Mathew Namahalika Musokotwane v Simukali and Ors (Appeal 97 of 2015) [2018] ZMSC 412 (13 March 2018)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No.97/2015 BETWEEN: MATHEW NAMAHALIKA-MUSQKOTWAN®---- REPUBLIC OF ZAMBIA &T& appellant AND JUDICIARY GEORGE SIMUNDU SIMUKZ LI . o mao on. Q (HEAD SIMUKALI CLAN) > 13MAKZU18 1st RESPONDENT JAIRO SIMUKALI (HEAD MUDUK|0OA0CfcAl®P67 2nd RESPONDENT SUPREME COURT REGISTRY LUSAKA GILBERT SIMALOLO (HEAD LUSUNGO CLAN) 3RD RESPONDENT ROBSON KAGUTWE (CHAIRPERSON OF SIMUKALI CLAN) 4th RESPONDENT NAVY MWEELA (CHAIRPERSON OF MUDUKULA CLAN) 5th RESPONDENT ACKSON SIAMOONGA (CHAIRPERSON OF LUSUNGO CLAN) LOVEMORE SIEVU EZON MUSOKOTWANE 6th RESPONDENT 7TH RESPONDENT 8th RESPONDENT CORAM: Mwanamwamba DCJ, Wood and Kajimanga JJS On 6th March 2018 and 13th March 2018 For the Appellant : In Person For the Respondent: Mr. A. C. Nkausu, Messrs A. C. Nkausu & Company JUDGMENT Kajimanga, JS delivered the judgment of the court. Cases referred to: 1. Khalid Mohamed v Attorney General (1982) Z. R. 49 J2 2. Galaunia Farms Limited v National Milling Company and Another (2004) Z. R. 1 3. John Malokotela v Majaliwa Sitolo Muwaya and Thaya Odemy Chiwala (2010) Z. R. 357 4. Chief Mpepo (also known as Ackson Chilufya Mwamba) v Senior Chief Mwamba (also known as Paison Chilekwa Yambayamba) SCZ Judgment No. 25 of 2008 5. The Minister of Home Affairs, Attorney General v Lee Habasonda suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes (2007) Z. R. 207 6. Patrick Makumbi and Others v Greytown Breweries Limited and Others Appeal No.32 of 2012 7. Attorney General v Kakoma (1975) Z. R. 212 8. Re H (Minors) [1966] AC 563 9. Sithole v State Lotteries Board (1975) Z. R. 106 10. Powell v Streatham Manor Nursing Home [1935] AC 249 11. Clementina Banda and Another v Borniface Mudimba 2010/HP/A39 12. Kankomba and Others v Chilanga Cement Pic (2002) Z. R. 129 13. MiBer v Minister of Pensions [1974] 2 ALL ER 372 14. Friday Mwamba v Sylvester Nthenge and 2 Others Appeal No. 174 of 15. Colgate Palmolive (Z) Inc v Able Shemu Chuka and 110 Others Appeal No.181 of 2005 16. National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo Appeal No. 79 of 2001 17. Joyce Musokotwane Nondo and Another v Nectus Mulwani Mwananembo Sindele Musokotwane Appeal No. 187 of 2006 18. Chrispine Mulwani Mwiya Mwananembo and Another v Rebecca Namitwe Musokotwane and 4 Others 2009/HL/05 19. Director of Public Prosecutions v Risbey (1977) Z. R. 28 20. MTN Zambia Limited v Investrust Bank Pic Appeal No. 155 of 2015 J3 21. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 22. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 23. Chief Chanje v Paul Zulu Appeal No. 72 of 2008 24. Kenneth Mpengula v Reverend Hudson Litana and Others Appeal No. 47 of 2005 25. Simon Kalaba Chisha and Others v Phillimon Mbola Appeal No. 192 of 26. Nkhata and Others v Attorney General (1966) Z. R. 124 Other Works referred to; 1. H. M Malek et al., Phipson on Evidence, 17th Edition (2009) 2. E. Mckendrick, Contract Law, 8th Edition (2009) 3. M. Redmayne, Standards of Proof in Civil Litigation (1999) 62, Modern Law Review. 4. A. Roberts, A history of the Bemba (1973) This is an appeal against a judgment of the High Court which nullified the appointment of the appellant as Chief Musokotwane of the Toka-Leya people of Kazungula district in Southern Province. This case epitomizes an ugly trend which is becoming endemic in our country - the proliferation of disputes relating to succession to the throne. The background to the appeal is this. A succession dispute arose in Musokotwane Chiefdom following the death of one Nectus Sindele Mulwani who died as chief elect. Various clans presented names of possible heirs to the throne and confusion arose J4 after each clan claimed their choice was the rightful heir. Due to the confusion among the competing clans, the House of Chiefs decided to oversee the selection process. The appellant was subsequently elected as chief by the village headmen of Musokotwane Chiefdom and his appointment was recognized by the government through Statutory Instrument No. 109 of 2011. The respondents were aggrieved by the selection of the appellant as chief and they commenced an action against him in the court below by way of a writ endorsed with the following claims: a) a declaration that the meeting held on 2nd July 2011 in [at] which the applicant was chosen as chief was illegal and contravened [Cabinet] Circular number PA. 4/22 of 1st March 1972; b) an order that the appellant is not Chief Musokotwane; c) an order of injunction restraining the appellant from performing any duties or enjoying the benefits of a chief; d) an order compelling the expeditious convening of the suspended meeting of the Musokotwane Royal Establishment Electoral College under the chairmanship of the mediator Honourable Chief Chikanta to conclude [the] process of selecting a chief; e) costs; and f) any other relief which the court may deem fit. The respondents contended that at a meeting held on 5th July 2008, all the clans agreed to proceed to select a chief through a J5 recognized electoral college and an agreed process and procedure with the principle of rotation. The recognized electoral college proceeded with the selection process until one of the candidates decided to sue. After the disposal of the court action, the selection process resumed under the chairmanship of Chief Chikanta. The process was all inclusive in that all interested parties participated in it and the candidates that were being considered for selection were Lovemore Sievu, Crispin Mwiya Mwananembo and Ezon Musokotwane. The respondents alleged that while the recognized selection process was still going on, a clandestine meeting of headmen and other selected invitees was called on 2nd July 2011 at which the appellant was purportedly chosen as Chief Musokotwane. This meeting was illegal because it contravened Cabinet Circular number PA. 4/22 of 1st March 1972 which provides that all parties concerned should be invited. They contended that as members of the royal family, they had a direct interest in the selection of a chief but were omitted in preference to village headmen. Therefore, the appellant J6 having been chosen wrongly through an illegally constituted meeting is not entitled to ascend to the throne. The appellant denied the respondents’ claims and contended that the process of choosing a chief in the Musokotwane Royal Establishment has always been through the village headmen and that the onus of choosing the chief lies with the royal establishment which comprises of the Chief (if alive), the Prime Minister or Ngambela, the senior headmen and the headmen and that members of the royal family are the potential chiefs, contenders or heirs and also interested parties to the throne and are therefore not the ones who choose the chief. Eligibility to the throne depended on proximity to the throne per the reigning monarchy. According to the pattern of the choices of the chiefs in the Musokotwane Royal Establishment, the persons who have previously been chiefs have either been sons or grandsons of the chiefs and not the great great great grandsons of the chief. As a consequence, the 7th respondent in the meeting of 27th November 2008 was even denied as being eligible to the throne. The appellant’s defence also disclosed that the confusion among the competing clans arose from a wrong system being used in the J7 procedure of selecting the chief. When the meetings resumed, they excluded the real electoral college of the Musokotwane Royal Establishment and only consisted of the persons having an interest in the throne and therefore, the meeting was flawed. According to the appellant, the meeting of 2nd July 2011 was a properly constituted meeting which consisted of the proper and correct electoral college of headmen and was facilitated by Chief Chikanta through which meeting he was duly selected as Chief Musokotwane. Further, the meeting was held based on the tradition and custom of the Musokotwane Royal Establishment and in line with the provisions of the Cabinet Circular Number PA. 4/22 of 1st March 1972, specifically paragraph (b) which makes it a requirement that such meetings should be held according to tribal custom and at places selected by the traditionalists. The appellant contended that the meeting was held at the Royal Palace as per tradition and custom. That the tribal custom and tradition also dictated that the candidates eligible for selection never attend these meetings and are never invited and they usually are not aware of who has been chosen as chief until he has been informed and anointed. The appellant averred that the minutes of the 16th June 1978 meeting in which Godfrey Mulena was chosen J8 as Chief Musokotwane clearly show that the electoral college of the Musokotwane Royal Establishment consists of headmen and not the interested parties to the throne. That these minutes further show that all meetings to choose a chief always take place at the palace. The appellant asserted that the respondents were ignorant of the tribal custom of the Musokotwane Royal Establishment and as a result they caused confusion to the succession process which led to the failure of choosing a chief. On behalf of the respondents, the 4th respondent gave evidence that when Nectus Sindele Mulwani died in 2007, the elders of the clans called for an electoral college to appoint a new chief sometime in March/April 2008. Those present divided themselves into three groups. Each group nominated one person to become chief. The three groups were Namahalika who chose Ezon Musokotwane; Mwananembo who chose Crispin Mwiya and Simukali who chose Lovemore Sievu. Efforts to choose a successor, however, failed. Several meetings were held after that but were unsuccessful in choosing a chief as the procedure was either wrong or fraudulent. J9 He also testified that the Cabinet Circular of 1972 contained rules to be followed when appointing a chief. According to the circular, succession meetings were to be conducted in line with tribal custom and at the palace and that all concerned persons were to be invited. Further, it was the role of the Council to record everything that transpired at the meetings and keep records. He stated that the meeting held on 2nd July 2011 was not in conformity with the Circular as the members of the royal family were not in attendance unlike the meetings held between 5th July 2008 to 4th June 2011. Therefore, the appellant was not chosen in accordance with the law. He admitted, however, that the meeting took place at Lukuni Palace in Musokotwane village and that the Council prepared the minutes of the meeting. The 8th respondent was PW2. His evidence was that the royal family had been in the process of selecting a chief since 2008. This was to be done according to custom with the help of the government. There were several meetings to appoint a successor to Nectus Sindele Mulwani. He attended those meetings and all concerned were present. However, the process was later hijacked. In July 2011, he J10 received a copy of the minutes of a meeting from a headman at which the appellant was chosen as chief but there were no members of the royal family present at the meeting except 35 headmen. He testified that the appellant was his uncle and that he was a candidate who qualified to be a chief but the royal family was not involved in his selection. He admitted that he was interested in becoming chief and that it was his prayer to have the selection of the appellant nullified and that a new chief be selected in accordance with previous meetings and with the involvement of government. He, however, was not aware as to how chiefs were chosen prior to 2008. On the part of the appellant, Robbie Muzumi Siabeenzu (DW1), a village headman of Musokotwane Chiefdom, testified that in 1978, all the village headmen came together to choose a chief and Godfrey Namahalika Mulena was selected. His selection was done according to the tradition and the people who were to be chosen as chiefs from the royal family were not present. On 2nd July 2011, he and other headmen were called to the palace for a meeting to choose a chief. The meeting was composed of the same persons as the meeting of 1978, that is, the village headmen and Council officials were in Jll attendance but the royal family members were excluded. The Council officials also attended the meeting of 2nd July 2011. It was his evidence that the meeting of 2nd July 2011 was called by Chief Mukuni, the chairperson of the Royal Foundation Chapter of Southern Province. He, however, conceded that the decision by the chairperson of the Royal Foundation to invite only headmen and exclude the royal family was not the custom and therefore, the procedure for the meeting was irregular. DW2 was the appellant in these proceedings. His testimony was that he was recognized by selection under customary law and that by the republican law he was duly recognized under Statutory Instrument No. 109 of 2011. As a son to Chief Musokotwane the 8th of the line of Sianalumba, he was entitled to contest. He stated that all previous chiefs were either sons of previous chiefs or grandsons of previous chiefs. First choice candidates were sons of previous chiefs. If there were no suitably qualified sons of previous chiefs then grandsons could be considered. There was no clan system and all candidates had to belong to one founding member which in this case was Sianalumba. J12 He also testified that when a chief dies the procedure was that the remaining members of the royal establishment, comprising of the Ngambela and headmen, sit to elect the next chief. The role of the royal family was merely to assist the establishment with the calibre of the candidates by submitting names of people eligible to become chief. This procedure was adopted in 1978 when Godfrey Mulena became Chief Musokotwane the IX. On 2nd July 2011, the same method was used to choose him as chief but no installation took place because the matter was brought to court. He conceded that in the selection of a chief all procedures as guided by custom should be followed including candidate analysis and the procedure as per the Cabinet Circular of 1972. After considering the evidence and submissions of the parties, the learned trial judge found that the choosing of a chief should be in accordance with Cabinet Circular Number PA.4/22 of 1972 as well as customs and tradition but the parties, however, perceived the guidelines differently. She found that the custom and tradition was not consistent from the evidence of the witnesses as one group stated that only the royal family could choose the chief while the other group J13 stated that the headmen had a role to play. It was also her finding that the selection of the appellant as Chief Musokotwane was not in accordance with the proper procedure and she accordingly nullified it. She held that the meeting at which the appellant was selected as chief was illegal as the headmen took the role of choosing a chief in disregard of the customs and tradition and in the absence of the royal family members. The appellant now appeals against the lower court’s judgment on four grounds as follows: 1. The Honourable Judge in the Court below erred in law and fact when she held that the appointment of the Appellant as Chief Musokotwane did not follow the proper procedure without stating what that proper procedure was in terms of the tradition and custom and also the Cabinet Circular number PA.4/22 of 1972. 2. The Honourable Judge in the Court below erred in law and fact when she held that the meeting of 2nd July 2011 at which the appellant was chosen as Chief Musokotwane was illegal as the headmen took the role of choosing a chief in disregard of the customs and tradition, or even the presence of Royal Family members in total disregard of the evidence of the minutes [of] 1978 that was [were] adduced before the court which showed that the chief was chosen by the village headmen in 1978 and not by Royal family members. 3. The Honourable Judge in the court below erred both in law and fact when after concluding that the choosing of a chief should be in J14 accordance with the Cabinet Circular number PA.4/22 of 1972 as well as custom and tradition, that both parties perceived the guidelines differently, that the custom and tradition was not consistent from the evidence of the witnesses (one group stated that only the Royal Family could choose while the other group stated that the headmen had a role to play) and that both parties have claimed a right to choose a chief by virtue of lineage, she failed to adjudicate or decide on which of the two conflicting positions was correct. 4. The Honourable Judge in the court below erred both in fact and law when she held that the parties must return to the task of voting for a chief in accordance with the custom and tradition without stating the custom and tradition the parties should follow. The parties filed heads of argument in support of and against the appeal. In arguing ground one, counsel for the appellant submitted that the matter in the court below was predicated on what was the right or proper procedure of choosing the new Chief Musokotwane. In this regard, conflicting evidence was led by both parties during trial, showing that the two groups before the court perceived the procedure differently as confirmed by the findings of fact made by the learned trial judge on page J6 of her judgment. Our attention was drawn to the evidence of the appellant and DW1 in the court below who both testified that according to custom J15 and tradition, the village headmen had the mandate to choose the chief. Counsel submitted that both witnesses referred to the minutes of the meeting of 1978 which showed that the chief who was elected in 1978 was chosen by the village headmen. He also contended that the appellant’s evidence made reference to the minutes of the meeting held on 2nd July 2011 which the appellant testified was recorded by the officials from the Council in the presence of the village headmen and that all the concerned parties were invited to attend the meeting and their attendance was recorded in these minutes. It was argued that the minutes of 1978 and 2nd July 2011 were never challenged during the trial in the court below. Counsel submitted that the respondents contended, on the other hand, that the chief was to be elected by the royal family members who formed the electoral college as they were the persons to be affected by the decision to choose the chief. However, there was no evidence that was led by the respondents in the court below to show that that was the tradition and custom in Musokotwane chiefdom. He argued that the respondents’ two witnesses simply recounted what transpired when the late Chief Musokotwane passed J16 away and they only succeeded in showing the number of meetings held after 2008 by the royal family members and that they had requested for the intervention of Chief Chikanta. Counsel contended that it was trite law that he who alleges must prove and that it was incumbent upon the respondents to prove that the correct custom and tradition was that the royal family members are the ones that choose the chief. He referred us to H. M. Malek et al., the learned authors of Phipson on Evidence 17th Edition (2009), who state in paragraph 6-06 at page 151 the following regarding the burden of proof in civil cases: “So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all the parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons.” We were also referred to the cases of Khalid Mohamed v Attorney General1 and Galaunia Farms Limited v National Milling Company and Another2 both of which, counsel contended, held that the mere failure of a defendant’s case does not automatically entitle J17 the plaintiff to judgment if the plaintiff fails to prove his claim against the defendant. He submitted that the respondents failed to prove that it was the tradition and custom to have the new chief chosen in the manner suggested by them and therefore, they failed to discharge their burden of proof. Counsel went on to refer us to the Cabinet Circular of 1972 which provides, inter alia, that: “(b) Such meetings should be held according to tribal custom and at places selected by the traditionalists. Under no circumstance should the meetings be convened in the District Secretary’s Office or at the Boma. (c) District secretaries should ensure that all parties concerned have been invited to attend and that a record of all who attend is taken. (d) Where there are more than one candidate, the minutes of the meeting must show that the claims of both or all parties concerned have been considered and reasons given as to why any claims was [were] disqualified. Where necessary and appropriate a vote must be taken and recorded.” He submitted, therefore, that the meeting of 2nd July 2011 was properly convened as it was held according to the tradition and custom at the palace and attended by the persons concerned, albeit J18 with the intervention of Chief Chikanta who had also invited Senior Chief Mukuni into the process as seen from the minutes of the meeting of 2nd July 2011 and also the testimony of the appellant’s witnesses. We were al^o referred to the case of John Malokotela v Majaliwa Sitolo Muwaya and Thaya Odemy Chiwala3, where we held that: “Tradition and custom is an accepted way of doing things in community or society. It can be changed through a system of evolution. It cannot be imposed on the people by the court.” It was counsel’s submission that the judge in the court below was duty bound to implement the tradition and custom of choosing the chief and not substitute it with what she considered to be the right procedure and that the custom and tradition demanded that the chief be chosen by the village headmen. He contended that an analogy could be drawn from what transpires in Bemba Customary law. Reliance was placed on the case of Chief Mpepo (also known as Ackson Chilufya Mwamba) and Senior Chief Mwamba (also known as Paison Chilekwa Yambayamba)4, where it was held that: “When the choice of a chitimukulu is in issue, the body mandated to make the appointment is known as Bashilubemba.” J19 In a similar way, counsel argued, the persons mandated to choose Chief Musokotwane in the present case are the village headmen as was the case with the selection of the appellant and this was the proper procedure. However, the learned trial judge disregarded the same in the conclusion she made after stating her findings. Counsel contended that the court below failed to explain and determine which of the two procedures was wrong and which was correct. The court also failed to determine which provisions of the government circular were not followed in the election of the defendant as chief. It equally failed to state what was the correct tradition and custom. He cited the case of The Minister of Home Affairs and Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes)5, where it was decided that: “Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts.” He submitted that the judgment of the lower court failed to meet J20 the above standard as it failed to give its reasons for concluding that the selection of the appellant as Chief Musokotwane was done using a wrong procedure. According to counsel, this conclusion ignored the existence of the evidence of the witnesses and the minutes of the 1978 meeting together with other evidence adduced by the parties before the court below. He therefore submitted that if the court had properly considered the evidence before it, it would have reached the inescapable conclusion that the appellant was properly chosen as Chief Musokotwane using the proper procedure. In ground two, counsel submitted that the appellant adduced evidence of the minutes of the village headmen who chose Godfrey Mulena as Chief Musokotwane in 1978 and that this evidence was not challenged by the respondents in the court below. These minutes show the electoral college as comprising of village headmen who were tasked to vote for the new chief. The relevant members of the royal family are listed as candidates and the number of candidates in 1978 was nine. Counsel contended that these minutes were further buttressed by the evidence of DW1 who testified that the appellant was chosen by the village headmen just like the chief in 1978 and he J21 was in attendance at that meeting. He also testified that the royal family members are excluded from voting and that they were not in attendance at both the meeting in 1978 and the one in 2011. Similarly in 2011, the attendees were village headmen and the candidates were the royal family members. Further, the minutes show that each individual candidate was considered in both meetings of 1978 and 2nd July 2011. Counsel accordingly submitted that it is the correct custom and tradition in Musokotwane chiefdom that the chief is chosen by an electoral college of village headmen and the evidence that was adduced by the appellant in the court below established and confirmed this tradition. Therefore, the holding by the court below that the village headmen illegally took the role of selecting the chief was a misdirection and the same should be set aside. In ground three, counsel submitted that the learned trial judge had come to the correct conclusion that there was a conflict in the manner both parties perceived the process of selecting the chief. The court, however, failed to conclusively decide on which of the two positions was correct as it simply nullified the selection without J22 stating which was the proper tradition and custom and/or procedure to be followed in the Cabinet Circular number PA.4/22 of 1972. He therefore urged us to hold that according to the evidence on record, the correct procedure is that the chief is chosen by the village headmen. In ground four, counsel submitted that the court below made a very vague pronouncement by ordering that the parties should go back to the task of voting for a new chief. He contended that the court left the parties more confused with the directive as the judgment is not clear on the custom and tradition to follow in the event that the parties proceeded to hold another meeting to choose the chief. Further, the judgment is not clear on how the electoral college is to be established in that the court was asking the parties to go back and choose a chief without stating the correct procedure to be adopted. Counsel, accordingly prayed that the appeal succeeds with costs and that the appellant be declared to have been properly selected and recognized as Chief Musokotwane by the Republican President. J23 In the respondents’ heads of argument, Mr. Nkausu submitted in response to ground one that the issue before the court below was to determine from the two mutually exclusive stories on who had the mandate to choose Chief Musokotwane. We were referred to the case of Makumbi and Others v Greytown Breweries Limited and Others6 where we held that: “We are of the firm view that the assessment of conflicting witness’ evidence is the province of the trial court, it does not belong here. As we stated in Attorney General v Kakoma,7 a court is not entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it having seen and heard the witnesses giving that evidence.” Counsel submitted that guided by this holding, the court below gathered and assessed the evidence tendered by the contestants and made findings of fact and based its judgment on the balance of probabilities as explained by Lord Nicholls in the case of Re H (Minors)8 as follows: “The balance of probabilities standard means that a court is satisfied that an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not.” J24 He submitted that as this appeal is from a trial judge sitting alone, it is a re-hearing on the record or documents, including the trial judge’s notes and that therefore, this court has the same rights to give decisions on the issues of fact as well as law, as the trial judge since this court’s jurisdiction is free and unrestricted. He relied on the cases of Sithole v State Lotteries Board,9 Powell v Streatham Manor Nursing Home10 and Banda and Another v Mudimba.11 He contended that the minutes of the 1978 Musokotwane Royal Establishment Electoral College meeting and Cabinet Circular Number PA.4/22 of 1972 were common cause or real evidence on which this Court can make the necessary findings of fact and draw inferences. This Court is also at liberty to substitute its own opinion with that of the learned trial judge as the case may be. Counsel submitted that it was a general rule that the burden of proof lies on a party who asserts in the affirmative. The case of Kankomba and Others v Chilanga Cement Pic12 was cited in aid of this argument. He contended that the respondents discharged their burden of proof through documentary and viva voce evidence shown in the record of appeal. Our attention was drawn to the testimony of J25 PW1 who, counsel contended, elaborated on the process that had been undertaken to choose a chief as per custom and tradition through a royal family electoral college as had been done in the previous selection of chiefs. That the witness testified that the Musokotwane Royal Establishment Electoral College which was set up on 5th July 2008 met several times and the appellant was part of these proceedings. Counsel contended that the minutes of the electoral college meetings were not challenged by the appellant and these minutes were common cause and contained facts in issue or facts from which they may be inferred. He also argued that it was trite law that a trial court may take judicial notice not only of legally operative documents relevant to a plaintiffs claims but also of facts that can be derived from the documents’ contents. It was his submission that the respondents adduced sufficient evidence to discharge the burden of proof which persuaded the trial judge that more probable than not, it is the royal family that chooses a chief. He relied on the case of Miller v Minister of Pensions13, where it was held as follows: “If the evidence is such that the tribunal can say ‘we think it more J26 probable than not’ the burden is discharged, but if the probabilities are equal it is not.” According to Mr. Nkausu, it is a fundamental principle of agreements that once they are entered into voluntarily, they are binding and will be honoured by the courts as was held in the case of Mwamba v Nthenge, Kaing’a and Chekwe14. He contended that the agreements reached by the parties are entrenched in the minutes of the electoral college meetings and are binding on the parties. He referred us to the case of Colgate Palmolive (Z) Inc v Able Shemu Chuka and 110 Others15, where we held that: “If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice.” We were also referred to the case of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo16, where we decided as follows: “It is trite law that once the parties have voluntarily and freely entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the court is to give J27 efficacy to the contract when one party has breached it by respecting, upholding and enforcing the contract.” As regards the sanctity of agreements, our attention was drawn to E. Mckendrick, the learned author of Contract Law, 8th Edition (2009) who states at page 3 that: “The law of contract is perceived as a set of power conferring rules which enable individuals to enter into agreement of their own terms. Freedom of contract and sanctity of contract are the dominant ideologies. Parties should be as free as possible to make agreements on their own terms without the interference of the courts or parliament and their agreements should be respected, upheld and enforced by the courts.” Counsel submitted that the appellant having been party to the agreement by the royal family to continue with the tradition and custom of choosing a chief through the royal family electoral college and subsequently having taken up membership of the electoral college since 2008 is estopped from opting out of the corporate agreement and pursue and/or benefit from another process outside this agreement. He contended that the case in the court below followed two preceding cases on the Musokotwane succession dispute that had J28 been determined by the courts where the role of the royal family electoral college as the body mandated to select a chief had been adjudicated and settled. We were referred to the case of Joyce Musokotwane Nondo and Another v Nectus Mulwani Mwananembo Sindele Musokotwane17 where, counsel contended, the court upheld the selection of Nectus Mulwani as chief by the Musokotwane royal family electoral college. He also referred us to the case of Chrispine Mulwani Mwiya Mwananembo and Another v Rebecca Namitwe Musokotwane and 4 Others18 where, in counsel’s submission, the court ruled that the mandate to select Chief Musokotwane was vested in the Musokotwane Royal Establishment Selection Committee. He, therefore, submitted that the tradition and custom of selecting Chief Musokotwane is by the Musokotwane Royal Establishment Electoral College. The learned counsel went on to submit that although the appellant contends that the selection of a chief is done by the village headmen and relied on the 1978 minutes to prove the same, DW1 conceded in his testimony that excluding the royal family members from an electoral college meeting was irregular and contrary to J29 tradition and custom. He referred us to the minutes of the 1978 meeting and submitted that the same revealed that the meeting was convened for the Musokotwane royal family; the agenda was to choose Chief Musokotwane; the royal family members scrutinized the candidates; the candidates who were offering themselves for selection as chief were members of the royal family and the Musokotwane royal family electoral college voted for a chief from amongst the nine royal family contestants. Counsel submitted that the 1978 meeting accordingly revealed that it was the Musokotwane royal family that selected the chief. He contended that the appellant did not provide strong or cogent evidence that the village headmen selected the chief and that the royal family did not attend or vote at the meeting. Consequently, the learned trial judge in the court below believed the version of the respondents as they had tipped the evidential scale in their favour on a balance of probabilities. We were referred to M. Redmayne, the learned author of Standards of Proof in Civil Litigation (1999), who states at page 172 as follows: “If the fact finder is inclined to believe the plaintiff more than the J30 defendant, even to the slightest degree, then he or she must find for the plaintiff.” Counsel submitted that the evidence of DW1 lacked credibility as shown in the analysis of the 1978 minutes and he relied on the case of Director of Public Prosecutions v Risbey19, where it was held that: “...where the issue is one of credibility and inevitably reduced itself to a decision as to which of two conflicting stories the trial court accepts, an appellate court cannot substitute its own findings in this regard for those of the trial court.” Counsel also submitted that the attempt by the appellant to equate the village headmen in this case to Bashilubemba was misplaced in that unlike the Bashilubemba, the village headmen in Musokotwane Chiefdom do not determine issues of royal succession. He cited the contents of pages 12 - 13 of the History of the Bemba to support this argument. It was his contention that the learned trial judge was on firm ground in her findings as the appellant had failed to prove and, or discharge his burden of proof on a balance of probabilities that the village headmen were mandated to select Chief Musokotwane by J31 custom and tradition. He submitted that this was a proper case for this court to uphold the findings and holding of the court below and that this court has consistently held that it will not ordinarily disturb or tamper with the findings of fact made by the trial court. To support this argument, he called in aid the cases of MTN Zambia Limited v Investrust Bank Pic,20 Wilson Masauso Zulu v Avondale Housing Project Limited,21 Attorney General v Marcus Kampumba Achiume,22 and Chief Chanje v Zulu.23 Mr. Nkausu further submitted that the findings of fact by the court below do not fall within the exception to cases where the appellate court is satisfied that they were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or they were findings which on a proper view of the evidence, no trial judge acting correctly can reasonably make. In response to ground two, it was submitted that the learned trial judge correctly apprehended the evidence of the minutes of the 1978 Musokotwane royal family electoral college that were adduced before the court which showed that the chief was chosen by the Musokotwane royal family and not the village headmen in that year. J32 Counsel argued that the selection of Chief Musokotwane is an exclusive right, power and privilege of the Musokotwane royal family as illustrated by the introductory remarks at the 1978 Musokotwane royal family meeting by the then District Secretary, Mr. Siangobeka, who stated as follows: “Today is the last or final day for you the Musokotwane Royal Family to choose the best leader of Musokotwane residents who has good leadership or character.” He contended that given the seriousness of the allegations of the appellant, it required more cogent evidence to have satisfied the trial judge that the Musokotwane royal family members did not attend or vote at the 1978 meeting in view of the evidential record in the minutes. That the attempt by the appellant to insinuate against all odds that the Musokotwane royal family members did not attend the 1978 meeting was discredited, opposed and ousted by DWl’s own admission and the challenge from PW2 on the 306 votes cast compared to the 24 village headmen in attendance as well as his grandfather who was part of the royal family members that commented on the candidates. J33 Mr. Nkausu argued that respecting the custom and tradition in chieftainship succession is cardinal. He cited the case of Kenneth Mpengula v Reverend Hudson Litana and Others24, where he contended held that this court upheld the decision of the High Court in nullifying the appointment of Kenneth Mpengula as Senior Chief Mushili because customary procedures were not adhered to. It was, therefore, his submission that the court below was on firm ground when it held that the appellant was not properly appointed and installed as Chief Musokotwane because the royal family custom and tradition were not followed. He also referred us to the case of Simon Kalaba Chisha and Others v Phillimon Mbola25 where it was held that the electoral college is the Chimense royal family that meets to choose the chief. Similarly, he contended that it was the Musokotwane royal family that meets to choose the chief. It was counsel’s contention that to allow village headmen to select a chief would conflict with the customs and traditions of the Musokotwane Chiefdom as any person could organize a group of village headmen from the over 300 headmen of the chiefdom and win the election and become chief which is undesirable. He therefore J34 submitted that based on the evidence on record, it is the Musokotwane royal family electoral college that selects a chief. He argued that the holding of the court below that the village headmen illegally took the role of selecting the chief and thereby set aside the selection is based on firm grounds. He also contended that the appellant did not satisfy the judge of the likelihood of his assertion nor did he adduce sufficient evidence to satisfy the trial judge to the required standard or degree of proof that the village headmen were mandated to choose Chief Musokotwane. In response to ground three, counsel submitted that the learned trial judge, after finding as a fact that there were two mutually exclusive and conflicting positions on how to choose chief Musokotwane, she unequivocally adjudicated in favour of the respondents who stated that only the Musokotwane royal family through a legitimate Musokotwane royal family electoral college could choose a chief. That the court below therefore adjudicated on the proper tradition and custom, and or procedure to be followed in the Cabinet Circular Number PA. 4/22 of 1972 and consequently ordered that the parties must go back to the task of voting for a chief. J35 He argued that it was only the Musokotwane royal family that had the exclusive mandate of choosing Chief Musokotwane by voting for a candidate amongst the royal family member aspirants. Counsel contended that this custom and tradition is evident in the minutes of the 1978 meeting and the meetings that had started in 2008 when a vacancy for chief Musokotwane arose. He submitted that the court below was on firm ground when it nullified the selection of the appellant by village headmen who are not royalty, as that was irregular and contrary to the custom and tradition as conceded by DW1. That by his own admission, DW1 stated that village headmen had no right, power or duty to select Chief Musokotwane. Counsel referred us again to the Chrispine Mulwani Mwiya Mwananembo18 case and submitted that the said case established that there was a duly constituted committee with representatives from the five clans of the Musokotwane chiefdom mandated to select the next Chief Musokotwane from the three candidates namely Crispin Mwiya, Eason Musokotwane and Lovemore Sievu. He also submitted that after assessment of conflicting witnesses’ evidence, the trial court made findings of fact based on the testimony adduced J36 by the parties before it, having seen and heard the witnesses giving that evidence and taking into account the documentary evidence. Having assessed and weighed the evidence before it and satisfied that the respondents had proved their case, the court below held that the legitimate body mandated to select a chief is the Musokotwane royal establishment electoral college. Counsel referred us to the case of Nkhata and Others v Attorney General26, for the principle that this court only reverses findings of fact in exceptional cases and submitted that the court ought to uphold the findings of fact in the court below. In response to ground four, Mr. Nkausu submitted that the evidence on record clearly showed that there was a legally constituted Musokotwane royal establishment electoral college, of which the appellant is a member, that had been tasked to select a chief and that this process was truncated by the illegal meeting of 2nd July 2011 at which village headmen purported to elect the appellant as Chief Musokotwane contrary to custom and tradition and Cabinet Circular Number PA. 4/22 of 1972. J37 Counsel contended that prior to July 2011, the appellant had been party to the process of selecting a chief and that the minutes of the Musokotwane royal family electoral college show that on 29th January 2010 voting had been conducted and the five clans re­ affirmed their support for the candidates who were later confirmed on 4th June 2011. Thus, the learned trial judge was on firm ground to order that the parties ought to return to the task of voting for a chief as per paragraph (d) of the Cabinet Circular Number PA. 4/22 of 1972 which states that: “Where there are more than one candidate, the minutes of the meeting must show that the claims of both or all parties concerned have been considered and reasons given as to why any claims was [were] disqualified. Where necessary and appropriate a vote must be taken and recorded.” He restated the principle in the Chief Mpepo4 case that it is not the duty of the court to choose or impose a chief on a community. He also contended that after concluding that the choosing of a chief should be done in accordance with the Cabinet circular as well as custom and tradition, the court below correctly found that only the royal family could choose a chief and, therefore, that the parties must go back to the task of voting for a chief through the legally constituted J38 Musokotwane royal establishment electoral college. As the appellant was not selected by the said electoral college but by village headmen, contrary to custom and tradition, the court below was on firm ground when it nullified the irregular election of the appellant as Chief Musokotwane. Counsel, therefore, submitted that the appellant was not properly elected and that the meeting of the village headmen was irregular and contrary to custom and tradition and the appellant’s election was void ab initio as held by the court below. It was his prayer that this court upholds the findings and decision of the court below. We have considered the record of appeal, the evidence on record, the judgment appealed against as well as the arguments and authorities cited by counsel for the respective parties. Counsel for the respective parties have filed lengthy heads of argument containing numerous authorities. As we see it however, the simple issue for determination in this appeal is whether, under the Toka-Leya custom and tradition, the selection of Chief Musokotwane is a preserve of the village headmen or the royal family electoral college. J39 All the grounds of appeal are interrelated and they will therefore be considered together. The gist of all the grounds of appeal is simply whether the learned trial judge was on firm ground in nullifying the election of the appellant as Chief Musokotwane. The starting point in determining this appeal is to examine the holding in the judgment of the trial court at pages J6 - J7 which reads as follows: “Considering the evidence as it has emerged, I have found as a fact that; (1) The choosing of a Chief should be in accordance with Cabinet Circular number PA 4/22 of 1972 as well as custom and tradition. (2) Both parties perceived the guidelines differently. (3) The custom and tradition was not consistent from the evidence of the witnesses. One group stated that only the Royal Family could choose while the other group stated that the headmen had a role to play. (4) Both parties have claimed a right to choose a chief by virtue of lineage. In view of the above facts it is clear to me that they all claim lineage to the chieftaincy. This requires that the parties must return to the task of voting for a chief in accordance with custom and tradition. The cabinet circular is a guide to how the deliberations shall be conducted. Therefore, I nullify the appointment of the Defendant as Chief Musokotwane as he did not follow the proper procedure in his election as chief and the injunction prayed for is granted to sustain until a chief is chosen in the proper manner. J40 I declare that the meeting of 2nd July, 2011 at which the Defendant was chosen was illegal as the headmen took the role of choosing a chief in disregard of the customs and tradition, or even the presence of Royal Family members.” As aptly argued by the appellant, the above excerpt reveals that the trial court made no specific finding on the procedure of choosing Chief Musokotwane under the Toka-Leya custom and tradition. Further, the judgment does not address which provisions of the Cabinet circular were not followed in the election of the appellant. What the lower court did in this case was simply to conclude that the selection of the appellant as Chief Musokotwane was done using a wrong procedure because the headmen took the role of choosing the chief in the absence of the royal family members. The basis for that finding is not specified in the judgment. This is contrary to the guidance we gave in the Lee Habasonda5 case, cited by the appellant, that a judgment must contain, inter alia, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. Notwithstanding the foregoing, it is clear from the judgment that the trial court adopted the view taken by the respondents that J41 the selection of Chief Musokotwane was to be done by the members of the royal family and not the headmen. Therefore, the argument by the appellant that the trial court did not adjudicate on this issue is not well grounded. What was, however, absent in the judgment was the reasoning upon which this decision was based. On the facts of this case however, we posit that the failure by the trial court to state its reasoning, as will become apparent below, is not a sufficient ground upon which its judgment can be set aside. In his pleadings and testimony in the court below, the appellant stated that under the custom and tradition of Musokotwane Chiefdom, the persons mandated to choose the chief were the village headmen. This, he contended, was based on the contents of the minutes of the 1978 meeting. Relying on the same minutes, the respondents on the other hand contend that it was the Musokotwane royal family and not the village headmen that chose the chief in 1978. We are inclined to believe the respondents’ version because it is fortified by the introductory remarks of the then District Secretary, Mr. Siangobeka quoted at page J32 of this judgment. It is plain from his remarks that he was addressing the Musokotwane royal family, J42 urging them "... to choose the best leader of the Musokotwane residents who has good leadership or character.” Although in his evidence in the court below, DW1 who testified on behalf of the appellant stated that the meetings of 2011 and 1978 were both comprised of headmen, he conceded that the meeting of 2nd July 2011 was not held according to their tradition. He explained that under their custom, the members of the royal family were supposed to be included in the selection of a chief. Specifically, his evidence was that: “During the meeting of 2nd July 2011 only the village headmen were allowed to attend, not the royal family members. The meeting was held but not according to our tradition.” When asked whether members of the royal family have a role in choosing a chief, his response was that: “Yes they have a role. They are supposed to be included.” When asked whether he was aware that members of the royal family were complaining that they were excluded and if their complaint was legitimate, DWl’s response was in the affirmative. * J43 It is apparent from the evidence in the court below, particularly that of PW1 and PW2, that members of the royal family were present at all the meetings held between 5th July 2008 and June 2011 which had been convened to select Chief Musokotwane prior to the last one of 2nd July, 2011 attended by village headmen only. We find that the evidence of DW1 corroborates that of PW1 and PW2 that members of the royal family have a role to play in the selection of Chief Musokotwane. It follows that their absence makes the selection irregular for being contrary to the Toka-Leya custom and tradition as was the case with the meeting at which the appellant was selected as Chif Musokotwane. The fact that the Musokotwane royal family is responsible for choosing a chief was also acknowledge by this Court in the Joyce Musokotwane Nondo17case where we stated at page J2 as follows: “The brief history of this appeal is that after the death of Chief Musokotwane, Mr. Godfrey Mulena Musokotwane, on the 22nd April, 2005, the royal families concerned held meetings for purposes of choosing a successor to the throne of Chief Musokotwane on 27th April, 2005. The meetings were held by clan members and elders of the royal family where the plaintiff was elected successor to the * J44 throne of Chief Musokotwane and remained as chief elect pending formal installation to the throne.” (emphasis added) And at page J3, we observed that: “It is also pertinent to note that on the evidence on record the majority of the clan of the royal family participated in the meeting where the plaintiff was elected to the throne to succeed as Chief Musokotwane as well as the meetings where it was resolved that the plaintiff was prematurely elected and therefore should not assume the throne of Chief Musokotwane.” (emphasis added) From what we have discussed above, it is beyond doubt that according to the Toka-Leya custom and tradition, the process of choosing Chief Musokotwane is a preserve of the royal family members. Consequently, the trial judge was on firm ground in nullifying the election of the appellant as Chief Musokotwane. Paragraphs (b) and (c) of the Cabinet Circular of 1972 require that meetings for the selection of a chief must be held according to tribal custom and that all parties concerned should be invited to attend such meetings. In view of the foregoing, the lower court cannot be faulted for deciding that the meeting at which the appellant was chosen as Chief Musokotwane was illegal and that the royal family members ought to have been included in the process of choosing the J45 chief. As we stated earlier, the appellant’s own witness (DW1) stated that the procedure applied in conducting the 2nd July 2011 meeting was irregular. Given the foregoing, we do not find any impropriety in the trial court’s nullification of the appellant’s selection as Chief Musokotwane by the village headmen as this mandate is a preserve of the Musokotwane royal family electoral college. For these reasons, we find that all the grounds of appeal lack merit. This appeal is accordingly dismissed. We award costs here and below to the respondents, to be taxed in default of agreement. On the way forward and in order to bring the current impasse to an end, we are compelled to give the necessary guidance. This is that the Musokotwane royal family members must urgently constitute an electoral college and convene a meeting to be attended by all stakeholders on the basis of the previous meetings held between 5th July 2008 and June 2011, to select a candidate to fill the vacant throne of Chief Musokotwane. M. S. MWANAMWAMBWA DEPUTY CHIEF JUSTICE J46 SUPREME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE