Steven Nkole and Anor v Paul Mwaba Mwila and Anor (APPEAL NO. 255/2022) [2025] ZMCA 19 (24 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 255/2022 HOLDEN AT NDOLA ( Civil Jurisdiction) S TEVEN NKOLE ADAMSON CHIB AND 2 4 FEB 2025 REGISTRY 2 APPELLANT APPELLANT PAUL MWABA MWILA BAXTONE CHOLA CHISHALA 1 ST RESPONDENT 2ND RESPONDENT Coram: Makungu, Banda-Bobo and Muzenga, JJA On the 6 th and 24t h February 2025 For the 1st Appellant: Mr. C. P. Chilambwe and Ms. B. Mulai both of Messrs Chipoma Chilambwe Legal Practitioners F or the 2 nd appellant: In person For the ] st Respondent: No appearance For the 2 nd Respondent: In person JUDGMENT 14. AKUNGU JA, delivered the Judgment of the Court. Cases referred to: 1. John Malokotela v. Majaliwa Sitolo Muwaya and Thaya Odemy Chiwala (2010) Z. R 1 2 . Abraham Mawowo Alias Temwani v. Ted Chisanga cause No. 2012/ HN/235 3 . Attorney General v. David Mumba and Nicolas Chileshe, CAZ Appeal No. 138/2 022 4 . Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 (S. C.) 5. Laston Phiri v. Tropical Diseases Research Center, SCZ Judgment No. 005/2014 6. Stanley Mwambazi v. Morester Farms Limited (1977) Z. R. 108 (S. C. 7. Chjsavwa Muwowo Alias Chief Dangolipya Muyombe v. Abraham Muwowo Alias Tenwanani Winston Muwowo (Suing as Chairman of the Uyombe Royal Establishment}, SCZ Appeal No. 115/ 2014 8. Chief Mpepo (also known as Aexson Chilufya Mwamba) v. Senior Chief Mwamba (also known as Faison Chilekwa YambaYamba}, SCZ No. 25/ 2008 9. Moonda Jane Mungaila-Mapiko, John Muchabi (Suing On Behalf Of The Traditional Council Of Mungaila Royal Establishment} v. Victor Makaba Chaande, CAZ Appeal No. 94/2022 10. Evans Mwiya, Edward Chabalanda v. Eason Musokotwane , CAZ Appeal No. 010/2021 Leg islation referred t o: 1. The High Court Act, Chapter 27 of the Laws of Zambia. 2 . The Court of Appeal Rules, S. I No. 65 of the Laws of Zambia. Other authorities referred to: 1. Cabinet Circular No. PA4/22 of 1972 1.0 INTRODUCTION 1.1 This appeal stems from the judgment delivered in cause number 2020/HN/045 on 30th June 2022, by the Honourable Justice Y. Chem be. In that judgment, the plaintiffs claim to be the rightful Chief Mwenda, of the Chishinga people of Chipili District, Luapula Province, Zambia, was dismissed and so was the 1st defendant's counterclaim that he is the rightful heir to the -J2- throne. Currently, the plaintiff Paul Mwaba Mwila is the 1st respondent while the 1st defendant Steven Nkole is the 1st appellant. 2. 0 BACKGROUND 2 .1 The background of the case is that when the action was commenced, on 20th February 2020, Paul Mwaba Mwila, the 1st respondent herein was the plaintiff who went against Stephen Nkole the 1st appellant herein as the 1st defendant and Senior Chief Mushota, who is not a party to the appeal as the 2n d defendant. 2. 2 On 27th November 2020, Adamson Chibwe, the 2 nd appellant and Baxtone Chola Chishala, the 2 nd respondent were joined to the proceedings as 3 rd and 4 th defendants respectively. We shall henceforth ref er to the parties by their designations in the lower court until we start discussing the grounds of appeal. 2. 3 The plaintiff made the following claims: a) For a declaration that he is the legitimate and rightful Chief Mwenda. b) An order that the 1st defendant is not eligible to hold the position of Chief Mwenda. -J3- c) A declaration that in the selection and installation of the 1st defendant as Chief Mwenda traditions and customs of the Chishinga people were not followed, therefore the installation is a nullity. d) An injunction to restrain the 1st defendant from claiming to be Chief Mwenda. e) Costs. 3.0 STATEMENT OF CLAIM 3.1 In the statement of claim, the plaintiff stated that the succession to the throne of Chief Mwenda follows a matrilineal system. The successor must come from the N chima lineage of the N goma Clan. Seniority is strictly observed in selecting a successor. If both a nephew and an uncle are eligible candidates, the nephew cannot ascend to the throne if the uncle is available and willing to be chief. This rule is referred to as Kwapa Takuchila Kubeya. 3.2 During the period of succession Abena Mwansa (bashilutambl) take care of the throne. They also play a significant role in ensuring that the traditions, customs, and rituals are observed. 3. 3 A person cannot become chief unless all the traditions and customs are observed, including being lifted on the shoulders by -J4- the Mwansas, being taken to Amakuba, taking and hiding Inongo Ya Chalo, and sitting on the throne. 3. 4 The installation ceremony takes place at the palace. The throne of Chief Mwenda became vacant on 4 th March 2019, after the demise of Chieftainess Mwenda VII. 3.5 That the 1st defendant is ineligible to be Chief Mwenda because he is his nephew and he belongs to the Chikwa Nambale lineage which was cursed and banned from succeeding to the throne. The plaintiff claimed that the 1st defendant did not abide by the set customs and traditions for installation as Chief. 3.6 The plaintiff further alleged that the 2 nd defendant Chief Mushota who handpicked the 1st defendant to rise to the throne, lacked the authority to do so. 4.0 PLAINTIFF'S EVIDENCE AT TRIAL 4.1 During the trial, the plaintiff testified on his own behalf and called three witnesses. His evidence was that the late Chieftainess Mwenda who died on 4th March 2019 and was buried on 11 th March 2019, was his mother. 4. 2 He hails from the Nchima clan who chose him as successor to the throne on 14th March 2019, after ruling out some other -JS- nominees. The other royal families also nominated some candidates. The 1st defendant was chosen from sub-Chief Musele. The 4 th defendant was also nominated from the Kaunda family by sub-Chief Mulunda. 4. 3 He stated that according to the Chishinga and Ngoma clans, a nephew cannot become chief where there is an uncle who is also willing to be chief. Since he is the uncle to the 1s t defendant he was enthroned according to all the traditions , rituals , and customs that he mentioned in the statement of claim. 4 .4 Later he learnt that the 1st defendant Steven Nkole was installed as Chief Mwenda at Chikaya Primary School. A dispute ensued and all the contestants met at the House of Chiefs on 16th July 2019. However, the dispute was not resolved. 4. 5 Later, the plaintiff learnt that the 1st defendant had gone to see Chief Mushota in Kawambwa on 10th December 2019. Chief Mushota declared the 1st defendant as the duly selected successor to the throne. This was disputed. 4. 6 On 16 th May 2019, Baxtone Kaoma Chishala who was selected as Chief by the Kaunda family passed away. They replaced him with the 4 th defendant Baxtone Chola Chishala. -J6- 4. 7 Steven Nkole was given the instruments of power by the 2 nd defendant Chief Mushota in Kawambwa to the surprise of the other interested parties who wondered how the instruments of power had moved from Chipili to Kawambwa. 4.8 He narrated how Chibwe Kamina in his old age had requested Katulwende to act on his behalf as Chief. Later Katulwende raped someone's wife and that is h ow Mwenda the 3rd charged Chibwe Nambale and banned them from vying for the throne. His other evidence was in accordance with the claims made in the statement of claim. 4.9 Under cross examination, he agreed that the 1st defendant Steven Nkole is a grandson to the late Chieftainess. He admitted that there had been rulers from Nchima and Kaunda lineages but not from the Chikwa Nambale lineage . He also conceded that his selection did not include other families eligible to rule . He stated that from the 1st to the 7 th Chief Mwenda, none of th e inaugurations took place in Kawambwa. He admitted that he attended the election at Bunda Chushi School where Adamson Chibwe won the elections which were later disputed . He also stated that Adamson Chibwe hails from the Chibwe Bwanga clan. -J7- 4 .10 In re-examination, he stated that the Kaunda family was not eligible to ascend to the throne. The Nchima lineage just borrowed an heir from that family when their heir was too young in 1952. 4. 1 1 The plaintiffs witnesses confirmed his evidence, Serve to add that Adamson Chibwe the 4 th defendant hails from the Chilapa Bwanga- Kaunda lineage. Voting took place where the 4 th defendant emerged as the winner with ten votes, while the plaintiff had seven votes. Further that there has never been a Chief Mwenda from the Chibwe clan. 5. 0 1 sT DEFENDANT'S DEFENCE 5. 1 In the defence filed on 23 rd March 2020, the 1st defendant Steven Nkole admitted that the selection method is matrilineal but claimed that there is a rotation system amongst three lineages namely; Kaunda Chindoloma, Chikumbi popularly known as Nchima, and Chikwa Chindoloma popularly known as Nambale. All these lineages trace their descent from the daughters of Besa Mukulu. 5.2 The 1st defendant's account of the succession history starts from Chief Mwenda the Third (Nkonga) who was from the Kaunda -JS- lineage. When Nkonga died, Chinunka also known as Rocky Bwalya, a descendant of Kaunda Chindoloma became the 4 th Chief. After the death of Chinunka in 1977, the chieftaincy shifted from the Kaunda lineage to the Nchima lineage. Nchima was the 2 nd princess or daughter of Besa Mukulu. From the Nchima lineage, there have been three chiefs namely; Mambwe Isaac Malulu, Adamson Chibwe Chibaye, and Sophia Kombe Chibaye who died on 4 th March 2019. 5.3 The 1st defendant denied the allegation by the plaintiff that successors to the throne only come from the Nchima lineage. He also denied that seniority is a crucial consideration in succession to the throne. He denied any knowledge of Abena Mwansa and the installation rituals mentioned by the plaintiff. He further denied that there is a permanent palace for Chief Mwenda, where enthroning of the chief ought to take place. 5 .4 The 1st defendant claimed that the plaintiff imposed himself as Chief Mwenda on 4 th June 2019. This action prompted the Chikwa Nambale, Kaunda and Nchima families to convene an urgent meeting on 6 th June 2019, at Lex Village to discuss the way forward. It was resolved at that meeting that the 1st -J9- defendant, a descendant of Chikwa Chindoloma who is documented and appears in the family tree of Chief Mwenda, be the successor to the throne. 6.0 l 8TDEFENDANT'S EVIDENCE AT TRIAL 6 .1 During the trial the 1s t def end ant did not testify as he h ad become incapacitated due to a stroke. However, his witness Chama Kalumbwa testified that Steven Nkole was selected and installed as Chief Mwenda by the Kaunda family and not by an electoral college composed of queen mothers from the eligible clans. Some enthronement rituals were not performed like stepping on a lion's skin, lying where the late chief lay in state, wearing a white cloth for a few days, and being given a bungle to hide. She confirmed that the 1st defendant is the nephew of the plaintiff. 6.2 She stated further that Chief Mushota is the one who appointed the 1s t defendant to be Chief. That the plaintiff does not qualify to be Chief Mwenda because he comes from the Nchima clan which had ruled for numerous years. Due to the rotation, someone from the Nchima clan can ascend to the throne but not Stephen Nkole because he was from the cursed clan namely -JlO- Chikwa Nambale. It was confirmed that a nephew cannot succeed to th e throne when the uncle was present and eligible to succeed to the throne. 7 .0 2ND DEFENDANT'S DEFENCE 7 .1 The 2 nd defendant filed his defence on 29 th July 2022, wherein he stated that elders from the Kaunda, Nchima, and Chikwa Nambale lineages chose the successor to the throne. He averred that the Mwansa clan had no power to choose a successor to the throne. The plaintiff imposed himself as Chief Mwenda wh ich led to a family meeting where the m atter was discussed. 7 .2 The 2 nd defendant denied having participated in the selection of the successor to the Chief Mwenda throne but admitted having installed the plaintiff as chief. He a lso denied that the chief had a permanent palace. 8.0 2N° DEFENDANT'S EVIDENCE AT TRIAL 8 .1 The 2 nd defendant Senior Chief Mushota also known as David Mambwe testified that the late Chieftainess Sophia Chibaye was his sister. On 4 th March 2019, Chieftaines Mwenda died and on -Jll - 12th March 2019, he organized a meeting where a chiefs retainer was appointed as caretaker chief. 8.2 In June 2019, the Kaunda clan nominated Baxtone Chishala Kaoma, 4 th defendant to be chief, the Nchima clan nominated the plaintiff Paul Mwila Mwaba while the Chibwe Nambale nominated Kate be Stephen Nkole the 1st defendant. This state of affairs was communicated to him. 8.3 On 25th November 2019, the three families insisted that they had selected the 1st defendant to be Chief Mwenda. He rejected the selection and sent them back to bring all the candidates to him. On 6 th December 2019, they insisted that the 1st defendant had been selected and requested him to have the 1st defendant installed as the new Chief Mwenda. 8.4 He stated that the plaintiff Paul Mwila Mwaba could not succeed his mother. 8 .5 The 2 n d defendant further averred that he was the only one with power to install Chief Mwenda. He confirmed that the plaintiff was from the Nchima clan. -J12- 8.6 He confirmed that the final selection committee composed of Mulapa, Musele, Mulenda Kapwenge, took to him the plaintiff to be installed as Chief Mwenda on 30th January 2020. 8 .7 He stated that a chief could not be installed within 3 months of the death of the chief as it was the mourning period. 8.8 On 9 th June 2019, he received a letter requesting him to replace Baxtone Chishala Kaoma who had died with Baxtone Chishala Chola the 4 th defendant. 8.9 He confirmed that Katulwende had raped a woman and was consequently removed from the position of caretaker Chief. He failed to confirm that the 1s t defendant went through the enthronement rites. 9 .0 3 RD DEFENDANT'S DEFENCE 9 .1 The 3 rd defendant Adamson Chibwe Chishala who hails from the Chibwe lineage stated in his defence filed on 17 th February 2021, that the successor should come from the Chibwe lineage, and prayed that he be appointed chief as he was chosen by his family. He explained that Nchima and Kaunda families had ruled before and for this reason, he prayed that the 1st and 4 th defendants be restrained from ascending to the throne. -J13- 10 .0 3RD DEFENDANT'S EVIDENCE AT TRIAL 10.1 During the trial, he testified that there were succession disputes in the Mwenda Chiefdom, and Senior Chief Mushota was involved. He stated that he was one of the contenders for the Chieftainship. Senior Chief Mushota has no authority to install a chief. The plaintiff is his uncle and they are vying for the same position and the nephew should give way to the uncle. 10.2 He also confirmed that the family nominates candidate/ s and then the council of elders selects one of them. The election of a chief took place and the elders voted for him on 16th July 2019 . 10.3 The 3 rd defendant stated that Baxtone Chola Chishala, Stephen Nkole, and himself are all grandsons to the late Chieftainess Sophia Chibaye . He stated that he is a descendant of Dubwe and hails from Chibwe Bwanga clan. 10.4 DW3, (Chief Chilapa) testified that none of the three contenders was chosen by the committee of queen mothers. He confirmed that the 1st, 3 rd , and 4 th defendants are all grandchildren of the late Chieftainess Sophia. Further, all the enthronement traditions and rituals talked about by the plain tiff were true and none of the afore-named candidates went through the rites. No -J14- one from the Chibwe or Chikwa Nambale had ever ruled. They were being sidelined because they were few . 10.5 DW4 (Ruth Besa) testified that the one responsible for the installation of Chief Mwenda is Chief Mutipala alternatively Chief Chibaye and not the 2nd defendant Chief Mushota. She confirmed that when it is difficult to select a chief, they resort to a voting. She stated that the defendant is the plaintiffs n ephew. The queen mother selected the 4 th defendant to be the next Chief. 10.6 DW5 (Abiya Chinunka) testified that she was the most senior m ember of the family that a ttended the meeting at Bunda Chinsa School where the 3 rd defendant Adamson Chibwe was selected as Chief Mwenda. 10.7 Under cross-examination, she confirmed the principle of Kwapa Takuchila kubeya. 11.0 4 th DEFENDANT'S DEFENCE 11 .1 The 4 th defendant namely Baxtone Chola Chishala in his undated defence appearing on pages 90 to 102 of the record of appeal, stated that h e, as the eldest from the Kaunda lineage and grandson of the late Chief, should be declared the next Chief Mwenda. -J15- 11.2 The family initially chose Baxtone Kaoma Chishala as the successor to the throne, but he, passed away shortly after his selection. It was then that the family selected him instead, which selection the 2 nd defendant (Senior Chief Mushota) rejected. 11.3 The 4 th defendant also stated that a meeting was scheduled for the 3rd of June 2019, but could not take place as the plaintiff was installed as Chief Mwenda on the 2 n d of June 2019, which installation was rejected by the family. 11.4 The 4 th defendant went on to state that on the 16th of July 2019 , a meeting was h eld at Bunda Chinsa Primary School to select a successor. Chief Mwewa and officials from the Ministry of Chiefs and Traditional Affairs attended the meeting. 11.5 Senior Chief Mushota claimed the power to appoint a successor to the Mwenda throne. The plaintiff was contested as a qualified successor due to the Ngoma tradition, which prohibits a son from succeeding his mother. He further stated that the Nchima lineage held the throne for 42 years. 11.6 The 1st defendant faced objection because he descended from the Katulwende, who had committed an abomination and his lineage the Chibwe Nambale banned from inheriting the throne. -J16- 11. 7 The 3 rd defendant was also challenged because Chibwe Bwanga where he hailed from was not considered a lineage from which a successor could come. 11.8 The 4 th defendant further alleged that the 2nd defendant erred in appointing, announcing, and installing the 1st defendant as Chief Mwenda, as his role was simply to install the person that would be presented by all three families as successor. 12.0 4 th DEFENDANT'S EVIDENCE AT TRIAL 12. l The fourth defendant gave evidence as DW6. He mentioned that the succession wrangles have persisted since 2019. On 3 rd May 2019, a meeting to select a successor was disrupted by a group of people claiming to be from the Chibwe Bwanga lineage. They claimed that they were the rightful owners of the name Chibwe. Chief Mushota corrected them and said they belonged to the Kaunda family but they refused. There was confusion and the meeting was adjourned. 12.2 He confirmed that there is an electoral college made up of queen mothers who select a successor to the throne. 12.3 According to the Chishinga custom, the three families namely the Nchima, Kaunda, and Chikwa or Chibwe Nambale held -J17- a meeting to nominate candidates to become the next Chief Mwenda. Each of the eligible families nominated a candidate. He admitted to being the plaintiffs nephew but denied the principle of Kwapa Tachila Kubeya. 12.4 He stated that the plaintiff does not qualify to be chief because the late Chieftainess was his mother. The 1st defendant is also ineligible because his family was banned from ruling. So, the contest is between him and Adamson Chibwe the 3rd defendant. The 4th defendant stated that he did not participate in the elections that took place at Bunda Chinsa School. 12.5 Under cross-examination, he clarified that in the matrilineal system of inheritance, only children of the sister of the late Chief can succeed the chief but not the children of the late Chief. He also stated that the queen mothers never met to agree on any candidate. 12.6 DW7 Hildah Mambwe the mot her to the 4 th defendant confirmed the nomination of h er son as the n ext Chief Mwenda by the Kaunda family. 12.7 She also confirmed the tradition of queen m oth ers selecting the next chief. That the plaintiff Paul Mwila is ineligible to succeed -J18- the late Chieftainess because she was his mother. She said the 4 th defendant is the grandson of the late Chieftainess. 12.8 She also talked about the 1st defendant Stephen Nkole having hailed from Chibwe Nambela, the banned clan where Katulwende hailed from. That it was irregular for Senior Chief Mushota to install Stephen Nkole as Chief. It is Senior Chief Mwewa who had the power to install a Chief. 12.9 DW8 Astridah Kaunda Chishala, testified that Paul Mwila Mwaba and the 1st defendant Stephen Nkole are eligible successors to the throne. Since the death of Chief Mwenda III in 1978, the succession went to Nchima family which was the younger womb. They have ruled for about 41 years. The Kaunda family was oppressed by the Nchima family . 13.0 DECISION OF THE LOWER COURT 13.1 Upon considering the evidence on record, the trial Judge found the following as undisputed facts: 1. The successor was to be selected from the descendants of Kaunda, Nchima, and Chikwa Nambale lineages. 2. On 14th March 2019, the Nchima family met and selected the plaintiff as the successor. -J19- 3. On 3rd May 2019 the members of the three lineages met and waited to be addressed by the 2 nd defendant. The Kaunda family chose Bax.tone Chishala Kaoma who later died and was replaced with Bax.tone Chola Chishala the 4th defendant on 16th May 2019. The Nchima family chose Paul Mwaba Mwila the plaintiff and the Chikwa family chose Kate be Stephen Nkole the 1s t defendant. 4. The meeting was disrupted by a group of people calling themselves descendants of Chibwe Bwanga who claimed to be the rightful heirs of Chikwa Nambale. 5. The 2nd defendant postponed the meeting to 3rd June 2019. 6. On 2nd June 2019, the plaintiff was installed as Chief Mwenda by the Nchima family. When the news filtered to the other lineages the meeting slated for 3rd June 2019 was cancelled. 7. On 6th June 2019, a meeting was held by a group calling themselves Mwenda Establishment which was attended by Sub Chief Chilapa, Sub Chief Mulunda, and Sub Chief Musele. The plaintiff, 3 rd and 4th defendants were not at -J20- that meeting. The 1st def end ant was selected as the successor to the Mwenda throne. 8. The plaintiff and the 4th defendant complained to the House of Chiefs which culminated in the calling of another meeting of the royal family by Chief Mwewa at Bunda Chins a Primary School on 16th July 2019. 9. At the meeting, the families were unable to agree on a successor and it was suggested that voting should take place. The meeting was marred by confusion but the election went ahead. 10. The plaintiff, 1st defendant, 3 rd defendant, and Darius Bwalya participated in the election as candidates. The 4th defendant did not participate in the election which was won by the 3 rd def end ant. 11. On 6th December 2019, the 2nd defendant declared that the 1st defendant was duly selected as the new Chief Mwenda. The 2nd defendant wrote a letter to the Provincial Permanent Secretary and notified him that the three family lines had agreed that the 1st defendant should succeed the late Chief He proceeded to install -J21- him as such at a ceremony held in Kawambwa on 30th January 2020. 13.2 The trial Judge further found as follows: There was insufficient evidence on the procedure employed in the selection of all past chiefs. The evidence however showed that all the past chiefs were selected by families from the 3 lineages who had to agree on the successor. It is not clear who constituted the group that did the actual selection. The succession to the throne of Chief Mwenda is matrilineal but not in the strict sense. The Judge adopted the definition of matrilineal succession from Wikipedia, which states that matrilineal successwn is a form of hereditary succession based on kinship with the mother or the female line. Based on this definition, she opined that a son was not precluded from succeeding his mother as that is what matrilineal succession suggests. However, it may well be that the system that was practiced by the Chishinga people precluded a son from succeeding his mother but that cannot be attributed to the matrilineal system of succession. -J22- The evidence on record shows that the successors of the Mwenda Chieftainship are descendants of Kaunda Seti's female children, Kaunda, Nchima and Chibwe Nambale also known as Chikwa Nambale. The Plaintiff's eligibility to succeed to the throne 13.2 On the eligibility of the plaintiff to be the next Chief Mwenda, the learned trial Judge rejected the plaintiffs evidence that the Chief Mwenda throne was reserved for the Nchima lineage. The lower Court opined that the fact that the plaintiff had agreed to participate in an election that included candidates who were not from the Nchima lineage showed that th e Mwenda throne was not exclusively for the Nchima family. Further, Rocky Bwalya and Jerry Mwansa who were not from the Nchima lineage would not have been selected as chiefs if the throne had been reserved for the Nchimas. 13.3 The Judge held that the selection of the plaintiff by the Nchima family without consulting the other eligible families was contrary to custom and tradition as the members of the three lineages should all agree on a candidate. Further, if his selection was proper, he would not have attended the meeting called by the 2 nd -J23- defendant Senior Chief Mushota on 3 rd May 20 19, and the subsequent meetin g at Bunda Chinsa School. Eligibility of the 1st defendant to succeed to the throne 13.4 The trial Judge found that the selection of the 1st defendant as Chief Mwenda at a meeting held on 6 th June 2019, was in breach of the Chishinga cu stoms because the other two families were not represented. She was not persuaded by the evidence that sub-Chief Chilapa was representing the Kaunda lineage. This is because following complaints by the Kaunda family, another meeting was called by Chief Mwewa on 16th July 2019, where all three families were in attendance and the 1st defendant participated in the elections. This suggests that he had accepted that the earlier selection was nullified. Further, the 1st defendant was ineligible for selection as Chief Mwenda because he was a descendant of Ch ibwe Nambale whose lineage was banned from reigning by Chief Kamina Nkonge. Further, that in the four previous successions, the Chibwe Nambale had never fielded a candidate because of the ban. -J24- Eligibility of the 3 rd defendant to succeed to the throne 13.5 The Judge found that the eligibility of the 3 rd defendant was questionable because he was unable to demonstrate that he belonged to one of the three recognized lineages. The family trees produced do not refer to a Chibwe Bwanga. If he is from the Chibwe Nambale then he is affected by the ban. Eligibility of the 4 th defendant to succeed to the throne 13.6 The trial Judge found that the 4th defendant who hails from the Kaunda lineage is the nephew of the plaintiff from Nchima lineage and eligible for selection as Chief Mwenda because the principle of kwapa tachila kubeya was only applicable where there is an eligible uncle and nephew in the same lineage. Rotation of chieftainship 13.7 On the issue of whether the chieftainship rotates, the Judge found that the chieftainship was supposed to rotate among the three recognized lineages, namely: Nchima, Kaunda, and Chibwe Nambale or Chikwa Nambale. Family Trees -J25- 13.8 The Judge observed that the confusion in the selection of a successor to the Mwenda throne sterned from the fact that there is no proper family tree in place to guide the process. The family trees produced by all the parties are not clear as they do not show a clear path to succession. The generation of the plaintiff, the 3 rd defendant, and 4 th defendant is not reflected. 13.9 On the totality of the evidence, the Judge found that: "1. The plaintiff had Jailed to prove to the required standard that he was law fully selected and installed as Chief Mwenda. 2. The 1s t defendant was not selected Jollowing the traditions and customs of the Chishinga people as members of the Kaunda lineage were not present at the selection. Therefore his selection and installation were a nullity. 3. The 1st defendant was not eligible to succeed his mother as Chief as the tradition of the Chishinga people is that only nephews, grandsons, and uncles can be selected. -J26- 4. The 2nd defendant has no legal right or duty to select a Chief in the Mwenda Chiefdom but he was authorized to install the appointed Chief 5. The election of the 3 rd defendant was a departure from the accepted customary practices of the Chishingapeople and it was accordingly nullified. 6. The Kaunda lineage is eligible to succeed to the Mwenda throne. 7. Succession to the Mwenda throne is by rotation in effect. The Nchima lineage having been on the throne in the preceding period are precluded from fielding a successor to the late Sophia Chibaye." 13.10 The plaintiffs action therefore partially succeeded. The 3rd defendant's counterclaim failed and was dismissed. 14.0 1 sT APPELLANT'S GROUNDS OF APPEAL 14 .1 According to the memorandum of appeal found on the record of appeal, the 1s t appellant has raised 2 grounds of appeal framed as follows: 1. The court below erred in law and fact when it failed to point out the actual traditions and customs of the -J27- Chishinga people which were not observed or fl.outed by the Chikwa Nambale lineage during the selection and installation process of the appellant. 2 . The court erred in law and fact when it held that the appellant was not eligible to succeed his grandmother as Chief of the Chishinga people. 15.0 1 sT APPELLANT'S AMENDED GROUNDS OF APPEAL 15.1 Th e 1st appellan t filed an am en ded m em orandum of appeal on 13 th April 2023 which contained four gr ounds of appeal framed as follows: "1. The lower court erred in law and fact when it declared me not eligible because I was a son when in fact I was a grandson to the late Chief. 2. The lower court erred in law and fact when it declared that my appointment to the Mwenda throne lacked the approval of Kaunda Lineage. 3. The lower court erred in law and fact when it declared me not to be Chief Mwenda because according to the court, the procedure for selecting me -J28- was not followed, without stating the procedure that was supposed to be followed. 4. The lower court erred in law and fact when it accepted the evidence and used it in itsjudgment that the Royal Family where the appellant comes from was cursed without any documentary evidence or any evidence as it relates to the alleged raped woman, her family or any of the persons from her family to come and testify to that effect." 16.0 2N° APPELLANT'S ADDITIONAL GROUNDS OF APPEAL 16.1 On 27th April 2023, with leave of court the 2nd appellant filed additional grounds of a ppeal, which were a s follows: "1. The learned trial Judge erred in law and fact when it held that the election of the 2 nd appellant as Chief Mwenda was against the traditions and customs of the Chishinga people without consideration that the decision was made by the members of the royal family who are in the succession lineage. -J29- 2. That the learned trial Judge erred in law and fact by failing to give significance to the proper family tree upon which succession to the Chishinga chiefdom was to be premised thereby misdirecting herself by declaring that the 2 nd appellant was a descendant of Chibwe Nambale instead of Chibwe Bwanga a descendant of Kaunda Mbolela. 3. The learned trial Judge erred when she did not determine the matter with the help of assessors who are knowledgeable with the customary law of succession to the Chishinga throne." 17.0 1st APPELLANT'S HEADS OF ARGUMENT 17 .1 The 1st appellant filed heads of argument together with the record of appeal on 2 n d November 2022. He argued his two grounds of appeal together as follows: Seniority is a factor in the selection of chiefs in the Mwenda Chiefdom and the lower court acknowledged this at J41 but later turned a blind eye to that evidence -J30- 17 .2 The appellant further stated that the 3 rd defendant now 2nd appellant is a grandson to the late Chieftainess Sofia Kombe Chibaye. 17 .3 He further stated that the lower Court erred in law and fact by upholding the fabricated story of Katulwende raping a married woman, thereby attracting a punishment of a curse and banishment of the Chikwa Nambale lineage from ascending to the throne . He averred that the story remains a myth with uncertain origins because no one has been able to name the woman who Katulwende allegedly raped and her husband's name. 17.4 Further, the story becomes paradoxical as Katulwende remained the caretaker Chief Mwenda after the death of Kamina Nkonga the third. This scenario annoyed the Nchima family who formed an alliance with the Kaunda family to beat Katulwende and his biological mother namely Chungu Nachabula. After beating them, they drove them out of Kamina Nkongas palace, thereby dethroning Katulwende and the entire Chikwa Nambale lineage from the throne . This is the trend that the senior lineages would like to maintain. -J31- 17 .5 He explained that indeed if Katulwende had succeeded Kamina Nkonga, the Chikumbi Nchima lineage could have missed the opportunity of ascending to the throne and could have been disadvantaged. This led to the meeting of the three lineages Kaunda, Nchima, and Chikwa Nambale to come up with the road map of how succession would be done and it was agreed to rotate. 17 .6 The three lineages decided to appoint Lorch Chinunka Bwalya from the Kaunda lineage to succeed Kamina Nkonga and he ruled from 1952-1977. From 1978 the Nchima lineage provided their heirs to the throne Isaac Mambwe Malulu, Adamson Chibwe Chibaye, and Sofia Kombe Chibaye. 18.0 2ND APPELLANT'S HEADS OF ARGUMENT 18.1 In his heads of argument filed on 2n d June 2023, the 2 nd appellant argued the 1st ground of appeal as follows: 18.2 The trial Judge erred both in law and fact when she disregarded or failed to place weight on the evidence at page 320 of the proceedings on the record showing that Senior Chief Mwewa and Chief !samba both sat to hear the respective claims of the three -J32- families that were eligible but the Nchima clan did not want the rotation of chieftaincy. 18.3 Due to the deadlock, it was decided to settle the dispute through an electoral process by family representatives. The 2 n d appellant further argued that a chief is appointed by the people in the community. Voting is allowed wh ere there is more than one candidate and a dispu te as to who should ascend to the throne. In support of this submission, he cited Cabinet Circular No. PA.4/22 of 1972 which provides under section (d) that: "Where there is more than one candidate, the minutes of the meeting must show that the claims of both or all parties concerned have been considered and the reasons given as to why any claim was disqualified. Where necessary and appropriate a vote must be taken and recorded. " 18.4 He submitted that the meeting of 16 th July 2019, was properly convened following tradition and custom as it was attended by the persons concerned and all wombs entitled to choose a successor to the late Chieftainess were represented. -J33- 18. 5 We were also ref erred to the case of John Makokolela v. Majaliwa Sitolo Muwaya and Thaya Odemy Chiwala, 1 where it was held that: "Tradition and Custom is an accepted way of doing things in a community or society. It can be changed through a system of evolution. It cannot be imposed on the people by the court." 18.6 In light of the above authority, the 2 nd appellant submitted that the Court below was bound to accept the decision of the Chishinga people to vote for a successor to the late Chief. 18.7 On ground 2, it was argued that the lower Court erred in law and fact by failing to give significance to the proper family tree upon which succession to the Ch ishinga chiefdom was to be premised. 18.8 The Court therefore misdirected itself by declaring that the 2n d appellant was a descendant of Chibwe Nambale instead of Chibwe Bwanga a descendant of Kaunda Mbolela. 18. 9 Further, the three worn bs from which the lineage of Chief Mwenda ascend are Mpyana Kaunda, Kaunda Mbolela, and Namakubo respectively. Namakubo is the cursed womb from which Chibwe Nambale descends. Chibwe Bwanga was the -J34- second-born daughter of Kaunda Mbolela and therefore not from the cursed womb as the lower Court held. 18.10 Evidence to show that the 2nd appellant was of the clan of Chibwe Bwanga was contained in the testimony of PW3. Counsel contended that the lower Court erred in its pronouncement that the 2nd appellant was not eligible to ascend to the throne but the 1st respondent when the two are brothers. 18.11 As for ground 3 which relates to the lack of assessors knowledgeable 1n Chishinga customs and tradition of succession, the 2nd appellant contended that the lower Court should have sat with assessors in deciding the matter as there was a lack of understanding of the family tree and succession lineage . To fortify this argument, section 34 of the High Court Act was cited. The same provides for calling experts in customary law where necessary as assessors of African Customary Law to sit with the Court and assist the Court reach a firm, just decision. 19.0 1 sT RESPONDENT'S HEADS OF ARGUMENT IN RESPONSE TO THE 1 ST APPELLANT'S HEADS OF ARGUMENT 19.1 The 1st respondent relied on the heads of argument d a ted 10th May 2024. To counter ground one, counsel argued that the -J35- parties did not request the trial Court to determine the traditions and customs that were defied by the Chikwa Nambale lineage. Hence, the lower Court did not misdirect itself in its decision. 19.2 He further submitted that it is trite that when selecting a Chief, the procedure and customs must be adhered to. Reliance was placed on the case of Abraham Mawowo Alias Temwani v. Ted Chisanga2 where the High Court held as follows: " ..... Opening the process of selection of Chief through an election is in conflict with the customs and traditions of the Ilyombe chiefdoms as a person may win the election and become chief but may not be eligible to ascend to the throne as Chief. This is certainly undesirable. " 19 .3 Counsel pointed out that a chief must be selected by the royal family members. According to the minu tes of the meeting held at Mwenda Royal Palace on 14th march 2019, the 1st respondent was duly selected as chief by the N chima Royal family. There were 43 royal family members present at the meeting. 19.4 That the evidence on record is that there are three royal wombs from which Chief Mwenda can be selected, that Kaunda Family, -J36- the Chikwa Nam bale family, and the N chima family. The 1st respondent testified that the Chikwa Nambela family, was cursed to never reign. This womb was also given Musele territory to rule as sub-chiefs. This is the same lineage the 1st appellant hails from. 19 .5 The Kaunda royal womb was given Mulunda and Chililapa territories as sub-chiefs. 19 .6 On the second ground of appeal, counsel for the 1st respondent argued that contrary to the submission by the 1st appellant, the lower Court did not ignore the evidence that the 1st appellant is a grandson to the late Chief. The lower Court found that the appellant's lineage had been banned from ascending to the throne due to the offence that Katulwende their ancestor committed. 19. 7 Counsel argued that there was no error in the learned trial Court's judgment as regards the 1st appellant's eligibility for selection as Chief Mwenda as the same depends on the lifting of the ban. 19 .8 Finally, counsel prayed that the appeal be dismissed with costs and the lower Court's judgment be upheld. -J37- 20.0 1 sT RESPONDENT'S HEADS OF ARGUMENT IN RESPONSE TO THE 2N° APPELLANT'S HEADS OF ARGUMENT 20 .1 The 1st respondent relied on the heads of argument dated 28th August 2024. In the same, in response to ground one, it was submitted that the decision of the lower Court was contrary to the traditions and customs of the Chishinga people for the following reasons: Firstly, when selecting a Chief, the procedure and customs must be adhered to. To fortify this submission counsel relied on the case of Abraham Mawowo Alias Temwani v. Ted Chisanga supra. She submitted that the selection of Chief Mwenda is done by the royal family. The 2nd appellant failed to show at trial that he was selected in line with the customs of the Chishinga people. 20.2 Secondly, the 2nd appellant failed to establish his lineage and claim to the throne. This was a factual finding by the trial Judge at J54 of the ju dgment. Reliance was placed on the case of Wilson Masauso Zulu v. Avondale Housing Project3 on the principles regarding setting aside the lower court's findings of fact by appellate court. -J38- 20.3 According to counsel, the trial Court rightly found that the lineage of the 2 nd appellant was unclear. 20.4 On the third ground of appeal, it was argued that the trial Court gave due consideration to the family trees produced by the parties and observed that the confusion with the selection of a successor to the throne was mainly because there was no proper family tree . 20.5 Regarding the argument on the fourth ground; that the trial Judge erred in not involving assessors in determining the matter, counsel argued that the provisions of section 34 of the High Act, are not couched in mandatory terms , and as such the Court did not error by opting not to sit with assessors. 21.0 2N°RESPONDENT'S HEADS OF ARGUMENT 21.1 During the hearing of the appeal, the 2 nd respondent relied on the heads of argument dated 13th July 2023 which firstly attack how the 1st appellant's amended grounds of appeal are framed . He stated that the same contain narratives and arguments contrary to Order X rule 9 (2) of the Court of Appeal Rules . 21.2 For that reason, he urged the Court to dismiss the appeal. -J39- 21.3 We note that in the said arguments the 2 nd respondent went to great lengths to demonstrate why we should dismiss this appeal on the basis that the grounds of appeal were incompetent for failure to comply with procedural requirements. 21.4 We shall deal with the preliminary objection in the analysis and determination segment of this judgment. 21.5 As regards the substance of the appeal, the 2nd respondent's contention was that the Mwenda Chiefdom consists of three lineages namely: Kaunda, Nchima, and Chikwa Nambale. The traditions and customs of the Chishinga people are well known. Since 1952 the ancestor of the 1st appellant's lineage committed an abomination of raping a married woman and the 1st appellant's lineage became cursed. Thus, from 1952, and for the next 67 years, the 1st appellant's lineage could not provide an heir to the throne because they were a cursed lineage and had been banned from ruling by Chief Mwenda III Kamina Nkonga. 21.6 Further submission was that the only way in which the 1s t appellant's family can be allowed to ascend to the throne is if the Chief lifts the ban and performs certain rituals that will ensure that the 1st appellant's family is cleansed. -J40- 22.0 2 N° RESPONDENT'S FURTHER HEADS OF ARGUMENT IN RESPONSE TO THE AMENDED MEMORANDUM OF APPEAL 22.1 On 13th J u ly 2023, the 2 nd respondent filed further heads of argument in which he submitted that the lower Court was on firm ground when it held that according to the Chishinga traditions and customs, a son cannot succeed his mother. These findings were made in relation to the 1st respondent (plaintiff) and not the 1st appellant (1 st defendant). Therefore, it was just a typographical error when the lower Court wrote 1st defendant. 22.2 He further submitted that the lower Court was on firm ground when it held that the 1st appellant's selection an d appointment were invalid as people from the Kaunda lineage were not present at the meeting on 6 th June 2019 at Lekeshi Village. He refuted the claim that Mr. Jericho Chila pa was a representative of the Kaunda lineage, asserting that this person was a supporter of the 2 nd appellant as shown by the witness statement on page 65 of the amended supplementary record of appeal. The attendance register only shows people from the appellant's lineage. 22.3 According to the tradition and culture of the Chishinga people of the Ng'oma clan, only the qu een mothers from the three royal -J41- families are mandated to select the next chief. However, at the meeting held on 6 th June 2019, no queen mother was present. 22.4 He went on to state that the said meeting was nullified by the Chairman of the Luapula House of Chiefs Council, Senior Chief Mwewa and his entourage together with the government representatives under the Ministry of Chiefs and Traditional Affairs. They called for a fresh meeting to take place on the 16th of July 2019 at Bunda Chinsa Primary School. 22.5 During the selection and appointment of the 1st appellant as Chief Mwenda, none of the Chishinga customs and traditions were followed. Further, the 1st appellant received his instruments of power in Kawambwa District at Senior Chief Mushota's palace which is against tradition and custome. 23.0 2N° APPELLANT'S HEADS OF ARGUMENT IN REPLY TO THE 1 sT RESPONDENT'S HEADS OF ARGUMENT 23.1 The arguments in reply were substantially a repetition of the initial arguments, save that it was submitted that since, the chieftaincy rotates among the three clans and the Chibwe Bwanga has not yet had a chance to rule, it is their turn. 24.0 ANALYSIS AND DETERMINATION -J42- 24. l We have considered the record of appeal and the arguments presented by all the parties concerned. Before dealing with the substance of the appeal, we shall first deal with some preliminaries. 24.2 The 2 nd respondent raised a preliminary objection to the 1st a ppellant's amended grounds of appeal in the notice filed on the 9 th of February 2023. He argued the preliminary objection in the document filed on 13th July 2023, headed "2nd Respondent's Skeleton Arguments to The Amended Memorandum of Appeal." 24.3 The 2 n d respondent's points of objection are firstly, that the amended grounds are contrary to Order X Rule 9(2) of the Court of Appeal Rules as they contain narratives and arguments. Secondly, no leave was obtained from the Court for the 1st appellant to add grounds of appeal which only appear in his heads of argument contrary to Order X rule 9(3) of the Court of Appeal Rules. Thirdly, the h eads of argument, in their current form, are incompetently before this Court as the same are incomplete: They do not contain any authorities in support of each head of argument contrary to Order X rule 9 (10) of the Court of Appeal Rules. -J43- 24.4 He prayed under the circumstances, that the 1st appellant's appeal be dismissed for incompetence. 24.5 During the hearing, counsel for the 1st appellant informed the Court that he would rely on the heads of argument filed on 2 nd November 2024, when the 1st appellant was acting in person. We must state that counsel had filed an Ex-parte summons on 23 rd January, 2025 to expunge the 1st appellant's heads of argument from the record and replace them with arguments written by counsel. The application was dismissed on 5 th February 2025 for incompetence. 24.6 We take the view that the amended grounds that we have a lready quoted in paragraph 15.0 of this judgment do contain narratives and arguments proscribed by Order X rule 9 (2) CAR. However, they were authored by a layperson and since this is a matter of governance and public interest, we will allow the use of the same. 24.7 As for the improperly drafted 1st appellant's heads of argument, we allow the use of the same for the same reason that they were drafted by a layperson. We are fortified by the case of Attorney General v. David Mumba and another CAZ Appeal No. 138/2022 where we stated as follows: -J44- "7.11. It is patent, from the cit ed authorities that cases ought to be decided on their merits, rather than to be disposed of on technicalities. This is what the ends of justice and indeed our constitution demand. " 24. 7 We went on to allow the wrongly crafted grounds of appeal taking into account that the subject matter of the appeal was important and no prejudice would be caused to the respondent if we allowed the appeal to proceed. 24.8 Further in the case of Laston Phiri v. Tropical Diseases Research Center,5 the Supreme Court proceeded to determine the appeal on merit after observing that the grounds of appeal filed before the Court when the appellant was acting in person were improperly drafted. Similarly, we shall proceed to determine the appeal on its merits as the respondents have already argued the appeal and have not shown that they will be prejudiced in any way if we do so. 24.9 We acknowledge the challenges presented by cases like this one, which rely on oral histories passed down through generations. We note that in this case some witnesses refer to Chikwa Nambale as Chibwe Nambela or Chibwe Nambale. However, we -J45- believe they are a ll referring to t h e same lineage. For consistency, we will u se the name Chikwa Nambale as it was used more frequently. 24.10 Th e core issues arising from th e grounds of ap peal as we see them are as follows: (a) Whether the lower court accurately identified the traditional customs and practices of the Chishinga people concerning the selection and installation of Chief Mwenda. (b) Whether the 2 nd appellant is disqualified from the Mwenda chieftaincy due to an alleged curse on his lineage. (c) Whether the court properly determined who is eligible to succeed to the Mwenda chiefdom, especially concerning familial relations and lineage and rightly disqualified both appellants. (d)Whether the lower court ought to have sat with Assessors pursuant to section 34 of the High Court Act. -J46- 24.1 1 We shall now deal with the 1st appellant's concerns under grounds 1, 2 and 3 and the 2 n d appellant's additional grounds 1, 2, and 3. The lower court found that succession to the Mwenda throne follows a rotational system among three primary lineages: Kaunda, Nchima, and Chikwa Nambale and that the succession is not strictly matrilineal. 24 .1 2 We have carefully consider ed the evidence on record regarding the rotational system of succession. The plaintiffs evidence was that the Chikwa Nambale family was cursed and banned from ruling between 1952 and 1977 by Chief Mwenda III (Kawina Nkonge). That was due to the misdeeds of the Caretaker Chief Katulwende who had raped a married woman. This evidence was supported by the 2 nd and 4 th defendants and DW7. Consequently, the Chikwa Nambale have not provided a successor to the throne from that time . This evidence was not at all rebutted by the defendants. 24.1 3 Under the circumstances, the lower court cannot be faulted for accepting it because we take judicial notice that cursing and blessing are generally acknowledged all over the world. The appellant's argument that the issue of the curse and ban should -J47- not be considered as it is repugnant to natural justice is under the circumstances unacceptable and it is rejected. 24.14 The lower court rightly held that the Chikwa Nambale cannot rule until the ban is removed. We acknowledge the belief patterns of the Chishinga people in this regard. Therefore, we opine that the issue of the curse and ban be dealt with traditionally. 24.1 5 It follows that the court misdirected itself in finding that the succession to the throne rotates among three lineages as there have been only two eligible lineages since the banning of the Chikwa Nambale namely: the Kaunda's and Nchima's. This entails that the two lineages ought to be exchanging to rule until the ban is lifted from the Chikwa Nambale family or womb. 24.1 6 There is undisputed evidence that the Kaunda family has never ruled since 1977 and that the Chikwa Nambale have provided more chiefs than the other two lineages. Therefore it is the Kaunda family's turn to provide an heir to the throne. We hold that a successor be chosen from the Kaunda family according to \he traditions and customs of the Chishinga people. 24 .1 7 We must state that the lower court's findings with regard to the traditional customs and practices of the Chishinga people on the -J48- selection and installation of Chief Mwenda were based on the evidence on record. We also uphold lthe lower court's finding about the family trees relied upon bf the parties having been unclear as we have also examined them and found it difficult to understand the trees. It was inevitable for the court to make such findings as that was the basis of d termining whether either appellant was properly selected as Chief. 24.18 The 1s t appellant contended that the lower court failed to identify the specific traditions and customs of the Chishinga people that were violated during his selection. Conr ersely, the 1st respondent argued that the lower court was not in error for not pointing out these customs, as this issue was not raised for the court to determine. He asserts that the selectJon of the 1st appellant as Chief Mwenda was contrary to Chishinga traditions and customs I and that he is the duly selected Chief Mwenda. We shall not determine the issue raised by the 1st respondent as to whether he is the rightful chief because he did ot cross appeal. 24 .1 9 The lower court noted that none of the parties produced documents on the customs and traditional procedures relating to succession to the Mwenda chieftai ship, as the procedure is -J49- • unwritten. Nevertheless, from the available evidence, the court outlined the custom on page J46, stating that members of the royal family from the lineages of Nchima, Kaunda, and Chibwe / Chikwa must select and agree on a candidate from the names fielded by the individual families. 24.20 Further evidence specifically points to the fact that the successor is chosen by the queen mothers of the three lineages. The Court was on firm ground in finding the 1st appellant's selection irregular, noting on pages J49 to J51 that not all families were represented at the meeting held on 6 th June 2019, where he was selected and that rendered his selection a sham and contrary to Chishinga customs. 24.2 1 Additionally, following complaints by the Kaunda lineage who claimed not to have been present at the said meeting, a fresh meeting was called for by Chief Mwewa on 16th July 2019 . All the families concerned were invited and represented. The attendance at that meeting by the 1st appellant and his family, was an indication of acceptance that the earlier selection was null and void ab initio. The 2 nd defendant who was Senior Chief Mushota in his testimony, had confirmed rejecting the minutes of the 6 th -JSO- ' June 2019 meeting due to the absence of the Kaunda and Nchima families. We wish to add that neither appellant was chosen by the queen mothers. 24.22 Given the foregoing, we find no fault with the lower court's conclusion that the both appellant's selection as Chief Mwenda was irregular and against Chishinga tradition. 24.23 In the selection of a Chief, any deviation from the plainly articulated and systematically practiced customs warrants a reversal of such appointment. We are fortified by the case of Chisavwa Muwowo Alias Chief Dangolipya Muyombe v. Abraham Muwowo Alias Temwanani Winston Muwowo (Suing as Chairman of the Uyombe Royal Establishment) , 6 where the Supreme Court held that: "Where custom, procedu re, and tradition are plainly articulated and systematically practiced by its people any deviation from the laid down tradition or customs warrants a reversal of any appointment that had been effected. " 24.24 The 2 nd appellant contented that his election as Chief Mwenda was a decision made by the Royal family. -J51- • 24.25 The 2 nd appellant argued that the lower Court erred in law and fact when it disregarded the evidence that Senior Ch ief Mwewa and Chief Nsamba sat to hear the respective claims of the three eligible lineages. Due to a deadlock, it was decided to settle the dispute through voting for a successor to the chieftaincy. Therefore, he contended that it was erroneous to hold that the election of the 2nd appellant was against the customs and traditions of the Chishinga people. 24.26 The 1st respondent on the other hand agrees with the holding of the lower Court that the 2 nd appellant's selection through an election was contrary to the traditions and customs of the Chishinga people. 24.27 In the case of Chief Mpepo (also known as Aexson Chilufya Mwamba) v. Senior Chief Mwamba (also known as Paison Chilekwa YambaYamba 7 it was held inter alia that: "A Chief is elected or appointed as such by the people of the community. The Chief is to superintend over, in accordance with the customs and traditions of the community." -J52- .. • 24.28 Cabinet Circular Number PA. 4/22 of 1972 paragraph (d) was referred to in the said case and it states as follows: "Where there is more than one candidate, the minutes of the meeting must show that the claims of both or all parties concerned have been considered and reasons given as to why any claims were [was] disqualified. Where necessary and appropriate a vote must be taken and recorded." 24.29 In the case of Moonda Jane Mungaila-Mapiko, John Muchabi (Suing on Behalf of The Traditional Council of Mungaila Royal Establishment) v . Victor Makaba Chaande8 we held t h at: "The traditions, customs, and procedures of succession in the Mungaila Chiefdom involve the royal family selecting the next ruler. Several royal families put forward candidates for chieftaincy to a traditional appointing authority or Electoral College known as Bakwashi or Mukwashi. If a single successor is nominated, they are announced and appointed as Chief by the Bakwashi. However, if two or more individuals are contending for the position, a voting process is used to decide the new chief." -J53- 24.30 In the preceding authority, we upheld the selection of the Chief via the voting process as it aligned with th e traditions and customs of the Ila people. 24.3 1 Additionally, the case of John Makokolela v. Majaliwa Sitolo Muwaya and Thaya Odemy Chiwala supra highlights that customs and traditions evolve, and communities are entitled to make decisions, including voting, when there is a dispute or no consensus among royal family members. 24.32 In the present case, however, as found by the lower Court, the 2 nd appellant's lineage when it comes to the eligible lineages is unclear. His evidence in the Court below referred to the Chibwe Bwanga family. It showed that he traced his lineage through Seti who had two sons and three daughters . The daughters Kaunda, Nchima, and Chibwe Nambale are wombs from which successors to the Mwenda throne are chosen. The Chibwe Bwanga womb is in our view different from Chibwe Nambale. 24.33 We cannot upset the above-mentioned findings of fact by the lower Court as they were based on a proper evaluation of the evidence on record. We are guided by the principle in the case of Wilson Masauso Zulu v. Avondale Housing Project supra that -J54- an appellate Court will not interfere with th e tria l Court's findings of fact, u nless, perverse n ot supported by evidence, made upon a m isappreh ension of facts or are such that no trial Cou rt, acting correctly could reasonably make, on a proper view of evidence. 24.34 For the foregoing reasons, we cannot endorse th e selection of the 2 nd appellant as Chief Mwenda. 24.35 We find it imperative to comm ent on the issue of voting for a chief. In t h e case of Evans Mwiya, Edward Chabalanda and Eason Musokotwane, 10 we did as the Court of Appeal, endorse voting for a chief pursuant to Cabinet Circular Number P. A. 4 / 22 of 1972 which applies to all chiefdoms and cannot be considered as an infringement of customs and tradition s obtaining in chiefdoms. 24.36 The 2 nd appellant further contended that the lower Court should have sat with assessors to determine this matter following section 34 of the High Court Act 1 which 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; -JSS- (a) Call as witnesses thereto chiefs or other persons whom the court considers to have special knowledge of African Cust omary law, (b) Call any such chiefs or persons to its assistance as assessors of African Customary Law. " 24.37 This section is crystal clear. It is not couched in mandatory terms as the word 'may' is used. Therefore, the court has the discretion whether or not to call assessors. And we hold that there was no misdirection by the lower court in not calling for assessors. 25.0 CONCLUSION 25.1 Given the impropriety 1n the selection of both appellants as chiefs, we are of the view that the issues encompassed by the 1st appellant's ground 2 and the 2 nd appellant's amended ground 1 are otiose. The appeal has no merit and is dismissed. 25 .2 The Kaunda lineage ruled from 1952 to 1977 a total of 25 years. From 1978 to 2019 a total of 41 years it was the Nch ima family that ruled. -J56- • 25.3 The Chibwe Nambela remains cursed and bann ed until the curse and ban are both lifted following the cu stoms and traditions of the Chishinga people. 25.4 We therefore order that it is th e Kaunda family's turn to rule and the next Ch ief Mwenda should be chosen from that womb. The traditions and customs of selecting and installing th e Chief must be complied with. 25.5 Depending on the circumstances, Cabinet Circular No. P. A. 4 / 22 of 1972 may be invoked. Each party shall bear their own costs. C. K. Makungu COURT OF APPPEAL JUDGE A. M. Banda- Bobo COURT OF APPEAL K. Muzenga COURT OF APPEAL JUDGE -J57-