Mpengula v Litana and Ors (Appeal 47 of 2006) [2007] ZMSC 157 (7 March 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE AND LUSAKA (CIVIL JURIDICTION) BETWEEN APPEAL NO 47 OF 2006 KENNETH MPENGULA (Alias Senior Chief Mushili) Appellant and REVEREND HUDSON LITANA TOILEY LWEBESHA EDSON KALOTA KASABILA FALESI KAPINDULA & OTHERS 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent Coram: Chirwa, Mumba and Mushabati JJS on 1st August 2006 and 7th March 2007 For the Appellant: Mr D Mulenga, Derreck Mulenga & Co. For the 1st Respondent: Mr S E Twumasi, Kitwe Chambers For the Other Respondents: Mr T Shamakamba, Shamakamba & Co. JUDGMENT Chirwa, JS delivered the judgment of the Court: Cases referred to: 1. 2. James Simon Mutambo V Peter Chisaka Chipepo, SCZ No. 159/2004 Shamwana & Others V The People [1985] Z. R. 41 The appeal involves the wrangle between the parties as to who is the right person to take over as Senior Chief Mushili of the Lamba people. The matter arose after the death of Senior Chief Mushili, namely JOHN LUMANO NYENDWA. Upon his death, there were three people who claimed the right to the throne, namely, the appellant, KENNETH MPENGULA the 1st Respondent, REVEREND HUDSON LITANA and TOILEY J2 LWEBESHA the 2nd Respondent. Because of these wrangles, the appellant commenced an action in the Ndola High Court under Cause No. 2003/HN/l 1 in which the lsf Respondent was the defendant. Another action under Cause No. 2003/HN/89 was commenced in which the 2nd Respondent, 3rd Respondent and 4th Respondent and Others were plaintiffs and the appellant was the defendant. By consent of all the parties, the two actions were consolidated and heard under Cause No 2003/HN/l 1 in which the appellant continued to be plaintiff and the 1st Respondent continued as 1st Defendant and the plaintiffs in Cause No 2003/HN/89 became the other 6 defendants. The claims of 2nd to 7,h defendant who were originally plaintiffs were treated as Counter-claims against the claims of appellant. The appellant's claim was for a declaration that the was a rightful person to continue as Senior Chief Mushili having been appointed as such at a meeting held on 16th March 2002, and that the claim of the throne by the 1st Respondent was unprecendented, wrongful and illegal. He also sought an injunction restraining the 1st Respondent from performing the functions of Senior Chief Mushili. The Counter-Claims by the 2nd - 7th Respondent was for declarations that the appellant was not selected to become Senior Chief Mushili in accordance with the Lamba tradition and custom and that his chieftaincy be declared null and void and further that the appellant was not a fit person to be Senior Chief Mushili. There was, also a further declaration sought that the appellant should not have continued to execute the functions of Senior Chief Mushili upon the then reigning Chief's death but handover the Chieftaincy to BENA MBUSHI Clan. J3 The appellant's case was premised on his evidence that before the late Chief died, he had called him to his Palace and told him that as he, (the Chief) was unwell and weak, he could not perform his functions as Chief and that he had looked around and consulted with his relatives who could not come up with any suitable successor apart from the appellant. The appellant, consulted his parents and it was agreed that he takes over the Chieftaincy. Counsellors were invited to a meeting and when they were all assembled, the late Chief informed the gathering that due to his poor health he had decided to appoint a successor and that he had picked the appellant to take-over. After this, the late Chief asked elders from the GOAT CLAN to perform the duties of handing over authority to the appellant and a CHABALUKA from that clan performed the duties and the appellant was handed over 1 small axe, three gowns, two fly whisks, a walking stick and a bell. The late Chief then anointed the appellant with oil of a lion and was then officially declared Senior Chief Mushili. After this, there was much jubilation and ululation by people including the 3rd and 4th Respondents who even spoke at the assembly. After the ceremony, the appellant toured the chiefdom with Counsellors twice. After this, the appellant and the late Senior Chief lived as Co­ Senior Chief Mushili with no problems. The late Senior Chief died some time in September 2003 and all funeral rites were concluded on 12th September 2003. The appellant's appointment as Senior Chief Mushili is challenged by the respondents on the grounds that he does not qualify and the Lamba custom was not followed. It was said that a reigning Lamba Chief J4 cannot appoint a successor and have him rule with him. The successor, it was claimed in evidence is only chosen by the Electoral College from names submitted to it by Queen Mothers. Before the selection of a successor, there is a care-taker from the GOAT CLAN - Bena Mbushi who looks after the affairs of the Chiefdom. After election, a ceremony is arranged for installation and a night before, the candidate is placed in a small hut called AKAMBOLO in which elders teach him how to rule his people. He is to observe certain customs whilst there, such as never to answer the call of nature and never go into deep sleep. Should he disobey those customs, he would not be installed as Chief. Once he has survived the night in the Akambolo, he is carried on the back of a member of Bena Mbushi and presented to the people. He is then given instruments of power, namely two gowns, a fly whisk, an axe, a bracelet and ivory bangle. He is then anointed with oil of a lion by Chiefs from Congo D. R. In essence, it was the respondent's evidence that the appellant was irregularily appointed and installed and therefore he has to be removed and a caretaker appointed pending election from the names presented to the Electoral College by the Queen Mothers. After the evidence from the parties, the learned trial judge opined that there were only two issues in the case although so much evidence was led. These two issues were whether the appellant was properly appointed as Senior Chief Mushili or not. The second issue was whether, if properly appointed, the appellant was properly installed in accordance with the Lamba Custom. The learned trial judge answered both these J5 questions in the negative, namely that the appellant was not properly appointed and installed as Senior Chief Mushili and made the following orders:- a) Members of the Royal family from Hair Clan and Goat Clan should immediately choose a caretaker until a new Chief is identified. b) That the appellant should handover all instruments of power which he was given on 16th march 2002 to the selected caretaker. c) That the appellant be allowed to present his candidature during the selection process for a new chief. d) That as it was too late to declare a period of mourning, the Hair Clan should choose their successor within 4 months from date Of judgment. e) Costs to follow events. The appellant has appealed against the whole of the judgment and there are three grounds of appeal. The first ground of appeal was that the learned trail judge erred in law and fact by not attaching some weight or to refer to the none observation of the tradition and custom with regards to the period of mourning. Otherwise the appellant shall argue that the period of mourning immediately after the death of John Lumano as Senior Chief Mushili was not observed because the community and the Lamba Royal Establishment recognized the appellant as having been on the throne. J6 The second ground of appeal was that the learned trial judge in the court below erred in law and fact when he took judicial notice of what the late Chief said as a witness in the case of JAMES SIMON MUTAMBO V PETER CHISAKA CHIPEPO (1) and others about the need of Akambolo when the facts of this case are different in that, in that case the Chief died without leaving a successor in place. The last ground of appeal was that whereas the learned trial judge allowed to members of the Royal family to be not in agreement, there was no evidence adduced to show that all members of the Royal Clan must be in agreement with the choice of the new Chief, which would be practically impossible and the appellant shall argue that there are some of the members of the Royal family who are in his favour. These grounds of appeal were supported by detailed written heads of arguments on which Counsel for the appellant relied upon. In response, Counsel for the respondents also filed detailed heads of arguments in support of the learned trial judge on which they also relied during the hearing of the appeal. We have considered the evidence and judgment of the lower court on record and the grounds of appeal. From the outset we must state that the whole action is anchored on the two issues the learned trial judge found to be before him. He was faced with a case involving traditional office. J7 On the first ground of appeal, argument has been stressed on the period of mourning and failure to observe it. It was argued that the period of mourning was not observed because there was already someone on the throne. This argument is missing the point. The point in issue is on the whole appointment of the appellant. Could the appellant be appointed as Chief by the reigning Chief and installed by him, according to Lamba custom and tradition? The issue is the initial appointment of the appellant. Was it proper, under the Lamba custom for the reigning Chief to appoint his successor? The evidence on record is overwhelming that before a successor is appointed there is wide consultation and if any names are suggested, these are commended by the Queen Mothers. There is no evidence that this procedure was followed in respect of the appellant. Further, even if the appellant was selected by the reigning Chief, he could not have been installed as Senior Chief Mushili as there was already a Senior Chief. He could, on the evidence, especially from the witnesses called by the Court, be appointed as Deputy Chief and execute some functions assigned to him by the reigning Chief. In the event of the death of the reigning Chief, he becomes a caretaker until a real caretaker appointed according to the Lamba custom and tradition was appointed who would oversee the Chiefdom until a new Chief is selected and installed. The evidence from the Court witnesses is very clear that when one is appointed by the reigning Chief to assist him, on the death of the reigning Chief, the appointed assistant ceases to function. This to us is to enable the Mbushi Clan look for a Caretaker until the selection and installation processes are completed. In our view, the period of mourning is not very material, what J8 is very material is the manner in which the Caretaker and successor are selected. We would therefore dismiss the first ground of appeal as without merit. The appellant was not appointed or selected in accordance with the Lamba Custom. The second ground of appeal attacks the learned trial judge's taking judicial notice of the evidence of the deceased Chief Mushili when he testified in the case of JAMES SIMON MUTAMBO V PETER CHISAKA CHIPEPO (1), where the late Senior Chief Mushili gave evidence in relation to succession to Senior Chief Shibuchinga’s Chiefdom. We think this point was settled in the case of SHAMWANA & OTHERS V THE PEOPLE (2) that in appropriate case, particularly where facts may be judicially noticed after an enquiry has been made, a judge has power not only to look at his own records but also those of another judge and take judicial notice of their contents. In the PETER CHISAKA CHIPEPO, Senior Chief Mushili gave evidence on the Lamba succession custom and tradition and his evidence was accepted that the installation of a Lamba Chief is not complete until, after the procedure selection procedure has been followed, the selected candidate must spend a night in the Kambolo. It is obvious in the present case that Senior Chief Mushili did not follow the Lamba custom and tradition in selecting and installing the appellant. What is good for the goose is good for the gander. He cannot strictly apply the custom in one instance and fail to apply it in a similar situation. There was no misdirection in the learned judge to refer to the late Senior Chief Mushili's evidence in another case in relation to the important role the Kambolo hut plays in the installation of a Lamba chief. The passing J9 through the Akambolo hut is very important for a Lamba Chief and the appellant did not go through it and the appellant cannot claim that he was properly installed as Senior Chief Mushili. On ground three, we have been unable to see in the judgment of the learned trial judge where he said that all members of the Royal Clan must all agree on the choice of the successor. The learned trial judge at Page J34 which page 41 of the record said that:- "Of course as the plaintiff also qualifies to be Senior Chief Mushili, his candidature would have been accepted and scrutinized by the royal family members particularly the Queen Mothers to assess his suitability. There is evidence from both sides that there is need for a careful scrutiny before a successor can be found. It is my conclusion that both the appointment and Installation were not done in conformity with the Lamba customs and traditions and I find that the plaintiff has failed to prove his claim”. J10 This cannot be read to mean that the learned trial judge said that all royal family members must agree on the successor. In such matters it remains to reason that the decision of the majority must be taken. This appeal, therefore, fails on all grounds. We confirm the lower Court's findings and orders with a time limit in order (b) that the appellant should surrender the instruments of power within (7) days of the selection of a Caretaker. Costs are for the respondents both here and in the Court below. D K Chirwa JUDGE OF THE SUPREME COUT F N M Mumba JUDGE OF THE SUPREME COURT C S Mushabati JUDGE OF THE SUPREME COURT