Mathias Moyo and Anor v Webby Mulubisha and Anor (Appeal No/149/2021) [2023] ZMCA 437 (29 August 2023)

" IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO/ 149/2021 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN MATHIAS MOYO MARVIS MWITA MUCHAILA AND WEBBY MULUBISHA EDWARD NYAWE 1 ST RESPONDENT 2ND RESPONDENT CORAM: SICHINGA, PATEL AND CHEMBE JJA on 25th August, 2023 and 29 th August, 2023 For the Appellant Mr. 0 Hatimbula - Messrs Hatimbula legal Practioners For the Respondent Mr. C. M. Sianondo - Messrs Malambo and Co. JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: 1. Chief Mpempo v 25/2008 • -J 2- 2. Nkongolo Farms Limited v Zambia National Commercial Bank Limited and others (2007/ZR 149 3. Zambia Revenue Authority v Dorothy Mwanza and others (2010) ZR Vol 2 181 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 5. Netta Shakumbi la v Patrick Chibomba SCZ Appeal No 15 of 6. Mwale v Mtonga and another SCZ Judgment Number 25 of Other Works referred to: 1. Halsbury Laws of England 4 th Edition Volume 17 2. Tears of Rain, Ethnicity and History in Central Western Zambia (London, Keagan Paul International, 1992) 3. Law Insider.com 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Honourable Mr. Justice Charles Zulu delivered on 23 rd March 2021. In the said judgment the learned Judge found that the 1st Respondent was eligible to ascend to the Mwene Mutondo throne as chief through the matrilineal lineage and the process of selection was conducted in accordance with the customs ... -J 3- and traditions of the Nkoya people. He dismissed the claims of the Appellants who were the plaintiffs in the Court below. 2.0 BACKGROUND 2.1 The brief background to the appeal is that the Appellants commenced an action against the Respondents by writ of summons claiming the following reliefs; (1) A declaration that the 1st Defendant as success or to the Mwene Mutondo Chieftaincy is null and void. (2) An order that the selection and or appointment to the throne of Mwene Mutondo Chieftaincy be conducted afresh in compliance with the customs and practice prevailing in such a situation. (3) A restraining order against the installation if the 1st Defendant to the throne until full determination of this action. (4) Further or other reliefs that the Court may deem fit; and (SJ Cost of suit 2.2 According to the statement of claim, the Appellants were the son and cousin of the late chief Mwene Mutondo of Kaoma District while the 1st Respondent was his cousin. The 2 nd Respondent was sued as the elder of the electoral college. ·- 2.3 The late chief Mwene Mutondo had died on 10th May 2018 and -J 4- according to Nkoya custom the selection of his successor was to take place after 3 months of his passing. However, the 1st Appellant and others caused on announcement to be aired on radio that the meeting for the selection of the successor to the Mwene Mutondo throne would be held on 18 th June 2018. 2.4 After a letter of protest was written to the Ngambela by a member of the royal family, the meeting was postponed to 2 nd July 2018. The 1st Appellant and others also protested against the holding of the meeting on 18th June 2018 to the Ngambela who assured them that their issues would be addressed. 2.5 Despite the assurance, the 1st Respondent was selected as successor to the Mwene Mutondo throne at the meeting held on 2 nd July 2018 by families who should not have been part of the electoral college and with the approval of the 2 nd Respondent. It was averred that the matter was compounded by the Government representative who allowed the meeting to go ahead despite the fact that the wrong procedures were used. There was a proposal to install the 1st Appellant as Chief Mwene Mutondo on 20 th July 2018. ·- .. 2.6 In the defence, the 1st Respondent averred that his late mother -J 5- was the daughter to the late Chief Mwene Mutondo Mushonto and being the grandson of the chief, he qualified to succeed the throne of Mwene Mutondo. He explained that his late mother and the late chief Mwene Mutondo Edward Moyo were cousins on the paternal side. 2.7 The Respondents also averred that the selection and installation of a new chief was supposed to be done within 2 months of the death of a chief to avoid a leadership vacuum. It was denied that succession in the Nkoya people was strictly patrilineal as the custom and practice was that it was both matrilineal and patrilineal. 2.8 Regarding the claim that people who were ineligible to vote took part in the selection process, the Respondents averred that the families that made up the electoral college included Kanyincha, Kayambila, Manenga, Yuvenu, Masheka and Lishenga. They also clarified that the selection process was overseen by the 2 nd Appellant. Edward Mwawula Shamanga also known as Nanyundo and that Watunga was a name of .. -J 6- praise for the late chief Edward Mbombola Mayo while Kathiko was the praise name for the late chief Dominic Shipimbi. 2.9 The Respondent maintained that the people who took part in the selection process were all members of the electoral college and were verified by the 2 nd Respondent who was in charge of the process. It was also averred that the District Commissioner did not play any role in the selection of the chief. They denied that the Appellants were entitled to any of the reliefs sought. 3.0 THE APPELLANTS' EVIDENCE 3.1 The Appellants called 4 witnesses during the trial. The evidence of the Appellants was that the 1st appellant being a son to the late chief Edward Mbombola Moya alias Mwene Mutondo was the heir apparent. The witnesses testified that succession to the Mwene Mutondo chieftaincy was through the patrilineal line and as such the 1st Respondent, whose claim to the throne was through his mother, was not eligible to succeed. 3.2 Regarding the process that transpired after the late chief died, the Appellants testified that procedure for selection of a new chief was flawed as the meeting was called before the 3 month ·- -J 7- mourning period had ended. There was evidence that the Ngambela tried to stop the meeting which was called for 2 nd July 2018 to select a new chief but failed. 3.3 The appellants adduced evidence that they attended the selection meeting on 2nd July 2018 but did not participate in the voting process as they were still in mourning. The 1st Respondent was selected as the successor to the throne by the electoral college. The appellants complained that the 2nd Respondent who chaired the selection meeting allowed family members who were part of electoral college such as Yuvwenu, Manenga and Masheka to vote. They maintained that their objections were ignored and not recorded in the minutes. 4,0 THE RESPONDENTS' EVIDENCE 4.1 The Respondents also called four witnesses. The Respondents' evidence was that following the death of chief Mwene Mutondo on 10th May 2018, it was agreed that a meeting be convened after the mourning period to select a successor. A meeting to select the successor was held on 2 nd July 2018. Nine royal family lines which were eligible to field a successor were identified. • -J 8- 4.2 There was evidence that each family was asked to nominate 10 voters. On the day of voting, the meeting considered the 1st Appellant's request to reschedule the meeting and resolved that the request was not tenable. The selection of the new chief proceeded and the 1st Respondent was selected. The Appellants' family did not participate in the selection. 4.3 Regarding the eligibility of the 1st Respondent to succeed the Mwene Mutondo chieftaincy, the Respondents' position was that succession was both patrilineal and matrilineal. There was evidence that the first Mwene Mutondo was a woman called Libupe and that there had been female chiefs after her. The Respondents acknowledged that in the recent past people had succeeded the Mwene Mutondo throne threw the patrilineal line. They maintained that the 1st Respondent was eligible to succeed the Mwene Mutondo throne because his mother was a member of the royal family. 5.0 DECISION OF THE LOWER COURT 5.1 Upon considering the evidence on record and the submissions, the learned trial Judge formulated two issues for determination as follows; ... -J 9- 1. Whether the first defendant qualified to be selected as chief Mwene Mutondo? 2. Whether the selection process was in accordance with the Nkoya culture, customs and traditions? 5.2 The learned trial Judge found that it was not in dispute that the 1st Respondent was selected as chief Mwene Mutondo at a meeting held on 2 nd July 2018 at Lukena palace of the Nkoya Royal Establishment. The meeting was chaired by the 2 nd Respondent in his capacity as Nduna Nyanundo. The Ngambela was not in attendance at the meeting but this did not affect the validity of the proceedings. 5.3 The learned trial Judge found that the 1st Respondent was the biological grandson of chief Mwene Mutondo Mushonto having been born of the chiefs granddaughter. Mushonto had a brother called Kanyincha whose son was the father to the late chief Mwene Mutondo Mbombola Moyo. He made a finding that the 1st Respondent descended from the Mushonto family tree while the 1st Appellant's royal lineage was through the Kanyincha family tree. The 1st Respondent and the late chief Mbombola Moyo were therefore first cousins. 5.4 The learned trial Judge rejected the Appellants' argument that -J 10- ascension to the throne was strictly patrilineal as the Respondents had adduced evidence to the contrary that it could be matrilineal or patrilineal. He accepted evidence that the first Nkoya chief had been female and there were several chiefs including the 1st Respondent who had been appointed chief Mwene Mutondo Mushonto by virtue of the matrilineal bloodline. He found that the 1st Defendant was eligible for selection. 5.5 Regarding the question of whether the selection process was in accordance with the Nkoya people, the learned trial Judge rejected the Appellants' claim that selection process was flawed as the evidence adduced by the Respondents showed that the Appellants did not protest about the Yuvwenu, Masheka and Lishenga families participating. He found that there was evidence that the Yuvwenu, Masheka and Lishenga families were part of the Mwene Mutondo royal dynasty and had each produced a chief in the past. 5.6 The learned trial Judge dismissed the Plaintiffs' claims with costs. ·- 6.0 THE APPEAL -J 11- 6.1 Dissatisfied with the decision of the lower Court, the Appellants have appealed to this Court and have raised four grounds of appeal as follows; 1. The learned trial Judge erred both in law and facts when he held that the ascension to the chiefly office of Mwene Mutondo can either be patrilineal or matrilineal is probable as the tradition had evolved and the Court imposed a dual system on the Nkoya people. 2. The learned trial Judge erred both in law and facts when he held that the 1 st defendant was appointed as chief Mwene Mutondo by virtue of matrilineal blood line through his mother·via chief Mwene Mutondo Mushonto ignoring the fact only the mother was not asheta women who would produce Mwene Mutondo through matrilineal. 3. The learned trial Judge erred both in law and facts when he held that he held that an equal number from each royal family tree constituted the Electoral College contrary to the evidence on record. 4. The learned trial Judge erred both in law and fact when he disregarded the position of Ngambela's absence at the meeting held on 2nd July 2018 for selection of the chief Mwene Mutondo or evidence on record. 7.0 ARGUMENTS IN SUPPORT OF THE APPEAL 7.1 The Appellants argued grounds one and two together. It was submitted that ascendance to the Mwene Mutondo throne had -J 12- evolved from matrilineal to patrilineal. It was explained that this occurred when the Bakasheta clan who bore heirs to the throne ceased to exist. 7.2 Our attention was drawn to the book entitled Tears of rain, Ethnicity and history in Central Western Zambia where the author stated that Mwene Mutondo Wahila was the first to become Mwene of all the ba Myene who are eligible to inherit the throne of their father. 7.3 It was contended that it had been more than 100 year since an heir had ascended the Mwene Mutondo throne through the matrilineal lineage and the trial Court erred in trying to introduce a practice which had evolved. 7.4 We were referred to the constitution of Zambia and the case of Chief Mpempo v Senior Chief Mwamba1 in support of the proposition that chieftaincy issues are to be dealt with in accordance with the culture, customs and traditions of the people affected. 7.5 The Appellants also argued that by finding that both matrilineal and patrilineal system were at play in the ._ -J 13- ascendancy to the Mwene Mutondo throne, the trial Court had imposed a chief on the Nkoya people. 7.6 It was submitted that the 1st Respondent's mother was connected to Mwene Mushonto royal family through marriage and could therefore not produce an heir to the throne. Had she been the sister to Mwene Mushonto, the 1st Respondent would have been eligible to succeed. 7. 7 According to the Appellants, the learned trial Judge misdirected himself when he failed to consider all the evidence before him. We were referred to the case of Nkongolo Farms Limited v Zambia National Commercial Bank Limited and others2 7.8 In support of ground three, the Appellants submitted that the Muchaila, Kathiko and Kanyincha families did not participate in the selection process because they were still in mourning. It was contended that the mourning period should have ended on 10th August 2018 according to tradition. 7. 9 It was submitted that the Appellants had challenged the participation of the Yuvwenu, Manenga and Lishanga families in the selection process but their concerns were not recorded .. -J 14- in the minutes. Similarly, the issue relating to the ineligibility of the 1st Respondent to vie for the Mwene Mutondo throne was not recorded in the minutes. 7.10 Regarding the 4th ground of appeal, the appellants submitted that the Ngambela who was traditionally recognized as the chair of selection meeting was absent at the meeting held on 2nd July 2018. The Ngambela's request that the meeting be postponed was ignored. 7.11 It was submitted that the learned trial Judge erred by accepting that the Nanyundo could reject the advice of the Ngambela who was the chief executive officer. 7.12 We were urged to allow the appeal. 8.0 ARGUMENTS OPPOSING THE APPEAL 8.1 The Respondents filed heads of argument in which by way of background it was submitted that Appellants' claim to the chieftaincy is through Kanyincha whilst the 1st Respondent's is through Mushonto. Mushonto and Kanyincha were brothers. 8.2 Counsel for the Respondents argued the first two grounds of -J 15- appeal together. It was submitted that the evidence established that the 1st Appellant's grandfather who was a chief succeeded to the chieftaincy because he was a grandson to Kanyincha who had been chief. It was contended that the 1st Respondent who was the grandson of Mushonto who had been the chief at one point was therefore also eligible to succeed to the Mwene Mutondo chieftaincy. 8.3 Regarding the Appellants' assertion that succession to the Mwene Mutondo chieftaincy was patrilineal, Counsel for the Respondents argued that the 1st Respondent's mother was eligible to be a chief as there had been chiefs who were women and she could trace her decent as a royal through the patrilineal side. 8.4 It was submitted that the 2nd Appellant had admitted during the trial that a successor could come from a male or female. Quoting from Tears of Rain, Ethnicity and History in Central Zambia by Wim Van Binsbergen, Counsel submitted that Munangisha had succeeded his maternal uncle as chief. 8.5 Regarding the procedure for selection that was followed, it was -J 16- submitted that the same families who elected the 1st Appellant's father are the ones who selected the 1st Respondent. We were referred to the· case of Kilolo Ngambi v Opa Kapijimpanga Appeal No. 210/2015. It was submitted further that there was no issue regarding the illegibility of the 1st Respondent from the Appellants' family who were present during voting process. Reference was made to the case Netta Shimwambwa Shakumbila vs Patrick Chibomba Appeal No. 15/2015 where the Supreme Court held that the trial court's finding that the failure by the Appellant to raise any objection to the Respondent's aspiration to be chief was indicative that he was eligible. 8.6 As for the third ground of appeal, the Respondents submitted that the Appellants did not object about the 9 family groups that participated in the voting as could be seen from the minutes. 8. 7 In relation to the absence of the Ngambela from the meeting, it was submitted that the evidence showed that the 2nd Respondent was entitled to oversee the process of selecting a -J 17- new chief. 9.0 DECISION OF THIS COURT 9.1 We have carefully considered the judgment appealed against together with the record of proceedings and arguments by both sides. We note that the four grounds of appeal are merely attacking findings of fact by the trial Court. Based on the case of Zambia Revenue Authority v Dorothy Mwanza and others3 , an appellate Court can only reverse findings of fact by the trial Judge where the findings in question were either perverse or made in the absence of any relevant evidence or misapprehension of the facts or that they were findings which, on proper review of the evidence, no trial Court acting correctly could make. 9.2 In grounds one and two, the Appellants challenge the trial Judge's finding that ascension to the Mwene Mutondo throne was both matrilineal and patrilineal. 9.3 From the evidence adduced, it is not in dispute that the 1st Respondent was chief Mwene Mushonto and that he ascended .. -J 18- to that chieftaincy through his mother who was the granddaughter of the late chief Mwene Mushonto. 9.4 It is also not in dispute that the late chief Mwene Mutondo Kanyincha and chief Mwene Mutondo Mushonto were brothers who sired the late chief Mbombola Moyo and the 1st Respondents' mother. 9.5 It follows from the above, that both the 1st Appellant and the 1st Respondent were members of the Nkoya royal family. However, the issue raised by the Appellants was that according to the Nkoya custom only male direct heirs could succeed their father to the Mwene Mutondo throne. It was argued that the 1st Respondent having been born from a female member of the royal family was not eligible to succeed. 9.6 The Appellants placed heavy reliance on the writings of Wim Van Binsbergen who authored a book on the history of the Nkoya people titled Tears of Rain, Ethnicity and history in Central Western Zambia (London, Keagan Paul International, 1992) where he stated that there was a shift to patrilineal succession of the Myene. The author suggested that in the 20th Century, patrilineal succession entered the -J 19- Mutondo Kingship where Mwene Kanyincha, Mushonto and Kalapukila were all sons of Mwene Munangisha. 9.7 However, we note that in the same book, the author does state that there was resistance to this shift by the women and that Mwene Shinkisha (a female) succeeded a male chief. Although the author acknowledged that succession in the twentieth century had become predon1inantly male, he nevertheless held the view that women were not precluded from becoming chief Mwene Mutondo when he wrote the following: ''their succession is no longer justified by reference to fem.ale Kinsmen; and there is no any specific mention of the reason a woman should not be selected". (Our emphasis) 9.8 The above suggests that although the tradition of the succession to the Mwene Mutondo throne has evolved to include patrilineal succession, matrilineal succession is not entirely excluded. This view is supported by the fact that the 1st Respondent was appointed as chief Mwene Mushonto on the basis of his maternal descent. -J 20- 9. 9 We are of the view that the evidence adduced showed that whilst succession to the Mwene Mutondo throne was predominantly patrilineal, it could also be matrilineal. 9. l0Further, we note that the burden of proof lay on the appellants to demonstrate that succession to the Mwene Mutondo throne was exclusively patrilineal. The Learned Authors of Halsbury Laws of England 4 th Edition Volume 17 provides as follows on the issue: "To succeed on any issue, the party bearing the legal burden of proof must (1) satisfy a Judge or Jury of the likelihood of the tnith of his case by adducing a greater weight of evidence than his opponent, and (2) adduce evidence sufficient of proof .... in civil matters the standard of proof is satisfied on a balance of probabilities." According to the case of Wilson Masauso Zulu v Avondale Housing Project Limite~ a plaintiff who has not proved his case cannot be entitled to judgment. 9.11. Other than boldly stating in evidence that according to the established Nkoya customs and traditions succession was patrilineal, the Appellants did not demonstrate how this was so. Although the Appellant's evidence was that the eldest male • -J 21- heir would automatically succeed his father, the evidence that succession was by selection counters this argument. It begs the question of why there was need to select a successor from the nine families if the path of succession was so clear. 9.12. Further, the Appellants did not adduce any evidence on the eligibility criteria for the candidates from the other royal families. No family tree for the Mwene Mutondo royal family was produced to show how succession in the past had taken place or who was eligible to succeed and the order of succession. 9. 13 In paragraph 2.8 of the Appellants' heads of argument, the Appellants concede that succession to the Mwene Mutondo throne could be matrilineal when it was stated that the selection of Webby Mulabisha (the 1st Respondent herein) would have been valid: "If the sister to Mushonto was the mother to Webby Mulubisha then the doctrine of matrilineal would have been valid". -J 22- 9 .14 In view of the foregoing we cannot fault the trial Judge for making a finding that succession was both matrilineal and patrilineal. Grounds one and two therefore fail. 9.15 At the hearing of the appeal, Counsel for Respondents submitted that it could be argued that the 1st Respondent was eligible to stand as he could trace his descent from the patrilineal line through his great grandfather Mushonto who was his mother's grandfather. We are of the view that this argument is flawed as it distorts the meaning of the word patrilineal. According to the Law Insider.com, patrilineal means tracing one's descent through the father's line. It follows therefore, that if you are tracing your descent through your mother's side, you are not patrilineal. The 1s t Respondent's claim to royalty being based on his mother's line cannot be said to have been eligible due to his patrilineal inheritance. 9.16 Regarding ground three where the Appellants have challenged the Court's finding that an equal number of members of each royal family constituted the electoral college during the selection process for the successor of the late chief Mbombola, .,. -J 23- a rather strange argument was advanced. The Appellants submitted that the Kanyinca, Muchaila and Kathiko families were not represented at the selection meeting. However, it was not disputed that both Appellants were at the meeting held on 2 110 July 2015. The minutes for the meeting held on 18 th June 2018 show that the Kanyincha family was represented together with 8 other royal families. The 1st Appellant admitted having been present at both meetings in his evidence. 9.17 It was not disputed that the Appellants' family opted not to participate in the selection of the new chief after their request to postpone the meeting was rejected. It is not clear to us why this ground of appeal was raised at all couched in this manner in view of the evidence on record. 9.18 We note that the other arguments raised in the heads of arguments are unrelated to the grounds of appeal as the Appellants submitted that the selection of a new chief should have taken place after 3 months of mourning and that they had raised the issue of the 1st Respondent's ineligibility to stand which was not recorded. In any event, the Appellants did not object to the absence of some families during voting ..., -J 24- and therefore it can be said that they had no issues with the electoral college. We are fortified in our view by the decision of the Supreme Court in the case of Netta Shakumbila v Patrick Chibomba5 . 9.19 In any event, the minutes of the selection meeting show that each family was asked to submit the names of 10 people who would form the electoral college. We, therefore, find no basis for interfering with the findings of the trial Court. The third ground of appeal fails. 9.20 In the fourth ground of appeal, the Appellants submitted that the learned trial Judge erred when he disregarded the evidence that the absence of the Ngambela at the selection meeting on 2 nd July 2018 invalidated the proceedings. We have perused the record of proceedings and have noted that none of the Appellants' witnesses testified that the selection meeting could not take place in the absence of the Ngambela. 9.21 The evidence adduced by PW3 and PW4 was that the Ngambela had written a letter requesting that the meeting be postponed to August or September 2018. There was no evidence that the Ngambela was traditionally entitled to chair such a meeting and the effect of his absence was not an issue -J 25- in the Court below. 9.22 At page 28 of the record of proceedings, the learned trial Judge did consider the evidence on the absence of the Ngambela. His finding was that the Ngambela did not attend the meeting held on 2 nd July 2018 due to personal reasons. In our view, the trial Judge cannot be faulted for not considering the implication of the absence of the Ngan1bela on the meeting as there was no evidence that he should have chaired it. 9.23 Whilst we acknowledge that it is the duty of a trial Judge to evaluate all the evidence before him, our view is that he cannot evaluate evidence relating to a nonexistent issue. The reliefs sought by the Appellants in the writ of summons guided the Court as to the issues that needed to be addressed. 9.24 The Appellants sought a declaratory order that 1st. Defendant's appointment or selection as chief Mwene Mutondo was null and void without any statement supporting this position. The accompanying statement of claim appeared to suggest that the selection was irregular because it was done before the three month mourning period had expired and that the Electoral • -J 26- College included people who were ineligible to vote. There was no suggestion that the Ngambela should have chaired the meeting or that the meeting held was invalid due to his absence. 9.25 In the case Mwale v Mtonga and another6 , the Supreme held that one of the functions of pleadings 1s to isolate the issue of law and fact which will fall for determination by the trial court. In the present case ) the issue of the meeting being invalid due to the absence of the Ngambela was not raised in the pleadings. The 4 th ground of appeal also fails. 10.0 CONCLUSION 10.1 In the light of the foregoing, we find that the appeal lacks merit and we dismiss it with costs. A. N. PATEL SC COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE