Editorial note: Certain personal information in this judgment has been anonymized due to a GDPR request.
IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 342 OF 2016
THE ADMINISTRATOR OF THE ESTATE
OF ISAAC KHANJE ........................................................ PLAINTIFF
TED SPARKS JUMBE .................................................. DEFENDANT
CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA
Mr. Chipembere, Counsel for the Plaintiff
Mr. Kamkwasi, for the Defendant
Ms. Annie Mpasu, Court Clerk
Kenyatta Nyirenda, J.
This is this Court's ruling on a preliminary objection raised by the Defendant.
A brief outline of the background to this matter is as follows. On 2nct September 2016, the Plaintiff filed with the Court an expedited originating summons in which she raises a number of questions for the consideration of the Court, namely:
"1. Whether Mr. S.I.K. appointed the Defendant as his attorney to administer the Estate of Isaac Kanje;
2. Whether an administrator to the Estate can appoint an attorney to administer on his behalf when the attorney does not have letters of administration himself;
3. Whether in the circumstances there should be an attorney to administer the Estate when there is already an administrator to the Estate equally appointed and willing to act in that capacity;
4. Whether the Defendant should bear the costs occasioned by these proceedings. "
The Plaintiff seeks various reliefs, including a declaration that the Defendant is acting illegally as his appointment is illegal in that "S.K. appointed the Defendant, Mr. Ted Sparks Jumbe, as his attorney to administer the Estate": see paragraph 3 of the Plaintiff s affidavit in support.
Almost contemporaneously with the issuance of the originating summons, the Plaintiff filed with the Court an ex-parte application for an interlocutory injunction "restraining the Defendant from acting as an attorney in administering the estate of Isaac Kanje as his appointment is illegal" [hereinafter referred to as the "injunction"]. The injunction was granted subject to an inter-parte hearing on 15th September 2016.
On 15th September 2016, the Defendant filed with the Court an affidavit in opposition to the injunction and originating summons [hereinafter referred to as the "Defendant's affidavit"]. The following part of the Defendant's affidavit is material:
"3. THAT S.I.K. is my [redacted] and Isaac Kanje (deceased) was my [redacted].
4. THAT S.I.K. is based in the [redacted].
5. THAT when S.I.K. came to Malawi in 2013 to visit his father 's grave, he learnt that his step mother, W.K. and her son from a previous relationship (before she got married to the deceased) had appointed themselves administratrix and administrator respectively without any consultation with him.
6. THAT S.I.K. also learnt that the purported administrators had distributed the estate unjustly and illegally which amounted to appropriation of the estate.
7. THAT S.I.K. also discovered that Francis Kanje was not supposed to be one of the administrators or beneficiaries of the estate in the first place.
8. THAT S.I.K. asked me to engage a lawyer (for him) to remove Francis Kanje as administrator and gave me power of attorney. I attach and exhibit hereto a copy of the power of attorney and mark it "TSJ 1".
9.THAT it is not true as alleged by the Plaintiff that the power of attorney was given to me after judgment in probate cause number 466 of 2013.
10. THAT it is also not true as alleged by the Plaintiff that the power of attorney empowers me to be co-administrator in place of S.I.K..
EXTENT OF MY INVOLVEMENT
11. THAT after the judgment in probate cause number 466 of 2013 I was asked by Mis Joe and Max Chambers to deliver two (2) letters to Mis Ritz Attorney at Law. I attach and exhibit hereto copies of the two letters and mark them "TSJ 2" and "TSJ 3" respectively.
12. THAT I was also asked by M/Joe and Max Chambers to deliver letters to tenants occupying houses forming part of the estate in accordance with the judgment . I attach and exhibit hereto copies of the said letters and mark them "TSJ 4", "TSJ 5" and "TSJ 6" respectively.
13. THAT I repeat paragraph 12 hereof and state that I was asked to deliver the said letters (which any member of staff at Joe and Max Chambers could have done) because apart from W. K., I am the only one who knows the physical addresses of the properties concerned.
14. THAT the letters I delivered have clear instruction emanating from the judgment of the court in probate cause number 466 of 2013 and I did not in any way demand rentals to be paid to me personally as I am aware that I do not have any such power or mandate. "
On 20th September 2016, the Plaintiff filed with the Court an affidavit in reply and paragraphs 11, 12, 13 and 14 thereof are relevant:
"11. I refer to paragraph 8 and 9 of the affidavit in opposition and state that I knew that the Defendant was an attorney of S.K. after the Defendant's lawyers had informed my lawyers that the Defendant is an attorney of the S.K. and that everything that had happened after the judgement was on the strength of hat power of attorney.
12. I repeat the foregoing paragraph and state that the Defendant has now changed tune because I raised a red flag. There is now produced and shown to me marked WKI a copy of the letter that my lawyers had written to the Defendant stopping him from acting as an attorney.
13. I refer to paragraphs 11, 12 and 13 of the affidavit in opposition and state that it is false to say that he was just delivering the said letters against the background that his lawyers had already informed my lawyers that the Defendant has a power of attorney and I believe in delivering the said letters he was acting on the strength of the said power of attorney
14. I repeat the foregoing paragraph and state that if indeed he knew the directions to the said places it would have been enough for him to just guide the employees or agents of Messrs Joe and Max Chambers. "
The Notice of Objection is to the effect that the Defendant, having been appointed Attorney for S.I.K. on 18th November 2013, objects to Mis Ritz Attorneys at Law acting in this matter for and on behalf of the administrators of the estate of Isaac Kanje for want of instructions of one of the administrators, namely, S.I.K.. There are attached to the Notice two documents, namely, a copy of the Power of Attorney and a letter dated 22nct August 2016 from Mis Joe and Max Chambers to Mis Ritz Attorneys at Law.
The Power of Attorney is dated 18th November 2013 and the substantive part thereof is couched in the following terms:
"SPECIAL POWER OF ATTORNEY
This Power of Attorney is made on the 181h day of November 2013 by S.I.K. currently of [redacted] in the Republic of [redacted].
(a) I am the first born and biological son of the late Isaac Kanje and Mr. Ted Jumbe is a son of sister to the late Isaac Kanje.
(b) There is a case before the Principal Registry of the High Court, Probate Cause Number 466 of 2013 in which I have a substantial interest as a beneficiary to the deceased estate of late Isaac Kanje.
I hereby appoint my [redacted], TED SPARKS JUMBE of Post Office Box 1394, Blantyre my true and lawful attorney.
2.2 To represent me and protect my interest and to do all things I would necessary do in the case now before the High Court of Malawi Principal Registry.
2.3 In my name, to execute, acknowledge and deliver contracts and sign all appropriate to accomplish for the running of the case.
2.4 To appoint and remove on or more substitute attorneys to perform any or all of the above powers.
This Power of Attorney shall become effective 18th day of November 2013 and shall remain in effect until revoked by written notice to my attorney.
If any provision of this Power of Attorney shall be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect. "
The substantive part of the letter dated 22nd August 2016 provides as follows:
"On strict instruction of our client, S.I.K., we write advising you to stop acting for and on behalf of the estate.
Please stop doing any legal work in all or any of the following cases where you purportedly represent our client's interest as well;
(i) Probate cause number 466 of 2013
(ii) Civil cause number 286 of 2015
This decision has been made by our client because of your adverse (or perceived adverse) position to our client's interests in the above matters.
The newly appointed administrators will have to appoint new lawyers after consultation.
Our client is and will not be responsible for any liabilities arising from your appointment and effects thereof"
By this Court's judgment in Probate Cause No. 466 of 2013, the Plaintiff and S.I.K. were appointed as joint administrators of the estate. It is commonplace that persons appointed as joint administrators are jointly responsible for running the affairs of the estate. It is up to the administrators to decide how they will work together, and there are a range of options. For example, they can decide to always act jointly or to do some transactions separately and other transactions jointly.
In the present case, there is no evidence that the Plaintiff commenced this action with the blessings of S.I.K.. To the contrary, S.I.K. is wholly against M/s Ritz Attorneys doing any legal work in respect of the estate because he believes that they acted adversely to his interests in Probate Cause 466 of 2013 and Civil Cause 286 of 2015. Neither administrator herein can solely appoint legal practitioners to execute legal work in respect of the estate without first consulting and getting the agreement of the other administrator on the proposed appointment.
There is another reason why the present case cannot be maintained. It is clear from a perusal of the Special Power of Attorney that the same only empowered the Defendant to represent S.I.K. in Probate Cause 466 of 2013. I have read and read the said Special Power of Attorney and I have great difficulties how the same can be said to be to the effect that S.I.K. appointed the Defendant as his attorney to administer the estate. It is clear that the Plaintiff chose to act before ascertaining the facts. I was thus not surprised when Counsel Chipembere informed the Court that the action herein had been commenced before he had read the Special Power of Attorney. He only came to know of its contents after the Defendant raised the objection under consideration. Counsel Chipembere conceded that the present action would not have been commenced in light of the wording of the Special Power of Attorney.
All in all, it is my considered judgment that the Plaintiff can neither maintain this action nor appoint Mis Ritz Attorneys without the consent of her co-administrator of the estate. To this extent, the preliminary objection is sustained and the Plaintiff's action is struck out. In the result, the continuation of the injunction cannot be sustained. The injunction has, accordingly, to be discharged. Costs are for the Defendant. I so order.
Pronounced in Chambers this 10th day of October 2016 at Blantyre in the Republic of Malawi.