Muwowo (Chief Muyombe) v Muwowo (Uyombe Royal Etablishment Committee) (Appeal 115 of 2014) [2017] ZMSC 34 (14 March 2017)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA juris.ficts,,i, BETWEEN: APPEAL NO. 115/2014 SCZ/8/50/2014 TED CHISAVYA MUWOWO ALIAS CHIEF DANGOLIPYA MUYOMBE (cid:9) APPELLANT AND ABRAHAM MUWOWO ALIAS TEMWANANI (cid:9) 1ST RESPONDENT WINSTON MUWOWO (SUING IN HIS CAPACITY AS CHAIRMAN OF THE UYOMBE ROYAL ESTABLISHMENT COMMITTEE) (cid:9) 2ND RESPONDENT CORAM: (cid:9) Mwanamwambwa, D. C. J, Hamaundu, ICajimanga, J. J. S. On the 7th March 2017 and 14th March 2017 For the Appellant: (cid:9) For the Respondents: (cid:9) Ms. S. Kaingu of Chibesakunda and Co. No appearance. JUDGMENT Mwanamwambwa, DCJ, delivered the Judgment of the Court. Cases referred to: Ladd v. Marshal11195413ALL ER 745 Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R. 172 (S. C.) Attorney-General v. Marcus Kampumba Achiume (1983) Z. R. 1 Nkorigolo Farm Limited v. Zambia National Commercial Bank Ltd and Others (2005) Z. R. 78 Connoly v. Camden and Islington Area Health Authority (No citation) Nkhata and 4 others v. Attorney-General (1966) 2,R. 124 Kenneth Mpengula (Alias Senior Chief Mushili) v. Reverend Hudson Litana and others (Appeal No. 47/2005 (Unreported) Simon Kalaba Chisha. Senior Chief Malambo and Benson Kasongo Shapi and Philimon Mbola Appeal No. 192/2007 (Unreported) J2 Nkongolo Farm Limited v. Zambia National Commercial Bank Ltd and Others (2007) Z. R. 149 Sable Hand Zambia Ltd v. Zambia Revenue Authority (2005) Z. R. 109 (SC) Bradford Third Equitable Benefit Building Society v. Boarders (1941) 2 ALL E. R. 205 at page 218 Sithole v. The State Lotteries Board (1975) Z. R. 106 (S. C.) Sentor Motors Limited and 3 Other Companies (1996) Z. R. 163 Kansanshi Mining Company v. Maini Joseph Mundamina and Others Appeal No. 149 of 2010 (unreported) British Columbia in Coiocaru (Guardian ad Litem) v. British Columbia Women's Hospital and Health Care Centre 2011 BCCA 1992 Admark Limited v. Zambia Revenue Authority (2006) ZR 43 Anderson Mazoka & Others Levy Mwanawasa and Others (2005) Z. R. 138 Roland Leon Norton v. Nicholas Lostrom (2010) Z. R. 358 Legislation referred to: The Supreme Court Act Chapter 25 of the Laws off Zambia, section 25 The Rules of the Supreme Court 1999, Order 59 Halsbury's Laws of England Volume 36 The Constitution of Zambia Chapter 1, Article 127 (before the amendment of 2016) The Chiefs Act Chapter 287 of the Laws of Zambia, Section 3 (1) The High Court Act Chapter 27 of the Laws of Zambia, Sections 9(2) and 13 Other works referred to: Professor George C. Bond "The Politics of Change in a Zambian Community" published by the University of Chicago Press, London 1976 Rwandan Judiciary Instructor's Manual on Judgment Writing This is an appeal from the decision of the High Court declaring the selection of the Appellant as Chief Muyombe null and void. The brief facts of the matter are that on the 7th day of January 2011, the last Chief Muyombe, Eliwell Lameck Chinkunku Muwowo Musungambumba died. After his death, there were succession disputes over the Chieftainship. As a J3 result, elections were held to elect a Chief and the Appellant was elected as Chief Muyombe. The Respondents were unhappy with the selection of the Appellant as Chief. They sued the Appellant in the High Court. The evidence before the High Court from the Respondents was that there are four chiefly branches out of which three are termed chiefly branches from which Chiefs are supposed to be drawn. That the four chiefly branches are the Njera, Chapyoka, Chipanga and Kasangwa family branches but that the Kasangwa branch was banned from being a chiefly branch because they had broken tradition when they allowed Polomombo, a nephew of Kasangwa to become Chief. That at that time, Musenga was the heir to the throne and as a result of this, Musenga dethroned and killed Polomombo to become chief. Musenga became Chief and introduced the three Royal Branches of Njera, Chipanga and Chapyoka. These three branches were names of the eldest children Musenga had from his three wives. Njera was a son who was born from Musenga's wife Nyambeya, Chipanga was a son who was born from Musenga's wife Nyaupigu and Chapyoka was a son who was born from Musenga's wife Nya Munthali. The Respondents stated that although the Kasangwa royal branch participates in the selection of a Chief, they cannot ascend to the throne. It was the Respondents' evidence that the chieftainship is supposed to rotate amongst the three branches. That after the death of a Chief, the Electoral College of the Uyombe Royal J4 Establishment Committee (Banangwa Council) is supposed to sit and discuss succession. That in this case after the death of Chief Muyombe Musungambumba, the Electoral College of the Uyombe Royal Establishment Committee called for meetings for the three royal branches to discuss succession. That as a result of these meetings, the 1st Respondent was chosen as the person qualified to be installed as Chief Muyombe. It was the Respondents evidence that the Banangwa Council is a group of selected members who hail from the four royal branches. That there are sixteen members of the Banangwa Council, four from each branch. That when they sit, sixteen people comprise the Council. The Respondents stated that when Musenga died, his son Njera ascended to the throne. After Njera died, the Chieftaincy went to Chapyoka and after Chapyoka's death, it went to Chisusu who was Chipanga. That thereafter, the Chieftaincy rotated back to Njera branch and the Chief was Kolelawaka who was on the throne for 6 months only. The 1st Respondent stated that because of the short period, the Banangwa Council gave the Njera branch another chance and Funtukeni ascended to the throne. After the death of Funtukeni, the Chieftaincy went to Chipanga branch and Vwalamawoko took over as Chief. That he was on the throne from 1915 to 1927 and when he died, the Chieftaincy went to Chapyoka branch with John Punyila Muwowo taking over as Chief. That thereafter, the Chieftaincy rotated back to the Njera branch and the immediate past Chief, Eliwell Lameck Chinkuku Musungambumba Muwowo took over as Chief. They argued that therefore, the Chieftaincy is supposed to go back to the Chipanga branch. The Respondents added that the Appellant was from the Njera branch. That Njera had two brothers, these were, Mitanga and Chimbilima. That therefore, if one hails from Mitanga or Chimbilima, then they still hail from Njera. The Respondents contended that in the case at hand, the Njera royal family branch avoided the meetings to consider the succession and only attended a few. That on the 11th day of January 2012, the 1st Respondent, being the adult male member of the Chipanga family branch, was chosen and declared as a person qualified to be installed as Chief Muyombe. It was the Respondents evidence that Government representatives such as the Council Secretary, the Provincial Minister and Permanent Secretary were informed about the crowning of the First Respondent as Chief Muyombe. The Respondents stated that they were surprised when they learnt that the Appellant had been recognised as Chief Muyombe by the President of the Republic of Zambia. Appellant's case was that the evidence of the Appellant in the court below was to the effect that the Muyombe Chieftaincy rotated amongst six sons of Musenga namely Njera, Mitanga, Chimbamilia, Chipanga, Kwanda and Chapyoka contrary to the Respondents assertions. He contended that since the last chief came from the Njera family branch, the next person in line J6 should have come from the Chimbilima branch then Mitanga, then Kwanda and finally Chapyoka branch. The Appellant stated that he was validly elected Chief at a meeting held on the 5th day of May 2011, and that any subsequent meetings for the Uyombe Chieftainship were illegal. That the Defendant was recognised as Chief by the Republican President under the Chiefs (Recognition) Order No. 8 of 2012, Statutory Instrument number 52 of 2012. According to the Appellant, the three branches are for the identification of the mothers and not for succession. In cross examination, the Appellant stated that he hailed from the Njera branch. He added that since there were succession wrangles, they decided to go for elections to select a chief as opposed to being guided by the family tree. He stated that Chimbilima family is under the Njera branch. That since Njera branch is a broad branch, the rotation moves among the six sons of Musenga. Upon considering the evidence before her, the learned trial Judge formed the view that the issues for determination before her were:- whether the Defendant was validly installed as Chief Muyombe and whether the said installation was in accordance with the procedure relating to custom and tradition of the Uyombe Chiefdom. J7 The Judge referred to the works of Professor George C. Bond in his book titled "The Politics of Change in a Zambian Community." According to that book, the royal clan of the Uyombe consists of six branches but only the adult male members of Chapyoka, Njera and Chipanga are eligible for Chieftainship. The learned trial Judge, therefore, accepted the Respondents' evidence that the Uyombe Chieftaincy rotates among the three chiefly branches of Chapyoka, Njera and Chipanga. She further accepted the evidence that each royal branch carries the name of the eldest son of each wife and that the Njera branch consists of Njera Mitanga and Chimbilima The learned trial Judge stated that she accepted the evidence that the late Chief Eliwell Musungambumba was from the Njera branch. She found that the selection of Chief Muyombe should have been done in adherence to the traditions and customs of the Bayombe people. She added that much as the Appellant was royalty, the customs and traditions were ignored, as the Banangwa Council were not involved in the selection and yet their duty is to participate in the selection of Chief Muyombe. She expressed the view that opening the process of the selection of the Chief through an election was in conflict with the customs and traditions of the Uyombe Chiefdom. The Judge found that the Uyombe Chieftaincy rotates amongst the three royal branches of Njera, Chipanga and Chapyoka. She added that the Appellant is from the Chimbilima branch which is a sub-branch of the Njera branch. That since the Appellant is from the Njera branch, J8 he could not succeed the late Eliwell Musugambumba who was also from the Njera branch. She declared the selection of the Appellant, as Chief Muyombe, null and void as it was in violation of the Uyombe customs and traditions. She added that it was not for her to decide that the Respondent be installed as Chief Muyombe in place of the Appellant. That the Uyombe Royal Traditional Council should sit and install a Chief, as Chief Uyombe in accordance with the well known and established practices, customs and traditions of the Bayombe people. The Appellant appealed against the above decision. On the 24th day of February 2017, and before the appeal was heard, the Appellant filed a Notice of Motion for leave to adduce further evidence. The Notice of Motion was made pursuant to section 25(1) (b)(i) and Rule 48 of the Supreme Court Act Chapter 25 and Order 59 rule 10(2) of the Rules of the Supreme Court Rules 1999. The Notice of Motion was filed together with an affidavit in support and skeleton arguments. The affidavit in support was deposed to by the Appellant. He stated that upon lodging the appeal, he obtained a stay of execution of the Judgment of the High Court. That he was unrepresented at the time of lodging the appeal and preparation of the record of appeal and heads of argument. It was his evidence that one of the fundamental issues before the trial court, and also on appeal before this court, is who the rightful person is, to ascend to the throne as Chief Muyombe. He added J9 that upon being crowned Chief, he moved into the Chiefs Palace where records about the chiefdom are kept. That the palace has cabins of hugely vast and convoluted piles of documents with hardly any systematic filing system. He deposed that it is difficult to find anything in the piles of documents, let alone if one does not know that the document exists. The Appellant stated that after judgment in the lower court was delivered and pending the hearing of this appeal, he came across minutes of the Banangwa meeting held on the 1st day of March 1997, attended by seventy two (72) members of the royal establishment and chaired by the late Chief. That the minutes contain among other things guidelines on the succession to the chiefdom which issue forms the basis of the appeal before this court. The Appellant deposed further, that it was in the interest of justice that the minutes form part of the record to help this Court determine this appeal. A copy of these minutes was exhibited to the affidavit in support of the Notice of Motion. The Appellant stated that after uncovering the said minutes, he consulted several people who attended the said Banangwa meeting. That among the people he consulted, were Meckwe11 Isau Muwowo, alias Headman Mwenemitanga and Binwell Nyimbiri Muwowo alias Bwana Njera. The Appellant deposed that this evidence of the minutes will have great influence on the outcome of this appeal. Another affidavit was filed in support of the application. This was by Meckwell Isau Muwowo, alias Headman Mwenemitanga and Binwell Nyimbiri Muwowo, alias Bwana Njera. The affidavit contained similar evidence as the one deposed to by the Appellant except to add that the two deposed that they did not testify in the court below. In the skeleton arguments in support of the Notice of Motion, the Appellant relied on the following authorities: Section 25(1)(b)(i) of the Supreme Court Act, Chapter 25 Order 59 rule 10(2) of the Rules of the Supreme Court Counsel referred to Ladd v. Marshall (1), and argued that "special circumstances" are proved if three elements are shown, that is:- "first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial, secondly, the evidence must be such that, if given, it would probably have an important influence on the results of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible though it need not be incontrovertible." It was submitted that the above was adopted and approved by this Court in Zambia Revenue Authority v. Hitech Trading Company Limited 12001) ZR. Counsel did not provide the full citation for this case, an omission we strongly disapprove. We looked for it in the 2001 Zambia Law Reports and found a case with similar parties but dealing with a different subject matter. It was submitted that the Notice of Motion satisfies the three conditions stated above. That as regards the requirement that the evidence could not be obtained with reasonable diligence at trial, it was argued that the Appellant's affidavit in support of the Notice of Motion had explained the circumstances which led to the discovery of the document in contention. On the second element that the evidence will have an important influence on the results of the case, it was submitted that the minutes in contention set out the lines of succession in the Uyombe Chiefdom. That this would have important influence on the results of this appeal. Counsel for the Appellant stated that the third element required in accordance with the Ladd v. Marshall case was to the effect that the evidence will be credible. It was submitted that the affidavit in support of the Notice of Motion deposed to by Meckwell Isau Muwowo, alias Headman Mwenemitanga and Binwell Nyimbiri Muwowo, alias Bwana Njera, speaks to the credence of the minutes because both persons attended the meeting in question. On the 7th day of March 2017, we heard this Notice of Motion for leave to adduce further evidence. Counsel for Appellant relied on the Notice of Motion filed into Court together with the affidavits in support and the skeleton arguments. We considered the Notice of Motion and dismissed it. We said that we would give our reasons in the Judgment. We now give those reasons. Section 25 of the Supreme Court Act, Chapter 25 of the Laws of Zambia provides that- "25. (1) On the hearing of an appeal in a civil matter, the Court- (cid:9) J12 shall have power to confirm, vary, amend, or set aside the judgment appealed from or give such judgment as the case may require; may, if it thinks it necessary or expedient in the interests of justice- (i) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case... (2) Whenever the Court gives instructions for the taking of further evidence, it shall make such order as will secure an opportunity to the parties to the proceedings to examine every witness whose evidence is taken." Further Order 59 of the rules of the Supreme Court 1999 provides that:- "the Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merit, no such further evidence (other than evidence as to the matters which have occurred after the date of the trial or the hearing) shall be admitted except on special grounds." In the Notice of Motion before us it is clear that the evidence in contention are the minutes. These minutes were prepared in 1997. The matter before us was commenced in 2012. The Appellant was crowned as Chief Muyombe in 2011. Upon being crowned Chief, the Appellant obviously moved into the Palace. According to the affidavit in support of the Notice of Motion, 72 people attended the meeting whose minutes are in contention. Firstly, we are of the view that this Notice of Motion does not meet the test under Order 59 of the rules of the Supreme Court 1999 which requires that no such further evidence (other than J13 evidence as to the matters which have occurred after the date of the trial or the hearing) shall be admitted except on special grounds. In the case before us, the evidence was available before the time of the trial. The Appellant argued that it was not diligently possible to obtain the evidence because of the filing system and the pile of the documents. In our view, it is very likely that some of the 72 people who attended the meeting are known to the Appellant since he is a member of the same chiefdom. Therefore, the chances that some of the 72 members of the royal family are still around and are aware of this court case are high because all subjects are interested on knowing who their Chief will be. In fact, the possibility that the Appellant attended the meeting in contention is high because he is a member of the royal family. Further, the Appellant moved into the palace upon being crowned Chief. Surely, it is expected that once sued, the first place the Appellant ought to have looked for information on succession were the piles of records that are in the palace, which he was occupying. Therefore, we do not agree with the submission that the evidence could not be obtained with reasonable diligence at trial. As regards the submission that the evidence will have an important influence on the results of the case, we are of the view that it will not. We say so because the portion of the minutes relied upon is an opinion by the late Chief, on who should succeed him. Succession in chiefdom is by way of established traditions and customs and not personal views or wishes of 13.4 particular individuals. Therefore, this test has not been met as well. From what we have said above, we do not find it relevant to deal with the last test dealing with the credibility of the evidence the Appellant intends to adduce. We say so because the evidence has failed the first two tests. In sum, we are of the view that firstly, "special circumstances" have not been established; secondly, the application has failed to meet the conditions set out in Ladd v. Max-allelic'', and lastly, the evidence relates to matters which occurred before the trial and could have been obtained by the Appellant from the Palace he occupied. Accordingly, and as we stated when we heard the appeal, we find no merit in the Notice of Motion to adduce further evidence and we dismiss it. We now come to the main appeal. The appeal is on five grounds. These are:- Ground one That the Honourable Court below erred in law and in fact when it failed to take into account the fact that the Plaintiffs had pleaded fraud in their statement of claim which required proof on a balance and standard higher than the ordinary balance of probabilities and that there was no evidence at trial or on documents on court record to show that the Appellant was fraudulently installed as Chief Muyombe and further the Court below erred when it did not adjudge on the particulars of fraud that the Respondents alleged. Ground two J15 That the Honourable Court below erred in law and in fact that when it made a finding of fact that the Uyombe Chieftainship rotates among three Royal Branches contrary to evidence on record which shows that the Uyombe Chieftainship rotates among six Chiefly Branches. Ground three That the Court below erred in law and in fact when it held that the Appellant was not validly installed as chief since he was not selected by the Banangwa Council when in fact evidence on record shows that the Banangwa Council played a critical role in the selection and installation of the Appellant as chief. Ground four That the Court below erred in law and in fact when it held that the Appellant was not validly installed as chief because elections were held, when the holding of elections was unanimously agreed upon by all the royal families, and the Banangwa Committee approved the elections and in fact candidates were presented by each royal family for purposes of selecting a chief. Ground five That the Court below erred in law and in fact when it failed to adjudicate on the issue of whether a member of the royal family can crown a chief in accordance with the Muyombe custom and tradition and that the 1st Plaintiff can never be crowned as chief again because he breached the Muyombe custom and tradition. For convenience, we shall deal with grounds two, three and four together because they are interrelated. Then we shall deal with grounds one and five separately. On ground two, Ms. Kaingu submitted, on behalf of the Appellant, that there is no evidence on record to show that the Uyombe Chieftaincy rotates among three royal branches. That the evidence adduced at trial clearly shows that there are six royal family branches namely Njera, Mitanga, Chipanga, Chimbilima, Kwanda and Chapyoka royal branches. She argued that Njera from the Njera royal branch, followed by Chipyoka from Chipyoka branch, then Chisusu from Nkwanda branch, followed by Kolelakwaka from Mitanga followed by Funtukeni from Chimbilima then Vhalamahoko from Chipanga branch followed by Punyila and finally Musungambumba from Njera branch. Counsel stated that it follows that the next Chief should be from Chimbilima and only then would members of the Chipanga branch be eligible. It was stated that to argue that only the male sons of the 3 mothers were eligible for Chieftaincy is misleading. That this is so because there is no dispute that the Muyombe succession system was patrilineal. She submitted that the argument that the Chieftaincy moved from Kolelawaka of Njera to Funtukeni of Chimbilima was because Kolelawaka ruled for only 6 months is not true. That the Respondents contradicted themselves by saying further that chieftaincy cannot rotate within the same chiefly branch yet Kolelawaka and Funtunkeni is clear evidence. They added that a Chief rules a chiefdom until he dies. That the period does matter. J17 Ms. Kaingu went on to argue that the court below made a wrong finding that the Chieftaincy rotates among 3 royal branches instead of six. That the finding by the Court was not supported by the evidence on record. That it was an error on the part of the court to speculate as to the possible explanations for an event. To support her argument, counsel cited the following cases Wilson Masauso Zulu v. Avondale Housing ProJecto Attorney-General v. Marcus Kampumba Achiumem Nkongolo Farms v. ZANACO, Kent Choice Limited (in Receivership) and Charles Haruperim Connoly v. Camden and Islington Area Health Authorite Nkhata and 4 others v. Attorney-Generalo) It was Counsel's argument that the findings of fact by the Court below were perverse in so far as the court held that the Uyombe Chieftaincy rotates amongst three royal branches, as opposed to six, when there was no evidence to support it. She went on to submit that the learned trial Judge made findings favourable to the Respondent which, on a proper and well balanced view of the whole of the evidence, no trial court, acting correctly could reasonably make The Appellant argued grounds three and four together. Counsel begun her submission by referring this Court to Article 127 of Part XIII of the Republican Constitution Chapter 1 (before the amendment) of the Laws of Zambia provides as follows: "Subject to the provisions of this constitution, the Constitution of Chief shall exist in any area of Zambia in accordance with the culture, custom and tradition or wishes and aspiration of the people to whom it applies." She also referred us to Section 3 (1) of the Chiefs Act Chapter 287 of the Laws of Zambia, which provides that- "3(1) subject to the provisions of this section, the President may by statutory order, recognize any person as being, within the area in Zambia specified in the order, the holder of- (b) the office of (cid:9) Chief." She submitted that on the strength of the above provisions people may decide to hold an election for purposes of choosing a Chief. That it is not in dispute that there was confusion in the Uyombe Chiefdom, upon the death of Chief Musungambumba, as to who was the right person to succeed him. She stated that to resolve this, the Uyombe people unanimously agreed to hold an election. That this was in accordance with the Republican Constitution which allows people to choose a Chief "in accordance with their wishes and aspirations." Counsel stated that it was agreed that each royal family would float a name and then the candidates would be subjected to an election. The names that were proposed were the following:- Ted C. Muwowo Abraham Muwowo Wesley Punyila Muwowo Wesley Chilola Muwowo It was Counsel's submission that the Appellant emerged winner at this election. It was submitted further that the Respondents failed to adduce evidence that the Appellant was not entitled to hold the office under African Customary Law. The Appellant stated that one may ask what constitutes African Customary Law. Counsel stated that generally speaking, it consists of traditional laws of African tribes and cultures. That African Customary Law is wide and that the Appellant was entitled to hold office as Chief under African Customary Law in accordance with Section 3 (2) (a) of the Chiefs Act. It was argued that it is not in dispute that the Appellant is a Muwowo and therefore, eligible to succeed to the throne of Chief Muyombe. That it is not in dispute that the late Chief was his grandfather and that the Respondents are his "sons." That, therefore, nothing under African Customary Law would bar the Appellant from taking over as Chief Muyombe when it is his turn to do so. Counsel invited this Court to take Judicial Notice of the fact that in some African Countries, such as Nigeria and Angola, elections are held for purposes of choosing a chief, especially where there is no agreement as to who should take over the throne. That all this happens within the traditional circles of such countries and sits well within the definition of African Customary Law. J20 Counsel went on to state that a close scrutiny of Section 3 (2) (a) reveals that the requirement contained therein is a factor to be taken into consideration by the Republican President before recognizing one as Chief. That in other words, the President cannot issue an Order recognizing a person as Chief pursuant to Section (3) (1) of the Chiefs Act if that person did not meet the requirement of Section (2) (a). Ms. Kaingu stated that Section 4 (1) of Cap 287 empowers the Republican President to withdraw recognition accorded to Chiefs if, for instance, the person holding the office does not qualify under African Customary Law. It was argued that no such inquiries were made in the instant case, as the Appellant was validly installed as Chief Muyombe. Counsel concluded by submitting that the Respondents had failed to show the Court which law the Defendant breached, relating to his installation as Chief. In response, on behalf of the Respondents on ground two, it was submitted that the learned trial Judge made the finding of fact on sufficient evidence before her. Counsel cited a passage in the book by Professor George C. Bond referred to above at page 22, which reads as follows:- "traditional posts are those of the Chief, his three traditional councillors, the chiefdom priest (Musofi) and village headman. The Chief is the head of the Chiefdom, holds his post for life and is a member of the royal clan. The royal clan consists of six branches but only the adult male members of Chapyoka, Njela and Chipanga branches are eligible for chieftainship. The Chieftainship is supposed to rotate among the three J21 chiefly branches, a chief's son or another member of his branch are not supposed to succeed him. Two other branches Kaswanga and Vumbo, participate in the selection of the new chief, but their members may not themselves hold the post..." It was submitted that the court made the finding based on clear evidence. It was stated that in fact, there is no dispute that the Appellant, though purporting to be a member of the Chimbilima royal branch, is a member of the Njera chiefly branch and is in fact the brother to the late chief Musungambumba. That therefore, the long-standing tradition of rotation cannot allow the Appellant to succeed a fellow Njera. It was argued that the need to adhere to custom and tradition was cardinal in Chieftainship succession. To support their argument, they cited the cases of Kenneth Mpengula (Alias Senior Chief Mushili) and Reverend Hudson Litana and °there) and Simon Kalaba Chisha, Senior Chief Malambo and Benson Kasongo Shapi and Philimon Mbo1a(8). As regards the Appellant's submission challenging the learned trial Judge's findings of fact, it was submitted that the finding that the Uyombe Chieftaincy rotates among three royal branches was supported by evidence and cannot be interfered with. That the finding was neither perverse nor made after mistakenly taking into account matters which ought not to have been taken into account. The Respondents' responded to grounds three and four that the electoral body in Uyombe Chiefdom is the Banangwa Royal Committee or Council and election of a chief is not an acceptable mode of selecting a successor to the throne of Chief Muyombe. It was the Respondents submission that the elections which ushered in the Appellant were characterised by irregularities. They added that whereas by Statutory Instrument No. 52 of 2012, the Republican President recognised the Appellant as Chief Muyombe, the same was not without reproach. It was the Respondents' argument that the installation of the Appellant as Chief Muyombe was done contrary to African Customary Law of the Bayombe people. Therefore, the President was misled into believing that the Appellant was entitled to be appointed as Chief Muyombe. We have looked at the evidence on record and considered the submissions and authorities cited by both parties in relation to grounds two, three and four. We note that these three grounds of appeal are challenging the findings of fact of the learned trial Judge, when she found that the Appellant was not installed in accordance with the established traditions and customs of the Uyombe people. Counsel for the Appellant invited us to interfere with the findings of fact made by the trial Court. This court has set down principles on when an appellate court can interfere with the findings of fact of a lower Court. These principles are well known and set down in the following cases: Wilson Masauso Zulu V. Avondale Housing ProJectm The Attorney General v. Marcus Kampumba Achiumen) J23 In the Court below, it was not in dispute that the succession to the Uyombe Chieftaincy is by rotation. It was also agreed by the parties that the late Musungambumba was from the Njera branch. The Appellant's contention was that there are 6 royal branches from which chiefs are supposed to be selected and that he was from the Chimbilima branch. However, a consideration of the evidence presented before the Court below does not support the Appellant's contention. In the court below, the Appellant's evidence was that the six chiefly branches are Njera, Mitanga, Chimbilima, Chipanga, Kwanda and Chapyoka. That the last Chief Muyombe was from the Njera branch and that the next person in line was supposed to be from Mitanga then Chimbilima then Chipanga, then Kwanda and finally Chapyoka. The Appellant stated that since he comes from the royal family branch of Chimbilima and there was no one from Mitanga royal family, he was the rightful heir to the throne. Apart from the Appellant, there was no other evidence brought to show that there was no one from Mitanga. Further, the evidence from the Appellant was that he was elected as Chief at a meeting held on the 5th day of May 2011. In addition the evidence of the 2nd Respondent to the effect that he was the Chairperson of the Banangwa Council and that the Banangwa Council was not involved in the selection of the Appellant as Chief, was not challenged in cross-examination by the Appellant. The evidence of Appellant's 2nd witness in the Court below was to the effect that he was the Chairperson of the Banangwa Council and that he was not present during the elections that selected the Appellant as Chief. In addition to the above evidence, the Appellant's submissions are not supported by the book by Professor Bond. Further, the Appellant in his testimony, during cross examination, stated that he was also from the Njera branch and that the last Chief was also from Njera branch. He also stated that because of the wrangles within the chiefdom, elections were held. With the above evidence, the learned trial Judge referred to a book by Professor George C. Bond titled "The Politics of Change in a Zambian Community" published by the University of Chicago Press, London 1976 where she quoted a passage at page 22 stating that- "The Chief is the head of the Chiefdom, holds his post for life and is a member of the Royal clan. The Royal clan consists of six branches but only the adult male members of the Chapyoka, Njera, and Chpanga branches are eligible for the chieftainship. The chieftainship is supposed to rotate among the three branches, a chiefs son or another member of his branch are not supposed to succeed him." After stating the above, the learned trial Judge accepted the evidence of PW2 and PW3 that the Uyombe Chieftaincy rotates among the three chiefly branches of Chapyoka, Njera and Chipanga. The Judge also stated that the selection of Chief Muyombe should have been done in adherence to the traditions and customs of the Bayombe people. She found that the Banangwa Council were not involved in the selection of the Appellant as Chief and yet it was their duty to participate in the J25 selection of Chief Muyombe. The Judge also stated that the process of selecting a chief through election, as was done in this case, was in conflict with the customs and traditions of the Uyombe Chiefdom. The above was the basis upon which the lower Court made its decision. We are of the view that the above findings of fact made by the learned trial Judge are supported by the evidence on record. In our view the findings by the Court that the chieftaincy rotates amongst 3 royal branches of the law was supported by the evidence on record and the literature referred to. In addition, her findings that the Banangwa Council was not involved in the selection of the Appellant as Chief are also supported by the evidence on record as shown above. In fact, in his evidence, the Appellant stated that elections were held because there was confusion in the selection of the Chief. We wish to add that where the tradition and custom of a group of people has a process that is to be followed for the selection of a Chief, that tradition and custom ought to be followed. We recognise the provisions of the Constitution and the Chiefs Act referred to by the Appellant and what they provide for. What we discern from those provisions is that the tradition and Custom of a people is what should be followed in the selection of a Chief Further, we agree that the law gives power to the President to recognise a person as a Chief. However, this does not mean that once a person is recognised as a Chief, then no person can challenge the selection of the person recognised. J26 In the case at hand, elections were held for the selection of Chief Muyombe. The tradition and custom of the Muyombe people is that the selection of a Chief would be by rotation from the 3 royal branches and that the Banangwa Council should be responsible for the selection of the Chief, and not through an election. What is interesting also is that the Appellant argues in one breath that the chieftaincy is supposed to rotate amongst six royal branches and in another that a Chief can be chosen through an election. With what we have said above, we do not see any misapprehension of facts or perversity in the findings of fact. Therefore, we uphold the findings of fact made by the learned trial Judge and her holding that the process of election of the Appellant as chief was in conflict with the traditions and customs of the Uyombe Chiefdom. Accordingly, grounds two, three and four of this appeal fail, for lack of merit. On ground one of the appeal, it was submitted on behalf of the Appellant that the Respondents had pleaded fraud in their statement of claim. That where fraud is alleged, it must be precisely and strictly proved. That there is no presumption of fraud. Counsel cited the following authorities to support her argument: , (cid:9) 1 (cid:9) (cid:9) J27 Nkongolo Farm Limited v. Zambia National Commercial Bank Ltd and othere Sable Hand Zambia Ltd V. Zambia Revenue Authority" Halsburv's Laws of Enaland. Volume 36 Bradford Third Equitable Benefit Building Society v. Boardersw) She urged us to hold that fraud, though contained in the Plaintiff's statement of claim, was not precisely alleged. On behalf of the Respondents, it was submitted that the Respondents pleaded the following, among other things:- "That the installation of Ted Chisavya Muwowo as Chief Muyombe be declared null and void for being in violation of the Uyombe Custom and tradition/having been fraudulently installed." The Respondents submitted that the "slash" in the sentence was used as a substitute for "or". It was stated that the trial Court did not specifically address the issue of fraud against the Appellant. That the trial court addressed the issue of the installation of the Appellant which it found to have been done in violation of the Uyombe custom and tradition. That as a result of the above, the authorities cited by the Appellant on this ground do not apply. It was submitted that the learned trial Judge erred in law and fact by not addressing the issue of fraud as this was pleaded in the alternative and what was rightfully addressed was the issue of the Appellant being installed as Chief in violation of the Uyombe custom and tradition. We have looked at the evidence on record and considered the submissions and authorities cited by both parties on this ground. In this ground, the Appellant submitted that the court below erred when it failed to take into account the fact that the Respondents pleaded fraud in their statement of claim, which required proof on a standard higher than the ordinary balance of probabilities. Counsel cited a number of authorities referred to above. This court stated in the case of Sithole v. The State Lotteries Board (12) that- "If a party alleges fraud, the extent of the onus on the party alleging is greater than a simple balance of probabilities." In the case before us, it is not in dispute that the Respondents alleged fraud in their statement of claim. It is also not in dispute that there was no finding of fraud made by the learned trial Judge. We agree, therefore, with the submissions by the Appellant on this issue. However, we note that the basis for the decision of the learned trial Judge, as we have already stated above, was that the installation of the Appellant, as Chief Muyombe was against the established tradition and custom of the Uyombe people. Further, that the electoral college of the Uyombe people, that is, the Banangwa Council, was not involved in the installation of the Appellant as Chief Muyombe. The learned trial Judge also based her decision on the fact that there are three Chiefly branches and that since the last chief was from the Njera branch, the Appellant could not be selected Chief since he is also from the Njera branch. Therefore, even if the allegation J29 of fraud was made, it was not the basis of the learned trial Judge's decision. Accordingly, this ground fails for lack of merit. In ground five, Ms. Kaingu submitted that the record of the Court below shows that it was argued and established at trial that the First Respondent was purportedly crowned as Chief by a member of the royal family namely Bob Muwowo. That evidence was led to show that when a Muwowo crowns another Muwowo as Chief, the crowned person must be nullified and can never assume the seat as Chief in the future. However, the Court below failed to rule on this aspect clearly leaving matters hanging on which interpretation may be sought. It was argued that it is well settled in this jurisdiction that the Court is required and obliged to completely and finally determine all matters in controversy between litigants for avoidance of multiplicity of legal proceedings. That it is a primary function of the Court to adjudicate disputes which have been submitted for determination and that failure to do so amounts to a dereliction of duty and a miscarriage of justice. That the duty to adjudicate and to do so with some finality and in a timely fashion is reflected in the language of the various statutory provisions dealing with the function of the Courts. To support her argument, counsel cited the following authorities: Sections 9(2) and 13 of the High Court Act Sentor Motors Limited and 3 Other Companies (13) Kansanshi Mining Company v. Maini Joseph Mundamina and Others04) J30 Wilson Masauso Zulu v. Avondale Housing Project Limited') British Columbia In CoJocaru (Guardian ad Litem) v. British Columbia Women's Hospital and Health Care Centres) It was stated that the views in the British Columbia case of Cojocaru have been echoed in the Rwandan Judiciary Instructor's Manual on Judgment Writing, where the authors say:- "Losing Party's Position (LPP) should be clearly and impartially stated." She stated that as the record will show, the Court below failed to adjudicate on the issue of whether a Muwowo could install another Muwowo, as Chief and what the consequences would be in such an event. She added that the Court in the present matter had abdicated its responsibility and this amounted to a denial of justice. Counsel prayed to this Court that on the strength of her arguments and the collated authorities cited, this Court quashes the judgment of the learned trial Court and grants this appeal with costs to the Appellant. On behalf of the Respondents, it was submitted that the Court cannot adjudicate on a matter that has not been specifically pleaded. That Order 18 Rule 8 of the Supreme Court Practice Rules of 1999 provides that:- A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release the expiry of any relevant period of limitation, fraud or any fact showing illegality. (C) which raises issues of fact not using out of the proceeding pleading." The Respondents cited the cases of Admark Limited v. Zambia Revenue Authority1161 and that of Anderson Mazoka & Others v. Levy Mwanawasa and Others(17) on the functions of pleadings. It was the Respondents argument that the Appellants did not file a counter claim to the effect that a member of the royal family cannot crown a Chief, hence this matter was not specifically pleaded and the Court cannot be called upon to adjudicate on the matter. That based on the plethora of authorities cited above, it is, therefore, improper for the Appellant to bring up an issue that is not in the pleadings. Further, that the trial Court in its Judgment dated 10th day January 2014, at page J23 stated that:- "This action therefore succeeds. I therefore declare that the selection of the Defendant as Chief Muyombe null and void as It was In violation of the Uyombe customs and traditions. However, it Is not for his Court to decide that the Plaintiff be Installed as Chief Muyombe in the place of the Defendant. The Bayombe Royal Traditional Council of Electoral College shall sit to elect and install a Chief as Chief Muyombe In accordance with the well-known and established practices customs and traditions of the Bayombe people." It was the Respondents' contention that the above portion of the Judgment clearly entails that the Court below was on firm J32 ground when it decided not to adjudicate on the matter concerning the crowning of a Chief and rightfully observed that this is the preserve of the Banangwa Royal Traditional Council. Counsel prayed that the Appellant's grounds of appeal should be dismissed for lack of merit. We have looked at the submissions on this ground and considered the submissions by both parties. We agree with the submission by the Appellant that the High Court has a duty to adjudicate on all matters in controversy before it. In the case before us, the issues for determination were stated in the statement of claim by the Respondents. The issue that the Appellant is bringing out now, was not one of the issues in controversy for the court to determine. A court is guided by the pleadings as to what the issues in controversy are, between the parties. This Court has, in many cases, given direction on the function of pleadings. See: Sithole v. State Lotteries Board" Roland Leon Norton V. Nicholas Lostrom" Since the issue which the Appellant is bringing was not pleaded by the Respondent, the court did not have to deal with it as it was not in controversy. If the Appellant wished the Court to have dealt with this issue, he ought to have filed a counter claim alleging that when a Muwowo crowns another Muwowo as Chief, the crowned person must be nullified and can never assume the seat as Chief in future. J33 Accordingly, this ground of appeal fails for lack of merit. All in all, we find no merit in this appeal and we dismiss it. We uphold the Judgment of the trial Court. It follows that the stay of execution of the judgment of the Court below, granted to the Appellant, is hereby discharged. We award costs to the Respondents, to be taxed in default of agreement. WAMBWA DEPUTY CHIEF JUSTICE E. M H (cid:9) NDU (cid:9) SUPREME COURT JUDGE (cid:9) C. KAJIMANGA SUPREME COURT JUDGE