In the Estate of Ngwalesa (Deceased) Application for Grant of Letters of Adminstration (Civil Cause 846 of 1990) [1991] MWHC 18 (15 March 1991)

Vint a \S it THE HIGH COURT oF MALAWI PRINCIPAL REGISTRY oceania AL CIVIL CAUSE NO.845 OF 1990 IN THE ESTATE OF Dyson pERnsT HCALAWESA (DECZASED) APPLICATION FOR GRANT OF LETTERS Ge ADMINTSPRATION CORAM: TAMBALA, J. Kombezi of Counsel for the Agvlicant Msiska of Counsel for the Resvoncent Rnolowa, Court Clerk RULING On 31st July, 1990 itr, Dyson Nealewesa ciec intestate at Mangochi District Hospital, He is survived by two widows hamely Mrs. Lucy Ngalawesa, 1st widow and Mrs, Mergaret Neealawesa, 2nd widow. The lst widow hac eight children with the cececseci while the seconé widow had three children, The eleven chiléren survived the deceaseé. The other heirs of the deceased include Mr. Weston Xachamba, step~brother of the deceased, and a sister of the dsceasecd, The estimated &°088 value of the deceased's estate at the time of his death was K291,000.00, This incluces casa in the bank amounting to 80,000.00. The Ceceased was running an apparently successful fish ‘ business before he died. At one stage in the course of funning the ZA business he acquired a loan of K70,000.00 from Incefund; the money was invested in the business, There is also an outstanding loan of K6000.00 from Ministry of Agriculture anc Natural Resources. The loan was also incurred in connection with the Same fish business. On 13th September, 1990 ile, Weston Kachamba, ceceased's step— brother, and Mrs, Margaret iigalawese, 2nd widow of the deceased, applied through their counsel to this Court for the grant of letters of admini- stration relating to the Ceceased's estate. The Court granted the application on 26th September, 1990, On the sane Cay Messrs Lilley Wills and Company , acting on behals of Harton iigalawesa, the deceased's 80n from the Ist wife and other heirs of the ceceasec, filed before this Court a caveat objecting the granting ef letters of administration to Margaret Ngalawesa and Weston Kachamba. In suppert of granting letters of administration to Weston Kachamba and Margaret Ngalawesa, Hr, Hakhalira arguec that these persons are entitled to be granted letters of administration in terms of section 42~(1) of the Wills anc Inheritance Act, ir. Msiska, acting for the caveator, expressed deubt that letters of acninistration in this matter coulc be granted to Weston Kachamba. I entertain no such coubt myself, I am of the clear view that letters of administration could be granted to Weston Kachamba as well as Margaret Ngalawese in connection with the deceased's estate. % In an affidavit Sworn on 15th Novem ser, 19590 Mrs. Nargaret Ngalawesa depones that she used to run the fish business with the i. BR ap Ww Qe decease before he diec, Mr. Makaalive thon arguec that since the fish bhusimese eenresents the main income generating activity it would be necessary to grant letters of aeministration to a person who would competently run the fish business ané produce income for the benefit of all the heirs of the deceascc. In an affidavit sworn by Harton Nealawesa on Sth February, 1991, Harton Hgalawese states that it is untrue that the éeceased used to run the fish business with Margaret Ngalawese. He Gepones that this lacy was simply steying with the €eceaseé as a house wires and that as a matter of fact it was himself anc the ceceasec who were running the fish Susiness at Mangechi. I believee Harton's statement. I thougnat that it contained the truth. I am oreparec to fine that Margeret Nealawasa. livee with the deceased as a house wife only anc took no part in the deceased's fish business. I fine that after complating school, Harton 2 Ngalawesa usec to assist the Geccased in running the fish business. a am satiefied that Margaret Ngalewose has no experience at all in running the fish business. ie I would agree with Mr. Nsiske that he person who should de granted letters of aeministration must be a person who would act fairly anc impartially in ¢cealing with the estate and distributing it for the common benefit of the lawful beneficiaries. It would be clearly wrong to grant letters of adminisxration to & person who ghows a Cistinct odlas in fawour af some heirs and against the others. It is very clear from the afficavits sworn by Mergaret Ngalawesa on 15th November, 1990, and Sth Feoruary, 1991, that she is déctermined to acquire the fish business and run it as her own business and use the income producec by the business for her own benefit and thet of ber owh chiléren to the total exclusion of the rest of the beneficiaries. She claims thet the lst wife ané her children were given a grocery budéiness by the deceased anc they scuanéereé it; she then contends that these persons have no legitimate clain on the fish business. Margaret ligalawesa has shown, by her attitude, that she is incapable of acting fairly and impartially in the Gistribution of the Geceasec's estate; she wants to have letters of administration granted to herself so that she would distribute the estate to herself to the exclusion of the othor beneficiaries. Clearly, letters of acministretion are not granted for that purpose. Hargaret Hgalawesa goes not, by her selfish attitude, qualify to be grantec letters of acministretion in this matter. fhe eaveator requests this Court to grant letters of acnini- stration to the Administrator General. Margaret Ngelawesa objects to the granting of letters of acministration to the Administrator General. She contenés that the Administrator General is on the siée of Harton igalawesa. In her affidavit Gated 6th February, 1991 she describes an event which occurred on 23rd August, 19590. She states thet on that cay officers from the office of the AgGministrator Goneral trevellec in a government vehicle together with Hercton Hgalawesa, they came to her house and cemanced that she should surrencer the deceasec's Commercial Bank pass book to Harton Ngalawosa; sne refusec. She claims thet the conduct of officers from the office of the Administrator General snows that the Administrator Genoral is biasec in favour of Harton Ngalawesa, Bee In his effidavit sworn on Bth February, 1991, Mr. Chibesakundca states that Harton Ngalawesa requested the Administrator General to administer the deceased's estate, he went to the house of Margaret Ngalawesa anc Gemandeé from her to hand to him the Commercial Bank pass book. He states that that was cone in order to protect the property in the deceased's estate. He agrees shat Margaret Ngalawesa refused to surrender the pass Sook and ne orcerec the bank's account to be frozen. I disagree that the conduct of Me. Chibegakunda shows he is in favour of Harton Negalawesa. I am satisfied that it is the practice of the Administrator General, upon being recuested to administer the deceased's estate, to take steps to protect the property. I am further satisfied that Mr. Chidesakunda here was simply trying to protect the funds of the deceased in the bank and I have no doubt thet he acted competently, fairly and in good faith. It must also be noted that the Administrator General's office is a puodlic office comprising a number of public officers. The fact that one or two officers have acted improperly or dishonestly cannot lead to the conclusion that the whole office is incompetent and corrupt. The reputation of the office of the Administrator General as a competent and fair administrator of deceased persons estates in the whole country has so far been commendable. I find no merit in Margaret Ngalawesa's objection to the granting of letters of acministration to the Acministrator General. Margaret Ngalawesa suggests that letters of administration in this matter should be granted to #inancial Management Department of National Bank. it has not been shown to me how competent and fair is this institution in the administration of deceased persons estates generally. Again T am not sure that that organisation is willing and prepares to undertake the administration of the deceased's estate in the present matter. There is also the question of costs of the admini- stration to be considered. It has not been brought to my attention that, if appointed, this pank's institution would charge fair and reasonable fees for its services. I am thorefore in favour of appointing the Aeministrator General to administer the deceased's estate in this matter. The order granting letters of administration to Margaret Ngalawesa and Weston Kachamba is set aside. I order that letters of administration in this matter be granted to the Administrator General. Costs in this matter be granted to the caveator. MADE in Chambers this 15th cay of March, 1991 at Blantyre. Ad Da.) Tarmbala JUDGE PAA