Matthews Musona and Ors v Kausa Mwachindalo and Anor (Appeal No.11/2019) [2020] ZMCA 175 (22 April 2020)

IN THE COURT OF APPEAL OF ZAMBIA ; HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No.11/2019 BETWEEN: MATTHEWS MUSONA LINGSON PATAMA JACKSON SHALUKYA NYANGU HEADMAN MUSANSHIKA AMON CHIKWELETI ACTING HEADMAN KABANDI KENNETH CHIPUNGU FICKSON CHIKWELETI t APR 2024 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT 7TH APPELLANT gTH APPELLANT AND KAUSA MACHINDALO FELIX KANDOLO 1 STRESPONDENT 2N°RESPONDENT I Coram: Makungu, Chishim.ba a ~d Ngulube JJA On 1 I th November, 2019 and 22,nd April, 2020 ; For the 1st to 3 r d Appellants: Mr. Moonga ofTemb1 Ngulube & Associates For the 1s t to 5th Appellants: Mr. F. Besa of Frida~ Besa & Associates For the 1s t & 2 nd Respondents: Mr. K Musabande~u of M. M & Associates JUDGMENT I Makungu, J. A delivered the judgment of the court. Cases referred to: 1. Roland Leon Norton v. Nicholas Laston (201;0) Vol. 2 ZR 358 2. Kojo v. Bonsie (1975) WLR 1223 : 3. Attorney General v. Marcus Kampamba Ac~iume (1983) ZR 1 ! ! 4. Nkhata and Four others v. The Attorney General (1966) ZR 124 5. Bell v. Lever Brother (1932) AC 161 i I 6. Mususu Kalenga Building Limited & Anot1er v. Richmans Money Lenders Enterprises SCZ No. 4 of 1999 ; 7. Rodgers Chama Ponde and 4 Others ; u. Zambia State Insurance Corporation Limited (2004) Z. R. 151 1.0 INTRODUCTION 1.1 This appeal is against the judgm nt dated 5 th July, 2018 passed by Mrs. Justice M. S. Mulenga as she then was concerning the Chieftainship wrLgle amongst the Soli Shamwifwi clan of Rufunsa District of Zambia. Initially, the 1st to 3 rd appellants who were plai tiffs in the court below lodged an appeal under CAZ/08/ ,72/2018. The 1st to 5 th I I defendants also appealed under ; CAZ/08/ 181/2018. The i ; appeals have since been consolidated as they relate to the same judgment of the High Court. 1:he 6 th and 7 th defendants f are now the 1st and 2 nd respondents! respectively as they were cited in both appeals. 2.0 THE PLAINTIFFS' CASE 2.1 The plaintiffs' case rested on the evi I ence of 7 witnesses. PWl was Matthews Musona the contendL to the throne, PW2 was I Patson Mwachikota the village headman of Shatubi Village, I ' PW3 was Daniel Mwape the DeP:uty Village Headman of Shatubi Village, PW4 was Jim Kali~a a Village Headman of Mwamulondo, PW5 was Judge Edlward Luputa Musona a ! i -J2- member of the Kashimbi Royal j Family, PW6 was David Musona from the Kashimbi famil , and PW7 was Chikondi Banda, the Chief Profiler. In brie~, their evidence was as follows: The chieftainship of Bundal unda originated from the . I Nyangu clan which came from the Kola farm of Luba- Lunda Kingdom. The matriarch of the c1l was Mukunkutiwa the woman who bore a daughter nam~d Lutangu. Lutangu had I three daughters; Firstly, Tubi the i ancestral mother of the I Tubi/Kalifu royal family; Secondl, , Nyemba, the ancestral mother to the Kashimbi royal familyl and thirdly Nsungwe, the ancestral mother to the Mulonga r i yal family. These are the three royal families that are f ntitled to inherit the Bundabunda chieftaincy because u r der the Soli custom the I ' matrilineal lineage inherits the chieftaincy. There was a I ! rotation of succession to the thf one amongst the three I i lineages. Where the family which i as supposed to take over had no suitable candidate, they wo¥ ld ask the other families ' to proffer a candidate. All the plaintiffs in this case are from the Kashim bi royal family. 2.2 They stated that the order of successil n was as follows: 1. Mboshi of the Mulonga family. I -J3- 2. Chimapepe of the Kashimbi family. 3 . Shakanda of the Mulonga Family. 4. Mubamba of the Tubi/Kalifu family. 5. Kacheta of the Tubi/Kalifu family. 6. Selemani of the Mulonga family. I 7. 1951 Lufwaneti Mutukutuku of the + ulonga family. 8. 1973 Jackson Chipungu of the Muloh ga family. I 9. 1980 Bernard Chipungu of the Mulo+ga family. 10.1999 Patrick Mambo Chakalashi of ~he Mulonga family. 2.3 Following the death of Chief Clp.akalashi I in 2013, the chieftaincy was supposed to go to tlhe Kashimbi royal family. I However, the Mulonga family insist s that the chieftainship I belongs only to them . This has br~ught about the current I succession dispute. 2.4 The plaintiffs' further evidence was that Chief Bundabunda is supposed to be selected by the famil~ which is taking over the throne. The installation of the succe4sor to the throne is done in the presence of neighboring chlefs, Senior Chieftainess I Nkornesha and government officials. i 2. 5 When the three clans reached a dead~ock as to who should be the next chief, the Mulonga famil~ went ahead to install -J4- I [ I I ! Fickson Chikweleti as Chief Bund?-bunda. When installing I him, the traditional procedure wa~ not followed, instead a I voting system was introduced and th;e purported Chief was not placed in the shrine. In addition, thf Chamakamba Clan that i installs chiefs, did not install him atid the government officials ! I were not there, which made it irregular, i I I 2.6 Further evidence was that there ar~ two shrines: One is open and only has a roof and is taketj as a grave. It currently I contains twelve (12) clay pots sign~fying the chiefs who had reigned before. The other is enclosed and has a bow and ten I I (10) arrows signifying chiefs who had been on the throne. There is a discrepancy in the total number of clay pots and I arrows because two chiefs, Chibufre and Malambo, had died while acting as chiefs ( caretaker chiefs). The ref ore, they both I ! had graves in the shrine but no atrows as they were neither I i confirmed nor installed as Chiefs. 2. 7 On 29 th August, 2013 the Tubi t{alifu and Kashimbi royal l families entered into a memorandum of understanding to i I which the 5 th defendant (Kausa MJchindalo) on behalf of Tubi Kalifu family appended his signature. The purpose of the memorandum was to show thaf the principle of rotation I ! I I -JS- I should continue among the Mula ' ga, Kashimbi and Tubi Kalifu. On 30 th August, 2013, Senior Chi9ftainess Nkomeshya and I i 2.8 Chieftainess Shikabeta sat to hear t~ e respective claims of the three families and it was confirmeti that the three families I were eligible to the throne . In the m ~eting, the Mulonga family ! did not dispute that the other two families qualify, but they I refused to rotate the chieftaincy. The two Chiefs: Nkomesha I I and Shikabeta; then decided that / the deadlock should be settled by having an electoral coll1ge of headmen to decide who would ascend to the throne a was done in the past by I the Mulonga family . 3.0 On 31 s t August, 2013 the I thref families selected their preferred candidates. The Kashimtjis selected David Musona (PW6), I the Tubi Kalifu selected I Kausa Muchindalo (5th i defendant) and the Mulonga selec~ed Fickson Chikweleti (7 th defendant). However, the elections lwere not held because as I I soon as the meeting was convei/ied, individuals from the I I Mulonga family disrupted the proc, ss by threatening violence. i The Mulonga family on their own, 1! ter purported to install the I i 7 th defendant and flouted the tr~dition requiring that the -J6- i installation be done in the presen~e of senior Chieftainess i Nkomeshya, other senior Chiefs and ~l the families. I 3.1 The Kashimbi family selected DaviJ Musona to ascend the I throne in line with the traditions a4d customs which require i I that he must be a matrilineal meµiber of the royal family selected by the family itself. The plaintiffs prayed that since i I I the Ka shim bi royal family had been ;on the throne for the least number of times, the Court should ! declare David Musona as I I I the only eligible individual to ascend! to the throne. I I ! 4.0 THE l st to 4 th and 7 th DEFENDANT'S CASE 4.1 The 1st to 4 th and 7 th defendants I represented the Mulonga I I royal family. Their case rested on the evidence of two I witnesses: DWI Kenneth Chipungu and DW2 William Ngeleni. 4.2 In summary, their evidence was t/ at only the M ulonga royal family is entitled to ascend the thro/ne following the matrilineal I I I lineage. That the origin of their liineage can be traced from Mukunkutiwa who gave birth to t~ e first Chief Bundabunda, Mboshi who had other siblings namely, Shakanda, Mubamba i I and Nkobama. Mboshi's sister, L! tangu had two daughters, Nyemba and Nsungwe. Chief Selerrl.ani was the son of Nyemba. ! -J7- I Nsungwe produced the Mulonga fam/:ily which included Chiefs Lufwaneti, Jackson Chipungu, Beh ard Chipungu, Patrick Chakalashi and Chief Fickson Chikweleti. The defendants listed the names of the past nine (9) successive chiefs as Mboshi, Shakanda, Mubamba, Nkobama, Selemani, Lufwaneti, Jackson Chipungu, Ben~d Chipungu and Patrick I Chakalashi. They disputed that Ch~mapepe was a chief and I I that Mubamba was from the Tubi Kcilifu family. 4.3 During the installation of a chief, th~ Kashimbi and Tubi Kalifu families are not supposed to be present, and they do not play any role in the installation of ~ chief. That is why the I defendants refused to heed the ad!vice of Senior Chietainess I I I I Nkomesha that the three families 1 negotiate the succession issue. 4. 4 It was further stated that Fickson/ Chikweleti was chosen by i I the Mulonga royal family as he is ~ Mulonga. His installation was in accordance with the lalld down procedures and traditions. It was not necessary for Senior Chieftainess Nk omes a h to atten dh . t e 1nsti:li ation ceremony. Th e l,l . I government officials were invited / but decided to stay away from the ceremony. -JS- I I I I I I I I. I I 4.5 The shrine has ten clay pots representirig the past chiefs. There had been nine (9) Chiefs excluding ChiL apepe and all of them ! hailed from the Mulonga family. 5.0 THE 5 th and 6 th DEFENDANT'S CASE 5.1 The 5 th and 6 th Defendants represente/d the Tubi/Kalifu royal family. They called four witnesses: Do/3 Kausa Mwachindalo I j Senior Headman Shagobeka (also thJ 5 th defendant herein), ! DW4 Grace Namukoko Kanyanta Actih g Director Human and I I Administration at Chongwe Municipdl Council, DWS Chiteu I I I Elina Shatubi and DW6 Felix Welek Kandolo from Tubi Royal Family Establishment. I 5.2 DW3's testimony was that he hails froiJn the Tubi Kalifu lineage I : of the Shamifwi Royal Establishment and he belongs to the Nyangu clan. The family tree begatj with a woman named I Chitambo who had three daughters, namely, Malunga, Tubi and Nyasenga. These three comprisJ the royal families that ascend to the Bundabunda throne. *alunga was the mother I of the first Chief, namely Mboshi. Mlalunga had one child, a I son. As a result, there were no othet'j people to ascend to the throne from this lineage as the /shamifwi succession is -J9- matrilineal. Mubamba who was the ~rd Chief Bundabunda, also known as Nkobama or Shikam~longa was Tubi's son. I Tubi- had two other children, a daughter Chantola and a son Kacheta who later became the fourth fhief. Chantola had two daughters, Mayuka and Chiteo. Ch4 eo was the mother of Nyemba who was the mother of the f'fth Chief Bundabunda Selemani. Mayuka was the mothe~ of Lumina, the first headman of Shangobeka village and a daughter named Kalifu, thus the Tubi-Kalifu lineage. Nyasengcl gave birth to Shakanda I the second Chief Bundabunda. NyasJ nga' s other child was a daughter by the name of Sungwe who, gave birth to Nyamalao, Mulonga, Kaluba and Mwanambo. Nyamalao's son was I Lufwaneti the sixth chief and Mulongh. had a daughter named I I Sambwa who was the mother of ~ackson Chipungu, the I seventh Chief Bundabunda. Mwanatnbo was the mother of Bernard Chipungu the eighth Chief ~undabunda as well as a I daughter named Mafuluza Muchep1le whose daughter was i Mwanamusa Rabecca, the mother to Patrick Chakalashi the I I I I I I ninth Chief Bundabunda. 5.3 DW3 stated that the Kashimbi line$,ge falls within the Tubi family and are children from the m~e lineage. Lumina had a I -JlO- I I son by the name of Ngobeka ap.d hence was called Shangobeka. Lumina's first grandsdn, Chipungu, married Musowe and had a daughter by Jhe name of Kashimbi Lashemwa from whom the Kashimbi fL ily hails. I 5.4 DW3's further evidence was that undet Soli custom, the Chiefs I I are supposed to hail from Kalifu the s!ister of Lumina because inheritance is matrilineal. Therefore , I the Kashimbis' are not eligible to ascend to the throne and Chimapepe was never Chief Bundabunda. The Chiefs from ;Tubi Kalifu family were I Mubamba, Kacheta and Selemani. 11l e sixth to ninth Chief Bundabunda all came from the Mulon~a lineage because when Lufwaneti died, the Mulongas decided to reign again without I having proper discussions with the ot ! er members of the royal I families. 5 .5 DW3 admitted having signed the joint r eport by the Tubi-Kalifu I and Kashimbi families despite it I being contrary to his evidence. He stated that he endorsed lt in order to prevent the installation of the new chief by the Mulonga family and to ensure that there was rotation of the chiefs. Initially, the Kashimbis' were on the same side! as the Tubi Kalifu in I -Jl 1- I I fighting the Mulongas for the throne. I However, it turned out I that the Kashimbis had reneged on the agreement and had i i put forward a person of their own as sli ccessor to the throne. 5.6 DW3 stated that he did not recogniz Fickson Chikweleti as Chief Bundabunda because the installl tion procedure was not followed. I I I I I i 5.7 DW4 the representative from the Jouncil stated that as custodian of records, the Council is rlquired to be present at the succession meetings. Upon se!L tion of a Chief, the I i Council Secretary submits to the P9rmanent Secretary, the following documents; five copies of the family tree, minutes of I ' ' the meeting and the vital statistics fo} the selected chief. The Permanent Secretary then makes a t ecommendation to the Republican President to have the Chieif recognized. A statutory instrument is issued to signify the rec~gnition. I 5.8 DW4's further evidence was that the first family tree was filed i I in 1972 and was verified and stamped by the council while the second was filed in January, 2017 but has not yet been verified with the families according ~o laid down procedure. The family tree filed in 1972 does riot reflect the Kashimbi I -J12- family nor does it show that there wcis a Chief Chimapepe as the second chief is indicated as Shakainda and not Chimapepe. I 5.9 Further evidence by DW4 was that there was a rotational system of succession amongst the IMulonga and the Tubi lineages as evidenced by the chiefs l~sted in the 1972 family tree. Currently, only the Nyasenga/M+ onga and Tubi lineages are eligible to ascend to the throne 'thich is matrilineal. The Kashimbi's were not part of tJ e Bundabunda royal establishment as they hail from the paternal side within the I I Tubi lineage, while the royal family ct mes from the maternal side. J 5 .10 It was the 5 th and 6 th defendants evider ce that there had been I nine past chiefs and the ref ore the clay1 pots in the shrine were supposed to be nine and not ten. 6.0 DECISION OF THE COURT BELOW I 6.1 The findings of the court below were asll follows; a) That the Bundabunda family tree dat , d 17th April, 1972 was validated and a true depiction of wha~ it communicates. The I family tree does not specifically state l he ancestral matriarch I -J13- of the Bundabunda family but tabulates the mothers of the I first three chiefs Malunga, Nyasenga a\nd Tubi. b) A thorough scrutiny of the family tret indicates that it agrees materially with the version advanc~d by the 5 th and 6 th defendants in that the names they ~ lege to be the ancestral matriarchs of each lineage are akin to the names stated in the family tree. This is contrary to the vi rsions advanced by the i Kashimbis' and Mulongas' in that some of the matriachs stated by the plaintiffs witnesses (KJ himbi) and those given by the 1st to 4 th and 7 th defendants (Mulongas) do not appear I on the family tree produced by DWfl-, but they appear as I I mothers to later chiefs. c) The family tree filed in 1972 show~ the first three chiefs Mboshi, Shakanda and Mbamba as \ being from Malunga, I Nyansenga and Tubi. This supports thb claim by the plaintiffs and 5 th and 6 th defendants that the So[i Shamifwi tradition of ascendancy to the throne of Chief Bl)indabunda has in the I past been on rotational basis among thl three eligible families. I d) The family tree shows the 4 th and 5 th \ chief as Kacheta and Selemani Chanyabweya separately on tp.e side but below Tubi I i without indicating which of the three li~ eages they were from. I -J14- I I The mother of Selemani was Nyem]ba. The document also I separately outlines in detail the child}en Nyamao, Kaluba and I Mwanamsao who are referred to as the 1st , 2 nd and 3 rd house i I i ' respectively. e) The sixth chief Musona, the son of N~amao only had sons and no daughters and it follows that theri would be no successors to the throne from this line of the 1st r ouse after the demise of ' I the 6 th chief because the chieftainshi4 is matrilineal. f) Musona chose Thomo Maluku and Cr imota as his 1st and 2 nd choice successors. The mother of b[oth Thomo Maluku and Chimota was Kaluba as the matriarch. Kaluba had children including two daughters Martyenga and Nankole. I g) Mwanamsao the mother of the 3,a hor se is shown to have five children out of whom one was a daughter called Mukoka, it is not clear from the family tree where the Mulonga, Nyasenga I and Tubi families belong in terms of the 2nd and 3 rd house. I h) The first six successive chiefs J ere Mboshi, Shakanda, Mubamba, Kacheta, Selemani Chan) abweya and Musona who was on the throne in 1972 when thl family tree was verified and stamped by the District council. I -J15- i) From 197 3 / 197 4 to date, the chiefs who were on the throne were Jackson Chipungu, Bernard C ipungu and Chakalashi. Jackson took over from Lufwaneti. There is no mention of Musona who is indicated as chief ho was on the throne during the period when the 1972 family tree was lodged. Nevertheless it is clear that out oft e three original lineages, the first one expired due to the fact {hat at some point, there I ! were no female children to continue I the lineage. This means that there are currently two lineages uhat are eligible to ascend I I I i I I to the throne of chief Bundabunda. 1· j) If Musona is acknowledged, the tot , number of chiefs who have ascended to the throne of C~ief Bundabunda are 10 instead of the 9 mentioned in the family tree. I I i i k) The assertion by the 1st to 4 th defendl ts that the 10th clay pot and spear represent the 7 th defend It is untenable in light of the general evidence that the clay pots and spears in the shrine represent deceased chiefs. 1) With regard to the claim that the Kas imbi family is one of the three royal families that are eliJ ble to ascend to the chieftainship and that Chimapepe a one of their own was a second chief Bundabunda, the trial · udge found that in line -J16- with the outlined chiefs, the plainJ fs did not prove to the i I required standard that Chimapepe wk.s ever a chief or that he ascended to the throne from the Kash)imbi family. m) The lower court found that the clalim that all chiefs hailed ! I from the Mulonga lineage was at vJ ance with the family tree dated 12th April, 1972 which indicates that the 1st , 2 nd and 3 rd chiefs hailed from three different m triarchs which points to the fact that there was rotation amongst the three lineages. n) The trial judge did not accept the 1st ~o 4 th and 7 th defendant's assertion of intra Mulonga family rotJ tion. o) The trial judge ordered that success~on be rotational between I I the two remaining lineages that are ! eligible to ascend to the throne. p) The trial judge further found that t e evidence showed that Chakalashi and at least three suc1essive chiefs before him hailed from the Mulonga lineage an, the system of rotational succession dictates that the success Ir ought to now hail from the Tubi kalifu lineage. q) The plaintiffs claim that the new f hief Bundabunda must come from kashimbi family was dismissed. i -Jl 7- I l r) The 5 th and 6 th defendants counter~laim succeeded and the court ordered that the Bundabu1 da chieftainship be on ; i I rotational basis between the Mu[onga and Tubi Kalifu lineages. The installation of Fict on Chikweleti by the Mulonga lineage was annulled. It was ordered that the next chief should come from the Tubi-K~ ifu lineage who should convene to choose the successor to the throne in line with the ! ! I Soli Shamifwi tradition and custdm of the Bundabunda chiefdom. 7.0 THE 1st TO 3RD APPELLANT'S GR UNDS OF APPEAL AND ARGUMENTS 7. 1 The 1st to 3 rd appellants appeal 1s based on the following grounds: 1. The learned trial judge misdirected herself in law and fact, when she disposed of the appellants ~ntire claim in the suit, by wholly relying on the contents of the Bundabunda family tree dated 17th April, 1972 as full and coT plete historical lineage of Chief Bundabunda when the sam, contained contradictory statements and its authenticity was d ~scredited at trial. -J18- 2. The learned trial judge misdirected !herself in law and fact, when she failed, refused and or negl<i;;cted to take into account the appellants evidence relating to ti historical origins of the i Chief Bundabunda matriarch but instead conveniently opted to entirely rely on the Chief Bundabun~a family tree dated 1 7th April, 1 9 72 which document was quektioned and impugned at trial. 3. The learned trial judge misdirected hi rself in law and in fact, when she found that the appellants family I I lineage was patrilineal and they consequently could not ascend to the throne I of Chief Bundabunda, contrary to th1I ample evidence at trial proving such entitlement. 4. The learned trial judge completely mis.directed and misapplied ! the undisputed facts before her, when upon finding it correctly that the ten (10) clay pots in the shrine\represented the past ten ( 1 OJ dead chiefs, she proceeded to ma Me a wrong conclusion by I double counting Musona and Chief Luf aneti as separate and distinct persons, when inf act it was ant and the same person. 5. Having made a wrong conclusion t~at Musona and Chief I ! Lufwaneti were separate and distinct ~ ersons, the learned trial judge fell into a complete grave ent -J19- by finding that chief I \ Chimapepe did not exist and consequ~ntly could not have been I the second Chief Bundabunda. 7.2 On ground one, the appellants arJ ed that the family tree I dated 17th April, 1972 which the trial 1udge relied on contained I I contradictory statements and its au~henticity was discredited in the following ways ; I i I I I I I 1. The Verification Report which valid~tes Chief Bundabunda' s I Family Tree dated 17th April, 1972 /was not produced before the trial Court to prove that indped the said family tree I I underwent a validation process pripr to the stamping of the i I I said document. 2. The Minutes taken during the verification of the 1972 family tree were not produced in Court to show that there were consultative meetings with traditioµ al authorities to come up I I I with the said family tree as per the ~tandard requirements and norm. 3. DW4 could not recall the name bf the relevant officer who prepared the verification report ddspite telling the Court that I she went through the said report. / 4. The 1972 family tree indicated tl:/iat Chief Musona who was allegedly Chief at the time, had no i I I minated one Thoma Maluku -J20- / I ! I I I I I I i I ! I i I I and Chimoto as his first and seco~ d choice of successor contrary to the common evidence by the parties that a siting I ! I chief in the Bundabunda Chief dam / does not nominate his I I successor. I I I 7.3 In view of the above, counsel submit~bd that the finding made by the trial court that the Bundabun/da family tree dated 17th April, 1972 was validated and a t~ue depiction of what it communicates and the subsequent f eliance on the same by the trial judge in arriving at her d1cision, was made in the I I absence of relevant evidence; as apt~y demonstrated and that I on a proper view of the said evidencJ no trial court could have I ! I reasonably arrived at the said finding . I I I 7.4 In support of grounds two and three, counsel submitted that the oral and documentary evidence I led on behalf of the 1s t to 3,d appellants relating to the histL ical origins of the Chief I I Bundabunda's matriarch was h ot discredited by the I I I I I I ! defendants'. The appellants also led evidence to the effect that the Tubi kalifu family had a membrandum of understanding I I signed with the Kashimbi family / where they acknowledged that the Kashimbi family was part ? f the three royal families . i -J21- 7 .5 Evidence in rebuttal of the samei was not only lacking I credibility but was also contradictory/ in that the person who I signed the said document admitted ~o be a liar before court. Counsel relied on the case of Rb land Leon Norton v. i I ! ' Nicholas Laston 111 where it was held /that; I "It is trite that a party to a cont~act is bound by it even though it may not have been in the interest of the party I entering into the contract. Even ~ bad contract, if it is I valid, is binding." 7.6 It was further submitted ! ! I ! that / the memorandum of understanding signed by the K~shimbi and Tubi-Kalifu i families constitutes a legally binding agreement between the I parties irrespective of the fact that i it may not have been 1n . favour of the Tubi-Kalifu family. Therefore, the court was duty bound to enforce the agreement. 7.7 Counsel for the appellants pointed i ut that PWS led evidence at trial in form of a chart which a p pears at page 238 of the I I record of appeal depicting how the k ashimbi, Tubi Kalifu and Mulonga families inherit names o~ their dead relatives. The I trial judge ignored this vital piece! of evidence which shows that members of the Kashimbi fa.tinily are not patrilineal as I ! I I -J22- I I ! i I I I ! I I I I ! claimed by the respondents but matr~lineal and this evidence I was not discredited at trial. Since ~ embers of the Kashimbi can inherit names of dead relatives from the Mulonga family I i i and vice versa, based on the matrilineal factor, they should not be denied the right to ascend , to the throne of Chief Bundabunda. 7.8 Counsel further submitted that according to the case of Kojo I I I i v. Bonsie 121 the judge should have en deavored to demonstrate and justify why she opted to rely om the respondent's family I I tree as opposed to the 1st to 3 rd appellants evidence. Especially i I that the said family tree was heavily discredited at trial as demonstrated in ground one . Coun;sel therefore urged us to i I interfere with the trial court's finditjg of fact to the effect that i the Kashimbi family were not par{ of the royal family and i therefore not entitled to the Bundab/unda chieftaincy. Reliance was placed on the authority of Attl rney General v. Marcus Kampamba Achiume 131 where it wJ s held that: I "An unbalanced evaluation of th~ evidence where only the I i I flaws of one side but not of the other are considered is a misdirection which no trial Oourt should reasonably make and entitles the appeal Court to interfere." I i I I I I -J23- I 7.9 In support of ground four, it was , ubmitted that the lower court correctly observed that the te9 arrows and clay pots in ! the shrine represented the total n1mber of chiefs who had ascended to the throne of Chief Buindabunda. However, the I 1972 family tree indicates a contr~ position: nine instead of ten Chiefs. Musona who appears inl the 1972 family tree as Chief Bundabunda number 6 was never mentioned by the i respondents. Instead, the common evidence was that Chief Bundabunda number 6 was Lufw~eti and that Jackson ' Chipungu who was chief Bundabu~ da number 7 took over from Lufwaneti. The above propositibn does not only call into I question the authenticity of the 1972/ family tree but also leads to the conclusion that Musona and J ufwaneti are one and the same person but were counted ll distinct persons. This confirms DW6's evidence that Musqna was Chief in 1972. If Musona and Lufwaneti are one and !he same person, then the number of chiefs reduces from jen to nine which gives credence to the 1st to 3,d appellant't evidence and contention that the extra arrow and clay pot 1n the shrine belonged to Chimapepe from whom the 1st or 3 rd appellants claim their I entitlement to the throne of Chief Bundabunda. I I I I -J24- 7.10 In view of the foregoing, it was , ubmitted that the lower court's findings should be interfere1 with as they were based on a misapprehension of facts. coJ nsel also submitted that I I since the Kashim bi family has he11d the throne only once through Chimapepe and the other ~ ilies have held it more than once, based on the principle Jr rotation, the next Chief I Bundabunda must come from the Ki shimbi family. 8.0 THE 4TH TO gTH APPELLANT'S GRdUNDS OF APPEAL AND I ARGUMENTS 8 . 1 The 4 th to 8 th appellant's appeal 1s based on the following grounds: l I I / 1. The learned trial Judge erred in laj and in fact when she held that the Bundabunda chieftancy ~s held on rotational basis I between the Mulonga family and the Tubi Kalifu in the face of I I undisputed evidence showing that the last four consecutive I chiefs, namely Lufwaneti, Jac/kson Chipungu, Bernard i I Chipungu and Patrick Chakalashi / were all from the Mulonga family. I / 2 . The learned trial Judge erred in lhw and fact when she held I I that one of the clay pots at the sh~ ne represented a purported Chief Musona and not Chief BuniJ!,abunda, Fickson Chikweleti I -J25- I I .. when the undisputed common evidenf e of all the parties is that I there has never been a Chief Mus f na on the Bundabunda throne. 8.2 In support of ground one, it wias submitted that the respondents needed to prove that the ascendancy to the Bundabunda throne was on rotatim:jlal basis. In proving this assertion, they were duty bound tq show that in this case where traditional history is passed ln orally, the latest trend supported their claims. Counsel relif d on the case of Kojo v. I I I Bonsie 121 where it was held that: i "Where there is a conflict in trJditional history, which has been handed down by word of mouth, one side or the I other must be mistaken, yet botli may be honest in their belief. In such a case, demeanor of witnesses is of little guide to the truth. The best way is to test the traditional history by reference to the fa bts in recent years as I i established by evidence, and by ~eeing which of the two competing histories is more probq.ble." I I 8.3 Counsel contended that, reference ~o recent facts in this case clearly established that there has n }t been any rotation in the -J26- I ! recent past. All the witnesses before t ourt testified that it has I I I I only been the Mulongas' who have ~scended to the throne in the time that they have all been alivtj. The trial court therefore I I erred in referring to the 1972 family / tree when it contradicted the testimonies of all the parties and/ other available evidence. I I I 8.4 Counsel also relied on case of A./ G v. Marcus Kapamba I I I I Achiume 131 it was held that: "An appeal Court will not rever$e findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon fl misapprehension of the f I facts or that they were finding~ which, on a proper view of the evidence, no trial Court c~n reasonably make." 8.5 Counsel submitted further that bontrary to the trial judge's I I comments about DW4's evideb ce, DW4's evidence was I I challenged by the appellants Jnd the Chief Bundabunda / I I I I I ! I I I I I I I I I I I I family tree dated 17th April, 197t2 was exposed as containing contradictory statements and i~s authenticity discredited in the way stated by the 1s t to 3 rd af pellants. I I I I I I I I -J27- I 8.6 In support of ground two, it was argued that none of the witnesses testified that there was evJ r a Chief Musona on the throne even though the trial court in eliminating Fickson Chikweleti from the traditional clay If ots stated that one of the I clay pots represented Chief Musona.1 He therefore, urged us to uphold this ground of appeal and Hold that the last clay pot I I i i I I I I represents Fickson Chikweleti who + as duly installed as Chief I Bundabunda. 8. 7 It was further submitted that anp ulling the installation of Fickson Chikweleti as Chief Bundabunda despite the evidence I I I I that there was no rotation in the as~endancy to the throne was erroneous. The prayer was I th~t Fickson Chikweleti be reinstated as Chief Bundabunda. I I / 9.0 RESPONDENT'S HEADS OF ARGUMENT IN RESPONSE TO I I THE 1 ST TO 3RD APPELLANTS ARQUMENTS 9.1 In response to ground one, it was submitted that the trial I i I I I court was on firm ground when if held that the Bundabunda I family tree dated 17th April, 19712 was validated. DW 4 stood I i I I her ground during cross examination and the 1972 family tree I was not successfully discredited. I -J28- 9.2 The appellants did not produce any ievidence to suggest that the report was never prepared or does not exist. Failure by the I l respondents to produce it, does n Jt entail that it is non- existent. DW4 testified that the mir utes of the verification ' I I meeting existed. i j 9.3 Counsel submitted that the fact that 1DW4 could not recall the I name of the officer who verified the ~972 family tree, does not entail that such an officer does not e~ist. i ' I 9.4 The three parties to the action gave[ different versions of the i lineage of the Bundabunda chiefdom , It is highly probable that I i the evidence may not contain the f complete history of the Bundabunda chiefdom. The appellan ts have failed to establish that this case warrants the reversill of the findings of fact . I I Reference was made to the case of Nkhata and Four others v. I The Attorney General l4 l where !the principles on which findings of fact can be reversed were I outlined as follows: "A trial Judge sitting alone with.out a jury can only be i I reversed on fact when it is positif ly demonstrated that:- I -J29- a) By reason of some non-directi1n or mix-direction or otherwise the Judge erred in accepting the evidence which he did accept; b) In assessing and evaluating the evidence, the judge has i taken into account some matter which he ought not to have taken into account, or f ailti:d to take into account, I some matter which he ought to hr,,,.ve taken into account; or I I I c) It unmistakably appears from th1 evidence itself, or from the unsatisfactory reasons gi"ien by the Judge for I accepting it, that he cannot have !taken proper advantage of his having seen and heard the Witness; or I I I d) In so far as the Judge has !relied on manner and demeanor, there are other circutrstances which indicate I that the evidence of the witnessr s which he accepted is i not credible, as for instance, whf re those witnesses have on some collateral matter given dn untrue answer." i 9 .5 It was contended that none of the conditions outlined above apply to this case. 9 .6 On grounds two and three, couns6rl submitted that the court ! i I was faced with the task of deterrhining which of the three ! -J30- versions of history was probably / true on a balance of probabilities and it warned itself of the problems related to such evidence. The 1st to 3 rd appel~ants' want the court to I believe their version on the basis of a! handwritten chart which I I they submitted which could have be~n written by anyone. The evidence on the chart was not cor roborated by any other I I independent party. I 9.7 The 1st to 3 rd appellants' further submitted that the court below should have considered the memorandum of understanding but at trial, DW3 who signed it renounced it I saying its contents were a lie and l at he merely endorsed it I as a strategy to defeat the 5 th I to 6 th appellants. The memorandum of understanding exe4uted in 2013 cannot alter i a historical fact. It has been deterµiined by the court below I i that the 1s t to 3 rd appellants are n dt eligible to ascend to the throne and DW3's execution of th~ documents cannot alter I that fact. I 9.8 In the alternative, counsel submittetl that the memorandum of understanding was executed under a common mistaken belief throne. -J31- 9. 9 He ref erred to the case of Bell v. ~ ever Brothers (5l on the i definition of a mutual mistake , thus: ! "A mutual mistake as to some fac / which, by the common intention of the parties to a contt act, whether expressed I or implied, constitutes the * nderlying assumption without which the parties wou fd not have made the contract they did, and which, I therefore, affects the ! ' substance of the whole consid~ration, is sufficient to render the contract void." I 9.10 Counsel further submitted that tfue 1972 family tree was produced by Chongwe Municipal Council, an independent I party. The family tree was prepared and verified in 1972 well before the current dispute arose. / Therefore, going by the authority of Kojo v. Bonsie '21 the / traditional history should have been tested by comparing the competing histories to see I which one is more probable. 9. 11 The lineage that dates back as J ' as the 17th century was tested against the 1972 family trJ e and the court correctly determined that the respondent's vtjrsion was more probable. I ! i I I I -J32- 9.12In countering grounds four and five, it was submitted that the 1st to 3 rd appellant's submission ttjat Chiefs Musona and I I Lufwaneti were one and the same p 9rson was not supported i I by any evidence on record. The clay l pots referred to cannot prove the existence of the alleged Cpief Chimapepe because j the evidence on record did not indic} te that the names of the I Chiefs were written on the pots. I I 10.0 RESPONDENT'S HEADS OF ARGUMENT IN RESPONSE TO I THE 4 th TO 8 th APPELLANTS ARGUiiiiENTS I 10.1 To counter the first and second gro~ nds of appeal, counsel submitted that the 4 th to 8 th appellants lamentably failed to I prove their claims. 10.2 The 4 th to 8 th appellant's submissiod that since the last four I chiefs came from the Mulonga lineake, there has never been rotation, ignores the fact that the Bundabunda lineage goes as I I far back as the 17th century andl there was evidence to I establish that there was rotation of [chiefs among the eligible families. 10.3 The 4 th to 8 th appellant's submis:sions that none of the witnesses presented any evidence dn the existence of Chief -J33- Musona was not correct, as the lf]72 family tree clearly indicates Musona as the 6 th Chief. 11.0 THE 18 T TO 3RD APPELLANT'S REP1Y 11.1 Counsel reiterated that all the tHree families, Mulonga, Kashimbi and Tubi-Kalifu are r~lated and follow the matrilineal system as can be seen from inheriting (succession) of names from each other's familf before and after the disputed Bundabunda family tree of 1972. Succession to the throne is also matrilineal and the ru~es of inheritance among the Solis are the same, whether it relates to inheritance of an ordinary name or ascendance to the th rone. The ref ore it was a misconception on the part of the coulrt below to find that the I I I Kashimbi family follows the patriline} system contrary to the evidence. 11.2 The memorandum of understanding signed by PWl on behalf of the Kashimbi family and DW3 onJibehalf of the Tubi-Kalifu i family was confirmation of the istorical fact that the Kashimbi are matrilineal and entitled to ascend to the throne of Chief Bundabunda. l ' I ' -J34- 11.3 The argument by the respondents' t}iat the memorandum of understanding was executed under / a common mistake 1s ! purely an afterthought as they did ndt raise this argument in I the court below and they are pro hi bi ted from doing so on I appeal. To fortify this argument, counkel made reference to the case of Mususu Kalenga Building !Limited & Another v. Richmans money Lenders Enterpri5ies 161 where the Supreme Court stated inter alia that: "Where an issue is not raised in the Court be low, it is not I ! I competent for any party to raise itiin this Court." 11 . 4 Further, the fact that the 1972 family j tree was produced by an independent party, should not havf been the basis upon which the court below relied on it. The court's finding that the 1972 family tree was not challenged ;is not correct because it I I I was challenged during cross exartiination. Moreover, the i stamping of the family tree does not ~n itself prove that it was i verified. The verification report and ~he minutes to show that ' all the interested families were cornsulted before the said document was stamped were crucial to the determination of I ! i i I ' the matter. -J35- 11. 5 Counsel reiterated that before settling for the 1972 family tree I as the more probable of the competil g family trees produced ' before court, the court should havel at least endeavored to show why the oral evidence of the ; various witnesses who testified on behalf of the 1st to 3stl l ppellants' coupled with I other documentary evidence which wJ s not challenged at trial, was not more probable as compared ~o the 1972 report which I i quite apart from being discredited als9 contained contradictory I statements. 11.6 He therefore prayed that the appeal f e allowed with costs to the 1st to 3 rd appellants. 12.0 DECISION OF THIS COURT I ' 12.1 Having considered the record of app9al and counsels written and oral submissions , the issues , s we see them are as follows: I 1) Whether or not the Bundabunda CChieftainship system of succession is rotational? 2) Whether the Kashimbi family are throne? I i to the Bundabunda 3) Which family lineage should ascend to the throne? -J36- I 12.2 We shall deal with these questions togf ther as they are related. 12.3 All the families in this case presented divergent histories. The I I Kashimbi and the Tubi-Kalifu families! claim that succession to ' the Bundabunda throne is rotationf , while the Mulongas' claim that it is not rotational as they are the only heirs to the throne. 12.4 The Tubi-Kalifu family claim that the chiefs who have been on the Bundabunda throne from their lineage were Mubamba, Kacheta and Selamani. The Mulongl s' claim that Mubamba and Selemani hailed from the Mulod ga family and not Tubi- ' Kalifu family, while the Kashimbis' s tated that Mubamba was from the Tubi-Kalifu family while s f 1emani was a Mulonga. I The Kashimbis' claim inheritance I to the throne through I Chimapepe whom they say Wfl. S the second Chief Bundabunda. However, both the Mulongas' and the Tubi- I , Kalifu disputed that there was ever J Chief Chimapepe on the i Bundabunda throne. Hence, the cfaim by the Tubi-Kalifu family that the throne should rotatl between them and the I Mulongas'. The Tubi-Kalifu also alle~e that the Kashimbis' are not matrilineal but patrilineal. I i -J37- 12.5 The joint report dated 29 th August,\ 2013 signed by David Musona (PW6) on behalf of the IKashimbi's and Kausa Machindalo (DW3) on behalf of the 1'ubi-Kalifu family shows I that the system of succession was rot ational among the three I families and both the Tubi-Kalifu i d the Kashimbis' want the system of rotation to continue. T:ris report also expressly recognized the Kashimbis' as eligibl, heirs to the throne of Bundabunda. Even the meeting hel~ on 30th August, 2013 I involving the three lineages confirmed\ that hiers to the throne hailed from the three lineages. The \dispute arose when the I Mulonga's were averse to rotation of dhiefs amongst the three lineages. 12.6 We take note that DW3 in his evidencf disputed the eligibility I of the Kashimbis' as heirs to the thr6ne and stated that he only endorsed the joint report beca~ se he wanted to fight I against the Mulongas'. It is trite 1J w that parol evidence cannot alter the contents of a wrid en document. We are I I I fortified by the case of Rodgers ChaJa Pon de and 4 Others v. Zambia State Insurance Corporatir n Limited, 171 where it I was held that: I -J38- • "Parol evidence is inadmissible be'cause it tends to add, I i vary or contradict the terms of I a written agreement I validly concluded by the parties." 12.7 We therefore, uphold the High C urt's finding that the Bundabunda system of succession is rotational. However, we set aside the holding that it is only: rotational between the I Tubi-Kalifu and Mulonga families and \hold that it is rotational ! among all the three eligible royal famh ies being the Mulonga, Tubi-Kalifu and Kashimbi families. I I i I 12.8 The issue of whether the Kashimbi's !are heirs to the throne i can also be resolved by the evidJ nce of the clay pots. According to the evidence from the KaFhimbi family, there are I ' two shrines, one is open and only has la roof and is taken as a I I grave. It contains 12 clay pots signifying chiefs who have I I reigned before. The other is enclosed \and has a bow and 10 arrows signifying chiefs who have bee~ on the throne. There is a discrepancy in the total number o~ clay pots and arrows because two Chiefs; Chibuye and ML arnbo had died while I I acting as chiefs. Although, the Mulongas' claim that the 10th clay pot represents Fickson Chikwele~i, our position is that I this argument in untenable because there was a consensus I -J39- I ,, amongst all the families that these ~lay pots represent the deceased chiefs. Therefore, the 10th clJ y pot cannot belong to a person who is alive and we uphold the lower court's finding I I that the 10th clay pot does not represeb t Fickson Chikweleti as he is still alive. I 12.9 Furthermore, the Tubi-Kalifu and thl Mulongas' arguments that there should only be 9 clay pots ~n the shrine instead of 10 as there have only been 9 chiefs is t ontrary to the evidence that there are 10 clays pots. Our position therefore is that one I of the 10 clay pots signifies Chief Chf rnapepe as the history given by the Kashimbi family that ther~ were 10 past Chiefs is more probable than that of the Tubi-K1 ifu and the Mulonga's: The case of Kojo v. Bonsie 121 applies. 12.10 We do not agree with the trial Judges finding that there was a Chief Musona as the 6 th Chief b4sed on the family tree ', dated 17th April, 1 972, due to the fa1t that she did not take I into consideration the following inconsistencies: 1) The family tree shows that M uson!a was the sixth chief, I succeeded by Jackson Chipungu. l-towever, evidence from the parties shows that the 6 th chief was Lufwaneti who was I -J40- • ' succeeded by Jackson Chipungu r d none of the parties mentioned Chief Musona in their ort-1 evidence. 2) The verification report and the mif utes of the meeting to i prove that all the interested partie~ were consulted before I the said document was stamped wa~ not produced in court. 3) The officer who prepared the verific~tion report (if any) was not mentioned by name or called as ~ witness. 12.11 Due to the aforementioned inconsistencies, we find it necessary to tamper with the findings of the cou1t below as it has been demonstrated that in evaluating the el idence, the trial judge misapprehended the facts, see the case of Nkhata and Four I others v. Attorney General. 141 i 12. 12 We now turn to address the issue of which lineage should rule. The evidence shows that the Mulongas' h r ve ruled six times. The I Tubi-Kalifu have ruled twice while the[ Kashimbis' have only ruled once. There was no evidence that; the three lineages ever agreed to stop the rotation system. It is J1ear that the Mulonga's had held on to the throne against the ~ ill of the others. For these reasons we cannot fault the lower I court for nullifying the installation of Fickson Chikweleti as Chief Bundabunda as the tradition of rotation must be revived in tJ e interest of preserving the soli custom and in the interest of just~ce. -J41- , 13.0 CONCLUSION 13.1 In closing, we set aside the lower cou1t's decision that the successor to the throne should come from the Tubi-Kalifu I ; family and hold that the Bundabund~ chieftaincy should I I rotate to the Kashimbi royal family wf o have duly selected the 1s t appellant as the successor. I i I 13.2 Since this is a matter of public intere~t, we hold that each party should bear its own costs. I I I I I .............. ; ................ J .... . C. K. MAKUNGU ! COURT OF APPEAL JUiDGE ; F. M. CHISHIMBAi COURT OF APPEAL J °iDGE ~ I ••.•••.•••••....••................• ~ ....... . P. C. M. NGULUBE I COURT OF APPEAL JUDGE I ; ; -J44-