Netta Shimwamba Shakumbila v Chimbaba (SCZ 8 248 of 2014) [2018] ZMSC 582 (5 January 2018)

«W. IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA SCZ/8/248/2O14 AND PATRICK CHIBAMBA RESPONDENT Coram: Mambilima CJ, Mallla and Kaoma, JJS on 1* August, 2017, 21-' November, 2017 and 4th January, For the Appellant: I For the\Respondent: Mr. L. Mwanabo of Messrs M. L. Chambers and Mr. C. M. Sianondo of Malambo 86 Company Mr. M. Mutemwa, SC., of Messrs Mutemwa Chambers l JUDGMENT Malila, JS delivered the Judgment of the Court. i i Cases referred to: i 1 J ago v District Court (NSW) (1989) 168 CLB 23 at 75-76 2) Coal & Allied Operations Pty Ltd v Australian Industrial Relations I Commission (2003) 203 CLB 194 at 204 (19) J2 3) Simon Kalaba Chisha, Senior Chief Milambo Benson Kasongo Shapi and Phillimon Mbola, Appeal No. 192 of2007 4) Ted Chisavwa Muwowo Alias Chief Dangolipya Muyombe v Abraham Muwowo Alias Tenwanani Winston Muwowo (Suing as Chairman of the Uyombe Royal Establishment) Appeal No. 115/2014 5) Attorney-General v Achiume (1983) Z. R. 1 6) Galaunia Farms Limited v National Milling Corporation Limited (2004) Z. R. Other Works referred to: 1) Murphy on Evidence, 13th Edition (Oxford, Oxford University 2013) 2) Appellant Practice (Annandale, New Zealand, The Federation Press, 2008) The facts of the present appeal are quite involved. Their full appreciation would entail a walk back in the circuitous history of the Sala people of Mumbwa District of the Central Province of Zambia, in as far as that history implicates the Shakumbila chieftaincy. In this appeal, however, the contest, so to say, is between two parties both I of whom lay claim to being the rightful heir to the throne of the Shakumbila chieftaincy. The factual narratives justifying their claims as captured in the judgment of the lower court now being assailed, are convoluted. The bare bones are as follows. J3 The appellant is a member of the Shakumbila chieftainship royal clan who considers herself to be in the line of succession to the Shakumbila chieftaincy throne. The respondent, who equally considers himself to be in the line of succession to the same chieftaincy, is the reigning chief, having been enthroned following the death of the incumbent chief, Moses Shandapu Shakumbila, in September 2006. The appellant claims that subsequent to the death I of Moses Shandapu, the respondent was appointed by the Mukwashi, i who was senior headman Muchabi, in an acting capacity pending a I search for a substantive successor to the throne. I I She claims further that as a member of the Shakumbila royal I clan, she is in the line of succession to the chieftaincy and she, rather I than the respondent, is properly eligible to be installed as Chief Shakumbila. Her contention is that the respondent’s relationship to i the original Shakumbila was far remote in comparison to hers. Her I father was the son of the original Shakumbila, thus making her the latter’s granddaughter. The respondent, on the other hand, was the original Shakumbila’s great-grand son. J4 According to the appellant, the Shakumbila family tree properly started with a woman called Loongo. Loongo was the biological mother of a number of sons, among them Choongo Shakumbila (the original Shakumbila). Following the death of the original Shakumbila, the line of succession followed his biological sons who succeeded him consecutively. This occurred in the following order: Kabombwe Shakumbila, Shachoonda Shakumbila, Enock I Mwambula Shakumbila, followed by Moses Shandapu Shakumbika, i the last surviving son of the original Shakumbila. It was the i appellant’s assertion that her father, Isaiah Shimwambwa Shakumbila was one of the sons of Choongo Shakumbila. i i Her position is that the next in line to ascend to the throne were I original Shakumbila’s grandchildren, that is, herself and others of her generation. As such, the appellant alleges that the respondent’s ( I ascension to the throne was in violation of the custom and practice . i relative to ascendancy to the Shakumbila throne. This was in view l of the fact that in terms of lineage, the respondent comes after the I generation of the appellant. Further, she contends that he was not I from the patrilineal side of the family, as she. She asserts that the I ! J5 respondent’s father was the son to Saliya Shakumbila, the original Shakumbila’s daughter. He was thus from the matrilineal side of the family. According to the appellant, succession to the Shakumbila throne strictly followed a patrilineal line as seen from the consecutive succession of Choongo Shakumbila’s sons to the throne. In the appellant’s view, the respondent’s appointment was I moreover done by Benson Mwambula Shakumbila, who had no i authority to nominate and install a chief. It was contended that by I practice, tradition and custom, such authority reposed in senior i headman Muchabi of the Sala people, otherwise known as Mukwashi. At the material time, the office of Mukwashi was being held by I i Bedford Muchabi. The appellant underscored the fact that Mukwashi I was clothed with authority to nominate a successor to Chief i Shakumbila, but that he was required to consult and obtain instructions from the royal clan members. I The appellant recounted that following the death of Moses Shandapu Shakumbila, Mukwashi appointed the respondent to act as chief. The respondent thus acted as Chief Shakumbila until 30th September 2007 when he, according to the appellant, was irregularly J6 appointed by Benson Mwambula who had no authority to nominate and instal any person to the throne of Chief Shakumbila. That appointment, it is alleged, was done without consultation or approval of members of the royal family. In a nutshell, the appellant contends that first, the respondent was not in the line of succession to the Shakumbila chieftaincy as he was not within the patrilineal line of succession, and second, that the proper procedures were not followed in his enthronement. i In the lower court, the appellant claimed in the main, the following reliefs: i (a) a declaration that the respondent was not entitled to i be recognised as Chief Shakumbila; I (b) a declaration that the appellant, and her siblings and | first cousins were the rightful persons, and the first in J line of succession, to the throne for the Shakumbila 1 chieftaincy. (c) a declaration that the Mukwashi is obliged to consult with ! the royal clan who have the right to nominate the heir to the chieftaincy. J7 The respondent denied the appellant's claim. He contended that senior headman Muchabi, as the Mukwashi, consulted legitimate members of the royal family before the appointment of the respondent was made; that he is in the line of succession of the Shakumbila chieftaincy and that the correct procedures and rituals in accordance with the Sala customs and traditions were observed and performed. All this finally culminated in the recognition of the I respondent as Senior Chief Shakumbila by the Republican President. After hearing the evidence presented by a multitude of i witnesses, the learned trial judge came to the conclusion that the I appellant had not proved her case against the respondent and had failed to establish that the respondent did not qualify to be Chief I 1 Shakumbila. The judge found that prior to the selection of the new chief, the respondent made known his aspiration to be considered for the chieftaincy to members of the royal family and that no objection was made by them. The learned judge also found that there was no consistent custom or practice in enthronement of a chief in existence at the material time. Further, he dismissed as baseless, the allegation that Benson Mwambula usurped the role of Mukwashi and, 1 I I 1 I I J8 therefore, irregularly installed the respondent as chief. The judge also found that Benson Mwambula was merely asked by the Mukwashi to read out the decision as to who would be the successor chief. The judge was at a loss to understand the appellant’s claim that the respondent’s appointment was irregular when there was a clear indication from the evidence that Bedford Muchabi himself was in control of the selection of the chief. Further, the judge dismissed the appellant’s grievance that the choice of the respondent as chief was pre-determined. This was in reference to letter of 29th July 2007, written by Bedford Muchabi to the District Commissioner in which he is alleged to have assured the District Commissioner of the respondent’s appointment as chief and in which he also advised the District Commissioner that the ceremony planned for the 30th September 2007 for appointment would be a mere formality. The learned judge failed to deduce any manipulation on the part of Bedford Muchabi from this correspondence. He held that it was a mere coincidence that the respondent’s appointment as chief was in line with the contents of the said letter. On the whole, the judge i found that the appellant had failed to prove her case, and dismissed the claim. He ordered each party to bear its own costs. J9 I Disenchanted by that judgment, the appellant has now appealed attacking the judgment on ten grounds formulated as follows: 1. GROUND ONE The learned trial judge erred in law and in fact when he held that the evidence adduced was not enough to show that it was more probable than not that the defendant (respondent), may have been put on the throne contrary to custom, practice or I tradition by failing to address his mind to the evidence before I him on the established tradition and practice of succession to the Shakumbila throne. GROUND TWO 2. i ( The learned trial judge erred in law and fact when he gave too | much authority to the level of Muchabi's participation in the | selection of a chief as though he had a final say against the ' weight of the evidence that Muchabi need to consult and agree with royal family members on the successor prior to announcement of the successor to the general community and I public. I 3. GROUND THREE The learned judge erred in law and in fact when he dismissed the following appellant's contentions as not having been proved: (a) That the respondent was appointed by Benson Mwambula Shakumbila who had no authority I to nominate and install a chief; J10 (b) That the respondent did not qualify to succeed to the throne, because he is not from the patrilineal line of succession; (c) That the respondent did not qualify to succeed to the throne at the time because, being a great­ grandchild of Choongo Shakumbila, his turn had not yet come. GROUND FOUR The learned trial judge erred in fact when he held as regards the letter earlier written by Muchabi of 29th July, 2007, and his alleged announcement of the respondent as chief as was stated in that letter as merely fortuitous coincidence. GROUND FIVE The learned trial judge erred in fact when he stated that there was no objection to the candidature of the respondent by the appellant, and the royal family members when there was no evidence to suggest that an opportunity was given for objections to the candidates names and thereby the learned trial judge introduced a new requirement of raising objections which was not supported by evidence before him, and he also ignored the fact that the appellant made a comment confirmed by the respondents saying 'my son you have also Joined us". GROUND SIX The learned trial judge's analysis of evidence was unbalanced as he highlighted more the weaknesses of the appellant's evidence, and ignored pieces of evidence that strengthened her case, while ignoring the many glaring weaknesses, and inconsistencies of the respondent's evidence and concentrated on the areas that were in his favour, and did not even consider the submissions filed on behalf of the appellant. 7. GROUND SEVEN The learned trial judge erred when he held that the respondent herein qualified to ascend to the throne to the Shakumbila throne when in fact the record and evidence is categorical that he never belonged to the patrilineal line of the throne but was on the far side of the matrilineal line, and therefore his holding will set a precedence that will contravene the Shakumbila succession, and therefore plunge the whole clan in chaos. 8. GROUND EIGHT | The learned trial judge fell into grave error when he held that I the respondent was not the only one who declared interest I among the great-grandchildren. There was also Jonah Mangala. In fact, even if they were ten or more aspirants who could have aspired, that does not make them eligible, for, as long as the ! grandchildren of Shakumbila were still living, suffice to say, the I said decision will confuse the traditional line of succession, in I I that the proper line will not be followed, and is tantamount to rendering the Shakumbila succession process without any J established structure and/or tradition. 9. GROUND NINE | | i The learned trial judge fell into grave error when he held that the moment there was a dispute to come up with one name, meant that the prerogative to choose the chief remained with the Muchabi. J12 10. GROUND TEN The learned trial judge further fell into grave error when he disputed the manipulation of the appointment of the successor, when there was a letter of 29th July 2007, assuring the District commissioner of his decision and stating the meeting of 30th September 2007, would merely be a formality, was a conclusive evidence of manipulation. The appellant’s learned counsel filed written heads of argument, whose contents they elected to entirely rely upon. Counsel for the I respondent similarly relied on the heads of argument filed on behalf of the respondent. I I In those heads of argument, the appellant’s counsel clustered t. I their arguments as follows: grounds one, three, five and seven i i together; grounds two, four, eight, nine and ten together; and ground six alone. I The gist of the heads of arguments for the appellant under the first set of grounds was that the learned High Court judge failed to establish or identify the practice, custom and tradition to the Shakumbila throne. It was highlighted that the respondent was located on the matrilineal, rather than the patrilineal side of the I family, the latter being the side where successors to the throne were J13 chosen. Further, counsel underscored the fact that the respondent was a great-grand child of the original Shakumbila. They contended that such relationship was remote in comparison to the appellant’s who was the grandchild of the original Shakumbila. Counsel also argued that the lower court’s finding would cause more confusion in the determination of successors in the Shakumbila chiefdom. In addition, they argued that the learned judge misdirected himself in findingj that no objection had been raised by the royal family members to the appointment of the respondent as chief. It was their position that the procedure in selecting a chief did not make provision for objections to be raised. In stating so, the learned judge was accused of making his own rules. In relation to grounds two, four, eight, nine and ten, it was submitted that the choice of successor was not left to the Mukwashi alone. Counsel reiterated the point that the Mukwashi needed to consult with royal family members in coming up with a successor. Further, that it was clear from Muchabi’s letter dated 29th July 2007, that the respondent already had the backing of Muchabi to be chief. Thus, the respondent’s ascension to the throne was preconceived and J14 orchestrated by him, to manipulate Muchabi and get ahead of his uncles and aunties. Counsel lamented that in terms of laid down practice, the name of the successor was to be disclosed to the royal family members before being announced to the general public. In this case, however, unbeknown to the appellant and other interested persons, the name of the successor was disclosed to a selected group I of people and subsequently to the general populace on 30th September 2007. This deprived the appellant and the said other I persons an opportunity to be involved in the selection of the chief or i otherwise to raise any concerns. i I At the hearing, Mr. Mwanabo augmented the heads of argument with viva voce arguments. He drew our attention to the record of appeal, and in particular the testimony of DW3 where the witness recounted that a deliberate decision had been made not to appoint i anyone from the grandchildren of the original Shakumbila. This point i was omitted from the appellant’s heads of argument. Mr. Mwanabo further referred to the record of appeal and pointed out that the royal line had authority to move the lines of succession. Counsel for the appellant rebuffed these submissions and asserted that the trial J15 court had not specifically dealt with this aspect. We were urged to allow the appeal. Mr. Mutemwa SC, learned counsel for the respondent, impugned the arguments advanced by appellant in the same sequence as counsel for the appellant presented them. He asserted I that the learned trial judge was on firm ground in observing that the I standard of proof had not been met in this case. In support of this i contention, he cited the learned authors of Murphy on Evidence I I Thirteenth Edition page 111, para 4:15 where they state in regard to i the standard of proof in civil matters as follows: The standard of proof required of any party to civil proceedings for the discharge of the legal burden of proof is the balance of probabilities. This means no more than that the tribunal of fact must be able to say, on the whole of the evidence, that the case for the asserting party has been shown to be more probably true than not true. If the probabilities are equal, i.e. the tribunal of fact is wholly undecided, the party bearing the burden of proof will fail. i In addition, counsel pointed out that during the course of an inquiry, a trial judge had discretion in the evaluation of the evidence before him, provided that such exercise was reasonable. In support J16 of his submission, he referred us to a text in Appellant Practice, by Blank & Selby and quoted a passage which reads as follows: ’’Many situations require the decision maker to exercise discretion. In general terms, “discretion” refers to a decision-making process in which no one [consideration] and no combination of [consideration] is necessarily determinative of the result. “Jago v. District Court1) and Coal and Allied Operations Pty Ltd v. Australian Industrial Relations Commission^.” The learned State Counsel also referred to paragraph 4 of the amended statement of claim. He surmised from the said paragraph I that by appellant’s own averment, the Mukwashi had the authority to nominate and install any person to the throne of Chief i Shakumbila. This installation was to be done after consultation with, I and instructions from, legitimate members of the royal clan. He argued that where the royal family fails to select a chief, the default i position was that the Mukwashi had the prerogative to choose one. He agreed with the lower court’s assessment that no objection had been made to the respondent’s name as a potential candidate to the chieftaincy. In this regard, according to counsel, the trial judge exercised his discretion correctly, in finding that the absence of I objection to the respondent’s candidature for chieftaincy was J17 acknowledgement that, the respondent was, in fact, eligible for the position of chief. In reply to the respondent’s heads of arguments, the appellant’s learned counsel reiterated that the lower court fell in error when it did not give precise guidance and direction on the procedure to be followed when selecting a chief. They referred to the case of Simon Kalaba Chisha, Senior Chief Milambo Benson Kasongo Shapi and Phillimon Mbola<3> where we held that the succession to the throne of Chief Chimese is matrilineal and follows the family tree by seniority, and I further that the electoral college is the Chimese royal family that meets to choose the chief. It was the appellant’s argument that in sharp contrast to the afore-mentioned case, the court, in the instant case did not clearly state how succession to the Shakumbila throne was to evolve. We were thus implored to uphold the appeal. We have considered the record of appeal, the judgment appealed against and the arguments so ably articulated by counsel for the parties. In order to fully appreciate of the context in which this J18 appeal is canvassed, we shall, at the risk of repetition, highlight the following salient facts which are common cause. The appellant and the respondent are both in the family lineage of the Shambukila clan. The appellant’s father was Shambukila’s son; thus, the appellant was Shambukila’s grandchild. The respondent on the other hand was Shambukila’s great-grandchild, his grandmother having been Shambukila’s daughter. Arising from the foregoing, the appellant is from the patrilineal side of the family while; the respondent is from the matrilineal side. Senior headman Muchabi who was the Mukwashi was recognized as the person vested with authority to nominate a chief. He was to do this upon consultations with the royal clan members. At the time of the respondent’s appointment, the Mukwashi was Bedford Muchabi. The evidence of chieftaincy succession on record shows that after the death of the original Shakumbila, his son, Kabombwe Shakumbila i took over as chief. He was succeeded by Shachibondwe Shakumbila, Kabombwe’s brother. Following the demise of Shachibondwe, his brother, Enock Mwambula Shakumbila, took over as chief. He was in turn succeeded by Moses Shandapu Shakumbila, predecessor to J19 the respondent. Clearly the selection of chief during the above period rotated among brothers. It is also necessary to consider the procedure that was employed in selecting Moses Shandapu as Chief Shakumbila. The chieftaincy was first offered to Shinchoonda by the Mukwashi. Shinchoonda declined and passed the offer to William Choonta Chikumbe, who also declined and passed on the offer to Moses Shandapu. The latter declined the offer too. At this point, the Mukwashi told William Choonta, Daniel Nzyomba and Moses Shandapu to have their own discussion and agree on who would be the new chief. The three came back and announced that they had settled on Moses Shandapu. The selection of Moses Shandapu as Chief Shakumbila was thus by agreement among the aspirants and subsequent endorsement by the i Mukwashi. By way of comparison, the respondent’s selection as chief as can be deciphered from the documents on the record of appeal occurred in the following manner:- J20 (i) The respondent was appointed as acting chief by the Mukwashi following the death of Moses Shandapu. He acted for a year until the 30th September 2007. (ii) There were five candidates aspiring for the position of chief, namely: the respondent, Phanwell Shichoonda, Jonah Mwiimbu, Rodwell Chikumbe and Netta I Shimwambwa (appellant herein). Of this group, the i respondent and Jonah Mwiimbu were great-grand- ( children. I (iii) A group comprising members of the royal family met at 1 Mukwashi’s home. Mukwashi was informed that no agreement had been reached by the royal family as to the I choice of a successor. None of the members of the royal family informed him that the respondent was ineligible. (iv) Prior to selection, a meeting was convened at Mukwashi’s I home in September 2007 at which all five aspirants were present. Nobody at that meeting told the Mukwashi that I ' the respondent did not qualify to be chief. No agreement amongst the five as to who should assume the chieftaincy I emerged from that meeting. I i (v) On 30th September 2007, members of the royal family went 1 to the palace, where the District Commissioner, Council i I Secretary and Officer-in-Charge of Police for Mumbwa, I n J21 among others, were present. It was at this gathering that the respondent was enthroned as chief. . (vi) Benson Mwambula Shakumbila rose and pronounced the respondent as chief. The Mukwashi was present but had a problem with his legs, hence could not stand up. No objection was raised tiy any of the interested parties. The selection of chief resulted from Mukwashi’s nomination, in the ( absence of agreement among the aspirants and royal clan. On the z ** * * I foregoing facts, there was no controversy. < * .. I In light of these facts we turn now to address the grounds of ■ appeal in the order in which they are configured. -1 : . t - ■ ’ <>, i • t t • Our assessment offthe evidence received in the lower court in respect of ground one results in a glaring revelation. It appears that there was no, definitive, systematic and particular procedure as regards the selection of a chief among the Sala people. Rather, the resounding theme seems to be that ultimately, the Mukwashi was the one clothed with power to .offer the chieftaincy to an individual of his chpice following a process of consultations with members of .the clan. Having said that, however, it is noteworthy that there was evidently some flexibility in the process of selecting a chief. For example, after J22 the death of Enock Mwambula, the Mukwashi offered Shichoonda the chieftaincy. The latter declined and passed the offer on to Chikumbe, seemingly without reverting to the Mukwashi. Similarly, Chikumbe declined the offer and passed it on. It was only when the recipients of the offer reverted to the Mukwashi that the latter advised that they discuss and arrive at a particular name. Emerging from the discussions among the candidates was the selection of Moses Shandapu, whose name was then presented to the Mukwashi. The I foregoing illustrates that the Mukwashi, more than anyone else, was ( the driver of the selection process. We observe that Mukwashi did in i fact Collaborate with the royal clan members in the selection process. i However, as observed by the court below, he was the one at the I epicentre of the selection process itself. It is for this reason that the I trial court surmised that had Shichoonda not declined the offer, Mukwashi’s choice would have prevailed, subject to the approval of I the1 royal clan. By parity of reasoning, had the candidates, during i their discussions, not chosen Moses Shandapu, it would seem more i likely than not that the Mukwashi would nonetheless have exercised his power to choose a successor chief. We are of the firm view that in J23 the absence of any objection from the royal clan members, such choice would have prevailed. Equally important to note was the Mukwashi’s role in the selection of the present chief. Yet again, the five contenders for the position of chief met at Mukwashi’s house and presented their names to him. He gave them an opportunity to discuss and present him i with the name of one person who could be selected as chief. However, they failed to agree on a particular individual amongst themselves. The evidence reveals that members of the royal family also failed to I come( up with a particular choice. The failure by both the aspiring candidates and royal family members alike, warranted that the decision to select a chief be deferred to the Mukwashi. Thus, we agree i with|the trial court’s assessment that the royal family had a role to playlin the selection of a successor. In default of doing so however, the Mukwashi’s choice would prevail. Such was the situation in the I instant case. I I In view of the foregoing reflections, we perceive that the custom or procedure surrounding a chiefs appointment to the Shakumbila chieftaincy, can scarcely be recounted with any sort of mathematical J24 precision or clarity. Thus, the present circumstances are at clear variance with those in the case of Ted Chisavwa Muwowo Alias Chief Dangolipya Muyombe v Abraham Muwowo Alias Tenwanani Winston Muwowo (Suing as Chairman of the Uyombe Royal Establishment)*4*. That appeal involved a challenge to a High Court judgment, which had declared the appellant as Chief Muyombe null and void. In brief, the I facts surrounding the said appeal were that following the death of Chief| Muyombe, succession disputes ensued. Elections were subsequently held to elect a chief and the appellant was selected as Chief Muyombe. Unsettled by the selection of the appellant as chief, the respondent commenced proceedings in the High Court. It was adduced in evidence that there were four branches from which chiefs were to be selected; the Njera, Chapyoka, Chipanga and Kasangwa family branches. However, the Kasangwa branch was banned from participating in the chieftaincy. It emerged from the evidence that the chieftaincy was to rotate among the three branches. At the material time, the chieftaincy was to be assumed by a member from the Chipanga branch. The evidence disclosed that the appellant belonged to the Njera branch, which had two sub-branches, namely, the Mitanga and Chimbilima branches. The implication therefore J25 was that if a person was from Chambifima or Mitanga, such person was considered as one and the same as a person from Njera. Further evidence was adduced that the electoral college of the Uyombe Royal Establishment Committee (Banangwa Council) was supposed to discuss succession. This electoral college comprised a group of sixteen selected members from the four royal branches. Wheni the last Chief Muyombe died, the electoral college called for meetings for the three royal branches to discuss succession. The result emanating from these three meetings was that the first ! respondent was chosen as successor. However, the respondents later} learned that the appellant had been recognized as Chief Muyombe by the Republican President. In determining the matter, the learned trial judge found that the selection of Chief Muyombe should have been done in adherence to the traditions and customs of the Bayombe people. Thus, she held I that selecting a chief by way of an election was in conflict with the l customs and traditions of the Uyombe Chiefdom. Furthermore, she I held1 that given the fact that the chieftaincy rotates amongst the three royal branches, appellant was ineligible to be chief. That is, he was J26 from the Chimbilima branch, which as already stated, is a sub­ branch of Njera. Thus, since the appellant was from Njera, he was automatically disqualified as his predecessor had also been from Njera. Our finding on appeal was that: where the tradition and custom of a group of people has a process that is to be followed for the selection of a chief, that tradition and custom ought to be followed. We, therefore, upheld the finding of the lower court in that case. We hold, however, that the present case is distinct and distinguishable from the Muwowo case cited above. The difference arises on the premise that the custom, procedure and tradition in the Muyombe clan was plainly defined, articulated and systematically practiced by its people. As such, any deviation from the laid down tradition or custom clearly warranted a reversal of any appointment that had been effected. In contrast, however, the Sala people do not appear to have a consistent custom which is clearly discernable in the selection process of its chief. If such a consistent and clearly identifiable practice existed, it was not convincingly explained by the witnesses that testified before the lower court. In light of this, there J27 is no concrete and irrefutable basis upon which to make a finding that the respondent’s appointment as chief was contrary to the custom, tradition and practice of succession to the Shakumbila throne. This ground of appeal therefore fails. In connection with the third, fifth and seventh grounds of appeal, it is our view that the appellant’s claims have, as noted by the learned trial judge, not been proved by the evidence. The same is apparent from the blatant disparities and anomalies emerging from the arguments advanced in this case. For example, the appellant i argues that the respondent does not qualify to be chief because custom requires that succession follows the patrilineal side of the family. In another breath, however, the appellant argues in her heads of arguments that: I It was also established that even on the matrilineal side the | respondent was too distant because from his immediate biological , parents he was connected to the Shakumbila family through his J father and not his mother. ! We are disconcerted by the two apparently contradictory i positions adopted by the appellant in her argument as to the i respondent’s eligibility. We fail to appreciate how the one can be reconciled with the other. Clearly this lack of consistency is J28 indicative of a lack certainty as regards whether succession must be patrilineal or matrilineal. What appears more cardinal, however, is that the respondent is undoubtedly in the lineage of the Shakumbila family. Moreover, no one raised the issue of his eligibility at the time the respondent presented himself as a potential successor to the throne. This was a finding of fact by the lower court, supported by the testimonies of PW3 and PW4. Similarly, it is worthy of note that even the appellant herself did not challenge the respondent’s qualification to be chief at the material time. Thus, during cross- examination, she conceded that she did not tell the Mukwashi that the defendant did not qualify to be chief. After all, such disclosure on her part, if true, would have eliminated the respondent as a I suitable candidate. It is for these reasons that we support the trial i judge’s finding that the failure by the appellant and members of the royal family to raise any objection to the respondent’s aspiration to I be chief is indicative of the fact that he was eligible for the same. I The above argument equally applies in respect of the contention I that being a great-grand child of Shakumbila, the respondent’s turn had not yet come. Why was this fact not pointed out to Mukwashi or J29 to the other members of the royal family when the respondent declared his desire to be chief? Moreover, it is an apparent contradiction for the appellant to assert that the respondent’s time had not yet come in one breath, yet state in the other, that he was ineligible as he belonged to the matrilineal side of the family. Furthermore, we do not accept the argument that Benson Mwambula appointed the respondent, thereby rendering his enthronement irregular. We hold the view that as the person vested with the necessary power to appoint the chief, Mukwashi would certainly have protested to Benson Mwambula’s announcement had he been of a different mind. We are skeptical that the Muchabi was of unsound mind as alleged by some of the appellant’s witnesses. There was no cogent evidence tendered to prove this allegation. What seems to be undisputed from the evidence is that he had problems with his legs. As such, we find that Muchabi did not say anything, as Benson Mwambula’s announcement was in fact endorsed by him. Thus, the learned judge was on firm ground in finding that Benson Mwambula did not usurp Mukwashi’s role. It, therefore, follows that J30 the respondent’s appointment was in fact by the Mukwashi. These grounds of appeal are equally unmeritorious. Grounds two, four, eight, nine and ten revolve around appellant’s argument that the learned trial judge’s finding was flawed, as he attributed too much authority to Muchabi. Further, that he erred in regarding Muchabi’s letter dated 29th July 2007 and the respondent’s appointment as chief as a fortuitous coincidence. It was the appellant’s argument that this letter disclosed evidence of manipulation by the respondent. In addition, that the trial judge’s findings would confuse the tradition and established structure of the I Shakumbila clan. We hold the view that Muchabi’s powers are as we have already I explained them above, that is, to appoint a chief upon consulting and obtaining instructions from the royal clan. The record discloses that I Muchabi did consult with the royal family but that the latter failed to come 'up with a particular successor. We have deciphered from the I evidence that where the royal clan fails to choose a successor, Muchabi’s choice would prevail. We hasten to point out that at the time he authored the letter in question, it was unfikely that Muchabi J31 would have known about the royal family’s failure to select a successor. Thus, Muchabi’s letter of 29th July 2007 cannot be an indicator of any manipulation in the process of choosing a successor. Rather, the said letter seems to be a mere indication of his preferred choice of successor, which choice would have fallen away had his consultations with the royal family yielded a different result. However, in the instant case it so happened that Muchabi’s preference for the respondent coincided with the outcome. This i coincidence occurred in view of the royal family’s failure to choose a successor. We note from the evidence that they did not oppose the i respondent’s aspirations, let alone Muchabi’s selection of the respondent as chief. We, therefore, find no evidence of manipulation on the respondent’s part nor any indication that the lower court clothed Muchabi with more authority than he in fact had. Inevitably, I these grounds of appeal must fail. I | In her tenth ground, the appellant has argued that the clan would be thrown into chaos if great-grand children were chosen as chief, while grandchildren were living. The appellant’s evidence has in no way proved that there was a specific custom which provided, J32 inter alia, that grandchildren be given preference over and above great-grand-children. In fact, the appellant’s witnesses did not seem to have a definitive and uncompromising view of the custom that was supposed to be employed in the selection of a chief. As such, we fail to believe that confusion would result in any established practice of the clan. This is particularly in view of the fact that there was no established custom or practice at the material time. This ground is therefore doomed to fail. We now consider the last ground of appeal, namely, ground six. This ground alleges that the trial judge’s analysis of the evidence was i unbalanced; that he gave undue weight to the respondent’s evidence and highlighted more of the weakness of the appellant’s evidence. Further, that he even ignored pieces of evidence. In this regard, we refer to our holding in the case of Attorney- I General v Achiumet5) where we observed that: An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make and entitles the appeal court to interfere. J33 The holding in the foregoing case underscores the significance that trial courts should attach in ensuring a balanced view of the evidence before them. It is trite that the onus of proving the case rests on the plaintiff on a balance of probabilities. Thus in the case of Galaunia Farms Limited v National Milling Company Limited and National Milling Corporation Limited!6), it was stated that a plaintiff must prove his case and if he fails to do so, the mere failure of the opponent’s defence does not entitle him to judgment. I The pertinent question, therefore, is whether the plaintiff proved her case I in the lower court on a balance of probabilities. We think ■i not. As already pointed out, the appellant’s evidence in the trial court was characterized by a myriad of inconsistencies and uncertainties. This, in our view, resulted in her failure to discharge the legal burden of proof resting upon her as plaintiff. We are, therefore, in complete agreement with the learned trial judge’s finding that, the evidence I adduced in this case was sufficient to prove the appellant’s claim. Consequently, the appeal fails in its entirety and is hereby dismissed. I J34 We award costs to the respondents to be taxed in default of agreement. I I I I. C. Mambilima CHIEF JUSTICE Df7M. Malila, SC SUPREME COURT JUDGE SUPREME COURT JUDGE