Held, that the failure to cite the executor of the estate was a fatal defect that rendered the summons a nullity.

Cases cited:

Jack & Ors v Mushipe & Ors HH 318-15 (unreported), referred to

JDM Agro-Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H), followed

Mhlanga v Ndhlovu HB 54-04 (unreported), referred to

Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H), applied

Legislation considered:

Administration of Estates Act [Chapter 6:01], ss 23, 25

High Court Rules, 1971 (RGN 1047 of 1971), O 13 r 87 (1)

Book cited:

Meyerowitz D The Law and Practice of Administration of Estates
(5th edn, Juta & Co Ltd, Cape Town, 1976)

J Chakura, for the first and second plaintiffs

W Nyika, for the first defendant

CHITAKUNYE J:

The circumstances of this case epitomise the need for due diligence on the part of legal practitioners in the performance of their duties. Had the legal practitioners for both sides in this matter diligently applied their legal minds to the matter at hand, basic or rudimentary errors could have been avoided. However, due to the failure to do what I consider to be basic inquiries or checks with clients on taking instructions, the legal practitioners led their clients along a path whose consequences will now befall them.

The brief facts are that the plaintiffs and the late KNM were children of the late SGNM. The plaintiffs alleged that the late SGNM left behind a will wherein he bequeathed his rights, interest and title to an immovable property situated in Harare, to his immediate family, with the late KNM being the custodian of the said rights. The immediate family included the plaintiffs and the late KNM. They further alleged that the late KNM clandestinely caused the immovable property to be registered in his name which development was only unearthed at an edict meeting in respect of the estate of the late KNM.

It was as a result of this discovery that plaintiffs brought this suit to reverse what the late KNM had done. In this suit the plaintiffs' claim is for:

1. An order declaring the registration of rights, title and interest in immovable property situated in Harare in favour of the first defendant null and void.

2. That the immovable property in question be jointly owned in equal shares by the late SGNM's sons and daughters.

3. That the second defendant reverses the registration of the said property from the late KNM's name.

4. That each party bears its own costs.

The third plaintiff withdrew his case against the defendants and so on the trial date only two plaintiffs were persisting with their case.

After plaintiffs had testified, it was now the turn for the first defendant. Silas Mapfirakupa ("Silas") gave evidence. It became apparent from his evidence that he was testifying as a son to the late KNM and not as the executor of the estate of late KNM. It was his evidence that at one-point Modern Mapfirakupa ("first plaintiff") was appointed executor of the estate of late KNM. He was later removed from that office due to the manner he was administering the estate, which included awarding himself the immovable property in question.

Though the matter was brought by action and all pleadings filed after which a pre-trial conference was held, it became apparent that parties were under a false impression that Silas was representing the estate of late KNM. It is clear, for instance, that when the first defendant was cited simply as "estate of late KNM" no one queried the citation.

Upon service of the summons at the late KNM's address, Silas approached legal practitioners who in turn entered appearance to defend as if they were representing the first defendant. It would appear that no inquiry was made on the capacity Silas was defending the matter. In the circumstances pleadings proceeded without such inquiry.

The net result was that when Silas testified that he was not the executor and that the last executor had left office about a year ago and so currently the estate had no executor an undesirable lacuna was brought to the fore. The citation of the deceased estate was wrong and the representative of the estate had not been cited or served with the court process and thus the deceased estate was not represented in the matter.

When I raised the issue with counsel for plaintiff he insisted that the matter could proceed with the substitution of the first defendant to read the "estate of late KNM represented herein by Fidelis Bonde in his capacity as executor." Apparently it was alleged this Fidelis Bonde was the last executor to be in the executor's office. This was just speculative as no letters of administration were tendered to confirm his appointment.

That suggestion was clearly untenable as the error was not just the absence of the executor on the trial date, but the non-citation of the executor from the inception hence excluding the executor from the proceedings altogether. It would also not make sense to cite an executor who was no longer in that office.

It is my view that the failure to cite the executor was a fatal defect which renders the summons a nullity. This is so because the relief sought was essentially against the estate of the late KNM.

In his written submissions plaintiff's counsel argued that the non-citation of the executor was not fatal as the executor was just a nominal representative of the estate. According to him there would be no prejudice suffered by any party to these proceedings if they are allowed to stand.

To buttress his argument he referred to O 13 r 87 (1) of the High Court Rules, 1971 (RGN 1047 of 1971) ("the Rules"), as amended. That rule states that:

"87. Misjoinder or nonjoinder of parties

(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application –

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) A court application by any person for an order under subrule (2) adding him as a defendant shall, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter."

He further cited the case of Jack & Ors v Mushipe & Ors HH 318-15 wherein at page 3 of the cyclostyled judgment I stated that:

"Whilst accepting that in cases involving deceased estates it is important to cite the Master as the official entrusted with overseeing the administration of deceased estates, I am however of the view that the non-citation of the Master is not fatal in this case. This court can still make a determination as between the parties cited."

As counsel observed, in the Jack case (supra), the relief sought was not against the Master of the High Court and so no prejudice would be caused by the non-citation.

In casu, the relief sought is against the estate of late KNM in that it seeks to declare the registration of rights, title and interests in the late KNM's name null and void. It also seeks that the property that was registered in the late KNM's name, thus part of the deceased's estate, be re-registered in the names of the late SGNM's sons and daughters. In short, the relief sought has the effect of taking away a property registered in the late KNM's name and registering it in the names of other persons thus depriving the deceased estate of late KNM of that property.

Such an order is clearly prejudicial to the interest of the estate of late KNM. It is also a misnomer to say that the executor of an estate is just a nominee and so failure to cite him is not fatal. Clearly the executor is the recognised legal representative of a deceased estate and failure to cite him is fatal. He is the one appointed to administer the estate and to ensure the estate is properly wound up with all assets being accounted for.

In this regard s 23 of the Administration of Estates Act [Chapter 6:01] ("the Act") states that:

"23 Letters of administration

The estates of all persons dying either testate or intestate shall be administered and distributed according to law under letters of administration to be granted in the form B in the Second Schedule by the Master to the testamentary executors duly appointed by such deceased persons, or to such persons as shall, in default of testamentary executors, be appointed executors dative to such deceased persons in manner hereinafter mentioned."

It follows that in a case involving deceased persons, there shall be appointed a representative who is empowered through letters of administration to act for and on behalf of the deceased's estate. This is so because the deceased estate cannot represent itself. In terms of s 25 of the Act, a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master.

In Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H) at 222E-223C KUDYA J aptly held that:

"In our law, in terms of s 25 of the Administration of Estate Act [Chapter 6:01], a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master... the executor occupies the position of legal representative of the deceased with all the rights and obligations attaching to that position and that because a deceased's estate is vested in the executor, he is the only person who has locus standi to bring a vindicatory action relative to property alleged to form part of the estate. Arising from the nature of a deceased estate... the citation of a deceased estate as party to litigation is wrong. The correct party to cite in lieu of the deceased estate is the executor, by name. The citation of the second plaintiff and second defendant in casu was therefore improper and incurable. It makes their presence a nullity."

See also Mhlanga v Ndhlovu HB 54-04 (unreported).

The executor of an estate has certain rights and powers in connection with the estate and certain duties to perform both at common law and in terms of the Act.

In casu, the citation of the estate of late KNM as party to this action without citing the executor was therefore wrong. The estate of late KNM could not defend itself. It is akin to expecting the deceased to rise and defend the action. In D Meyerowitz The Law and Practice of Administration of Estates (5th edn, Juta & Co Ltd, Cape Town, 1976) at page 123 the esteemed author stated that:

"An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. A deceased estate is an aggregate of assets and liabilities and the totality of the rights, obligations and powers of dealing therewith, vests in the executor, so that he alone can deal with them.

He has no principal and represents neither the heirs nor the creditors of the estate."

If therefore the totality of the rights, obligations and powers of dealing with deceased estate is vested in an executor it follows that the executor must invariably be cited by name in any suit against the estate.

In Meyerowitz (op cit) at page 124 the author firmly states that:

"No proceedings can be taken against the estate without making the executor a party to them. Similarly, no person can institute proceedings on behalf of the estate except the executor. The estate cannot sue or be sued until an executor has been appointed."

Clearly therefore, failure to cite the executor is fatal to an action against the deceased's estate. It is an aspect that cannot be amended at this stage of the proceedings when the leading of evidence is almost at an end.

In JDM Agro-Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H) at 74F-B court held that:

"A party can, in this court, amend its pleadings at any time, provided that there is no prejudice to the other party, which prejudice is not capable of being cured by an award of costs. As much as I have researched, I have not come across any authority that says that such an application cannot be made even after pleadings have closed. The application raised does not in my mind, fall under exceptions or special plea, as it does not attack a defect in the pleadings. It deals with an irregularity in the summons itself, which cannot be amended... What is now before me is a point in limine dealing with the question of the citation of the parties. It is a legal issue, in that the defendants aver that the summons is bad at law, in that no defendant has been brought before the court. They allege that the proceedings are a nullity..." (my emphasis)

In casu, the executor as the legal representative of the deceased estate was not cited. The executor was thus not before court. All the pleadings were filed without the participation or involvement of the executor. The evidence led did not establish that at the time of issuance of the summons there was a duly appointed executor. There is therefore no defendant that has been brought before the court to answer the claim on behalf of the estate.

The consequence of the non-citation of the executor of the estate late KNM by name is that the summons is a nullity and the matter has to be struck off the roll.

Accordingly the matter is hereby struck of the roll with no order as to costs.

Manyurureni & Company, plaintiffs' legal practitioners

Nyika legal practitioners, defendant's legal practitioners