Ntaba v Commissioner for Lands & Ors. (Civil Cause 624 of 2010) [2017] MWHC 108 (16 June 2017)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 624 OF 2010 BETWEEN: ZIONE NTABA (As Executor Maurice Ju st ice N ta ba )----------------- ----------- of the Late George ----------------------PLAINTIFF of the Will and Estate AND COMMISSIONER FOR LANDS--------- -------------- -----------1 DEFENDANT ST MAXWELL NT ABA----------------------- ND ------------------- ------ 2 DEFENDANT ONl)-------------------------------- RD 3 DEFENDANT JEAN NTABA (MRS HAMIT EMILY NT A BA-------- WILLIAM CH I LIN DA NTABA------------------ 5 DEFENDANT TH ALI CE NAMA TA------------- ------------- ------ -------------------------------- 6 DEF EN DANT -------- TH ----------------------------------------------- 4 DEFEND ANT TH AND IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY PROBATE CAUSE NUMBER 69 OF 2010 IN THE MATIER OF GEORGE MAURICE JUSTICE AND IN THE MATTER OF AN APPLICATION NTABA, EMILY NTABA, WILLIAM CHILINDA NTABA FOR LIMITED GRANT OF LETIERS OF ADMINISTRATION the Supreme Court MSCA number 5 of 2012) NTABA (DECEASED) BY MAXWELL NTABA, JEAN (Consolidated by Order of CORAM: HON. JUSTICE M. C. C. MKANDAWIRE Chiume, Counsel for the Plaintiff Kadzakumanja/Chinyama, Counsel for the Defendants Mrs Namagonya, Court Reporter ltai, Court Interpre ter JUDGMENT to the court to revoke the grant of letters applied The plaintiff that were granted Jean Ntaba, Emilly Alimaunde summons dated 18th November summons deponed under probate Ntaba and William 12/124 in Lilongwe. cause number Chilinda This matter commenced Ntaba in respect through 2010. There is an affidavit by Zione Jane Veronica Ntaba. of title number an originating in support of the of administration 69 of 2010 to Maxwell Ntaba, of the Estate of the late George Maurice Justice is the Executor The plaintiff Ntaba. She is also the daughter died on 21st of December legally 'ZJVNl'. appointed general The Administrator and Trustees as Executors of the late George Maurice 1990. The said Late George Maurice Justice Justice Ntaba who Ntaba left a to the affidavit Ntaba were Maurice marked and Dr Hetherwich of this Will from 1991. valid Will which is part of the evidence attached Justice is attached the plaintiff was appointed 2009, the plaintiff an Administrator Ntaba substituting of the Dr Hetherwick General. as the Administrator After being appointed On 1 ih of February Estate of the late George Maurice Maurice Ntaba and the Administrator appointing (P Ext 1) as 'ZJVN2'. on an inquiry embarked the deceased properties Number Alimaunde a caution registered the registration forbidding without to P Ext 1 as 'ZJVN3'. had left covered 12/124 in Lilongwe. with the 1st defendant of any dealings consent of the plaintiff's On 20th July 2010 the 2nd, 3rd 4th and 5th defendants interest claiming and making of any entries A copy of the court order to the affidavit an Administrator Estate. One of the at Title by the Will was a house situated On the 24th of June 2010, the plaintiff thereon is attached obtained in support the plaintiff of the deceased into the affairs the authority in the said title and The caution or notice. with Limited of Administration them to administer to P Ext 1 as 'ZJVN'. letters allowing attached Grant, Limited there was a caution in force. 3rd, 4th and 5th defendants Title Number Alimaunde In obtaining Grant in Prob9te Cause Number 69 of 2010 The court order is 12/124. of Administration with to the court that that the 2nd, did not disclose submitted the letters The plaintiff in her affidavit did not make frank disclosures to the court namely: the 2nd, 3rd, 4th and 5th defendants {i) That there was already (ii)Misrepresented an Executor in charge of the Estate. to the court that the house had been given to them and that they owned it yet the said property was never transferred (iii)Lied that they had forfeited part of their inheritance to them. in lieu of the said property stipulated in the Will. The plaintiff Executors 5th defendants. said that there is no evidence on record to show that the previous had transferred the property Alimaunde 12/124 to the 2nd, 3rd , 4th and of Administration the 2nd, 3rd, 4th and 5th defendants as proprietors The defendants therefore of Title Number Alimaunde later sold the house to Alice Namata the 5th says that the letters 12/124 as shown and by means of false allegations of Administration of fact. These letters were of are therefore void ab initio. letters themselves 'ZJVN7'. Upon obtaining registered in exhibit defendant. obtained Administration The plaintiff fraudulently The 1st defendant nutshell, this court may make. the 1st defendant filed a very brief affidavit in response to this matter. In a says that it will be willing to abide by any order that an affidavit Ntaba in 1990, the estate was administered said that since the death of their late by George Maurice and Dr Hetherwick in his Will. The defendants through Justice The 2nd to 5thdefendants brother General the Administrator deceased plaintiff had already the plot on Title Number Alimaunde plaintiff It is their case that the Plot on Alimaunde Department. with by the previous Administrators that she was the new Administrator them in the inquiries did not at all involve obtained Letters Ntaba who were appointed by the about the said that they were not informed about it after they and only learnt of Administration Limited The defendants 12/124. to the administration of aver that the that were done at the Lands dealt 12/124 was already made consultations with and had the plaintiff of Administration. The defendants the estate a caution. Administrators, she could not have registered said that they had made all the disclosure the Letters between the mother to the plaintiff, the previous defendants they obtained consultations defendants house in issue was given to the mother the mortgage mortgage therefore previous Administrators, house at Plot Alimaunde The that was required before said that as per the ors and the the beneficiaries and that the tendered The defendants of the plot in issue. The 'EM3'. The defendants to them by the from the loan accounts say that as proof that the plot in issue was transferred the rentals loan which they had to clear in respect as exhibit were tendered were collecting the defendants the Administrat to the deceased. was properly 12/124. amongst shared Ntaba one of the Executors the affidavit It is very clear from the Executors to clause Dr Hetherwick affidavit. deceased, According bequeathed into money and out of the said money to divide residuary in the proportions to the Executors and Trustees estate that were provided and Trustees that in administering filed an the the Will of of the Estate were to be guided by clause 5 of the Will. 5 of the said Will, all the residuary estate was devised and of the said Will upon trust to sell, call in and convert the remainder for as follows: of the said 1.60% to children 2.10% to his wife Phyllis Ntaba 3.5% each to his brothers Maxwell Ntaba the plaintiff including and William Chilinda Ntaba and his sisters Jean 4.10% to his mother Ida Ntaba. Ntaba and Emily Ntaba. The Alimaunde of the Will they could not transfer to any beneficiary. 5 as read with clause plot had a charge and as such as per clause the ·property the affidavit of Dr Ntaba through deponed and the deceased's in Blantyre should 70% of the Estate. that there were no encumberances It is the evidence consultations between the Executors it was resolved beneficiaries widow and children deceased's arrived so that the widow and the children Alimaunde and the brothers that the properties representing of this matter was at considering representing plot subject and sisters by him that through wife and other be given to the given to the mother of the deceased 30% of the estate. This was done so This decision was on the said properties could start benefiting immediately. The that the mother and her children through clearing thereafter the rentals the mortgage from the house the family started receiving the rentals. could wait an� service on the said plot and start benefiting after the mortgage loan loan. The loan was accordingly cleared in 1999 and all the affidavits the affidavits the questions that were filed by the defendants. that were exchanged side. I have that were filed by the plaintiff's In doing that, I during the in the court. and answers I and one of the defendants have loved if the first Executors gave oral evidence and Trustees that the plaintiff to the same exercise I have gone through also gone through have been assessing time the plaintiff would actually deceased defendants affidavit to this case together were subjected underwent. in opposition It is unfortunate to the application herein. that Dr Hetherwick I thought that of the Will of the and one of the Ntaba only filed an he was very central with the Administrator General who were the first Trustees. actually of this matter is The genesis put it on record that the Will of the deceased and 6 of the said Will are extremely evidence Alimaunde of doubt, clause that was presented 12/124 was contrary 6 provided to It is fundamental the Will of the deceased. clauses has to prevail. Therefore all the After having gone through before me, I find that what happened to Plot to what was in clause 6 of the Will. For avoidance as follows: relevant. but instead "THE EXECUTORS houses or other real property recognized estate there from upon trust towards payment of any mortgage capital Will". thereof shall not in so far as part of my residuary estate comprise on which a mortgage and other charge duly in law shall be subsisting sell or convert any such part of the residuary they shall stand possessed of any residuary estate the maintenance and repair and income and in the thereof and the net income or of clause 5 of the rates outgoings under the provisions instalments upon the trust declared 6 if at all they had given Plot Alimaunde 12/124 to the t of the Will who were Dr Hetherwick The Executors General nd to 5 to 5 of the deceased as the defendants th defendants clause had violated 1t is also very clear from the evidence h defendants. of evidence in any discussions have no scintilla was involved would like this court to believe. involving on record that the 2 to show that Phyllis Ntaba nd Plot Alimaunde widow 12/124 When confronted during cross- Ntaba and the Administrator �>n behalf of other defendants to show to this court that there was consent It is again very strange that such a serious issue could not that Plot Alimaunde any evidence of transfer of had formally of the Will yet the same Executors on 20th of October 539 in the city of Blantyre What could have prevented 2006 and the proof. without very strange Mrs Mollande the Likhubula who was the deponent examination, confessed that she had no evidence from the widow. It was therefore even have any documented 12/124 could be given to the four defendants by the Executors the property transferred that there is documentary evidence Executors here is that there was looked at the affidavit lacked and was Ntaba had replaced however change yet it was incumbent deliberately Administration there was already Zione Ntaba filed an application of Plot Alimaunde the Executors Dr Ntaba did not inform no such transfer. of Dr Hetherwick strange that seriousness to that effect. from doing the same with Plot Alimaunde not made in good faith. 12/124. This was just an afterthought. Ntaba, I was of the strong The only explanation When I view that it as new Administrator Dr Ntaba knew that of the estate. the 2nd to 5th defendants about Zione It is this upon him to do that. I find that the defendants before the High Court applying 12/124 knowing very as the new Administrator. well at that time that for Letters of Having given the case the best of its scrutiny, I make the following findings: (i)The letters of Administration by the 2nd to 5th defendants on the basis of untrue fraudulently by the Commissioner because statements of facts. of Lands through (ii)The decision with a Limited be revoked Grant which were obtained they were obtained the Lands Registrar the 2nd to 5th defendants of Title as the proprietors caution in registering Number Alimaunde prohibiting 12/124 when there was an existing and therefore the same was unlawful (iii)The court does order that the Land Registrar cause the rectification of the Land Register as Proprietors could therefore to the 5th defendant void. should with immediate the 2nd to by cancelling 12/124. Alimaunde (iv)The 1st defendant a transfer effect the 5th defendants not register Alice Namata. of Title Number of title or cause to be registered I further grant all the summons in case they have not The defendants are condemned to pay costs of � n well captured i these proceedings. declarations a n paragraphs (i) to (iv) above nd orders as prayed for in the originating . DELIVERED THIS 16TH D�Y OF JUNE 2017 AT LILONGWE JUDGE 7