Cecil Madondo & Cecilia Vimbainashe Dauramanzi v Brian Mapurisa & Freddy Chimbari N.O. & The Master of the High Court & Chivhu Holdings (Private) Limited & The Registrar of Companies

### Preamble
Judgment No. SC 118/2020
1
Civil Appeal No. SC 829/17
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DISTRIBUTABLE		(111)

CECIL     MADONDO     (2)     CECILIA     VIMBAINASHE     DAURAMANZI

v

BRIAN     MAPURISA     (2)     FREDDY     CHIMBARI     N.O     (3)     THE     MASTER     OF     THE      HIGH     COURT     (4)     CHIVHU     HOLDINGS     (PRIVATE)     LIMITED     (5)     THE     REGISTRAR     OF     COMPANIES

SUPREME COURT OF ZIMBABWE

MAKARAU JA, GOWORA JA & BERE JA

HARARE, OCTOBER 11, 2018

T T G Musarurwa, for the appellants

C Mucheche, for the first and second respondents

No appearance for the third, fourth and fifth respondents

GOWORA JA:	After perusing documents filed of record and hearing counsel in this matter, it was the unanimous view of the court that the appeal lacked merit. Accordingly, we dismissed the appeal with costs and intimated that our reasons would be available in due course. The reasons for judgment appear below.

THE FACTS

The second appellant is the sole heir and beneficiary in the estate of the late Charles Dauramanzi. The first appellant is the executor to the estate. The first respondent is the sole heir and beneficiary in the estate of the late Robson Mapurisa. The second respondent is the executor to the estate. The dispute before the High Court was centred around the administration of the respective estates of the two deceased.

The late Robson Mapurisa passed away in 1990. His estate was registered with the Master of the High Court, (the “Master”), and a First and Final distribution account was rendered on 17 June 1994. The executor at the time was one Brenda Evans.

Dauramanzi died in 2003 and the First and Final distribution account for his estate was filed with the Master on 16 January 2006.

The fourth respondent is a private company duly registered as such under the laws of Zimbabwe. It is common cause that the two deceased were business partners. They both owned shares in the fourth respondent. The extent of their individual shareholding is now a matter of contention in the administration of their respective estates.

Sometime in 2010, the first respondent approached the Master and requested that his father’s estate be re-registered. The basis for the request was that his late father had owned shares in the fourth respondent which had been omitted in the inventory at the time that his estate was dealt with. The Master acceded to the request and the estate was re-registered. A second First and Final distribution account was then filed by the second respondent on 12 May 2011. The major asset for distribution was 75 per cent shareholding in the fourth respondent.

On 3 April 2014 the appellants issued summons in the High Court against all the respondents. The relief sought was an order declaring that the estate aforementioned had been unlawfully registered, an order setting the estate account aside and, consequent thereto, an order setting aside all the changes to the company files of the fourth respondent and the share allotment to the first respondent. The premise upon which the relief was claimed was an allegation that the Master had been induced by fraudulent means to re-register the estate of the late Robson Mapurisa.

The matter was referred to trial on the following issues; whether or not the second registration was unlawful, whether or not the changes to the company registry should be set aside and whether or not the plaintiffs had adopted the correct procedure. The parties were agreed that the facts were not in dispute and prepared a “statement of agreed facts” which was submitted to the judge for adjudication.

The court was not convinced that the appellants had brought an application for a declaratur. It was the conclusion by the learned judge that what the appellants had brought to court was a review of the Master’s decision to reregister the estate. The court concluded by stating that the suit was brought contrary to the provisions of s 52(8) and (9) of the Administration of Estates Act [Chapter 6:01], the ("Act"). The court declined to exercise jurisdiction in the matter and dismissed the claim with costs. This appeal is against that judgment.

PROCEEDINGS A QUO

Although the parties filed a stated case, the particulars of the case are not pertinent for the disposal of the appeal. Pursuant to the parties having agreed thereto, the matter was not dealt with on the merits. Rather it was decided that the facts were not in contention and the court could decide the issues based on argument. The parties filed written submissions to the court. The court then decided the matter on technical grounds relating to the last issue, whether or not the appellants had adopted the correct procedure in bringing the matter to court.

The respondents contended that the appellants had adopted the wrong procedure. It was suggested that s 52 (8) and (9) provided for a procedure to challenge the decision of the Master where one is aggrieved. In addition, it was contended that the Act provides for an appeal procedure against a decision of the Master. The appellants did not avail themselves of the procedures under the Act and to that extent the court was disabled from determining the suit brought by the appellants outside the provisions of the Act.

The appellants, however, contended that the first respondent had misrepresented to the Master that his father’s estate had not been administered properly causing the latter to reopen the estate. It was argued that this constituted an irregularity. The appellants contended that the first respondent had committed fraud and accordingly anything done arising out of his fraudulent misdeeds was a nullity. This included the appointment of the second respondent as executor to the estate.

The court was inclined to agree with the position adopted by the respondents. The court observed:

“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.”

In arriving at its decision the court noted that the appellants had not made any submissions on the contention by the respondents regarding the adoption of the wrong procedure even though the parties had agreed that the court was to decide on the appropriateness of the procedure adopted by the appellants. The court also observed that the statement of facts jointly submitted by the parties omitted the allegations of fraud or misrepresentation on the part of the respondents. Despite such omission, the argument by the appellant was premised on alleged fraud on the part of the respondents. The court also ordered that the appellants pay costs on a punitive scale primarily because the first appellant, being aware that they had not complied with the Act, had allegedly unethically sought a review of the Master’s decision disguised as a declaratur.

THE APPEAL

The appeal is premised on the grounds that:

“1. The court a quo erred and grossly misdirected itself in dismissing the action by holding that

the appellants could not have sought a declaratory Order by action but could only have approached the Court in terms of the motion review procedure provided for by s 52(8) and (9) of the Administration of Estates Act [Chapter 6:01] and in so doing the court a quo wrongly interpreted the said provisions as ousting the common law remedies as sought by the appellants.

2. 	The court a quo erred and grossly misdirected

itself in determining that the appellants were enjoined to pay punitive costs based on the case of Hapaguti v Madondo NO & Anor HH 94/15(unreported) in which the first appellant was also a party. The facts of this case are clearly distinguishable and the principles enunciated therein, inapplicable.”

From the grounds only two issues arise for determination, firstly whether the court a quo was correct in declining jurisdiction to hear the matter on the merits, and secondly, whether the award of costs on a punitive scale amounted to a misdirection. I intend to consider the appeal based on the grounds seriatim.

WHETHER THE COURT WAS CORRECT IN DECLINING JURISDICTION

The court a quo based its decision on a construction of s 52(8) and (9) of the Act. In my view the two subsections must be construed in tandem with other subsections, especially those that impose time limits on the administration of a deceased estate. I commence with s 52(2) which reads as follows:

(2) As soon as may be after the expiration of the period notified in the Gazette in manner hereinbefore in this Act provided, and not later than six months from the day on which the letters of administration were issued to him, or within such further time as the Master may upon sufficient cause being shown allow, the executor shall frame and lodge with the Master an account showing the administration and distribution of the estate up to the date when the account was lodged, together with a true copy of that account.

It is pertinent to note that in terms of s 52(2), unless allowed a longer period by the Master, an executor is obliged to render a distribution account in relation to the estate within a period of six months from the date that Letters of Administration were issued to such executor. On a proper construction of the section as a whole, an executor has a limited period within which to administer a deceased estate. The Act specifies time limits within which the entire process must be completed.

The Act stipulates the procedure to be followed in the administration of deceased estates. It permits the raising of objections within a period of thirty days from the date that the Master gives his direction in relation to the distribution account. Section 52 (8) and (9) are relevant in this regard. The two subsections read:

(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.

In casu, the appellants should have filed an objection to the account whilst it was lying for inspection, or at any rate within thirty days from the expiry of the last date of inspection. They did not avail themselves of any of the available remedies provided under the Act. As is evident from the above provisions objections should have been made during the period of inspection or within thirty days from the date upon which the Master made a direction to the executor on the account. They sought to obtain relief long after the periods permitted in the Act. This cannot do as the court a quo correctly found.

In Chibvamuperu & Ors v Jacob & Ors HH 46/08, MAKARAU JP (as she then was said):

“It is in my view trite that this court, being a creature of statute can only exercise those powers that are expressly granted to it by the enabling statute. Section 169 does not grant this court power on good cause, to extend the time within which petitions can be served. Rule 4 C of the High Court Rules is of no application as I am not dealing with a time limit that has been set in terms of the rules of court. This is a time limit set by parliament and the doctrine of separation of state powers commands that I refrain from amending a statute from the bench as that is not my function. (See Chitungo v Munyoro and Another (supra)).

Similarly, in Mayisva v Master & Anor 2011(2) ZLR 441 (H), the court had to consider an application for review brought outside the time limits set out in s 52(8). The court had this to say:

“In Mtetwa v Mupamhadzi 2007 (1) ZLR 253 at 255G-256A GWAUNZA JA had this to say:

“As the judge a quo found, the clear meaning of this provision is that an application to set aside an award may not be made more than three months after the party seeking to have it set aside, received the award. It is not in dispute that the application in question was filed some 14 months after the appellants had received the arbitral award in question. The learned judge a quo, I find, correctly noted that Article 34 does not provide for a possible extension of the period for good cause shown or any other ground. I can also find no fault with her conclusion, based on the authorities cited, that the right to have the award set aside was irrevocably lost when the applicants failed to file their application on or before 1 December 2004, the last day of the three month’s period stipulated in the Arbitration Act.”

I respectfully associate myself with those comments. In casu, the application to set aside the decision of the Master was launched more than thirty days after it was made. The section which affords the right to an aggrieved party does not allow for an extension of the time within which such review may be launched. This court cannot accord to itself the power to condone the failure on the part of the applicant to file the application within the period provided for by statute.”

In Songore v Gomwe HH 90/08, KUDYA J in considering an application under the Act, stated:

“The applicant was aware of the Master’s decision to award the property to first respondent by 23 June 2006 and not on 17 May 2007 as she claimed in her application. In terms of rule 259, she was obliged to bring the present application within eight weeks of her knowledge. See Cluff Mineral Exploration(Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd & Ors 1989 (3) ZLR 338 (SC) and Clan Transport Company (Pvt) Ltd v Road Service Board & Anor 1956 R&N 322 (SR). If she failed to do so she had to, on good cause shown, apply for condonation. See Bishi v Secretary for Education 1989(3) ZLR 240(H); Jensen v Acavalos 1993(1) ZLR 216 (S); Kodzwa v Secretary for Health & Anor 1999 (1) ZLR313 (S) at 314 H -315A and Masuka v Chitungwiza Town Council & Anor 1998 (1) ZLR 15 (H) at 30G and compare with Jones v Strong SC 67/2003 at page 4 which emphasized the need to seek condonation for a rescission under rule 63.

Mr. Mabulala, for the respondents, correctly submitted that in the absence of an application for condonation, the present application is a nullity. I would dismiss it on this basis.

The second preliminary point that was raised was that the applicant could not seek to review a report made to the Court by the Master but the decision of the Master that she found unpalatable. Mr. Kufaruwenga conceded that the applicant could not seek the review of the report in question as it was merely an opinion which was not binding on the Court. He however submitted that the report was attached as proof that the Master had actually made the decision that was being impugned. It seems to me that the applicant had the opportunity to challenge the liquidation and distribution account in terms of section 52 (8) of the Administration of Estates Act [Chapter 6:01] and could approach the Court in terms of s 58 (9) (i) to seek redress. Failure on her part to act would render any future attempt to reverse the approved distribution and liquidation account nugatory.”

It is not open to the Master to extend time periods provided for in statute. Neither is a court permitted to extend a period set in a statute unless the statutory provision itself permits this. This is however, not the contention of the appellants. The appellants contend that the relief they seek is founded on common law principles and that the Act has not ousted the common law remedy they seek to rely on.

Before the court a quo they based the claim on alleged fraud. The allegations of fraud were specifically left out in the ‘statement of agreed facts’ placed before the court a quo. The suggestion that the relief sought   is premised on common law appears to be a last ditch attempt to have the judgment of the court a quo set aside. An appeal is on the record and the court hearing the appeal is confined to issues dealt with by the trial court. The court a quo was not tasked with determining a claim based on the common law. By abandoning the case made out before the court a quo and pursuing a completely diferent case on appeal, the appellants are confirming the judgment of the court a quo that the case brought before it was devoid of merit. The appeal premised on something not argued before the court a quo is thus devoid of merit. In my view that conclusion is dispositive of the appeal.

It only remains that it deal with the issue of costs and the level of costs awarded against the appellants. The court a quo ordered costs against both appellants on a punitive scale. In awarding costs the court made the following remarks:

“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, 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 successfully 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.”

The award of costs is an exercise of discretion on the part of a court. The appellants have not attacked the exercise of discretion by the court a quo in any meaningful manner. It was contended that there was no authority for punishing the appellants with costs. It was argued that such costs are normally awarded where litigants have been dishonest, mala fide, or institute or defend spurious suits or abuse the court process.

In my view the court a quo expressed itself clearly on its decision to order costs on a punitive scale. The first appellant, as respondent in a previous matter, had successfully raised the argument, that once an estate had been closed, an applicant could not seek a declaratur when in fact sought was a review of a decision of the Master. There is no suggestion herein that the court mistook the facts and that the first appellant had in fact not participated in a matter where that principle was upheld in his favour.

What is evident is that the appellant, in both matters was appearing as executor in a deceased estate. He has the experience in running deceased estates that an ordinary lay person generally lacks. As such he is required to exercise good faith in his dealings with the Master and the public at large. He in fact has knowledge pertaining to the proper administration of estates and i.e. expected to assist the Master and the court in matters in contention. It therefore does not bode well for him to seek an interpretation of a section of the Act and have a claim dismissed at his instance and yet disregard that very pertinent issue when confronted with similar circumstances. The court a quo was within its rights to order costs on a punitive scale.

I am unable to find that the court a quo exercised its discretion injudiciously. The appeal against the award of costs also fails.

It was for these reasons that the appeal was dismissed as stated above.

MAKARAU JA		:              I agree

BERE JA			:              I agree

Mabuye Zvarevashe, legal practitioners for the appellants

Matsikidze & Mucheche, legal practitioners for the respondents