1
HH 214-17
HC 2797/14
DR CECIL MADONDO N.O
versus
CECILIA VIMBAINASHE DAURAMANZI
and
BRIAN MAPURISA
and
FREDDY CHIMBARI N.O
and
THE MASTER OF THE HIGH COURT
and
CHIVHU HOLDINGS (PVT) LTD
and
THE REGISTRAR OF COMPANIES
HIGH COURT OF ZIMBABWE
MUNANGATI-MANONGWA J
HARARE, 30 September 2016 and 30 March 2017
TRIAL
T Zhuwarara, for the plaintiff
Ms Nyagura, for the defendants
MUNANGATI-MANONGWA J: The facts of this matter together with the documentary evidence to be considered by the court having been agreed on by the parties, I directed with the parties’ consent that the matter proceeds as a special case. The plaintiffs and first and second defendants proceeded to file heads of argument making ready the case for determination.
At the centre of this matter is a dispute between beneficiaries of the Estate Late Robson Mapurisa and those of the Estate Late Charles Dauramanzi pertaining to shares in a private company. The now deceased Charles Dauramanzi and the late Robson Mapurisa were shareholders and directors in Chivhu Holdings (Private) Limited, the fourth defendant. Problems started when Robson Mapurisa passed on in 1990 and his estate was handled piecemeal in 1994. Only personal assets were dealt with initially with no mention of his shareholding in the company. In 2010 the late Robson Mapurisa’s son Brian Mapurisa the first defendant approached the Master of High Court, had the estate of his father re-registered for the purposes of dealing with the shareholding in the company. Meanwhile the other shareholder Charles Dauramanzi had died in 2003. The issue of the shareholding now transverses both estates with the representatives of the late Dauramanzi challenging the re-registration of the estate of the late Mapurisa and this culminated in these proceedings. Dr Cecil Madondo the first plaintiff is the executor of the Estate Late Charles Dauramanzi and he, together with deceased’s daughter have instituted these proceedings as the plaintiffs. Freddy Chimbari the first defendant is the executor of Estate Late Robson Mapurisa and together with Brian Mapurisa the deceased’s son are defendants in the matter. The registrar of companies is cited as an interested party as the official responsible for the public register of companies.
The plaintiffs’ seek the following relief in their summons and declaration:
“(a) A declaration that the estate of the Estate Late Robson Mapurisa under DR1686/10 was unlawfully registered and is consequently void and of no force or effect.
- An order setting aside the Estate account under DR1686/10.
(c) An order setting aside all changes made to the company’s registry file on the 4th
December by first defendant including but not limited to changes to the share
allotment and also to the director’s list held with fifth defendant.
(d) Costs of suit on the legal practitioner and client scale to be paid by the first defendant.”
The parties filed the following document outlining what was accepted as common cause and hence agreed facts:
STATEMENT OF AGREED FACTS
The parties hereby agree to the following facts in the matter:
- The Late Robson Mathias Mapurisa passed away on 23rd February 1990. His estate was registered for administration under DR 1677/90, and the appointed Executor therein was one Brenda Evans.
- There was a preliminary inventory when the Estate of the Late Robson Mathias Mapurisa was registered. See page 1 of the agreed schedule of documents.
- By letter dated 9th October 1991, Brenda Evans wrote to Master of the High Court advising that there was a dispute between the now late Mrs Lucia Mapurisa as surviving spouse of the Late Robson Mathias Mapurisa, and the now late Charles Dauramanzi (whose estate is represented by the 1st plaintiff in the matter) relating to the shares in 4th defendant. See page 2 of the agreed schedule of documents.
- The 1st Defendant on 22nd May 1990 was declared the heir to the Late Robson Mathias Mapurisa. The 1st defendant’s mother Mrs Lucia Mapurisa was also the guardian of the 1st defendant as he was still a minor, having been born on 28th February 1975. See page 3 of the agreed schedule of documents.
- Under DR 1677/90, Brenda Evans as Executor proceeded to make a first and final distribution account for Estate Late Robson Mathias Mapurisa dated 17th June 1994; and this account did not deal with the shares concerning the 4th Defendant. The account dealt with the immovable property in the Estate. The account was approved by the Master of the High Court on 13th September 1994. See page 4 – 7 of the agreed schedule of documents.
- The 1st defendant signed an acquittance on 26th May 1995 that he had received his inheritance from the Estate of the Late Robson Mathias Mapurisa in terms of the First and Final Distribution Account. See page 8 of the agreed schedule of documents.
- In line with the First and final distribution account by Brenda Evans approved by the Master of the High Court, a deed of transfer relating the immovable property was made in favour of the 1st defendant as DT 03182/95. See page 9 – 13 of the agreed schedule of documents.
- Under DR 1677/90, the following had also occurred:
- The now late Lucia Mapurisa and the then Executor of the Estate received a consent from the Master of the High Court to sell stand number 322 and 324 of Chivhu. See page 14 – 16.
- The then Executor Brenda Evans wrote a letter to the Master of the High Court dated 14th October 1993. See page 17 of the agreed schedule of documents.
- By letter dated 15th December 2010, the 1st defendant wrote to the Master of the High Court stating that the estate was not administered and distributed accordingly in that 1st defendant alleged that the Late Robson Mathias Mapurisa had 75% shares in the 4th Defendant had not been distributed. The 1st defendant thus requested the Master of the High Court to appoint an executor to look into the matter. See page 18 of the agreed schedule of documents.
- This led to the 2nd defendant, Freddy Chimbari being appointed as the Executor of Estate Late Mathias Robson Mapurisa under a new DR number being DR 1686/10 under letters of Administration issued to him on 26th January 2011. See page 19 of the agreed schedule of documents.
- The 2nd defendant administered the Estate of the Late Robson Mathias Mapurisa only in relation to the shares under the 4th defendant, and more specifically as follows:
- He wrote a letter dated 30th June 2011 to the 5th Defendant on the issue of shares and CR 2 forms with the office of the 5th defendant. See page 20 of the agreed schedule of documents.
- He caused to be published an advert calling upon all creditors of the Estate to lodge their claims. See page 21 of the agreed schedule of documents. No claims were lodged by the plaintiffs.
- He caused to be published an advert that the account in the Estate Late Robson Mathias Mapurisa was lying for inspection for 21 days from 20th May 2011. See page 22 - 23 of the agreed schedule of documents. No objections were received to the account from the plaintiffs.
- The first and final distribution account of Estate Late Robson Mathias Mapurisa dated 12th May 2011 dealing with shares over the 4th defendant was thus approved by the Master of the High Court on 15th June 2011. See page 24 - 25 of the agreed schedule of documents.
- He also wrote to the 2nd defendant advising her by letter dated 15th July 2011 that the Master of the High Court had approved the first and final distribution account under DR 1686/10. See page 26 of the agreed schedule of documents.
- Acting on the strength of the approved distribution account by the Master of the High Court in Estate Late Robson Mathias Mapurisa under DR 1686/10, the 1st defendant was registered as the owner of 75% shares in the 4th defendant. See page 27 of the agreed schedule of documents being a copy of the share certificate issued to 1st defendant on 27th June 2011.
- The 1st defendant also became a director and company secretary of the 4th defendant with effect from 20th June 2011 as appears on the CR 14 form. See page 28 - 29 of the agreed schedule of documents.
- Charles Dauramanzi passed away on 22nd February 2003, and the 1st plaintiff was appointed as the Executor for his estate. The 1st plaintiff made a distribution account which dealt with the immovable properties of the 4th defendant as the personal properties of the late Charles Dauramanzi. These are stand number 322 and 324 Enkeldoorn Township. See page 30 - 35 of the agreed schedule of documents.
- The two properties are held by the 4th defendant under DT 4936/87 and DT 4935/87. See page 36 - 46 of the agreed schedule of documents.
- The 1st plaintiff also filed another final distribution account now dealing with 50% shares in the 4th defendant concerning the Estate of the Late Charles Dauramanzi dated 3rd October 2013. See page 47 - 54 of the agreed schedule of documents.
- The 1st defendant lodged an objection the account by the 1st plaintiff awarding 50% shares to the Estate of the Late Charles Dauramanzi. By letter dated 4th April 2014, it was communicated by the Master of the High Court that the objection was upheld and that the Executor of Estate Late Charles Dauramanzi was being advised to amend the account to show the proper shareholding. See page 55 of the agreed schedule of documents. This decision of the Master of the High Court was not challenged by the plaintiffs. As of now, the first and final distribution account dated 3rd October 2013 by the 1st plaintiff has not yet been approved by the Master of the High Court.
- Further from the records with the 5th defendant, there is a CR 2 form of 7th November 1988 relating to 75% shares to the Late Robson Mathias Mapurisa, and another of 18th February 1991 relating to 50% shares to the Late Robson Mathias Mapurisa. See page 56 – 57 of the agreed schedule of documents.
- The CR 2 form of 18th February 1991 was filed after the passing away of the Late Robson Mathias Mapurisa, and it is a matter currently pending before this Court in HC 9337/15.
- There is other litigation concerning the Estate of the Late Robson Mathias Mapurisa and the Estate of the Late Charles Dauramanzi under HC 12418/15, HC 9337/15 and HC 13662/12.
The parties incorporated the Master of the High Court’s prepared report in the matter as part of the agreed documents available. Apparently the Master does not support the relief being sought, maintaining that the estate of the late Robson Mapurisa was properly handled in so far as the shares in issue were handled.
Parties agreed that since the facts were common cause the court should make a determination on issues of law. These were captured in the joint pre-trial conference minute as follows:
“a. Whether or not the second registration of the Estate Late Robson Mapurisa under DR1686/10 was unlawful and should be set aside.
b. Whether the changes to the company register made by the first defendant pursuant to the provisions of the second estate should be reversed.
c. Whether or not plaintiffs have adopted the correct procedure in bringing the matter by action procedure.”
It is only sensible that the issue of procedure be dealt with first as a finding on the same determines whether the court should hear the matter on the merits or not.
Whether or not plaintiffs have adopted the correct procedure in bringing the matter by action procedure:
The first and second defendants submitted that in essence the plaintiffs seek to challenge the decision of the third defendant (hereinafter referred to simply as “the Master”) reached on the 15 June 2011 which confirmed the first and final distribution account in estate late Robson Mapurisa. That being so, the defendants argued any challenge to the decision of the Master had to be in accordance with s 52(8)-(9) of the Administration of Estates Act [Chapter 6:01] (hereinafter called the “Act”) which provides as follows:
“(8) Any person interested in the estate may at any time before the expiration of the period allowed for inspection lodge with the Master in writing any objection, with the reasons thereof, to that account.
(9) The Master shall consider such account, together with any objections that may have been duly lodged, and shall give such directions thereon as he may deem fit:
Provided that—
(i) any person aggrieved by any such direction of the Master may, within thirty days after the date of the Master’s direction, and after giving notice to the executor and to any
person affected by the direction, apply by motion to the High Court for an order to set aside
the direction and the High Court may make such order as it may think fit;
(ii) when any such direction affects the interests of a person who has not lodged such an
objection, the account so amended shall again lie open for inspection in the manner and
with the notice aforesaid unless the person so affected consents in writing to the account
being acted upon.”
It is the defendants’ argument that the plaintiffs did not lodge any objection with the Master when the account was advertised as lying for inspection and neither did they use the motion procedure as provided in the above section to challenge the Master’s decision. Further, they did not approach the court within the thirty (30) days so provided to challenge the Master’s decision. Relying on Edna Songore v Josiah Gweme and Ors,[1] the defendants submitted that failure by the plaintiffs to utilise provisions of s 52 (8) and (9) (i) rendered any attempts to seek to have the approved distribution and liquidation plan reversed nugatory.
The defendants further raised argument that the application for a declaratur was not bona fide but was an attempt by the plaintiff to run away from the dismal predicament they found themselves in for not having utilised review procedure and finding themselves out of time. Having known of the Master’s decision in 2011, to then approach court in 2014 meant that the plaintiffs could no longer launch review proceedings. This being so by reason that the period prescribed by statute for compliance cannot be extended by any court neither could any court condone failure to abide in the absence of such provision. The court not empowered to grant condonation for failure by a party to comply with time limits provided by a statute[2], the plaintiffs would be aware that they cannot seek a review and hence the attempt to clothe the proceedings as action proceedings seeking a declaratory order. The defendants therefore implored the court to withhold its jurisdiction as what Gowora J (as she then was) stipulated should be the position in the Mayiswa case cited supra. It is the defendants’ contention that even looking at the grounds that are pleaded for the relief sought they point to the relevant procedure being a review. According to the defendants, the plaintiffs’ cause is anchored upon the absence of jurisdiction on the part of the Master to allow the subsequent registration and his further approval of a distribution account by the second defendant. The remedy for such would be a review and not to seek a declaratory order so the defendants argued. The defendants seek a dismissal of the plaintiffs claim with costs on a higher scale.
Apparently there is nothing much on record by the plaintiffs to counter the arguments by the first and second defendants on the aspect of whether the correct procedure was adopted in these proceedings. A response to the defendants’ submissions would have presented the court with an insight into how the plaintiffs believe that the procedure they adopted is the correct one. On the contrary, the only statement in the plaintiffs’ submissions on the aspect is to the effect that since fraud is proved by contestation of fact, it cannot be ventilated in application procedures therefore it was proper for the plaintiff to bring this matter through action procedure. Given that parties had agreed that the court had to decide on whether the procedure adopted was the correct one, it is odd that the plaintiffs did not seriously address that particular aspect content to just dedicate a single statement to address that aspect. In the absence of meaningful submissions, the court cannot make a case for the plaintiffs and hence a determination on that point has to be made on what is on record, which on the part of the plaintiffs is deficient.
I find merit in the first and second defendants’ argument that the procedure adopted by the plaintiffs is wrong. It is a fact that the final distribution account in estate late Robson Mapurisa was approved on the 15th June 2011. It is not in dispute that the second defendant Mr. Chimbari the executor in estate late Mapurisa wrote to the second plaintiff on the 15th July informing her of the Master’s decision to authorise the estate account which dealt with the shares in Chivhu Holdings. It was only in 2014 two years down the line that the plaintiffs decided to take issue with the handling of the estate by instituting these proceedings. Section 52(9)(i) is clear that once dissatisfied with the Master’s decision regarding a final distribution account, one has to approach this court through motion proceedings within 30 days after the date of the Master’s decision. This did not happen with the plaintiffs. Regard being made to the Songore case cited supra it is evident that the plaintiffs found themselves in an invidious position where given the time factor, it would be impossible to seek reversal of the Master’s decision in approving the distribution plan.
The court has to be wary of applications that may appear as seeking declaratory orders
when in fact review proceedings would be appropriate in the circumstances. Such distinction can be achieved when one considers and applies what the Supreme Court pointed to in Geddes v Tawonezvi[3] where it was held that:
“In deciding whether an application is for a declaration or review, the court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not in itself proof that the application is not for review. The court should look at the grounds on which the application is based rather the order sought…”
That this is a review disguised as an application for a declaratur is evident from the submissions by the plaintiffs themselves which betray them. The following paragraphs from the plaintiff’s submissions are instructive in that regard:
14. “For the avoidance of doubt the power to reopen a dissolved estate can only be exercised by this court and an example of such power is evident in the matter of Goremusandu v Mahenga & Ors.[4] Nowhere in the common law or current statutory architecture is the third defendant imbued with the power to precipitously re-open a dissolved estate and cause the appointment of a new executor in the same vein totally disregarding the previous executor and administration account.
15.
16
17. The Master as a creature of statute is enjoined to act in terms of a cognizable statutory provision. His admitted act of reopening is palpably irregular…
18. The plaintiff is fortified in this view by the general proposition that there can be no power without the requisite authority to make such a decision…”
19. If a statutory official acts without legal ability the ensuing action is too a nullity at law.
20. Resultantly, it is clear and incontrovertible to conclude that the 3rd Defendant could not validly re-open the Late Robson Mapurisa’s Estate in the precipitous manner he did. Even if he could reopen the Estate he could not ignore the appointment of the previous executor.”
The contents of these paragraphs speak to one thing, that is, that the Master had no authority to neither re-register the estate nor appoint the second defendant as Executor in the estate nor confirm the subsequent account. They also speak to an irregularity in the manner the Master handled the estate. Where such complaints arise then recourse lies in the provisions of s 27 of the High Court Act which provides as follows:
“27 Grounds for review
- Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be—
(a) absence of jurisdiction on the part of the court, tribunal or authority concerned;
(b) …......;
(c) gross irregularity in the proceedings or the decision.
(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”
As plaintiff alleged lack of authority by an official to act and an irregularity in the manner the Master appointed Mr. Chimbari as executor, the remedy is / was to seek a review. Thus submissions by the plaintiffs confirm what the defendants have asserted, which is that, the grounds upon which the plaintiffs rely on calls for a review. Given the evidence at hand, it is clear that the plaintiffs adopted a wrong procedure.
The defendants seek dismissal of the plaintiffs claim with costs on a higher scale. It was brought to the court’s attention by the defendants that first plaintiff (Cecil Madondo) was a first defendant in the matter of Stella Hapaguti v Cecil Madondo N.O. & Anor[5], wherein he successfully raised a preliminary point that the court could not deal with a matter seeking a declaratory order when in fact what the applicant sought to do was to review the Master of the High Court’s decision. Having successfully raised such an important point which the court upheld, can it be said that the plaintiffs were oblivious to this position of the law? The answer has to be in the negative. This issue is not novel to the first plaintiff, and given that the application came nearly 3 years after the confirmation by the Master of the account of the estate late Robson Mapurisa, the court finds that the plaintiffs deliberately disguised the application as a declaratur to evade the consequences of having failed to comply with the provisions of s (52) (9) of the Administration of Estates Act. This in the court’s view creates a situation where censure is required, for it is not legally and ethically correct for a litigant who has relied and guided the court on a particular aspect to then seek to turn a blind eye to a legal point that he successful raised, and pretend not to know of the obtaining set legal position simply because he is now engaged in a different case. For such conduct, the court finds merit in granting costs as prayed for by the defendants.
In the result, the following order is made.
1. The application is dismissed.
2. The first and second plaintiffs are ordered to pay costs on an client attorney scale, jointly and severally, the one paying the other to be absolved.
Mushoriwa Pasi, plaintiff’s legal practitioners
Matsikidze & Mucheche 1st defendant’s legal practitioners
[1] HH90/08
[2] Mayiswa v The Master & Another HH278/11
[3] 2002(1)ZLR 479 (S)
[4] HH288/14
[5] HH94/15.