Judgment No. HB 88/13
Case No. HC 2226/08
ESTATE LATE DR JOHN J. MANOLAKAKIS
ESTATE LATE EVANGELIA PATRINOS
ROBERT MALCOM MACGILIVRAY BOWES
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 31 JUNE 2012 & 23 MAY 2013
Advocate H. Moyo assisted by N. Siphuma for the plaintiff
V. Majoko & Mrs N. Ncube for 1st and 5th defendants
Absolution from the instance
MAKONESE J: This matter has a somewhat long history dating back to July 2006. The late Dr John Joseph Manolakakis arrived in Zimbabwe in the early 1980s. He established a medical practice at 41A Fort Street, Bulawayo. At all material times he was ordinarily resident at a flat at Kenilworth Towers, Ascot, Bulawayo. Dr Manolakakis became unwell and subsequently died on 2nd of July 2006. He owned a number of assets including motor vehicles, certain immovable property and furniture and medical equipment at his surgery. He also held bank accounts in South Africa and Greece as well as in Zimbabwe. At the time of his demise the late Dr Manolakakis was living with Evangelia Patrinos who also died in Greece on the 9th March 2008.
The dispute in this matter relates to a “Will” dated 3rd June 2005 which was discovered after the death of the later Dr Manolakakis. The document was accepted as a valid Will by the Assistant Master of the High Court, Bulawayo on the 6th July 2006. The estate of the late Dr Manolakakis was registered under DRB 611/06. The late Evangelia Patrinos was issued with letters of administration on the 23rd August 2006 and appointed ExecutRIX Dative. The estate of the later Dr Manolakakis was then administered with the assistance of National Executor and Trust.
The plaintiff in this matter is Maria Manolakakis, the mother of the late Dr Manolakakis. She resides in Greece. She is over 100 years old and because of her advanced age she could not attend court and gave a Power of Attorney to Mrs Gamila Atwa Ibrahim Youssef El Zont to represent her in these proceedings. At the commencement of the trial an application was made by plaintiff’s counsel to proceed in the absence of Maria Manolakakis and in support of the application a medical report prepared in Greece on the 15th of May 2012 was tendered into evidence by consent of both the plaintiff and defendants’ counsel. The report reads as follows:
“Mistress Maria Manolakakis 103 years old suffer from chronic heart failure. Also, 15 years ago was implanted to her stable pacemaker. Because of these critical situation, any travel is very dangerous to her. (sic)
DER MED GEORGIOS DERMITZAKIS
Reg No. 047594”
I granted the application to proceed in the absence of the plaintiff in the interests of justice and bearing in mind that at the age of 103 years it would have been difficult to bring the plaintiff to court.
The plaintiff’s claims in essence seek an order declaring the Will dated 3rd June 2005 purported to have been executed by Dr Manolakakis to be null and void. Further the plaintiff seeks an order declaring that the late Dr Manolakakis died intestate. The plaintiff additionally seeks an order declaring the plaintiff to be the sole heir to the estate of the late Dr Manolakakis.
The plaintiff led evidence from three witnesses and then closed her case. The first witness Leonard Tendai Nhari is the holder of a Bachelor of Science degree in Zoology and a Master of Science degree in Biochemistry. He was previously employed by the Government of Zimbabwe at the Forensic Laboratory between 1980 and 1999. His duties in Government involved forensic investigations. He also dealt, whilst in that position with questioned documents. Mr Nhari stated that he now does private consultancy and in the main his work involves examination of questioned documents. He examines documents to establish the authenticity or otherwise of disputed documents. In the instant case he was requested to examine the “Will” of the late Dr Manolakakis and provide an opinion as to whether it could have been authored by the late Dr Manolakakis. Mr Nhari said he compared the handwriting on the disputed will or questioned document and other specimen handwritten notes by the late Dr Manolakakis. As a result of the examination he came to the conclusion that the design and construction of the handwriting on the disputed Will was not similar to the “standard” documents being the handwritten notes by the late Dr Manolakakis. Mr Nhari opined that there was no physical evidence that the late Dr Manolakakis could have authored the disputed Will. The full written report of Mr Nhari was tendered into evidence by consent and reads as follows:
On 5 August 09 the following documents were received from Sansole & Senda Legal Practitioners
The last Will & Testament of J.J. Manolakakis dated 3/6/05
Two letters dated 24 October & 16 November 2005 respectively
A copy of note on complimentary slip dated 21 February 2006
I have examined and compared the handwriting & signatures on the above named documents and observed the following,
1. I have found the design and construction of the signature on the questioned document (i.e. The last Will & Testament of J.J. Manolakakis dated 3/6/05) not to be similar and therefore not consistent with the standard signatures of J. J. Manolakakis. The differences between the question and standard signatures cannot be attributable to natural variation, which is a common feature of an individual’s handwriting. The apparent differences between the standard signatures of J. J. Manolakakis are attributable to natural variation. See comparison charts attached.
2. Similarly I have found the design and construction of handwriting on the question document (i.e. The last Will & Testament of J. J. Manolakakis dated 3/6/05) not to be similar and therefore not consistent with the standard handwriting of J. J. Manolakakis. See comparison chart attached.
3. I have therefore found no physical evidence (in the design and construction) to indicate that J. J. Manolakakis could have authored the questioned document (i.e. The last Will & Testament dated 3/6/05)
L.T. NHARI (Forensic Scientist – Consultant)
For SCREENLAB (PVT) LTD.”
The plaintiff then led evidence for Dr Elmaadway a close friend of the late Dr Manolakakis. His evidence was essentially that he had known Dr Manolakakis for more than 20 years and they were very close family friends. He was present when the disputed Will was discovered in a drawer by the late Evangelia Patrinos. The witness said he was surprised to learn that Dr Manolakakis had left a Will and he was generally suspicious about the circumstances the Will was found in the drawer. Dr El Maadway further testified he found it strange that the late Dr Manolakakis could have written a Will in South Africa, at Milpark Hospital, at a time he was unwell. The Will was opened by the late Evangelia Patrinos in his wife’s presence and another family friend.
The last witness to be called to testify on behalf of the plaintiff was the wife of Dr El Maadway, one Gamila Atwa Ibrahim Youssef. She and her husband were close friends with the late Dr Manolakakis. She was very close to Evangelia Patrinos. Her evidence was substantially similar to that of her husband. She said that she laughed when the late Evangelia Patrinos produced the document now referred to as the disputed Will. She also gave evidence to the effect that she did not believe that the Will was written by Dr Manolakakis. She fairly conceded, in my view, that, she could not state that Evangelia Patrinos had written and signed the Will. I found the last two witnesses to have presented simple and straight forward evidence.
The plaintiff closed her case and Mr Majoko launched an application for absolution from the instance premised on two main grounds, namely:
(a) The plaintiff’s declaration in paragraphs 13.3 and 13.4 makes specific averrements that the disputed Will was written and signed by Evangelia Patrinos. The first part of attack is that since no evidence has been placed before the court that Evangelia Patrinos authored the Will, then the defendants should not even open their case and absolution from the instance ought to be granted.
(b) The disputed Will complies with the provisions of the Wills Act (Chapter 6:06). The defendant’s counsel argues that since no one challenged the accepted Will in terms of section 6 (6) of the Wills Act within the stipulated period the Will should be accepted as the Last Will and Testament of the Late Dr Manolakakis. Section 6(6) of the Wills Act provides as follows:
“Any person who is aggrieved by a decision of the Master may appeal to an appropriate court within 30 days of being notified of the decision of the Master.”
The law on absolution from the instance is now well transversed in this jurisdiction. The law is fairly clear and settled. The test to be applied in deciding whether to grant absolution from the instance is whether at the close of the plaintiff’s case sufficient evidence has been led to establish a prima facie case upon which a reasonable court exercising its mind to the evidence led could reasonably find for the plaintiff.
The principle was reiterated in the case of United Air Carrieirs (Pvt) Ltd vs Jarman 1994 (2) ZLR 341 in these terms:-
“A plaintiff will successfully withstand such an application if at the close of his case, there is evidence upon which a court, directing its mind reasonably so such evidence, could or might (not should or ought to) find for him.”
In the case of Walker v Industrial Equity Ltd 1995 (1) ZLR 87, the principles in the case of United Carriers (supra) were accepted and applied.
In the instant case, the court must first determine whether the failure by the plaintiff to place before the court evidence showing that the disputed Will was authored by Evangelia Patrinos is fatal to the plaintiff’s case to the extent that absolution from the instance must be granted at the close of the plaintiff’s case. I am of the considered view that the plaintiff’s claims are premised on the fact that Dr Manolakakis did not author the disputed Will. As a consequence of that the court is being asked to declare that he died intestate. The facts placed before the court at the close of the plaintiff’s case certainly cast a lot of doubt about the validity of the disputed Will. I am alive to the fact that the court may never know who actually authored the Will but the evidence before the court establishes a prima facie case.
The court must secondly determine whether the provisions of section 6 (6) of the Wills Act referred to above precludes the plaintiff from mounting an application challenging the validity of the Will. The provisions are certainly not peremptory and there is no provision that a litigant who seeks a declaration that a Will is invalid ought to have first complied with the provisions of section 6 (6) of the Wills Act. I am satisfied that the plaintiff properly approached the court and in any event there is no reason why the defendants did not except to the plaintiff’s claims if it was their contention that the claims were not properly before the court.
I am therefore satisfied that sufficient evidence has been led at the conclusion of the plaintiff’s case upon which a reasonable court acting reasonably and exercising its mind on the evidence led, may find for the plaintiff.
In the result, I make the following order.
1. The application for absolution from the instance is hereby dismissed.
Sansole & Senda, plaintiff’s legal practitioners
Majoko & Majoko 1st and 5th defendant’s legal practitioners