NYANDORO & ANOR v NYANDORO & ORS 2008 (2) ZLR 219 (H)

Flynote

Administration of estates — deceased estate — litigation — must be represented by executor

Practice and procedure — parties — deceased estate — must be represented by executor — citation of — must be cited in name of executor

Headnote

The first plaintiff, a widow, sought the transfer of a property to her. The property was registered in the name of her late husband's brother, who was also deceased. The plaintiff's brother in law had never lived in the house, but her husband had. The action was also brought in the name of the estate of the first plaintiff's husband. The first defendant was the son of the first plaintiff's late brother in law. Apart from disputing the claim on the facts, the defendants argued (1) that the second plaintiff was not properly before the court, no executor having been appointed for the estate; (2) that the first plaintiff in any event had no locus standi; and (3) that the claim had prescribed. The plaintiff conceded the first point, but argued that the plaintiff had locus standi; that a plea of prescription must be pleaded; that it should be raised by way of a special plea and, lastly, that the first plaintiff's claim was not a debt but a claim for land for which prescription runs for 30 years. The defendants initially counter-claimed for eviction and rentals but abandoned this claim during the trial. The defendants had raised the matter of prescription in their plea, but did not raise a special plea.

Held, that the plaintiff's concession was correct. A deceased estate must be 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. 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 a party to litigation is wrong. The correct party to cite is the executor, by name. The citation of the second plaintiff and second defendant in casu was therefore improper and incurable and their presence was a nullity.

Held, further, that on the issue of whether the plaintiff, as the widow, had the legal interest to sue for the immovable property in question on the basis that she was a part owner of the property, property that is registered solely in the husband's name belongs only to him. This case dealt with estate property, not the distribution of matrimonial property arising from divorce, which would be governed by s 7 of the Matrimonial Causes Act [Chapter 5:13]. The plaintiff would not have had locus standi to sue for such property in her own right.

Held, further, that the failure to raise a special plea does not debar a litigant who has pleaded prescription from having its case resolved. Having pleaded it in casu, the defendant was within his rights to seek to curtail the trial on the basis of prescription.

Held, further, that the plaintiff's claim fell within the definition of "debt" in the Prescription Act [Chapter 8:11]. Her claim for transfer of the immovable property, whether based on a purported trust for her children or on her contributions, began to run, at the latest, when the distribution plan of Nelson's estate was approved by the Master.