Online Reporter
Fidelis Munyoro-Chief Court Reporter
BUSINESSMAN Julian Martin Hamilton Barns has failed in his attempt to be registered as a secured creditor in the estate of the late businessman Phillip Mugadza.
The High Court dismissed the application because it was legally defective and improperly sought to displace the authority of the estate executor.
Justice Sylvia Chirawu-Mugomba, delivering the judgment, found that the application attempted to compel the court to take over functions reserved for the executor under estate administration law.
“This application is not properly before the court,” said Justice Chirawu-Mugomba.
“It amounts to a review application disguised as a court application to compel. Such an approach is not permissible.”
Mr Barns had claimed to have made payments totalling US$193 600 on behalf of Mugadza to prevent foreclosure on a property in Gunhill, and asked the court to compel executor Mr Emmanuel Ngwarati to list him as a secured creditor in the estate.
He argued that the payments were made on Mugadza’s behalf and thus constituted a debt owed to him by the estate.
The executor rejected the claim, citing the absence of a lending agreement, lack of supporting documentation, and the fact that several of the payments were made to third parties rather than directly to the deceased.
Justice Chirawu-Mugomba upheld the executor’s decision, ruling that the reasons given were within the executor’s statutory discretion.
The judge stated that the court had no jurisdiction to usurp those powers.
“The court is not a substitute for the executor,” she said.
“It cannot step into the executor’s role or compel acceptance of claims that have been reasonably rejected.”
The judgment also noted that Barns had sought to have the court scrutinise every aspect of the claim and, in effect, override the executor’s discretion.
“All these questions lead to one conclusion,” the judge said.
“This court cannot and will not assume the duties of the executor.”
Justice Chirawu-Mugomba also criticised the legal representatives on both sides for failing to adequately address the core legal issues in the matter.
