IN THE ESTATE OF DYSON PERESI NGALAWESA (DECEASED) APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION (Civil Cause 845 of 1990) [1991] MWHC 38 (15 March 1991)

99" ; i In THE HIGH COURT OF MALAWI \S Vis ra PRINCIPAL RcGISTRY : CIVIL CAUSE HO.845 OF 1990 IN THE ESTATE OF DYSOI} PERDSI tIGALAWESA (DECSASED) APPLICATION SOR GRANT OF LETTERS OF ADMINISTRATION nal CORAM: TAMBALA, J. Kombezi of Counsel for the Applicant Msiska of Counsel for the Ressoncent Rhnolowe, Court Clerk RULING On 3lst July, 1990 Mr. Dyson Nealewesa cied intestate at Hangochi District Hospital. He is survivec by two widows namely Mrs. Lucy Ngalawesa, lst widow anc Mrs. Moergaret Nralawesa, 2né widow. The 1st wicow hac eight children with the Cceceasec while the secondé widow had three children. The eleven children survivee the deceasecé. The other heirs of the deceasec include Mr. Weston Kachamba, step~-brother of the deceasec, and a sister of the dcsceasec. The estimated gross value of the deceasec's estate at the time of his death was K291,000.00. This incluces cash in the bank amounting to K80,000.00. The deceasec was running an apparently successful fish business before he died. At one stage in the course of running the > 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 KS5000.00 from Ministry of Agriculture anc Natural Resources. The loan was also incurred in connection with the same fish business. On 13th September, 1990 iir. Weston Kachamba, deceased's step- brother, anc Mrs. Margaret Ngalawese, 2nd wicow of the @eceased, 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 same cay Messrs Lilley Wills and Company, acting on behalf of Harton iigalawesa, the deceased's son from the 1st wife anc other heirs of the Geceasec, filed before this Court a caveat objecting the granting of letters of administration to Margaret Ngalawesa and Weston Kachainba. In suppert of granting letters of administration to Weston Xachamba and Margaret Ngalawesa, tir. Makhnalira 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 doubt that letters of acministration in this matter coulc be granted to Weston Aachamba. I entertain no such coubt myself. I am of the clear view that lettere of administration could be granted to Weston Kachamba as well as Margaret Ngalawesa in connection with the deceased's estate. In an affidavit sworn on 15th iNovem er, 1950 Mrs. Margaret ligalawesa cdepones that she usec to run the fish business with the HIGH CourT pe nce Qe decease before he diec, Ur. Mekaalire thon arguec that since the fish busimess pepresents the main income generating activity it woulc be necessary to grant letters of aeministration to a person who would conpetently run the fish business ané produce income for the benefit of all the heirs of the deceased. In an affidavit sworn by Harton Nealaweca on Sth February, 1991, Harton Hgalawese states that it is untrue that the éeceased used to run the fish business with Margaret Ngalewese. He Gepones that this lacy was simply staying with the Ceceased as & house wite and that as a matter of fact it was himself anc the ceceasec who were running the fish Susiness at Mangechi. I believe¢ Harton's statement. I thougat that it containeé the truth. I am orepared to fine that Margaret Nealawasa liveé with the deceased as a house wife only anc took no part in the deceased's fish business. I fine that after completing school, Harton igalawesa used to assist the Geccaseé in running the fish business. a am satiefied that Margaret Ngalewose has no experience at all in running the fish business. * I would agree with Mr. Nsiske that the person who should 9e granted letters of acministration 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 2 person who ghowe a Cishinct 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 éctermined to acquire the fish business and sun it as her own business and use the income producec by the business for her own benefit and thet of ber own chiléren to the total exclusion of the rest of the beneficiaries. She claims thet the lst wife and her chiléren wore given a grocery business by the deceased anc they scuancered it; she then contends that these persons have no legitimate clain on the fish business. Margaret iigalawesa has shown, by her attituce, tnat she is incapable of ecting fairly and impartially in the cistribution of the deceased'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 other beneficiaries. Clearly, letters of acministretion are not granted for that purpose. Hargaret Hgalawesa does not, by her selfish attitude, qualify te be grantec letters of acministration in this matter. fhe eaveator requests this Court to grant letters of acnini- stration to the Administrator General. Merrgaret Ngelawesa objects to the granting of letters of administration to the Administrator General. She contenés that the Administrator General is on the sige of Harton igalawesa. In her affidavit dated 6th February, 1991 she Gescribes an event which eccurrcé on 23rd August, 1990. She states that on that cay officers from the office of the AGainistrator Goneral travelled in a government vehicle together with Harton Ngalawena, they came to her house and cemanced that she should surrencer the deceasec's Commercial Bank pass book to Jarton Nealawoesa; she refusec. Sne eclains thet the conduct of officers from the office of the Administrator General snows that the Administrator Genoral is biasec in favour of Harton Ngalawesa, oe In his effidcavit sworn on 8th February, 1991, Mr. Chibesakunda states that Harton Ngalawesa requested the Administrator General to administer the deceased's estate, he went to the house of Margaret Ngalawesa and cemanded from her to hand to him the Commercial Bank pass book, He states that that was done in order to protect the property in the deceased's estate. He agrees that Margaret Ngealawesa refused to surrender the pass book and he orderec the bank's account to be frozen. I disagree that the conduct of Mr. Chibesakunda shows he is in favour of Harton Nealawesa. 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. Chibesakunda 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 @ pudlic 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 80 far been commendable. I find no merit in Margeret Negalawesa's objection to the granting of letters of administration to the Acministrator General. Margaret Ngalawesa suggests that letters of administration in this matter should be granted to Financial 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 I am not sure that that organisation is willing and prepared 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 bank's institution would charge fair and reasonable fees for its services. I am thorefore in favour of appointing the Acministrator 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 day of March, 1991 at Blantyre. Pa D..t. Tambala JUDGE