REPORTABLE ZLR (60)
Judgment
No. SC 64/07
Civil
Appeal No. 333/06
TRAUDE
ALLISON ROGERS v (1) ELIOT GRENVILLE KERN
ROGERS (2) THE MASTER OF THE
HIGH COURT
SUPREME
COURT OF ZIMBABWE
CHEDA JA,
MALABA JA & GWAUNZA JA
HARARE,
MAY 14, 2007 & MAY 27, 2008
E T Matinenga, for the appellant
J C Andersen SC, for the first respondent
No appearance for the second respondent
MALABA JA:
This is an appeal from a judgment of the High Court dated 1
November 2006 dismissing with costs the action commenced by the
appellant in case HC 2389/05 and entering judgment of absolution from
the instance in terms of Order 11 r 79(2) of the High Court
Rules
1971 on the ground that it was frivolous.
The appellant and the first respondent are the surviving children
of Betty Rogers who died in Harare on 6 November 2004. The
subject
matter of the dispute between the two children is the validity or
extent of the legal effect of the will executed by their
late mother
in Harare on 22 January 2004. The testatrix had on 6 January 1995
executed a will in the United Kingdom in terms of
which she
bequeathed her immovable property situated in that country to the two
children in equal shares and named both as the
executors of the will.
There was a second will executed in Harare on 23 March 1999
regulating the disposition of her estate in
Zimbabwe.
On 22 January 2004 the testatrix executed a third will. On the
face of it the document is regular and complete. It was executed
and
attested in accordance with the due formalities for giving validity
to a will prescribed in s 8(1) of the Wills Act [Cap 6:06]
(“the Act”). It is a short and simple document beginning
with a general revocatory clause. The will states
as follows”
“I BETTY ROGERS of 30 Arundel School Road, Mount Pleasant,
Harare, Zimbabwe, HEREBY REVOKE all former WILLS AND Testamentary
Dispositions made by me and Declare this to be my last will.
I appoint my son Eliot Grenville Kern Rogers of 30 Arundel School
Road, Mount Pleasant, Harare, Zimbabwe to be sole executor of
this my
WILL. I, GIVE DEVISE AND BEQUEATH unto my son Eliot Grenville Rogers
my fifty percent share of the property 30 Arundel
School Road, Mount
Pleasant, Harare, Zimbabwe and one hundred percent of the property 15
Carrington Road, Darlington, Mutare, Zimbabwe
to my son Eliot
Grenville Kern Rogers.
I GIVE DEVISE AND BEQUEATH all my estate both real and personal
whatsoever after payment thereout of all my just debts and funeral
and testamentary expenses to my son Eliot Grenville Kern Rogers.
As 30 Arundel School Road, Mount Pleasant, Harare, Zimbabwe has been
the home of my son Eliot Grenville Kern Rogers all artworks,
furniture and equipment are his personal possessions. I am grateful
to have had the use of these during my period in Harare.
My reasons for the above bequests are as follows:
In 1993 at the time of the death of my late husband Cyril Alfred
Rogers my daughter Traude Allison Rogers was offered a one third
share of the property 30 Arundel School, Mount Pleasant Harare,
Zimbabwe but rejected this offer. Additionally my daughter Traude
was offered the use of the property at 15 Carrington Road,
Darlington, Mutare for the duration of her stay there. However the
property proved unsatisfactory for her requirements. HAD it proved
satisfactory I would have bequeathed it to her.”
After execution the will was placed in the custody of the first
respondent who resided at the same house with the testatrix. The
will remained in his custody until after the testatrix’s death.
The appellant had been passed over in the disposition of
the
deceased’s estate under the will.
She commenced action in the High Court on 24 May 2005 challenging its
validity. The appellant alleged that the first respondent
through
undue influence had caused the testatrix to make the will. She
claimed an order declaring the will invalid, alternatively
an order
that the will was applicable only to the testatrix’s estate
situated in Zimbabwe and had the effect of revoking
prior wills
dealing with such property.
Paragraphs 6 and 7 of the declaration contained the basis of the main
claim as perceived by the appellant. It stated that:
“6. The said will was executed under undue and improper
pressure exerted on the testatrix by first defendant and as
a
consequence the testatrix was not at that time capable of executing a
will of her own free will and exercising her own unfettered
discretion.
The
said will is invalid not having been executed by the testatrix of
her own free will and in the premises plaintiff seeks an
order from
this Honourable Court to that effect.”
On 20 July 2005 the first respondent, through his legal
practitioners, asked for further particulars as to when, where and in
what manner it was alleged he had exerted undue influence on the
testatrix to obtain the execution of a will which did not express
her
own wishes. The reply to the request was in the following terms:
“Undue and improper pressure was exerted on the testatrix by
first defendant at the testatrix’s home, where first defendant
also resided cumulatively over a long period of time. The undue
pressure came in the form of physical, emotional and verbal
harassment,
the particulars of which are a matter of evidence
which plaintiff is not obliged to plead at this stage.”
(the underlining is mine for emphasis)
The appellant was not prepared to plead the particulars of the undue
influence through which she alleged the first respondent had
caused
the testatrix to make the will.
The alternative relief was claimed on the ground set out in paragraph
10 of the declaration as follows:
“10. In the alternative and if it be found by this
Honourable Court that plaintiffis not entitled to the relief sought
in paragraph 7 above then:
Plaintiff
avers that the testatrix intended her will dated 22 January 2004 to
apply only to her estate situate in Zimbabwe;
The testatrix did not intend by executing the will dated 22 January
2004 to revoke the will executed by her in 1995 governing
her
estate situate in the United Kingdom.”
When asked by the first respondent through his legal practitioners
for the facts on which she alleged that the testatrix intended
the
will dated 22 January 2004 to apply only to her estate situated in
Zimbabwe and not to her estate in the United Kingdom the
appellant
said:
“The testatrix’ will of 22 January 2004 specifically
refers to the testatrix’s property in Zimbabwe and says
nothing
about the testatrix’s estate in the United Kingdom which is
governed by the testatrix’s 1995 will.”
On 10 October 2005 the first respondent filed his plea. He denied
the allegations contained in paras 6, 7 and 10 of the declaration.
He alleged that the will of 6 January 1995 was revoked by the will of
22 January 2004.
On 15 December 2005 the first respondent made a Court application to
the High Court in terms of Order 11 r 75 of the High
Court Rules
1971 (“the Rules”) for the dismissal of the action on the
ground that it was “frivolous or vexatious”.
Rule 75
provides that:
“(1) Where a defendant has filed a plea, he may make a court
application for the dismissal of the action on the ground that
it is
frivolous or vexatious.”
Rule 79 provides that:
“(1) Unless the court is satisfied, whether the plaintiff has
given evidence or not that the action is frivolous or vexatious
it
shall dismiss the application and the action shall proceed as if no
application had been made.
(2) If the court is satisfied that the action is frivolous or
vexatious it may dismiss the action and enter judgment of absolution
from the instance with costs.”
In respect of the main relief the first respondent averred that
refusal by the appellant to plead the particulars of undue influence
meant that there were no facts in the declaration which if proved at
the trial would entitle the appellant to the relief sought.
On the
alternative relief he averred that the language of the will was so
clear and unambiguous in expressing the intention of
the testatrix to
revoke all prior wills that the contention that the testatrix had no
intention to revoke the will of 6 January
1995 was obviously
unsustainable.
In the opposing affidavit, the appellant made reference to negative
aspects of the first respondent’s character and his
relationship to the testatrix.
She averred that the first respondent was a single man who abused
drugs and alcohol whilst remaining at all material times unemployed
and dependent on his parents for financial support. She said that
when he was under the influence of drugs or alcohol the first
respondent became verbally and physically abusive to members of his
family. Although the testatrix was ashamed of the first respondent’s
character and lifestyle, she lacked the courage to stop the constant
placation of him because she was frightened of what he would
do to
her.
She accused him of developing obsessive hostility towards her. She
said he warned her not to visit the testatrix at her home and
threatened her with violence if she did. In para 9.3.10 of the
opposing affidavit the appellant said:
“… the cumulative effect of the state of affairs which I
have summarized above and which will be elaborated upon by
both me
and the plaintiff’s witnesses in the trial of the main action
resulted in my late mother executing the will under
the substantial
and improper influence of the applicant to the effect that I should
be disinherited and that consequently the will
was not executed by
her of her own free will.”
The argument for the first respondent in support of the application
was that the action was frivolous or vexatious because the
declaration as amplified by the opposing affidavit did not contain
allegations of the facts which if proved at the trial would
constitute the elements of undue influence and entitle the appellant
to the main relief. On the alternative relief it was argued
that the
language of the will was so clear and unambiguous in expressing the
intention of the testatrix to revoke all former wills
made by her
that the contention that she had no intention of revoking the earlier
will dealing with her property in the United
Kingdom confirmed the
frivolity or vexatiousness of the action. The argument for the
appellant was that she had set out sufficient
facts which if proved
at the trial would constitute the ground of undue influence on which
she intended to rely.
The learned Judge found that it was not one of the facts alleged in
the declaration as amplified by the opposing affidavit that
the first
respondent verbally or physically abused the testatrix. It was not
the appellant’s case that he demanded that
she should dispose
of the whole of her estate to him and disinherit the appellant. The
fact alleged was that the first respondent
did not place the
testatrix under immediate threat at the time she executed the will.
The learned Judge held that in the absence of allegations of facts
which if proved at the trial would amount to coercion of the
testatrix’s mind in order to cause the execution of the will
which she was unwilling to make there was no good cause of action.
On the alternative relief the learned Judge accepted the argument
that the language used in the will was so clear and unambiguous
in
expressing the intention of the testatrix to revoke all former wills
that the contention that the testatrix had no intention
to revoke the
earlier will dealing with her property situated in the United Kingdom
was clearly untenable. For that reason he
also came to the
conclusion that the action was frivolous. In the exercise of the
discretion the Court undoubtedly had, the learned
Judge dismissed the
action and entered judgment of absolution from the instance with
costs. The court a quo was satisfied that it was a hopeless
action and that there was no reasonable ground for prosecuting it.
The question for determination on appeal is whether the decision of
the court a quo that the action was frivolous is correct. It
is important to bear in mind that it is the action in respect to
which the Court
must be satisfied that it is frivolous or vexatious.
An action in that sense is the legal proceeding instituted by the
appellant
in the High Court to obtain redress of the wrong allegedly
committed by the first respondent. It includes all the material
facts
the knowledge of which would have satisfied her that the first
respondent had committed undue influence on the testatrix to obtain
the execution of the will disposing of all her estate to him.
The state of the facts referred to was not only to be the reason for
the action and the ground on which it was to be sustained
it was the
state of facts to which the principle of undue influence sought to be
enforced in determining the wrongful acts committed
by the first
respondent applied. In short, the answer to the question whether the
appellant had reasonable grounds for charging
the first respondent
with undue influence on the testatrix’s will is fundamental to
the determination of the question whether
the action was correctly
found to be frivolous by the court a quo.
Summary dismissal of an action in terms of r 79(2) of the Rules is an
extraordinary remedy to be granted in clear and exceptional
cases.
The reason is that granting the remedy has the effect of interfering
with the elementary right of free access to the Court.
The object of
the rule is to enable the Court to stop an action which should not
have been launched. In Lawrence v Norreys 39 Ch.D 213 BOWEN
LJ at p 234 said:
“It is abuse of the process of the court to prosecute in it any
action which is so groundless that no reasonable person can
possibly
expect to obtain relief.”
In S v Cooper & Ors 1977(3) SA 475 at 476D BOSHOFF J said
that the word “frivolous” in its ordinary and natural
meaning connotes an action
characterized by lack of seriousness, as
in the case of one which is manifestly insufficient. An action is in
a legal sense “frivolous
or vexatious” when it is
obviously unsustainable, manifestly groundless or utterly hopeless
and without foundation. See
also Western Assurance Co v
Caldwell’s Trustee 1918 AD 262 at p 271; Corderoy v
Union Government 1918 AD 512 at p 517; Wood NO v Edwards
1968(2) RLR 212 at 213 A-F; Fisheries Development Corporation v
Jorgensen & Anor 1979 (3) SA 1331 at 1339 E-F; Martin v
Attorney General & Anor 1993(1) ZLR 153(S).
It appears to me that a plaintiff who commences action in a Court of
law when he or she has no reasonable grounds to do so has
no cause of
action. An action without a good cause is baseless and obviously
unsustainable.
In Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41(H)
at p 54 E-F it was said that:
“A cause of action was defined by LORD ESTHER MR in Read v
Brown (1888) 22 QB 131 as every fact which it would be necessary
for the plaintiff to prove if traversed in order to support his right
to the judgment of the Court.
In the same case, LORD FRY at 132-133 said the phrase meant
everything which if not proved gives the defendant an immediate right
to judgment. In Letang v Cooper [1965] I QB 232 at 242-3
DIPLOCK LJ (as he then was) said a cause of action is simply a
factual situation the existence of which
entitled one person to
obtain from the Court a remedy against another person.”
See also Patel v Controller of Customs & Excise HH-216-89;
Hodgson v Granger & Anor HH-133-91; Dube v Banana
1998(2) ZLR 92(H).
In this case the appellant alleged specially undue influence as the
ground on which she intended to rely at the trial for invalidating
the will. She was required to give the necessary particulars which
if proved at the trial would constitute the wrong she accused
the
first respondent of having committed. She, however, seems to have had
no knowledge of the material facts she was required to
allege in the
declaration, proof of which would constitute the essential elements
of undue influence and entitle her to the judgment
of the Court. The
onus was on her who was making the allegation of wrongdoing to
prove on a balance of probabilities that the first respondent through
undue influence on the testatrix’s mind caused her to execute
the will she was unwilling at the time to make. Craig v Lamoureux
1920 AC 349; Finucane v Macdonald & Ors 1942 CPD 19 at p
26.
The appellant did not appreciate the fact that undue influence is a
compendious description of the facts which if alleged in the
declaration and proved at the trial would constitute the wrong for
the redress of which the action was commenced. Whether there
has
been undue influence or not is a question which must be decided by
reference to the facts and circumstances peculiar to the
case. As it
is a question of fact undue influence may take many different forms.
It may be in the form of coercion of the testator
or testatrix’s
will so that he or she does what is against his or her own volition.
When undue influence amounts to coercion
of the mind of the person
who becomes the testator or testatrix it may also take an infinite
number of forms depending on the facts
and circumstances of each
case. It does not follow that because undue influence was applied on
the testator or testatrix it necessarily
caused the execution of the
will. That the undue influence caused the execution of the will must
be established by the facts alleged.
The undue influence must be
shown to have been operative at the time of the execution of the
will. A testator or testatrix may
still make a will expressing his
or her wishes notwithstanding the application of undue influence to
his or her mind.
It must follow from the principle that to be undue influence there
must be coercion of the will that as a ground to be relied upon
at
the trial; for invalidating a will undue influence must never be
alleged unless the plaintiff has reasonable grounds on which
to
support it. That requires the plaintiff to allege in the declaration
all the material facts he or she has to prove at the trial
to
succeed. In this case the appellant had no knowledge of the facts of
what the first respondent did or said to the testatrix
which if
proved at the trial would amount to coercion of the testatrix’s
will.
In Tristram & Cootes Probate Practice 27ed at p 1131 a
precedent is given as Form No. 266 of the kind of allegations a party
alleging undue influence as the ground for
invalidating a will could
make if those were the facts. The importance of the precedent lies
in the fact that it confirms the
point that there cannot be a finding
of undue influence without the facts of what the person charged is
alleged to have done.
The precedent therefore supports the contention that sufficient
allegations of the facts relating to the conduct complained of
as
undue influence must be made in the declaration or plea. The
defendant whose plea of undue influence is on Form No. 266 said:
“For a year prior to his death the plaintiff had been living in
the house of the deceased, being employed to look after him
during
such time as the defendant (his only son) was necessarily resident
abroad. The plaintiff so took advantage of the extreme
old age of
the deceased and of his weak and emotional state as to assume
complete domination over him and his household; she frequently
contrived to keep from the deceased the letters the defendant wrote
to him; she encouraged the deceased falsely to believe the
defendant
had abandoned him, and she persuaded him that she was the only person
to whom he owed any duty’ she herself gave
the instruction for
the alleged will and was present when the deceased purported to
execute it. The defendant will allege that
the influence of the
plaintiff over the deceased was such that he was not a free agent and
that the said alleged will was not the
product of his own volition
but was procured by the importunity of the plaintiff.”
Conspicuous by their absence from the declaration in this case were
allegations of facts on what the first respondent could have
done or
said to the testatrix causing her to execute the will under which he
benefited. The cause of action remained shadowy.
When she was asked to give the necessary particulars of the alleged
undue influence the appellant declined saying they were matters
of
evidence. She did not deny the fact that they were not part of the
declaration or statement of claim. What she said in the
opposing
affidavit did not cure the defect. The clear impression one gets is
that she had no knowledge of the necessary particulars
of the undue
influence with which she charged the first respondent.
Even if the allegations she made about the character of the first
respondent and his relationship to the testatrix were made out
at the
trial they would not amount to undue influence entitling her to the
judgment of the Court. She needed to have made the
allegation of the
fact that the first respondent used his condition and the placation
of him to coerce the mind of the testatrix
so that she executed the
will which she was unwilling at the time to make. She did not make
that allegation.
There was nothing in the declaration as amplified by the opposing
affidavit to induce the court a quo to suppose that there was
any foundation for the allegation of undue influence the appellant
made against the first respondent
as the ground on which she intended
to rely at the trial for invalidating the will. She commenced the
action when she had no reasonable
ground on which she intended to
rely at the trial for invalidating the will. She commenced the
action when she had no reasonable
ground on which to support it. The
action was baseless and obviously unsustainable. It was frivolous.
The court a quo had cause to be satisfied that the action was
hopeless and that there was no reasonable ground for prosecuting it
further.
I turn to determine the question whether the contention that the
testatrix had no intention of revoking the earlier will dealing
with
her property in the United Kingdom is clearly untenable. The will
begins with a general revocatory clause. The clause is
in terms
which show that it was the intention of the testatrix to revoke all
former wills made by her.(underlining is mine for emphasis)
The language by which the intention of the testatrix is expressed is
clear and unambiguous. When we are faced with such unequivocal
language the question whether the will of 6 January 1995 dealing with
the testatrix’s property in the United Kingdom was
intended to
be revoked hardly arises as a matter of construction of the will of
22 January 2004.
The testatrix was of a sound mind, memory and understanding at the
time she executed the will of 22 January 2004. She knew that
she had
made prior wills disposing of part of her whole estate in a manner
inconsistent with the disposition she was about to make.
To put the
matter of her intention beyond doubt the testatrix described the will
of 22 January 2004 as her “last will”.
She further
provided that she was bequeathing all her residual estate both real
and personal to the first respondent.
The principle applied in the case of Re Wayland [1951] 2 All
ER 1041 to the effect that if each will deals only with property in a
different country, the later will does not revoke
the earlier one
even if it does contain a revocatory clause is not applicable to the
facts of this case. The reason is that the
clear intention of the
testatrix was to deal in the will of 22 January 2004 with all
her property including the property situated in the United Kingdom
which she had dealt with in the earlier will.
The testatrix was able to provide for the disposition of the whole of
her residual estate both real and personal in the manner
she did
under the will of 22 January 2004 because in her mind she considered
that the earlier will which dealt differently with
the disposition of
the property in the United Kingdom had been destroyed by the
revocation. The Court must give full effect to
the revocatory clause
as the will which regulated the disposition of the property in the
United Kingdom no longer exists.
In the circumstances the contention that in executing the will of 22
January 2004 the testatrix had no intention of revoking the
will of 6
January 1995 is clearly untenable. The action which was based on
such a ground was obviously unsustainable. The learned
Judge had
good cause to be satisfied that the action was frivolous; exercised
his discretion and dismissed it.
The appeal is accordingly dismissed with costs.
CHEDA JA: I agree
GWAUNZA JA: I agree
Gill, Godlonton & Gerrans, appellant’s legal
practitioners
P Chiutsi Legal Practitioners, first respondent’s legal
practitioners