DIANA FARM (PVT) LTD v MADONDO NO & ANOR 1998 (2) ZLR 410 (H)

Flynote

Administration of estates — executor — requirement to deliver assets of estate to executor — duty of executor to recover and safeguard property of deceased estate

Practice and procedure — parties — representation — company — must be represented by legal practitioner

Practice and procedure — stare decisis - decisions of the High Court — single judge departing from ruling made by two judges — breach of stare decisis principle

Spoliation — lawful possession — when established — need to show necessary intention to possess as well as physical possession — wrongful possession by spoliator - what is — administrator of deceased estate removing estate property — not an unlawful removal

Headnote

The executor of a deceased estate took livestock from a farm belonging to the applicant company. The livestock had belonged to the late brother of a director of the company. The company sought a spoliation order, claiming that it was in peaceful and undisturbed possession of the livestock and that the executor had wrongfully deprived it of such possession. When the proceedings were first brought, a director of the company had appeared to represent the company.

Held, that the company owned the farm but the evidence was that the livestock had been in the possession of the deceased. Although the livestock was on the company's farm, there was no evidence that it had ever possessed the livestock, as it did not have the requisite intent in respect of the stock.

Held, further, that the first respondent had established that the stock he removed was properly identified as having belonged to the deceased. The Administration of Estates Act [Chapter 6:01] requires that any person having custody of any property or asset belonging to a deceased estate should forthwith deliver the property or assets to the executor or report the particulars of the property to the Master. The removal of the property was therefore lawful.

Held, further, that the applicant did not show that it had not consented to the removal of the property. The deceased's brother, a director, was shown to have been present at the time and to have acquiesced in the removal.

Held, further, that the applicant had to be represented by a legal practitioner. There was a decision by two judges of the High Court to this effect. Although a single judge had later given a judgment to the opposite effect, the stare decisis principle requires that he should have followed the earlier judgment.