Henry Sanza v Stanly Lameck Manda and District Commissioner for Kasungu (Civil Cause 580 of 2016) [2021] MWHC 174 (22 September 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO. 580 OF 2016 BETWEEN: HENRY SANZA .. CLAIMANT -AND- STANLEY LAMECK MANDA 1ST DEFENDANT DISTRICT COMMISSIONER FOR KASUNGU 2Nl) DEFENDANT CORUM: THE HONOURABLE JUSTICE R. M CHINANGWA Makono Nankhuni Nyirenda Counsel for the Claimants Counsel for the Defendants Court Clerk JUDGEMENT Introduction 1. The claimant seeks the following: a) A declaration that the 1st defendant is not entitled to be heir to the Mangwazu Chieftaincy, An order that the nomination of the name of the 1st defendant to become to the office of sub-traditional authority Mangwazu be declared null and void. c) An order that the 2nd d defendant be restrained from recognising the 1st defendant' as Sub Traditional Authority Mangwazu. d) An order that the proper consultation from the claimant’s family through traditional authority Chula or Traditional Authority Chula’s royal family be conducted to nominate a legitimate candidate. 2. The defendant opposed the claims. 3. The matter proceeded with hearing both parties. The evidence in chief was presented through witness statements and cross examination and re-examination proceeded oral evidence. Below is a summary of the claimant’s evidence and defendnats evidence. The Evidence 4. The first claimants witness was Henry Sanza. In his witness statement he stated as follows: a) That I am the Group Village Headman Mangwazu. b) That my uncle Mr. Gautoni Mangwazu who was the son of Agness Tonga died on the 10th day of June, 2012 while serving as Sub-Traditional Authority Mangwazu. c) That the Mbumba of the chieftaincy of Sub-Traditional Authority Mangwazu are Agness Tonga, Bester Phiri and Elizabeth Phiri. d) That on the 12th June, 2012 Sub-Traditional Authority Kaphaizi being one of the persons who is well acquainted with the chieftaincy, summoned the members of the aforementioned families to a meeting. e) That the aim of the meeting was to nominate the successor to the chieftaincy of Mangwazu. f) That to the surprise of all the members presents the members of the Mtavu family imposed themselves as the Mbumba of the Chieftaincy. g) That in the entire history of the chieftaincy, the Mtavu family has never produced heirs to the chieftaincy as it is not part of the royal family connected to the chieftaincy. h) That on or around the 16th day of June, 2012 Senior Chief Lukwa in the company of Mr. Sydney Banda from the District Council of Kasungu ordered my family of Mangwazu and that of Mtavu to give background information of the chieftaincy of Sub-Traditional Authority Mangwazu but the families never agreed. i) That on the 18th August, 2012 Sub-Traditional Authority Mphomwa and Sub- Traditional Authority Chitanthamapili were sent by Senior Chief Lukwa to get the name of the heir for the Chieftaincy of Mangwazu despite the disagreements. j) That due to the disagreements no name of proposed heir was given to the Senior Chief Lukwa. As a result, two chiefs requested the two sides to give once again the historical background of the chieftaincy. k) That on the 6th May, 2013 both parties were summoned at Chidzenje court of Senior Chief Lukwa. l) That Senior Chief Lukwa appointed Sub-Traditional Authority Kaphaizi to be the caretaker of the chieftaincy as he was well acquainted with the chieftaincy. m) That on 28th May, 2013,1 went to follow up the outcome of the issue but Senior Chief Lukwa sent me back as he claimed the matter had already been decided upon. n) That on the 5th October, 2013 Senior Chief Lukwa removed Sub-Traditional Authority Kaphaizi from the position of caretaker of the chieftaincy and in his place appointed a committee of four chiefs to be caretaker of the chieftaincy. These are Group Village headman Chidula, Group Village Headman Kaperemera, Village Headman Chizindile, and Group Village Headman Kholongo. o) That since the month of October, 2013, to the month of February, 2014, we received no communication pertaining to the Chieftaincy and on the 10th February, 2014, we lodged a complaint to the District Commissioner of Kasungu. p) That on or about 28th October, 2014, the Director of Administration from Kasungu District Council came to our village with a finding by senior Chief Lukwa imposing Mtavu family as the right heir to the chieftaincy. q) That we were surprised with this development and approached the District Commissioner who directed us to seek redress of the matter through his office as to who the rightful heir to Mangwazu, is failing which his office will proceed with the process of identifying a successor to the chieftaincy and communicate the same to the Ministry of Local Government and Rural Development. r) That the District Commissioner instead of calling Khoswes to the Chieftaincy, Traditional Authority Chulu, opted to call Traditional Authority Mwasambo, Senior Chief Dzoole and Group Village Headman Kanzoma of Dowa to preside over the matter. s) That on the 28th November, 2014 a resolution was made by the Chiefs mentioned at paragraph 18 above that Mtavu family is the rightful heir to the throne. t) That we are of the view that the process of identifying the rightful heir to the chieftaincy and the rightful royal family can only be done in a fair and just way with the input of the Senior Chief Chulu (Nkhoswe of the Mangwazu chieftaincy). u) That Contrary to the unconcluded proper determination of which family between Mangwazu and that of Mtavu, the 1st Defendant was formally installed Sub- Traditional Mangwazu on the 7th June, 2016 against my interest and that of the entire royal family of Mangwazu. 5. The claimants second witness was Loveness Chimwala. She stated as follows: a) That the Mangwazu chieftaincy is of Chewa heritage and as such follows a matrilineal system of succession. b) I am the sister of the late Mangwazu Gautoni and I have vast Knowledge on the chieftaincy of Mangwazu. c) That the Mangwazu chieftaincy does not rotate to the Mtavu family. d) That our chieftaincy is related to that of Traditional Authority Chulu and none other than Traditional Authority Chula can stand as Nkhoswe to Mangwazu chieftaincy. e) That I attended several consultation meetings organized by the Chief Lukwa but whatever I said during such meetings was disregarded by the said Chief Lukwa. f) That the 1st Defendant cannot in anyway attain the throne of Mangwazu because he does not come from the family of Mangwazu which is the only known royal family for the chieftaincy in issue. g) That the said Chief Lukwa has always intimidate my family in order to snatch our chieftaincy from my family on the basis of stubbornness of my family members which allegation is not true. h) That our chieftaincy can only be enthroned through recommendation of Traditional Authority Chulu who is our Nkhoswe and not the said Chief Lukwa i) That Henry Sanza has legitimacy to the Mangwazu chieftaincy so that we maintain the status quo in the village. j) I verily believe that the 1st Defendant’s claim that he belongs to the Mtavu family is untenable for a future reason that none of his family members has ever held the position of sub-Traditional Authority Mangwazu. 6. The third claimants witness was Richard Kalasa. He stated that: a) That I am a member of the royal family of Chulu chieftaincy. b) That my chieftaincy which I am expected to lead is a Nkhoswe of the Sub-Traditional Authority Mangwazu on the basis that the Chulu Chieftaincy is and has always been in a relationship of uncle to the Sub-Traditional Authority Mangwazu. c) That so far as I am aware, the Mtavu family is not connected to the Mangwazu Royal Family to enable it to produce a legitimate candidate to occupy the office of Sub- Traditional Authority Mangwazu. d) That further to paragraph c hereof, the family of Mtavu is a “Nthola” family not related to the Royal Family of Mangwazu which explains the reasons why it is only the legitimate family of kapoli that has always produced a successor to the demise holders of the office of Chief Mangwazu. e) That furthermore to paragraph 3 hereof, Henry Sanza is the legitimate person to occupy the position of Sub-Traditional Authority Mangwazu and state that the Mtavu family only occupied the position of Group Village Headman Mangwazu merely as caretakers as the legitimate persons were then too young to hold the position. f) That so far as a aware, the first Mangwazu was kanayani from the family of Chiputula within the Royal Family of Mangwazu. g) That the eight Mangwazu was Gautoni from the family of Agness Tonga within the same Royal Family of Mangwazu. h) That as stated above, the leadership of Mangwazu has not ever been broken from the Royal Family of Kapoli where from the said Henry Sanza hails. i) That in view of the matters stated in the above paragraphs I further state that the Installation of the 1st Defendant as Sub-Traditional Authority Mangwazu was illegitimate as the same was done at 5 o’clock in the evening 7, The first defendnats witness was Stanley Lameck Manda. He stated that: a) I am Sub-Traditional Authority Mangwazu having been duly and lawfully installed as such on the 3 rd day of June 2016 on authority of the State President. b) I succeeded the late Mr. Gautoni Samsoni Banda, my brother, who passed away on the 11th day of June 2012. c) After the demise of the said Mr. Gautoni Samsoni Banda, Sub Traditional Authority Kaphaizi, who is our relative and indeed one of the persons acquainted with the Mangwazu Chieftaincy, summoned several families including Agness Tonga, Bester Phiri, Elizabeth Banda from the side of the Claimant and also representatives from the Mtavu family to whom I belong. He never summoned only Agness Tonga, Bester Phiri and Elizabeth Banda. d) The aim of the meeting was indeed to nominate the successor to the chieftaincy of Mangwazu. e) At this meeting Sub T/A Kaphaizi state that the aim was to appoint a successor to the Mnagwazu Chieftaincy and called for names from the following families; Agness Tonga, Bester Phiri and Elizabeth Banda. f) After this Estere Nyazimba asked why they were called if the mbumba of the Mtavu family were not mentioned as one of the Mbumba. g) Sub T/A Kaphaizi asked if the family of Mtavu had ever been a chief and Kingsley Banda answered in the affirmative and stated that the last one was Tifwenge Mangwazu and this was confirmed by Loveness Chimwala, the mother of Jacob Chindoda whereupon Sub T/A Kaphaizi said the parties were to meet again to choose a chief and no issues were raised by anyone. h) It is therefore a misrepresentation of facts to state that the Mtavu family had never produced heirs to the chieftaincy or that that it is not part of the royal family connected to the chieftaincy. Actually, the Mtavu family is the first family entitled to the Chieftaincy. i) I now produce and Exhibit hereto a census of the Chieftaincy marked “SLM 1 ” which includes Kaphaizi Mitawa the 1st Mangwazu of the Mtavu family and which was given to our family by our deceased Uncle. j) Thereafter on the very same date of 12th June 2012 Sub T/A Kaphaizi made all of the men go away as Chewa Chiefs are chosen by women (Mbumba) and a chief was chosen after two names of myself and the Claimant wee proposed and voting ensued. I had 10 votes while as the Claimant had six votes and the Chindoda family, from whom the Claimant was not happy with this. They never protested before the voting though. Sub T/A Kaphaizi issued a report which is exhibited hereto marked “SLM2” which shows what happened on 12th June 2012. k) There was no influence whatsoever from Senior Chief Lukwa as during this time he was in the Federal Republic of Germany. l) When Mr. Gautoni Samsoni Banda passed away Senior Chief Lukwa never influenced the succession at all but merely came to visit the bereaved family and encouraged the parties to choose a well-mannered Chief to take good care of the village. m) On the 11th July 2012 Senior Chief Lukwa came to ask for a name of a Chief and the family of the Claimant stated that they could not do so because there were strangers in the room and Senior Chief Lukwa asked why they were saying so whereupon the family of the Claimant was asked to give the history of Chieftaincy. n) The family of the Claimant stated that the Mbumba for the Chieftaincy were Agness Tonga, Bester Phiri and Elizabeth Banda and this was disputed by us because in the family of Mangwazu Chieftaincy the first family is the Mtavu family, the second one is the Kachela family and the last one is the Mtamanji/Nyamazaweni family all bom of one mother called Chizungulire. o) The Claimant comes from the second family of Kachela who bore Chipulura, who bore Manjika. Mwanjika is the one who bore Agness Tonga and Bester Phiri. p) Elizabeth Banda is from the third family q) Nothing concrete was decided and Senior Chief Lukwa did not rule anything but said he was going to come back to us but asked Loveness Chimwala about the history of the Chieftaincy and she said she is young and she does not know as the real history had been lost by Sekerani Mangwazu and she was asked where they got the other information about the Chieftaincy and she did not say anything. r) Sub T/A Mphomwa belongs to the family of Chulu and he came to the village on the 17th of August 2012 and asked all the parties to give the history to the Chieftaincy and all parties agreed to give the same and to submit to the verdict of Sub T/A Mphomwa. s) The same two names were proposed by both sides and later on a hearing was conducted in the presence of Sub T/A Mphomwa together with Sub T/A Chitanthamapiri who ruled in favour of the Mtavu family, t) Senior Chief Lukwa never at any point removed any of the Chiefs let alone Sub Traditional Authority Kaphaizi, as caretaker chief. u) The Claimant indeed lodged a complaint but the same lacked merit. v) Senior Chief Lukwa never imposed the Mtavu family as the rightful heirs but merely wrote the District Commissioner to express his findings as well as recommend to them to conduct a public hearing so as to ascertain the rightful heir. The letter of Senior Chief Lukwa in now produced and exhibited hereto marked w) The District Commissioner then called Traditional Authority Mwansambo, Senior Chief Dzoole and Group Village Headman Kanzoma of Dowa as independent Chiefs to preside over the matter and all the families submitted themselves to this panel without any objection whatsoever and this hearing was conducted on the 27th of November 2014 and a recommendation was issued on the 28th of November, 2014 which is exhibited hereto marked “SLM4” x) After the demise T/A Chulu there was already a determination by Sub T/A Mphomwa who is from the Chulu family who ruled that our family was the right one to succeed the Chieftaincy. The said determination was arrived at after hearing both families and its attached hereto marked “SLM4” y) The Claimant indeed complained to the District Commissioner and I note that the letter from the DC was written in January 2015 and gave the plaintiffs family 30 days within which to go to court and they only filed documents in June 2016 after I had already been installed as chief and never pursued the case that they had filed earlier on. z) That the family of the Claimant already sued my family in a representative action brought by the brother of the Claimant on behalf of the Plaintiffs family and my relative Kingsley Banda on behalf of my family. I exhibited hereto an interparty summons for an injunction in Civil Cause No. 120 of 2015 between Jacob Chindoda (on his own behalf and on behalf of Mtavu Family), and chief Lukwa, and Kasungu District Council marked iSLM6) act) I note that the affidavits of Jacob Chindoda and Henry Sanza in support of the application for injunction are almost identical and that the issues raised are the same. bb) The family of the Claimant never prosecuted either the application for the injunction nor the main matter to conclusion. cc) I am informed that it is an abuse of the court process for the Claimant to have commenced this matter on the same issues and with the same parties when the other matter had already been filed and was not concluded. dd) From the above it is clear that the Chulu family was involved in the decision of appointing me as Sub Traditional Authority Mangwazu. ee) The process of my appointment was transparent and has three determinations from independent chiefs as well as Chiefs in the Chulu family all in favour my family. ff) The determinations were actually based on chewa custom and after finding as a fact that I came from the 1st family and that the chieftaincy was supposed to go to the 1st family and therefore ruling in favour of myself and my family and I don’t see how any of this can change. gg)The family of the Claimant only started to raise the issue of Traditional Authority Chulu in December 2014 when all matters had been settled as an afterthought, hh) The Claimant has never at any time demonstrated to any party and now even to the Court that the family of the Claimant is not the first family of the Mangwazu Chieftaincy and therefore not entitled to succeed the later chief. ii) There is no need to wait for the installation of senior Chief Chulu as the Chulu family has already made a determination and there is nothing to support the assertion that the process raised suspicion and I am verily informed that the Court cannot make a decision based on suspicious. jj) I was installed as Sub-Traditional Authority Mangwazu on the 3rd of June 2016 because there was no legal impediment to the installation and the celebrations were conducted on the 7th of June 2016. kk) In the premises I pray not only that the Application be dismissed with costs but that the Plaintiffs action be dismissed with costs for being an abuse of the Court process. 8. The second defence witness was Felix Lukwa. He stated that: a) I am the Senior Chief for an area in Kasungu which includes that of Group Village Headman Mangwazu who is now Sub Traditional Authority Mangwazu and I was also the 2nd Defendant in Civil Cause NO. 120 of 2015 which was filed by a brother of the Claimant Jacob Chindoda on his own behalf and on behalf of the Mangwazu Royal Family which includes the Claimant. b) I am actually surprised that this matter is resurfacing in this Court as the brother of the claimant Jacob Chindoda also filed another case on behalf of Mangwazu family in Civil Cause NO. 120 of 2015 raising the same issues as are being raised herein. c) The family of the Claimant have never at any point put up a justification for their assertion that the family of the Defendant is not the rightful family or heir of the Mangwazu Chieftaincy. d) Stanley Lameck Manda was duly installed as Sub-Traditional Authority Mangwazu on the 3rd day of June 2016 and that the said Chieftaincy is under my authority and I am actually the one who elevated Group Village Headman ship Mangwazu to a Sub- Traditional Authority. e) Gautoni Mangwazu who I had elevated to Sub-Traditional Authority Mangwazu died on the 11th of June 2012. f) The women of the Mtavu family are also the Mbumba of the Mangwazu Chieftaincy. g) Sub Traditional Authority Kaphaizi is from the Chulu family and indeed well acquainted with the Mangwazu Chieftaincy. He indeed called the Mbumba for them to select a chief and the 1st Defendant had more votes that the Claimant per the exhibited report, now produced and marked “SCL1”. h) It is wrong for Henry Sanza to state that the Mitawa Mtavu family had never been part of the Chieftaincy of Mangwazu. Actually, the history of the Mangwazu Chieftaincy which I give per the document now produced and exhibited hereto marked “SLC2” clearly shows that the Mtavu family is the first family in the Mangwazu Chieftaincy. It is therefore the family that is entitled to the throne and that actually it is the family of the Claimants that were merely caretakers. i) ' Having realized that, though a chief was chosen, there was a dispute I empanelled Sub Traditional Authority’s Mphomwa and Chitanthapiri to hear the parties as Traditional Authority Mphomwa is from the Chulu Chieftaincy who duly heard all the parties without any influence from myself and ruled in favour of the family of the 1st Defendant. The Claimant’s family wilfully submitted to these chiefs without any objections. The report of these chiefs is exhibited hereto marked ;SLC3’ j) The Claimant never visited me on the 28th of May 2013 to enquire about the matter and I have never told him that the same was already settled. k) Actually, when I saw that there was still a dispute, I engaged the 2nd Defendant’s office through my letter of 8th March 2013 wherein I told the 2nd Defendant what had been found by Sub Traditional Authority Kaphaizi and also Sub Traditional Authority Mphomwa and Chitanthamapiri secondly and requesting the 2nd defendant to hold a public hearing. The said letter is exhibited hereto marked ‘SCL4’ l) I have never made a finding imposing the Mtavu family on the chieftaincy as alleged in the Affidavit of Henry Sanza in support of the Originating Summons. m) I refer to paragraphs 20 to 24 of the affidavit in Support of the Originating Summons of Henry Sanza and state that; a. The family of the Claimant had never at any point raised the issue of Traditional Authority Chulu until in 2014 as an afterthought. b. The District Commissioner assembled Traditional Authority Mwansambo, Senior Chief Dzoole, and Group Village Headman Kanzoma as a Commission of Enquiry to establish the history of the Mangwazu Chieftaincy and establish who between the Claimant and the Defendant was entitled to the same. The three Chiefs ruled in favour of the 1st Defendant after hearing from both families. The family of the Claimant never objected to this enquiry and wilfully submitted to it. The report is exhibited hereto marked “SCL 5” c. The 2nd Defendant thereafter wrote the family of the Claimant granting the said family a period of 30 days from the date of the said communication which is 7th January 2015 within which to challenge the said finding of the three Chiefs in a court of law. The said letter is exhibited hereto marked ‘SCL6’ and the Claimant only filed these proceedings in June 2016 and never sought to influence the State President to institute an enquiry into the Chieftaincy. d. When no challenge enforceable came from the Plaintiffs family the State President approved the name of the Defendant as the person to take over Sub Traditional Authority Mangwazu Chieftaincy and this was communicated via the letter from the 2nd Defendant dated the 5 th day of May 2016 which is exhibited hereto marked “SCL e. The 1st Defendant was thereafter installed as Sub Traditional Authority Mangwazu on the 3rd of June 2016 and the celebrations were conducted on the 7fh of June 2016 f. The proceedings herein are actually irregular as the appointment herein was made on the authority of the State President and the Claimant should have been challenging that decision. g. In the premises it is clear that the matter is an abuse of the Court process as it is litigating on matters in Civil Cause No. 120 of 2015; the action herein is premature as the Claimant should have first moved the State President to make an enquiry into the chieftaincy or should have been challenging the decision of the President in the proper manner; and that the family of the 1st Defendant is the first Family of the Chieftaincy herein and therefore entitled to the throne. 9. The third defence witness was Estere Shadreck Zimba. She stated that: a) I am the one of the Mbumba of the Mangwazu Chieftaincy b) That I attended the meeting that happened on the 12th of June 2012 which was called Sub Traditional Authority Kaphaizi to choose a successor to the Mangwazu Chieftaincy. c) The Mbumba voted after all the men had been told to go out and 10 of the Mbumba chose the Defendant while as 6 chose the Claimant such that the 1st Defendant was successful. Issue for Determination 10. This court ought to determine who between the claimant and 1st defendant is the rightful heir to the Mangwazu throne? Analysis of Law and Evidence 11. Section 4 of the Chiefs Act provides that (1) The President may by writing under his hand appoint to the office of Paramount Chief, Senior Chief or Chief such person as he shall recognize as being entitled to such office. (2) No person shall be recognized under this section unless the President is satisfied that such person— (a) (b) is entitled to hold office under customary law; has the support of the majority of the people in the area ofjurisdiction of the office in question; and (c) in the case of the office of Senior Chief is a chief and is recognized by all chiefs in his district as being entitled under customary law prevailing in that district to be appointed Senior Chief (3) The appointment of any person to the office of Senior Chief under subsection (1) shall not affect the status of the substantive office of Chief or in any way confer on that person additional jurisdiction to the jurisdiction which he had before being appointed Senior Chief 12. In Levison Mitala and another v Andrew Patrick Mdelu [2014] MLR 163, the Supreme Court held that the consensus of chiefs and elders is the best method of choosing the rightful successor to the chiefdom. 13. In this case it is not in dispute that the Mangwazu Chieftaincy follows the Chewa custom. The dispute in this case is who between the Mtavu or Mangwazu family can produce a successor to the Mangwazu throne. An analysis of the evidence will show that the evidence is merely the claimant’s word against the defendnats word without tangible evidence such as birth certificates or an official record of all the chiefs from the District Commissioners Office to show how the chieftaincy began and progressed. From the facts the claimants in summary state the Mbumba to the Mangwazu Chieftaincy are Agness Tonga, Bester Phiri and Elizabeth Phiri; that the Mtavu family have no heirs or Mbumba to the chieftaincy and thus a chief cannot be appointed from the Mtavu family; that the chieftaincy does not rotate between the Mtavu and Mangwazu Chieftaincy; that T/A Chulu is nkhoswe to the chieftaincy; that Mtavu family only were appointed as caretakers and never as an heir to the throne. On the other hand, the defendants argued that Mbumba to the Mangwazu chieftaincy come from both families; that the Mtavu family has produced an heir to the throne. This being the case the question is how then can the dispute be resolved. Section 4 of the Chiefs Act as quoted above states that custom should be followed in this case the selection of next chief should follow Chewa custom. Secondly, the proposed candidate should have the support of the majority of the people in the village. The question is how can this be done. In the Levison Mitala case cited above the Supreme Court confirmed that The District Commissioner can convene a meeting in order to hear the views of chiefs and all concerned people such as elders in the area, family members from both sides. It was held that a consensus of chiefs and elders is the best method of choosing the rightful successor to the chiefdom. In this case is a report from Senior Chief Dzoole; Traditional Authority Mwansambo and Group Village Headman Kazoma dated 28th November 2015. At the meeting were members from both sides of the family, representatives from the District Commissioners Office. It was their finding that the 1st defendant was the rightful heir. This court confirms the same. 14. Regarding the matter having been brought before another court, this court observes that the same is deplorable. In such cases, files are merged so that the matter is concluded on one file. Since there is no evidence that the other matter was concluded and the summons have not been shared with this court for the court to appreciate whether the issues are the same, this court makes no order pertaining to the same. Finding 15. The claimant’s claim is dismissed. Each party is to bear their own costs. Pronounced this 22nd day of September 2021 at LILONGWE R. M CHINANGWA JUDGE