MAWADZE J: This is an opposed application wherein the
applicant seeks the following relief:
“IT IS ORDERED THAT:
1. The will dated 21 November 2005,
purportedly signed by the late Nellie Helen Morris appointing the respondent
((first respondent) the executrix testamentary and bequeathing the entire
estate to same be and is hereby null and void and therefore of no force and
effect (sic).
2. The respondent shall pay costs of
suit” (sic).
The applicant and the first
respondent are the surviving children of the late Nellie Helen Morris who died
testate on 19 January 2006. The applicant and the first respondent do not share
the same father. The first respondent resides in the USA and is also known as Adina
Adry. The third respondent is the Master of the High Court of Zimbabwe cited in
his official capacity.
A point was taken in argument by
Advocate Mpofu that the applicant
should have cited the Estate of the late Nellie Hellen Morris and that for that
reason this court should decline to determine the matter. Reliance was placed
upon South African authorities in the following cases: Kethel v Keithel Estate 1949 (3) SA 598 (AD) at 610, Du
Toit v Vermuelen 1972 (3) SA 848
(A), Clarkson N O v Gelb & Ors 1981 (1) SA 288 (W) and Climes v Estates Cumes & Ors 1950 (2) SA 15 (C). It is common cause that
the first respondent is also the Executrix of the Estate of the late Nellie
Hellen Morris. While it was prudent to cite the first respondent also in her
official capacity I am not persuaded that I should decline to determine this
application on that basis alone. I am fortified in this approach in view of the
history of the matter.
The applicant and the first
respondent have been engaged in a bruising legal battle since 2006 and the
battle rages on. MAKARAU JP (as she then was) made a rather humorous though
poignant observation when she had a matter placed before her for adjudication
wherein the parties had been engaged in a lengthy legal battle; in the case of Esther Mwanyisa v Eneti Jumbo & 5 Ors HH 3-2010. These are the opening remarks by
the learned Judge President (as she then was) on p 1 of the cyclostyled
judgment:
“Judges are public servants and as
such they are not to complain about what lands on their plates. They must do
justice always no matter the state of the case placed before them. I must
however confess that the above matter is a dog's breakfast. The parties have
been to this court on at least five occasions and have appeared before the
Magistrate Courts once or twice before”.
In casu after the registration of the estate of the late Nellie Helen
Morris, four applications have been made to this court by the same parties
(inclusive of the application herein).
The background facts of the matter
are therefore in order
After the death of Nellie Helen
Morris on 19 January 2006 the first respondent was appointed the executrix of
the estate of the late Nellie Helen Morris in accordance with the last will and
testament of the late Nellie Hellen Morris dated 21 November 2005. It is common
cause that the late Nellie Helen Morris had also signed another will dated 13
March 1981. This earlier will dated 13 March 1981 has never been contentious.
The difference between the wills dated 13 March 1981 (hereinafter 1981 will)
and the one dated 21 November 2005 (the 2005 will) is that in the earlier will
both applicant and the first respondent were beneficiaries of the estate of the
late Nellie Helen Morris whereas in terms of the 2005 will the first respondent
is the sole beneficiary of the estate. Herein lies the basis for this bruising
legal battle.
After her appointment as the
executrix the first respondent in 2006 delegated her functions to one Charles
Leonard William Anderson of Anderson Executor and Trust (Private) Limited and
she returned to USA.
The applicant lodged an application in case number HC 6552/06 with this court
seeking an order that the 2005 will be declared null and void and the
appointment of the first respondent as the executrix of the estate of the late
Nellie Helen Morris be set aside. The application was granted in default and the
net effect was that the 1981 will was deemed valid. Apparently on the basis of
that judgment the applicant ended up being appointed as the Executor of the
Estate of their late mother. The applicant is alleged to have wrongfully and
unlawfully transferred into his name House number 4 Fitch Road, Khumalo
Bulawayo, the only asset of the Estate. Apparently this was also done without
the authority of the second respondent. Further to that the applicant proceeded
to “sell” the said house to a third party though title was not transferred to
the purchaser for reasons which will follow:
When the first respondent became
aware of the developments in case number HC 6552/06 and the applicant's alleged
unsavoury conduct she filed an application in case number HC 1057/09 wherein
she sought to have the default judgment in HC 6552/06 set aside. In the interim,
she lodged an urgent chamber application in case number HC 2143/09 to prevent
the applicant from disposing of the house in issue pending the determination in
case number HC 1057/09.
The application in case number HC
1057/09 was opposed and all the relevant pleadings in that case have been filed
by the first respondent attached to the first respondent's opposing affidavit.
The basis for the applicant's case in HC 6552/06 was that the 2005 will was
forged and therefore null and void. In case number HC 1057/09 the first
respondent wanted the judgment in case number HC 6552/06 rescinded as it was
granted in default. Further the first respondent's case was that the 2005 will
was valid as it was authored by their late mother in her presence and signed
before two witnesses who were available to testify to that effect.
On 15 October 2009 CHITAKUNYE J in
case number HC 1057/09 granted an order in the following terms:
“It is ordered that:
1.
The
default judgment entered in case number HC 6552/06 be and is hereby set aside.
2.
The
last will and testament of the last Nellie Helen Morris dated 21 November 2005
is confirmed as being the valid final will.
3.
The
appointment of the first respondent (now the applicant) as the executor of the
estate of the late Nellie Helen Morris is set aside.
4.
The
appointment of Adina Adry also called Chiquita Morris (now the first
respondent) as executrix of the estate of the late Nellie Hellen Morris is
reinstated.
5.
The
registration of transfer of stand 1616 Bulawayo Township of Bulawayo Township
lands in the name of the first respondent is hereby set aside and the third
respondent (Registrar of Deeds Bulawayo) is ordered to cancel such registration
and reinstate the original Deed of Transfer in the name of Nellie Helen Morris
or amend his records accordingly.
6.
The
costs of this application shall be borne by the first respondent on the basis
of the current tariff of Law Society of Zimbabwe”.
The property in issue stand number
1616 Bulawayo Township of Bulawayo is also known as House number 4 Fitch Road,
Khumbalo Bulawayo.
The order by CHITAKUNYE J in HC
1057/09 on 15 October 2009 seemed to have put the matter to rest. However nine
months later the applicant in casu
lodged this application on 15 July 2010 the subject matter of this judgment.
I now turn
to deal with the basis of this application which in effect seeks to have the
order by CHITAKUNYE J in HC 1057/09 set aside (although the order prayed for is
not couched on such explicit terms). The applicant's founding affidavit is
instructive in that regard. Let me refer to the relevant paragraphs of the
applicant's founding affidavit:
“13. Following the judgment in HC 1057/09, I
have caused a forensic report to be prepared consequent to an examination of my
late mother's signatures on the 21st November 2005 will and one on
the 13th March 1981 will. The examination was carried out by L.T.
Nhari, a forensic specialist in the employment of Screenlab (Pvt) Ltd. I attach
a copy of his report hereto as annexure 'A'
14. As more fully appears in annexure 'A' the
examination was carried out by comparing standard uncontested signatures by my
mother with the contested (sic)
signatures on the will of 21 November 2005.
15. Again as more fully, appears from
annexure 'A' the expert found the design and construction of the signatures on
21st November 2005 will dissimilar and inconsistent with my mother's
standard signatures.
16. Further the expert concludes that the
said differences and inconsistencies in the signatures are not attributable to
natural variation of my mother's signature. His final conclusion is that the
standard signatures and the contested signatures do not have common authorship.
Put differently, the expert concludes that my mother did not sign the will of
21 November 2005.
11. I am advised, which advise I believe to be
true and correct, that the presence
of such new evidence of this point
in dispute, which had not been at the
court's disposal at the original
hearing of the matter, places a significantly
different complexion on the whole
issue.
12. I
am further advised that where new evidence which is material to an issue that
has been decided, becomes available after such decision, there are grounds, by
that fact, warranting the revisiting of the issue by the court. This is my
contention in this matter.
15. Such evidence is of immense relevance to
this honourable court in this issue
and it is highly likely that this court
would have reached a materially
different conclusion as to the
validity of the 21st of
November 2005 will
had this evidence been before it”.
(I have deliberately not followed the
sequence of the paragraphs as they appear in the founding
affidavit as the
paragraphs are mixed up)
On
why such new evidence was not placed before CHITAKUNYE J in case
HC 1057/09
applicant had this to say;
“16 At the time of arguing HC 1057/09 I was
unable, due to lack of counsel and lack of funds to cause a forensic
examination, such as that espounded in Annexure 'A', for purposes of the
hearing. My failure to produce such a report was occasioned by any laxity in
the handling of my defence in that matter. My averment has consistently been
that the signature on 21st November 2005 will was forged I only did
not have the requisite resources and proper counsel (which I have secured) to
have the report produced (sic).
17. I am advised that in such circumstances,
the court can allow a matter to be revisited to allow the inclusion of such
evidence”.
To
my mind it is therefore clear that the applicant, a far back as in case no. HC
6552/06, contented that the will dated 21 November 2005 is not the last will
and testament of the late Nellie Helen Morris but a contrived and forged
document which should be disregarded. This is the same argument raised by the
applicant (then first respondent) in case No. HC 1057/09 in opposing the
rescission of the default judgment in case No. HC 6552/06 to no avail.
In
casu this is the same argument raised
albeit now on the basis of the forensic report.
The
forensic report on pp 8-9 of the record is not in original form. The forensic
scientist in para 1 of the report lamented that the documents he used in the
examination, that is the questioned documents the standard documents were in
poor quality photo copy forms. It is not clear how this may have affected the
proper examination of the documents nor are reasons given why original copies
were not used. In the same para 1 the forensic scientist refers to an attached
chart on p 9 indicating the alleged variations in the signatures of the late
Nellie Helen Morris. The said chart is in photocopy form and is divided in two
sections written “Questioned” and “standard”. No key is provided for this chart.
All I could discern are drawings akin to art work of a child in kindergarten.
The patterns are barely legible save for some figures and arrows pointing
either upwards or downwards. Mr Kanengoni
for the applicant could not be helpful in explaining the said chart. He
conceded that in its form the chart is meaningless and that no probative value
can be placed on it without additional explanation from the forensic scientist.
I share the same view. The forensic report creates insummondable problems for
the applicant.
In
his oral submissions in court Mr Kanengoni
in a rather incomprehensible and confusing manner sought to introduce a new
dimension to the basis of this application. I was unable to follow the logic of
his argument save to discern that his point was that the applicant was not
introducing new evidence but merely providing proof, whatever that means.
Strangely Mr Kanengoni was of the
view that there is not dispute of fact in this matter and that it can resolved
on the basis of a court application. The controversy generated by the forensic
report seems to elude him.
The first respondent's argument can
be summed up as follows:-
1.that the judgement by CHITAKUNYE
J.in case No. HC 1057/09 was of a definitive nature hence the matter raised by
the applicant is res judicata. In
terms of procedure the first respondent's contention is that it was improper
and irregular for the applicant to seek a declaratory order by way of court
application without first seeking to rescind or to have set aside the judgment
by CHITAKUNYE J which remains binding and of force and effect. The first
respondent's view is that the dispute surrounding the 2005 will has been common
between the parties and was dealt with in both HC 2134/09 and HC 1057/09. On
that score alone the applicant should have realised that such a dispute cannot
be resolved on the papers filed of record alone but through the process of
trial where evidence should be led.
(ii). that there is no legal basis for this
court to grant the order sought by the applicant since the common law exception
to the principle of res judicata is
inapplicable in this case.
(iii) that on the merits the first respondent
has been able to show that the 2005 will is valid. The first respondent in all
the applications referred to supra has maintained that the 2005 will was
prepared and executed in her presence and that the two witnesses who also
signed in her presence are available to corroborate her version of events. The
first respondent in her opposing affidavit states that the differences in
signatures which could have been noted by the forensic scientist between the
1981 will and 2005 will cannot only lead to the conclusion the forensic
scientist arrived at. The first respondent's contention is that the forensic
scientist had no relevant background history as regards the nature and extent
of the late Nellie Helen Morris's ailment when she signed the 2005 will.
Applicant's contention is that her late mother was afflicted with what is
called stage 4 cancer and at maternal time was very ill. She was suffering from
cancer of the spine and at the relevant time could hardly hold a cup hence
could not have been expected to sign her normal signature in 2005 as in 1981.
The first respondent said medical evidence is available to corroborate her
assertion in the form of a report by an oncologist who attended to her late
mother at the maternal time in 2005 which report (or evidence) may be insightful
on how the spiral cancer had badly affected the late Nellie Helen Morris's
limbs. All these issues are not new but were raised by the first respondent in
previous applications, save for the comment in relation to the forensic report.
It is therefore clear
that there are serious disputes of facts in this mater. In addition to that the
forensic report on its own generates further controversy. The question
therefore is whether in view of this the procedure adopted by the applicant is proper
in the first place. I do not believe so. I have already referred to the
disputes of facts and the concession made by Mr Kanengoni in relation to the forensic report.
It
is trite law that where there is conflicting evidence the correct course to
take is to proceed by way of action rather than motion proceedings. The
consequences of choosing the wrong procedure are clear See Masukusa v National Foods Ltd & Anor 1983(1) ZLR 232 (HC) in
which Mc NALLY J (as he then was) (referred to the dictum of MILLER JA in Tamarillo (Pvt) Ltd v BN Aitken (Pvt) Ltd 1982
(1) SA 398 ((D) at 430 G-H) at p 234E.
“A litigant is entitled to seek
relief by way of notice of motion. If he has reason to believe that facts
essential to the success of his claim will probably be disputed he chooses that
procedural form at his peril for the court in the exercise of its discretion,
might decide neither to refer matter for trial nor to direct that oral evidence
on the disputed facts be placed before it, but dismiss the application”.
It
is common cause that the judgment by CHITAKUNYE J in case No HC 1057/09 was of
a definitive nature – res judicata.
The requirements for the plea of res
judicata has been pronounced upon in many authorities by our courts. The
concept is based upon the public interest that there must be an end to
litigation. Put differently the basis for the principle is that where a final
and definitive judgment has been delivered by a competent court, the parties to
that judgment can not dispute its correctness . The position was aptly put by
MAKARAU JP (as she then was in Chipondah
& Anor v Muvami HH 81-07 as follows:-
“The requirements for the plea of res judicata are settled. Our law
recognises that once a dispute between the same parties has been exhausted by a
competent court, it cannot be brought up for adjudication again as there is
need for finality in litigation. To allow litigants to plough over the same
ground hoping for a different result will have the effect of into disrepute”
See also Towers v Chitapa 1996(2) ZLR 261 (H) per GILLESPIE J; Wolfenden v Jaclison 1985(2) ZLR 313(S) at 316C to E.
In
casu it is common cause that the
dispute between the parties relating to the validity of the 2005 will have been
adjudicated upon in case No. HC 1057/09 by this court.
Like
all general rules or principles there are exceptions to the principle of res judicata. MALABA J (as he then was)
in City of Mutare v Mawoyo 1995(1) ZLR 258 (H) at
263-264 G-H summed up the exceptions in this manner:-
“The question whether or not this
court has jurisdiction to alter its final judgments or orders has been
previously answered in previous decisions of courts in jurisdictions that
follow common law tradition. The general rule is that once a final judgment or
order has been given the judge who gave it or any other judge of parallel
jurisdiction has no power to alter, rescind, vary or set it aside except in few
instances recognised at common law or by the Rules of the High Court.
One of the exceptions recognised at
common law is when a judgment or order has been obtained through fraudulent
misrepresentation. The statutory exception would in our case include order 49 r
449(1) and order 9 r 63(1) of the Rules of the High Court of Zimbabwe 1971”.
See
also African Consolidated Resources Plc
and Ors v The Minster of Mines and mining Development & Ors HH 205-10.
The question which falls for determination in this matter is whether this case
falls within the exception already alluded to. Put differently, is the
preparation of a forensic report after judgment has been pronounced a proper
basis to revisit the same issue that was in dispute, that is, the validity of
2005 will.
The
learned authors Herbstein and Van Winsen – The Civil Practice of the Superior
Courts in South Africa
3rd Edition of p 460 said;
“A final judgment being res judicata is not easily set aside but
court will do so on various grounds, such as fraud, discovery of new
documents, error and irregularities in procedure”. (underline mine).
The
learned authors at pp 471 stated as follows:-
“A further ground for seeking to
have a judgment set aside is that since the giving of the judgment new
documents have come to light which, had they been available at trial, would
have entitled the applicant for relief to judgment in his favour. …………. It has
been held that the person applying to set aside the judgment must not only show
that he was ignorant of the existence of the subsequently discovered documents
but there must be a justa causa for
the ignorance. Proof “of the clearest possible description” must be presented
that it was not the applicant's fault that the document was not discovered
before judgment”.
On
pp 471-72 the learned authors gave useful examples, that is
(a) in testamentary suits where a judgment
has been given on a will and subsequently a latter will or codicil is
discovered or
(b) where as a consequence of fraud on the
part of one of the parties the crucial document was not found or produced at
trial or
(c) where the failure to produce the
document at trial can not be attributed to the applicant or his counsel or
(d) where the judgment in issue was founded
on a presumption of law or expert evidence.
In
casu the documents in issue the 1981
will and 2005 will have always been in existence. No document (new or
otherwise) has been discovered which was in existence at the time CHITAKUNYE J
granted the order in case No. HC 1057/09. To my mind for the exception to the
principle of res judicata to be
applicable at common law the document should have been in existence of the time
the judgment is made. It would therefore be improper for the applicant
subsequent to the decision by CHITAKUNYE J in case No. HC 1057/09 to get a new
document in the form of a forensic report and on that basis requests this court
to revisit the order granted in case no. HC 1057/09. The question which comes
to mind is when will this end. There would be no finality in the matter as the
other party can also gather such evidence even after my order.
I
have already alluded to the fact that the forensic report in issue even if this
court was inclined to revisit its judgment is not a document which on its own
settles the issues in dispute. To the contrary the forensic report generates
controversy as it is based on the opinion of a forensic scientist which is
subject to challenge. Other relevant factors which have a bearing on the
findings by the forensic expert relate to the use of photocopy documents which
are barely legible, the state of health of the late Nellie Helen Morris at the
time she signed the 2005 will and the probative value of the evidence of
witnesses to the 2005 will. In short therefore the conclusion arrived at by the
forensic expert is open to challenge and can be controverted.
I
am therefore satisfied that there is absolutely no merit in this application.
Let
me finally deal with the issue of costs. To start with this application totally
lacks merit and I am satisfied that applicant is simply abusing the court
process. The application itself is replete with errors. The wrong procedure was
used. The first respondent had to file heads of argument first and set the
matter down for hearing. I had, to condone applicant's late filing of heads of
argument in order to bring the matter to finality on the merits. The heads of
argument by the applicant are in all respect unhelpful as no case authority is
cited for the principles espoused. The submission in court by Mr Kanengoni lacked belief and conviction. My
considered view therefore is that this court should express its displeasure by
awarding costs against the applicant on a higher scale.
In
the result, I make the following order:-
It is ordered that the application
be and is hereby dismissed with costs on a legal practitioner client
scale.
Chikumbirike &
Associates,
applicant's legal practitioners
Gill,
Godlonton & Gerrans,
first respondent's legal practitioners
