Abel Hachaambwa and Ors v Cheelo Mweemba (Appeal 175 of 2016) [2019] ZMSC 371 (1 August 2019)

1 SELECTED JUDGMENT No. 22 of 2019 P. 725 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 175/2016 SCZ/8/208/2016 BETWEEN: JUDICiARY % ABEL HACHAAMBWA HAKASISI JOHN BUBALA '^^EMURT ''^SOX 50067, ESNART NG’ANDU AND 1st appellant 2nd APPELLANT 3RD APPELLANT CHEELO mweemba RESPONDENT Coram: Hamaundu, Malila and Kaoma JJS On 9th July, 2019 and 1st August, 2019 For the Appellants: Notice of non-appearance - Messrs H. M. Munsanje & Company For the Respondent: Notice of non-appearance - Messrs Mulenga & Wallace Advocates JUDGMENT Malila, JS delivered the judgment of the court. P. 726 Case referred to: 1. Minister of Home Affairs, Attorney General v. Lee Habasonda (2007) ZR177 2. Kansanshi Mine Plc v. Maini Joseph Mundumina & Others (Appeal No. 149 of 2010) 3. Nkata and Others v. Attorney General (1966) ZR 124 4. Zambia Telecommunication Company Ltd. v. Mulwanda & Others (2012)1 ZR 404 5. Zambia Breweries Plc v. Sakala (2012) 2 ZR 460 6. Nevers Sekwila Mumba v. Muhabi Lungu (sued as National Secretary of the Movement for Multiparty Democracy) (2014) 3 ZR 335 7. Henry Mpangwila Siwale, Reverend Siwale, Kelvin Siwale, Stephen Siwale, Dr. Sichilindi Siwale, Peter Siwale v. Ntampalila Siwale (SCZ No. 24 of 1999) 8. Mwiinde v. Gwaba (1974) ZR 188 9. Frannk Chitambala v. The Queen (1955-1958) NRLR (Vol. VI) page 29 10. Attorney General v. Kakoma (1975) ZR 216 11. Patrick Makumbi & 25 Others v. Greytown Breweries Limited and 3 Others (SCZ Appeal No. 032/2012) Legislation referred to: 1. Intestate Succession Act, chapter 59 of the laws of Zambia 2. Supreme Court Rules, chapter 27 of the laws of Zambia 3. High Court Rules 4. Subordinate Court Act, chapter 28 of the laws of Zambia Customary land is of great significance to rural landholders not merely because of its centrality to life and livelihood, but also for its value as clan land, essential in the conceptualisation of home, heritage and family identity. However, unclean land status as well as undocumented allocations of such land, is increasingly undermining customary land ownership and tenure. J3 P. 727 This appeal involves a land dispute in a customary area in Handoomba Village, Chief Mwanza in Monze District of the Southern Province of Zambia. That dispute had also descended into somewhat of a defamation tiff between the parties. It comes to us on appeal following the decision of the High Court, sitting in its appellate jurisdiction. The action was commenced in a local court at Monze by the respondent. It was transferred to a subordinate court at the behest of the respondent, who sought to be represented in the matter by counsel. The facts were that the respondent, desiring to settle in Handoomba Village, attended upon the village Headman Handoomba with a request that he be allocated some land. Acting through his secretary, Headman Handoomba identified a suitable parcel of land upon which the respondent was allowed to settle. By way of completion of the formalities for land occupation in such areas, the Chief’s consent was sought and duly obtained, after the Chiefs J4 P. 728 messenger had visited the land proposed to be allocated to the respondent and undertaken a survey of sorts. The purpose of that survey was to confirm that the land allocated by the Headman was not already occupied or given out to another person. Following his admission as a member of Handoomba Village, the respondent cleared part of the land and cultivated it regularly from September 1998. His occupation and use of that land was without incident until November 2013, when the first appellant was seen ploughing what the respondent had come to regard as his land, using a tractor. Unbeknown to the respondent at that time, the first appellant considered himself to have had a legitimate claim to the disputed land which had belonged to one Kamangilila, the grandfather to the first appellant. The respondent reported the incident of the appellant’s perceived intrusion with his tractor to Headman Handoomba who advised him to report the matter to the police. J5 P. 729 What then transpired beggars belief. The respondent was picked up by a team of what he called ‘neighbourhood watch members’ (but who may well have been part of a traditional court), who convened a meeting. At that meeting, it was alleged that the respondent had determined to bewitch the first appellant. What can fairly be described as a curial session resembling a kangaroo court, made up of those neighbourhood watch members was convened. The respondent was assaulted, charged and found guilty. He was ordered to pay the value of seven herd of cattle (two of which were to be living animals, while the rest was to be in the monetary equivalent). Additionally, he was ordered to pay the sum of KI,250 as well as K250 costs. At the time of the verdict by that seemingly curial assembly of neighbourhood watch members, the respondent had already commenced legal proceedings in a local court at Monze against the appellants. He asked the ‘neighbourhood watch court’ to avail him the record of proceeding (the minutes) for possible reference in court but, not surprisingly, to no avail. J6 P. 730 It is these developments that prompted the respondent to engage counsel, and to have his action in the Local Court transferred to a subordinate court. This was duly done. In the latter court, he sought an order directing the appellants to desist from interfering with his quite enjoyment of the land in question. He also sought compensation for defamation for the stigmatizing label of wizard which had been tagged on him. Additionally, he claimed costs. By way of defence in the Subordinate Court, the appellants claimed that the land in question had belonged to their grandfather, Kamangilila who lived with his brother, Hagwiinta, and they were thus rightfully entitled to it. It was established that the appellants’ grandparents died and were buried on the land. The first appellant claimed that his mother, Margaret Kamangilila, had given him the authority to settle on that land. The appellants sought to assert their entitlement to the land on the basis that Tonga customary law vests land of a deceased person in the children. J7 P. 731 When the first appellant, who incidentally was at the time registered in the adjoining village of Headman Nangweluka, inquired from his headman as to what arrangement had been made between Headman Handoomba and the respondent regarding the respondent’s occupation of his land, the response he is said to have received was that the respondent was on the land on a temporary basis. The learned magistrate heard the parties and their witnesses and received the submissions of counsel. He came to the conclusion that the subject land had been abandoned by the children of Kamangilila and Hagwiinta. The first appellant’s effort to reclaim the land at the time and in the manner he did, was an effort too late. He held that the respondent followed correctly the procedure for acquiring the land in dispute which had no occupant at the time it was allocated to him. In the ultimate, the learned magistrate declared that the respondent was the only person entitled to remain on the land. He, accordingly, granted the restraining order sought by the respondent. J8 P. 732 In regard to the defamation claim, the learned magistrate was of the view that the respondent did not bring forth any evidence to prove this claim. He, accordingly, treated that claim as abandoned. He declined to take judicial notice of the neighbourhood watch court’s order stating that, that would be an endorsement that such courts are part of the judicature of Zambia. He awarded costs to the respondent. The appellants then appealed that decision to the High Court on three short points, namely, that it was a misdirection for the magistrate to have failed to take into account the fact that the land in dispute devolved upon the biological children of Tikie Kamangilila and Mazuba Hagwiinta upon their deaths. Second, that it was a misdirection on the part of the magistrate to hold that the subject land was vacant and had no occupant at the material time, and finally, that the magistrate was wrong to have held that the respondent had rightly followed the necessary procedure in acquiring the land in dispute. J9 P. 733 The learned High Court judge (Muuka J, now deceased) on review of the evidence and the arguments, found that there was no evidence that the proper beneficiaries of the estate of Tikie Kamangilila and Mazuba Hagwiinta had laid claim to the land in question, let alone settled on it. His reading of the evidence was that the land had remained vacant for eight years before it was allocated to the respondent, and it took another five years for the respondent to learn of the appellants’ adverse claim to the land. He also found that the land was vacant when it was allocated to the respondent who had followed all necessary procedures in acquiring it. The learned judge accordingly dismissed the appeal. The appellants, unhappy with that judgment, have now appealed to us on four grounds structured as follows: GROUND ONE The appellate judge misdirected himself and erred in law and fact when he delivered a judgment which failed to apply any legal authorities to the facts and evidence thereby failing to satisfy the legal requirements of a judgment. J10 GROUND TWO The appellate judge misdirected himself in law when he held that the Intestate Succession Act applied to the customary land in dispute and consequently that the Tonga customary law which vested land of a deceased person in his biological children was changed by the Act in P. 734 relation to the land in dispute. GROUND THREE Having found that according to the evidence adduced in the court below the children of Tikie Kamangilila and Mazuba Hagwiinta were duly entitled to the land in question, the learned appellate judge erred in law and in fact when he held that the absence of a claim to the land negated the rights of the said children over the land. GROUND FOUR The learned appellate judge erred in law and in fact when he failed to take into consideration the evidence of the appellants. The learned advocates for both parties filed their heads of argument in support of the parties’ respective cases, but did not appear following their filing of notices of non-attendance under rule 69 of the Supreme Court Rules, chapter 27 of the laws of Zambia. In respect of ground one of the appeal the appellants’ complaint was against the standard or quality of the lower court’s judgment. It was submitted on behalf of the appellants that the judgment of the lower court failed to apply any legal authorities to the facts and the Jll P. 735 evidence and did not meet the threshold for a standard, acceptable judgment. The case of Minister of Home Affairs, Attorney General v. Lee HabasondalL was cited as authority for that submission. In particular, counsel quoted a passage from that judgment as follows: Every judgment must reveal a review of the evidence where applicable, a summary of the arguments and submissions, if made, finding of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. Counsel also referred to our judgment in Kansanshi Mine Plc v. Maini Joseph Mundumina & Others<2). Allusion was also made to Order XLVII Rules 20 and 21 of the High Court Rules which state that the court has power to make any order necessary for determining the real question in controversy in the appeal and has power to give any judgment and make any order that ought to have been made. We can state right away that we do not see the relevance of Order XLVII Rules 20 and 21 cited by the appellants’ advocates to the argument under ground one of the appeal. J12 P. 736 The response of the respondent to the argument on ground one is that the whole ground is totally misconceived, misplaced and not supported by the facts as recorded in the court below. It was submitted that the two cases cited by the appellants’ counsel to support the argument made under ground one are inapplicable and thus misplaced because the lower court judge did, after all, cite in his judgment the case of Nkata and Others v. Attorney Generali3). Additionally, the lower court judge had made reference to the Intestate Succession Act, chapter 59 of the laws of Zambia, which he applied to the situation before him. According to counsel for the respondent, there is no justification to argue, as the appellants’ counsel did, that the judge below failed to apply any legal authorities to the facts and the evidence. The fact that the authorities used by the learned judge below did not support the appellants’ case does not alter the position that the judge rationalized his decision with reference to legal authorities. In any case, submitted counsel for the respondent, the case of Minister of Home Affairs, Attorney General v. Lee Habasondal1) cited by the J13 P. 737 appellants did not lay down, in absolute terms, the rule that the trial court must apply authorities. The judgment speaks of authorities if any. We are grateful to counsel for their very brief arguments on this point. Indeed, although judges in this jurisdiction have a free hand to style their judgments as they please, there is a basic structure of a judgment which should accommodate the minimum core content of any lucid judgment. A judgment should preferably have an introduction which sets out the nature of the dispute, and the identity of the parties. It should also have a narration, in summary form, of the material facts; the issues requiring determination; a discussion of the law relative to those issues; an application of the law to those facts; and more significantly perhaps, the decision and order of the court vis-a-vis the relief sought by the parties. In the case of Zambia Telecommunication Company Ltd. v. Mulwanda & Others!4), we spelt out and expatiated on these requirements. The decision in Zambia Breweries Plc v. Sakala<5) was to the same effect. J14 We cannot ignore the fact that judges differ significantly in the P. 738 styles they employ to write their judgements. What is to us of significance, is that the judgment should communicate the decision on the litigated question or questions lucidly. We underscored this point in the case of Nevers Sekwila Mumba v. Muhabi Lungu (sued as National Secretary of the Movement for Multiparty Democracy)!6) where we stated as follows: We must state that judgments will vary in style, aptness, perspicuity and elegance of diction, depending on a variety of factors, including the judge’s own disposition, the subject matter of the judgment, the complexity of the arguments and whether or not, a matter before the judge is dismissed on a technical point. We have perused the judgment complained against. The learned judge begins the judgment by setting out what he termed as the grounds of argument by the appellants which he listed by number. He then, in similar fashion listed, by number, the respondent’s arguments in response. He thereafter, moved on to make a statement, rather in isolation, that the appellants’ argument challenged findings of fact which the Supreme Court in the case of Nkata & Others v. Attorney General!3) frowned up. J15 learned judge then, by ]temized P. 739 stances we identified in challenge of findings of fact by a lower court tQ The learned judge then moved on to ground one where he Started with the conclusion that “the dearth of evidence in support of this argument and the time line in the sequence of events both contributed to the lack of merit in ground one. ” Working backwards, he then proffered some reasons why he thought ground one could not succeed. He addressed ground two in six lines. All the judge stated in those short lines was that the weight of evidence presented by the respondent and the appellants’ own concession, all lent credence to the fact that a claim must be secured or made in good time by a beneficiary. He did not particularise that evidence. Ground three was not treated any differently by the learned judge. He started with his conclusion and preferred absolutely no authority to rationalise his decision. J16 P. 740 We agree with the appellants’ learned counsel that the judgment of the lower court is most unconventional in the manner in which it was structured and styled. It is a classic repudiation of all the tenets of a good judgment as we have repeatedly identified them. We think, therefore, that the appellants’ grievance under this ground is legitimate. Having said so, however, we must clarify that the poverty of a judgment in terms of style, syntax or diction, cannot of itself ground the success of an appeal. It has to be established whether, on the particular circumstances of the case as presented, a decision of the court is discernable. In other words, the determinative question should be whether, notwithstanding the decidedly evident defiance of the qualities of a good judgment as we have set them out in numerous case authorities, some of which we have alluded to in this judgment, it is still possible to identify the soul of the decision and order of the court. J17 P. 741 Our reading of the lower court’s judgment is that in spite of its unorthodox formulation, there is, nonetheless, a decision of sorts and reasons for that decision. In the event the appeal cannot succeed merely on the premise that the shape or structure of the judgement is not conformist; it has to be on the efficacy of the reasons assigned by the judge for his decision, or rather the lack thereof. Ground two alleges that the judge was wrong to hold that the Intestate Succession Act, chapter 59 of the laws of Zambia, applied to customary land disputes and that Tonga customary law, which vested land of a deceased land owner in his biological children, was changed by the Act. It was submitted on behalf of the appellants that the disputed land had devolved to them by virtue of a Tonga customary convention or law which was codified in by-law No. 15 recognised by Senior Chief Mwaanza and states that: When a person dies, his fields remain the property of his biological children. The statement in the lower court’s judgment, which the appellants are grumbling about, reads as follows: J18 P. 742 The appellate court is of the opinion that By-law 15 “when a person dies, his Helds remain the property of his biological children” has to be applied within the provisions of the Intestate Succession Act, in particular section five, nine, ten, or eleven which provide for the distribution of the estate of the deceased persons who die intestate. The Intestate Succession Act, override any customary practice or administrative by-laws such as those tendered in the trial court below. In fact, the Tonga customary law was effectively changed by the provisions of the Intestate Succession Act... According to counsel for the appellants, this finding by the lower court in fact flies in the teeth of section 2 of the Intestate Succession Act, which expressly states that the Act, does not apply to land which, at the time of intestacy, was held under customary law. Counsel then submitted that the judge was clearly in error. This ground of appeal should, according to counsel, thus succeed. In response to the arguments of the appellants under ground two, the learned counsel for the respondent magnanimously conceded that the judge was wrong on a point of law. The Intestate Succession Act was not applicable. Counsel, however, insisted that the judge was right in his overall finding. J19 P. 743 Again we are grateful to both counsel for their efforts in respect of this ground of appeal. As regards the Intestate Succession Act and its applicability to customary land, which is what the disputed land is, we note with much discomfort that the learned lower court judge bravely descended into the arena of intestacy totally uninvited by the parties either through their pleadings or their submissions. He attempted to make a good job of the provisions of that Act on a suo moto basis, to justify his decision. What the learned judge did not appear to have done, or at any rate to have done properly, was to read, comprehend and consider the importance of section 2 of Intestate Succession Act which, as quoted by counsel for the appellants, clearly makes the Act inapplicable to the dispute before the court. We entertain no misgiving whatsoever, that the learned judge goofed. Ground two has merit, and it is upheld accordingly. J20 P. 744 Turning to ground three of the appeal, the appellants impeach the conclusion of the learned lower court judge that although the children of Tikie Kamangilila and Mazuba Hagwiinta were entitled by Tonga custom, to the land in question, the absence of a claim to the land negated their right. The appellants* counsel cited by-law No. 11 of Chief Mwaahza’s Chiefdom, which deals with allocation of fields left by persons who have relocated. A headman does, in those instances, have power to re-allocate such land. Counsel also cited by-law No. 15 by which, where a person dies, the fields he leaves behind remain the property of his biological children. We were referred to the evidence of the first appellant, Abel Hachaambwa, where he told the trial court that in October 2013, he and others had gathered to erect tombstones on the graves of their grandparents, Tickie Kamangilila and Mazuba Hagwiinta, (who were brothers) within the land the respondent had settled on, and that the evidence was not challenged. J21 P. 745 Counsel also referred us to the evidence of Safelino Chilongo in the record of appeal where he stated that, to his knowledge, the disputed land belonged to Kamangilila and Hagwiinta. These two, according to further evidence on record to which counsel referred, were parents of the second and third appellants, respectively, and that they did not relocate from that land but died and were buried on it. Counsel also invited us to consider the finding of the learned judge below that the second and third appellants were among the beneficiaries, and that the children of Tikie Kamangilila and Mazuba Hagwiinta were the rightful beneficiaries of the estate of the deceased. According to counsel, having made these finding, the learned judge should have, in construing by-law 15, held that the land devolved immediately to the beneficiaries rather than conclude, as he did, that the beneficiaries were required to lay their claim to the land, and having failed to do so, they lost their entitlement to inherit what was in effect clan land. This finding, according to the appellants, was wrong and ought to be reversed. J22 P. 746 Flowing from the foregoing, it was submitted that the land in question could not be said to have been vacant, abandoned and without an occupant. The evidence, according to counsel, showed that the respondent was only allocated the land to occupy on a temporarily basis. Reacting to ground three of the appeal it was contended, by counsel on behalf of the respondent, that the lower court judge was right to hold as he did. He submitted that the appellants, as the evidence showed, failed to lay claim in time to the land in question. Additionally, according to counsel for the respondent, under Tonga customary law, land cannot be held in perpetuity. After referring to by-law 11 and 15 of Chief Mwaanza’s By-laws, counsel referred us to the evidence in the record of appeal to support the position that all the three appellants had relocated from the village and settled elsewhere. Furthermore, evidence on record showed that the first and the second appellants were not even the biological children but grandchildren of the late Tikie Kamangilila and Mazuba Hagwiinta. In this respect, we were referred to the J23 P. 747 Village Register in the record of appeal which showed that the first appellant had become a subject of a different village - Hamatako Village. Counsel submitted that land could not be held timelessly and that when it was abandoned, it reverted to the village Headman. The land in question remained vacant for eight years and thus had reverted to village Headman Handoomba who thereby became entitled to reallocate it as he did. Counsel for the respondent distinguished the case of Henry Mpangwila Siwale, Reverend Siwale, Kelvin Siwale, Stephen Siwale, Dr. Sichilindi Siwale, Peter Siwale v. Ntampalila Siwale^ from the present case. In that case it was held that the appellant had as such rights to the land as had the respondents, who were all children of the deceased. While in that case there were at least one of the siblings who remained in occupation of the land, in the present case, according to counsel, the land had been abandoned and vacated by all. . J24 P. 748 Secondly, while in the Siwale(7) case both the appellants and the respondents were biological children of the deceased, in the present case, the first and second appellants were grandchildren who were not and had never occupied the land in issue, and the third, the appellant in that case had left the land to settle in another village for thirty years. Learned counsel also distinguished the case of Mwiinde v. Gwaba^ on the basis that whereas in that case, the appellant had left the village of residence temporarily so as to seek grazing pasture for his animals, here the appellants had abandoned the village permanently altogether. Further, it was pointed out that, whereas, in that case the appellant did not leave his ordinary residence vacant as his wife was resident there, in the present case there was complete abandonment with no soul in occupation of the disputed land. Counsel, therefore, submitted that the appellants had no subsisting customary rights over the land at the time it was allocated to the respondent. J25 P. 749 We have mulled over counsel’s submissions on this ground of appeal. Our view is that the grievance on this ground is a short one. The question is whether there is such a thing as abandoning customary land and what the consequences of having the appellants’ grandparents buried on the land are. It is clear to us that the dominant issue to be determined here involves Tonga customary law of land tenure, and in particular the circumstances underwhich customary land previously owned may be alienated or reallocated. We note to begin with that the trial of this matter occurred in the Subordinate Court. That court does, in terms of section 16 of the Subordinate Court Act, chapter 28 of the laws of Zambia, have power to apply African customary law, in appropriate circumstances, to resolving disputes brought before it. We,' of course, understand the difficulty experienced by a court in finding out, and applying the customary law applicable to the case before it where the adjudicator has no ethnic connection or affinity with the local environment and is thus unlikely to have deep knowledge of the customary law in J26 P. 750 question. It is in this light that section 8 of the Act sanctions the hearing of such proceedings with the help of assessors. Here, however, the court proceeded to determine the dispute unaided. Although there is no clear statutory. provision on the point, customary law, if relied upon by a party to a civil case, must normally be specifically pleaded and proved by calling witnesses acquainted with the local customs making up such customary law. The existence of a custom may thus be proved by the testimony of witnesses able to testify to actual occasions in the past when a particular custom was practiced, (i.e. they are witnesses of fact); and by opinions of those with peculiar or special knowledge of the customary law on specific aspects. This has been the position since Sommerhough J (High Court) articulated it in Frannk. Chitambala v. The QueenW. The appellants in this case called witnesses that testified as to the existence of Tonga customary practice obtaining in Chief Mwaanza’s Chiefdom as regards land alienation and clan ownership of land that has been physically abandoned, but still belonged to the first person that settled there; that the fact that the grandfather J 27 P. 751 stayed on the land and his remains are buried there is a unique caveat of the clan’s claim to the land called in Tonga as matongo. We note that with respect to the graves of the appellants’ grandparents, the respondent, while confirming his knowledge of their existence, denied that they lay in the land he was allocated. We have reviewed the evidence of the various witnesses that testified before the Subordinate Court. The respondent’s first witness, Pilate Chimuka (Headman Handoomba) testified that the first appellant did not belong to his village but to the adjoining one; that the respondent was properly settled on the disputed land which now belongs to him. He testified that the land that had belonged to Kamangilila was not shared and that although there are no specific boundaries available, they, as owners of the village, know where the boundaries are. Leonard Namachuta Kayuma (PW3 in the Subordinate Court) a Headman in Hamatako Village, testified that if land is unoccupied for a long time and where the owners die or even where it remains idle for a long time, it reverts to the headman and the Chief. J 28 P. 752 Jethrow Mambo’s (PW4), Ng’ambela for Chief Mwaanza (formerly headman Maarnbo), testified that if a person relocated together with his family and no one remained on the land, then the headman became the custodian of the land. More significantly that such land was amenable to be reallocated, subject to the concurrence of the Chief. Our considered view is that traditional institutions such as the Headman and the Chief are central in determining disputes relating to access, use and control of land and natural resources in rural livelihoods and are thus in the best position to settle any land disputes arising in their communities. Although Chiefs are the primary administrator of customary land, in practice their authority is largely delegated to village headmen. There is clearly disagreement recorded between the parties as to what the custom or practice was. The evidence of witnesses who testified on behalf of the respondent as we have captured it, appears to have consistently taken a leaning towards the claim that the allocation of the land in dispute to the respondent was regularly J29 P. 753 done. The evidence called on behalf of the appellants, on the other hand, leaned towards the very opposite end of the spectrum. That evidence was hinged principally on the by-law No. 15 and the conversations that were had between the appellants and the headman Handoomba and others. The bottom line is that the learned trial magistrate, who had occasion to hear the witnesses in person and assess their demenour, accepted the evidence of the respondent in preference to that of the appellant as having been sufficiently consistent with the Tonga customary land practice. The learned High Court judge endorsed the findings of the learned trial magistrate. For our part, we have no reason to disturb those findings either. We think, therefore, that ground three is without merit and we dismiss it accordingly. Ground four accuses the lower court of having failed to take into consideration the evidence of the appellants in coming to its decision. That evidence, according to the appellants’ counsel is (i) that the appellants had given the respondent permission to be on the land on a temporarily basis; (ii) the evidence of the first appellant’s exchange J 30 P. 754 with headman Handoomba regarding the status of the respondent as a temporarily occupant of the land; (iii) the evidence of the respondent having informed the first appellant’s relatives at a funeral held in 2012 that he was going to stop using the land in dispute; (iv) the evidence of the third appellant to the effect that her late father was Hagwiinta Mazuba who was buried on the land, and that the children of Hagwiinta had given authority to the first appellant to stay on the land. Also, not considered, according to counsel for the appellant, was the evidence of the third appellant to the effect that the children of Hagwiinta and Kamangilila no longer wanted the respondent to remain on the land and had to this effect written a letter to Headman Handoomba, asking him to request the respondent to vacate. It was also submitted that the evidence of Sefelino Chilongo was not taken into account. The respondent’s learned counsel did not address the issues raised under ground four of the appeal specifically. J31 P. 755 Our view is that the grievance of the appellants under this ground is evidentiary in substance. The trial court preferred the evidence of some witnesses to that of others. It had the responsibility to make a judicious assessment of the evidence before it. In Attorney General v. Kakoma<10> we stated as follows: [a] court is entitled to make findings of fact where the parties advance directly conflicting stories, and the court must make those findings on the evidence before it having seen and heard the witnesses giving evidence. Indeed in the present case, the evidence of the various witnesses was assessed by the court whose responsibiEty it was to place probative value on that evidence. In Patrick. Makumbi & 25 Others v. Greytown Breweries Limited and 3 Others<n) we observed that: ...assessment of conflicting witnesses’ evidence is in the province of the,trial court; it does not belong here. Although the appellants have grumbled that the trial magistrate paid no attention to the isolated statements made by identified witnesses, we think the overall substance of the judgment did take into account the appellants’ position as presented. The trial court did not have to specify what each individual witness said to show J32 P. 756 that it had understood the gist and substance of the appellants’ grievance. In any case the appellants have not made any attempt to demonstrate in their argument how that evidence would have changed the overall picture of the decision of the court. We have also examined the evidence of Sefelino Chilongo who testified as the appellants’ third witness. The complaint by the appellants is that the lower court did not appear to have taken that evidence into account altogether. His evidence as recorded was fairly brief. He was the village headman in Nagweluka village. He did not give any evidence that was particularly illuminating in a different way from that which the court had already heard. We are of the considered view that in coming to his decision the learned trial magistrate had taken a proper conspectus of the evidence before him. The bottom line is that the trial court accepted the evidence of the respondent in preference to that of the appellants, hence his finding for the respondent. Ground four has no merit. It is hereby dismissed. J33 P. 757 The net result is that the whole appeal is destitute of merit and is hereby dismissed. Costs shall abide the event to be taxed in default of agreement. SUPREME COURT JUDGE Malila SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE