Evance Chikumbi v Rodrick Phiri and Ors (APPEAL NO. 79/2024) [2025] ZMCA 18 (24 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 79/2024 ( Civil Jurisdiction) BETWEEN: EV ANCE CHIKUMBI AND 2 4 FEB 2025 REGISTRY APPELLANT RODRICK PHIRI & 16 OTHERS RESPONDENT Coram: Makungu, Banda-Bobo, and Muzenga, JJA On the 6th and 24t h February 2025 For the Appellant: Mr. B. Mwelwa with Mr. B. Phiri both of Messrs. Mwelwa Phiri & Partners. Mr. J. Malambo of Messrs Dove Chambers For the 1st Respondent: Mr. A. Tembo of Messrs Tembo Ngulube & Associates. JUDGMENT MAKUNGU JA, delivered the Judgment of the Court. Cases referred to: 1. Muma Alfred Banda, suing as Chief Kapa of the Bisa-speaking people, and another v. Clement Bwalya and others application No. 93 of 2019. 2. Tawela Akapelwa (sued as Induna Inete) & Others v. Josiah Mubukwanu Litiya Nyumbu (suing as Chief Chiyengele), SCZ/004/2015 3. American Cyanamid Company v. Ethicon Limited (1975) 1 ALL ER 504 4. Hillary B ernard Mukosa v. Michael Ronaldson, SCZ Judgment No. 7 of 1993 5. Shell & B. P Zambia Limited v. Conidaris and Others ( 1975) ZR 17 4 (S. CJ 6. Zimco Properties Limited v. Lapco Limited (1988 - 1989) ZR 92 1.0 INTRODUCTION 1.1 This interlocutory appeal emanates from a ruling by Honourable Mrs. Justice S . K. Newa of the High Court, delivered on 9 th August 2022. In her ruling, she granted an injunction to restrain the selection of Chief Ngabwe and any other actions related to the recognition and installation of Chief Ngabwe until further notice from the Court. 2.0 BACKGROUND 2 .1 In the Court below, the respondents were the plaintiffs who brought this action against the appellant and 6 others. The appellant was the 4 th defendant. For clarity, in this part of the Judgement, we shall refer to the parties according to their designations in the lower Court. 2.2 The plaintiffs commenced this action on 3rd December 20 19 , by way of writ of summons accompanied by a statement of claim. On the same date , they filed exparte summons for an order of interim injunction to restrain the defendants from proceeding with the election of a new Chief Ngabwe VII which was scheduled for 6 th December 2019. The exparte order was granted on 5th December 2019, returnable on 10th December 20 19. -J2- 2 .3 The matter was not heard inter-partes. However, leave to commence contempt proceedings was granted and the same commenced. Various applications were made in the matter before the hearing of the application to discharge the order of injunction. 3.0 PLAINTIFFS' CASE 3.1 The plaintiff's case 1s detailed in an affidavit sworn by Rodrick Phiri on his own behalf and on behalf of 16 other plaintiffs. 3.2 The substance thereof is that after the death of Chief Daniel Kalebuka, a meeting was held on 9 th August 2018. This meeting, attended by nine royal families of the Ngabwe Chiefdom at Ngabwe Basic School, aimed to constitute the Ngabwe Royal Establishment Committee (NREC). Following its establishment, the NREC created a constitution giving it the mandate to arrange programs for selecting a new chief. 3 .3 On 10th June 2019, after the death of the 6 t h Chief, Dr. Ignatius Mawala Kashoka, the NREC implemented programs for the selection of a new Chief Ngabwe. On 17th November 2019, the Chairperson of the NREC issued a notice stating that the election for the new Chief Ngabwe would take place -J3- on 6 th December 2019, at the Ngabwe Local Court. This notice also specified that the 4 th defendant, now appellant, and five others were the only candidates in the election, which contradicted Article 11 of the constitutional guidelines. Article 11 stipulates that the Royal Family Tree of the Ngabwe abena Pumpi clan must be followed in the selection process. None of the six candidates chosen by the committee's chairperson were from the key royal families in Lupumpaula, Shakapanga, and Shibweno villages, essential for preserving the Ngabwe abena Pumpi clan's royal lineage. 3.4 The 1st plaintiff Rhodrick Phiri and the 2 nd to 10th plaintiffs, all originated from the royal family but were not selected as candidates. Similarly, the 11 th to 15th plaintiffs, originated from Lumpumpaula village, the royal family of Chief Ngabwe I and VI but were also omitted from the candidate list. 3.5 The plaintiffs claimed that the chairperson of the NREC erroneously issued invitations to the 4th defendant's installation ceremony as the new chief. Additionally, Senior Chief Mukuni Ng'ombe did not consent to the 4 th defendant's installation due to procedural violations. 3.6 Consequently, the plaintiffs applied ex-parte for an interim injunction to restrain the defendants from proceeding with -J4- the election of Chief Ngabwe VII which was scheduled for December 2019. An ex-parte order was granted on 5 th December, 2019 and returnable on 10th December 2019. On 1st July 2021 , the defendants applied to discharge the said order of injunction. The 6 th defendant filed summons to discharge the same injunction on 17th December 2021. 4.0 THE 4TH DEFENDANT'S CASE 4 .1 In brief, the 4 th defendant's case was that after the death of Dr. Ignatius Mwala Kashoka, Chief Ngabwe VI, on 10th June 2019, the NREC, following its constitution, initiated programs for selecting a new Chief. 4.2 On 13th July 2019 , at Mumeno village, the queen mothers, who are responsible for choosing Chief Ngabwe, convened a meeting and elected the 4 th defendant as Chief Ngabwe to succeed the late Dr. Kashoka. This selection was followed by a letter of recommendation dated 20th July 2019, from the Lamba Lima Royal Council of Zambia to the Provincial Chiefs and Traditional Affairs Officer of Kabwe , Central Province, for the recognition of the 4 th defendant as Chief Ngabwe. On 14th November 2019 , the 4th defendant was -JS- installed as Chief Ngabwe VII and given the instruments of power, following all customs and traditions. 5 .0 ARGUMENTS BY THE 4 TH DEFENDANT IN THE LOWER COURT. 5.1 Counsel for the 4 th defendant argued that when the plaintiffs obtained an ex parte order for an interim injunction on 3 rd December 20 19, to stop the elections scheduled for 6 th December 2019, they were fully aware that the elections they sought to stop had already taken place on 13th J uly 2019. Th erefore, there was no election to stop at th at time. They relied on the case of Muma Alfred Banda, suing as Chief Kopa of the Bisa-speaking people , and another v. Clement Bwalya and others, which establishes the principle that what has already been done cannot be restrained. 5.2 Additionally, the plaintiffs were accused of not making full disclosure when applying for the injunction. 5 .3 In response, counsel for the plaintiffs argued that the injunction sh ould be confirmed because a review of the 4 th defendant's documents revealed that h is selection as chief lacked authenticity. -J6- 6.0 5THAND 6TH DEFENDANT'S CASE 6.1 Although both the 5th and 6 th defendant are not parties to this appeal, it should be noted that their claims are significant to the outcome of the case. 6 .2 In the Court below both the 5 th and 6th defendants claimed that they had been selected as Chief Ngabwe respectively. That the 4 th defendant was a mere candidate like them. 7.0 DECISION OF THE LOWER COURT 7 .1 Upon reviewing the evidence, the lower court found that there were contentious issues that could only be resolved at trial. 7.2 The court distinguished the case of Muma Alfred Banda and Another v. Clement Bwalya and Others, 1 from the present case. She observed that in the Muma case, the injunction was discharged because the order restraining the chiefs installation was issued after the installation had already occurred. In the present case, however, the 4 th , 5 th and 6 th defendants claim to have been chosen as Chief Ngabwe with the 4 th defendant claiming to have been selected as Chief Nganbwe before the ex parte order was granted to restrain -J7- the selection purportedly scheduled for the 6 th December 2019 . 7 .3 The Judge found that these circumstances raised questions about whether Chief Ngabwe had been selected by the time the injunction was granted, a s it was impossible for both the 4 th and 6 th defendants to have been selected simultaneously. The pleadings raised questions as to who qualifies to be selected as Chief N gab we. 7.4 The Judge, therefore, held that it was necessary to preserve the status quo, stating that there is no Chief Ngabwe until all the contentious issues are resolved. Consequently, the Judge varied the injunction order to restrain not only the selection of Chief Ngabwe but also any related actions, including meetings for selection and acts concerning the recognition and installation of a chief, until further court orders are issued. 7.5 Henceforth, we shall refer to the parties according to their designations before this Court. 8.0 GROUNDS OF APPEAL 8 .1 Dissatisfied with the decision of the court below, the appellant has advanced the following sole ground of appeal: -J8- "That the learned trial Judge erred in law and fact when she held that there is need to preserve the status quo, which is that there is no Chief Ngabwe until all the contentious issues are resolved. I accordingly vary the order of injunction pursuant to the inherent jurisdiction of the Court, to direct that the order of injunction shall restrain the selection of Chief Ngabwe and any other acts in pursuance of the said selection, including the holding of any meetings to so select the said Chief, and any other acts relating to the recognition and installation of the chief." 9.0 APPELLANT'S HEADS OF ARGUMENT 9.1 Durin g the appeal hearing, Mr. Mwelwa, Counsel for the appellant relied on the heads of argument filed on 4 th April 2024. He submitted that after the death of Dr. Ignatius Mwala Kashoka - Chief Ngabwe VI, on 10th June 2019, there was need to select a new chief. On 13 th July 20 19 the queen m others who have the responsibility of ch oosing Chief Ngabwe convened a meetin g at Mumen o village to select a new Chief Ngabwe. At that meeting, the appellant was selected as th e new Ch ief Ngabwe. The selection of the -J9- appellant was followed by a letter of recommendation dated 20 th July, 20 19 from the Lamba- Lima Royal Council of Zambia to the Provincial Chiefs and Traditional Affairs Officer in Kabwe, Central Province for the recognition of th e appellant as Chief N gabwe. 9.2 On 14th November 2019, the appellant was installed as Chief Ngabwe VII for the Nga bwe District of the Central Province and ceremoniously introduced to the people of Ngabwe Chiefdom as th e n ew Chief. The traditions and customs of the Ngabwe people were strictly followed during the installation of the appellant as contained in the Minutes of the meeting h eld on 14th November 2 01 9 . 9.3 On 19 th November 20 19, the Ngabwe Royal Family wrote to the Permanent Secretary for the Ministry of Chiefs and Traditional Affairs requesting for the recognition of the a ppellant as the n ew Chief Ngabwe following his selection and installation. From the 19 th November 2019, to the date of the injunction appealed against, the appellant had been discharging chiefly duties within the Chiefdom. 9 .4 Based on the foregoing, counsel contended that the learn ed trial Judge erred both in law and fact when she granted an interlocutory injunction dated 9 th August 2022, when the -Jl0- appellant had already been selected as chief and was formally introduced to the people as per the customs and traditions. 9. 5 Counsel argued th at the ruling dated 9 th August 2022, injuncted acts that had already taken place, as the appellant had already been installed. To support this argument, he relied on the case of Shell & B. P Zambia Limited v. Conidaris and Others, 1 where the Supreme Court held as follows : "A court will not generally grant an interlocutory injunction unless the right to relief is clear and unless the injunction is necessary to protect the plaintiff from irreparable injury; mere inconvenience is not enough. Irreparable injury means "injury which is substantial and can never be adequately remedied or atoned for by damages. " 9 .6 Counsel further argued that an interlocutory injunction can only be granted in circumstances where the party seeking it has a good and arguable claim as stated in the case of Hillary Bernard Mukosa v. Michael Ronaldson. 2 -Jl 1- 9.7 He contended that the ruling dated 9 th August 2022, completely changed the status quo which was obtaining at the time that the action was commenced. He argued that the appellant is Ch ief Ngabwe and according to the law, the status quo should be maintained pending the determination of the main matter. The respondent is not entitled to an order that favors him. To support this submission counsel cited the case of Muma Alfred Banda and Another v. Clement Bwalya and Others where this Court stated that: "An interlocutory inj unction should not be granted if the action intended to be injuncted has already taken place as there would be nothing to injunct." 10.0 RESPONDENT'S HEADS OF ARGUMENT 10.1 In opposing the appeal, Mr. Tembo - Counsel for the respondent relied on the heads of argument dated 20t h June 2024. 10.2 He submitted that the lower Court was on firm ground in granting the injunction. He stated that the record will show that on 9 th August 2018, a meeting was convened and attended by nine royal families and ninrteen other families -J12- of the Ngabwe Chiefdom. They put in place the Ngabwe Royal Establishment Committee (NREC) whose mandate was to create constitutional guidelines to regulate and guide the Chiefdom in areas of succession and selection of a new Chief. The Constitution gives the NREC authority to arrange programs for the selection of a new chief. 10.3 After the death of Chief Ngabwe VI, the NREC put in place programs for the selection of the new chief. The selection of Chief Ngabwe was scheduled to take place on 6 th December 2019. The notice of meeting indicated that the appellant and 5 other defendants in this matter were the only candidates in the election of Chief Ngabwe contrary to Article 11 of the Constitution of Zambia. 10.4 Counsel contended that from the 6 candidates chosen by the chairperson of the committee, no candidate originates from the Lupumpaula village, Shaka-panga village and Shibweno village where the royal families stay. That the Royal family tree ought to be preserved. The 1st respondent and the 2 nd to 10th respondents all originate from the royal family resident in Shibwengo Village. Unfortunately, they were not selected as candidates in the election of Chief N gabwe. The 11 th to 15th respondents originate from the royal family settled at -J13- Lumpumpaula village from which Chief Ngabwe I and Chief Ngabwe VI originated but none of them was chosen as a candidate to vie for the election. 10. 5 Counsel stated that the record reveals that the chairperson of the NREC erroneously issued an invitation for the installation of the appellant. Following the same, there was a letter from Senior Chief Mukuni Ngombe requesting the police to stop the illegal installation of the appellant as the new Chief Ngabwe (see page 267 of the record of appeal). Ever since ChiefMukuni Ngombe made the same reprimand, the 2 nd defendant Friday Jishomwa has distanced himself from the appellant and his attempts to illegally enthrone himself as the next Chief Ngabwe. 10.6 Counsel argued that in this case, the respondents have established a clear claim of right by showing their interest in the election of the new Chief Ngabwe. The respondents have an equitable interest in the matter. 10.7 Further, there are 3 defendants in the Court below who all claim that they were already selected to become Chief Ngabwe and so the injunction is necessary to maintain the status quo until all claims and counterclaims are fully determined on their merits. -Jl4- 10.8 He further submitted that there would be a miscarriage of justice if the ruling were set aside. 11.0 ORAL ARGUMENTS 11.1 Mr. Mwelwa, counsel for the appellant submitted that the injunction sought by the respondent was to stop the election on 6 th December 2019 which had already taken place as the appellant was chosen as Chief Ngabwe on 13th July 2019 and later installed. He reiterated that according to the Muma Alfred case supra, you cannot injunct what has already occurred. 11.2 In response, Mr. Tembo submitted that there are senous contestations by the parties where three out of six defendants all claim to have been selected as Chief Nga bwe. The record contains purported minutes confirming the selection of the appellant as Chief Ngabwe. The record is graced with similar minutes relating to selection of a chief by a different set of queen mothers. 11.3 As regards the submission that the appellant was traditionally enthroned, Mr. Tembo referred us to the appellant's affidavit on page 169 of the record of appeal wherein in paragraphs 9, 10, 11 , and 12 the appellant claims that h e was installed but in paragraph 15 h e avails a -J15- letter showing that an installation is yet to take place. Counsel contended that a person who purports to have been installed as chief would not have sworn such an affidavit. He further contended that the appellant makes contradictory statements about installation. 11 . 4 Counsel stated that no installation has taken place in this case, which distinguishes it from the Muma Alfred case. 11.5 Therefore , the Court below was on firm ground to grant the injunction because, at the time of the injunction , none of the parties had been installed. 12.0 ANALYSIS AND DETERMINATION 12.1 We have considered the evidence on record and the arguments presented by counsel for both sides. 12.2 The Supreme Court, drawing from the case of American Cyanamid Company v. Ethicon Limited3 , identified the following guiding principles for granting injunctions: 1. Whether there is a s erious question to be tried; 2. Whether damages would be adequate compensation to the plaintiff; 3. Whether the balance of convenience tilts in favour of granting the injunction to the plaintiff or in refusing to grant it; and -J16- 4. Whether the plaintiff has come to court with clean hands. 12.3 In the present case, the appellant argues that the lower court erred in granting an interlocutory injunction after the appellant had already been selected and introduced as Chief, following traditions and customs. The ruling of 9 th August 2022 , injuncted actions that had already been completed, as the appellant was already serving as the new chief. 12.4 The respondents on the other hand contended that they have raised triable issues. They asserted that candidates from the Shibwengo and Lumpumpaula villages, both royal families, were excluded from the election of a new Chief Ngabwe. They also claim that Senior Chief Mukuni Ngombe did not consent to the appellant's selection and installation, deeming it illegal due to procedural irregularities. Additionally, three other defendants claim to have been selected as Chief Ngabwe. The respondents argue that the status quo should be maintained until these issues are resolved. 12.5 On the question of whether there are serious questions to be tried, the Court below found contentious issues regarding -Jl 7 - the selection of Chief Ngabwe, specifically the 4 th , 5th , and 6 th defendants' claims that they were also selected as Chief Ngabwe. We cann ot fault the lower court for this finding. 12.6 This aligns with the principles in the Tawela Akapelwa2 case supra and th e case of Hillary Bernard Mukosa v. Michael Ronaldson4 where the Supreme Court held that: "An injunction would only be granted to the plaintiff who established that he had a good and arguable claim to the right which he sought to protect." 12. 7 As regards the appellant's con tention that there was nothing to injunct in this case as the event of h is selection and installation had already passed, we agree with the principle laid down in the Muma 1case supra, cited by counsel for the appellant that an interlocutory injunction should not be granted if the action intended to be injuncted h as already occurred as there would be nothing to injunct. 12.8 We note that the injunction was granted after the selection of the appellant as Chief Ngabwe. We however take the view that there had been n o proper coronation for the n ew chief -J 18- as seen in paragraph 21 of his defence appearing on page 59 of the record of appeal which reads as follows: "21. Following the 4 th defendant's selection as new chief to be, his name was forwarded to senior Chief Chipepo (Mukuni Ngombe) the Permanent Secretary - Central Province, the Ngabwe District Commissioner, Local Member of Parliament and the Ministry of Chiefs and Traditional Affairs for his recognition, which was curtailed by this action via an order of injunction stopping his enthronement." 12.9 The 4 th defendant counter-claimed inter alia that he was properly selected by th e Queen Mothers as new Chief Ngabwe. He did not counter-claim that he was even installed as Chief. 12.10 We therefore take the view that the lower Court aptly distinguished this case from the Muma case (supra) in that in the Muma case, the installation and coronation of the 2 nd applicant could not be reversed by an order of interlocutory injunction. 12.11 In this case, however, th e appellant, 5th , and 6 th defendants all claim to h ave also been selected as Chief Ngabwe before the application for an injunction. While we agree that the -J l 9- selection of the appellant cannot be injuncted, t he enthronem ent that has not yet occurred can be injuncted. Given the conflicting claims to the position of Chief Ngabwe , the question of who qualifies as chief must be resolved after a full trial. 12.12 Regarding wh at constitutes harm, the Supreme Court in the case of Shell & B. P Zambia Limited v. Conidaris and Others5 held that: "Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages." 12.13 We take the view that if the appellant's installation as Chief Ngabwe is allowed to take place without resolving the ongoing disputes, it could cause irreparable harm to the rights and interests of the respondents in an event that the issues raised are not resolved in favour of the appellant. 12.14 The potential undermining of the traditional leadership structure that would arise from leaving things as they are before judicial determination of the questions raised, would also result in irreparable harm to the respondents. -J20- 12.15 In the case of Zimco Properties Limited v. Lapco6 the Supreme Court stated as follows: "We must make it clear that the question of balance of convenience between the parties only arises if the harm done will be irreparable and damages will not suffice to recompense the plaintiff for any harm which may be suffered as a result of the actions of the defendant which it is sought to restrain ... " 12 .16 We are of th e view that th e balance of convenience is in favour of th e responden t . It would n ot be in the interest of th e Ch iefdom to allow thr ee Chiefs or more to carry out chiefly functions. It also seems that none of the t hree claimants have completed th e passage of r ites to becoming Chief. Th at is why th e lower cou rt's decision to use her inherent power to issue an injunction to prevent any furth er actions related to the selection and installation of Chief Ngabwe is con sistent with the need to prevent further disputes, maintain stability, and u phold the integrity of traditional governance until the disputes are resolved. -J21- 13.0 CONCLUSION 13.1 All in all, the appeal partially succeeds. In as much as th e selection of the appellant cannot be injuncted as it has already occurred, we uphold the lower Court's use of its inherent power to make an order to maintain the status quo by restraining any oth er selection and installation of any already selected Chief Ngabwe . Until after trial and determination of the matter, it is appropriate and necessary to protect the interests of all parties involved. Each party will bear its costs for the appeal. COURT OF APPEAL JUDGE ··················· ······~ COURT OF APPEAL JUDGE A. M. BANDA - BOBO K. MUZENGA COURT OF APPEAL JUDGE -J22 -