Clement Bwalya and Ors v Muma Alfred Banda (sued in his capacity as Senior Chief Kopa of the Bisa Speaking People) and Anor (CAZ/08/331/2019) [2019] ZMCA 390 (13 December 2019)

. .,. IN THE COURT OF APPEAL F OR ZAMBIA CAZ/08 / 3 3 1/2019 Rl HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CLEMENT BWALYA TISA MAINI JAMES PAULANDE SHILLA BWALYA AND 1st APPLICANT 2 nd APPLICANT 3 rd APPLICANT 4 th APPLICANT MUMA ALFRED BANDA (sued in his capacity as Senior 1st RESPONDENT Chief Kopa of the Bisa Speaking People) KEPHAS CHIMANO KADEWELE 2 nd RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Applicants: L. E. Eyaa, Messrs Eyaa & Partners. For the Respondents: K. Kombe, & K. Parshotam, Messrs Andrew & Pa rtner s W. Mutofwe, Messrs Willa Mutofwe & Associates RULING Cases referred to: 1. American Cyanamid v Ethicon Limited (1975) 2 W. L. R. 316 2. Shell and BP Zambia Limited v Conidaris and Others (1975) ZR 174 3. Zambia State Insurance Corporation Limited v Dennis Mulikelela ( 1990-1992) ZR 18 4. Communications Authority v Vodacom Zambia Limited (2009) ZR 196 5. Hubbard v Vosper [1972] 1 All ER 1023 6. Zimco Properties Limited v Lapco Limited (1 988 - 1989) Z. R. 92 (S. C. ) 7. Turnkey Properties V Lusaka West Development Co Limited (1984) ZR 85 R2 Legislation referred to: 1. The Supreme Court Practice, White Book 1999 Edition. 1.0. INTRODUCTION 1.1. This is a renewed application by the applicants for an order of interim injunction pursuant to Order 29 Rule 2 of the Rules of the Supreme Court of England 1 . At the hearing of the matter, Mr. L. E. Eyaa, on b ehalf of the applicants submitted that they would place r eliance on the affidavit in support of their a pplication and the skeleton arguments filed into court on 22nd October, 2019. In reply, Mr. K. Lombe, on behalf of the respondents informed the Court that the respondents filed a comprehensive affidavit in opposition, which he too would rely on. 2 .0. BACKGROUND 2.1. The brief background to this application is that the applicants commenced court process before the High Court against the 1st a nd 2nd respondents on 15 th October, 2 019 by way of writ of summons and statement of claim together with an ex-parte application for an interim order of injunction seeking an order to restrain the 1st respondent, his agents servants, or whosoever acting under the 1st respondent's directions from availing the 2 nd R3 respondent as the successor to the throne of Na Bwalya until the final determination of the matter. 2.2. The Judge in the Court below heard the application for an injunctive order on the same day the application was filed, and declined to grant the application based on two reasons. Firstly, that he found no urgency in the matter as equity assists the vigilant and not the indolent and secondly, that the application was unjust in that it offended the rules of natural justice namely audi alterem partem. 3.0. MAIN APPLICATION 3. 1. I have considered the affidavit in support of the renewed application for an ex-parte summons for an order of interim injunction sworn by Shilla Bwalya, the 4 th applicant herein. She avers that the lower Court's refusal of the injunctive order was premised on the grounds that the applicants had taken time in launching the application and as such , the Court saw no urgency in the matter. Further, that the lower Court was of the view that granting the injunctive order would not be in the interest of the Chiefdom. 3.2. The deponent averred that the late Chief Na Bwalya, Blackson R4 Somo, passed away on 20 th August, 2018 and that the custom and traditions of the Bisa speaking people is matrilineal in nature. She averred that a successor must be chosen by the Electoral College which is comprised of the "queens" who are the mother to the late chief, her sisters and their respective daughters and grand daughters. The deponent averred that she is the late Chief Na Bwalya's niece, her mother being Milika Katalala, an aunt to the late Chief and that she is a member of the Electoral College. She averred that for one to qualify as a candidate for the position of a chief, he must fall in one of the following categories- a. start with the Senior Family of the late chief into the descending order; b. niece or nephew of the late chief from any one of his female siblings and/ or cousins. 3 .3. It is further averred that in choosing a candidate from the mentioned categories, priority is given to the late chiefs immediate family, that is the family of the late chiefs sisters'/female cousins in a descending order, starting from the eldest to the youngest. The deponent averred that the candidate chosen to be the RS successor of the late chief is then presented to any one of the senior chiefs of the Bis a speaking people. The senior chief then presents the new chief to the people of the chiefdom as their chief in a ceremony called a coronation. 3.4 . It was also averred that under the Bisa customs and tradition, once a Bisa chief dies, an acting chief is appointed to superintend over the chiefdom during the one-year mourning period. It is averred that it is only the acting chief who is seized with power and responsibility to determine the date and time, to call for a meeting to select a new chief after satisfying himself that all the requirements of the Bisa customs and traditions relating to selecting a new chief have been complied with. 3.5. It was averred that the procedure highlighted above was not followed by the 1 s t respondent in choosing the 2 n d respondent as the successor to the throne of Na Bwalya chiefdom and that the 1 st respondent abrogated the procedure outlined by the customs and traditions of the Bisa speaking people by single handedly choosing the successor of the late Chief Na Bwalya. The deponent averred that according to the Bisa customs and traditions, on 24th August, 2018 when chief Na Bwalya was being buried, the R6 Electoral College chose the acting chief Na Bwalya by the name of Felix Sumani Chimano Mutange. 3.6. That in respect of his duties and responsibilities, the acting chief called a meeting to select a successor to the throne on 15th June, 2019 and that the meeting was attended by Senior Chief Kopa, ChiefMpumba, and Chief Kabinga among others. It is averred that during the meeting, Senior Chief Kopa who is the 1st respondent herein interfered with the proceedings and therefore a successor to the throne was not appointed and another meeting was scheduled for 20th August, 2019. Unfortunately, the acting chief died on 13th August, 2019 thus making it impossible for the meeting scheduled for 20th August, 2019 to take place. 3.7. It is averred that another meeting was later scheduled t o take place on 13th September, 2019 and its business was to appoint another acting chief Na Bwalya who was to supervise the process of choosing the successor to the Na Bwalya throne. It is further averred that during the said meeting, the 1st respondent, Chief Kabinga, and Chief Matipa changed the business of the day from choosing and acting chief, to choosing of the new Chief Na Bwalya, contrary to the Bisa customs and traditions. That the said chiefs R7 tried to force the Electoral College to select the 2nd respondent as Chief Na Bwalya which refused to do as it was against the Bisa customs and tradition. 3.8. Due to this confusion , no acting chief was chosen and it was agreed that a meeting to choose the Chief Na Bwalya was scheduled for October, 2019, after the Electoral College would choose the acting chief. The deponent avers that on 11 th October, 2019, without consulting the Electoral College, and contrary to the Bisa customs and traditions, the 1st respondent called a meeting in Mpika town to choose the 2 nd respondent as successor to the throne outside the Na Bwalya Chiefdom and the coronation was scheduled to take place on 15th October, 2019. She avers that the 1st respondent banned members of the Electoral College from participating in the purported meeting. 3.9. It is averred that the Electoral College went on and conducted a meeting in Na Bwalya Chiefdom and chose their preferred candidate as successor to the throne by the name of Clement Bwalya. That the 1s t respondent has scheduled the coronation of the 2nd respondent to take place on 26 th October, 2019, and that the 1st applicant stands to suffer irreparable damage if the R8 coronation process is allowed to go on, as doubt will be created in the minds of the subjects of Na Bwalya chiefdom regarding the to legitimacy of the 1st applicant's rising to the throne of Chief Na Bwalya. 3.10. Further, that the Bisa custom and tradition will be breached and the said breach is likely to cause clashes between the two camps which may lead to breach of peace, anarchy, bloodshed and likely loss of lives amongst the subjects of Chief Na Bwalya, none of which can be atoned for in damages. 3.11. The respondents filed an affidavit in opposition to summons for renewed application for an ex-parte summons for an order for interim injunction sworn by Muma Alfred Banda and Cephas Chimano Kadewele, the respondents here. They averred that the when Blackson Somo the late Chief Na Bwalya died, Felix Sumani Chimanso Mutange was appointed acting chief Na Bwalya and ruled for more than a year and that on 15th June, 2019 the said acting chief called for a meeting to select a successor to the throne. 3.12. It is averred that the 1st respondent was at the meeting but was unable to participate as he had high blood pressure and was rushed to the hospital. That the said meeting could not reach a R9 conclusion as most the people in attendance especially from the applicant's side were drunk. It is averred the meeting was rescheduled to 20th August, 2019 but the same could not take place as the acting chief passed away. That after the burial of the late acting chief, the Bisa Royal Establishment called for a meeting on 13th September, 2019 for the purpose of selecting a new chief to the throne. The deponents averred that the Bisa Royal Establishment explained to everyone present at the meeting that there was no need of appointing another acting chief as the one who was there served for a year and the tenure had elapsed and guided the meeting that the Na Bwalya Chieftainship alternate, and that after the first chief Na Bwalya by the name of Chisenga Kalonda died, Chibeza Chombo from the "second womb" became the second Chief Na Bwalya and this is where the 2 nd respondent hails from . 3.13. It is averred that the Electoral College was present and they were informed that the 1s t applicant drew the family tree which was signed by himself and the 3rd applicant herein. That the said family tree helped the royal establishment to guide the meeting well because from the "first womb", four Chiefs had been on the RlO throne and only two from the "second womb" had ascended to the throne. It is also averred that the Electoral College sat and chose the 2 nd respondent from the "second womb" to ascend to the throne of the Na Bwalya chiefdom and that there is a video to prove that the 1st respondent did not single handedly pick the 2 nd respondent to b e on the throne. 3.14. Further, it is averred that the coronation took place on 22nd October, 2019 and that the applicants will not suffer any damages, as the 1st applicant lives on the Copper belt while the 4th applicant lives in Lusaka and both know nothing about the problems the people of Na Bwalya chiefdom are faced with. In summation, it was averred that given the circumstances and the facts on record, this court should exercise its powers and dismiss or discharge the exparte Order granted with costs. 4 .0. MY VIEW 4.1. I have had sight of the skeleton arguments in support of the application for exparte summons for an order for interim injunction. Order 29 (1) of the White book 1 provides that: "An application for the grant of an injunction may be made by any party to a cause or matter before or after t he trial of Rll the cause or matter, whether or not a claim for the injunction was included in that party's wri.t, originating summons, counterclaim or third-party notice, as the case may be." This Court was ref erred to the case of American Cynamid v Ethicon Limited1 in which the conditions to be satisfied by the applicant for an order for inju nction must be satisfied before the court can exercise its discretion to grant an injunction were espoused. The said conditions are listed as follows- 1 . Whether there is a serious question to be tried; 2 . Whether damages would be an adequate remedy to the injury complained of if the applicant were to succeed in the main and action; 3 . Where the balance of convenience lies; 4 . Whether the applicant has come to court with clean hands. 4. 2. Further the court was also ref erred to the case of Shell and BP Zambia Limited v Conidaris and Others2 where the Supreme Court held that- "no more than a set of useful guidelines which apply in many cases. It must never be used as a rule of thumb, let alone as a R12 strait jacket. The American cynamid case provides an authoritative, most helpful approach to cases where the function of the court in relation to the grant or refusal of interim injunctions is to hold the balance as justly as possible in situations where the substantive issues between parties can only be resolved by trial." 4.3. I have considered the affidavit evidence and submissions by both Counsel filed herein. Counsel for the applicant has fervently explained the principles relating to the grant or refusal of an interim injunction. The issue for me to determine is whether the applicants have met the requirements for the grant of an injunction in this matter. It is settled that a judge considering an application for an interim injunction sought, as a matter of practice, to be guided by the principles which were so clearly set out in the case of American Cynamid Company Limited. V Ethicon Limitedl . 4.4. As regards the first requirement, whether or not in the present case there is a serious question to be tried, I have closely examined the affidavit of both parties, as well as the ruling and order of the Court below. It is not in dispute that the Bisa customs and R13 traditions are matrilineal in nature and that a successor must be chosen by the Electoral College which is comprised of the "queens" who are the mother to the late chief, her sisters and their respective daughters and granddaughters. 4 .5 . The affidavit in support of this applications has attempted to explained the procedure to be followed in choosing the successor to the late chief Na Bwalya, which procedure was apparently not followed in choosing the 2 nd respondent as the successor of the late chief Na Bwalya. In my view, on the face of it, the applicants have established that there is a serious question to be tried at trial as was laid ou t by the Supreme Court in the case of Zambia State Insurance Corporation Limited v Dennis Mulikelela3 • 4.6. I turn to the issue of irreparable injury. Even where the right to relief is clear, an interlocutory injunction should only be granted where it is n ecessary to protect the applicant from irrepara ble injury, not m ere inconvenience. The authorities on this principle are many. As was stated by the Supreme Court in the case of Shell BP Zambia(supra) and reiterated in Communications Authority v Vodacom Zambia Limited, 4 irreparable injury is harm which is substantial, and can never be adequately atoned for by damages. R14 4. 7 . The Court must also, take into accou nt all the factors in addition to the a dequ acy of damages in order to make a deter mination. In Hubbard v Vosper5 Lord Denning MR said: "In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes, it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead ... The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules." 4.8 . In the same case, other members of the Court of Appeal agreed with Lord Den ning and stated as follows : 'Each case must be decided on a basis of fairness, justice and common sense in relation to the whole issues of fact and law which are relevant to the particular case .' As regards th is aspect, the applicants contended that if the injunction is not granted, the Bisa cu stom and tradition will be RlS breached and the said breach is likely to cause clashes between the two camps which may lead to breach of peace, anarchy , bloodshed and likely loss of lives amongst the subjects of Chief Na Bwalya, none of which can be atoned by damages . 4.9. On the other hand, the respondents contended that the applicants will not suffer any irreparable injury as they are non-residents of the Na Bwalya chiefdom and know nothing about the problems the people of Na Bwalya chiefdom are faced with and that the coronation took place and no anarchy has been reported. 4.10. I have examined the different positions of the parties. Custom and traditions have developed over time mostly to guide the smooth and peaceful governance of chiefdoms, therefore disregarding long standing traditions and customs which are not repugnant to natural justice will not only create confusion but also disorder. Therefore, I am of the view that if the injunction is not granted, damages would not be adequate to compensate the disorder and muddle which may erupt in the Na Bwalya Chiefdom. As regards the balance of convenience, Gardner, J. S. , in Zimco Properties Limited v Lapco Limited6 explained eloquently that- R16 "the balance of convenience arises if the harm done would be irreparable, and damages would not suffice to compensate an applicant for any harm which may be suffered as a result of the actions of the Defendant." 4 . 11. On the basis of fairness , justice and common sense the respondents' action if not stopped may bring harm which is irreparable. In Turnkey Properties Limited v Lusaka West Development Co Ltd, and Others7 it was held, inter alia, that "an interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial." The last requirement relates to the equitable principle that he who comes to equity must come with clean hands. There are allegations on the record that the ap plicants delayed in making the application for an injunction in the court below. 4 .1 2. According to the Bisa Custom and tra ditions as explained on record, the successor of the late chief Na Bwalya is chosen after a mou rning period of one year. It is on record that in June , 2019 the acing chief Na Bwalya called for a meeting to commence the process of choosing the successor to the throne. Another m eeting R17 was scheduled for 20th August, 2019, but the said meeting could not take place as the acting chief who had called the said meeting passed on. 4. 13. While in the process of mourning the acting chief and choosing another acting chief, the respond en ts started their own independent process of choosing the successor to the throne. Unhappy with the actions of the respondents, the applicants commenced the matter before the High Court on 15th October, 2019. I see no delay on the part of the applicants in bring the action and filing an application for an interim injunction. 4.14. Having found that there is a serious question to be tried, that damages would not be an adequate remedy if the injunction is not granted and that the balance of convenience lies with the applicants, I accordingly grant the interim injunction in order to preserve the status quo pending the hearing and determination of the action now pending in the High Court. 5.0. CONCLUSION 5.1. The ex-parte order of interim injunction that was granted on 22nd October , 2019 is accordingly confirmed. The matter is sent back R18 to the High Court for determination of the main matter. Costs are awarded to the applicants, to be taxed in default of agreement. Dated this 13th day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE. /