Lubinda Mubiana v beatrice Matinanga Sitali and Anor (APPEAL No. 27/2023) [2024] ZMCA 300 (19 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 27 /2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: LUBINDA MUBIANA AND 1 9 NOV 2024 • ,: : f ' $PPELLANT f BEATRICE MATINANGA SITALI FREDY TOLOPO I ST RESPONDENT 2ND RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA On 12 and 19 November, 2024 For the Appellant: Mr. C. M Mukonka of Messrs Caristo Mukonka Legal Practitioners standing in for Messrs Victor Kachaka and Co. Legal Practitioners For the Respondents: Mrs. S. Lukwesa, Legal Aid Counsel of Legal Aid Board. JUDGMENT Sichinga JA, delivered the Judgment of the Court. Cases refe"ed to: 1. Wehby Mulubisha v The Attorney General 2018/CC/0013 2. His Royal Highness, The Litunga and 3 Others v Attorney General 2020/CCZ/009 3. Van Tall Logistics & Forwarding Limited v Airsea Clearing and Forwarding Limited and Omar Awadh Transport Limited CAZ Appeal No. 24 I 2020 Legislation refe"ed to: 1. The Constitution of Zambia (Amendment) Act No. 2 o/2016 2. The Chiefs Act, Chapter 287 of the Laws of Zambia J1 1.0 Introduction 1. 1 This is an appeal against the Judgment of the High Court at Lusaka, delivered by Banda-Bobo J, as she then was, on 22 July 2022. In her judgment, the learned Judge held that the 2nd defendant (now 2nd respondent), was rightfully installed as heir to the throne as Chief Kakumba of the Shishamba Silalo by the Sikalo Court. 2.0 Background 2.1 In the introductory part of this judgment, we shall refer to the parties by their designations in the court below. The appellant, Lubinda Mubiana was the plaintiff in the court below, and the respondents were the defendants. 2.2 The plaintiff commenced this action against the defendants by way of Originating Summons and supporting affidavit on 22 June 2018, seeking the following reliefs: 1. A declaration that Lubinda Mubiana is Chief Kakumba for Shishamba Silalo in the Nkeyema District of the Western Province of the Republic of Zambia; 2. An order of injunction to restrain the respondents either by themselves, traditional institutions through which the process of installation are sanctioned, agents, servants or whomsoever from going ahead with the installation of the 2nd respondent, Fredy Tolopo as Chief Kakumba pending the determination of the main matter; 3. Costs; and 4. Any other relief the Court may deem just and equitable. 2.3 The affidavit in support was deposed by the plaintiff. He averred that it had been established that the 1st defendant was in the process of presenting the 2nd defendant for onward installation as Chief Kakumba in flagrant disregard of the plaintiff who had aheady been J2 installed as Chief Kakumba. That as part of the said process, the I st defendant wrote a letter addressed to the people of Shishamba requesting financial support for transportation to the court in Limulunga for the installation. A copy of this letter, written in the Silozi language and dated 30 March 2018, was exhibited marked "LMI ". 2.4 He averred that he was installed area Chief Kakumba in 2015 and was officially recognised by the Barotse Royal Establishment (BRE) through letters dated 30 October 2015 and 27 November 2015, addressed to the Provincial Chiefs' Traditional Officer and the Officer-in-Charge of Zambia Police in the Nkeyema District respectively, confirming his position. These letters were submitted as exhibits marked "LM2" and "LM3". 2.5 The defendants opposed the suit. They filed an affidavit in opposition sworn by Fredy Tolopo, the 2nd defendant herein. He disputed the assertion that the plaintiff was Chief Kakumba at the time the action was commenced. That the plaintiff was suspended on 20 September 2016, by the BRE at Lealui pending a hearing of the succession dispute at Ngambela's Kuta. That following the hearing, judgment was passed to the effect that the installation of the plaintiff as area chief by the N aliele Kuta was irregular as he was not from the Kakumba clan/family, and his installation was set aside. 2.6 He averred that the process to present him for installation only began after the Ngambela Kuta judgment was passed on the succession dispute. He confirmed the request for financial contributions and that family members were notified to accompany them to Limulunga which was the actual place where installation of Chief Kakumba is supposed to take place. J3 2. 7 The 2nd defendant admitted the plaintiffs installation in 2015 but argued that it was done against the wishes of the Kakumba family and the Situnga Kuta. He stated that the N aliele Kuta requested the Kakumba family to choose a successor from the family in 2014 following the death of the late Chief Kakumba, and they had chosen him. That he was introduced to the Situnga Kuta as the family's choice to succeed the late chief. The Situnga Kuta formally introduced him to the Naliele Kuta as the family's chosen successor during which time the N aliele Kuta advised the family to make preparations for the installation ceremony. That after reassuring the Kakumba family, N aliele Kuta proceeded to install the plaintiff instead who was neither a member of the Kakumba family nor came from Kakumba village. 2.8 He averred that the plaintiff was not entitled to the reliefs sought and his claims should be dismissed with costs. That the lower court should in the alternative make a declaration that he was the rightful person to be area Chief Kakumba. 2.9 At the inter parte hearing of the application for interim injunction, which was simultaneously filed by the plaintiff when commencing this action, the learned trial Judge ordered that the proceedings would continue as if the cause was begun by way of writ due to the nature of the claims which were highly contentious. She further ordered that the process filed would be considered as pleadings. 3.0 Decision of the Court below 3 .1 After considering the evidence of 10 witnesses and the submissions from both parties in the succession dispute over the Kakumba chieftaincy, the lower court framed the issue for determination as J4 being, who between the plaintiff and the zid defendant was the rightful heir to the Kakumba Chieftaincy? The trial Judge considered the issue in the context of Lozi custom and traditions as required by Article 165 of the Zambian Constitution1 . Both parties presented family trees to support their lineage claims but the court found the plaintiff's evidence to be unreliable. The plaintiff admitted to authoring his family tree, which was dated after the dispute began, raising suspicions of tampering. In contrast, the defendants' family tree, prepared in 2010 and signed by a BRE official, was found more credible. 3.2 The lower court made a finding that the Naliele Court had initially installed the plaintiff, citing his age and ability to deal with tribal tensions, but that the installation was later nullified by the higher Sikalo Court. The lower Court determined that the plaintiff had failed to establish his claim to the Kakumba family lineage and found no evidence that the 2nd defendant was unsuitable for the chieftaincy, this being the only instance that a non-family member could be installed. 3.3 Further, the Court below held that the 2nd defendant's installation at Lealui, despite deviating from the long-standing customary practice of installation at N aliele, was justified. The lower Court reasoned that the Naliele Court's refusal to follow the Sikalo Court's directive to install the 2nd defendant necessitated the installation at Lealui. That this did not breach Article 165 of the Constitution as the Litunga's intervention was part of the customary supervisory structure. 3.4 The lower Court dismissed the plaintiff's claims as lacking merit and upheld the 2nd defendant's installation as the rightful Chief Kakumba. Costs were awarded to the defendants. J5 4.0 The Appeal 4.1 Dissatisfied with the judgment, the plaintiff, now appellant, appealed to this Court against the whole of the judgment raising 12 grounds, namely: 1. The learned trial Judge in the court below e"ed in law and fact by basing her judgment on an erroneous understanding of Article 165 of the Constitution of Zambia as Amended of 2016 as interpreted by the Constitutional Court in Wehby Mulubisha v Attorney General stating that it shields chieftaincy from central government interferences without taking into account that the same Article in question shields chieftaincy from interference by the Litunga in Western Province of the Republic of Zambia; 2. The learned trial Judge misdirected herself on page J27 of her judgment in paragraph 6.16 by demanding that for the plaintiff to lay claim to the chieftaincy he had to prove that there is no suitable family members to take up the position when the fact was that the appellant was not privy to Naliele's decision to reject the Z'd defendant's selection and had no onus to prove the unsuitability of the 2nd defendant; 3. The learned trial Judge erred in law and fact by following the defendant's and Sikalo Court's fixation on the issue of Kakumba lineage when the issue before Naliele was suitability and not lineage; 4. The learned trial Judge misdirected herself by making a finding not supported by evidence on page J26 lines 10-11 that the appellant was not chosen by the Kakumba family when in fact evidence showed he was; 5. The learned trial Judge showed biasness by believing the Z'd respondent's uncorroborated testimony that he did not know about the High Court injunction at the time of his installation when in fact, and the record shows, that service was done at his residence, and yet the court below chose not to believe the appellant who says he was not informed of the Sikalo Court hearing and he was never served the Sika/o Court Summons; 6. The Court below misdirected itself when, after asking on page J28 paragraph 6.20 the question that would it be fair to state that the installation of the Z'd defendant J6 was in defiance when the defendants were not aware of the injunction, failed to apply the same test of fairness to the appellant whom the Court below used the Sikalo judgment against him when he was not aware of the proceedings and judgment; 7. The learned trial Judge e"ed in law and fact by basing her decision on a judgment of Sikalo Kuta that was made contrary to the rules of justice when the Sikalo Court did not give the appellant herein an opportunity to be heard,· 8. The learned trial Judge misdirected herself when, after co"ectly noting the possibility of a person who is not from Kakumba family being chief, went on to use her finding that the appellant was not a Kakumba against the appellant forgetting that the issue was suitability; 9. The learned trial Judge e"ed in law and fact by not following the Lozi customary law on succession which demands that you cannot install another person to replace the sitting chief without first hearing and removing the sitting chief; 10. The learned trial Judge misdirected herself by nullifying the 2015 installation of the appellant as Chief Kakumba when the issue before court was whether the purported installation of the Z'd respondent of 2019 was valid,· 11. The learned trial Judge misdirected herself by making a finding not supported by evidence on record by stating that the Z'd respondent was validly installed when evidence shows not only interference by the Litunga but a decision made without following the rules of justice that demand that the appellant should have been heard and if the learned trial Judge had made her decision judiciously, she would have declared the installation of the Z'd respondent null and void instead of declaring the installation of the appellant null and void; and 12. The learned trial Judge misdirected herself after co"ectly making a finding that a person who is not from the Kakumba family can be Chief Kakumba but misapplied its finding when dealing with the appellant by demanding that he should have been from the Kakumba family for his installation as Chief Kakumba to be valid when that requirement was not necessary. 5.0 The Appellant's Arguments 5.1 Mr. Mukonka, learned counsel standing in for the appellant's advocates, relied on the appellant's heads of argument filed on 30 J7 January 2023. The appellant's counsel argued grounds 2, 3, 4, 7 and 12 together. Grounds 5, 6 and 10 were also argued together, and ground 1 was argued alone. 5.2 In ground 1, the appellant's counsel contended that the Court below misdirected itself by not extending the shielding of chieftaincy from interference to the Litunga. In this regard, we were referred to page J30 paragraph 6.25 and page J31 paragraph 6.26 as showing the understanding of the Court below. Counsel placed reliance for this argument on Article 165 of the Constitution as amended by Act No. 2 of 2016 which provides: "(1) 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. (2) Parliament shall not enact legislation which - (a) confers on a person or authority the right to recognise or withdraw the recognition of a chief; or (b) derogates from the honour and dignity of the institution of chieftaincy." 5.3 Counsel contended that the effect of the foregoing provision is that Sections 3, 4, 5, 6 and 7 of the Chiefs Acr were declared unconstitutional and void in the case of Wehby Mulubisha v The Attorney Genera/1. Counsel referred us to Section 3(2)(b) of the Chiefs Act supra in particular, which he stated refers to chiefly office in the Western Province where the Litunga has to give recognition. That the effect of the declaration in the Mulubisha case is that the powers that the President of Zambia had of first satisfying himself about a person who is entitled to hold office under African customary law as a condition in recognition of a chief is now declared null and void. That J8 in the same vein the powers of the Litunga and traditional council to recognise a chiefly office in W estem Province as a condition of recognition, is now null and void. 5.4 It was counsel's submission that the Constitution as amended has therefore given chiefdoms and traditional institutions a guarantee and existence in accordance with the culture, customs and traditions of the people to whom they apply without the condition of recognition by the President of Zambia and the Litunga, in case of the W estem of Province of Zambia. In essence, that chiefdoms are now protected from interference from higher authorities like the President of the Republic and the Litunga. 5.5 Therefore, that the Court below misdirected itself by restricting its understanding of the case in question to interference by central government when it actually affected interference by the Litunga. That this exclusion of the Litunga affected the lower Court's decision to determine what was otherwise interference of the Litunga in the choosing and installation of Chief Kakumba. Counsel prayed that this ground be allowed, that the lower Court's decision be set aside, and that the appellant be declared as the rightful chosen Chief Kakumba. 5.6 On grounds 2, 3, 4, 7, 8, 9, 11 and 12 counsel for the appellant referred the Court to page JS (page 19 of the record of appeal), paragraph 2.8 where the lower Court noted the evidence of the appellant on his family tree. This was followed by the appellant's reaction to the authenticity of the respondents' family tree which he challenged because it did not show his lineage of Matinanga. 5.7 Counsel also referred this Court to paragraph 2.10 on page JS where the lower Court noted that the name Kakumba appears on the 2nd Jg respondent's National Registration Card (NRC) as his surname while the same cannot be said for the appellant. It was counsel's submission that according to Lozi customary law, the chiefs official name, which in this case is Kakumba, is not a surname but rather a title. That the fact that some members of the Kakumba family decided to adopt it as a surname does not make the Kakumba title a surname. 5.8 Therefore, that disqualification of a member of the Kakumba family simply because they do not have the surname Kakumba would be unjust and a misdirection. That the court below misdirected itself by confusing the title Kakumba with the surname Kakumba. Counsel gave as an example for illustration members of the royal family in Western province adopting the surname Litunga and later arguing that only those with the surname Litunga were eligible to take the title Litunga. 5.9 Counsel went on to submit that the learned trial Judge's fixation on the family tree was misplaced and a misdirection. That the issue before the Naliele, the authority that decides eligibility of a successor, was suitability and not whether the proposed successors were of the Kakumba lineage. In this respect, that the key evidence was that of the 1st and 2nd respondents which was noted by the Court below. Counsel quoted the Judge's summary of the 15t respondent's testimony on page JlO (page 24 of the record of appeal), paragraph 2.33 where it states: "On inquiry by the family, the Naliele indicated that they had opted for the plaintiff as he was elderly and could lead better than the Z'd defendant ... " 5.10 And paragraph 2.34 at page 24 of the record of appeal, where it states: J10 "Unsatisfied with the explanation given, the family escalated the matter to Limulunga at Namuso." 5 .11 It was submitted that what was escalated to N amuso according to the ist respondent's evidence was the rejection of the 2nd respondent's suitability, but the Namuso was instead fixated on the family tree, a clear misdirection which was repeated by the court below. 5.12 It was submitted that upon noting the 2nd respondent's evidence on the family tree on page Jl l (page 25 of the record of appeal), paragraphs 2.37, 2.38 and 2.39, the lower Court stated the following in paragraph 2.38: "DWI explained that a person who did not belong to the Kakumba family would only be chosen as Chief Kakumba, if there were no suitable candidates in the family to take up the throne." 5 .13 It was submitted that the Court below noted the reiteration of this point on suitability in re-examination in paragraph 2.39 as follows: "In re-examination, DWI stated that she was part of the Kakumba family, but she would only ascend to the throne if, there were no male kin in the family to take up the throne. " 5.14 Counsel argued that the foregoing shows that being a Kakumba does not automatically make one suitable, citing that women for instance are only considered when there is no suitable male to take over in the Lozi customary law patriarchal system. That the system favours appointing a male who is not a Kakumba over a female Chief Kakumba otherwise the 1st respondent would have been considered. 5 .15 Counsel for the appellant went on to submit that the key point of suitability was further noted by the lower Court on page J12 (page 26 J11 of the record of appeal), paragraph 2.42 in the summary of the 2nd respondent's evidence as follows: "When the family complained, officials at Naliele informed them that the Plaintiff was better suited for the task of Chief. " 5.16 Counsel reiterated that the issue before the Naliele was not who was from the Kakumba lineage, but rather who was better suited. That it follows that the appeal to Sikalo Court was supposed to be on rejection of a successor based on suitability and not rejection based on Kakumba lineage because Kakumba lineage was not an issue at N aliele. That without noting the issues that made the 2nd respondent unsuitable as testified by the 2nd respondent, the learned trial Judge went back to her fixation on the family tree in her summary at page J13 (page 27 of the record of appeal), paragraph 2.44. 5 .17 It was submitted that DW 4 in his evidence also addressed the issue of suitability which the lower Court noted at page JlS (page 29 of the record of appeal), paragraph 2.54 as follows: "It was the witness's testimony that successors are picked based on their capabilities and the choice of the family." 5 .18 That the issue of capabilities is essential and is one that the N aliele used to reject the 2nd respondent. Further, reference was made to DW4's evidence summarised in paragraph 2.56 on page JlS (page 29 of the record of appeal) as follows: "DW4 admitted that between 1993-2009, non-family members served as Chief Kakumba." 5.19 That the Court below noted in its summary of the evidence ofDWS, a Senior Induna at Ngambela Kuta, at page J18 (page 32 of the record of appeal), paragraph 2. 70 that: J12 "The witness also relayed that the Naliele reserves the right to reject a name proposed for succession." 5.20 It was counsel's contention that the rejection of the family proposal by Naliele was therefore in line with the Lozi customary law and procedures. Therefore, that it was shocking that the learned trial Judge said the following on page J27 (page 41 of the record of appeal), paragraph 6.16 of the judgment: "It follows that for the Plaintiff to lay claim to the Chieftaincy on this score, he had to prove that there were no suitable family members to take up the position. There was no evidence speaking to the unsuitability of the Z'd Defendant to serve as chief. " 5.21 Counsel submitted that there was no onus on the appellant to prove that there were no suitable family members to take up the position of Chief Kakumba in the Court below. That this was the job of the N aliele, and it alone. That the appellant was just a candidate like the 2nd respondent. Therefore, a candidate cannot judge his own eligibility or suitability, this being the job of the electoral officials or appointing authority, who in this case is the Naliele. That it follows that the appellant had no onus when testifying to prove that the 2nd respondent was not suitable as he is not a member ofNaliele and was not privy to its decision making on suitability. That only the respondents can testify to what the Naliele told them as the reasons for the unsuitability of the 2nd respondent which they did mention in the Court below though not in detail. 5.22 Counsel then went on to invite this Court to take judicial notice that positions of leadership such as chief, presidency of a country and even judgeship have an age requirement. Thus, that age is a factor in determining one's suitability. That it is clear from the evidence of both J13 respondents that age was one of the factors that was considered by N aliele. That the other factors that made N aliele decide to make the appellant's acting position permanent are only privy to Naliele and those who were informed like the 2nd respondent himself. That in fact the onus was on the 2nd respondent to lay before the lower Court the reasons given to him by N aliele for his rejection for the court to scrutinize them. 5.23 Further, that the respondents were able to put forth evidence of the 2nd respondent's suitability before the Court below because they were privy to Naliele's decision. That the respondents chose to emphasize the family tree instead of suitability and it was unfair for the Court below to expect the appellant to lay down the 2nd respondent's unsuitability as if he were the N aliele. 5.24 It was contended that the trial Judge contradicted herself in paragraph 6.16 on page J27 (page 41 of the record of appeal) when she stated: "The evidence which came through the Defendant's witnesses highlighted that the Plaintiff was the preferred choice of the Naliele Court on account of his age and capabilities of dealing with tribal tensions. " 5.25 It was counsel's submission that the above clearly shows that the evidence on unsuitability could only have come from t:pe respondents and their witnesses as they were privy to the reasons why the N aliele rejected the 2nd respondent's selection. That it is also clear that the Court below noted some of the reasons for Naliele's rejection of the 2nd respondent's selection as age and inability to deal with tribal tensions. Counsel reiterated that the issue at Sikalo Court was supposed to be on whether Naliele's finding that the 2nd respondent was unsuitable was in order and not whether the appellant was a Kakumba. That had the court below not misdirected itself by ignoring J14 the issue of suitability, it would have nullified the Sikalo judgment, not only on the basis that the appellant was not heard, but also that its judgment was a misdirection and misplaced because it was on the irrelevant point of Kakumba lineage as opposed to Naliele's decision of unsuitability of the 2nd respondent. Therefore, that the lower Court's use of the Sikalo judgment to decide whether the appellant's installation was valid or not was a misdirection. 5.26 In addition to the arguments set out above, counsel for the appellant adopted the arguments advanced under ground 1 for ground 11. Further, for grounds 7 and 9, counsel submitted that the evidence is undisputed on the fact that the Sikalo court rendered judgment against the appellant without hearing him and furthermore that the evidence of the attendance of officials from N aliele at Sikalo court is disputed and does not cure the injustice caused by not hearing the appellant. 5.27 We were urged to allow the grounds and to declare the decision of the Court below proclaiming the installation of the appellant null and void. We were urged to declare the appellant as Chief Kakumba. 5.28 Under grounds 5, 6 and 10 counsel argued that the record 1s unequivocal on whether the 2nd respondent knew that there was an injunction restraining him from being installed as Chief Kakumba. He referred us to page 76 lines 18 to 22 of the record of appeal which he quoted as follows: "The Ex-parte Order of Interim Injunction remains in force. The respondents are restrained from proceeding to install Fredy Tolopo as Chief Kakumba pending inter parte hearing and or the hearing of the substantive matter. " J15 5.29 Further, that page 75 lines 7 to 13 of the record of appeal, shows that both respondents were before the trial Judge on 13 March 2019. That they heard for themselves the Judge's warning that they were restrained from proceeding to install Fredy Tolopo as Chief Kakumba. That while the Judge who heard the injunction application was different, the Judge that heard the substantive matter was obliged to read the record to acquaint herself with the proceedings. Thus, that the Judge's conclusion on page J28 (page 42 of the record of appeal), paragraphs 6.19 and 6.20 is shocking. That the learned Judge also misstated that the installation was in August 2018, when it was actually in August 2019 four months after the respondents were warned not to proceed with the installation. Therefore, that the only reasonable explanation for such misdirection is either that the Judge did not read what the other Judge had ordered or did so but chose to be biased in favour of the respondents. 5.30 In concluding, counsel submitted, on behalf of the appellant, that the Court below misdirected itself by nullifying the 2015 installation when the disputed installation was done in 2019. That there was no need to nullify the 2015 installation as declaring the 2019 installation valid brings to an end the 2015 installation whose period would then be 2015 to July 2019. That the nullification of the 2015 installation was too harsh and demonstrates just how biased the Judge was against the appellant. Counsel urged the Court to allow the grounds of appeal and set aside the lower Court's decision. Further, declare the appellant as the rightful chosen Chief Kakumba. 6.0 The Respondent's Arguments 6.1 At the hearing, Mrs. Lukwesa, learned counsel for the respondents, relied on their heads of argument filed into court on 9 August 2023. In J16 response to ground 1, counsel submitted that the lower court was on firm ground when it held that Article 165 of the Constitution only shields chieftaincy from interference by the central government but does not extend to the supervisory role that established authorities exercise over chiefdoms falling in their locality. Reliance was placed on the Constitutional Court's decision in the case His Royal Highness, The Litunga and 3 Others v The Attorney-Generaf wherein it stated: "The provisions of Article 165(1) set out above are clear and unambiguous and provide that the institution of chieftaincy and traditional institutions will exist in accordance with the culture, customs and traditions of the people to whom they apply. In other words, matters such as ascension to the throne and related matters continue to be regulated by culture, customs and traditions of the people to whom they apply. Therefore, the role which the petitioners play in the recognition and installation of chiefs as well as the discipline and dethronement of subordinate chiefs in their respective areas according to the culture, customs and traditions of the respective people has not been taken away but has been in fact fortified by the provision of Article 165(1) of the Constitution. There is therefore no merit in any contention that the Mulubisha judgment by declaring certain sections of the Chiefs Act as being unconstitutional had the effect of stripping the Litunga and other paramount chiefs of the powers and authority they exercise in the installation and discipline of chiefs in accordance with the customs, culture and traditions of the people in their respective areas. Having considered the position of the law relating to this petition, we declare that the institution of the Litunga, Paramount Chief, Senior Chief and other chiefs continue to exist and are guaranteed under Article 165(1) of the Constitution. We further declare 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, J17 custom and traditions of the people concerned and in accordance with the Constitution and the law as prescribed. " 6.2 In summation, that the lower court was on firm ground when it dismissed the argument that it should have extended Article 165 of the Constitution to the Litunga as it only applies to the central government. Counsel urged the Court to dismiss ground one. 6.3 In response to the arguments advanced under grounds 2, 3, 4, 7, 8, 9, 11 and 12 the respondents' counsel argued as follows: In relation to grounds 2, 3 and 8 which relate to suitability, that the lower Court discussed the issue of suitability in its judgment. We were referred to pages J27 and J28 (pages 41 and 42 of the record of appeal) particularly paragraphs 6.15 to 6.17 which were recounted as follows : "Having failed to establish his claim to the chieftaincy through the family lineage is there another route that the Plaintiff can lay claim to the chieftaincy? I note that he advanced the alternative notion that even if he was to accept that he was not part of the Kakumba family, he would not be the first non-family member to be chief Kakumba. The undisputed evidence on this was that there have been five previous chiefs who were non-family members and the reason behind it was that there was no suitable family member to take up the throne. It follows that for the Plaintiff to lay claim to the chieftaincy on this score, he had to prove that there were no suitable family members to take up the position. There was no evidence before me speaking to the unsuitability of the Z'd Defendant to serve as chief. The evidence which came through the Defendant's witnesses highlighted that the Plaintiff was the prefe"ed choice of the Naliele Court on account of his age and capabilities of dealing with tribal tensions. Further, the evidence that the Sikalo Court under the sanction of the Litunga installed the Z'd Defendant as Chief Kakumba equally dissipates any notion of him having been unsuitable for the role. " J18 6.4 It was submitted that the trial Court correctly evaluated the evidence before it and made a finding that the 2nd respondent was not unsuitable for the role of chief, for the appellant to be considered. 6.5 As regards the appellant's contention under ground 4 that the trial court misdirected itself by making a finding not supported by evidence that the appellant was not chosen by the family. It was counsel's submission that the trial Court was on firm ground when it found that the appellant was not part of the Kakumba family and was not eligible to be Chief Kakumba. That the judgment and proceedings in the trial court show that witnesses were called to testify that the appellant was not part of the Kakumba family and was therefore not eligible to be Chief Kakumba. Counsel quoted page Jl 1 (page 25 of the record of appeal), paragraph 2.37 of the Judgment which recounts DWI 's evidence as follows: " ... the Plaintiff was not part of the family, but served as secretary to her father, Fredy Sitali Kakumba. The Plaintiff was a teacher and was once ma"ied to Ma/eta Shibinda, DWJ 's relative." 6.6 That this evidence was corroborated by other witnesses. In this regard, the evidence led by DW2 was quoted as follows: "Following a long waiting period, DW2 made several follow up visits to Na/iele, he learnt through Induna Alisheke that the Plaintiff had been chosen as Acting Chief Kakumba, this led to a number of remonstrations on the part of the family. However, officials at Nalie/e assured them that the Plaintiff was merely acting. All this changed when the family later learnt that the Plaintiff had been confirmed as chief on 24 I 10 I 15. When the family complained, officials at Nalie/e informed them that the Plaintiff was better suited for the position of Chief." J19 6. 7 Mrs. Lukwesa went on to submit that the learned trial Court had occasion to note the appellant's family tree and whether the appellant fell under the Kakumba family. We were referred to pages J25 to J2 7 (pages 39 to 41 of the record of appeal) particularly paragraphs 6.11 to 6.14. That upon evaluating the evidence the trial Court came to the conclusion that the appellant was not from the Kakumba family and gave reasons why it disbelieved the evidence from the appellant and his witnesses. Therefore, that the trial Court considered both the family tree and the issue of suitability and found that the appellant had failed to establish his claim to chieftaincy through the family lineage. 6.8 In respect of the appellant's contention under ground 7 that the learned Judge erred in law and fact by basing her decision on a judgment of Sikalo Kuta that was made contrary to the rules of natural justice on the basis that the appellant was not given an opportunity to be heard, it was submitted that the evidence on record reflected at page J14 of the Judgment (page 28 of the record of appeal) from DW 4 was that: " ... about three letters were written to Naliele Kuta with one requesting that they come with Lubinda Mubiana whom they had installed but Naliele Kuta did not come with Lubinda Mubiana. " 6.9 Further, that the complaint before Sikalo Kuta was against Naliele Kuta for installing the appellant. That the evidence on record shows that N aliele Kuta appeared, were heard and admitted their wrongdoing regarding the installation of the appellant. 6.10 In respect of the appellant's contention in grounds 9, 11 and 12 that the trial Court erred in law and fact by not following Lozi customary law on succession, counsel referred us to pages J28 to J31 (pages 42 to J20 45 of the record of appeal) for the lower Court's consideration of the issue of installation. That the lower Court came to the conclusion that the 2nd respondent was properly installed at Lealui and that the Litunga did not interfere with Naliele Kuta but went ahead with the installation in the face of failure by the subordinate body to exercise delegated functions. Counsel prayed that these grounds be dismissed with costs. 6.11 In response to grounds 5, 6 and 10, it was Mrs. Lukwesa's contention that the learned trial Court was on firm ground when it found that the appellant only served the injunction on the respondents on 13 March 2019, after the 2nd respondent was already installed as Chief on 1 August 2018. We were referred to page J28 (page 42 of the record of appeal), paragraphs 18 to 20 of the Judgment which was quoted as follows: "I note that the Plaintiff has taken issue with the said installation on the basis that at the time that the Z'd Defendant was being installed the Plaintiff had secured an injunction against the installation and that the installation was in defiance of Lozi custom and tradition. The evidence on record is that the Plaintiff only managed to serve the injunction on the Defendants after the installation of the Z'd Defendant had taken place in August 2018. D W2 's evidence on this point went unchallenged. A perusal of the record does indeed show that the Plaintiff had trouble serving the process on the Defendants up until 2019. This, it appears, would explain why the Plaintiff on learning of the Z'd Defendant's installation did not take out contempt proceedings against the Defendants. Having not been aware of the injunction, can it be said that the installation of the Z'd Defendant was of defiance of the injunction? I think not, the Defendants were unaware of the injunctive prescriptions issues against them and it would be unjust to expect a person to abide by an order they are unaware of." J21 6.12 We were also referred to our decision in the case of Van Tall Logistics & Forwarding Limited v Airsea Clearing and Forwarding Limited and Omar Awadh Transport Limitetf where we were faced with the question whether a party to a consent order could be held in contempt of court for failure to take a step within the agreed time where the order was not served on him. We held otherwise. It was counsel's submission that our decision underscores that service of process is crucial in the enforcement of an order of court. Therefore, the appellant's argument cannot hold. 6.13 In conclusion, Mrs. Lukwesa submitted that the trial court was on firm ground to dismiss the appellant's contention upon a careful evaluation of the evidence on record. She prayed that these grounds be equally dismissed with costs. 7 .0 Our considerations and decision 7 .1 We have carefully considered the record of appeal together with the submissions by counsel. The grounds of appeal will be addressed in the manner they have been argued. We will begin by addressing ground 1. This will be followed by an examination of grounds 2, 3, 4, 7 and 12 together. Grounds 5, 6 and 10 will also be considered together. 7.2 The complaint in ground 1 is that the learned trial Judge erred in fact and law by basing her judgment on an erroneous understanding of Article 165 of the Constitution of Zambia as amended in 2016, as interpreted by the Constitutional Court in the case of Wehby Mu/ubisha v Attorney-Genera/ supra stating that it shields chieftaincy from central government interferences without taking into account J22 that the same Article in question shields chieftaincy from interference by the Litunga in Western Province of the Republic of Zambia. 7.3 The thrust of the appellant's argument is that Article 165 of the Constitution shields chieftaincy from interference not only from central government but, in the case of Western Province, the Litunga as well. In this regard, that the powers of the Litunga and the traditional council to recognise a chiefly office in Western Province as a condition of recognition is now null and void following the new constitutional order. On the other hand, the respondents' position is in stark contrast to the appellant. The thrust of their argument is that the lower Court was on firm ground when it held that Article 165 of the Constitution only shields chieftaincy from interference by the central government and does not extend to the supervisory role that established authorities exercise over chiefdoms falling in their locality. They relied on the case of His Royal Highness, The Litunga and 3 Others v Attorney-General supra. 7.4 The trial Judge addressed the import of Article 165 of the Constitution in paragraph 6.25 of the Judgment. In this respect, it was her understanding of Article 165 of the Constitution as interpreted by the Constitutional Court in the Mulubisha case that it shields chieftaincy from central government interference. However, that this does not extend to the supervisory role that established traditional authorities exercise over chiefdoms falling in their locality. 7.5 Article 165 of the Constitution provides for the institution of chieftaincy and traditional institutions. It is couched as follows: J23 "165.(1) 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. (2) Parliament shall not enact legislation which - (a) confers on a person or authority the right to recognise or withdraw the recognition of a chief; or (b) derogates from the honour and dignity of the institution of chieftaincy." 7.6 The Constitutional Court had occasion to interpret Article 165 of the Constitution and in essence the issue put before us for determination under ground I in the case of His Royal Highness, The Litunga and 3 Others v Attorney General supra. It guided as follows: "What Article 165 proscribes is the recognition of chiefs through a power confe"ed by Parliament as was the case under section 3 of the Chiefs Act. This does not extend to recognition under traditional or customary law,· if anything, Article 165 reinforces the authority of traditional governance structures. 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 Wehby Mulubisha case. Other matters to do with installation, discipline and administration of traditional matters remain to be practiced in accordance with the customs and traditions of the people within the petitioners' chiefdoms. The provisions of Article 165 {I) set out above are clear and unambiguous and provide that the institution ofchieftaincy and traditional institutions will exist in accordance with the culture, customs and traditions of the people to whom they apply. In other words, matters such as ascension to the throne and related J24 matters continue to be regulated by the culture, customs and traditions of the people to whom they apply. Therefore, the role which the petitioners play in the recognition and installation of chiefs as well as the discipline and dethronement of subordinate chiefs in their respective areas according to the culture. customs and traditions of the respective people has not been taken away but has been in fact fortified by the provisions of Article 165 (1) of the Constitution. There is therefore no merit in any contention that the Mulubisha iudgment by declaring certain sections of the Chiefs Act as being unconstitutional had the effect of stripping the Litunga and other paramount chiefs of the powers and authority thtry exercise in the installation and discipline of chiefs in accordance with the customs, culture and traditions of the people in their respective areas." Emphasis is ours. 7. 7 It is clear from the foregoing that the appellant's reliance on the Mulubisha case is misguided, save to the extent that it was submitted that the powers of the President conferred by the now repealed Sections 3, 4, 5, 6 and 7 of the Chiefs Act to first satisfy himself about a person entitled to hold office under African customary law was declared unconstitutional. The learned trial Judge was therefore on firm ground in her interpretation of Article 165 of the Constitution. Ground I lacks merit. Therefore, it fails. 7.8 The question whether the Litunga acted m accordance with the culture, customs and traditions of the Lozi people in the installation of the 2nd respondent as Chief Kakumba as required by Article 165 of the Constitution will be addressed later in this Judgment. 7.9 The main issue, as we see it raised under grounds 2, 3, 4, 7, 8, 9, 11 and 12 is the priority accorded to suitability and lineage in the selection and installation of an area Chief Kakumba. Put differently, what is the significance or weight ascribed to the two in the selection J25 process of a ChiefKakumba? Depending on the outcome of this issue, we will proceed to determine the process to be followed in uninstalling a sitting chief. 7.10 The appellant argued that the issue before the Naliele, which is the authority that decides eligibility of a successor, was suitability and not whether the proposed successors were of the Kakumba lineage. In this regard, that what counsel for the appellant termed as 'fixation of the trial Judge on the family tree' was thus unkind, misplaced and a misdirection. The appellant contended that even the appeal to Sikalo Court against the decision of N aliele was supposed to be on rejection of a successor based on suitability as this was the issue before the N aliele and not rejection based on Kakumba lineage. Further, that there was no onus on the appellant to prove in the Court below that there was no suitable family member to take up the position of Chief Kakumba. That this was the job of the N aliele as he was merely a candidate. 7 .11 Counsel advanced that the trial Judge noted some of the factors relied on by the N aliele to deem the 2nd respondent unsuitable from the evidence advanced in aid of the respondents as age and inability to deal with tribal tensions. 7.12 In response, the thrust of the respondents' position is that the trial Judge considered both lineage/family tree and the issue of suitability and held that the appellant had failed to establish his claim to chieftaincy through the family lineage. As regards the contention that he was not given an opportunity to be heard by Sikalo Kuta, that the evidence on record (DW4's testimony at page Jl4) shows that 3 letters were written to N aliele Kuta requesting that they attend before them with the appellant. However, the Naliele Kuta did not. That the J26 N aliele Kuta appeared and were heard and admitted their wrong doing regarding the installation of the appellant. 7.13 As regards the appellant's contention under grounds 9, 11 and 12 that the trial Court erred in law and fact by not following Lozi customary law on succession, the respondents submitted that upon considering the issue of installation on pages J28 to J31, the lower Court came to the conclusion that the 2nd respondent was properly installed at Lealui and that the Litunga did not interfere with N aliele Kuta but went ahead with the installation in the face of failure by the subordinate body to exercise delegated functions. 7 .14 Our perusal of the Judgment of the lower Court shows that the trial Judge addressed the issue of lineage and suitability. What emerges from her analysis of the issue of lineage and suitability is that they are intertwined. In determining the question of who was the rightful heir to the Kakumba Chieftaincy, the trial Judge noted that Article 165 of the Constitution, as discussed above, recognises the existence of chieftaincy in accordance with culture, customs and traditions applicable to a particular locality. Therefore, that the first port of call was the applicable customs and traditions, in this instance the Lozi customs and traditions on succession. In paragraph 6. 7 on page J24 (page 38 of the record of appeal) the trial Judge noted that not much was adduced in evidence on the set principles on succession. She made a finding that what was apparent from both parties is that ascension to the Kakumba Chieftaincy is mainly determined along family lines. In this regard, that the family is required to select who among the family members is best suited to lead. The trial Judge went on to make a finding in paragraph 6.8 on page J24 (page 38 of the record of appeal) that where there are no suitable candidates within J27 the family, the Naliele resorts to outsiders to serve as Chief Kakumba. The foretasted portion of the Judgment reads as follows: "... While much evidence was adduced by the parties, not much was said on the set principles on succession. What is apparent from both the Plaintiff and the Defendant's evidence is that ascension to the Kakumba Chieftaincy is mainly determined along family lines. The family is required to select who among the family members is best suited to lead. Where there are no suitable candidates within the family, the Naliele has had to resort to outsiders to serve as Chief Kakumba. Between 1993-2009,four non family members served as Chief Kakumba until the deceased Chief who came from the Kakumba family." 7 .15 Further, it is clear from the foregoing that the trial Judge made a finding that suitability, in the sense the appellant has used the word, ranks second to lineage. The N aliele will resort to installation of an outsider where there is no appropriate person within the family. In fact , it is only upon making the finding that lineage ranks superior to suitability, in the context the appellant has used the term, that the trial Judge proceeded to make a finding on the appellant and 2nd respondent's claims to the Kakumba family lineage. 7.16 In determining their respective claims to lineage, the trial Judge examined their respective family trees. The Judge held as follows: "I have weighted the evidence and I am of the considered view that the Plaintiff's evidence does not show that he belongs to the Kakumbafamily. The family tree that he relies on to fortify his claim is questionable on a number of fronts. Firstly, it bears the date of 12th April, 2016, which was way after the succession dispute at hand was underway. I cannot help but entertain the thought that there is a real possibility that this document was doctored to support the Plaintijj's version. I have contrasted it with that produced by the Defendants which bears the date of August 2010. J28 Secondly, when asked who authored the family tree, the Plaintiff admitted to having authored it. Yet again, this raises questions in my mind. More so that the tree produced by the Defendants appears to have been authored by an official of the BRE as it is signed by a T. S Imangambwa. Asked to pick between the two family trees, the Defendant's is more probable than the Plaintiff's. Thirdly, the Plaintiff's family tree was not supported by enough evidence. As can be seen on record, apart from the family tree, the Defendants went on to furnish some proof that he was picked by the family. The Plaintiff did not furnish any evidence of that sort apart from an assertion by his witnesses. In so saying, I note that the Defendants' documentary evidence to the effect that he was chosen by the family was impugned by PW3 who denied being part of the meeting or authoring the said letter. However, seeing as the Situnga Kuta was fully aware of the Z'd Defendant's claim as is clear from the correspondence on page 11 of Defendants' bundle of documents, which alluded to the Z'd Defendant as having been chosen by the family, I am more inclined towards believing that the Z'd Defendant was chosen by the family as opposed to the Plaintiff. .. Fourth, the Plaintiff's evidence fell short of establishing that he was part of the Kakumba family line as his explanation of the family tree was not clear and could not be compared to the clear evidence of DW6 on the Defendants' family tree. The scale of probabilities in my view tips towards the Defendants' version as opposed to the Plaintiff's." 7.17 We have examined the respective family trees tendered into court by the parties. We are of the considered view that the learned trial Judge was on firm ground when she held that the family tree presented by the appellant was questionable on account of the issues she highlighted which include the date of 12 April 2016, which is a date after the dispute between the parties and the fact that it was authored by him. Having said this, we have noted that the appellant is averse to the approach adopted by the lower Court. His contention is that the J29 issue of suitability is what was before the N aliele. That, that is what was escalated before the Sikalo, and should have been the basis of the lower Court's determination. The appellant contended that the trial Judge fell into the same grave error that the Sikalo Court fell into, namely the fixation on the Kakumba lineage as opposed to suitability. 7 .18 From the evidence adduced in the lower Court, it is clear that lineage is the primary consideration when selecting a successor for area Chief Kakumba and that this is only departed from where there is no suitable successor in the family. In fact, the appellant testified in the lower Court that when there is a need for an area Chief to be elected, families are consulted. These families are the Kakumba family and the people who live in the Shishamba area. By his own testimony the appellant confirmed that the families have to be consulted. 7.19 Further, there was no evidence before the lower Court to show that the 2nd respondent was unsuitable to take up the chieftaincy. Having established that the trial Judge was on firm ground when she made the finding that ascension is based on lineage with the exception of when there are no suitable candidates within the family, we cannot fault the trial Judge for the approach she took. Grounds 2, 3, and 4 fail. 7.20 The appellant testified before the lower Court that the Litunga is the most Senior King in the BRE. That the Litunga has seven districts with palaces and that because he cannot go everywhere to oversee what is happening, he has appointed Senior Chiefs to preside over these palaces. He went on to explain that Senior Chiefs make the Induna of which he is a part. That in total there are 11 area Chiefs as Induna. Further, that installation as area Chiefs is done from N aliele. Furthermore, the appellant testified that following the demise of J30 Chief Kakumba, the two families selected him to become the successor and his installation ceremony was held at N aliele on 23 October 2015. He testified that Lealui is the main palace for the Litunga and that according to his knowledge all Chief Kakumbas have been installed at N aliele and not Lealui. 7.21 The appellant's testimony on the correct procedure that should have been followed to challenge his installation was that a complaint should have been launched with Chief Amukena at N aliele by those aggrieved with his installation. If dissatisfied with the explanation given, they should have asked for a letter to go to the BRE. That the Senior Indunas for Senior Chief Amukena and himself would have been summoned there to answer to the issues raised. The BRE would then have made a determination. That the respondents ought to have lodged a complaint with N aliele. That had the complaint been brought before the N aliele and the judgment made in favour of the respondents, he would have appealed and such an appeal goes to the BRE. The appellant in this regard further testified that the Lealui hosts the senior most court/kuta which is presided over by the Litunga, the Limulunga Lealui Court Saa Sikalo. This position was later changed to reflect that the most senior kuta is presided over by the Ngambela and not the Litunga. That had he appealed to the Lealui (had the decision rendered by the Naliele not been in his favour) the respondents would have been asked to furnish the reasons why they did not want him to be chief. In addition, he too would have been accorded an opportunity to respond to their reasons. Further on this score, he testified that had the decision been in favour of the respondents, the N aliele would be informed that he should leave the throne. Furthermore, that the senior court would instruct the N aliele J31 to go and choose a suitable person to be installed as Chief Kakumba. Conversely, where the senior court was satisfied with his installation, he would continue as chief. 7.22 We are unable to appreciate the argument that the learned trial Judge disregarded the hierarchical procedure of the Lozi custom and traditions that the appellant alluded to in determining this matter. She acknowledged such procedure on page J29 of the Judgment (page 43 of the record of appeal) when she stated: "Noting the command structure that DW5 so ably testified to and which evidence stood unchallenged. I see nothing untoward in authorities at the apex of the structure carrying out the installation in the face of failure by the subordinate body that exercises delegated functions. I further note from the schedule of events at Lealui that the Z'd Defendant was not the only Chief installed at Lealui as three other Chiefs were also installed. It therefore follows that installations do take place at Lealui and the resistance displayed by authorities at the Naliele justified it. There was undisputed evidence that the Litunga is the overall authority in BRE, as established by the Lozi custom and tradition. It would be remiss of me to agree with the proposition that efforts to correct the mishap of the Naliele amounted to interference proscribed against in Article 165 of the Constitution of Zambia. Such a position would cause anarchy in such establishments like the BRE as the Litunga will have no control over his subordinate traditional leaders. This would ultimately undermine traditional leadership thereby taking away from the spirit of Article 165 of the Constitution of Zambia." 7.23 We, therefore, find that the lower Court did not depart from the procedure described by the appellant. Her determination of this issue was in accordance with Article 165 of the Constitution. In fact the appellant confirmed in cross-examination that he was answerable to J32 the Senior Chief who in turn was answerable to the Litunga. There is therefore, no basis for us to overturn the lower Court. Grounds 7, 8, 9, 11 and 12 fail. Ground 6 equally fails based on the hierarchical order of engagement confirmed by the appellant that he was answerable to the Senior Chief who in turn was answerable to the Litunga. 7.24 We now turn to determine grounds 5 and 10. The appellant testified that the injunction was served on both parties. He indicated that the injunction was granted on 19 July 2018, and was served on the respondents through the Kaoma Subordinate Court on 22 July 2018. However, that the respondents went ahead with the installation of the 2nd respondent in August 2019, four months after the respondents were warned by the trial Judge with conduct of the matter at the time not to proceed with the installation. The respondents' testimony, in this regard before the trial Judge was that the 2nd respondent was installed on 1 August 2018. 7.25 A review of the record shows that when the matter came up for inter parte hearing of the application for an interim injunction on 9 July 2018, counsel for the appellant informed the lower Court that he would be applying for an adjournment as he was not sure whether the respondents were aware that the matter was coming up that day. The Court below granted the application and adjourned the matter to 16 July 2018 to allow for the respondents to be served with the court process. According to the record, the matter only came up for hearing of the inter parte application for interim injunction on 4 March 2019. On this date, counsel informed the lower Court that service of process had been effected on the respondents using the services of the Local Court in the area. J33 7.26 However, that he was unable to file an affidavit of service because the supporting documentation arrived on the very day with the appellant. The lower Court adjourned the matter to allow counsel to file the necessary documents. The record also shows that an officer of the Subordinate Court in the District filed an affidavit of service on 7 March 2019, to the effect that service was effected on the respondents on the same date. When the matter came up on 13 March 2019, the respondents informed the Court below that they required legal representation. The trial Judge adjourned the matter to enable the respondents engage counsel and further stated: " ... The Ex-parte Order of interim injunction remains in force. The Respondents are restrained from proceeding to install Fredy Tolopo as Chief Kakumba pending inter parte hearing and or the hearing of the substantive matter. Since the respondents still require the statutory 14 days within which to respond, the matter is adjourned to the next session." 7 .27 When the matter came up on 17 July 2017, counsel for the appellant was before court but there was no appearance on the part of the respondents. Counsel informed the lower Court that the 2nd respondent was installed as chief in disregard of the injunction. The Judge with conduct of the matter at the time guided counsel to make the necessary application. The Judge that tried the matter considered this in her judgment as follows: "The evidence on record is that the Plaintiff only managed to serve the injunction on the Defendants after the installation of the 2"d Defendant had taken place in August 2018. DW2's evidence on this point went unchallenged. A perusal of the record does indeed show that the Plaintiff had trouble serving the process on the Defendants up until 2019. This, it appears, would explain why the Plaintiff on learning of the Z'd Defendant's installation did not take out contempt proceedings against the Defendants. J34 Having not been aware of the injunction, can it be said that the installation of the Z'd Defendant was in defiance of the injunction? I think not, the Defendants were unaware of the injunctive prescriptions issued against them and it would be unjust to expect a person to abide by an order they are unaware of." 7.28 Our further review of the record reveals the following. The Memorandum authored by Induna Imangambwa exhibited by the appellant in his Bundle of Documents in the lower Court, which appears on page 277 of the record of appeal states that the 2nd respondent was installed on 1 August 2018. The letter exhibited by the appellant in his Bundle of Documents which was authored by the Senior Chief Amukena II addressed to the Litunga in which he expressed his indignation over the installation of the 2nd respondent indicates that it was authored on 6 August 2018, and the stamp of receipt by the BRE bares the date 16 August 2018. Other documents exhibited by the appellant in his Bundle of Documents in the lower Court which negate the position that the 2nd respondent was installed in August 2019, are the BRE's introductory letter of the 2nd respondent as area Chief Kakumba dated 7 January 2019, on page 282 of the record of appeal: a letter authored by the appellant dated 3 January 2019, which is his reaction to the installation of the 2nd respondent which appears on page 285 of the record of appeal; and, a letter authored by the acting Ngambela introducing the 2nd respondent as Chief Kakumba to the District Commissioner dated 24 December 2018, which appears on page 287 of the record of appeal. 7.29 We therefore find no credence in the appellant's argument that the trial Judge did not acquaint herself with the proceedings that went on before her learned brother prior to the matter being assigned to her. Equally, counsel for the appellant's submission that the trial Judge J35 erred when she stated that the installation was in August 2018 , when according to him it was in August 2019, a period he stated was four months after the respondents were warned not to proceed with the installation, is false. Consequently, grounds 5 and 10 equally fail. 8.0 Conclusion 8.1 The appeal is dismissed for want of merit. 8.2 We order that each party should bear its own costs to be taxed in default of agreement. J Chas. COURT OF APPEAL JUDGE CK Makungu COURT OF APPEAL JUDGE J36