Senior Chief Chibale & Another v Muchinshi (Appeal 216 of 2012) [2016] ZMSC 10 (26 January 2016)

, . IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: APPEAL NO. 216/2012 SCZ/8/189/2012 SENIOR CHIEF MWEWA CHIBALE LWENGWE BULANDI KABASO 1ST APPELLANT 2ND APPELLANT AN:J ALEX CHUMA MUCHINSHI RESPONDENT CORAM: Mwanamwambwa, D. C. J, Muyovwe, Kaoma, J. J. S. On the 14th July, 2015 and 26th January, 2016 For the AFpellants: For the Respondent: Mr. Buta Gondwe of Messrs Buta Gondwe and Co. Mr. P. Kasonde of Messrs Patrick Kasonde and Co., Ndola. JUDGMENT Mwanamwambwa, D. C. J, delivered the Judgment of the Court. Case referred to: 1. Wilson Masauso Zulu V. Avondale Housing Project (1982) Z. R. 172 (SC). 2. The Attorney General V. Marcus KapumpeAchiume (1983) Z. R. 1 (SC). 3. Masauso Zulu V. Avondale Housing Project (1982) ZR 172 (SC) Legislation referred to: The High Court Act, Cat:! 27 of the Laws of Zambia. Section 34 . ' -J2- This is an appeal from the decision of the High Court declaring the Respondent as Chief Mbulu (Kasolwe Chabala) of Chishi Island in Samfya District. The brief facts of the matter are that sometime in August, 2003, Chief Mbulu of Chishi Island in Samfya District died. After his deatl'._,the Respondent wrote to Senior Chief Mwewa to allow him to contest the Chieftainship. Mbulu Chiefdom fell under nd Senior Chief Mwewa, the 1st Appellant in this matter. The 2 Appellant wrote to the Senior Chief so that he could also be nd allowed to contest the elections. The Respondent and 2 Appellant contested the elections. According to the Respondent, he was allowed to contest the elections by Senior Chief Mwewa. However, the case for the Appellant is that the Respondent was not allowed to contest. They stated that they were surprised to find that the Respondent was one of the candidates. The elections were held on the 27th of January, 2004. All the village Headmen and members of the Electoral College gathered at the Local Court on Chishi Island to elect a new Chief. Senior Chief W:wewaChibale, the Council Secretary and Police Officers were present at the gathering. The Council Secretary asked for the family trees but Senior Chief Mwewa said that the issue of the family trees would be considered later. , ' -J3. Before, the elections could commence, a Chairman of elections was elected. This was CosmasMwansaShindano, PW2 in the Court below. The Chairman asked Senior Chief Mwewa for permission to introduce the candidates. Permission was granted and the Chairman introduced the candidates. After the elections, the Respondent emerged winner with 34 votes. The 2nd Appellant was second with 31 votes. When these results were presented to Senior Chief Mwewa, he refused to acknowledge the Respondent as Chief Mbulu on ground that he does not belong to the royal family. The following day, the 28th January, 2015, Senior Chief Mwewa called the four candidates for a meeting. The meeting was also attended by Chief Mwansakombe and the Clerk of Court. The Chairman for the meeting was Chief Mwansakombe. The family trees for the candidates were read out and the Respondent was told that he did not belong to the royal family tree. Senior Chief Mwewa proceeded to recognise the second Appellant as Chief Mbulu. However, according to the evidence on record, the family tree is as follows: Kasolwe Chabala came to Chishi Island with his sister, Mupete Chabala. The said sister had 7 children. The first of the 7 children was Nyumba Sete and the second of the 7 cnildren was Musunge Sete. The Respondent comes from the first born sister, Nyumba Sete while the 2nd Appellant comes from the second born sister, Musunge Sete. . ' -J4- As a result of the above events, the Respondent brought this action, in the High Court, against the Appellants for- 1. A declaration and an order that having been duly elected by the Electoral College to the Kasolwe throne as Chief, he should accordingly be recognised as Chief Kasolwe by all stakeholders; 2. An order compelling the 1st Defendant to recognise and install the Plaintiff to the throne of Chief Kasolwe; and 3. An order of interim injunction restraining the 1 st Defendant from nullifying the election of the Plaintiff and a further order restraining him from holding fresh elections till further order of the Court. UnfJrtunately, the then Senior Chief Mwewa died before he testified in the High Court. After hearing the matter, the learned trial Judge was of the view that the Appellants did not produce any proof to support their assertion that the 1st Appellant had rejected Respondent's candidature through a letter. That the the st Appellant's conduct at the meeting of 27th January, 2004, confirms the Respondent's contention that his candidature was approved by the 1st Appellant. The Court added that if the Respondent's candidature was rejected, one would have expected the 1st Appellant to have said so before the elections started. The Court added that his silence meant that there was nothing wrong with the Respondent's candidature. The learned trial Judge concluded that Senior Chief Mwewa approved the Respondent's candidature to contest for the Mbulu Chieftainship. -J5- On whether the Respondent is from the royal family, the learned trial Judge was of the view that it was not in dispute that the Mbulu Chiefdom used to be known as Kasolwe Chabala. That it was changed to Mbulu Chiefdom by Mwansa Musase, the fourth successor to the Chieftainship. The Judge in the Court below fOD.ndas a fact that the Respondent was from the royal family ani that he was eligible to succeed the Kasolwe Chabala, now known as the Mbulu Chieftainship. The court stated that it was interesting to note that in 1993, the Respondent was found to be eligible to contest the same chieftainship but was found to be unsuitable ten years later. The court added that if the first Chief Kasolwe Chabala was an ancestor of both the 2nd Appellant and Respondent, one wonders why the Respondent could be said to be an outsider. The Court was of the view that it was because the 1st Appellant originates from the second born sister Musenge Sete and hence he wanted all the Chiefs to originate from that family. The learned trial Judge found that the Respondent had proved, on a balance of probability, that he was eligible to succeed and to contest the Chief Mbulu's chieftainship. That his candidature was approved by the 1st Appellant and that he emerged winner beating the other three candidates, including the 2nd Appellant. The court below granted the declaration that having been duly elected by the Electoral College to the Kasolwe Mbulu throne as Chief, he should accordingly be recognized as -J6. such by all stakeholders and that the 15t Appellant should recogmze and install the Respondent to the throne as Chief Mbulu. The Appellants appealed against the above decision on three grounds. These are- Ground one That the learned trial Judge erred in law and in fact by failing to give significance to the requirement for the family tree upon which accession to the Mbulu Chiefdom was to be premised. Ground two The learned trial Judge should have determined this matter with the help of assessors knowledgeable with the customary law of accession to the Chief Mbulu throne. Ground three The Respondent failed to prove that he was entitled to be the new Chief Mbulu to replace the late Abel Chlkwa Bulandl. In ground one, counsel for the Appellant submitted that it should be noted, from the Record of Proceedings that the submission of a family tree or ensuring that the successful candidate was in the line of those that were eligible to succeed the late Chief Mbulu, was necessary for one to qualify for election as Chief Mbulu. Counsel stated that Ng'umbo area has five different chiefdoms. That some are even related but each one has a different family tree. -J7- Counsel added that it was critical for the Court to establish the correct family tree in resolving the matter. That the chiefs, who are the custodians of the question of succession and of the critical and material question of family trees stated in their letter to the District Commissioner for Samfya that the family tree produced by the Respondent did not exist. Cou:lsel stated that the Respondent is eligible for the Kasolwe Chabala Chieftainship in Chibaye Chiefdom because that is where the Respondent's family tree would apply. He added that the Mbulu Chiefdom comes from Musenge Sete while the Respondent derives from Nyemba Sete who was the elder sister to Musenge Sete. On behalf of the Respondent, counsel submitted in ground one that the learned trial Judge was on firm ground when he held that the Respondent was from the royal family tree. That if the Resr;ondent was not from the family tree, he would not have been allowed to contest the chieftainship earlier on in 1993. It was stated that the evidence on record shows that the Senior Chief Mwewa Chibale had allowed the candidature of the Responc.ent and was physically present when the elections were conducted. Counsel added that for Senior Chief Mwewa Chibale to have allowed the Respondent to contest the chieftainship in 1993, it means that he had seen the Respondent's family tree and approved it. . ' -J8. Counsel added that both Appellants originated from Musenge Sete, the second daughter of Kasolwe Chabala's sister and therefore, the Senior Chiefs preference of the 2nd Appellant to the Respondent who originates from Nyumba Sete, the first daughter .::>fKasolwe Chabala's sister. We have looked at the evidence and the parties' submissions on this ground. It is not in dispute that all the parties in this appeal come from a common ancestor called Kasolwe Chabala who came from Kola with his sister, Mupeta Chabala. The sister had seven children. The first born was Nyumba Sete, from whom the Respondent comes and the second born was Musunge Sete, from whom the 2nd Appellant comes. In our view, both the Respondent and the 2nd Appellant come from the Royal Family. It is very clear where the Respondent and the 2nd Appellant emanate from. They come from one family. Counsel for the Appellants argued that Ng'umbo area has five chiefdoms and that each of the sisters was given an area to rule. That the Respondent is eligible to ascend to the Kasolwe Chabala Chiefdom known as Chibaye Chiefdom. However, the evidence on record shows that the Kasolwe Chabala Chiefdom is the same as the Mbulu Chiefdom. That the name was changed by Mwelwa Chabala. Further, there is no evidence on record to show who was in charge of giving the seven sisters the places to In fact, the 2nd Appellant rule and what these seven places are. stated the followingwhen he was being cross examined: -J9- "the Senior Chief was present at the elections. All the seven families are royal families. Alex (meaning the Respondent) comes from the first born. Lengwe (meaning the 2nd Appellant) is from the second born. Nyumba Sete and Musunge Sete were sisters." We wish to add that the evidence on record also shows that when the Council Secretary asked for the family trees of the candidates on the date of the elections, the then Senior Chief Mwewa Chibale stated that the family trees would be presented at a later stage. It is odd that immediately after it was announced that the Respondent obtained the highest number of votes in the elections, the then Senior Chief Mwewa Chibale stated that the Respondent was not from the Royal Family Tree. The conduct of the then Senior Chief Mwewa shows that he expected a particular candidate to win. But because the candidate of his choice did not win, he decided to state that the Respondent was not from the Royal Family Tree. If indeed it was true tha: the Respondent was not from the Royal Family, the then Senior Chief Mwewa would have stated it before the elections, that is, when he was asked by the Council Secretary instead of saying it after the results were announced. Apart from the above, the Respondent was allowed to contest the chief Mbulu chieftainship in 1993. At that time, the issues of the Respondent not belonging to the family tree were not raised. There is nothing that happened between 1993 and -J10- 2004 that made the Respondent ineligible to ascend to the throne. Therefore, from the evidence on record, we are of the view that the findings of fact made by the learned trial Judge were supported by the evidence on record. On the authority of Wilson Masauso Zulu V. Avondale Housing Project Attorney General V. Marcus Kampumba Achiume(21 ll ) and the , we do not find it justifiable to interfere with the learned trial Judge's findings of fact and we uphold them. Accordingly, we dismiss this grou::1dof appeal for lack of merit. In ground two of the appeal, counsel for the Appellants argued that Section 34 of the High Court Act allows the Court to sit with assessors in a matter involving customary law. He submitted that this is one matter where the Court should have sat with assessors to assist it. Counsel added that public policy entails that this be done otherwise, there would be a risk in the degeneration and unending succession wrangles and threat to public peace. On behalf of the Respondent, it was submitted in ground two, that there was no need for the Judge in the Court below to sit with assessors because the facts and issues for determination were clear and most of the evidence was common cause between the parties. Counsel added that the procedure for election was equally clear and strictly followed. That Senior Chief Mwewawas present during the elections and there was no protest from him. He -J11- argued that such clear evidence did not warrant the presence of assessors because the election process was minuted and the position of Senior Chief Mwewawas clear. Counsel contended that it is not enough for the Appellants to raise the issue of calling assessors without highlighting the issues that needed to be determined with the help of assessors and that in the absence of specifying what duty the assessors should have performed, it was futile as it did not assist the court. He stated that assessors would only become necessary where tradition is unclear and there is an issue to be determined by assessors. That in this matter, there was no need for assessors at all, as all matters were clear except that the Senior Chief, as an afterthought, got a result he did not expect and, therefore, refused t:J install the Respondent as Chief Mbulu. Section 34 of the High Court Act, Cap 27 of the Laws of Zambia provides that- 34. (1) The Court may, in any cause or matter in which questions of African customary law may be material to the issue- (a) call as witnesses thereto chiefs or other persons whom the Court considers to have special knowledge of African customary law; (b) call any such chiefs or persons to its assistance as assessors of African customary law; (c) consult, if it shall think fit and, to such extent as to it seems proper, give effect to any book or . J12- publication which the Court shall consider to be an authority on African customary law. (2) It shall be the duty of assessors called under the provisions of subsection (1) to advise the Court on all matters of African customary law which may arise in the cause or matter concerned, and to tender their opinions to the Court on such cause or matter generally, but in reaching its decision the Court shall not be bound to conform to such opinions. Fron the above section, it is clear that calling of assessors by the Court is discretionary. The Court has discretion to call assessors if it is of the view that there is need to. In the case before us, two of the witnesses were members of the Royal Family, three were Headmen, one was a Chiefs Retainer and one was the sitting Senior Chief Mwewa Chibale. We are of the view that these witnesses possessed sufficient knowledge on the issue before Court. They are all Senior members of the traditional establishment in the area. There was no need for the Court to call for assessors who would come and give similar evidence to what was already before Court. Further, the evidence in this case is so clear that there was no need for the trial Judge to exercise his discretion of calling for assessors to help him determine the issue at hand. For the reasons we have gIVenabove, we find no merit m this ground of appeal and dismiss it. -J13. In ground three, counsel for the Appellants submitted that there were a lot of questions that were left unanswered, including the position of the late Senior Chief with respect to the eligibility of the Respondent to contest and the issue of the family tree. Counsel argued that the issue of the difference between the Kasolwe Chabala throne and the Mbulu chieftainship was also not resolved. He referred to the case of Zulu v. Avondale Housing Project Umitedl3) which states that the failure of a defence does not automatically entitle a Plaintiff to judgment but that the Plaintiff r_eeds to prove his claim before court. On behalf of the Respondent, Mr. Kasonde submitted that the trial Court sufficiently resolved the issue of the Respondent's family tree and the issue of the chieftainship of Kasolwe Chabala being changed to Chief Mbulu. We have considered the arguments in support and against this ground. We are of the view that the issues raised in this ground of appeal have already been dealt with in ground one. They are a repetition of what has been submitted in ground one. We, therefore, do not find it necessary to deal with them. Accordir.gly, we dismiss this ground of appeal for lack of merit. All in all, this appeal fails for lack of merit. We accordingly dismiss it. We award costs to the Respondent, to be taxed in default of agreement. . . -J14- ...... - . EoN. C. MUYOVWE SUPREME COURT JUDGE <: .0 •••• 0~:9!0 •• 0...c;:;.. RM. C. KAOMA SUPREME COURT JUDGE