Akatoka Thomson Mulambwa (sued in the capacity as Senior Chief Sikufele) and Senior Chief Sikufele v David Kang'ombe Bulaya (Now Deceased), Chief Kang'ombe and Attorney General (APPEAL No. 230/2023) [2023] ZMCA 300 (9 May 2023)

IN THE COURT OF APPEAL OF ZAM[at~ ~ ~~S~ No. 230/2023 .., HOLDEN AT LUSAKA (Civil Jurisdiction) 0 ~ t.1AY 2024 SENIOR CHIEF SIKUFELE 2ND APPELLANT AND DAVID KANG'OMBE BULA YA (Now Deceased) 18 T RESPONDENT CHIEF KANG'OMBE 2ND RESPONDENT ATTORNEY GENERAL INTERESTED PARTY CORAM: Chashi, Sichinga and Sharpe-Phiri, JJA ON: 30th April and 9 th May 2024 For the 1st and 2 nd Appellants: For the 1st and 2 nd Respondent: For the Interested Party: W . Muhanga, Messrs Willis Clement & Partners Legal Practitioners N/A N. Mwiya, Principal State Advocate, Attorney Generals Chambers JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Chikuta v Chipata Rural District Council (1974) ZR, 241 -J2- 2. Bank of Zambia v Jonas Tembo & Others (2002) ZR 103 3. Post Newspapers Limited v Rupiah Bwezani Banda (2009) ZR254 4. Earl of Mexborough v Bower (1843) ER 1011 5. Edward Jack Shamwana v Levy Mwanawasa (1994) SJ 93 (HC) Legislation referred to: 1. The Court of Appeal Act, No 7 of 2016 Rules referred to: 1. The Supreme Court Practice (White Book) 1999 Other Works referred to: 1. The Practice Direction No. l of 1993 1.0 INTRODUCTION 1.1 This is an interlocutory appeal against the Ruling of Honourable Justice E. P Mwikisa delivered on 21 st February 2023 . 1.2 In the said Ruling, the learned Judge dismissed the Appellants' preliminary issues raised pursuant to Order -J3- 33 / 3 and 14A (1) of The Rules of the Supreme Court1 (RSC). 1.3 It is manifest from a perusal of the record of appeal (the record) that this is a clear case of the proceedings in the court below having been "lost in translation. " There is a clear indication of the learned Judge not having correctly apprehended the happenings in the matter before she took over conduct of the case, so as to appreciate what had previously transpired. 1.4 In view of what we have stated, it will not do justice to this case for us to restrict ourselves to the appeal against the Ruling, but to do more in order to clear and straighten what has happened in the court below. This will assist the court below to proceed on a clear path and understanding. We will be comforted in doing so as an appeal is a rehearing on the record and also in view of section 24 (1) (a) of The Court of Appeal Act 1 . 1.5 We will proceed on the understanding that most of the materials relevant to the determination of the appeal are contained in the record before us. t - -J4- 2.0 BACKGROUND 2.1 The action herein was commenced by David Kang'ombe Bulaya, now deceased, on 13 th April 2016, by way of writ of summons claiming the following reliefs: (i) A declaration that the Manyinga area of Kabompo District and the new Manyinga District of North Western Province of Zambia was from time immemorial inhabited by and is traditional land of the Nkoya people under Chief Kang'ombe; (ii) A declaration that the 1 st Defendant Akatoka Thomson Mulambwa, Senior Chief Sikufele is a descendant of the paramount Chief of Barotseland, the Litunga and is not entitled under Nkoya custom and tradition to be recognized or held out as Chief in Manyinga area the traditional land of the Nkoya people; (iii) A declaration that the plaintiff is entitled to be recognized or held out as Chief -J5- Kang'ombe of the Nkoya people in Kabompo and the Manyinga area; (iv) A declaration that the recognition of the 1 st Defend ant by the President of the Republic of Zambia as Senior Chief in the Kabompo District which includes the Nkoya people contravenes Articles 165 (1) {formerly Article 127 (1) ) of The Constitution of Zambia and Section 3 (2) (a) of The Chiefs Act and is null and void; (v) An Order that the 1 st Defendant Akatoka Thomson Mulambwa, Senior Chief Sikufele do give up possession and occupation to the plaintiff of the Manyinga and other areas in the Kabompo and Manyinga, the traditional land of the Nkoya people; (vi) An Order of interim injunction to restrain the 1 st Defendant Akatoka Thomson Mu lambwa, by himself, his agents or servants or whosoever from allocating or -J6- alienating land, granting timber licences to investors, from damaging, destroying natural resources leading to deforestation or from collecting rentals from communication service towers or from installing Chiefs or Headmen in the Manyinga area or other traditional land of the Nkoya people, pending trial or until further order. 2.2 The writ of summons was accompanied by a statement of claim comprising of thirty (30) paragraphs, mainly adducing evidence. We shall for purposes of this appeal not recapitulate the contents but leave that to the determination of the matter at trial. 2.3 The matter was initially before Honourable Justice F. M Lengalenga, High Court Judge, as she then was, who on 13th July 2016, granted the plaintiff an exparte Order for injunction as endorsed on the writ of summons. The inter partes hearing has to date not been held, despite having once been given a return date. ;.. 2.4 On 11 th J u ly 2016, precedent to the ex parte Order of -J7- injunction, the 1 st defendant filed a notice to raise prelim inary issu es pursuant to Order 33 (3) and 14A (1) and (2) RSC. The cou rt was moved to determine th e following qu estions: (i) Whether the suit against the 1st defendant sued in his personal or official capacity as Chief against the institution of Chieftaincy can be sustained in view of the provisions of Articles 165 and 166 of The Constitution of Zambia (Amendment) Act No. 2 of 2016 and The Chiefs Act, Chapter 287 of The Laws of Zambia; (ii) Whether the plaintiff has sufficient interest or locus standi to sustain the suit and any cause of action against the 1 st defendant; (iii) Whether the exercise of President of the Republic of Zambia's powers in relation to -J8- appointment of Chiefs can be challenged by way of writ of summons. 3.0 RULING BY HONOURABLE LADY JUSTICE F. M LENG ALEN GA 3.1 In her ruling delivered on 30th December 2019, after consideration of the issues, Lengalenga J, upheld the first preliminary issue. The learned Judge opined as follows: "The Chieftaincy being a legal person in terms of Article 166(a) of The Constitution of Zambia, can only be sued in its own right as a legal person. I am therefore of the considered view that it is wrong to sue the individual holding the Chieftaincy in a representative capacity as indicated herein. The plaintiff ought to have sued the institution of chieftaincy being the office of Senior Chief Sikufele of Manyinga District. " 3.2 The 2 nd and 3 rd preliminary issues were dismissed. There is no indication on the record that this ruling was ever appealed against. Upon Lengalenga J, ascending to the -J9- Court of Appeal, the matter was reallocated to Honourable Justice E . P Mwikisa. 4.0 APPLICATIONS BEFORE HONOURABLE JUSTICE E. P MWIKISA 4.1 Application for substitution of the Plaintiff - On 4 th August 2020, Nkomesha Peter Nkomesha, filed into Court an application for an Order for substitution of the Plaintiff, as the Plaintiff David Kang'ombe Bulaya had died on 28th September 2019. According to the applicant, he was in place of the deceased appointed Senior Chief Kang'ombe . 4 .2 There is no indication on the record that this application was ever heard. 4.3 Combined application for an Order for alteration of a party, Joinder of a party, amendment of the writ of summons and statement of claim and for an order of interim injunction was made by Nkomesha Peter Nkomesha on 31 st May 2021 . 4. 4 There is no indication on the record that there was a hearing in respect to these applications. However at page, 222 of the record, there is an Order dated 3 rd June 2021, -JlO- for alteration of the party, joinder of the party and amendment of the writ of summons and statement of claim en dorsed by Mwikisa J. There is no evidence on the record that this Order was ever appealed against. It is therefore still subsisting. 4.5 Parad oxically, Mwikisa, J granted an ex parte Order of interim injunction, shown at page 223 of the record, with the same wording as the earlier ex parte Order for an inj unction which had been granted by Lengalenga J. This injunction application was never given a retu rn date for inter p artes hearing. 5.0 NOTICE OF MOTION TO DISMISS MATTER ON A POINT OF LAW 5.1 On 13 th July 2021 , the advocates for the 1 st Defendant filed a notice of motion pursu ant to Order 33 / 3 and 14A (1) and (2) RSC, for an Order to dismiss the action for the following legal reasons: (i) That the Plaintiff in this matt er died on or about 2018 and since then there was no legally recognized person to proceed with the proceedings as required by law i.e an -Jll- administrator or a person granted probate in accordance with the existing law. (ii) That in the absence of the legally recognized person to proceed with the proceedings commenced by the plaintiff in his personal capacity as a legal person, the court is called upon to determine why the current proceedings should not be dismissed for want of a legally recognized party; (iii) That the purported party has no legal standing to be a party to these proceedings and to move the court pursuant to the summons he filed into court on 31 st May 2021, and the court is called upon to determine why these summons should not be dismissed for abuse of court process as the same applicant also deposed to an affidavit for a similar application filed before court on -J12- 4th August 2020, and still pending before court seeking similar relief to substitute the plain tiff and thus he is on notice of the affidavit in opposition filed thereto, in which it has been argued that he is not qualified to substitute the deceased plaintiff, that only a person with probate or his administrator can do so. 6.0 RULING OF THE COURT BELOW 6.1 In the ruling delivered on 21 st February 2023, Mwikisa J, after consideration of the affidavit evidence and skeleton arguments, expunged the affidavits deposed to by the learned Counsel for the 1 st Defendant. The learned Judge was of the view that the affidavit ought to have been sworn by the 1st Defendant and not Counsel. The learned Judge based this finding on the case of Chikuta v Chipata Rural District Council. 1 6.2 The learned Judge further opined 1n her ruling of 30th December 2019 that, the issues or questions, which had been brought for determination before her, were already -J13- dealt with by Lengalenga J, a court of equal jurisdiction, and were therefore res judicata as held in the case of Bank of Zambia v Jonas Tembo & Others2 . 7.0 THE APPEAL 7 .1 Disenchanted with the ruling, the 1 st Defendant (now the 1st Appellant) appealed to this Court advancing ten (10) grounds of appeal as follows : (i) The learned Judge in the court below erred at law and facts by Jailing to adjudicate on the matters that were presented before her; (ii) The learned Judge in the court below erred at law and facts by allowing and joining ex parte, a person alien to the proceedings, who not being the legally appointed personal representative of the deceased plaintiff that commenced the matter in his individual capacity, to carry on the proceedings after the death of the plaintiff without producing proof -J14- of being the legally appointed personal representative of the deceased plaintiff; (iii) The learned trial Judge erred in law when she permitted a non-party to the proceedings to make an application for substitution of the plaintiff and further swear an affidavit in opposition to an affidavit in support of notice of motion to dismiss matter on a point of law when such party had no locus standi to do so at law; (iv) The learned Judge in the court below misdirected herself in rendering her ruling that the questions for determination raised before her were res judicata as they were already dealt with by her learned sister Justice Lengalenga (retired) in a previous ruling dated 30th December 2016 when in fact not, as the l • -J15- questions for determination before her were completely different; (v) The learned Judge in the court below fell in grave error at law and facts when she expunged the whole affidavit sworn by Counsel seized with the conduct of the matter on the ground that the facts deposed to were hearsay when the facts deposed to by Counsel were legal facts well within the scope of his personal knowledge and not hearsay; (vi) The learned Judge erred in facts and law when she rendered a ruling selectively without attending to all pending applications, which included an injunction granted ex parte to the respondent dated 31 st May 2021 which injunction has remained in effect till date without an inter partes hearing; . . - -J16- (vii) The learned trial Judge erred in law when she heard and granted an ex parte Order on 31 st May 2021 joining the 2 nd Appellant to the proceedings without according him an opportunity to be heard during an inter-partes hearing; (viii) The learned Judge below erred by maintaining the 1 st Appellant as a party to the proceedings despite the ruling of her learned sister Justice Lengalenga of 30th December 2016, clearly removing him as a party from the proceedings, and in maintaining the parties to the proceedings as they were at the initial stage of the proceedings, thereby effectively reversing the ruling of Justice Leng a lenga; (ix) The learned Judge in the court be low erred by awarding costs against the named plaintiff in her ruling and then I • -Jl 7- she was in substantial error and misdirected herself in the entire procedural and factual issues related to the entire matter before her; (x) The Appellant further apply for the transfer of the entire matter in the court below to another court/Judge of competent jurisdiction to deal with the matters therein, considering the cause of action, a subject of the proceedings, and in view of the constitution provisions related to issues of Chiefs. 8.0 ARGUMENTS IN SUPPORT OF THE APPEAL 8 .1 We shall not recap the same here but will do so in the Judgment, where the need to do so arises. 9.0 RESPONDENTS ARGUMENTS IN OPPOSITION 9 .1 The 1 st and 2 n d Respondents did not file any heads of argument and neither were they in attendance at the hearing. Equally the interested party did not file any heads of argument. t . 10.0 ANALYSIS AND DECISION -JlS- 10 .1 After considering the grounds of appeal, the Ruling being impugned and the arguments by the parties, we are of the view that the Appellants have ingeniously sneaked in grounds of appeal which do not arise out of or speak to the Ruling being impugned. Order 10 /9 (2) CAR, provides as follows: "A memorandum of appeal shall set forth concisely and under distinct heads, without arguments or narrative, the grounds of objection to the Judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively" (the underlining is ours for emphasis only) 10.2 The Appellant is attempting to use this appeal to bring before us issues not related to the Ruling being impugned, as well as use this as a platform to ask us to address decisions and Orders which were made in the court below, but were never appealed against. The ' . .. . -J19- grounds affected are grounds two, three, six, seven, eight and ten. These six (6) grounds offend Order 10 /9 (2) CAR and are therefore expunged from the memorandum of appeal and therefore only leaving grounds, one, four, five and nine for our determination. 10.3 We will deal with ground four first and then grounds five, one and nine, in that order. 10 .4 Ground four attacks the learned Judge's finding that the issues raised by the Appellants were res judicata. Clearly the learned Judge erred. An examination of the issues which were before Lengalenga J, and the ones the learned Judge in the court below was being called upon to determine were totally different. The issue before Lengalenga J, was the description of the party as to whether the 1 s t Defendant should be sued in his personal capacity or as a corporate sole/institution of Chieftaincy. Whilst the issues before the learned Judge were questioning the legal standing, of the Plaintiff as a party, post the death of the plaintiff. There is no basis on which the issues can be said to be the same. ' I 10.5 Ground five, attacks the expunging of the affidavit -J20- deposed to by Counsel. Our view is that the 1 st Defendant having raised a legal issue, Counsel was deposing to issues which were already on the court's record and within his knowledge. The Supreme Court, in the case of Post Newspapers Limited v Rupiah Bwezani Banda3 , held that the Chikuta case did not impose a blanket ban on the swearing of affidavits by Counsel, even in procedural applications. In our view, the learned Judge should not have expunged the affidavits. If there were certain paragraphs which were hearsay, those specific paragraphs ought to have been expunged from the affidavit and not the entire affidavits. 10.6 In any case, the issues having been raised by notice of motion and not summons, there was no mandatory requirement that they be accompanied by an affidavit. The learned Judge having expunged the affidavits, should still have proceeded to determine the issues before her. The expunging of the affidavits should not have been .. -J21- used to refuse to pronounce herself on the issues especially that they were not res judicata. 10. 7 In the view that we have taken, the learned Judge erred by failing to adjudicate on the issues. Consequently the first ground of appeal is in that respect also upheld. 10.8 As regards the issue of costs, which has been raised under ground nine, in view of our determination above, the Order for costs in the court below is set aside, as it was not justified. 10.9 As earlier alluded to, in order to facilitate for progression of the matter herein which has seen very little movement, if any, since 2016, we shall in accordance with Section 24 (1) (a) CAA make the following orders and directives. (l)The matter shall be remitted back to the High Court before a different Judge. (2)The parties in the court below, in view of the Orders earlier made which have not been appealed against, shall stand as follows: Chief Kang'ombe Plaintiff and -J22- Senior Chief Sikufele 1 st Defendant Attorney General 2 nd Defendant (3)The ex parte Order for an injunction which was granted by Mwikisa J , is accordingly set aside, as it was an abuse of the court process, as there was already another ex parte Order of similar nature granted by Lengalenga J, on 13th July 2016, appearing at page 122 of the record. (4)As regards the ex parte Order of 13th July 2016 which was granted by Lengalenga J, we are of the view that this is another abuse of the court process. In the English case of The Earl of Mexborough v Bower4 Lord Langdale MR, had this to say on the granting of ex parte injunctions. "The granting of an ex parte Order of injunction is the exercise of a very extra ordinary jurisdiction and therefore the time at which the plaintiff first had a choice of the act -J23- complained of will be looked at very carefully in order to prevent an improper Order from being made against a party in his absence." In ou r jurisdiction Ngulube CJ, sitting as a High Cou rt Judge in th e case of Edward Jack Shamwana v Levy Mwanawasa5 speaking to the granting of ex parte injunction Orders guided in t h e following m anner: "Any Judge faced with an ex parte application for an injunction is duty bound to critically examine and not gloss over such application and to be satisfied that the situation revealed justifies an Order on an urgent basis pending an inter partes hearing shortly thereafter... Let me take the opportunity to dispel the notion, which unfortunately seems to be widely held that ex parte injunctions -J24- are available more or less as a matter of course; almost automatically for the asking. They are not and in this regard, I wish to draw attention to Order 29 RSC 1993 White Book, especially the discussion at Order 29 / 1 / 8. I also wish to borrow from the language of paragraph 105, Halsbury's Laws of England, 4 t h Edition, Volume 24 that an injunction will not usually be granted without notice, but if the court is satisfied that the delay caused by proceeding in the ordinary way might entail irreparable or serious mischief, it may make a temporary Order ex parte upon, such terms as it thinks just." The Edward Jack Shamwana1 case was preceded by Practice Direction No. 1 of -J25- 1993, which for effect we have been compelled to reproduce in full and it states as follows; "PRACTICE DIRECTION No. 1 of 1993 Ex Parte Interlocutory Injunctions etc The attention of Practitioners is invited to the following practice and procedure to be adopted in connection with ex parte applications for interlocutory injunctions, interim attachment of property, stay of Judgment or of execution and similar application: 1. In an action between two or more parties, it is a normal requirement of justice that the other side should be notified and heard before an Order is made against them or adverse to their position. This principle is amply reflected in for example RSC Order 29 (see 1993 Supreme Court Practice) as well as in our own High Court Rules Orders 26 and 27 .. . -J26- 2. Ex parte applications described above are justified only when the case is one of real urgency and the Order obtained should generally be expressed to be until a certain day unless a Judge or Registrar otherwise directs. 3. As a general practice, all such ex parte applications and Orders obtained must be followed by a hearing inter partes within a reasonable time unless a Judge or Registrar for good cause shown otherwise directs 4. It will be the duty of the party who obtained the ex pa rte Order to issue a summons or otherwise make provision on the Order to issue a summons or otherwise make a provision on the Order for the endorsement of a date for inter partes hearing. In default the other side may issue the summons." -J27- A glare of the actions which the defendant in the court below was seeking to restrain clearly shows that they were not of an urgent nature to satisfy the granting of an ex parte Order. As earlier alluded to, the Order has subsisted for eight (8) years without hearing the parties inter partes. Although Practice Direction No. 1 1993 is directed at Legal Practitioners, it is in our view a tool of good use which should also guide Judges on the granting of ex parte injunction Orders. We see no irreparable damage which would have been caused to the Applicant if the ex parte injunction was not granted and the court below had proceeded by way of inter partes hearing. In the view that we have taken, this is a proper case for discharging the ex parte injunction Order which was granted by Lengalenga, J and we accordingly discharge the same. We direct and Order the Judge in the court below, to -· . . - -J28- whom this matter shall be referred to issue summons for the inter partes hearing. (S)The Judge in the court below to issue Orders for direction. 10.10 As regar ds costs, we a re of the view that each party bears its own costs here and the lower cou rt, as they h ave also in a way both contributed the confusion in the court below. . COURT OF PEAL JUDGE . COURT N . A. SHARPE-P IRI COURT OF APPEAL JUDGE