Dominic Timuna Kahare v Justin Kahare (APPEAL NO. 60/2023) [2024] ZMCA 113 (29 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) APPEAL NO. 60/2023 DOMINIC TIMUNA KAHARE APPELLANT 2 g ! A ;Q?4 AND JUSTIN KAHARE RESPONDENT Coram : Chashi, Makungu and Sharpe - Phiri, JJA On the 30th day of April 2024 and on the 29th day of May, 2024 For the Appellant: Mr. A. K. Phiri of Messrs Anthony Associates For the R espondent: Mr. J. Katai f rom Messrs Katai Legal Practitioners JUDGMENT MAKUNGU JA, d elivered th e ju dgrnen t of the Court. Cases referred to: 1. Wilson Masaus o Zulu v. Avondale Housing Project Limited (1982) Z. R 172 2. Khalid Mohamed v. Attorney General (1982) Z. R 49 3. His Royal Highnes s the Litunga and 3 Othe rs v. The Attorney General 2020/ CCZ/ 009 4. Webby Mulubisha v. Attorney Ge neral 2018/ CCZ/0013 5. Summer v. Wilson Henderson & Sons (1963) ALL E. R 712 6. Royster v. Caveey (1947) K. B. 204 7. Bank of India v. Murjani Marketing, March 1, 1991, CAT Transcript 9 1/ 0304 Legislation referred to: 1. The Chief's Act, Chapter 287 of the Laws of Zambia. Authority referred to: 1. The Rules of the Supreme Court of England, 1999 Edition (White Book) 1.0 INTRODUCTION 1.1 This appeal is against the ruling of T. I. Katanekwa J, of the High Court (as he then was) dated 16th December 2022. By that Ruling, the Court held that this case is suitable to be determined under Order 14A of the Rules of the Supreme Court (RSC). 2 .0 BACKGROUND 2.1 On 12th December 2019, the respondent who was the plaintiff in the Court below commenced an action against Stanford Mayowe, who was Chief Mwene Kahare at the time, seeking the following reliefs: (i) A declaration that the plaintiff is the duly installed and true Chief Mwene Kahare of the Nkoya people of Nkeyema District of Western Province. (ii) A further declaration that the defendant was not a chief and was occupying the palace illegally. (iii) An order for the defendant to vacate the palace so that the plaintiff who is the rightful chief can occupy it. (iv) Damages, costs, and any other relief the Court may deem.fit. 2 .2 After the death of Stanford Mayowe, Dominic Timuna Kahare (appellant) was joined to the proceedings as defendant. On -J2- 20th June 2022, the appellant filed a defence and counterclaimed for a declaration that he is th e duly installed Ch ief Mwene Kahare of the Nkoya people of Western Pr ovin ce. 3 .0 NOTICE OF MOTION FILED IN THE LOWER COURT 3 .1 On 26 th J uly 2021, the respondent filed a Notice of Motion to dispose of the matter on a point of law u nder Or der 14A of the Rules of the Supreme Court of England (White Book) 1999 edition. 3.2 The point of law for determination was wheth er an individual can be installed as Chief Mwene Kahare of th e Nkoya people of Nkeyema District without recognition by His Royal Highness the Litunga given the Constitutional Court Judgm ent delivered on 14th July 202 1, in the case of His Royal Highness Th e Litunga & 3 Others v. The Attorney Gener al 2020/CCZ/009. 4.0 AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION 4.1 Th e Notice of Motion was su pported by an affidavit dated 26th J uly 202 1, sworn by the respon dent. He averred that h e is the son of Edward Kahare, who was installed as Chief Mwene Kahare on 15th September 2016, following h is selection by memb ers of th e royal family and recognition by the Litunga. -J3- That in the process, the Nkoya traditions and customs were complied with. Edward Kahare passed away on 30th October 2018, leaving the Nkoya people of Nkeyema District without a Chief. 4.2 Subsequently, the royal electoral college convened and elected him (the respondent) to succeed his father as Chief Mwene Kahare 4.3 On 16t h August, 2019, he was recognised by the Litunga of Barotseland (Western Province) as Chief Mwene Kahare and given instruments of power. He exhibited a letter marked 'JK2' from the Ngambela, written on behalf of the Litunga to the Permanent Secretary of Western Province to recommend him for recognition by the Republican President. 4.4 The deponent further averred that he was unable to move into the palace because the late Stanford Mayowe was occupying the palace illegally after declaring himself as Chief Mwene Kahare, contrary to the Nkoya customs and traditions. 4.5 On 6 th November 2019, he commenced this action against Stanford Mayowe seeking among other reliefs a declaration that he was the duly installed Chief Mwene Kahare. The court below granted an injunction in his favour restraining Stanford Mayowe, his servants, or agents from impersonating -J4- Chief Mwene Kahare. Between 8 th and 14 th February 2021, Stanford Mayowe died and was put to rest. 4.6 After the death of Stanford Mayowe, the appellant was illegally installed as Chief Mwene Kahare in place of the deceased. This contravened the injunction order dated 24th November 2020, as well as the tradition, custom, and practice of having a selected person recognised by the Litunga before taking the throne as Chief Mwene Kahare. 4.7 The respondent's affidavit also contains legal arguments and conclusions, which we will not recap, because an affidavit should not include legal arguments and conclusions, and the same were repeated in the skeleton arguments by cou nsel. 5.0 AFFIDAVIT IN OPPOSITION 5.1 The affidavit in opposition dated 27th May 2022, was sworn by the appellant. He deposed that the determination of the respondent's application would not finally determine the issues in contention between the parties. Since the material facts regarding the succession to the throne of Chief Mwene Kahare are in dispute, it is necessary for the Court to hear the evidence before finally determining the matter. 5.2 He further averred that he was legitimately selected as Chief Mwene Kahare on 13th February 2021, and installed as such -JS- on 22nd February 2021 . He was selected by the Kahare Royal Family after the death of Stanford Kayonda Mayowe on 8 th February 2021. 5.3 That he underwent all rites of passage per the norms, traditions, and cultural practices of the Nkoya people of Western Province. 5.4 That the Nkoya culture, traditions and customs dictate that the royal family selects chiefs, sub-chiefs, and the headmen. 5.5 That the respondent was never selected or installed as Chief Mwene Kahare. He has never undergone any rites of passage to chieftaincy organized by their tribal cousins from the Ila and Tonga tribes. 5.6 That the respondent never went to Naliele village of Prince Amukena of the Barotse Royal Establishment to seek endorsement. As a result, he has failed to produce any proof in the manner the appellant did by providing minutes and pictures of his installation. The respondent's exhibit marked 'JKl ' is the president's recognition of his father Edward Kahare as Chief and not the respondent. 5.7 He went on to state that according to established procedure, an individual cannot be recognised by the Litunga before being installed by the family. That the Nkoyas do not observe the Lozi culture and customs. -J6- 5.8 The appellant's affidavit also contains legal arguments and conclusions which we have left out for obvious reasons. The same arguments were made before this Court by his legal counsel. 6.0 DECISION OF THE LOWER COURT 6.1 Upon considering the matter, the trial Judge found that the position of the law, as clarified by the Constitutional Court in the case of Webby Mulubisha 2018 - CCZ/0013, is that where traditional authority requires that a ch ief be recognized by a superior chief under certain authority, the position is maintained. 6.2 The lower court further found that there can be no valid installation without such recognition as the Constitutional Court made it clear in its judgment in the case of His Royal Highness The Litunga and 3 others v. The Attorney General 2020 / CCZ / 009. 6.3 That the respondent was duly selected and installed as Chief Mweene Kahare. He was also recognised as such by the Litunga. The appellant's installation was nullified because he was not recognised by the Litunga and he claimed his authority through the late Stanford Mayowe, who believed there was no need to be recognised by the Litunga. -J7- 6.4 Accordingly, the Judge found that this is indeed a proper case to determine under Order 14 A of the RSC and he upheld the submissions by the respondent. He finally found that no one can be installed as chief of the Nkoya people without the approval of the Litunga. 6.5 An order for leave to appeal was granted by the lower court on 21 st December 2022, and it appears at page 3 of the record of appeal: 7.0 THE APPEAL BEFORE US 7.1 The appellant advanced four grounds of appeal framed as follows: 1. The learned Puisne Judge erred in law by wrongfully invoking Order 14A of the Supreme Court Practice (White Book) 1999 edition and holding that the matter was suitable for disposal on a point of law without the necessity of a full trial of the action. 2. The learned Puisne Judge erred in law and fact by relying on a single letter from the Litunga's Ngambela to make aflnding that the respondent was selected and installed as Chief Mwene Kahare without any evidence of the respondent's selection and installation. -JS- 3. The learned Puisne Judge erred in law and fact by holding that before a person can be installed as Chief Mwene Kahare he must be recognised and approved by the Litunga, in the absence of any evidence that the Nkoya people of Western Province are subject to the culture, customs, and traditions of the Lozi people. 4. The learned Puisne Judge erred in law and fact when he held that the appellant clai med his authority and entitlement through the late Stanford Mayowe, the deceased defendant. 8 .0 APPELLANT'S ARGUMENTS 8.1 The appellant relied on the heads of argument dated 14th March 2023. In support of ground one, counsel argued that the lower court misapplied Order 14A of the RSC by disposing of the matter solely on a point of law. 8.2 The appellant's counsel further argued that Order 14A RSC is only applicable when there are no serious factual disputes. However, the record showed significant factual disputes, such as conflicting claims about the respondent's election or selection as Chief Mwene Kahare. 8.3 Counsel emphasized that a determination under Order 14A should resolve the entire case or a key issue, but the lower -J9- court failed to address the pnmary issue of who should rightfully hold the position of Chief Mwene Kahare, aside from stating that the Litunga's recognition 1s necessary for installation. He also failed to decide on whether the respondent was properly selected according to Nkoya tradition and culture to ascend to the Kahare throne and whether he was properly installed according to Nkoya tradition and culture. Counsel referred us to the case of Wilson Masauso Zulu v. Avondale Housing Project Limited, 1 where the Supreme Court underscored the importance of a trial court adjudicating and determining every issue between the parties. 8.4 In support of ground two, counsel submitted that the basis of the lower Court's conclusion that the respondent was duly installed and recognised by the Litunga is the letter from the Ngambela addressed to the Permanent Secretary of Western Province. Regrettably, no trial took place in this matter in which its author could have been subjected to cross examination. Thus, it was not safe for the Court to make the conclusion that it made. There was need for a trial in order to determine all the disputes between the parties. 8.5 The respondent cannot be said to have proved his case within the meaning of the holding in the case of Khalid Mohamed -JlO- v . Attorney General2 to entitle him to a judgment declaring him the rightful Chief Mwene Kahare of the Nkoya people of Western Province. 8.6 On the 3 rd ground of appeal, counsel submitted that in the case of His Royal Highness the Litunga & 3 Others v The Attorney General, 3 the Constitutional Court held that: "Matters to do with the installation, discipline, and administration of traditional matters remain to be practiced following the customs and traditions of the people within the petitioners' chiefdoms." 8 .7 Therefore, the lower court erred when it held that no person can be installed as chief of the Nkoya people without the approval of the Litunga because matters of succession, selection, and installation to the throne precede recognition. Selection of candidates is the preserve of the people which they do following their traditions, culture and customs. 8 . 8 The appellant's counsel further argued that there was no evidence before the lower court to show the following: (a)The traditions, culture, and customs of the Nkoya people. (b) Whether the Nkoya chiefdom formed part of the Lozi chiefdom; and -Jll- (c) Whether the customs and traditions of the Nkoya people are the same as the customs and traditions of the Lozi people of Western Province; and (d) Wh ether th e Litunga can preside over the traditional matters of chiefs that are not part of the Lozi group. 8.9 Although the memorandum of appeal shows four grounds of appeal, the fourth ground was not argued by the appellant and we shall therefore consider it as abandoned. 9 .0 RESPONDENT'S HEADS OF ARGUMENTS 9.1 In the respondent's heads of argument dated 20 th April 2023, to counter ground-one, the respondent's counsel argued that the trial Judge was on firm ground in determining the case on a point of law under Order 14A RSC because all material facts had been settled. 9.2 The main issue in the lower court was whether an individual could be installed as Chief Mwene Kahare of the Nkoya people without recognition by the Litunga of Western Province. 9 .3 Counsel for the respondent took note that the appellant relied on Article 165 of the Constitution of Zambia and the Wehby Mulubisha v Attorney General4 case to support the argument that the Litunga's recognition was not necessary for the installation of Chief Mwene Kahare. -J12- 9.4 In response to the above, counsel for the respondent emphasized that the Litunga's recognition was crucial for valid installation as it confirmed compliance with traditional requirements. 9.5 Counsel for the respondent further argued that the traditional powers of the Litunga, as outlined in the Chiefs Act, existed even before the repealed section 3 (2) b of the Chiefs Act was enacted, making the Litunga the authority to validate chief selection and installation through recognition. He further contended that the appellant's installation as Chief Mwene Kahare was invalid because it occurred while court proceedings were pending and in defiance of an injunction order against him. 9. 6 That the lower court's decision under Order 14A RSC effectively resolved all issues in the case, confirming the respondent's rightful installation as Chief Mwene Kahare and declaring the appellant's installation null and void due to contempt of court. 9.7 On the 2nd ground of appeal, counsel submitted that the letter of recognition written by the Litunga on page 127 of the Record of Appeal was not the primary basis for the lower Court's conclusion that the respondent was duly installed and recognized as Chief Mwene Kahare. This letter pertained -J13- to the recognition of the late Edward Kahare as Chief Mwene, who the respondent succeeded following his passing. The letter of recognition from the Litunga of Western Province on page 129 of the Record of Appeal, indicates that the Litunga acknowledged the respondent before his installation as Chief Mwene Kahare, aligning with the longstanding traditions and customs of the Nkoya people. 9.8 Counsel further contended that the appellant's complaint of there being no trial to cross-examine the author of the letter lacks merit. The record shows no challenge by the appellant, either in this Court or the lower Court, regarding the Litunga's recognition of the respondent. 9. 9 Moreover, during the hearing of the respondent's application to resolve the matter on a point of law, the appellant had the opportunity to request for cross-examination of the author of the letter given that the entire application was based on the letter, but he chose not to do so. 9.10 Addressing the appellant's query on the respondent's selection and initiation into Nkoya royal and chiefly rites, counsel argued that the Litunga's recognition signifies compliance with all selection, customary, and initiation processes preceding ascension to the Mwene Kahare throne. -J14- 9.11 Therefore, the appellant cannot undermine the Litunga's authority by questioning whether installation procedures were followed. 9.12 The tradition of the Litunga's recognition before the installation of any chief in Western Province has been observed since time immemorial and this customary practice was once legislated in the Chiefs Act, as evidenced by section 3(2)(b) which has since been removed from the statute book. However, despite the removal of this section from the Chiefs Act, following the Webby Mulubisha case, the Constitutional Court confirmed that the Litunga retains these powers over subordinate chiefs in Western Province, as established in the case of His Royal Highness the Litunga and Others. 3 9.13 Hence the Litunga's authority in the installation and recognition of subordinate chiefs extends across the entire Western Province, including the Kahare chiefdom. 10.0 ANALYSIS AND DETERMINATION We have considered the record of appeal and the arguments made by counsel on behalf of both parties. The grounds of appeal will be dealt with separately. However the crucial question for determination is found under the first ground; -JlS- whether the case was suitable for determination under order 14A of the (RSC) which provides as follows: 1(1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that- (a) Such question is suitable for determination without a full trial of the action and (b) Such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. 10. 1 Counsel for the appellant contends that the lower court misdirected itself when it disposed of this matter on a point of law without a full trial when there were material facts on record that were in serious contention. 10.2 Counsel for the respondent on the other hand argued that there were no material facts still in contention in the lower court as the whole matter was hanging on the question of whether an individual could be installed as Chief Mwene -J16- Kahare of th e Nkoya people without recognition of the Litunga. 10.3 We note that the Webby Mulubisha4 case was decided before the case of His Royal Highness the Litunga and 3 others v . Attorney General. 3 In paragraph 79 of the latter judgment, the Constitutional Court stated that: "The Constitution as amended only removed and prohibited the recognition of Chiefs by the President, this was the reasoning that led to our holding that sections 3 ,4 , 5,6 and 7 of the Chiefs Act were inconsistent with Article 165 of the Constitution and were therefore void in the Webby Mulubisha case. Other matters to do with installation, d iscipline and administration of traditional matters remain to be practiced in accordance with the customs and traditions of the people within the petitioners' chiefdoms." 10.4 In paragraph 87 of the same case, the Cour t clarified that: "The traditional authority of the Litunga and Paramount Chiefs to recognize, uninstall, discipline, or dethrone a subordinate chief shall continue to be exercised in accordance with the culture, custom, and -J17- t raditions of the people concerned and under the Constitution and t he law as prescribed." 10.5 Be that as it may, we have examined the pleadings and the Affidavit evidence on record together with the point of law raised by the respondent in the court below and the Ruling appealed against. 10.6 The claims in the writ and statement of claim include declarations that the plaintiff (appellant) is the duly installed Chief Mweene Kahare and that th e respondent is not a Chief and occupies the palace illegally and should vacate the palace. These claims were disputed by the respondent who filed a defence and counterclaim that he is the rightful Chief Mwene Kahare. 10.7 The question of law was whether an individual can be installed as Chief Mweene Kahare of the Nkoya People of Nkeyana District without recognition by his Royal Highness the Litunga given the Constitutional Court judgment delivered on 14th July 2020, in the case of His Royal Highness the Litunga v. The Attorney General. 3 10.8 In the pleadings and arguments, the following contentious issues were raised: 1. Who between the parties was eligible to ascend to the throne? -J18- 2. Whether the respondent was properly selected as Chief in accordance with the Nkoya traditions and culture, there being an allegation that he is not a member of the royal family? 3. Was the respondent or the appellant properly installed as Chief? 4. Do the Nkoya people follow Lozi customs and culture? 10. 9 Our firm view is that such issues can only be determined after a full trial and not based on affidavit evidence because there was a dearth of evidence. 10.10 Order 14/A/2/5 RSC under the heading [suitable question of law or construction] provides inter alia as follows: "Moreover, it should be remembered that among the facts which are to be treated as proved or admitted, there must be no hypothetical or future facts (see Summer v. Wilson Henderson & Sons (1963) lW - L. R832 {1963] ALL E. R 712, CA)5 and still less any .fictitious facts even though they may be admitted in the pleadings (see Royster v. Caveey6 [1947] K. B. 204 ... Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the Court to split the legal and factual determination, for to do so, would in effect be to give legal rulings in vacua or on a hypothetical ruling which the Court will not do (see per Taylor L. J. in -J19- State Bank of India v. Murjani Marketing, March 1, 1991, CA Transcript 91/0304)7." 10.11 Similarly, the issues of fact in the present case are interwoven with the legal issue raised. Therefore, it would be undesirable for the Court to split the legal from the factual decision. Hence the lower Court misdirected itself when it finally determined the matter on the said point of law and there is merit in the first ground of appeal. 10.12 Due to the position we have taken, determining the other grounds will be an academic exercise. 11 .0 CONCLUSION 11.1 We find merit in the appeal and set aside the lower court's ruling. We ref er the matter back to the lower court for trial before a different Judge. trial. J . CHASHI COURT OF APPEAL JUDGE C. K. MAKUNG COURT OF APPEAL JUDGE ----- ---N. A. SHARPE-PHI COURT OF APPEAL JUDGE -J20-