chuunya v Ng'andu and anor (Appeal 124 of 2014) [2017] ZMSC 270 (9 May 2017)

1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 124/2014 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: PETER PHILIMON CHUUNYA AND HENRY MUNACHIBA NG’ANDU JOSEPH MWANZA APPELLANTS RESPONDENT INTERVENER CORAM: MAMBILIMA, CJ, KAOMA AND KAJIMANGA, JJS. On 4th April, 2017 and 9th May, 2017 For the Appellant: Mr. E. Mwansa of Messrs. Mwansa Phiri Shilimi and Theu Legal Practitioners For the Respondent: Mr. F. H. M. Hamakando of Messrs. Batoka Chambers JUDGMENT MAMBILIMA, CJ delivered the Judgment of the Court. CASES REFERRED TO: 1. CHIEF MPEPO V. SENIOR CHIEF MWAMBA, SUPREME COURT JUDGMENT NO. 25 OF 2008; 2. MWABA GOODWELL KAPOTWE V. JONES KASOMA TEFWETEFWE AND ATTORNEY GENERAL, 2007/HP/116; AND 3. NKHATA AND FOUR OTHERS V. ATTORNEY GENERAL (1966), ZR 124. I J2 This appeal is from a decision of the High Court, given on 23rd December, 2013. The judgment of the High Court followed an action commenced by the Appellant, by way of a Writ of Summons and a Statement of Claim filed on 30th July, 2009. In the said originating process, the Appellant claimed for the following reliefs: 1. a declaration that succession to the Mwanza Chieftainship is matrilineal through the female members of the royal family; 2. a declaration that the Mwanza Chieftainship belongs to the Bagande Clan and not to the Baleya Clan; 3. a declaration that the Plaintiff being of the Bagande Clan, is entitled to succeed matrilinealy to the Mwanza Chieftainship under Tonga custom and tradition; 4. a declaration that the Defendant being of the Baleya Clan, is not entitled to succeed matrilinealy to the Mwanza Chieftainship under the Tonga custom and tradition; and 5. costs. In support of his case, the Appellant gave evidence on his own behalf and called a Mr. Reuben Hakale HAMOONGA, who testified as PW2. The Appellant’s case is that he is a member of the Bagande Clan of the Tonga people. The Bagande Clan is based in Monze District in the Southern Province of the Republic of Zambia. The Appellant asserted that members of the Bagande Clan are the owners of the Mwanza Chieftainship which is located in the eastern part of Monze District. According to the Appellant, the Queen Mother of the Mwanza Chieftainship was NAMWEEMBA whose son, J3 Sigobola MWANZA, became the first Chief Mwanza. The Appellant stated that Sigobola MWANZA had three sisters namely, Malala, Namooya and Kantu. The Appellant testified that he is the son of Kantu MUTINTA who was the daughter of NANG’ANDU. That the said NANG’ANDU was the daughter of Namooya, one of the three sisters of Sigobola MWANZA. He asserted that he is, therefore, entitled to succeed to the Mwanza chieftainship as he traced his matrilineal lineage to the sister of the first Chief Mwanza, Sigobola MWANZA. The Appellant claimed that on 5th June, 2006, a Mr. Ticky Chilungu HAMOONGA wrote a letter to the Minister of Local Government and Housing, informing her of the death of Chief Mwanza, Japhet CHIDAMBA, who died on 13th April, 2006. Ticky Chilungu HAMOONGA also informed the Minister that the Bagande Clan had sat and selected the Appellant to succeed as Chief Mwanza. The Appellant told the lower Court that on 7th July, 2006, members of the Bagande Clan met at Himoonga Village under the Chairmanship of Joseph Mwanza MUNKUNYUNGU, also known as J4 Joseph Nalwiinga Chuusula MWANZA (the Intervener in this case). He stated that at that meeting, members of the Bagande Clan resolved that the Council Secretary should be informed of the Clan’s decision to appoint the Appellant to succeed as Chief Mwanza. The Appellant claimed that on 27th October, 2006, members of the Bagande Clan met again at Kabuyu Farm. He averred that the minutes of that meeting were taken by one, Abishai HAZEMBA, on behalf of the Council Secretary for Monze District. That the meeting resolved that the Appellant should be installed as Chief Mwanza and observed that the Baleya Clan had no legitimate claim over the Mwanza Chieftainship. The Appellant went on to state that when the first Chief Mwanza, Sigobola MWANZA died, he was succeeded by his grandson Bokesi Mwanza HAMALAMBO, who was the son of Malala. That when Bokesi Mwanza HAMALAMBO died, he was supposed to be succeeded by Ticky Chilungu HAMOONGA but that this person was too young at the time to ascend to the throne and that for this reason, Chibumbu MWANZA, son of Sigobola MWANZA, was appointed as a caretaker Chief. According to the J5 Appellant, Chibumbu was not eligible to become substantive Chief Mwanza because his mother, KABUNDA, came from the Baleya Clan. The Appellant explained that when Chibumbu MWANZA died, he was succeeded by Hinganga HIKAULA. He claimed that Hinganga HIKAULA became the second caretaker Chief because he, too, was not eligible to become substantive Chief Mwanza as he was also a Muleya by clan. He alleged that when Hinganga HIKAULA died, the throne was supposed to revert to the Bagande Clan; and that in this regard, in 1955, the Bagande Clan selected Ticky Chilungu HAMOONGA to become the third Chief Mwanza. He explained that Ticky Chilungu HAMOONGA was the son of NKOMBO, the daughter of NAMOYA, who was the sister of Sigobola MWANZA, the nrst Chief. The Appellant told the lower Court that Ticky Chilunga HAMOONGA did not, however, ascend to the Mwanza Throne because Hinganga HIKAULA selected his nephew, Japhet CHIDAMBA, a Muleya by clan, and asked the colonial Government to send him to Chalimbana Training School to train as a Chief. He J6 stated that Japhet CHIDAMBA subsequently became caretaker Chief number three. The Appellant asserted that the Bagande Clan challenged the appointment of Japhet CHIDAMBA in the Hamaundu Native Court of Appeal. According to the Appellant, Hinganga HIKAULA apologized to the Bagande Clan for having wrongfully put his nephew to succeed him as Chief Mwanza. He stated that the colonial Government, nevertheless, ruled that because it had spent money to train Japhet CHIDAMBA as Chief, Japhet CHIDAMBA should take up the Throne and that after Japhet CHIDAMBA’s death the Throne should revert to the Bagande Clan. The Appellant averred that the sons and daughters of the first Chief Mwanza, Sigobola MWANZA, and their children belong to the Baleya Clan because their mother was a Muleya. In his opinion, they were all, therefore, not eligible to ascend to the Mwanza Throne. The Appellant told the Court below that since the Respondent is a Muleya, he is not eligible to become Chief Mwanza. The Appellant testified that he was entitled to become Chief Mwanza because he was from the Bagande clan. It was his further J7 testimony that both the Respondent and the Intervener were not eligible to become Chief Mwanza because they were not from the Royal Family. The kernel of PW2’s testimony was that the Appellant was the rightful successor to the Mwanza Throne. He testified that the Appellant’s mother was Ticky Chilungu HAMOONGA’s sister. That before his death, the said Ticky Chilungu HAMOONGA told the Bagande Clan that when he (Ticky Chilungu Hamoonga) dies, the Appellant should take over the chieftainship of the Mwanza Chiefdom. He claimed that Ticky Chilungu HAMOONGA wrote a letter to that effect and that subsequently the Bagande Clan met and ratified the appointment of the Appellant to take over the Throne. It was PW2’s further testimony that Sigobola MWANZA, was succeeded by his son, Chibumbu MWANZA, who only ruled for five years and died. He stated that Chibumbu MWANZA was then succeeded by Hinganga HIKAULA who died between 1951 and 1952. He told the lower Court that before HIKAULA died, the Bagande Clan wanted to take back their Chieftainship when they t J8 saw that HIKAULA had aged. PW2 claimed that HIKAULA, however, tricked the Bagande Clan by sending his nephew, Japhet CHIDAMBA to train as a Chief at Chalimbana College. In response to the Appellant’s action, the Respondent filed a defence. He also testified before the lower Court and called two other witnesses to support his defence. His witnesses were Simon Nabulimbe NGANDU (DW2) and Joseph Naluunga Yusula MWANZA (DW3). The gist of the Respondent’s evidence in defence, was that his name was suggested by the late Chief Mwanza, Japhet Chidamba MWANZA, to take over the Mwanza Throne. He told the lower Court that Japhet Chidamba MWANZA was his matrilineal uncle. He explained that his mother, Evelyn NGANDU, also known as Banamoomba, was a sister to Japhet Chidamba MWANZA. It was the Respondent’s further testimony that after the death of Japhet Chidamba MWANZA, there was a succession meeting which was held at the Palace. That the said meeting was attended by more than a thousand people and it was called by Chief Monze, who is also from the Baleya Clan. It was his testimony that the J9 meeting was prompted by the fact that before he died, Chief Japhet Chidamba MWANZA, had proposed names of two candidates for the throne, namely, Leya NGANDU and the Respondent. He testified that his name was agreed to by Chief Monze and everyone else present at the meeting but that he could not be installed as Chief because there was confusion in that the Bagande Clan claimed that they were the ones who were entitled to the Throne. The Respondent went on to testify that after Japhet Chidamba MWANZA’s death, he received a summons from the High Court alleging that he was not supposed to be the next Chief. According to the Respondent, persons belonging to the Bagande clan have no right to be chiefs in the Mwanza Chiefdom. Only those from the Baleya clan can ascend to the throne. He contended, consequently, that coming from the Baleya clan, he (the Respondent) is eligible to be chief while the Appellant, who is a Mugande, is not. This witness testified that Sigobola MWANZA whom the Appellant claimed was the first Chief Mwanza, acutally never became Chief. According to him, Sigobola MWANZA was just married to Chieftainess KABUNDA. J10 DW2, Simon Nabulumbe NG'ANDU testified that the first Chief of the Mwanza Chiefdom was ZULENI. He was the Guardian of the Baleya Shrine. He stated that ZULENI was succeeded by Chieftainess KABUNDA. That after KABUNDA’s reign, her son Chibumbu MWANZA ascended to the throne. According to this witness, this is when the confusion started, and it was because Chief Chibumbu started using his father’s name, ‘MWANZA’. That it was at that point that the Bagande Clan started claiming the Throne. DW 2 went on to tell the trial Court that Chief Chibumbu MWANZA was succeeded by Hinganga HIKAULA, son of Chibumbu’s sister, BUUMBA. He testified that after HIKAULA’s reign, Japhet Chidamba MWANZA ascended to the Throne. He emphasised that all the above Chiefs came from the Baleya Clan. He wondered how the Bagande Clan could have allowed the Baleya Clan to rule over the Mwanza Chiefdom from as way back as 1892 if they were the owners of the Throne. DW3’s evidence was substantially the same as that of DW2. Jll The Intervener filed a defence and counterclaim. He also testified and called one witness in support of his case. He averred that he is a member of the Bagande Clan and that he is a son of Ticky Chilungu HAMOONGA. According to him Sigobola MWANZA was succeeded by Chibumbu MWANZA and not Bokesi MWANZA as claimed by the Appellant. The Intervener counterclaimed that he was the rightful person to inherit the Mwanza Chieftainship. He further told the learned trial Judge that he was more entitled to ascend to the throne than the Appellant because he was older than the Appellant and he started fighting for the throne earlier than the Appellant. He told the Court that a younger person could not become a Chief when there was an eligible older person. The Intervener’s second witness was Lawrence MULUKWA. He substantially repeated what the Intervener had said in his testimony. After considering the evidence that was on record and the submissions of Counsel, the learned trial Judge found that there were basically two critical issues for her decision; these were, firstly J12 which groups should ascend to the throne of Chief MWANZA, and secondly, who was supposed to be Chief MWANZA. The learned trial Judge found, from the evidence, that the dominant Chiefs that had ruled the Mwanza Chiefdom were from the Baleya Clan. That there was no doubt, from the family trees exhibited in Court, that the Baleya Clan had an upper hand in ruling both the Baleya Clan and the Bagande Clan. She found that in fact, the Bagande Clan did not dispute the fact that they had been ruled by the Baleya Clan for over ten decades. The learned trial Judge went on to find that Chieftainess KABUNDA, who was married to a man called MWANZA, a Mugande by Clan, was matrilineal. She expressed the view that the confusion must have started when the son to Chieftainess KABUNDA, Chibumbu MWANZA, started using his father’s name of “MWANZA”. She further found that Chief Chidamba MWANZA ruled from 1952 to 2006, a period of 54 years. According to the Judge, this was a very long period of time and in her view, it could be the reason why the colonial Government recognized the Baleya Clan as owners of J13 the Mwanza Chieftainship and even sent Chidamba to Chalimbana College for training. The Court, at the end of the day, found that the Respondent from the Baleya clan was the rightful heir to the Mwanza Throne. It is against the above determination by the lower Court that the Appellant has now appealed to this Court advancing the following ten grounds of appeal, namely, that: 1. the honourable Court erred in law and in fact when it adopted the Respondent’s family tree which traces the ancestry of Chiefs in a matrilineal society through male parents instead of female parents of the purported Chiefs, and the overwhelming evidence in this matter points to the fact that the Mwanza Chiefdom belongs to the Bagande Clan of the plateau and not the Baleya Clan who came from the Gwembe Valley and that in addition the honourable Court has not addressed the question whether or not the Baleya Clan ascended to the Mwanza throne as caretakers; 2. the honourable Court erred in its finding of fact when it did not take into account written evidence that the colonial masters wanted to destroy the Mwanza Chiefdom because it felt that continuation of Chief Mwanza on the throne was inimical to the colonial rule; 3. the honourable Court erred in fact when it stated that DW2 was Reuben Hakale HAMOONGA when in fact the said witness was the plaintiff’s witness and identified as PW2 in the Court’s own record, and that Mr. HAMOONGA did not testify as stated by the Court; 4. the honourable Court erred in law and in fact when it ruled that there existed a Chieftainess KABUNDA when in fact the colonial records show that the person who was ruling at the time was Chief Mwanza, a male who according to the Appellant was Sigobola MWANZA a Mugande by clan; 5. it is the Appellant’s contention that the honourable Court’s finding that “Chieftainess KABUNDA who was married to a Mugande, a J14 MWANZA, was matrilineal and therefore the confusion must have started when the son of Chieftainess KABUNDA, Chibumbu, started using his father’s name of MWANZA who DW2 and DW3 said hailed from Gwembe Valley” is totally erroneous for the following reasons: i) ii) iii) there is no evidence from the colonial records showing that there was any Chieftainess KABUNDA who ruled Mwanza Chiefdom; the honourable Court’s conclusion that the purported KABUNDA married a Mugande goes against the evidence of the Appellant and the Intervener and the Court has not given any reason why it believed the Respondent’s evidence and not the evidence of the Appellant and the Intervener; there is no evidence on record that in matrilineal communities of the colonial days the name of a father could be adopted for the name of a matrilineal chiefdom; 6. the honourable Court, when it found that the rule by Chief Chidimba MWANZA from 1952 to 2006, a period of 54 years as; “being a long time and no wonder the colonial government of the time recognized the Baleya clan as Chief Mwanza and even sent Chidimba to Chalimbana College for training”, is a tacit acknowledgement by the Court that the Bagande originally ruled the Mwanza Chiefdom but the colonialists wanted to change that as per the evidence on record; 7. the holding by the honourable Court that; “the Bagande have been submissive to the Baleya runs in the face of evidence which shows that the Bagande had even petitioned the native Court against being subjected to the Baleya clan except that the colonial government intervened and ruled that the change to the Bagande clan from the Baleya caretakers should take place after Chidimba whom the colonialists trained to take over from his caretaker uncle; 8. the right of the Bagande Clan to be Chief in Mwanza Chiefdom is an accrued right and should not be thwarted by the malice of the colonialists; 9. recognition of a Chief under the Chiefs Act by the President is not an absolute right as the President has power under the same Act to withdraw recognition; and 10. the evidence attributed to PW2 by the honourable Court is incorrect the testimony of PW2 was in fact that the Mwanza Chiefdom is matrilineal and that it is the male members of the J15 female clan who ascend to the chieftaincy in matrilineal chieftaincies and not descendants of male members of the clan. In support of the above grounds of appeal, the learned Counsel for the Appellant, Mr. MWANSA, filed written heads of argument. On the first ground of appeal, Counsel faulted the lower Court for having believed the Respondent’s family tree. He submitted that the Court should not have relied on the Respondent’s family tree because it started with a male Chief, ZULENI. According to him, the Baleya family tree showed that ZULENI had no matrilineal relative from which to trace ancestry and lineage. That the Baleya family tree does not show who the queen mother of the chieftaincy was. He, therefore, contended that the lower Court misdirected itself because in a matrilineal set up, lineage is traced through female relatives. Mr. Mwansa argued that the Respondent's family tree could have been drawn up specifically for this case because he (the Respondent) did not tell the Court where he got the information contained in the family tree from. Counsel added that while the Respondent claimed to have drafted the family tree with, among others, the Respondent’s father, DW2, DW2 on his part denied J16 being the author of the family tree. He submitted that the lower Court should have regarded the Appellant’s family tree as being more authentic because it was derived from a letter written by Ticky Chilungu HAMOONGA, who had lived during the greater part of the period the Mwanza Chiefdom had been in existence. Counsel went on to submit that it was impossible in a matrilineal clan for a person to adopt the father’s name and call a Chiefdom by his father’s name as claimed by the Respondent. He argued that the other matrilineal family members, whose father’s names were obviously different, but who were also equally entitled to the Throne, could not have silently looked on while the name of the Chiefdom was being changed by one family. Counsel went on to argue that it was inconceivable that the Respondent, who claims to be the rightful heir to the Mwanza Throne, failed to tell the Court what the Chiefdom was called before its name was changed to Mwanza Chiefdom. According to Counsel, only DW3 said that the Chiefdom was called Zuleni Kingdom. With regard to the second ground of appeal, Mr. Mwansa submitted that it was clear from the record of appeal that the J17 colonial Government wanted to find ways of removing Chief Mwanza from the Throne. Counsel based this view on what one colonial Government officer-in-charge said in a 1936, report where he questioned the Government’s earlier decision of recognizing Chief Mwanza. Counsel argued that the evidence on the record of appeal clearly showed that the colonial Government did not like Chief Sigobola MWANZA. On the third ground of appeal, Mr. Mwansa attacked the learned trial Judge’s reference to Mr. Reuben Hakale HAMOONGA as DW2 when, according to Counsel, that witness testified on behalf of the Appellant as PW2. With regard to the fourth ground of appeal, Counsel contended that the lower Court erred in law and in fact when it ruled that there existed a Chieftainess KABUNDA. Counsel averred that the colonial records show that the person who was ruling at the material time was Chief MWANZA, a male, who according to the Appellant was Sigobola MWANZA. He submitted that there was no evidence on the record of appeal to show that ZULENI and KABUNDA were traditional rulers of the Tonga people. J18 According to Counsel it was clear from the colonial minutes taken in 1929 that, apart from the MWANZA who was ruling at that time, there was no trace of a lineage of any other Chiefs in the Mwanza Chiefdom. Counsel, therefore, argued that the only person who could have been Chief Mwanza at that time was Sigobola MWANZA because the evidence adduced on behalf of the Appellant showed that Sigobola MWANZA died in 1930. He added that apart from the testimonies of the Respondent and his witnesses, there was no colonial record showing that the Mwanza Chiefdom has ever been ruled by a woman. He argued that the Court should have also taken into account the fact that KABUNDA could not have become Chief at the time stated by the Respondent because leadership was dominated by men. Counsel contended that there was no evidence to show that Hinganga HIKAULA ruled from 1892 to 1952. He stated that the records of the colonial Government showed that in 1931 the Chief on the Mwanza throne told the then District Commissioner that “he was not a Chief in the old days but was made one by Mr. Guy Taylor.” Counsel expressed the view that if there was a Chief who J19 had ruled since 1892, he could not have said, in 1931, that he was made a Chief by Mr. Guy Tailor. Counsel submitted that since Chief Sigobola MWANZA was dead by 1931 and had been succeeded by Chibumbu MWANZA, it made sense that Chibumbu was the new Chief who was telling the District Commissioner that he was not a Chief in the old days. Counsel, therefore, argued that the only inference the lower Court should have drawn was that the Chief who said the above words could only have been a caretaker Chief. Counsel reasoned that this was because two years earlier, in 1929, there was a Chief who was recognized by the colonial Government. The gist of Mr. Mwansa’s submissions on the fifth ground of appeal was that, on the evidence before it, the lower Court should have found that KABUNDA was merely the wife of Chief Sigobola MWANZA. He argued that the Mwanza Chiefdom is a matrilineal Chiefdom where, according to him, only male children of the Chiefs sisters or those of his maternal nieces can ascend to the Throne. Coming to the sixth ground of appeal, the thrust of Counsel’s arguments was that the lower Court misdirected itself when it J20 considered the 54 years that Chief Japhet Chidamba MWANZA had ruled as being long enough for the colonial Government to acknowledge him as Chief. Counsel submitted that the position taken by the Court presupposed that a caretaker who stays for a long time on the throne automatically becomes a Chief and his matrilineal relatives can succeed him. He stated that the holding also presupposed that if a wrong is done and time lapses, then the wrong can be accepted as being right. Counsel added that the judgment of the learned trial Judge did not take into consideration the fact that the Bagande Clan objected to putting Chidamba on the throne. On the seventh ground of appeal, Counsel contended that the learned trial Judge misdirected herself when she found that the Bagande Clan had been submissive to the Baleya Clan for over the ten decades that the Baleya Clan had ruled the Mwanza Chiefdom. According to Counsel, the Bagande Clan has been fighting to reclaim their entitlement to the Throne but to no avail. Counsel contended that the evidence before the lower Court showed that as soon as the Bagande Clan realized that the Baleya Clan were trying J21 to usurp power from them, they went to Court. He stated that there was, therefore, no evidence to make the lower Court come to the conclusion that the Bagande Clan had been submissive to the Baleya reign. The core of Mr. Mwansa’s submissions on the eighth ground of appeal was that the right of the Bagande clan to be Chiefs in Mwanza Chiefdom is an accrued right and it should not be thwarted by the malice of the colonialist. Counsel argued that no matter how many years had passed, if it was proved that the Bagande Clan was historically the legitimate Clan entitled to rule over the Mwanza Chiefdom, then justice demanded that they should be given back their rightful place in the Mwanza Chiefdom. On the ninth ground of appeal, Counsel basically contended that the President has power under Section 4 of the CHIEFS ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA, to withdraw recognition of a Chief where customary law disentitles a person from holding such office. Counsel also referred us to the case of CHIEF MPEPO V. SENIOR CHIEF MWAMBA1 where this Court stated that "a Chief is selected or appointed as such by the people of the J22 community the Chief is supposed to control over, in accordance with customs and traditions of that community.” With regard to the tenth ground of appeal, Mr. MWANSA essentially submitted that the evidence attributed to PW2 by the honourable Court, was incorrect because the evidence of PW2 was that the Mwanza Chiefdom is matrilineal and it is not the descendants of the male members of the clan that succeed to the Throne. In response, the learned Counsel for the Respondent, Mr. HAMAKANDO, filed written heads of argument. Counsel argued grounds 1, 4, 5 (i, ii, iv) and 10 together. Counsel submitted that the Court did not err when it held that the 1st Respondent is the rightful heir to the Mwanza Chieftainship and was appointed on the basis of matrilineal lineage. Counsel contended that the Respondent’s evidence showed that the late Chief Japhet CHIDAMBA was his uncle; that is his mother’s brother. According to Counsel, this evidence rebutted the claim by the Appellant that the Respondent was not appointed on matrilineal lineage. Counsel went on to submit that the Respondent’s name to inherit the J23 throne was proposed by the late Chief Japhet Chidamba before he died and that the right custom was followed in selecting him as heir to the Mwanza Throne. Mr. HAMAKANDO argued that the Appellant’s claim that all the three Chiefs from the Baleya Clan were caretakers and not substantive Chiefs was a mere illusion as no documentation to support his claim was produced. He submitted that the Appellant’s claim only raised the question as to why the Bagande Clan would have allowed three consecutive Chiefs from the Baleya Clan to ascend to the Mwanza Throne. Counsel contended that although the Appellant claimed that the Bagande Clan had petitioned the Hamaundu Native Court over the then Chief Hinganga HIKAULA’s decision to appoint his nephew, the late Chief Japhet CHIDAMBA, to take over the Throne, the Appellant did not produce the ruling of the Hamaundu Native Court or any other documentation to support his claim. Counsel contended that the issue of Chieftainship is a serious subject where it is important to keep records just like the parties in this matter have kept “family tree” records. In Counsel’s view, the failure by J 24 the Appellant to produce the Native Court documentation or an agreement between Bagande and Baleya Clans to show that Mwanza Chieftainship belonged to the Bagande Clan and that the Baleya Clan were care taker Chiefs raises more questions than answers. Mr. HAMAKANDO combined his arguments relating to grounds 2, 5(ii) and 8. He contended that the Court below did not misdirect itself when it held that the Respondent was the rightful heir to the Mwanza Throne. That the Appellant’s claim that the Colonial Masters wanted to destroy Chief Mwanza are nothing but mere allegations. He argued that it would be a breach of the rules of natural justice to admit such claims when the colonial Masters have not been heard on the allegation. He submitted that the lower Court properly directed itself when it found that the right heirs to the Mwanza Chieftainship were the Baleya Clan. In his view, this is because it is not in dispute that the Baleya Clan has been ruling the Mwanza Chiefdom for the last 114 years. Counsel argued the sixth, seventh and ninth grounds of appeal together. He argued that the CHIEFS ACT confers power on o J25 the President to recognise any person who has been appointed and approved by the people of the Community over which he or she is supposed to superintend. He stated that in the instant case, the President of the Republic of Zambia duly recognised the late Chief Japhet CHIDAMBA as a substantive Chief and not as a caretaker Chief. Counsel submitted further that members of the Bagande Clan have been submissive for the 114 years that the Baleya Chiefs have ruled the Mwanza Chiefdom. He contested the argument by the Appellant that in 1936 the Bagande Clan petitioned in the Hamaundu native Court against being ruled by the Baleya Clan. He reiterated that the Appellant had failed to produce the ruling of the Native Court showing that the decision was in favour of the Bagande Clan. According to Counsel, the Bagande Clan have been submissive because they know that the Baleya Clan are the rightful heirs to the Mwanza Throne. Mr. HAMAKANDO submitted that the lower Court properly directed itself when it held that members of the Baleya Clan are the rightful heirs to the Mwanza Throne. He contended that the J26 entitlement of the Baleya Clan to the Throne could be traced from as far back as 1892 and up until 2006. He submitted that the three Chiefs, who had ruled during that period were all from the Baleya Clan; were all appointed on the basis of matrilineal lineage and, their installation was done in accordance with customary practices of the Baleya Clan. In support of these submissions, Counsel also referred us to the case of CHIEF MPEPO V. SENIOR CHIEF MWAMBA1 which we have already alluded to above. He also relied on the case of MWABA GOODWELL KAPOTWE V. JONES KASOMA TEFWETEFWE AND ATTORNEY GENERAL2, a High Court decision in which the Judge stated that “the selection can be said to have been based on what had become a practice and custom........ of the people”. Counsel, consequently, submitted that the Court below was on firm ground when it held that the Respondent was rightfully appointed to become the next Chief MWANZA. According to Counsel, this is because all customs and practices of the Buleya Clan were observed and the community of the Mwanza Chiefdom witnessed and agreed with the appointment. He prayed that this Appeal should be dismissed. J27 The Intervener did not file any heads of argument and did not appear before us when this matter came up for hearing. Mr. MWANSA filed written arguments in reply to the Respondent’s heads of argument. He argued that in his submissions, the Respondent was missing the real issue in this matter which, according to him, is “whether Chief Zigobola MWANZA was a Mugande or a Muleya”. He echoed his earlier submission that the Respondent’s evidence, that the first Chief was ZULENI, was not supported by any documentary evidence. He argued that when the colonialists arrived, there was a Chief MWANZA on the Throne; and that, according to colonial records, there was no Chief before the colonialists came. In his view, this means that there was no such Chieftainess called Zuleni as argued by the Respondent. He stated that there was no mention of any Chieftainess called Zuleni in the colonial records. According to Counsel, this evidence proved that Zigobola MWANZA was the first Chief of the Mwanza Chiefdom and that the Mwanza Chiefdom belongs to the Bagande Clan. He stated that this Court stands in the elevated position of having the power to correct the wrongs of J28 history by reinstating the legitimate Royal family of the Mwanza Chiefdom, the Bagande Clan, back on the Throne. When the matter came up for hearing, Mr. Mwansa augmented his written submissions by brief oral submissions. His submission, in the main, was that this appeal presented an occasion for this Court to right the wrong that was committed by the colonial masters. That had the lower Court looked at the colonial records presented before it by the Appellant, it would have found that there was no female Chief on the Mwanza Throne when the colonialists came. He contended that there is no record of change of name of the Chiefdom from Zuleni to Mwanza. That the colonial records only show that the colonialists wanted to replace Chief Mwanza with Chief Chona. Mr. MWANSA submitted that the Mwanza Chiefdom, being matrilineal, could not have started with a male Chief Zuleni. According to him, although the Appellant’s testimony depicted Zuleni as a female, the Appellant’s family tree presented him as a male. Counsel, therefore, contended that the appeal should be J29 allowed so that justice is seen to be done by placing the right person on the Throne. In response, Mr. HAMAKANDO also made brief oral submissions before us. He contended that the so called caretakers who ruled the Mwanza Chiefdom for 114 years were not actually caretakers but substantive chiefs who were properly installed to the Throne. He submitted that there was no evidence that Chief Zuleni did not exist. He emphasised that the colonial records referred to by Counsel for the Appellant did not state who was a Chief and who was not a Chief at the time. Mr. HAMAKANDO accordingly, urged us to dismiss this appeal. We have carefully considered the evidence on record, the heads of argument filed by Counsel and the judgment appealed against. In our view, although this appeal has been argued on ten grounds of appeal, its outcome is anchored on only two broad issues which were also identified by the lower Court. These are- 1. which of the two Clans, between the Bagande and the Baleya, is entitled to rule over the Mwanza Chiefdom? 2. who should become the next Chief Mwanza following the death of Japhet CHIDAMBA? J30 On the first issue, Counsel for the Appellant has submitted that the Mwanza Chiefdom belongs to the Bagande Clan to which the Appellant belongs. Conversely, Counsel for the Respondent has maintained that it is the Baleya Clan, to which the Respondent belongs, who are entitled to rule over the Mwanza Chiefdom. Having carefully scrutinised the evidence on record, we have noted that there is no major contention that at one point in the history of the Mwanza Chiefdom, there were persons named Sigobola MWANZA and KABUNDA. The dispute is primarily on who, between the two was the Chief of the current Mwanza Chiefdom at the relevant time. The Appellant has contended that Sigobola MWANZA was the first Chief MWANZA; and that he came from the Bagande Clan. According to the Appellant and his witnesses, KABUNDA was not a Chieftainess but was merely Sigobola MWANZA’s wife. On the other hand, the Respondent and his witnesses testified that KABUNDA, a Muleya by Clan, was the second Chief of the current Mwanza Chiefdom. They testified that the first Chief was ZULENI, also from the Baleya Clan. Counsel for the Appellant has J31 contested the possibility of ZULENI ever having been a Chief of the Mwanza Chiefdom. Counsel has grounded the contention on what he termed as a contradiction between the testimonies of the Respondent and his witnesses, and, the family tree presented by the Respondent. According to Counsel for the Appellant, the testimonies of the Respondent and his witnesses depicted ZULENI as a male while the family tree portrayed him as female. We have, however, carefully checked the evidence of the Respondent and his witnesses and found that they all consistently referred to ZULENI as a male. This is consistent with the depiction in the Respondent’s family tree, which equally described him as male. Mr. MWANSA has, however, gone on to submit that, being a matrilineal Chiefdom, the Mwanza Chiefdom could not have had a man, Zuleni, as its first Chief. In our view, this contention is only flawed but also untenable. It also contradicts the status of their own candidate for the first Chief Zigobola MWANZA. A cursory study of the Appellant’s evidence establishes that he claimed that the first Chief MWANZA was Zigobola MWANZA. The said Zigobola o J32 MWANZA was male. This is evident from the document presented before the lower Court by the Appellant and allegedly written by Ticky Chilungu HAMOONGA. At page 2, paragraph 2 of that document, TicKy Chilungu HAMOONGA narrated in part as follows: “Indeed, on his return to his area, SIGOBOLA with the help of the charms and medicine which he got from Gwembe, defeated his enemies easily because of his powers and success against enemies. SIGOBOLA grew into powerful and respected person and he was eventually chosen and recognized as Chief Mwanza by his people subsequently. Paramount Chief Monze Mukulu recognized him as such, thereby becoming the first Chief Mwanza under whom Chief Chona was his sub-chief." (Emphasis by underlining is ours) The above quotation clearly shows that the Appellant’s side of the story is that the first Chief of the Mwanza Chiefdom was also a male, Sigobola MWANZA. We do not therefore, agree with the Appellant's contention that the first 'chief of a matrilineal chiefdom has to be male. Mr. MWANSA went on to submit that the Baleya family tree did not show that ZULENI had any matrilineal relative from whom he traced ancestry and lineage. In Counsel’s view, ZULENI could not have been a Chief when there was no queen mother of the Chieftaincy. In our view, this contention is very shaky and theoretical. A queen mother simply means the mother of a reigning J33 King or Queen (See: Oxford Advanced Learners Dictionary). It is, therefore, difficult to appreciate the contention by Mr. Mwansa which, in this context, effectively implies that ZULENI had no mother. But the question, that still needs to be answered is:- “who was the Chief of the current Mwanza Chiefdom between Sigobola MWANZA and KABUNDA at the material time?” We must mention that the burden of proof was on the Appellant to establish his case to the required standard. Accordingly, this Court must decide whether, on the evidence on record, the Appellant proved that the Bagande Clan are the owners of the Mwanza Throne. The learned trial Judge in the lower Court found that KABUNDA was a Chieftainess of the current Mwanza Chiefdom. She expressed the opinion that the confusion must have started when Chieftainess KABUNDA’s son, Chibumbu, started using his father’s name of “MWANZA”. Counsel for the Appellant has endeavored to show to this Court that all the Baleya Clan Chiefs ascended to the Throne as caretaker Chiefs. According to the evidence from the Appellant and J 34 his witnesses, the reason for choosing a caretaker Chief when Sigobola MWANZA and Chibumbu MWANZA, respectively died was that Ticky Chilungu HAMOONGA, who was entitled to ascend to the Throne, was too young at the respective times. It is clear from the evidence given by the Appellant and his witnesses that the alleged first Chief Mwanza, Sigobola MWANZA, died in 1930. He was succeeded by his son Chibumbu MWANZA who only ruled for five years and passed on in 1935. PW2 said when Sigobola MWANZA died, Ticky Chilungu HAMOONGA who was entitled to succeed could not do so because he was a boy at the time. This evidence was echoed by the Appellant who said that Ticky Chilungu HAMOONGA could not succeed Chibumbu MWANZA because he was underage when Chibumbu MWANZA died. Ticky Chilungu HAMOONGA’s age, at the time of Sigobola MWANZA’s death as well as at the time of Chibumbu MWANZA’s death, can be ascertained from the document produced by the Appellant before the lower Court which was allegedly written by Reuben HAMOONGA (PW2) and Lenard S. S MUDENDA on behalf of J35 Ticky Chilungu HAMOONGA. It is on page 135 of the record of appeal. According to that document, Ticky Chilungu HAMOONGA was born in 1874 and he died on 8th June, 2006. Simple arithmetic shows that in 1930, when Sigobola MWANZA is said to have died Ticky Chilungu HAMOONGA was 56 years old. It is, therefore, clear that at the time of Sigobola MWANZA’s death, Ticky Chilungu HAMOONGA was not a boy as claimed by PW2; he was old enough to take over from Sigobola MWANZA. Further, it is the Appellant’s evidence that Chibumbu MWANZA ruled the Mwanza Chiefdom for only five years before he died in 1935. Again, simple arithmetic shows that at the time of Chibumbu MWANZA’s death, Ticky Chilungu HAMOONGA was 61 years old. We, therefore, find it difficult to believe the Appellant’s evidence that Ticky Chilungu HAMOONGA was too young to ascend to the Mwanza Throne both at the time Sigobola MWANZA died as well as at the time Chibumbu MWANZA died. We do not, accordingly, see any reasonable justification as to why the Bagande Clan could have chosen people from the Baleya Clan as caretaker J36 Chiefs when the person they claim they had chosen to ascend to the Throne was old enough to become a Chief at the time. The only irresistible conclusion is that both Chibumbu MWANZA and Hinganga HIKAULA were not caretaker Chiefs but substantive Chiefs. This conclusion is buttressed by the fact that the colonial records that were produced by the Appellant, did not refer to any of the Chiefs that came after Sigobola MWANZA as caretaker Chiefs. Counsel for the Appellant maintained that KABUNDA could not have been a Chief in a matrilineal Chiefdom. Counsel’s understanding of the word ‘matrilineal’ is that “only male children of the Chief’s sisters or those of his maternal nieces can ascend to the throne....” Clearly Counsel’s conception of the word ‘matrilineal’ is flawed. ‘Matrilineal’ has been defined in the OXFORD ADVANCED LEARNER’S DICTIONARY, INTERNATIONAL STUDENT’S EDITION (9th EDITION), OXFORD UNIVERSITY PRESS: OXFORD as follows: “used to describe the relationship between mother and children that continues in a family with each generation, or 'sth' that is based on this relationship....” J37 It is evident from the above definition that matrilineal relates to the relationship between a mother and children, whether the children are male or female. The Respondent’s evidence and family tree establishes that KABUNDA was ZULENI’s niece; KABUNDA was the daughter of ZULENI’s sister, NANZALA. The argument by Counsel for the Appellant that KABUNDA could not have succeeded ZULENI merely on the ground that she was female is, accordingly, untenable. Counsel for the Appellant went on to submit that it was impossible, in a matrilineal society, for Chibumbu MWANZA to change the name of the Chiefdom from ZULENI to MWANZA. According to Counsel, the other members of the Baleya Clan would not have allowed that. The above contention by Counsel for the Appellant is at best speculative. There is evidence from the Respondent and his witnesses that when Chibumbu succeeded his father he started using his father’s name, MWANZA, and the Chiefdom came to be referred to as the Mwanza Chiefdom. In fact the learned trial Judge made the following finding of fact in this regard: J38 “I find that Chieftainess KABUNDA who was married to a MUGANDE a MWANZA, was matrilineal and therefore the confusion must have started when the son to Chieftainess KABUNDA, Chibumbu started using his father’s name of “MWANZA” who DW2 and DW3 said hailed from Gwembe Valley.” In our considered view, the foregoing finding of fact by the learned trial Judge was properly grounded on the evidence on record of appeal. We do not see any valid legal basis for reversing the said finding. In so holding, we affirm our decision in the case of NKHATA AND FOUR OTHERS V. ATTORNEY GENERAL2, where we said that: “a trial Judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: (a) (b) (c) (d) by reason of some non-direction or mis-direction or otherwise the Judge erred in accepting the evidence which he did accept; in assessing and evaluating the evidence the Judge had taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the Judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or in so far as the Judge has relied on manner and demeanor, there are other circumstances which indicate that the evidence of the witnesses which he accepted was not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer. In our view, the Appellant has not demonstrated to us any of the grounds we established in the NKHATA2 case. We, therefore, J39 hold that we cannot interfere with the learned trial Judge’s finding of fact. We uphold the finding by the learned trial Judge that Sigobola MWANZA was never a Chief in the current Mwanza Chiefdom. He was merely the husband of Chieftainess KABUNDA. We also uphold the holding by the lower Court that the confusion must have started when Chibumbu started using his father’s name of “MWANZA”. Counsel for the Appellant has also submitted that the colonial records did not show that there was Chief ZULENI and Chief KABUNDA at any time in the history of the Mwanza Chiefdom. However, a study of the record of appeal establishes that the colonial records that Counsel has referred to are minutes of an Indaba held at Mazabuka on 21st May, 1929 by the Governor of Northern Rhodesia; the Mazabuka District, Batoka Province, Quarterly Report of April-June, 1931; the Southern Province, Mazabuka District Tour Report No. 4/ 1936 and the Mazabuka Tour Report 5 of 1936. Clearly, the said colonial records relate to the period ranging from 1929 to 1936. A cursory look at the evidence from the J40 Respondent establishes that the Respondent did not claim, that Chief ZULENI and Chieftainess KABUNDA ruled during that period. It is evident from the family tree presented by the Respondent that Chief ZULENI and Chief KABUNDA ruled the Mwanza Chiefdom before 1892. This is because the only years indicated in the family tree, for Hinganga HIKAULA, show that HIKAULA ruled from 1892 to 1952. In any case, we have carefully studied the said colonial records and we have found that the said records did not state the actual names of the Chief Mwanza they were referring to. We do not, therefore, agree with the assumption by Counsel for the Appellant that the Mwanza referred to in the 1929 colonial records could have only been Sigobola MWANZA. Counsel for the Appellant has further submitted that it is not possible that Hinganga HIKAULA could have ruled from 1892 to 1952 because, according to Counsel, the man on the Throne in 1931 told the District Commissioner that “he was not a Chief in the old days but was made one by Mr. Guy Taylor”. According to Counsel for the Appellant, if Hinganga HIKAULA had ruled from J41 1892 he could not have said in 1931 that he was not a Chief in the old days and that he was only made a Chief by Mr. Guy Taylor. A perusal of the colonial record, from which the above statement was extracted by Appellant, does not indicate how long ago what was referred to as “the old days” was. It cannot, therefore, be assumed that the old days could not have been any period earlier than 1892. In addition, Counsel for the Appellant has contended that the only person who could have said in 1931 that he was made Chief by Mr. Guy Taylor was Chibumbu MWANZA who succeeded Sigobola MWANZA in 1930. This contention clearly contradicts what is contained in the document allegedly written for Ticky Chilungu HAMOONGA by PW2 and Lenard S. S MUDENDA. In that document, the authors stated the following: “In 1930, he (Sigobola MWANZA) died and the Bagande Clan sat and met under the guidance of the old man called Hatambu who was the uncle to 1st Chief Mwanza. prevailed over everybody and told the meeting that only the son of Chief Mwanza was going to be installed because of the supernatural powers Chief Mwanza had, nobody else was going to manage and his son Chibumbu HAMOONGA was capable of handling his father’s magical powers, he should therefore, be appointed as Chief Mwanza The old man Hatambu The above extract clearly shows that Chibumbu MWANZA was not made Chief by a Mr. Guy TAYLOR. The extract shows that J42 Chibumbu MWANZA was made Chief by the Bagande Clan under the guidance of the old man HATAMBU. It follows that the Chief referred to in the 1931 colonial Government document, who said that he was made Chief by Mr. Guy Taylor, could not have been Chibumbu MWANZA. Counsel for the Appellant also submitted that the Respondent did not state what name the Mwanza Chiefdom was called before Chibumbu MWANZA became Chief. It is, however, clear from the record that in response to a question by Counsel for the Appellant, DW2 told the lower Court that before Chibumbu MWANZA changed the name of the Chiefdom to “Mwanza Chiefdom”, it was known as “Zuleni Kingdom” because ZULENI was the Chief at the time. This evidence was not challenged by Counsel for the Appellant by further cro s s- examination. Counsel for the Appellant has also faulted the learned trial Judge for having referred to Reuben Hakale HAMOONGA as DW2 when that witness testified as PW2. We have taken a careful look at the learned trial Judge’s judgment and we have indeed noticed that when summarizing the witnesses’ evidence, the learned trial Judge J43 referred to Reuben Hakale HAMOONGA as DW2 when DW2 was Simon Nabulimbe NGANDU. However, in our view, the wrong description of DW2 as Reuben Hakale HAMOONGA instead of Simon Nabulimbe NGANDU, did not have any detrimental effect on the decision of the lower Court. This is because the evidence that was reproduced by the learned trial Judge under DW2 was in fact that of Simon Nabulimbe NGANDU. Further, even in arriving at her decision, the learned trial Judge properly made reference to the evidence of Simon Nabulimbe NGANDU as the evidence of DW2. Counsel for the Appellant insisted that the lower Court erred in its findings of fact when it did not take into account written evidence that the colonial masters wanted to destroy the Mwanza Chiefdom because it felt that continuation of that Chiefdom was inimical to the colonial rule. Counsel seems to have based this argument on a portion of the Mazabuka Tour Report 5 of 1936, where the District Commissioner of that time said the following: “The only way - I think - of settling the matter satisfactorily is to adopt Mr. Benson’s recommendation and call both Mwanza and Chona sub-chiefs (of those who recognize them) under Chief Monze and let the matter of succession be settled at the time of MWANZA’s death. Possibly Government should let it be known that it considers Chona the rightful Chief and that he will probably be Chief of whole area on MWANZA’s death.” J44 In our view, the contention that the colonial Government wanted to destroy the Mwanza Chiefdom has nothing to do with the dispute in the instant case. The dispute in this case relates to whether the Mwanza Chiefdom belongs to the Bagande Clan or the Baleya Clan. The Appellant did not adduce any evidence to show that the colonial Government preferred the Baleya Clan to rule that Chiefdom. It is clear from the extract from the Mazabuka Tour Report 5 of 1936 that the alleged hatred by the colonial Government against the Mwanza Chiefdom did not have anything to do with whether the Chiefdom belonged to the Bagande Clan or the Baleya Clan. In any case, the Appellant’s own evidence shows that the Bagande Clan is the one which purportedly installed the alleged caretaker Chiefs, Chibumbu MWANZA and Hinganga HIKAULA to the Mwanza Throne. There is no evidence to show that the colonial Government instigated the installation of the two Baleya Clan members as Chiefs of the Mwanza Chiefdom. Counsel for the Appellant further contended that had the o lower Court looked at the colonial records produced by the Appellant she would have come to the conclusion that the Mwanza <. J45 Chiefdom belongs to the Bagande Clan. We have painstakingly studied all the colonial records produced by the Appellant before the lower Court. In our view, there is nothing from the said records which shows that the Mwanza Chiefdom belongs to the Bagande Clan and not the Baleya Clan. We have found that only one of the colonial reports documents matters relating to disputes concerning successions within Mazabuka District. This is the Mazabuka Tour Report 5 of 1936. Although the Appellant claims that the Native Courts presided over the dispute between the Bagande Clan and the Baleya Clan in 1936, the Mazabuka Tour Report of 1936 only talks o about a dispute relating to who should be on the throne in Chief Siamaundu area between a person called MALANGATA and another called SIAMAUNDU. That report also documents a dispute relating to who should be the Chief in another area between a man named Chisuwo and another called Ufwenuka. In relation to the Mwanza Chiefdom, the only dispute documented by the colonial masters in the Mazabuka Tour Report 5 of 1936 related to the issue of whether Chief Mwanza should be / *• J46 made a subordinate Chief to Chief Chona. The report stated the following in relevant parts: “Chief Mwanza has a large area, containing a population of some 5,800. In this case, due also to the facts set forth above with regard to the appointment of Chiefs, Government has definitely made a mistake. The District Commissioner received well-supported claim from one Chona to the Chieftainship of the whole of this area, and his conclusions were again investigated on the spot. ... For the above reasons it is very strongly recommended that Chona be appointed a subordinate authority over his immediate area now, and I am of the opinion that Government should let it be known now that he will eventually take over the whole area. ...” We, therefore, do not agree with Counsel for the Appellant that the colonial records produced before the learned trial Judge documented the dispute over the Mwanza Throne between the Bagande and the Baleya Clans. Counsel for the Appellant also submitted that recognition of a Chief under the CHIEFS ACT can be withdrawn. We hold the view 0 that the ground of appeal relating to this aspect did not attack any particular holding or finding of the learned trial Judge. On the totality of the issues raised in this appeal, we hold that the Baleya Clan is the legitimate Clan entitled to rule over the Mwanza Chiefdom. In view of this holding, it follows that the / * J47 Respondent is entitled to become the next Chief Mwanza following the death of Chief Japhet CHIDAMBA who died in 2006. Accordingly, we hold that the Appellant’s appeal lacks merit. We dismiss this appeal on all the grounds of appeal with costs to be taxed if not agreed. f I. C. Mambilima CHIEF JUSTICE - —---- R. M. C. Kaoma SUPREME COURT JUDGE ajimanga SUPREME COURT JUDGE