Chapeta v Chapeta and 2 Others (Miscellaneous Civil Application 3 of 2015) [2015] MWHC 520 (9 April 2015)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY MISCELLANEOUS CIVIL APPLICATION NO. 3 OF 2015 IN THE MATTER OF SECTIONS 17, 18, 20, 31, 43, 50 AND 55 OF THE DECEASED ESTATES (WILLS, INHERITANCE AND PROTECTION) ACT (ACT NO.14 OF 2011) AND IN THE MATTER OF THE INTESTATE ESTATE OF BILLY CHAPETA (DECEASED) BETWEEN THANDIWE CHAPETAA.............ccccccscscscccscccccescccccccccccsccsccsssssssessees APPLICANT AND DANIEL CHAPETA (in his personal capacity as Co-Administrator of the Estate of Billy Chapeta)......... 1ST RESPONDENT TENDAI CHAPETA ...........ccccccccscccccccccccccccccccccccccscccccscsesees 2ND RESPONDENT ELIAS CHAPETA.............cccccscccccccccccccccscccccccscccscscccscsceseees 3D RESPONDENT CORAM: HON. JUSTICE RE KAPINDU : Dr. Nkhata, Counsel for the Applicant : Mr. Salimu, Counsel for the Respondents : A. Nkhwazi, Official Interpreter RULING Kapindu, J 1. INTRODUCTION 1.1 This matter was commenced by way of Originating Summons filed on 12 February 2015 at the High Court of Malawi, Zomba District Registry. The Originating Summons has been brought pursuant to Sections 17, 18, 20, 31, 43, 50 and 55 of the Deceased Estates (Wills, Inheritance and Protection) Act (Act No. 14 of 2011). Among various determinations that the Applicant seeks, she invites this Court to determine “Whether upon a true construction of Sections 17 and 18 of the Deceased Estates (Wills, Inheritance and Protection) Act (Act No. 14 of 2011) of Laws of 1 1.2 1.3 1.4 1.5 1.6 1.7 Malawi the Respondents herein being brothers and a sister to late Billy Chapeta are entitled to any share of the said estate.” Indeed, all the other determinations sought by the Applicant under the Originating Summons are in relation to probate issues, as they relate to the conduct of the Respondent’s in connection with the estate of the late Billy Chapeta. On 6 March 2015, this Court, among other things, ordered that the Originating Summons process in the instant matter be stayed for a period of 30 calendar days to give the parties time within which to pursue an amicable resolution of the issues relating to the distribution of the estate herein. The Court further ordered that the Order of stay of such proceedings herein might be extended upon the Court being satisfied as to the grounds for such extension. The period of 30 calendar days as ordered by this Court elapsed on 5 April 2015. As at that date, and indeed as of today, no application for extension of the order of stay of proceedings has been made. The result is that the order of stay of proceedings that I made has now lapsed and that the originating summons procedure may continue on its course. The Applicant has moved this Court by way of a “Notice of Appointment to Hear Originating Summons’, to set down a date for the hearing of the Originating Summons that was filed with the Court on 12 February 2015 and issued by the Registrar on the same day. The “Notice of Appointment to Hear Originating Summons” was also filed on 12 February 2015 but a date of hearing was yet to be assigned as at 2 March 2015 when the parties appeared before this Court on the Applicant’s application for extension of an earlier order of injunction granted on 13 February 2015 and subsequently varied on 16 February 2015, and indeed by 6 March 2015 when this Court made an order staying the originating summons procedure for 30 calendar days. The 30 calendar day’s period having lapsed, the District Registrar is now under obligation to attend to and act on the “Notice of Appointment to Hear Originating Summons” as filed by the Applicant. As my Calendar is implicated in the process of attending to such a Notice, I have naturally been consulted by the Court’s Registry. It is on this note that I observe that the Originating Summons herein, considering its context and content as described under paragraph 1.1 above, is originating process in an action relating to probate which has been taken out in a District Registry (namely Zomba District Registry), 2 as envisaged under Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules. The Rule provides that “A writ or other originating process in an action relating to probate or to the registration of foreign judgments shall not be issued out of a District Registry.” 1.8 In the case of Duwa Mutharika & Others vs Francis Ndende t/a Franklin Francis & Company, MSCA Civil Appeals No. 63 of 2013 and 24 of 2014, the Malawi Supreme Court of Appeal, by a unanimous decision delivered on 27 January 2015 (thus prior to the filing of the Originating Summons herein), affirmed the strict applicability of Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules to all District Registries in Malawi. Indeed, the Registry that was in issue in those proceedings was this very same Registry in Zomba. The effect of the Supreme Court of Appeal’s decision herein is that in terms of this rule, all probate matters in Malawi (perhaps other than those relating to small estates) must be filed, dealt with, tried and determined at the High Court, Principal Registry in Blantyre. According to the Supreme Court of Appeal, the true import of Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is that only the High Court sitting at the Principal Registry can, for instance, issue Letters of Administration. Notwithstanding the presence of High Court Judges in various regions of the country aimed at easing general geographical access to the High Court system, where matters relating to probate are concerned, people from all corners of the country are required by Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules to converge at the Principal Registry of the High Court in Blantyre for the probate legal process. The Supreme Court of Appeal however did not test and did not comment in passing or otherwise, on the constitutionality of Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules. 1.9 In view of this decision, the hands of this Court are tied. This Court is bound by the decision of the Malawi Supreme Court of Appeal that is the highest Court of the land, and its interpretation of the effect of Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules as it currently stands must be upheld. Therefore, the Registrar at this Registry cannot proceed to attend to the Notice of Appointment to Hear Originating Summons. 1.10 This Court in fact agrees with the Malawi Supreme Court of Appeal that as Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules currently stands, originating process in matters relating to probate cannot be issued out of a District Registry such as the Zomba Registry. However, this Court holds the view that there are several 3 1.11 issues relating to the constitutionality of the Rule itself which have to be judicially determined. The following in my considered view are issues that have to be determined by the High Court: (a) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with the right of access to justice of all people in Malawi as guaranteed under Section 41(2) of the Constitution of the Republic of Malawi; (b) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with the right to an effective remedy by a court of law as guaranteed under Section 41(3) of the Constitution of the Republic of Malawi; (c) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with the right to development guaranteed under Section 30 of the Constitution of the Republic of Malawi; (d) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with the right to equality as guaranteed under Section 20 of the Constitution of the Republic of Malawi; (e) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with the High Court’s unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law as provided for under Section 108(1) of the Constitution of the Republic of Malawi; (f) Whether Rule 2(2) of the Courts (High Court) (Procedure in District Registries) Rules is consistent with Section 20 of the Deceased Estates (Wills, Inheritance and Protection) Act (Act No. 14 of 2011), when the said Section is interpreted and applied with due regard to the principles and provisions of the Constitution in terms of Section 10(2) of the Constitution of the Republic of Malawi; In view of the foregoing, I determine, pursuant to Rule 8(1) of the Courts (High Court)(Procedure on the Interpretation or Application of the Constitution) Rules, that a matter on the interpretation or application of the Constitution has arisen in these proceedings that require that I submit the same for the certification of the Honourable the Chief Justice under section 9 (3) of the Courts Act, and for the ensuing process thereunder, before this Court may proceed to take any further steps in this matter. 1.12 This Court will therefore proceed to refer the matter to the Honourable the Chief Justice for Certication under Section 3 of the Courts Act, in accordance with the applicable procedure and prescribed Forms. Made in Chambers this 9 Day of April 2015 RE Kapindu, PhD JUDGE