Moonda Jane Mungaila- Mapiko and John Muchabi (Suing on behalf of the Traditional Council of Mungaila Royal Establishment) v Victor Makaba Chaande (Appeal No. 94/2022; CAZ/08/89/2022) [2024] ZMCA 90 (29 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA ( Civil Jurisdiction) Appeal No. 94/2022 CAZ/08/89/2022 MOONDA JANE MUNGAILA-MAPIKO JOHN MUCHABI (Suing on behalf of the Traditiona l Council of Mungail a Royal Establis hment) AND VICTOR MAKABA CHAANDE 1 ST APPELLANT 2ND APPELLANT UCOF \RT Of-APp 2 S FEB 2024 VILREGISTR X 50067, LU NDENT Coram: Chashi, Makungu and Sichinga J. J. A On the 21 st and 29th day of February, 2024 For the appellant: No appearance For the respondent: G. Hakainsi of L. M Chambers JUDGMENT MAKUNGU JA , delivered the Judgmen t of the Court . Case referred to: 1. Philip Mhango v. Dorothy Ngulube and Ors (1983) Z. R. 61 (S. C.) 2. Galaunia Farms Limited v. National Milling Company Limited (2002) Z. R 13!:. 3. GDC Hauliers (Z) Limited v. Trans Carriers Limited SCZjudgment No. 7 2001 4. Attorney-General v. Kakoma (1975) Z. R. 212 (S. C.) 5. Ted Chisavwa Muwowo Alias Chief Dangolipya Muyombe v. Abraha Muwowo Alias Tenwanani Winston M. Muwowo (Suing as Chairman of ti Uyombr Royal Establishment) SCZ Appeal No . 115/ 2014 Other works referred to: 1.0 INTRODUCTION 1.1 This appeal emanates from the decision of M. Chanda J, of tl High Court dated 14 th February, 2022, dismissing the l appellant's claim to be the rightful heir to the throne of Chi Mungaila of Namwala District, Southern Province. Tl appellants were cited as the plaintiffs while the respondent w, cited as the defendant. 2.0 BACKGROUND 2 .1 In this and the next part of the judgment, we shall refer to t1 parties according to their designations in the court below. C 29 th June, 2010, the plaintiffs initiated legal proceedin! against the defendant by writ of summons. They sought t1 following reliefs: a) A declaratory order that the procedures for selecting t1 defendant as Chief Mungaila V were irregular and violate recognized Ila traditions. b) A declaration that the 1 st plaintiff is the rightful candidate 1 ascend to the throne of Chief Mungaila V by Ila rules ar procedures. c) An interim injunction to prevent the defendant, his servant agents, and whoever from carrying out chiefly duties until tl case is resolved and further that the traditional counc handles these duties during the interim injunction period . 3.0 PLAINTIFFS' EVIDENCE 3 . 1 The trial began on 31 st October 2018 , with the plaintiffs relyir on the testimony of four witnesses. PW 1 was the 1 st plaintij Moonda Jane Mungaila Mapiko daughter of the late Chi Mungaila II, PW2 was the 2 nd plaintiff John Muchabi , h eadman 1n Mungaila Chiefdom and Chairperson of tl traditional council. PW3 was Frank Mungaila and PW4 wr: Oscar Kasanga. Their collective evidence was that: 3 .2 When Chief Mungaila II passed away in 1948, he was surviv~ by seven children namely, Kasape , Boila, Shanzua, Georg Frank, Maybin and herself. Due to their minor age and tl eldest child being blind, they could not ascend to the thron and Chaande Shimayoba became the Caretaker Chief. 3 .3 Chaande Shimayoba was born of the late Chief's sister by tl considered to be from the royal family. After Chaan< Shimayoba's death, Waterford Kasanga became Chief Mungai IV and later died on 1 7 th May 2010. The 1 st plaintiff claimed th Waterford was born from her elder sister Tep a, so they we: cousins. 3.4 The dispute arose when the defendant claimed to be an heir · the throne. The chieftaincy dispute was reported to tl Namwala and Livingstone District Councils, but there was r response. 3.5 According to the plaintiffs , the defendant is not the rightful he for the fallowing reasons: (a) The 1 st plaintiff has the right to ascend to the thror based on seniority since she is the oldest surviving chi: of the late Chief Mungaila II. (b)According to Ila traditions and customs, succession patrilineal and the 1 st plaintiff was the rightful he through her father. (c) The defendant is not considered to be a member of tr royal family as he hails from Lutala village and is the so of Chaande Shima yo ba who 1s said to have been caretaker chief. (d)According to PW4, before his late father Waterfo Kasanga died, he informed the royal family members th the 1 st plaintiff was to succeed him and he put it writing. (e) Further according to the Ila tradition , the headmen we not part of the group that selected the defendant as chit but were merely informed. The children of Makaba ar Waterford were not informed about who was to succet the chief. 3.6 PW3 explained that during the selection process of the chief, tl electoral college also known as the Bakwashi has tl responsibility of announcing to the subjects the name of tl person selected by the royal family. However, contrary tradition, the Bakwashi did not consult all the royal fami members on the person to be selected. This was the reason wl the meeting that was scheduled to be held on 28 th May, 2010 · resolve the dispute was objected to and eventually aborted. 3.7 It was agreed that a subsequent meeting would be held on J three months. Both plaintiffs did not attend the meeting th took place on 1st June , 2010. 3.8 On 6 th June 2010, PW3 was informed that the Bakwashi he appointed the defendant as Chief. He said that a letter objectir to the appointment was immediately written to Namwa District Council but there was no response. 3.9 During cross-examination of PW3 , he mentioned that tl families that constituted the royal families were Kabbuki Mabonje , Mungaila, Shanzua Mungaila, Chitaan Ikuwa,Chihuuku and Shimunyowe. That the children of the la chief had the final word over the choice of the successor. 3.10 Notably, during cross-examination , PWl could not prov1c documentary proof that Chaande Shimayoba was just caretaker chief. She conceded that when her father died , not a her siblings were minors. She also stated that Waterford an the defendant were her father's grandchildren but tl defendant's father was not a Mungaila as he hailed from Lutal, However, his mother was from the Mungaila royal family . Tl 1 st plaintiff also stated that she did not know anything abo1 Waterford 's succession process but later retracted and statE that she had attended the succession process. 4.0 THE DEFENCE 4.1 The defendant relied on the evidence of five witnesses ; DWl we the defendant-Victor Makaba Chaande, DW2 was Gilbe Shanzua, DW3 was Lemmy Chipeka, DW4 was Franc Mukuwa, DW5 was Saviour Moonga Kabongoma. In brief the collective evidence was as follows: 4.2 Following the death of Chief Mungaila IV (Waterford Kasang. DWl approached headmen Mungaila, Mpabila, DW: Mwanamufwenga, DW4 , and Lubwe (the Bakwashi) to expre~ his aspiration to become chief. The headmen informed him th, five other people were interested in vying for the chieftanc namely; Francis Munaunzwe , Smith Ndango, Harrisc Chitaani, Leonard Shamainda and the 1 st plaintiff. 4.3 On 28 th May, 2010 around 20:00 hours , there was a announcement by Headman Mungaila that a meeting was to t convened the following day. The next day, drums were soundE and some oeoole flathered while those who were in other placE were urged to attend. At the meeting, the Bakwashi we: present. 4 .4 According to DW 1, the 1 s t plaintiff explained that it was her ro and not the Bakwashi's to s elect a new chief. 4.5 DWl further stated that when differences arose during tl meeting, the government officials present left, indicating th, they would return when the people were ready to select a ne chief. 4.6 On 30 th May 2010 , the late chief's body was exhumed an reburied. After the re-burial , headman Mungaila announce that there would be a meeting the following day. The next da: while people gathered at the venue of the meeting, DW3 went 1 the 1 st plaintiff's home with Mr. Chitaani. 4. 7 At the meeting, Headman Mungaila asked the Bakwashi 1 proceed with the selection process in the absence of the 1 plaintiff. Then headman Mufwenga asked a group of fami: members to confer privately. When they returned, it we announced that DWl had been selected as Chief Mungaila V. After the traditional rites were performed , DWl we 4. 8 Further evidence was that DW 1 was recognised as Chi Mungaila by Statutory Instrument No. 68 of 2010 under tl Chiefs Act dated 6 th August, 2010. 5.0 DECISION OF THE LOWER COURT 5.1 The lower Court determined that four individuals he previously held the Mungaila throne , namely; Ntumba-Chi Mungaila 1, Makaba-Chief Mungaila II, Chaande Shimayob: Chief Mungaila III, and Waterford Kasanga-Chief Mungaila IV 5.2 That after the passing of Waterford Kasanga, six contender including the 1 st plaintiff and the defendant , aspired to becorr Chief Mungaila V. The trial Judge further found that despite a initial meeting on 29 th May 2010 to select the heir, beir aborted , a subsequent meeting on 1st June , 2010, saw tl defendant announced as Chief Mungaila V. The defendant We later officially recognized as chief through Statutory Instrume1 No.68 of 2010. 5 .3 On the question whether the defendant was eligible to be Chi, Mungaila V, the trial Judge began by examining the family tn chart and found that both the 1 st plain tiff and the defendai Judge thus dismissed the plaintiffs claim that the defenda hailed from Lutala village and was not a member of the roy family. 5.4 Upon considering the success10n history, the trial Judi established that the Chiefs did not necessarily pass the thror to their sons or daughters. Both male and female relatives fro: the Mungaila clan could potentially succeed to the throne, ar seniority was not a decisive factor. 5.5 Regarding Waterford Kasanga's writings, the Judge clarifit: that he expressed a preference for the 1 st plaintiff as a success< but that did not guarantee her right to ascend to the thron The said do cum en t did not disqualify the defendant from vyir for the chieftaincy. 5.6 The trial Judge further examined the Ila procedure for selectic of a chief. She highlighted that the Bakwashi or Mukwasl initiate the process by consulting the royal family about the preferred candidate. The selection meeting follows, durir which traditional rites are performed. That consensus withi the royal family on the successor 1s not always achieve1 chief could appoint a successor; instead , the royal famj decided the next ruler through the Bakwashi. The selectic process could involve occasional elective aspects when the was no consensus. 5. 7 In light of the above , the Judge found that the plaintiffs failt to substantiate their claims against the defendant and affirmt him as the rightfully installed Chief Mungaila V. Costs we: awarded to the defendant, and leave to appeal was granted. 6.0 GROUNDS OF APPEAL 6 .1 The appellant has advanced six grounds of appeal framed , follows: 1. The trial court erred in both law and fact when s1 misapprehended the evidence of PW 1 and attachE little weight to it thereby occasioning a miscarriage i justice to the 1 st plaintiff. 2. The trial court erred both in law and fact when misinterpreted the family tree and formed an opinfo that the defendant was a bonafide member of the royc family and hence free to vie for the leadership in t1 chiefdom as both male and female relations of t1 royal family in Mungaila clan are instrumental 1 3. The trial court erred in both law and fact when it he that the principle of seniority is not a factor in tJ appointment of Chief Mungaila the Fifth in tot disregard of the Ila tradition. 4. The trial court erred in law and fact when it made finding that PWl 's claim to be rightful candidate ascend the throne of Chief Mungaila fifth as depict• in the writings of the late Mr. Waterford Kasanga base less in light of evidence on record. 5. The trial court erred both in law andfact when it he that the writings of the late Chief Waterford Kasan~ do not disqualify the defendant from ascending to t1 throne in light of the evidence on record. 6. The court erred in law and fact not to have relied c the writings of the late Chief Waterford Kasanga : determining the recognized Ila tradition in t1 appointment of Chief Mungaila the Fifth and that t1 defendant is the rightfully installed Chief Mungai ; after discrediting the said writings and in toti disregard of the Ila tradition as well as PW 1 and PW3 evidence. 7.0 APPELLANTS' HEADS OF ARGUMENT 7.1 The appellant relied on the heads of argument filed on 10 th Ma 2022. In support of ground one , counsel contended that tl 1 st appellant (PW 1). The Judge found that she was telling lie when in fact the defendant was the one who gave false evideni in an affidavit. The defendant was even convicted of contem· of court due to the lies he told. Failure of the Court to attac more weight to the 1 st appellant's evidence resulted in miscarriage of justice. 7.2 Counsel further submitted that DW4 lied on oath concernir the date of the 2 nd meeting for the selection of Chief Mungai the fifth which he said was held on 31 s t May, 2010 when tl minutes indicated that the meeting was held on 1 st June , 201 1 7 .3 In support of ground two, counsel contended that the low1 court misinterpreted the Mungaila Royal Family tree when held that the respondent was eligible to vie for the Mungai throne as it was both matrilineal and patrilineal. According · PW3 and PW4 inheritance to the throne of Chief Mungai according to Ila tradition and customs is generally patriline and the only time inheritance can be matrilineal is when : 1. There is no one eligible to be selected as chief on tl patrilineal side. 2. When the eligible candidate on the patrilineal side passes on voluntarily to a royal member of the matrilineal side. there is a patrilineal member who contests such a decisio then an election shall be held. 7.4 It was argued that the conditions which would allow a memh of the royal family from the matrilineal side to ascend to tl throne of Chief Mungaila did not arise in this case. Couns argued that the selection of the respondent was irregular ar against the Ila tradition and custom. 7.5 Counsel further submitted that the writings of the late Chi Mungaila IV Waterford Kasanga as guidelines on succession · the throne are cardinal to the matter as they establish or poi1 to the rightful heir. 7.6 Counsel further submitted that as confirmed by PWl to PW. the respondent's witnesses evidence that the procedure voting when more than two candidates are vying for the thror was not followed in terms of the Ila tradition. 7.7 Additionally, all the purported 10 members of the Mungai royal family who are alleged to have participated in voting f< preferred the respondent to be chief were not called by tl respondent to support his testimony. 7.8 The nature of consultation by the Bamukwashi with the roy family members as testified by DWS was irregular and again the Ila tradition and custom as the royal family members we: called one by one in to the house to be consulted by tr Bamukwashi without allowing the royal family members 1 choose for themselves the successor by way of a patrilineal roy, members meeting, which would have resulted into tr appointment or voting for a successor. 7. 9 The Bamukwashi was not supposed to participate in tr meeting of the royal family members as they were not part , the royal family. The Bamukwashi was supposed to be give the name of the selected chief after the royal family membe1 meeting to announce. It was argued that the respondent we chosen by the Bamukwashi instead of the royal family. 7. 10 Grounds 3, 5 and 6 were argued together as fallows: Accordin to Waterford Kasanga's writings, the 1s t appellant was tr. rightful heir as she was the oldest amongst the eligible roy: principle of seniority was not a factor 1n the appointment Chief Mungaila V. Tepa passed on the Chieftaincy to her sc Waterford who was the oldest heir by then. When there was contest by other family members , an election was conducted select a Chief among the eligible candidates. 7 .11 Therefore the respondent was disqualified by the writings Waterford Kasanga. The prayer was that the selection of tl respondent as Chief Mungaila V be nullified for being irregul: and against the Ila tradition and the 1 st appellant be declan as the rightful heir to the throne. 8.0 RESPONDENT'S HEADS OF ARGUMENT 8 . 1 The respondent relied on the heads of argument filed on lC June , 2022. Counsel for the respondent submitted that tl grounds of appeal attack the findings of fact of the lower cou but the arguments advanced therein fall short of the thresho required for an appellate court to tamper with them , established in the case of Philip Mhango v. Dorothy Ngulul and Others 1 where it was held that: "The Court will not reverse findinas of fact made bu question were either perverse or made in the absence any relevant evidence or upon a misapprehension of t1 facts or that they were findings which, on a proper vie of the evidence, no trial court acting correctly cou , reasonably make." 8.2 In opposing ground one , counsel submitted that it is legal flawed for the 1 st appellant to argue that the court belo misapprehended the facts when findings made by the cou were based on her evidence. The 1 st appellant gave conflictir evidence and failed to prove her claims . Reliance was placed c the case of Galaunia Farms Limited v. National Millir Company Limited2 where it was held inter alia that: "A plaintiff must prove his case and if he fails to c: so, the mere failure of the opponent's defence does n, entitle him to judgment." 8 .3 As regards the appellant's submission that the lower cou should have attached little weight to the respondent's evidenc because of his conviction for contempt of court, counsel arguE that the conviction did not relate to the evidence he gave at tl trial of this matter. The affidavit from which the conviction aro~ was the affidavit in opposition to the 1 st appellant's applicatic for an injunction. The main trial was not based on affida1 evidence. 8.4 Further, the mismatch on the dates by DW4 on when tl meeting to resolve the succession wrangle was held, was n fatal as it is common for a witness to mix up or even forget date 8 .5 To counter ground two, it was submitted that the holding th both male and female relations of the royal family in tl Mungaila clan are instrumental in supplying an heir to tl throne is very much supported by the evidence on record. 8.6 Before arriving at this decision, the lower court analysed tl succession history of the Mungaila Chiefdom. Among those th, came from the matrilineal side was Waterford Kasanga. A election was held to select Waterford Kasanga. Further, the1 was no documentary evidence in the court below to show th: Kasanga became chief to represent his mother or that there we no one from the patrilineal side qualified to become chi, Mungaila at the time. 8.7 In response to grounds 3, 5, and 6 , counsel pointed out the Waterford Kasanga was not chosen as chief because he was tt two candidates. The appellants did not provide any evidence show that seniority prevailed when Chiefs Mungaila I and were selected. 8.8 As regards the writings of Waterford Kasanga, couns submitted that the same merely reflected his preference whc he used the words , "I am not writing a will to state that so or ~ is the one to take over the name when I die }}. 8. 9 It was contended that the court rightly held that the writings , Waterford Kasanga did not disqualify the respondent. 3.10 On the 4 th ground , it was submitted that the issue of PW3 evidence on succession being patrilineal not being challenged i cross-examination is incorrect as the record shows that U issue of patrilineal and matrilineal was neither here nor there 3.11 That as regards the issue of headmen being involved in n selection of the chief, evidence was led showing that tr. respondent beat other contestants even from the votes of n royal family members. 3.12 In any case , the involvement of the headmen in the selection i the chief appears to have taken place when Waterford Kasan§ 8.13 The prominent role played by Bakwashi is also very clear as at demonstrated by the court below. The appellants decided distance themselves from the Bakwashi after noticing that tl 1 s t appellant did not succeed in being selected as chief. Tl respondent urged us to dismiss the appeal. 9.0 ARGUMENTS IN REPLY 9.1 The arguments in reply filed on 20 th June 2022 , were essential the same as the main arguments. ).0 ANALYSIS AND DETERMINATION ).1 We have considered the record of appeal and the argumen made by counsel on behalf of all the concerned parties. We she deal with the 1 st and 2 nd grounds of appeal separately ar grounds 3 to 6 together as they are connected. ). 2 Ground one challenges the lower court's findings about tl credibility of the witnesses , particularly the evidence of the 1 appellant, respondent , and DW4. The contention is that tl lower court should not have attached little weight to tl evidence of the 1 st appellant when the respondent is the culpr of giving false evidence in an affidavit, which resulted in }: conviction for contempt of court. 0. 3 According to Phipson on Evidence, 17th Edition, (Sweet Maxwell, 2010): "The credibility of a witness depends on his knowledi of the facts, his intelligence, his interestedness, h integrity, his veracity. Proportionate to these is tJ degree of credit his testimony deserves from the court jury. Amongst the obvious matters affecting the weig , of a witness evidence may be classed as his means knowledge, opportunities of observation, reasons j recollection or belief, experience, powers of memory a, perception, and any special circumstances affecting h competency to speak to the particular case inquired in either in direct examination to enhance or in cros examination to impeach the volume of his testimony. ~ all questions may be asked in cross-examination whic tend to expose the errors, omissions, inconsistencie exaggerations, or improbabilities of the witness1 testimony." ).4 We have considered the arguments and we find that the Judi properly directed herself when upon evaluation of the evideni before her she pointed out the glaring inconsistencies in the J.5 At page 36 of the judgment, the lower court noted the followir inconsistencies: The 1 st appellant testified that at the time her father 's death , she and her siblings could not succeed hi because they were minors when not all were minors; she al~ told the court that Chaande Shimayo ba was a Caretaker Chi but later said that he had been an actual chief; she had ah disassociated herself from the ascension of Waterford Kasan~ to the throne but later admitted that she attended the proces: ).6 In our view, these were not minor inconsistencies that could 1: overlooked, and the Judge was entitled to consider them as thE spoke to the credibility of the 1 st appellant's evidence. ).7 As regards the submission that the lower court should ha, attached little weight to the respondent's evidence because r had earlier been convicted of contempt of court for giving fah evidence, we note that the affidavit from which the contempt 1 court issued, was the affidavit in opposition to the 1 st appellant application for an injunction which was not relied upon in tr main matter. The appellants have not pointed to anythir during the trial that would have made the Court attach litt 0.8 As regards the evidence of DW4 on the mix-up of the dates the second meeting relating to the chieftaincy succession, \ agree with counsel for the respondent that this was not fatal , the main issue was whether the meeting was held or not. ).9 We note that on pages 256-258 of the record that the trial Judi who had the opportunity of observing the demeanour of the J appellant cautioned her about the elusive manner in which sr was giving her evidence. ).10 These are findings that an appellate court cannot lightly tamp with. We are fortified by the case of GDC Hauliers (Z) Limit€: v. Trans Carriers Limited,3 where the Supreme Court statE that: "Findings of credibility are not to be interfered wi1 lightly by an Appellate Court which did not see and he, the witnesses at first hand." ).11 In light of these considerations, we find no merit in the fir. ground of appeal. ).12 The 2nd ground of appeal challenges the trial Judge interpretation of the Mungaila Family Tree Chart and t1 0.13 The appellants argued that the succession to the throne und the Ila traditions and customs is patrilineal. The only tin inheritance can be matrilineal is when there is no heir from tl patrilineal side , then a caretaker chief would be chosen from tl matrilineal side or when the eligible candidate on the patriline side passes it on voluntarily to a royal member of the matriline side. If there is a patrilineal member who contests such decision then an election shall be held. These conditions did rn exist when appointing the respondent as chief. On this basi the appellants have called on us to tamper with the lowc Court's finding of facts. ).14 In evaluating the evidence on record , the court is entitled 1 make a finding of fact where the parties advance direct conflicting testimonies , and the court must make those findin! on the evidence before it and having seen and heard tr witnesses giving evidence. See the case of Attorney General' Kakoma. 4 ).15 The established principles on when an appellate court ea interfere with the findings of fact of a lower court, have bee Dorothy Ngulube and Ors 1 where the Supreme Court guid, that: "The appellant Court will not reverse findings of fa made by a trial Judge, unless it is satisfied that tl findings in question were either perverse or made in tl absence of any relevant evidence or upon misapprehension of the facts or that they were findin~ which, on a proper view of the evidence, no trial cou acting correctly could reasonably make." ) . 16 The evidence on record shows that the lower court in analysir the succession lineage examined the Mungaila Family Tn Chart. The lower court observed that the 1 st appellant and tl respondent both trace their descent from a common ancestc called Mungaila. In terms of the succession to the chieftainc for the Mungaila Cheifdom, the 1 st Chief Mungaila (Ntumh passed on the throne to his immediate young brother Makal: who reigned as Chief Mungaila II. Chief Mungaila III was bor of Shimunyowe the young sister of the first and second Chi1 Mungaila. Waterford Kasanga who regined as Chief Mungaila I was the son of female Tepa Mayonda, a cousin to the 1 appellant. Tepa Mayonda's parent Shaanzuwa was a sibling 1 0.17 From the above, the lower Court properly found that the first fourth Chief Mungaila did not pass the chieftaincy to their so: or daughters. Both female and male relatives in the Munga: clan are instrumental in supplying an heir to the thror entailing that any member of the royal family tracing desce from the 1 st Chief Mungaila can vie for the throne. For tr. reason, the 1 s t respondent was found to be also eligible to , for the Chieftaincy. 0.18 We are of the view that the appellants did not substantiate th< afore-mentioned claims on when the Chief could be select1 from the matrilineal side. What is clear however is that Chi<: like Waterford Kasanga (Mungaila IV) and Chaande Shimayol were of royal blood through their mother and the said W aterf o ascended to chieftaincy after emerging victorious in an electic involving another eligible candidate. 0. 19 Although the writing is in ila language and there is no transcri in English language. We note that there was no eviden advanced to show that he was selected chief because his moth passed on the baton or because there were no contenders fro patrilineal sides were eligible to vie for the throne of Chi Mungaila. ).20 We find no fault in the above-stated findings of fact as they we: based on the evidence on record. ) . 21 We shall now consider the issues raised in grounds 3 to concerning the writings of Waterford Kasanga (Chief Mungai IV), whether seniority is a factor in the appointment of Chi Mungaila V, and whether the respondent was rightful installed as chief. ).22 Starting with the issue of whether seniority is a factor in tl succession of traditional leadership among the Mungaila Roy: Family members , we hold the view that the lower court proper answered the question negatively. This is because tr appellants did not advance any evidence to show that seniori1 was a factor in the selection of all of the farmer chiefs. Howeve what can be discerned from the evidence is that, where two c more interested persons were vying for the throne of Chi1 Mungaila, an election was held to determine the winner as ea be deduced from the writings of Waterford Kasanga who on: 0.23 Coming to the issue of whether the 1 st appellant is the rightf Chief Mungaila, the evidence on record established th Waterford's writings merely referred to the 1 sL appellant as tl preferred candidate. This was confirmed by the evidence PW4. We therefore agree with the lower court that the sa document did not disqualify the respondent or any oth candidate from vying for the chieftaincy. J.24 As regards the traditions, customs, and procedures £ succession in the Mungaila Chiefdom, the evidence on recrn established that the royal family decides who the next ruler w be. The rulers are chosen from several royal families who p1 forward their preferred candidates to the traditional appointir authority or electoral college known as Bakwashi or Mukwasl When a single successor is nominated by the royal family, thE that person is announced to the people as the new chief by tl Bakwashi and accordingly appointed as Chief. However, whE two or more people are contending for the chieftaincy, then th( are subjected to the voting process. We are fortified by the ea: of Ted Chisavwa Muwowo Alias Chief Dangolipya Muyoml v. Abraham Muwowo Alias Tenwanani Winston M. Muwo\\ (Suing as Chairman of the Uyombe Royal Establishment where the Supreme Court held that: "Where custom, procedure, and tradition are plain articulated and systematically practiced by its peopl any deviation from the laid down tradition or custo warrants a reversal of any appointment that had be« effected." ) .2 5 We note from the minutes of the selection meeting appearing c page 159 (ROA) dated 29 th May, 2010 which took place at Chi Mungaila's Palace , that the first meeting was adjourned due · complaints b y certain members of the royal families that th< were not consulted on who would take up the chieftaincy a r suspected corrupt practices . Due to the unresolved issues , tl meeting was adjourned. ).26 A subsequent meeting was held on 1s t June , 2010 . Son members of the royal family such as R . M Chataani boycott<: the meeting on allegations that the Bakwashi did not carry 01 consultations with the royal family and for suspect<: corruption. At the said meeting, the writings of Waterfm Kasanga were brought forward but not read out. J.27 At the said meeting, two members of the Bakwashi held caucus meeting with representatives of the 12 royal familie After the discussions, the Bakwashi announced tl appointment of the respondent as Chief Mungaila V. ).28 From the foregoing, it can be seen that the Ila traditions an customs were followed in the appointment of the respondent c Chief Mungaila V because, from the several documents o record, the Bakwashi had according to the Ila traditions an customs consulted the royal families to put forward the nam~ of their preferred candidates which they did and the majority 1 the families chose the respondent. In actual fact, out of 1 families, 5 chose the respondent while the Kasanga fami accepted that choice without any reservations. ).29 We take that as voting because the meaning of voting is wid1 Similar words include elect, put in power, select, choose an appoint. ).30 The other 4 candidates had merely nominated themselves an there was no evidence that they had any supporters. The 1 appellant refused to attend the selection meeting on the groun that she was already chosen as rightful heir by the 1, Waterford Kasanga. 0.31 After the meeting the attendees were asked whether they h any objection to the appointment and only one of them rais an objection which was ignored. 0.32 We hold that in the Ila custom and tradition, there is provision for a chief to select his successor. It is the mandate the royal family. 1.0 CONCLUSION 1.1 All in all, the appeal has no merit and it is dismissed. Each pru J. CH I COURT OF APPEAL JUDGE C. K. MAKU GU COURT OF APPEAL JUDGE . D. COUR , SC LJUDGE