Otilia Mashoko v Albertina Hazvineyi Mashoko

### Preamble
Judgment No. SC 114/22
1
Civil Appeal No. SC 314/20
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REPORTABLE	(99)

OTILIA     MASHOKO     (in her capacity as the executrix dative in the estate of the late Albert Machengete Mashoko and Trustee of the Mashoko – Kusisa Family Trust)     (2)     THE     MASHOKO-KUSISA     FAMILY     TRUST     (3)     TAFADZWA     MASHOKO     (4)     MUNASHE     MASHOKO     (5)     TATENDA     MASHOKO     (6)     MEDELENE     MASHOKO     (a minor duly represented by her guardian Otilia Mashoko)

v

ALBERTINA     HAZVINEYI     MASHOKO     (duly assisted by her guardian Barbara Maonde-Chikosi)     (2)     ALBERT     TARIRO     MASHOKO     (3)     SEEF     PROPERTIES     (in their capacity as trustee of the Mashoko-Kusisa Family Trust)

SUPREME COURT OF ZIMBABWE

MAKONI JA, MATHONSI JA & CHATUKUTA JA

HARARE: 8 SEPTEMBER 2022 & 20 OCTOBER 2022

D. Ochieng, for the appellants

J. Majatame, for the first and second respondents

MATHONSI JA:		This is an appeal against the whole judgment of the High Court handed down on 2 July 2020 inter alia nullifying the Mashoko-Kusisa Family Trust, directing the first appellant and the third respondents to render a full account of the business operations and functions of that trust from 8 May 2006 and dismissing the claim for the eviction of the first respondent and those claiming occupation through her from the trust property known as No 1 Franco Close, Borrowdale Harare (the property).

THE FACTS

The late Albert Machengete Mashoko (the deceased) was a polygamist who was married to Otilia Kusisa (the first wife) with whom he had four children, the third, fourth, fifth and sixth appellants herein.  His first family had their family home in Belvedere, Harare.

The deceased was also married to Barbara Maonde Chikosi (the second wife) with whom he fathered two children who are the first and second respondents herein.  With Barbara Maonde Chikosi the deceased purchased the property in Borrowdale Harare for the management of which he settled a trust known as Mashoko- Chikosi Famiy Trust in 2001.  Barbara Maonde Chikosi became a trustee of that trust along with the deceased.  The only two beneficiaries of that trust were Albertina Hazvineyi Mashoko and Albert Tariro Mashoko, the children of Barbara Maonde Chikosi and the deceased.  The property is registered in the name of the Mashoko/Chikosi Family Trust under Deed of Transfer No 2611/2002.

In due course the deceased and Barbara’s marriage hit turbulent weather resulting in the deceased instituting proceedings in the High Court in HC 3265/04 for the dissolution of the Mashoko-Chikosi Family Trust.  Alternatively, the deceased sought the removal of Barbara Maonde Chikosi as a trustee and the appointment of an independent estate agent in her place.  Karwi J granted the alternative claim on 29 November 2005.

In light of its centrality in the determination of this appeal, I reproduce the order that was granted hereunder:

“It is ordered that:

The Notarial Deed of Trust executed on 13 February 2001 establishing the first respondent be and is hereby amended by the deletion of the second respondent’s name as a trustee wherever it appears.

An independent Estate Agent of repute operating in Harare be appointed as a trustee by consent of the first and second respondents within 7 days of this order and failure of which the Master of the High Court to appoint an Estate Agent within 7 days of the first and second respondents’ deadlock on such appointment.

Each party to pay its own costs.”

It was in pursuance of the foregoing court order that the third respondent was appointed and became the second trustee along with the deceased.  Purporting to be acting in compliance with the court order of 29 November 2005 on 8 May 2006 the deceased and a representative of the third respondent appeared before a notary public to execute an amendment to the original notarial deed of donation and trust.

The effect of the said amendment was to change the name of the trust to Mashoko-Kusisa Family Trust and to add four more beneficiaries of the trust to make a total of six beneficiaries.  The four who were added were the deceased’s four children sired with his first wife.  Again because of its importance in the resolution of this appeal the relevant provisions of the said amendment are reproduced hereunder:

“NOTARIAL DEED OF DONATION AND TRUST

KNOW ALL MEN TO WHOM IT MAY CONCERN

THAT on the 8th day of May in the year of our Lord Two Thousand and Six (2006), before me Thembinkosi Magwaliba, a Legal Practitioner of Harare, Notary Public by lawful authority duly sworn and admitted and in the presence of the undersigned witnesses, personally came and appeared;

ALBERT MACHENGETE MASHOKO (born on 14 October 1952) (herein after called the Settler.

Together with

A representative nominated by Seef Estate Agents, their successors in title in terms of an order of High Court of Zimbabwe dated 29 November 2005 in case No. HC 3265/04

(Both of the aforesaid including the Settlor being hereinafter referred to as the trustees’)

And the said Appearers declared that:

WHEREAS

The High Court of Zimbabwe sitting at Harare in case No. HC 3265/04, on the 29th

of November 2005 ordered that the Deed of Trust establishing a Trust known as The Mashoko-Chikosi Family Trust be amended by the removal of the name of Barbara Maonde Chikosi as a trustee and the deletion of her name in the said Deed of Trust, wherever it appeared;

And Whereas the Settlor is desirous by the reason of the natural, love and affection,

he has for the beneficiaries referred to in paragraph 2.1 of making some provision for them in the matter set out herein, and in order to comply with the order of the High Court aforesaid;

And Whereas the Settlor has resolved to amend the Deed of Trust established on

the 13th of February 2001 in the form set out herein to be administered by the Trustees in accordance with the Trust Deed and to provide an initial sum for the Trust Fund referred to in this Trust Deed.

The Trustees at the request of the Settlor have agreed to serve as Trustees of the

Trust

NOW THEREFORE THESE PRESENTS WITNESSETH THAT:

ESTABLISHMENT

That the Settlor hereby establishes a Trust constituted for the purpose set out herein and subject to the terms and conditions set out herein.”

(The underlining is for emphasis)

The deceased died in 2007 leaving his two families at logger heads.  His first wife Otilia was appointed executrix dative of his estate.  His two off-springs from his second family, that is, Albertina Hazvineyi and Albert Tariro instituted two claims in HC 4119/13 for the nullification of the Mashoko-Kusisa Family Trust on the basis that it was unlawfully established and in HC 4120/13 for the provision of accounts of the trust and their debatement.

Not to be outdone, the first and second appellants brought a claim in HC 6759/14 against Albertina Hazvineyi, who had taken occupation of the property along with her mother, for eviction and ancillary relief.  The three cases were consolidated for purposes of trial and dealt with as one.

The basis of the claim against the appellants in HC 4119/13 was that the court order by Karwi J did not provide for the change of name of the trust and the addition of four more beneficiaries.  The order sought was a declaration of nullity and that the purported amendment of the Mashoko- Chikosi Family Trust was ultra vires the court order granted in 2005.

The basis of the appellants’ claim in HC 6759/14 was that Albertina Hazvineyi had no lawful authority to occupy the property which she moved into without the approval of the Trustees of the Mashoko-Kusisa Family Trust.  In the consolidated action it was treated as a counter claim.

Following a trial in which the appellants elected not to lead any evidence but were content with opening and closing the defendants’ case without evidence, the court a quo found in favour of the respondents.  It set aside the Mashoko-Kusisa Family Trust declaring it a nullity on the basis that the deceased did not have power to amend the trust deed by changing its name and adding more beneficiaries.

The court a quo found that the amendments effected were ultra vires the court order of 2005.  In respect of HC 4120/13 it found that the trustees were obliged to render a full account of the business operations and functions of the Mashoko-Kusisa Family Trust which account would be subject to debatement. The counter claim was dismissed.

The appellants were aggrieved.  They noted the present appeal on the following six grounds:

“1.	The High Court erred in finding that the amendment of the name of the Mashoko-

Chikosi Family Trust was wrong and unlawfully done it having been done by the late Albert Machengete Mashoko and the third respondent in their capacity as trustees in the deed of trust executed by them on 8 May 2006 and not by Albert Machengete Mashoko alone.

The High Court further erred in placing the onus on the appellants who were defendants in case no HC 4119/13 and HC 4120/13 to prove the uncontested fact that the deed of trust executed on 8 May 2006 was executed by the trustees, which fact appeared from the deed of trust.

The High Court further erred in drawing adverse inferences from the fact that the appellants elected to open and close their case without leading evidence in circumstances where the case of the appellants had been fully established in the case of the first and second respondents.

Further, the High Court fundamentally erred in finding that the amendments to the deed of trust on the 8th of May 2006 were intended solely for compliance with the High Court order granted by Mr Justice Karwi in case number HC 3654/04 and were therefore ultra vires the said court order yet it was apparent that the trustees as they were entitled to do intended to change the name of the trust and to add beneficiaries to the trust.

Having accepted that the portion of the rentals due to the first and second respondents had been tendered together with a full statement of account, the High Court, further grossly erred in ordering that the first appellant should provide a statement of account for debatement even for periods when she was not a trustee.

The High Court further erred in dismissing the claim for the ejectment of the first and second respondents and all persons claiming occupation through them from the property known as number 1 Franco Close, Borrowdale, Harare and the payment of holding over damages when it was evident that they had taken occupation of the property without the consent of the trustees and to the detriment of the interests of all the other beneficiaries.”

ISSUES

There may be multiple grounds listed but they yield essentially three issues for determination in this appeal.  They are:

Whether the Mashoko-Kusisa Family Trust was properly constituted.

Whether the first appellant is obliged to render a statement of account on the affairs of the Trust for periods when she was not a trustee.

Whether the first and second respondents should be ejected from the property.

SUBMISSIONS ON APPEAL

Mr Ochieng, who appeared for the appellants anchored the appeal on what he called two cardinal considerations which should lead to its success.  These are firstly, the basis upon which the first and second respondents sought relief before the court a quo.  Secondly, counsel submitted that the incidence of onus of proof which rested on the first and second respondents shows that they did not lead any evidence to sustain their claim.  As such the onus was not discharged.

On the question of the relief sought, it was submitted on behalf of the appellants that the first and second respondents pleaded that the deceased and the trustees constituted a new trust called Mashoko-Kusisa Family Trust when all that they did was to amend the original Mashoko-Chikosi Family Trust Deed.  They did not, so it was argued, create a new trust.  According to counsel, the court a quo’s finding that there was only one trust and not two, has not been challenged on appeal.  It remains extant.  In counsel’s view there was nothing preventing the Settlor and the trustees from going beyond the court order and exercising their powers the way they did.

Regarding the question of onus, it was argued on behalf of the appellants that the first and second respondents bore the onus to prove, on a balance of probabilities, that the Deed was invalid.  They failed to prove the invalidity and as such their claims should have been dismissed.

On the claim for eviction from the property, Mr Ochieng submitted the first respondent admitted under cross examination during the trial that they occupied the property without the consent of the trustees.  For that reason, eviction should have been granted.

Per contra, Mr Majatame for the first and second respondents submitted that the judgment issued by Karwi J was very clear as to what ought to have been done.  It was to amend the original deed by removing the name of Barbara Maonde Chikosi as a trustee whenever it appeared in the notarial deed.  The Settlor and trustees went beyond the terms of the court order by creating a completely new trust deed.

Mr Majatame drew attention to portions of the appellants’ pleadings where the establishment of a new trust as opposed to a mere amendment of the original is admitted.  In para 9 of the plea in HC 4119/13 the following averments are made:

“9. 	Ad Paragraph 9

The defendants plead as follows in relation to this paragraph:-

9.1	It is admitted that the late Albert Machengete Mashoko as the settlor and founder

of the trust established a new trust, a successor in title to the Mashoko-Chikosi Family Trust, named the Mashoko-Kusisa Family Trust on the 8th of May 2006.

9.2	The establishment of a new trust was the exclusive prerogative of the founder and

Settlor.  The first defendant’s legal practitioner, as professional attorney, had no role to play save to draft the new deed of trust as instructed by the Settlor.

9.3	The High Court judgment in case No HC 3265/04 did not limit the powers of the Settlor to dissolve and substitute it with a new trust, or to appoint new beneficiaries or to change the name of the trust.  The creation of the Mashoko-Kusisa Family Trust was therefore a lawful act of the founder, Settlor and donor to the trust which he was entitled to take.

9.4	It is admitted that four new beneficiaries were appointed to the new trust in addition to the two children who had been the beneficiaries in the Mashoko-Chikosi Family Trust.  The additional beneficiaries were all the children or dependents of the late Albert Machengete Mashoko.”(The underlining is for emphasis)

Similar averments were made in HC 4120/13.  In para 11 of the appellants’ plea in that matter the following averments appear:

“11. 	Ad Paragraph 10

11.1	It is admitted that the late Albert Machengete Mashoko established the Mashoko-

Kusisa Family Trust as he was entitled to do in terms of the law as the founder and Settlor.

11.2	That the said Albert Machengete Mashoko instructed his legal practitioners to

create the Mashoko-Kusisa Family Trust as he was entitled to do by the law.  His legal practitioners were only involved to the extent of registering the said deed of trust as they had no other interest in the matter.” (The underlining is for emphasis)

Buoyed by the foregoing averments which admitted the formation of a new trust Mr Majatame for the first and second respondents strongly submitted that it is not true that they failed to prove the establishment of a new trust as submitted by Mr Ochieng.  According to counsel, there was no need to lead evidence on that aspect because the establishment of a new trust was admitted in pleadings.

It was further argued on behalf of the first and second respondents that the conduct of the deceased was not in compliance with the court order issued by Karwi J.  It was also not in accordance with the terms of the original Mashoko-Chikosi Family Trust because the deceased set about creating a new trust ignoring the provisions of the original one.

ANALYSIS

Whether the Mashoko-Kusisa Family Trust was properly constituted

It is settled in this jurisdiction that a party is not allowed to approbate and reprobate a step in the proceedings.  In other words, our law does not allow a party to have his or her cake and eat it at the same time.  The basis of the doctrine is the principle that no person can be allowed to take up two positions which are inconsistent with one another, or to blow both hot and cold.  See Hlatswayo v Mare & Deas 1912 AD 242 at 259.

In our jurisdiction the position was expressed emphatically in S v Marutsi 1990 (2) ZLR 370 at 374 B that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings.  He can only do one or the other, not both.”

The principle has been restated again and again by our courts since then.  See Alliance Insurance v Imperial Plastics (Pvt) Ltd & Anor SC 30/17; Zimbabwe Revenue Authority v Stanbic Bank Zimbabwe Limited 2019 (1) ZLR 394 (S); Mining Commissioner-Masvingo N.O & Ors v Finer Diamond (Pvt) Ltd SC 38/22.

In this case the appellants offended against the taking of inconsistent positions not once but twice.  Firstly, the preamble to the Mashoko-Kusisa Family Trust expressly stated that the new trust deed was being executed in terms of the High Court order of 29 November 2005.  At the same time, the Settlor purported to go beyond the court order to settle a new trust deed and to appoint more beneficiaries.  As shall be shown shortly, this was done outside the provisions of the court order.

Secondly, in their pleas to the claims made by the first and second respondents the appellants categorically averred that the deceased dissolved the initial trust and created a new one.  This position was sharply recanted at the trial and throughout the proceedings up to the appeal.  The appellants sought to propagate the notion that the initial deed was not dissolved but that what the deceased executed was only an amendment to the initial trust deed.  The appellants cannot be allowed to do that.

The appellants pleaded their case in unequivocal terms as can be seen upon refence to excerpts of their pleas quoted above.  They admitted that a new trust was created and boldly declared that the deceased was entitled to do as he pleased.  It is a pleading which is not only an admission but amounts to what may be termed a confessionary pleading.

The law on admissions in pleadings and indeed in evidence, is also settled.  A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party would have made.  By equal measure, a party is not permitted to attempt to disprove admissions made.  See s 36 of the Civil Evidence Act [Chapter 8:01].

By virtue of the same provision it is unnecessary for any party in civil proceedings to lead evidence to disprove any fact admitted on the record of proceedings.  In terms of s 36(4) it shall not be competent for any party in civil proceedings to disprove any fact admitted by him or her on the record of proceedings.  See Wamambo v Municipality of Chegutu 2012(1) ZLR 452 (H) at 458 D-F; Adler v Elliot 1988(2) ZLR 283 (S) at 288 C; Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997(1) ZLR 134 (S) at 143 (H) – 144 B.  Not that the appellants tried to disprove the admission, they not having led any evidence.  To the extent that the admissions made by the appellants on the creation of a new trust amount to a confessionary pleading, the formation of a new trust is taken for granted.  It was not necessary for the first and second respondents to prove such fact.

The question which arises therefore is whether what was done by the deceased in creating a new trust complied with both the judgment of Karwi J and the terms of the original trust deed.  I reproduced the order of the court earlier in this judgment.  It only directed two things to be done.  First it directed the amendment of the Mashoko-Chikosi Family Trust executed on 13 February 2001 “by the deletion of” Barbara’s name “as a trustee”.

The order of the court did not direct the renaming of the trust.  Neither did it direct the addition of four more beneficiaries to the trust.  Accordingly, when the deceased changed the name of the trust and added his four children from his first marriage as beneficiaries he was not acting in terms of the court order issued on 29 November 2005.  Those powers had to be derived from elsewhere.

Unfortunately the preamble to the Mashoko-Kusisa Family Trust executed on 8 May 2006 purported to be undertaking the exercise in terms of the court order in question.  The only action undertaken in terms of the court order was the removal of the name of Barbara Maonde Chikosi as a trustee.

The court a quo cannot be faulted for finding that the removal of the name “Chikosi” from the trust name was not done in terms of the court order because it did not direct its removal from the name of the trust but from being “a trustee.”

Secondly, the court order directed the appointment, with the consent of Barbara Maonde Chikosi, of an independent Estate Agent operating in Harare as a trustee of the Mashoko-Chikosi Family Trust.  It is common cause that she consented to the appointment of the third respondent herein as a trustee.

It remains for me to consider whether the dissolution of the original trust and the creation of a new one known as Mashoko-Kusisa Family Trust was done in accordance with the terms of the original trust deed.  The court a quo found that the removal of Barbara did not empower the deceased, as a settlor, to dissolve the trust, change its name or add more beneficiaries to the trust.  It found that he could only effect amendments or variations as a trustee together with the co-trustee where a unanimous decision was taken by the trustees to do so in terms of clause 16 of the trust deed as read with clause 12.5.

More importantly, the court a quo found that after executing the initial notarial deed of trust, the deceased no longer had power to alter or change anything in it or terminate the trust.  Such powers were thereafter vested in the trustees as the power to change anything as a settlor ended before registration of the deed.

It is true that in terms of clause 9.17 of the initial trust deed the trustees have the power to alter or change the name of the trust at any time.  However in terms of clause 12.5 where there are two trustees in office “all decisions which they make shall be unanimous in order to (be) valid.”  In terms of clause 12.6 “a resolution in writing, signed by all trustees” shall be valid and affectional as if passed at a trustees’ meeting.

The first and second respondents’ case is that none of this was complied with because the deceased acted alone.  The appellants chose not to lead evidence in rebuttal which is why the court a quo made adverse findings arising out of their failure to lead any evidence.

While it is true that the trust could be terminated, as pleaded by the appellants, that could only be done in accordance with clause 18.  It provides:

“TERMINATION OF TRUST

THAT the Trust shall continue on an indefinite basis terminable only by the unanimous decision of the Trustees after consultation with the beneficiaries.  In the event that the Trust is terminated by the Trustees at any time then the capital together with all accrued income standing to the credit of the Trust Fund at the date of such termination shall be distributed by the Trustees to the beneficiaries is such manner as the Trustees in their entire and absolute unfettered discretion shall consider appropriate after consultation with the beneficiaries.”(The underlining is for emphasis)

If the deceased desired to create a new trust, he was required to terminate the initial one.  Termination could only be achieved after a unanimous decision of the trustees and in consultation with the beneficiaries.  The evidence led on behalf of the first and second respondents is that no such consultation with them occurred.  No lawful termination occurred.  Whatever it is that was done was invalid as correctly found by the court a quo.

Whether the first appellant is obliged to render a statement of account on the affairs of the Trust for periods when she was not a trustee.

As already stated, the Mashoko-Kusisa Family Trust Deed was executed on 8 May 2006 by Protocol Number 005/06.  Its clause 8.3 provided that in the event of the death of the Settlor, the principal trustee shall be the executor of his estate or the executor dative in the event of the Settlor dying intestate.  It follows that from the time the trust was created the deceased and the third respondent (or its successor) ran the affairs of the trust.

The deceased died in 2007 after which the first appellant, as his surviving spouse, was appointed the executor dative of his estate.  By virtue of that office, the first appellant became the principal trustee of the Mashoko-Kusisa Family Trust.  Her letters of administration are not in the record, neither is there evidence showing the exact date she assumed office as a trustee.

The third respondent was removed from the position of trustee and other estate agents took over.  Again the evidence of the dates of the switch is not apparent from the record.  What is clear though is that of the parties that were before the court a quo, only the first appellant could be made to render the accounts.  She could only do so from the time that she took over the running of the affairs of the trust.

The court a quo directed the first appellant to render accounts from 8 May 2006, when she was not involved in the affairs of the trust.  A correction of the judgment a quo is therefore necessary.

Whether the first and second respondents should be ejected from the property.

The resolution of the first issue by a finding that the creation of the Mashoko-Kusisa Family Trust was a nullity effectively resolves this issue.  To the extent that the dissolution of the initial trust and the establishment of a new one were invalid, it means that the appellants did not acquire any right to evict the first and second respondents from the property.  After all, they are the only two beneficiaries in terms of the existing trust deed.

DISPOSITION

The deceased did not lawfully terminate the Mashoko-Chikosi Family Trust, neither did he and the third respondent effect any valid amendments to the trust deed.  Whatever was done in the purported execution of a deed of trust on 8 May 2006 was invalid by reason that it was not in compliance with the court order of 29 November 2005 and also did not comply with the terms of the trust deed providing for amendment or termination of the trust.

In respect of the claim for provision of accounts of the trust in HC 4120/13 only the first appellant could render such accounts but only for the period when she was in charge of the affairs of the trust.

On the question of costs, the appellants have partially succeeded.  In that regard, a case has been made for each party to bear its own costs.

In the result, it be and is hereby ordered as follows:

The appeal succeeds in part with each party to bear its own costs.

Grounds of appeal numbers 1, 2, 3, 4, and 6 are dismissed.

Ground of appeal number 5 is upheld.

The judgment of the court a quo is amended in para 1 under HC 4120/13 to read as follows:

“The first defendant shall render a full account of the business operations and functions of the Mashoko-Kusisa Family Trust for the period starting from when she assumed the position of trustee in 2007.”

MAKONI JA				I agree

CHATUKUTA JA			I agree

Magwaliba & Kwirira, appellant’s legal practitioners.

Marufu-Misi Law Chambers, for the 1st and 2nd respondents.