IN THE HIGH COURT OF SWAZILAND
JUDGMENT
HELD AT MBABANE CIVIL CASE NO: 276/2008
In the matter between:
SHAMEERA FIONA TILLY APPLICANT
And
JOANE KHERU RANCHOD N.0. 1ST RESPONDENT
MOHAMMED ISMAIL TILLY 2ND RESPONDENT
THE MASTER OF HIGH COURT 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
ESTATE LATE MAHOMMED ESSOP
ISMAIL TILLY 5TH RESPONDENT
In re:
JOANE KHERU RANCHOD N.0
And
MOHAMMED ISMAIL TILLY
Neutral Citation: Shameera Fiona Tilly vs. Joane Kheru Ranchod N.O. and Four Others (276/08) [2018] SZHC (33) February 2018
Coram: MLANGENI J.
Heard: 31st October 2017
Delivered: 22nd February 2018
Summary: Law of succession – deceased estates – immovable property co-owned by two in undivided shares – one of the co-owners died and upon winding up of the estate court ordered that property be sold and proceeds distributed according to Law.
Executrix of deceased’s estate belatedly realized that the other “co-owner” is not a legitimate owner and had all but succeeded in holding himself out as owner.
Executrix seeking declaratory order excluding alleged co-owner from benefiting from proceeds of the sale of the property.
Disputed co-owner raised points of law and did not plead over. Points of law being ‘lack of locus standi’ and ‘res judicata /functus officio’.
Held: Respondent’s case stands or falls by the points of law.
Lack of locus standi dismissed on the basis that a grandchild has a right to inherit from grandparent and can institute proceedings to safeguard his or her interests in the estate.
Res judicata and functus officio also dismissed on the basis that the earlier lis did not deal with the challenge upon the alleged owner’s right of ownership in the co-owned property hence no pronouncement was made thereon.
Application granted, costs at the ordinary scale.
JUDGMENT
BACKGROUND
[1] In terms of Deed of Transfer No. 331/1970[1] certain immovable property described as “ERF No. 235, Villiers Street, Manzini, Swaziland” was transferred to two co-owners in undivided shares. Their names are Daya Ranchod and Mahommed Essop Ismail Tilly. For reasons that will become apparent later on in this judgment, I emphatically repeat that the registered owners of the said property are “DAYA RANCHOD” and MAHOMMED ESSOP ISMAIL TILLY”[2].
[2] This property was under the care of one Mohammed Ismail Tilly who was responsible for collecting rental in respect of the property, maintenance, payment of municipal rates and other related matters. Daya Ranchod died and one Joane Kheru Ranchord became executrix in respect of the undivided share of Daya Ranchod. Mohammed Essop Ismail Tilly also died. I am not certain who of the two co-owners pre-deceased the other, but I am certain that for purposes of resolving the issues before me the order of their deaths is of no significance.
[3] The caretaker of the property, Mohammed Ismail Tilly, is described as the younger brother to Mohammed Essop Ismail Tilly[3]. Deponent Shameera Fiona Tilly states, I guess for the avoidance of doubt regarding the order of birth of the two brothers, that Mohammed Essop Ismail Tilly was born in 1919 and the younger brother – the caretaker, was born in 1937[4]. The caretaker was not accounting to the estate of Daya Ranchod for rental collected as well as expenditure. In 2008 the executrix, Joane Kheru Ranchod, instituted proceedings to interdict the caretaker from collecting rental and also sought an order to have him account. These proceedings were in the form of an application under High Court Case No. 276/2008. This application was opposed, but an order was finally granted by Dlamini J. on the 9th April 2014 in terms of which, among other things, the caretaker was to file “the full account of the rentals collected from the period of 10 January 1999 to date …….”[5]. Thereafter a flurry of applications, counter – applications and interlocutory applications ensued resulting in orders and judgments that have seen disputes proliferating between the parties.
[4] One significant feature of this spate of litigation is that Mohammed Ismail Tilly, the younger of the two brothers, was being perceived and treated as the other co-owner of the property in question. He is cited as Respondent in Case No. 276/2008 and is therein described by the Applicant as “…….joint owner of the property as can be seen in the enclosed copy of the Title Deed in his favour attached hereto and marked annexure JKR2”[6]. In my observation annexure JKR2 is in reference to something else and this point was indeed taken up by the Respondent in his opposing affidavit. Inaccuracy of factual allegations is but a tiny part of the reason why the litigation between the parties is seemingly endless. What is worth noting at this stage is that younger Tilly, the caretaker, does not specifically allege that he is co-owner of the property, neither does he deny the description attributed to him by the deponent. At page 28, paragraph 9 of the book dated 5th April 2017 he pleads as follows: -
“I admit that the property in question is in my procession (sic) but I wish to state that there is nothing sinister about the property being in my procession (sic) as I have got a substantial financial interest thereon. I have been taking care of the maintenance of the aforesaid property, the payment of rates and taxes thereon and the general up-keep of the property without the assistance of anyone whatsoever ……”.
[5] It is, to me, a surprise of enormous proportion that this aspect of the matter was not picked up and dealt with decisively at that stage, only to arise in 2017 as part of an application dated 9th February 2017 in which one Shameera Fiona Tilly prays, among other things, that he “be excluded as a beneficiary to any of the proceeds following the debatement proceedings under Case No. 276/2008 on the grounds of lack of locus standi in juicio”.
[6] In her affidavit in support of this application she attempts for the first time since litigation started in 2008, to establish that younger Tilly is not the registered co-owner of the property, and that he has been erroneously treated and accepted as such and he has been quite happy to ride on this acknowledgment. It is important that I should quote the relevant paragraph of the pleadings:-
“10. It is apposite at this point to bring to this Honourable Court’s attention that although the names Mohammed Ismail Tilly, who is the Second Respondent and Mohamed Essop Ismail Tilly…..whose estate is the Third Respondent bare (sic) certain similarities, the intended Respondent in the main application was Mohamed Essop Ismail Tilly being the half-share owner of the immovable property in question together with Kankuben Dayabhari Ranchod as is clearly reflected by the tittle deed of the immovable property in question and marked ‘FT3’. I state before this Honorable (sic) for further clarity that the Second Respondent is the younger brother to the Late Mohammed Essop Ismail Tilly in whose name the half–share in the immovable property in question is registered….”.
[7] The two brothers share the same names but for “Essop” and this alone should have put all concerned on guard. I pause here to observe that the deed of transfer in question, annexure ‘FT3’, does not have the name “Kankuben Dayabhari Ranchod” as co-owner. What it does have is “Daya Ranchod and Mohammed Essop Ismail Tilly” as co-owners. The Respondents did not file any affidavit to deal with the factual issues raised and were content to raise points of law per notice dated 25th February 207. It would have been of interest to see how they deal with the belatedly introduced distinction between the two Tilly brothers. By raising points of law only and not pleading over, they also missed an opportunity to deal with what, in my view, is an equally salient feature of the matter – the true name of the other co-owner. In other words, had they pleaded to the merits they might have shed light on the significance or otherwise of the difference between the names “Daya Ranchod” and “Kankuben Dayabhari Ranchod”. But because this aspect has not been raised before me I leave it at that.
[8] How the mix-up between the two Tilly brothers went undetected for years is a matter of great curiosity. It is, to an extent, a bad reflection upon the astuteness of the attorneys who were entrusted with the responsibility of pursuing these matters on behalf of the respective protagonists. The Applicant sheds some light on this eerie subject at paragraph 12 and 13 of her founding affidavit. Because of the importance of these averments I once again quote generously therefrom.
“12. I verily believe and I am advised that the main application brought forth by the First Respondent was intercepted by the Second Respondent being the younger brother of the Late Mohammed Essop Ismail Tilly and who I am advised was responsible for the day to day administration of the immovable property. I verily believe that the main application instituted by the First Respondent was never brought to the attention of the Late Mohammed Essop Ismail Tilly and the eventuality was that the Second Respondent without no authority (sic) defended the application as instituted and ultimately held himself out as the Late Mohamed Essop Ismail Tilly unbeknown to the late Mohammed Ismail Tilly and his direct family who are based and reside in Ermelo South Africa.
13. I verily believe and I am advised that the Second Respondent owing to the similarity of the names between himself and the late Mohammed Essop Ismail Tilly, deceitfully held himself out as the half share co-owner of the immovable property, albeit knowing very well that the half share in the property belonged to his elder brother, the late Mohammed Essop Ismail Tilly. I state that Mohammed Essop Ismail Tilly passed away on the 7th May 2009……I verily believe that the Late Mohammed Essop Ismail Tilly was intentionally not made aware of the proceedings in the main application for the very reason that the Second Respondent had long harboured the malicious intent to claim the half share in the immovable property for his sole personal gain”.
[9] So much for estates of deceased persons! The deponent proceeds to point out, at paragraph 15, that it was on the premise expatiated upon above that on the 9th April 2014 the court, after hearing legal arguments in the main application between First Respondent and Second Respondent herein, issued an order that the property be sold and the Respondent “(supposedly being the half share co-owner)” was to file a rental account to enable a proper distribution of the estates assets.
[10] There is no shadow of doubt in my mind that a lot has gone wrong in the matter of the Tilly brothers. And the need to answer on the merits was as large as colossus, but Respondents opted not to do so.
POINTS OF LAW
[11] The points of law raised by the Respondents are elaborate and prolix. Because they are more-or-less self-explanatory I prefer to quote them in full.
“ABSENCE OF LOCUS STANDI
1. The application by the present applicant entirely relates to the vindication of what are perceived by the applicant to be assets belonging to the estate of the late Rased Ahmed Tilly.
a. It is only the executor of an estate that can move actions or applications for vindication of estate assets. The present Applicant is not the executor in Swaziland to the estate of said Rased Ahmed Tilly. The executor in Swaziland of the estate of the Late Rased Ahmed Tilly is one Mohammed Iqbal Tilly…..
b. The South African Letters of Administration attached to the Applicant’s application are of no legal force in Swaziland up and until afforded recognition by Procedural Stamp and seal of [The Master].
2. The Applicant therefore has absolutely no locus standi to bring the application in its present form……
RES JUDICATA AND FUNCTUS OFFICIO
3. The application is res judicata. The application, in its sugar– coated form, seeks to re-open issues that the court has already dealt with.
4. The above Honourable Court, by comprehensive written judgment of the 10th November 2017, dealt with entirely the same issues previously bought (sic) in the form of a Rule 30 Application. The court dismissed the said application and ordered the parties (for the second time) to debatement. The said Judgment was not assailed by the appeal or review. The present Applicant seeks to circumvent the court Judgment by resuscitating these issues. The same amounts to a wanton abuse of court. This court is now functus officio in so far as the issues sought to be resuscitated by Applicant are concerned”.
[12] It is trite that the Respondent, having not pleaded to the merits, stands or falls by the points of Law[7]. I now proceed to consider the points of law.
LACK OF LOCUS STANDI
[13] I accept that the Applicant is not executrix of the Swaziland Estate. The letters of curatorship that she has attached as annexure “FT2” are South African documents which, ex facie, have no authority on matters of an estate which is in Swaziland.
[14] At paragraph 1 of her founding affidavit[8] she describes herself as “……a direct descendant and Granddaughter of the Late Mohammed Essop Ismail Tilly ……”. This has not been denied by the Respondents who, as stated above, have relied exclusively on points of law. In her replying affidavit the applicant augments the point in the following manner[9]:-
“I state that the present application is brought primarily on the premise that the Applicant is an heir in the estate of the Late Mohammed Essop Ismail Tilly and accordingly has a vested interest in such estate……
I wish to state and point out further that at the date of instituting these proceedings the estate Late Mohammed Essop Ismail Tilly had no executor to act on its behalf as the erstwhile executor in the estate……..had been removed from the position by order of this Honourable Court dated 12th December 2015, I annex hereto a copy of same court order marked annexure ‘FT1’. I state therefore that as a beneficiary in the estate and in the absence of and (sic) executor, I had the necessary locus standi to bring forth this application to safeguard my interests and that of other beneficiaries in the estate.”
[15] The Supreme Court judgment in the case of SIKHUMBUSO DLAMINI V THE QUADRO TRUST AND OTHERS[10] places the Applicants’ interests in the estate beyond doubt. As an heir she has locus standi and does not need to be executrix in order to take steps to safeguard her interest in the estate.
[16] Annexure “FT1” is a page 17 of the Book dated 29 March 2017. Contrary to the allegation by the Applicant that it is an order of court it is not. It is a copy of her identity card. I am therefore unable to verify her claim that at the relevant time there was no executor in the estate. This, however does not negate my conclusion that as an heir she is entitled to do certain things that are in furtherance of or safeguard her interests in the estate. She is therefore qualified to pursue prayer 2 of her notice of motion which calls for the exclusion of the Second Respondent, Mohammed Ismail Tilly as a beneficiary in the estate, on the basis that he is not a legitimate co-owner of the immovable property.
[17] The prayer for joinder of the Applicant, the Third Respondent, the Fourth Respondent and the Fifth Respondent (prayer 1) unavoidably flows from prayer 2 which seeks the exclusion of younger Tilly as a beneficiary in the estate. I am not, however, making pronouncement of any orders at this stage, until I have dealt with the other point of law that has been raised.
RES JUDICATA AND FUNCTUS OFFICIO
[18] The simple question to be answered is this: did Maphalala P.J., in his judgment dated 10th November 2017, specifically or effectively deal with the issues that are being canvassed by the Applicant in the present application? In other words, did His Lordship specifically or effectively deal with the respective rights (or lack of same) between the two Tilly brothers in the property in question? If he did deal with these issues and did pronounce on them the argument about res judicata and functus officio must succeed.
ISSUE OF THE TWO TILLY BROTHERS
[19] At the heart of the present application is who, of the two brothers, is the true co-owner of the property and whose estate must receive the proceeds of the sale upon distribution. This issue was not ventilated before Maphalala P.J. and, in the context of the Rule 30 application that he was seized with he dealt with the matter on the basis of the presumption that Mohammed Ismail Tilly was the correct co-owner. At paragraph 24 of the judgment His Lordship has this to say:-
“……..It is therefore not stated, as succinctly as the rule requires or at all why Mr. Tilly is suddenly alleged to be without locus standi, and at this final stage of the proceedings …….”
[20] I am persuaded by Mr. Tengbe’s submissions in head of arguments 3.3 that in the context of the Rule 30 application that Maphalala P.J. was dealing with, locus standi was in reference to the right to litigate rather than the issue of younger Tilly’s right of ownership in the property in question. That is the reason why a pronouncement on this very important issue did not happen and could not have happened. It is an issue that a court of Law may not just gloss over, for it has the potential to allow a person to benefit from his own fraudulent acts or for his or her estate to benefit from such acts at the expense of legitimate beneficiaries.
[21] The conscious decision of the Respondent not to answer to such momentous allegations says it all. To shut this issue out on the basis of technicalities does not, in my judgment, accord with justice and fairness. To do so would amount to penalizing older Tilly for falling into the trap of the wily ways of younger Tilly which, as has been alleged and not gainsaid, had the effect of putting him forward as co- owner when in fact and in law he was not.
[22] It is not necessary for me to venture into other requirements of res judicata and functus officio.
[23] In view of the conclusion that I have come to, the issue of debatement must stand over for a little longer, while the parties sought to be joined are served with what needs to be served upon them.
[24] The long and chequered history of the estate, as well as matters that this court can take judicial notice of, evokes concerns regarding the safety of the proceeds of the sale of ERF No.235, Villiers Street, Manzini. At the hearing of this matter I raised this issue, mero motu. I am aware that an application for the funds to be paid over by the conveyancer was declined, but my views on this aspect are otherwise. I have in mind the reality that in the event that the funds are no longer there or have been depleted the future debatement would to an extent be academic. It would be useful if the parties concerned in the debatement would apprise me on this aspect prior to debatement.
[25] In the totality of the circumstances of the matter the application succeeds, and I make orders in the following terms:-
25.1 The Second Respondent, Mohammed Ismail Tilly, is excluded from benefiting from the proceeds of the sale of immovable property described as ERF No. 235, Villiers Street Manzini.
25.2 Shameera Fiona Tilly and Estate Late Mohammed Essop Ismail Tilly are hereby joined as parties in the pending debatement proceedings in case No. 276/2008.
25.3 All documents filed of record in respect of the debatement proceedings under case No. 276/2008 are to be served upon Shameera Fiona Tilly and Estate Late Mohammed Essop Ismail Tilly.
25.4 Costs of suit to be paid by the Second Respondent herein.
25.5 The main matter under case No. 276/2008 may be set down by either party upon notice to the other parties, including those who have been joined by leave of this court.
For the Applicant: Mr. Tengbe
For the Second Respondent: M.T. Ndlovu
[1] Pages 19-23, Book of Pleadings dated 29 March 201.
[2] See pages 19, 22 and 23 of the Book dated 29 March 2017.
[3] Para 10, page 9 of the Book dated 29 March 2017.
[4] Para 10.1, page 9 of the Book dated 29 March 2017.
[5] Page 63 of Book dated 10 February 2017.
[6] Para 6, page 11 of Book dated 5th April 2017.
[7] See Jacobs Van Schalkwyk v Dumisa Nkomonye and Three Others, Civil Case No. 1349/ 2015, per Maphalala P.J. as he then was.
[8] Page 7 of Book dated 29 March 2017.
[9] Page 41 of Book dated 29 March 2017.
[10] Appeal Case No. 12/2016.
