The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust v Robert Chiite and Others

The plaintiffs were trustees of the Leonard Cheshire Homes Trust, a trust established in 1981 to provide homes and care for permanently disabled people. The eight defendants were permanently disabled beneficiaries who had been residents of Masterson Cheshire Home in Harare since the early to late 1990s. Relations between the trustees and defendants deteriorated to the point where the trustees abandoned their responsibilities, while the defendants denied trustees access to the home and rented out parts of it to sustain themselves. The trustees served notices requiring the defendants to vacate the home. The defendants challenged the eviction, arguing they had been promised lifetime accommodation. During the protracted trial spanning nearly three years, it emerged that several trustees, including Mr Chikwanha who had been a trustee since the early 1980s, had exceeded their five-year terms as prescribed by clause 5(c) of the Deed of Trust. The meeting of 26 July 2004 that authorized the eviction was attended by trustees Messrs Gomwe, Chikwanha, Mills, Muzondo, Hungwe and Choto, most of whom had overstayed their terms or were appointed by trustees whose terms had expired.

• Whether a point of law regarding the validity of trustees' appointments could be raised during trial despite not being pleaded
• Whether trustees who had exceeded their five-year terms of office could validly make decisions on behalf of the trust
• Whether trustees appointed by persons whose terms of office had expired were validly appointed
• Whether the decision to evict the defendants made on 26 July 2004 was valid given the composition of trustees at that meeting
• Whether the plaintiffs had locus standi in judicio to prosecute the eviction claim

The plaintiff's case was dismissed with costs.

A trustee's term of office as prescribed in a deed of trust is mandatory and not directory. Once a trustee's term expires, that person loses capacity to act as a trustee and cannot make valid decisions on behalf of the trust. Trustees appointed by persons whose own terms of office have expired are not validly appointed. Decisions made by a board of trustees where the majority or all members lack valid appointments are void ab initio. A point of law that goes to the root of the matter, such as the validity of a plaintiff's capacity to bring proceedings, may be raised at any time during trial, even if not specifically pleaded, provided it causes no unfairness to the opposing party. The court's jurisdiction to appoint trustees to prevent a trust from failing does not operate to retrospectively validate decisions made by invalidly appointed or expired trustees.

The court observed that while the general principle in trust law is that a person de facto administering a trust as trustee has locus standi in matters relating to the trust, this may yield where a trustee cannot aver proper capacity and valid appointment as required by law. The court noted this issue had not been fully argued and declined to make a definitive finding on the locus standi point. The court also commented on the deplorable state of affairs where the trustees had abandoned their responsibilities at Masterson Home while the defendants exceeded the bounds of their terms of admission by denying access and renting out portions of the home, noting the home was clearly not being run in accordance with the objectives stated in clause 3(i)(a) of the Deed of Trust. The court emphasized the importance of accommodating vulnerable litigants, describing the extensive measures taken to ensure the disabled defendants could access justice despite their physical limitations and financial constraints.

This case is significant in Zimbabwean trust law for establishing that strict compliance with trust deed provisions regarding trustees' terms of office is mandatory, and that decisions made by trustees whose terms have expired are invalid and cannot be validated by invoking the principle that a trust should not fail for want of trustees. The case clarifies that while courts have statutory power to appoint trustees to ensure a trust's continuation (under sections 7 and 9 of the Companies and Associations Trustees Act), this jurisdiction does not extend to retrospectively validating decisions made by improperly constituted boards of trustees. It reinforces procedural fairness by confirming that points of law going to the root of a matter can be raised at any stage of proceedings, including during trial, provided no unfairness results. The case also demonstrates the judiciary's sensitivity to vulnerable litigants, with the court accommodating the disabled defendants' accessibility needs and pace throughout the lengthy trial.