Josiah Mubukwane Litia Nyumbu v Akapelwa and Others (HP 1748 of 2014) [2017] ZMHC 154 (28 June 2017)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) 2014/HP/1748 BETWEEN: (cid:9) 2 7 dB 2017 r JOSIAH MUBUKWANU LITIA NYUMBitr;!2:7,9 7 .r:- PLAINTIFF (Suing as Chief Chiyengele) AND TAWILA AKAPELWA (Induna mete) (cid:9) 1ST DEFENDANT MWANGELWA AKAPELWA (Induna Imandi) 2ND DEFENDANT STEVEN NAWA MATONGO(Induna Namamba) 3 DEFENDANT SIMAKANDO SIYUNDA (Induna Mubonda) 4TH DEFENDANT LUBOSI IMWIKO II (Litunga) (cid:9) INTENDED 5TH DEFENDANT CORAM HONORABLE JUSTICE MR. MWILA CHITABO, SC For the Plaintiff (cid:9) : Mr. M. J. Katolo of Messrs Milner Katolo and Associates For the Defendant : Mr. C. L. Mundia of Messrs C. M. Mundia and Company RULING R1 Legislation Referred to: The Constitution (Amendment) Act No. 2 of 2016 of the Lwas of Zambia The High Court Act Chapter 27 of the Laws of Zambia Cases Referred to: 1. (cid:9) Secretary-General of the United National Independence Party v Elias Marko Chisha Chipimo (1983) Z. R. 125 (S. C.). This was an application for non-joinder of the Litunga to the proceedings brought by the Plaintiff. The application was brought pursuant to Order 14 Rule 5(1) of the High Court Rules. By consent of the parties it was agreed that the matter be heard by the High Court Judge and not the Deputy Registrar because certain constitutional issues were raised. The application was accompanied by an affidavit deposed to by one Josiah Mubukwanu Litia Nyumbu, the Plaintiff herein. He swore that he commenced this action against the Defendants in November 2014. He averred that since the commencement of the action, it had become very clear that His Royal Highness, the Litunga Lubosi Imvviko II had a significant interest in this matter. This was because he was the one who authored a letter dated 16th October, 2014 addressed to the Permanent Secretary in the Ministry of Chiefs and Traditional Affairs advising about R2 his alleged dismissal as Chief Chiyengele. A copy of the said letter was produced and marked "JMLN/ 1". He deposed that he reasonably believed that in the interest of justice, it would be better if the said Litunga Lubosi Imvviko II was joined to these proceedings as 5th Defendant so that he could come to Court and explain under what authority he purported to dismiss the Plaintiff as Chief He prayed for the Court to grant an Order for the joinder of the Litunga Lubosi Imwiko II to this action. The Plaintiff filed in submissions to support the application for non-joinder and in response to the Defendant's preliminary issue raised, he submitted that Article 165 of the Constitutional (Amendment) Act No. 2 of 2016 of the Laws of Zambia provides that: "The institution of Chieftaincy and Traditional Institutions are guaranteed and shall exist in accordance with the culture, customs and traditions of the people to whom they apply." He further cited Article 166 of the said Constitutional Act which provides that: "The Institution of Chieftaincy- (a) is a corporation sole with perpetual succession and capacity to sue and be sued; and R3 (b) (cid:9) has capacity to hold property in trust for its subjects." It was Counsel's submission that the said constitutional provision clearly bestowed corporate capacity on a chieftaincy so as to allow it not only to sue but also to be sued, therefore making any suit against the chieftaincy legally tenable. He submitted that what was in issue was whether the application for joinder of the Litunga of the Lozi people of the Western Province invoked Articles 165 and 166 and secondly that there arose a need for the Constitutional interpretation of the two Articles of the Constitution by the Constitutional Court. He referred to Article 128 of the Constitution which provides as follows: "(1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear a matter relating to the interpretation of this Constitution a matter relating to a violation or contravention of this Constitution (2) Subject to Article 28(2), where a question relating to this Constitution arises in a Court, the person presiding in that Court shall refer the question to the Constitutional Court." R4 It was Counsel's submission that Articles 165 and 166 made provision for the Plaintiff to seek legal recourse against Litunga Lubosi Imwiko II as the office he holds is a corporation sole. He argued that the application to add the Litunga to the proceedings did not violate Articles 165 and 166 as envisaged by Articles 128 above because Articles 165 and 166 merely clothed the office of chieftaincy with legal capacity and it was in that regard that the Plaintiff issued the application for joinder. It was his argument that the case of Nabiwa Imikendo and 3 others v Edwin Lubosi Imwiko (Sued in his capacity as Litunga of Western Province) cited by the Defendants as a leading case sent to the Constitutional Court as it bordered on Constitutional issues was distinguishable from the present case. He submitted that in that case the relief sought was the removal of Lubosi Imwiko from the thrown as Litunga. He argued that the issues in the case cited above necessitated the interpretation of Articles 165 and 166 as the Plaintiffs therein wanted to remove the Defendant from a constitutionally recognized office. According to him, the present case did not warrant the interpretation of the two articles cited above as the Plaintiff was merely using the corporate capacity of the office of the Litunga to add him to the proceedings. He submitted that the application for non-joinder commenced by the Plaintiff does not offend Article 165 and 166 of Constitution and therefore needing no interpretation by the Constitutional Court. R5 In opposing this Application Defence Counsel, State Counsel Mundia submitted that the application to join the Litunga of the Western Province in his personal capacity was totally misconceived as it violated the provisions of the Constitution as specified under Article 165 and 166 of the Constitutional (Amendment) Act No 2 of 2016 of the Laws of Zambia. He submitted that the office of Litunga of the Western Province was a corporation sole which could only be sued in that regard as an office and not in the name of the person holding the office at any given time. It was his further submission that with the enactment of the Constitutional Amendment Act No. 2 of 2016 there was now created the Constitutional Court for Zambia vested with sole jurisdiction of determining matters that bordered on Constitutional issues. He submitted that the office of the Litunga of Western Province being an office created by the said constitution, the Plaintiff's application for non-joinder of the Litunga be referred to the Constitutional Court as it was the only Court vested with the jurisdiction to determine issues bordering on the Constitution. He submitted that in the case of Nabiwa Imikendo and 3 others v Edwin Lubosi Imwiko (Sued in his capacity as Litunga of Western Province) initially under cause 2017/HT/03 was referred to the Constitutional Court by the learned Judge in Charge of the High Court as the matter raised constitutional R6 issues. He sought the Court's indulgence to have the matter referred to the Constitutional Court for determination. I have carefully considered the submissions before me. I will begin by stating that Article 128 of the Constitution (Amendment) Act No. 2 of 2016 is very clear on matters that can be determined by the Constitutional Court. It makes provision, in that Article, that the Constitutional Court has original and final jurisdiction in matters relating to the interpretation of the Constitution. The main application before me is an application for non-joinder of Litunga Lubosi Imwiko II to the proceedings as the 5th Defendant. This application has been opposed in two respects. Firstly that, that the application to add the Litunga in his personal capacity is misconceived as the institution of the Litunga is a corporation sole giving it legal identity that can sue and be sued. Secondly, Defence Counsel asked this Court to refer the matter to the Constitutional Court because constitutional issues under Articles 165 and 166 of the Constitution Amendment Act were raised pertaining to the legal capacity of the Litunga, an office established by the Constitution. Articles 165 and 166 are very clear and were referred to by the Plaintiff. Of particular importance is Article 166 which provides that: "The Institution of Chieftaincy- R7 In view of the above, I dismiss the application for non-joinder with costs. Leave to Appeal is granted. Delivered under mu hand and seal this .... day of June, 2017 J94 M. CHITABO, S. C. JUDGE R10