Godfrey Shamanena v Julia Kasanshi and Ors (CAZ/08/71/2023) [2023] ZMCA 377 (13 April 2023)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/71/2023 BETWEEN: APPELLANT 1 ST RESPONDENT 2 ND RESPONDENT 3RD RESPONDENT 4 T H RESPONDENT Coram: Hon. Lady Justice N .~ Sharpe-Phiri in Chambers on 13 April 2023 · For the Appellant: Mr. M. J. Numbwe of Messrs Kitwe Chambers co-advocates with Messrs Ilunga and Company For the Respondents: Mr. K. Bota of Messrs William Nyirenda and Company RULING Cases referred to: 1. John Kunda (Suing as Country Director of and on behalf of The Adventist Development and Relief Agency (ADRA)) V Keren Motors (Z) Limited (2012) Vol. 2 Z. R. 228 2 . Zambia Revenue Authority V Post Newspaper Limited, SCZ No. 18 of2016 3. Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and others SCZ 8/ 179/ 2003 Rl Legislation referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia. This is a ruling on the application to stay execution of judgment of the High Court delivered on 13 January 2023. The application has been brought by way of summons and affidavit in support filed on 14 February 2023 pursuant to Order 36 Rule 10 of the High Court Rules, Chapter 27 of the Laws of Zambia. The gist of the affidavit in support sworn by the Appellant, Godfrey Shamanena, is that in an action commenced by the Respondents in the Kitwe High Court by way of writ of summons and statement of claim filed on 13 October 2013, the Appellant was ordered by judgment therefrom delivered on 13 January 2023 to restrain from holding himself out as Chief Nkana and/ or performing the functions of Chief Nkana. He swore that the office of Chief Nkana was established under the Constitution, the Chiefs Act and that he was personally recognized by the President of the Republic of Zambia under Statutory Instrument No. 59 of 2002 . The Appellant further stated that he has since appealed against the judgment, but the Respondents have already engaged the subject of the chiefdom and proceeded to select a new chief to replace him without considering the pending appeal in this Court. He further deposed that the 4 th Respondent claims to have been selected as the new Chief Nkana to succeed him and the said 4 th Respondent also R2 claimed in the affidavit in opposition for stay granted in the lower court that he was the chosen successor but that he had failed to ascend to the throne because the lower Court granted a stay of execution of its Judgment on 21 January 2023 which was subsequently discharged on 9 February 2023. The Appellant further contended that he is seeking to be granted a stay of execution of the judgment of 13 January 2023 pending determination of appeal filed on 8 February 2023 while the parties maintain the status quo. He further stated that since he was stripped of his authority as Chief Nkana, there has been confusion in the chiefdom as there has been a leadership vacuum among the subjects. An affidavit in opposition was filed on 2 March 2023 and sworn by the 4 th Respondent. He deposed that the affidavit in support of the application clearly showed that the Appellant's address is still at Chief Nkana Palace contrary to the judgment of the lower Court which directed that he stops holding himself out as Chief Nkana. The deponent stated that the promulgation of SI No. 59 of 2002 or otherwise was immaterial under the circumstances as the trial Court found that the Appellant's ascension to the throne was null and void. The 4 th Respondent deposed that an appeal does not operate as a stay of execution adding that the process of choosing the Appellant's successor was the mandate and responsibility of Chief Mushili. He presided over the event which saw the selection of a new Chief Nkana R3 in accordance with the Lamba traditions and customs on the 20th of January 2023. He further deposed that in accordance with the Lamba tradition and custom, invitation letters for the selection of a new chief were sent out to all eligible families and the letter to the Appellant's family was received by Ms Bosnaca Shamanena (sister to the Appellant) but that the Appellant's family deliberately elected to absent themselves from the meeting. The 4 th Respondent went on to state that each of the four families has two votes, adding that the absence of the Appellant's family mattered less as he was unanimously chosen by the three families that attended. He argued that there was nothing to stay as the new Chief Nkana had already been chosen. The deponent stated further that the application had not demonstrated any merit nor special circumstance to warrant the grant of a stay of the judgment of 13 January 2023. He also added that no irreparable damage would result to the Appellant, in any case, if he succeeded on appeal, which was unlikely. The 4 th Respondent further deposed that there is no confusion in the affairs of the chiefdom as Senior Chief Mushili has since appointed a caretaker Chief in the name of Patrick Litana in accordance with the Lamba tradition and custom. The caretaker chief will be performing the roles of Chief Nkana during the transition period. The 4 th Respondent also added that the status quo that needed to be preserved if at all, is that the Appellant and himself being the eligible candidates for election/ selection as Chief Nkana while under the rule of the care taker Chief being Patrick Litana. R4 The Appellant filed an affidavit in reply on 27 March 2023. He stated that the judgment of 13 January 2023 clearly directed that the parties had to be guided by the House of Chiefs regarding the dispute and selection of a chief but that this has not yet been done. The Appellant stated that he no longer carries himself out as Chief Nkana following the judgment of the lower Court but that the said decision did not direct that he had to vacate the palace immediately. The Appellant contended that the 4 th Respondent has only exhibited an invitation to the Mushili Royal Establishment without the involvement of the Lamba Royal Establishment which must be involved in the selection of a Chief. He added that according to Lamba tradition, a chief cannot be selected and installed during the rainy season as the Respondents' process purported to achieve. He added that the three purported eligible families were not all eligible to participate as portrayed by the 4 th Respondent. The Appellant further stated that Statutory Instrument 59 of 2002 was still law in so far as the judgment of 13 January 2023 did not order its cancellation. He contended that the Respondents had proceeded to select the 4 th Respondent as chief in defiance of the lower Court's directive that the House of Chiefs be engaged to guide the process. The Appellant further contented that it was the preserve of the Court to determine whether or not his appeal had merit and not the Respondent. The Appellant implored the Court to take judicial notice of the criminal proceedings in the Kalulushi Subordinate Court in which members of the 1st Respondent's family are appearing RS on charges of malicious damage to property (at the Palace). This is evidence of the confusion that has engulfed the chiefdom since the judgment which ordered his removal from chieftaincy was rendered. The Appellant repeated that the 4 th Respondent had deliberately omitted to mention that the selection of a caretaker chief is not done by one chief but has to be undertaken by the Lamba Royal Council and that such selection should be approved by the House of Chiefs. He deposed that the appointed caretaker Chief Patrick Litana has never in history been appointed as the reigning Chief Nkana. He pointed out that the 4 th Respondent was contradicting himself when on one hand, he is advancing the notion of maintaining the status quo through the caretaker chief and on the other hand holding the validity of his selection as Chief Nkana on 20 January 2023 . I have carefully considered the affidavits on record, the skeleton arguments as well as the submissions of the parties and the relevant rules of this Court. The application before me is for an order for stay of execution of the judgment of the lower Court of 13 January 2023 pending appeal filed into Court on 8 February 2023. The application has been brought p u rsuant to Order 36 Rule 10 of the High Court Rules. The said rule provides that 'the Court or Judge may, on sufficient grounds, order stay of execution of judgment'. R6 It is trite law that a stay of execution is a discretionary remedy and that the parties are not entitled to it as a matter of right. The discretionary powers of the Courts must be exercised based on established principles. In the case of Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and others , the Supreme Court held that a stay of execution must only be granted on good and convincing reasons and that the applicant must clearly demonstrate the basis on which the stay should b e granted. Further, in the case of Zambia Revenue Authority V Post Newspaper Limited t h e Supreme Court guided on the following principles to be reflected upon wh en considering whether to grant of a stay: "Further where a Judgement or Ruling is stayable, the principles state that a stay of execution pending appeal, is a discretionary remedy. A party is not entitled to it as of rig ht. And such discretion must be exercised judiciously and on well established-principles. Firstly, the successful party should not be denied the immediate enjoyment of a judgment unless there are good and sufficient grounds. Stay of execution should not be granted purely on the sympathetic or moral consideration. Secondly, in exercising its discretion, whether to grant a stay or not, R7 the Court is entitled to preview the prospects of the proposed appeaL .. We wish to emphasize that the prospects of the pending appeal, is a key consideration, in deciding whether to stay execution of the judgment appealed against." Furthermore, in the case of John Kunda (Suing as Country Director of and on behalf of The Adventist Development) and Relief Agency (ADRA) V Keren Motors (Z) Limit'ed the Supreme Court affirmed the principle that: 'A successful party should only be denied immediate enjoyment of a judgment on good and sufficient grounds.' The finding of the judgment subject of appeal at pages J30 to J31 found and determined as follows: "With the foregoing said, I agree that the failure to firstly have all the queen mothers willing and available to engage in the exercise of selecting a person among the candidates was contrary to the Lamba traditions and customs. Secondly, the failure to involve Senior Chief Mushili or his assignee in the process of selection and installation of the defendant as Chief Nkana was equally a violation of the said traditions and customs. Similarly, depriving the 4 th R8 plaintiff to fairly participate in the process by being considered as a candidate was breach of the Lamba customs. The sum of the foregoing is that they render the assumption of the throne by the defendant a nullity. In the premises, the plaintiffs have proved their case on a balance of probabilities. I declare that the defendant was not properly selected or installed as Chief Nkana in accordance with the Lamba traditions and customs and is therefore null and void. I also declare that the throne of Chief Nkana remains vacant and order that the Chief Nkana be selected and installed in accordance with the Lamba traditions and customs. If it is within its mandate, the House of Chiefs may assist in providing oversight to ensure that the process is fully carried out in line with the Lamba traditions and customs. It is further ordered that the defendant is restrained from holding himself out as Chief Nkana and/or performing the functions of Chief Nkana. Considering the nature of this case, it affects the more than the parties in this matter but an entire Chiefdom, I will not make any order as to costs. Leave to appeal is granted." R9 From the principles established in the aforestated authorities, a stay of judgment is a discretionary power exercisable only on good and sufficient cause. It should not operate to prejudice one party over the other particularly where denying a successful party the immediate enjoyment of the fruits of his judgment is concerned. The dispute in contention as it was framed in the lower Court touches on the welfare of the Chief Nkana Chiefdom, particularly as it relates to the processes and procedure used in appointing and ascension of the Appellant to the throne of Chief Nkana and the none participation of the 4 th Respondent in the candidature for the selection to the throne. The trial Court determined that the selection of the Appellant to the throne violated the Lamba traditions and customs, it thus annulled the said appointment and guided that a fresh process be undertaken in accordance with the Lamba traditions and customs, and until then, the throne of Chief Nkana stood vacant. This judgment did not entail that that the nullification of the Appellant's appointment automatically gave legitimacy to the 4 th Respondent's ascension to the throne of Chief Nkana, but that the chiefdom had to undertake a fresh process in accordance with the Lamba traditions and customs for the appointment of a new Chief Nkana. Following this judgment, the Appellant appealed on 8 February 2023 advancing 11 grounds of appeal, mixed with points of fact and of law. The appeal is yet to be determined by the full bench of this Court. R 10 Furthermore, there is consensus from affidavit evidence from both parties that a caretaker chief has been appointed in the interim period to oversee the affairs of the Chiefdom while the dispute before this Court still remains to be determined and/ or resolved. I am therefore of the view that in light of the aforesaid circumstances, no prejudice will be occasioned if a stay of execution is granted thereby maintaining the status quo while the appeal is pending. Particularly, the throne of Chief Nkana still remains vacant until determination of the appeal. The affairs of the Chief Nkana Chiefdom will continue to be managed on the caretaker arrangement until the appeal is disposed of by the Court or the dispute resolved. I make no order as to costs of this application. Dated at Lusaka this 13 April 2023. ~ arpe-Phr~ COURT OF APPEAL JUDGE R 11