represented at the hearing by a legal practitioner the legal
practitioner shall file with the registrar, heads of argument clearly
outlining the submissions relied upon by him or her and setting out
the authorities, if any, which he or she intends to cite, and
immediately thereafter he or she shall deliver a copy of the heads of
argument to every other party.
(21)
Heads of argument referred to in sub-rule (20) shall
be filed by the respondent's legal practitioner not more than ten
days after heads of argument of the applicant or excipients, as the
case may be, were delivered to the respondent:
Provided
that —
(i)
no period during which the court is on vacation shall be counted as
part of the ten-day period;
(ii)
the respondent's heads of argument shall be filed at least five
days before the hearing as long as the respondent shall not have been
barred in terms of sub-rule (22).
(22)
Where heads of argument that are required to be filed are not filed
within the period specified in sub-rule (21), the respondent
concerned shall be barred and the court or judge may deal with the
matter as unopposed or direct that it be set down for hearing on the
unopposed roll.
(23)……
(24)
In
relation to any application, exception, or application to strike out
which has been set down by a respondent, any reference —
(a)
in sub-rule (18) to the applicant or excipient, shall be construed as
a reference to the respondent;
(my emphasis)
(b)
in sub-rules (20), (21), or (22) to a respondent, shall be construed
as a reference to the applicant or excipients.
(25)
Where an applicant, excipient, or respondent is not to be represented
at the hearing by a legal practitioner,
he
or she may, if he or she so wishes, file heads
of
argument,
in
which event he or she shall comply with sub-rules (18) or (20) as the
case may be.”
It
is apparent from the above that where an applicant is to be
represented by a legal practitioner at the hearing, the mandatory
requirement is upon the applicant's counsel to file heads of
argument and seek the setting down of the matter. The respondent, who
is to be represented by a legal practitioner will then be required to
file his heads of argument within ten days from when they are served
with the applicant's heads of argument, and not from the date of
set down.
On
the other hand, where the applicant or excipient is not to be
represented by a legal practitioner, there is no mandatory
requirement for him to file heads of argument. He is, however, given
the discretion to file heads of argument if he so wishes. (See
sub-rule 25).
The
mandatory requirement to file heads of argument is upon a party who
is legally represented and not a self-actor. Where the applicant is
not legally represented but the respondent is legally represented the
mandatory requirement is upon the respondent's legal practitioner
to file heads of argument before he seeks the setting down of the
matter.
Sub-rule
24 specifically provides this when it states that any reference to
the applicant in sub-rule 18 shall be construed as a reference to the
respondent and any reference to the respondent in sub rr 20, 21 and
22 shall be construed as a reference to the applicant.
Once
that reversal of responsibilities is understood it invariably entails
that the second respondent's legal practitioner was mandated to
file heads of argument before he could seek the setting down of the
application.
It
is the filing of the heads of argument, as he did, which made the
application ripe for setting down.
A
recast sub-rule 18 would thus read:
“(18)
If, at the hearing of an application, exception or application to
strike out, the respondent,
as the case may be, is to be represented by a legal practitioner —
(a)
before the matter is set down for hearing, the legal practitioner
shall file with the registrar heads of argument
clearly outlining the submissions he or she intends to rely on and
setting out the authorities, if any, which he or she intends to cite;
and (my emphasis)
(b)
immediately afterwards, he or she shall deliver a copy of the heads
of argument to every other party and file with the registrar proof of
such delivery.”
It
is common cause that it is the second respondent's legal
practitioner who applied for the setting down of the application. Had
he not filed the heads of argument; the matter would not have been
set down. He therefore had to file the heads of argument.
The
court holds that the court a
quo
was correct in dismissing this leg of the appellant's preliminary
point on the issue of non-compliance with rules of the High Court
Rules, 2021 relating to the setting down of opposed applications.
The
first ground of appeal has no merit.
2.
Whether or not the court a
quo
erred in dismissing the appellant's application upon finding that
the immovable property was sold with the consent of all the
beneficiaries and in accordance with the Administration of Estates
Act
This
issue arises from the second to the fourth grounds of appeal. These
grounds of appeal are essentially an attack on the court a
quo's
finding
that
the appellant did not prove his case for the relief he sought.
On
the other hand, the second respondent averred that the court a
quo
correctly
found that the appellant's case had no merit as all beneficiaries
had consented to the sale.
It
is trite that this court can only interfere with the findings of the
court a
quo
on limited grounds. An appellate court will not lightly interfere
with an exercise of discretion by a lower court unless it is shown,
inter
alia,
that some error was made in exercising the discretion, such as that
it acted upon a wrong principle; that it allowed extraneous or
irrelevant matters to guide it or affect it; that it mistook the
facts or failed to take into account some relevant consideration.
See Barros
& Anor v Chimphonda 1999
(1) ZLR 58
(S);
Halwick
Investments v Nyamwanza
2009 (2) ZLR 400 (S).
The
nub of the appellant's case was that the Master had not conducted a
due inquiry before issuing a section
120 certificate.
He
submitted that had the Master conducted such an inquiry he would have
noted that not all beneficiaries had consented to the sale of the
property as had been agreed to in the meeting of 25 June 2019. It is
that agreement he said was binding on the Master and the Executor in
terms of
section
5(1)(a) of the Deceased Estates Succession Act [Chapter
6:02].
Section
120 of the Act pertains to the power granted to the Master to
authorise the sale of property otherwise than by public auction. The
section provides:
“If,
after due inquiry, the Master is of (the) opinion that it would be to
the advantage of persons interested in the estate to sell any
property belonging to such estate otherwise than by public auction he
may, if the will of the deceased contains no provisions to the
contrary, grant the necessary authority to the executor so to act.”
The
due inquiry the Master is enjoined to conduct is an interrogation of
the reasons why the executor would like to sell the property
otherwise than by public auction and whether such would be in the
interests of those interested in the estate, such as beneficiaries.
The Master must satisfy himself/herself that such a manner of sale
would be to the advantage of persons interested in the estate. In the
process, the Master may take such steps as he/she deems fit,
including engaging the beneficiaries, in order to arrive at an
appropriate opinion. See Katsande
v Katsande & Ors
2010 (2) ZLR 82 (H).
In
casu,
the appellant and other beneficiaries held a meeting with the Master
on 25 June 2019.
At
that meeting, it
was resolved that the immovable property of the deceased would be
sold by consent of all the beneficiaries. The appellant is quoted as
having stated, inter
alia,
that:
“At
law, the house can be sold according to my father legacy they can
share rent if possible.
I agree to let the house be sold.”
The
minutes of the meeting were in fact provided by the appellant.
It
is clear that at that meeting the appellant gave his consent to the
sale. It was in light of this that the court a
quo
made
a finding that the resolution requiring consent from all
beneficiaries applied to those beneficiaries who did not attend the
meeting or who had not given their consent thereat, since the
appellant had given his consent in the meeting.
The
court a
quo
further noted that the other beneficiaries had given their consent
through the affidavits filed of record. In the circumstances it
could not be said that some of the beneficiaries had not given their
consent.
The
court is of the view that the finding by the court a
quo
that given the obtaining circumstances the term “all beneficiaries”
that were to still give consent as per minutes of 25 June 2019
meeting applied to those beneficiaries who did not attend the meeting
or consent thereat, is not unreasonable or irrational so as to
warrant this court's interference.
Surely,
if there were some beneficiaries who attended the meeting on 25 June
2019 and had expressed their consent to the sale of the property, it
was not unreasonable to conclude that the reference to “all”
beneficiaries was intended to cover those beneficiaries who were not
part of the meeting or were yet to give their consent.
The
finding of the court a
quo
cannot
be faulted in this regard.
The
other leg of the appellant's attack of the court a
quo's
decision was that it had failed to appreciate that the Master did not
apply the law according to section
5(1)(a) of the Deceased Estates Succession Act [Chapter
6:02].
That section provides:
“5(1)
Where as a result of a distribution in intestacy any property
devolves upon any heirs in undivided shares —
(a)
the heirs may agree upon an alternative division of the property, and
such agreement shall be binding on the executor.”
In
his view, the aforesaid section 5(1)(a) mandated the Master and the
Executor to ensure that the consent of all the beneficiaries was
obtained before the property was disposed of.
This
is what he apparently considered as an alternative division or
direction to sell the property. This argument is again premised on
his assertion that not all beneficiaries had consented to the sale.
He was, however, unable to refute the existence of affidavits from
all other beneficiaries consenting to the sale.
It
was in this respect that the court a
quo
alluded to the fact that he had no authority to speak on behalf of
the other beneficiaries in the light of the affidavits filed of
record.
The
other beneficiaries had in fact been cited as respondents in the
application but had opted not to participate. It was apparent to all
and sundry that it was only the appellant who had had a change of
mind after his initial consent before the Master.
In
dealing with this change of mind the court a
quo
aptly remarked at p8 that:
“Applicant's
contention that he did not consent to sale of the property cannot
withstand scrutiny. Applicant attended a meeting held on the 25th
June 2019. At the meeting he unequivocally agreed that the house be
sold. Applicant cannot be permitted to play double standards, that
when it suits him, he agrees to the sale of the property, and when it
does not suit him to make a turn and allege that he did not consent
to such sale. This is impermissible.”
The
Master cannot, in the circumstances, be faulted for issuing the
section
120 certificates as he had been favoured with the necessary
information to form an opinion in terms of the law.
In
any case given the circumstances of this case, the Master was
enjoined to exercise his discretion in determining whether to grant
the section
120 certificate or not.
The
appellant's effort at relying on section
5(1)(a) of the Deceased Persons Succession Act, was misplaced and
inapplicable.
In
casu,
the appellant lamentably failed to establish that the court a
quo
erred in holding that the Master had properly exercised his power in
issuing the
section
120 certificate. There is indeed nothing to show that the Master may
have injudiciously exercised his discretion. On the contrary, the
Master sanctioned the sale of the immovable property in accordance
with the law after due inquiry.
Accordingly,
the appeal has no merit.
DISPOSITION
It
was for the above reasons that the appeal was dismissed with costs.
GWAUNZA
DCJ: I
agree
MAKONI
JA: I
agree
Sansole
& Senda, 2nd
respondent's legal practitioners
