NIGEL DAMIAN MORRIS
MASTER OF HIGH COURT
HIGH COURT OF ZIMBABWE
HARARE, 28 January and 10 March 2011
T N Kanengoni, for the applicant
Adv. T Mpofu, for 1strespondent
No appearance for 2ndrespondent
MAWADZE J: This is an opposed application wherein the applicant seeks the following relief:
“IT IS ORDERED THAT:
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).
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:
The default judgment entered in case number HC 6552/06 be and is hereby set aside.
The last will and testament of the last Nellie Helen Morris dated 21 November 2005 is confirmed as being the valid final will.
The appointment of the first respondent (now the applicant) as the executor of the estate of the late Nellie Helen Morris is set aside.
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.
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.
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 21stNovember 2005 will and one on the 13thMarch 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’
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.
Again as more fully, appears from annexure ‘A’ the expert found the design and construction of the signatures on 21stNovember 2005 will dissimilar and inconsistent with my mother’s standard signatures.
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.
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.
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.
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 21stNovember 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 3rdEdition 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