1

HH 308-15

CIV 212/14

REF CRB 19/14

MARY CHIJAKA

versus

FANUEL TAGUTA

HIGH COURT OF ZIMBABWE

UCHENA & MWAYERA JJ

HARARE, 19 February 2015 and 25 March 2015

Civil Appeal

E R Samukange, for the appellant

Ms PR Zvenyika, for the respondent

            MAWAYERA J: The appeal is against the whole judgment of the court a quo wherein the court ordered eviction of the appellant and further ordered that the appellant pay $600-00 to the respondent. The appellant raised 7 grounds of appeal as follows;

1. The court did not have jurisdiction to hear the matter as the claim had prescribed
2. The court had no jurisdiction to hear the matter as the amount in issue exceeded USD30 000-00. This excludes the contents of the two shops
3. The court erred in not considering that the agreement was between the plaintiff and the defendant’s late husband
4. The court did not have jurisdiction in hearing the matter as the deceased’s estate was not cited as a defendant. It should have been cited as the first defendant
5. The court erred in not taking into account that the cause of action arose in 2009
6. The court erred in not considering that even the Mudzi Rural District Council had recognised the contract between the plaintiff and the defendant’s husband.
7. The evidence led by the defendant that the agreement related to the sale of an undeveloped commercial stand was not challenged and taken into account.

The brief background to the claim before the trial court is set out in a clear and lucid manner from papers filed of record and evidence on record, and discerned as follows:

The appellant is a surviving spouse to one Francis Chijaka. Prior to the death of Francis Chijaka the respondent Fanuel Taguta entered into a sale agreement of a commercial stand. The deceased made part payment. After his demise the respondent then sought the eviction of the appellant and also claimed payment of the USD600-00 outstanding balance for trailer hire agreement which the respondent and the appellant’s late husband had entered into. The basis of the claim by the respondent was that the appellant’s late husband breached the terms of agreement they had entered into. It is this claim which the court a quo acceded to which falls under scrutiny on appeal.

It is clear from the record that the respondent and the late Mr Francis Chijaka entered into a sale agreement which from evidence was not cancelled. The contract was between the appellant’s late husband and the respondent. Any remedy ought to have been among the range of contractual remedies vis the parties to the contract. To seek to evict the surviving spouse in this case the appellant was incompetent in the circumstances. The respondent was in a contractual relationship with the late husband of the appellant and not the appellant as clearly shown on p 8 of the record.

The basis of suing the appellant in her the personal capacity given the contractual relationship between the respondent and the late Mr Chijaka was not established. Upon the death of Mr Francis Chijaka if the respondent was aggrieved and required redress then he ought to have proceeded against the deceased estate. Mrs Mary Chijaka was not sued in her capacity as executrix of her late husband’s estate but was sued in her personal capacity. There is no legal basis for holding the appellant personally liable for transactions she was not part to. The court a quo proceeded to grant an order in favour of the respondent on an erroneous assumption that by virtue of being the surviving spouse the appellant assumed status of her late husband. It is trite that a deceased estate is sued through the executor of that estate and there is no justification in imparting liability on basis of marriage or other relationship to the deceased. The wrong citation of parties was fatal to the proceeding in the court a quo moreso given the undisputed evidence before the court a quo that the contract agreement was between the late Mr Francis Chijaka and the respondent Fanuel Taguta. The appellant is not in the picture at all. From the record of proceedings, the court a quo fell into the era of imputing evidence for so and on behalf of the appellant so as to bring in the appellant as a part the proceedings.

The court a quo assumed albeit erroneously that by virtue of marriage the appellant was liable contractually. In terms of s 25 of The Administration of Deceased estates Act, [Chapter 6:01] a deceased estate is represented by an executor or executrix duly appointed with letters of administration by the Master. The law makes it clear no relief can be obtained against an estate unless one sues the executor or executrix and properly cites the estate. In the case of Nyandoro and Ors  v Nyandoro and Ors HH 89/08 KUDYA J emphasised the need on bringing an action on behalf of an estate to be through the duly appointed executor. In Clark v Barnacle NO & 2 Ors 1958 R and N 358 (SR) at 349 B-350 MORTON J in stating the legal position had this to say:

“It is that, whether testate or intestate, an executor, either testamentary or dative, must be appointed ... so that the executor and he alone is looked upon as the person to represent the estate of the deceased person.”

Reference can also be made to the case of Mhlanga v Ndlovu HB 54/2004 wherein the Honourable Judge NDOU underscored the rights and powers of an executor.

A deceased estate can be briefly described as an aggregate of assets and liability of the deceased. The totality of the rights, obligations and powers of dealing therewith vests in the executor, so that he alone can deal with them. Only the executor can sue and be sued for and on behalf of a deceased estate. The appellant was in the court a quo sued in her personal capacity wherein contractual liability for an agreement she was not part to was an issue. Strictly speaking there was no respondent before the court a quo, there was legally no party being sued, thus rendering, the proceedings a nullity. On the basis of improper citation alone the appeal ought to succeed. The decision by the court a quo given the fatal irregularity on citation is a legal nullity. Even if the appellant had been properly cited in the court a quo there are other irregularities and misdirections in the manner the court a quo handled the matter which also would tend to support the upholding of the appeal.

 The court a quo further made a finding which was not based on evidence. The court made a finding that the trial court was not a handwriting expert but argued that the signatures on exh 8 p 8 and 9 is not the same. This is absurd given the respondent on p 41 of the record did not challenge the signature. Whilst still on findings not supported by evidence the court a quo ran into the error of granting a relief not sought by the respondent. The court a quo ordered for eviction of the appellant and also ordered that the appellant pays $600-00 to the respondent. It was incompetent for the court a quo to order a relief which was not sought. The claim by the respondent in the court a quo was not only against an incorrect party but also filed out of time. As clearly spelt out on p 12 part 7 of the respondent’s claim the respondent was aware the appellant’s late husband had died in 2002. The respondent did not institute proceedings until February 2014. The claim which ought to have been a claim for balance falls in the ambit of an ordinary debt governed by the Prescription Act [Chapter 8:11]. Section 14 is relevant as it outlines the time frame when a claim is valid.

The claim therefore could not have gone beyond 3 years and had thus prescribed. In Hwaire v Mbare Development (Pvt) Ltd and Others Hh 105/05 MAKARAU J (as she then was) made sound reference to the prescription Act [Chapter 8:11] and also quoted with Aproval Greenland J’s assessment of the jurisdictional philosophy behind the Prescription act. I subscribe to the Honourable Judge’s views and seek guidance from them.

In Hwaire case (supra) MAKARAU J as she then was, held that the right to claim for transfer in terms of an agreement of sale is a  debt  in terms s 14 of the Prescription Act [Chapter 8:11] and that the right prescribes three years after the cause of action arose. In that case Hwaire issued summons in July 2004when she became aware that her claim to transfer was under threat in June 2001. The claim was held to have prescribed.

It has been shown in case law that the period stipulated in the Act for extinction of debts is peremptory. It cannot be waived. See Chiwawa v Mutzuris ans Ors 2009 (1) ZLR 72. In casu the cause of action arose when the appellant’s late husband entered into a contractual relationship with the respondent in about 2001 and action was only taken 13 years later. On that basis alone the claim had prescribed and hence the appeal ought to succeed.      

Given the evidence on record and having considered the oral submission by counsels, it is apparent the respondent advanced a half hearted opposition to the appeal. For this proposition I take the respondent counsel’s views that where a person has contractually transacted with another who subsequently dies in the event of claims arising the deceased estate ought to be sued. The respondent then sought to argue that because the appellant in the court a quo did not raise the issue that they were wrongly cited the appeal ought to be dismissed. This is a legal issue which can be raised at any stage and the appellant has rightfully raised the wrong citation as a ground for the appeal. The legal position is crystal clear only an executor can sue or be sued on behalf of a deceased estate.  The other ground of appeal raised by the appellant is that of lack of jurisdiction on the part of the court a quo given the value of the property in question. In the absence of evidence of enquiry the commercial stand and goods in the shop would exceed $10 000-00 and this exceeds the monetary jurisdiction of the magistrate court.

It is apparent that the appellant was wrongly cited in a matter arising from a contract which she was not party to. She was sued in her personal capacity in a matter involving a deceased estate. The trial court had no jurisdiction given the value of the property in issue and the claim had long been extinguished by law as it had prescribed. Cumulatively or singly these observations are fatal to the respondent’s case. The decision of the court a quo was not supported by evidence on record and as such it cannot stand. The appellant’s claim for costs on high scale is justified given the obvious legal irregularities which the respondent’s counsel conceded to but still persisted with opposition. In the circumstances the appeal ought to succeed.

Accordingly it is ordered that;

1. The appeal  be and hereby allowed
2. The respondent shall bear the costs of the appeal on attorney and client scale.  

Venturas & Samukange, appellant’s legal practitioners

Mupindu Legal Practitioners, respondent’s legal practitioners