Phillip Chitambo Nyirenda v Vincent Banda (2015/HP/1393) [2017] ZMHC 510 (17 March 2017)

J1 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 1 7 MA~ Z017 .,_. BETWEEN: 2015/HP/1393 PHILLIP CHITAMBO NYIRENDA PLAINTIFF AND VINCENT BANDA DEFENDANT Before Honorable Mrs. Justice M. Mapani-Kawimbe on 17th March, 2017 For the Plaintiff For the Defendant : Dr. J. Mulwila SC, assisted by Ms. N. Mbuyi, Messrs !tuna Partners Mr. S. S. Zulu SC, Messrs Zu lu & Co JUDGMENT Case Authorities Referred To: ~ 1. Chief Mpepo v Senior Chief Mwamba SCZ Judgment No. 25 of 2008 2. Senior Chief Milambo v Benson Kasongo Shapi and Philemon Mbola Appeal No. 192 of 2 007 3. Kenneth Mpengula v Reverend Hudson Litana and Others Appeal No. 4 7 of Legislation Referred To: 1. Constitution of Zambia {Amendment) Act No. 2 of 2016 The Plaintiff issued Writ of Summons seeking the following reliefs: J2 An Order that the Plaintiff is the legal selected Chief Kazembe. (i) (ii) An Order for possession of the · Chieftainship which the Defendant has wrongfully possessed. (iii) An Order of injunction to restrain the Defendant, by himself, from by his servants, agents, e mployees or otherwise continuing and repeating any acts as Chief Kazembe. (iv) Damages for trespass caused by the Defendant. (v) Costs. (vi) Any other relief the Court may deem fit. The Statement of Claim discloses that the Plaintiff was selected Chief Kaze1nbe in Lundazi District, Eastern Province by the Kazembe Royal family. He was subsequently appointed Chief on 10th September, 2005, following his retirement from the Civil Service on 7 th December, 2005. The Plaintiff states that after his selection as Chief, the Royal family handed him the traditional instruments of power as a symbol of his appointment on 23rd October, 2005. Further, at a meeting held on 11 th January, 2006, Senior Chief Mwase acknowledged his selection in the presence of Chief Chikomeni, the District Commissioner, Lundazi and other Government officials in Lundazi. J3 The Plaintiff avers that on 7th June, 2006, his selection as Chief Kazembe was acknowledged by the Permanent Secretary, Eastern Province. He was further acknowledged by the Council Secretary, Lundazi on 18th January, 2006 . The Plaintiff contends that the Defendant who is not a member of the Kazembe Royal family was illegally selected and enthroned Chief Kazembe on 28th April 2014 by unknown persons. Thus, he brings this action to Court to challenge the Defendant's appointment as Chief Kazembe. The Defendant s ettled a Defence and Counterclaim on 1st October, 2015. He d enies that the Plaintiff is entitled to be enthroned Chief Kazembe and counterclaims that he is a member of the Kazembe Royal family, of the Chewa people, of Lundazi District, Eastern Province. He avers that succession to the Kazembe throne is matrilineal and that the Mbumba are responsible for selecting a successor amongst nephews, nieces and grandchildren of a deceased Chief. The Defendant further avers that the Kazembe Royal family pays homage to His Majesty Kalonga Gawa Undi of the Chewa Royal Establishment in Mkaika. The Defendant adds that His Majesty J4 Kalonga Gawa Undi is bestowed with authority of recogn1z1ng Chewa chiefs who have been selected by the Mbumba according to the Chewa custom and tradition. The Defendant states that before Chieftainess Lina Kazembe (Chisusu) was recognized by His Majesty Kalonga Gawa Undi, some paternal members of the Kazembe Royal family were selected as caretakers of the throne, contrary to Chewa custo1n and tradition. The D efendant a dmits tha t on 29 th June, 2008, the Plaintiff was selected Chief by the Kazembe Royal family. However, His Majesty Kalonga Gawa Undi nullified his selection because he was the son of caretaker Chief Stephen Chitambo Nyirenda. According to Chewa succession, a son of a Chief is disqualified from being enthroned Chief Kazembe. The Defendant further states that Ms. Lina Phiri (Chisusu) who was selected Acting Chief Kazembe received a Government subsidy from November, 2008 until her death on 28 th March, 20 13. He adds that being the maternal grandson of Lina Phiri (Chisusu) and his mother Alice ( deceased) being Lina Phiri 's first b orn J5 daughter entitles him to be appointed Chief Kazembe. As a result, the Mbumba met on 28th March, 2013, and selected him Chief Kazembe. The Defendant avers that on 26th April, 2015, he was installed Chief Kazembe by His Majesty Kalonga Gawa Undi at Mkaika in Katete. On 21st July, 2015, the Acting District Commissioner Lundazi handed him the in strum en ts of power. In his counterclaim, the Defendant seeks the following reliefs:- ► (1) A d eclaration that the Plaintiff is not entitled to succeed to the Kazembe chieftainship of the Chewa people on the ground that succession is matrilineal according to Chewa custom and tradition and not patrilineal. (2) A declaration that the Defendant is the one who is entitled to succeed his late grandmother Lina Phiri as Chief Kazembe. (3) A declaration that the recognition and installation as Chief Kazembe of the Defendant by His Majesty Kalonga Gawa Undi is valid and in accordance with Chewa custom and tradition of succession. (4) An order of interim injunction to restrain the Plaintiff from holding himself out as Chief Kazembe or causing confusion in the chiefdom or in any way interfering with the Defendant's Chiefly functions pending trial of this action or until further order. (5) Damages. (6) Costs. J6 At trial the Plaintiff called five witnesses. The Plaintiff, Phil~ip Chitambo Nyirenda testified as PWl. He told the Court that his father was the late Stephen Chitambo Nyirenda who was married to Tafwauli Phiri, his mother. It was his evidence that on 10th September, 2005 he was selected Chief Kazembe by th e Kazembe Royal family and was notified of his appointment when he was still serving as a civil servant in the Ministry of Justice, Local Courts Department. PWl testified that on 22nd October, 2005, the late Senior Chief Mwase, Henry Phiri, acknowledged his selection as Chief Kazembe at a small ceremony. On 23 rd October, 2005, the Senior Chief M wase told the village headmen of PW 1 's selection as Chief Kazembe. The Royal family subsequently handed PWl the traditional instruments of power, namely a lion's skin, leopard, spear, chair and short gun. It was PWl 's further evidence that the Kazembe Royal family is made up of members from the four villages of Chitete, Kabimba, Mukazingoma and Bungulu, and they collectively constitute the electoral college. According to PWl, at a meeting held on 28th June, J7 2006 between Senior Chief Mwase, the in.dun.as and the Kazembe Royal family, it was established that the Kazembe throne is patrilineal. PW 1 testified that on 30th July, 2006 his selection was communicated to His Majesty Kalonga Gawa Undi at Mkaika Katete. After receiving his name, he was asked to pay Kalonga Gawa Undi a cow and two goats. Further, the date of his installation was set on 10th August, 2006 but it never took place. PW 1 stated that on 10th October, 2007 the Council Secretary Lundazi, handed him instruments of power, namely a flag, date stamp and Chief's gown. He then received government subsidies in March 2008, in arrears, and afterwards received subsidies on a monthly basis. His palace was connected to a solar panel. PW 1 testified that on 29th June, 2008 the members of the Royal family appeared before His Majesty Kalonga Gawa Undi, because some members of family had challenged his selection. They argued that he was not qualified to be enthroned Chief Kazembe because he was a child of a former Chief. According to PW 1 his J8 aunt Lina Phiri was appointed caretaker Chief and he assisted her in performing her duties. PW 1 further testified that at a meeting held on 3 rd July, 2012, at Senior Induna, Mr. Chikuta Mbewe's home, Lina Phiri handed him back the throne. However, Mr. Mbewe told Lina Phiri to hand the throne to her son Alick Mumba or her brother Willman Phiri. According to PW 1, Lina Phiri refused to hand the throne to either of them insisting that the throne belonged to PW 1. PWl testified that on 31 st October, 2013 the Royal family appeared before the former Senior Chief Mwase, Mr. Jonathan Mtonga, where PWl explained the circumstances of his selection as Chief. In April, 2014, Mr. Mtonga took the Royal family members to • Katete to meet His Majesty Kalonga Gawa Undi but failed to do so. It was PW 1 's testimony that on 28 th April 2014, a meeting was held at Mr. Chrisphord Ngulube's house. Most of the members of the Royal family were chased from the meeting by Mr. M tonga an and the few members that remained were instructed by him to select the Defendant as Chief Kazembe . J9 PWl told the Court that he petitioned the Defendant's selection that very day and that the women who were asked to select the Defendant refused his nomination. PW 1 stated that at a meeting held on 29th June, 2014 in Katete, the 1nembers of the Royal family refused to acknowledge the Defendant as Chief Kazembe. The members of the Royal family were greatly distraught by the Defendant's installation and decided to commence this action in Court. It was PWl 's testimony that his mother Tafwauli Phiri and her sister Lina Phiri are not members of the Kazembe Royal family given that his mother was only married to a Chief. PW 1 told the Court that according to the Chief Kazembe genealogy there had been eight Chiefs, namely: 1. Kazembe I -Kabimba 2. Kazembe II -Nguwa 3. Kazembe III - Chitambo 4. Kazembe IV- Chitete (Chieftainess) 5. Kazembe V - Mukazingoma Chisalanga (his biological grandfather) J10 6. Kazembe VI - Kabimba Bungulu 7. Kazembe VII - Stephen Chitambo Nyirenda (his biological father) 8 . Kazembe VIII - Henry Phiri It was PWl 's evidence that Kazembe I, II, III were the sons of Mwila and Muyunga Zozie, while Kazembe IV was the daughter of Luvunga the only sister of Kazembe I, II, and III. PWl further stated that Kazembe IV had two sons namely, Mkazingoma and Kabimba Bungulu who succeeded her as Kazembe V and VI respectively. PWl told the Court that after his grandfather Kazembe V died, Kazembe VI Kabimba Bungulu inherited the throne. He relinquished the throne to his father Kazembe VII. According to PW 1, Kazem be VIII Henry Phiri took over as a caretaker Chief for two and a half years because of the succession wrangles that had engulfed the Kazembe Royal family. These wrangles were mostly between the children of Chiefs Kazembe V and VI. J11 PW 1 further testified that Kazembe VII his father married Tafwauli Phiri who was a daughter of Mailess Nyirenda. It was his evidence that Mailess' children were Lina Phiri, Willman Phiri, Tafwauli Phiri, Loniah Phiri, Losinasi Phiri, Simon Phiri, Justina Phiri, Aaron Phiri, and Cecilia Phiri. He also testified that Mailess Nyirenda's mother was Maria Juba whose children were Belita, Jela, Mailess, Njilawaya as shown at page 78 of his Bundle. PW 1 averred that the Royal family tree in his bundle represented the correct Chief Kazembe genealogy as opposed to the one the Defendant's bundle. He stated that the discrepancies in the Defendant's Royal family tree showed a lack of knowledge of the Kazembe dynasty. It was his evidence that the Defendant, his maternal nephew, is not entitled to be enthroned Chief Kazembe. In cross-examination, PWl stated that the Kazembe Chieftaincy is based on the Tumbuka tradition and custom. Further, that the Chieftaincy was only subordinate to His Majesty Kalonga Gawa Undi until 2005. He did not know whether His Majesty Kalonga Gawa Undi was the Paramount Chief for all Chewa people although he accepted his authority. He maintained that - - - -- - ------- -- J12 succession to Chief Kazembe is patrilineal and not matrilineal as advocated by His Majesty Kalonga Gawa Undi. PW 1 testified that he did not know anything about the matrilineal system of succession stating that in a patrilineal system sons or daughters of a Chief could succeed a Chief. It was also PWl's evidence that Chiefs Kazembe I, II, III inherited their throne from their father, while Kazembe IV inherited the throne from her uncle Kazembe III. PW 1 told the Court that he was entitled to inherit the Kazembe throne through Chief Kazembe V his grandfather and not his father Chief Kazembe VII, in the patrilineal system. He therefore, did not understand why His Majesty Kalonga Gawa Undi did not install him Chief. It was also PWl 's evidence that the Kazembe chiefs were selected by members of the Royal family. PW 1 denied that he caused confusion in the Chiefdom during the reign of Lina Phiri. In re-examination, PW 1 maintained that succession to Chief Kazembe is patrilineal because Chiefs Kazembe V and VI had no sisters. Further, that he was entitled to inherit the throne from J13 Chief Kazembe V. PWl stated that His Majesty Kalonga Gawa Undi did not disqualify him from becoming Chief because the prerogative of installing Chief Kazembe rests with Chief Mwase. PW 1 concluded with a prayer to the Court to declare him Chief Kazembe granted that he had been selected in accordance with their tradition and custom by the Kazembe Royal family. PW2 was Sebastian Phiri who testified that his father was Bungulu Phiri Chief Kazembe VI. He traced the origin of the Kazembe genealogy starting that Mwila the Kazembe matriarch, who had four children, namely Kabimba, Nguwa, Chitambo (all male) and Luvunga (their only sister). He told the Court that Luvunga was the mother of Chief Kazembe IV Chitete, who inherited the throne from Chief Kazembe III, after his death. Chitete had two children namely, Mukazingoma and Kabimba Bungulu and when she grew old she handed over the throne to Mukazingoma. Mukazingoma later handed the throne to his younger brother Kabimba Bungulu. Thereafter, Stephen Nyirenda inherited the throne until his death when Henry Phiri succeeded him. J14 According to PW2, after Henry Phiri 1s death, the Royal family selected PWl as Chief Kazembe and informed Senior Chief Mwase. The Senior Chief told them that he would present PW 1 's name to His Majesty Kalonga Gawa Undi and a meeting was subsequently arranged for the Kazembe Royal family to meet His Majesty Kalonga Gawa Undi at his palace. PW2 testified that they never met him but were told that they had to present cows and a goat before PWl 's installation. PW2 testified that the Kazembe Royal family handed PW 1 the traditional instruments of power, namely, a gun, lion and leopard skin, a walking stick and a tail. Thereafter, PWl started executing his Chiefly duties. The Royal family was summoned by His Majesty Kalonga Gawa Undi sometime in 2008 where he told them that he had received a number of petitions against PWl's selection. According to PW2, His Majesty Kalonga Gawa Undi told them that he did not approve PW l Is selection as Chief Kazembe and asked them to select another member of the family for his consideration. As a compromise, the Royal family settled for Lina Phiri who later relinquished the throne to PW 1. J15 PW2 repeated PWl 1s evidence on the events that unfolded at the meeting held at Mr. Chrisphord Ngulube's house and how Mr. Jonathan Mtonga influenced the selection of the Defendant. PW2 stated that Lina Phiri, her siblings and their families are not part of the Kazembe Royal family, adding that PWl's mother Tafwauli was 1nerely married to Kazembe VII. In cross-examination, PW2 told the Court that the Kazembe Chiefdom followed both the Chewa and Tumbuka traditions and customs. He stated that the Kazembe Chiefdom falls under the jurisdiction of both Senior Chief Mwase and His Majesty Kalonga Gawa Undi through a r ecent relationship. PW2 stated that PWl was selected by the Kazembe Royal family as Chief but was not accepted by His Majesty Kalonga Gawa Undi because of his patrilineal lineage. He testified that because Chiefs Kazembe V and VI had no sisters, their children could inherit the throne including PW 1. As a result, the Kazembe Chiefdom had discarded the matrilineal system. PW2 testified that he was not aware that Kalonga Gawa Undi had installed the Defendant as Chief Kazembe b ecause the J16 responsibility lay with Senior Chief Mwase. Both the Senior Chief and His Majesty Kalonga Gawa Undi, according to PW2 were bound by the Royal family's choice of Chief. In re-examination, PW2 reiterated that His Majesty Kalonga Gawa Undi was not responsible for selecting Chief Kazembe. He also stated that the Kazembe dynasty followed the Tumbuka tradition and custom. Justina Phiri testified as PW3. She stated that the D efendant's mother Alice Mumba was her niece. She was the first born daughter of her sister Lina Phiri. PW3 testified that her mother's name was Mailess Nyirenda, while her grandmother was Maria Mumba who was married to Holotani. She further testified that her grandmother had four sisters namely, Belita, Jela, Mailess and Njilawaya. PW3 did not know Luvunga and insisted that her family was not part of the Kazembe Royal family. Her sister Lina Phiri was only selected to act as Chieftainess Kazembe for a short while and later returned the throne to PW 1. J17 In cross-examination, PW3 testified that her elder sister Tafwauli was married to Stephen Nyirenda, PW 1 's father. She did not know whether the Kazembe throne is patrilineal or matrilineal. The witness was not re-examined. PW4 was Eliva Banda. He told the Court that PWl is his cousin and he was one of the persons who selected him as Chief Kazembe. He stated that the dispute on PWl 's selection was inspired by his brother Stateson Zulu who is a member of the Royal family. According to PW4 Stateson Zulu petitioned His Majesty Kalonga Gawa Undi because he wanted to be selected Chief. He was not selected due to his bad behavior. PW4's evidence was no different from PWl on the genealogy of Chief Kazembe dynasty and the late Senior Chief Mwase's acknowledgment of PWl 's selection as Chief Kazembe. PW4 testified that Senior Chief M wase is responsible for recognizing Chewa chiefs and that the Royal family had adopted the Tumbuka tradition. PW4 testified that when the Royal family went to Mkaika to meet His Majesty Kalonga Gawa Undi, they were told to arrange for J18 PW 1 's installation, by presenting a cow and goat to the Paramount Chief. According to PW4 His Majesty Kalonga Gawa Undi accepted the animals but refused to install PWl because he was a son of a former Chief. PW4 stated that the family settled for Lina Phiri who was recognized by His Majesty Kalonga Gawa Undi as Chieftainess Kazembe. After a short reign, Lina Phiri handed back the throne to PW 1 who was never installed as Chief by His Majesty Kalonga Gawa Undi. In cross-examination, PW4 told the Court that the Royal family d ecided to follow the Tumbuka tradition because there were no women in the family. It was his evidence that the Defendant was not installed Chief Kazembe by His Majesty Kalonga Gawa Undi because the re_sponsibility rests with Senior Chief Mwase upon the Royal family's recommendation. PW4 told the Court that by giving PWl the palace and the traditional instruments of power, the Royal family had accepted PWl as Chief Kazembe. The witness was not re-examined. J19 Holotani Phiri testified as PW5. It was his evidence that the Defendant is his nephew and a descendant of Mailess his grandmother. Mailesi had no connection to the Kaze1nbe Royal family. It was also PWS's evidence that he was not aware of the succession wrangle on Chief Kazembe because he is not a member of the Royal family. Further, that Lina Phiri, Mailess' daughter, only acted as Chief Kazembe on behalf of PWl for a short while. PWS's evidence was no different from that of PW3's evidence on Maria Juba and her children. PW5 also regurgitated the evidence of PW 1, PW2 and PW 4 on the meeting that was held at Mkaika and the selection of PWl as Chief Kazembe. He added that PWl was never installed Chief. In cross-examination, PW5 stated that he did not the Chewa system of succession but insisted that Mailess was not a member of the Royal family. He did not know that the first three Chiefs Kazembe had a sister. All he knew was that PWl was born from the Royal family and challenged the family tree in the Def end ant's bundle, which connected him to the Kazembe Royal family. J20 In re-examination, PWS maintained that his family was not part of the Kazembe Royal family. Vincent Banda the Defendant testified as DWl. It was his evidence that he was a member of the Royal family and traced his lineage through Mailess, who was also known as Luvunga, the daughter of Mwila. He testified that the first three Kazembe Chiefs Kabimba, Nguwa and Chitambo inherited the throne from their mother Mwila, while Chitete Kazembe IV, ascended to the throne through her mother Luvunga. DWl also testified that after Chitete, her son Chisalanda Mkazingoma took over as Kazembe V and handed over the throne to his brother Kabimba Bungulu, Chief Kazembe VI. DWl testified that the Kazembe Chieftaincy followed the Chewa tradition since the 17th century and that the Kazembe Chiefs paid homage to His Majesty Kalonga Gawa Undi. It was DWI 's evidence that the Kazembe Chieftaincy is Chewa and follows a matrilineal system of succession. DW 1 testified that all the Kazembe Chiefs in the Kazembe genealogy inherited the throne through their matrilineal lineage and not the patrilineal side. J21 According to DW 1, in the Chewa custom of succession a son cannot succeed a father. He contended that Stephen Chitambo Nyirenda, Kazembe VII, should have never inherited the throne given his patrilineal lineage. DWl stated that Henry Phiri Kazembe VIII was eligible to ascend to the Kazembe throne because his mother was Steven Nyirenda Chitambo's sister. He further contended that PW 1 did not qualify to be enthroned Chief because his father was a Chief and his father's selection had offended the Chewa tradition and custom on succession. DWI testified that PW l's mother Tafwauli Phiri is his maternal great aunt. Tafwauli and Lina Phiri his grandmother, were Mai less Nyirenda's children. He further stated that Mailess was also k:nown as Luvunga or Kadimba. He added that his mother Alice Mumba was Lina Phiri's first daughter and was entitled to inherit the throne. DWl further testified that according to the Chewa tradition, the electoral college on the selection of Chief Kazembe consisted of the Mbumba (female members of the Royal family) and not the four villages of the Kazembe Chiefdom as contended by PW 1. He added J22 that from the year 2003 - 2008 there was no acting Chief Kazembe due to the succession wrangles that had besieged the Chiefdom. DWl added that on 28th June, 2006, His Majesty Kalonga Gawa Undi appointed an Inquiry into the Kazembe Chieftaincy. Some of its members were Senior Chief Lukua from Malawi and Chief Mbangombe from Katete. According to DWl the Inquiry met all the persons who were claiming to be members of the Royal family and subsequently compiled a report for His Majesty Kalonga Gawa Undi. DWl testified that at a meeting held on 30 th July, 2006, Senior Chief Mwase invited all the interested claimants of the Kazembe Royal family to a meeting held in Mkaika, Katete. At that meeting I) the Inquiry's findings stated at pages 32 and 33 of the Plaintiff's bundle, were shared with all present. The Inquiry confirmed that the Kazembe Chieftainship was matrilineal and not patrilineal. DW 1 further testified that His Majesty Kalonga Gawa Undi convened another meeting on 29 th June, 2008 at Mkaika, where the Royal family was asked to sub1nit a name of a Chief. According to J23 DWl, the fainily submitted PWl's name which was rejected by His Majesty Kalonga Gawa Undi because of his connection to the patrilineal side of the Royal family. It was DW l Is evidence that when a name of a Chief is proposed it is submitted to His Majesty Kalonga Gawa Undi, who takes his own consultation and studies the family tree. This is done to a scertain that a person qualifies to be a Chief. In reference to pages 40 , 41 and 42 of the Plaintiffs bundle, DWl told the Court that he b elonged to the Royal family because h e was Alice Mumba's son, the d a u ghter of Lina Phiri who was the daughter of Mailess (Luvunga) born from M wila. It was DWl 's t e stimony that on 26 th April, 2014, the members of the Royal family m et at Mr. Chrisford Ngulube's house in Lundazi. The meeting was chaired by the S enior In.dun.a for S enior Chief Mwase , Mr. Jonathan Mtonga, who a sked the Mbumba to select a Chief. DWI stated that he w a s s elected by the Mbumba at their meeting to succeed his deceased grandmother Lina Phiri. DWl t estified that on 26th April, 2015, His Majesty Kalonga Gawa Undi ins t alle d him Chief in the p resence of the provincial J24 Government officials, Chiefs from Malawi, Mozainbique and Zambia. After his installation, DWl testified that he was handed instruments of power by the Acting District Commissioner. DWl prayed to the Court to declare him as the rightful Chief Kazembe and heir to the throne, after having been installed by His Majesty Kalonga Gawa Undi, the Para mount Chief of the Chewa people. He also prayed to the Court to declai~e that PW 1 is not eligible to be enthroned Chief Kazembe. ' In cross-examination, DWI stated that the family tree in his Bundle was prepared by the Kazembe Royal family members. He stated that the names of Mailess' children were Lina, Willman, Tafwauli, Loniya, Losinasi, Simon, Justina, Aaron and Cecilia Phiri. He further stated that he was Mailess' eldest great grandson. He testified that he knew Mailess who died in 1995 while he was in Grade 11 at Chizongwe Secondary School. He told the Court that he never met Luvunga because she died before he was born. Further, that Mailess, Lina Phiri and Willman Phiri told him about J25 Luvunga. He testified that he was surprised that PW3 denied that . . Mailess her mother was the daughter of Luvunga. DWl conceded that the Kazembe throne which begun with Lina Phiri as Kazembe I in his bundle, was misleading because it was produced by the Inquiry after it had received information from the Royal family members on the Chief Kazembe genealogy. In addition, DWl stated that His Majesty Kalonga Gawa Undi directed that the Royal family should be traced from Mailess to Lina Phiri and her siblings, and their children. DWl testified that Mwila was a Chieftainess and her children succeeded her in the Chewa matrilineal system. DW 1 maintained that the electoral college was made up of the Mbumba and that the men in the Royal family were only allowed to observe proceedings during the selection of a chief. In his case, DW 1 stated that the electoral college that selected him comprised of Loniah, Justina, Tafwauli and Losinase Phiri. DWl reiterated that PWl was disqualified from inheriting the throne because of his patrilineal lineage . Further, that His Majesty J26 Kalonga Gawa Undi never selected him as Chief but only intervened to restore order in the Chief Kazembe succession. It was DW 1 's evidence that after his installation, PW 1 has not surrendered the traditional instruments of power, which are due to him. DW 1 denied that Lina Phiri was only told to act for a few months by His Majesty Kalonga Gawa Undi and to hand b ack the throne to PW 1. He added that Kalonga Gawa Undi censured PW 1 for causing confusion in the Kazembe Chiefdom. In re-examination, DW 1 testified that the Chief Kazembe genealogy was fittingly described at page 97 of the Plaintiff's bundle and tallied with the findings of the Inquiry. He also testified that when the Royal family m embers met His Majesty Kalonga Gawa Undi on 30th July, 2006, they did not inform him that PWl 's father was once Chief Kazembe. He further stated that Chitete, Kazembe IV's, sons were entitled to succeed her because they were born from a woman. DW2 was Lonia . Phiri who testified that her mother was Mailess Nyirenda. She stated that h er biological sisters are Tafwauli J27 Phiri, Justina Phiri, Loniya Phiri, Losinase Phiri, Cecilia Phiri and the deceased Lina Phiri. It was her evidence that succession to the Kazembe throne is matrilineal and that her grandmother Maliya was a chieftainess. She told the Court that her sister Tafwauli Phiri was married to PWl's father who was a Chief. As a result PWl could not inherit the throne. DW2 stated that the rightful heir to the Kazembe throne was DW 1 and that he was selected by the Mbumba namely, Tafwauli, Loniya, Justina and Losinase Phiri and herself at Mr. Chrisphord Ngulube's home. In cross-examination, DW2 testified that her grandmother was Maliya and she knew Belita, Jela and Njilawaya who were her grandmother's biological sisters. She told the Court that during the selection of DWl, her brother Willmam Phiri was in attendance but did not participate in the selection of DWl. She stated that PW3 lied when she testified that her family was not p a rt of the Royal family adding that her mother was born from Maliya who was a Chieftainess. It was also her evidence that PW l's mother and father were both born from the Royal family. - - - - - · -- - - -- J28 In re-examination, DW2 maintained that she and her siblings were members of the Royal family. Further, that even if her brothers attended the Mbumba meetings, they did so as observers. Alick Mumba testified as DW3. His evidence was that he is a member of the Kazembe Royal family being Lina Phiri's fourth child. His grandmother was Mailess Nyirenda who was also known as Maliya, Luvunga or Kadimba. DW3 testified that the Kazembe Chieftaincy is based on a matrilineal system and in that system the electoral college comprises the Mbumbas or female members of the Royal family. DW3 repeated the earlier evidence adduced in Court on the Chief Kazembe genealogy, emphasizing that Stephen Chitambo Nyirenda Kazembe VII, a patrilineal descendant of the Royal family, should have never been enthroned Chief Kazembe. According to DW3 his selection offended Chewa tradition and custom which is matrilineal. In that system only children, nephews, nieces and grandchildren from the maternal side are eligible to inherit the throne. J29 DW3 testified that Henry Phiri, Kazembe VIII, his cousin whose mother Manase, was Stephen Nyirenda Chitambo's sister was entitled to inherit the throne. It was also his evidence that after Henry Phiri, Lina Phiri was selected Chieftainess by her sisters the Mbumba, namely, Tafwauli, Lonia, Losinase, Justina and Cecilia Phiri. The Mbumba later selected DW 1 as Chief Kazembe. DW3 stated that he attended the meeting at Senior Chief Mwase Nthembwe's home on 29th October, 2013, where all the families claiming an interest in the Kazembe Royal family were educated on the Chewa system of succession. According to DW3, the Senior Chief M wase explained the hierarchical Chewa traditional authority and how it ascended from eleven Chiefs to Senior Chief Mwase right up to His Majesty Kalonga Gawa Undi. DW3 testified that the family members were also told that succession Chief Kazembe is through the Mbumba who constitute the electoral college. According to DW3, the Senior Chief further explained that the electoral college consisted of all the sisters of the deceased Chieftainess Lina Phiri, their daughters and granddaughters. Further, that 111 a matrilineal system only J30 Children, nieces, nephews an.d grandchildren of a Chief could inherit the throne. DW3 further testified that after the guidance given by Senior Chief Mwase all the persons present at the meeting were screened to ascertain their ties to the Royal family. After determining their status, the Senior Chief Mwase asked the Mbumbas to select a Chief based on the guidelines. ' It was DW3's evidence that the Mbumba, namely Tafwauli, Lonia, Losinase and Justina Phiri selected DWI whose name was submitted to His Maj esty Kalonga Gawa Undi. On 29th June, 2014 at Mkaika, His Majesty Kalonga Gawa Undi accepted DWI 's name and installed him Chief Kazembe on 26 th April, 2015. In cross-examination, DW3 stated that Chitete, Alufeyo and Mailess were siblings but he did not know Belita and J ela. He told the Court that his mother's sister Losinase is also known as Njilawaya. Further, that he did not know Maliya Juba but he knew Maliya who was also known as Luvunga or Kadimba. J31 DW3 testified that the family tree at page 1 of the Defendant's bundle did not accurately represent the Chief Kazembe dynasty adding that the correct family tree was in the Plaintiffs bundle. He told the Court that his mother Lina Phiri was not the first Chief Kazembe as they were others before her. DW 1 stated that the men who sit in the Mbumba meetings do so as observers and have no , say on the selection of Chief Kazembe. DW3 told the Court that PWl has ties to both the matrilineal and patrilineal side of the Royal family. He also told the Court that because PW 1 's mother was married to a Chief, in a matrilineal system, PW 1 was disqualified from inheriting the Kazembe throne. DW3 testified that his mother Lina Phiri was installed Chieftainess Kazembe with full benefits on 30th November 2008, and her position was affirmed by Kalonga Gawa Undi at the meeting held on 29th June 2014. DW3 testified that he did not know if Lina Phiri surrendered her throne to PW 1. In re-examination, DW3 maintained that PWl was not entitled to be enthroned Chief Kazembe because his father was a Chief. J32 Learned State Counsels filed written submissions on behalf of the parties, for which I am highly indebted. I shall not reproduce them suffice to state that I will take them into account in the judgment. I have seriously considered the pleadings, evidence adduced and written submissions of the parties filed herein. There is no dispute that the matriarch of the Kazembe Chieftaincy was Mwila who was married to Munyanga Zozie. The Chief Kazembe genealogy is traced by both parties from Mwila, listing the Chiefs that succeeded h er as follows: 1. Kabimba - Kazembe I 2. Nguwa - Kazembe II 3. Chitambo - Kazebe III 4 . Chitete - Kazem be IV 5. Mkazingoma - Kazembe V 6. Bungulu - Kazembe VI 7. Stephen Nyirenda - Kazembe VII 8. Henry Phiri - Kazembe VIII Following the death of Kazembe VIII, the Kazembe Chiefdom has been embroiled in controversy with the Plaintiff and Defendant J33 both asserting their rights to be enthroned Chief Kazembe. Therefore, the issues in contestation bet.ween the parties can be described thus: J (i) Whether the Kazembe Chiejtainship is Chewa or Tumbuka and if it follows a patrilineal or matrilineal system of succession? (iii) What historical role does His Majesty Kalonga Gawa Undi play in enthroning Chief Kazembe? (iv) Whether the electoral college of Chief Kazembe is composed of the four villages of the Kazembe Chiefdom or the female 1nembers of the Royal family known as the Mbumba? (v) Who between the Plaintiff and Defendant is entitled to ascend to the throne of Chief Kazembe? (i) Whether the Kazembe Chieftainship is Chewa or Tumbuka and if it follows a patrilineal or matrilineal system of succession? PW 1 testified that the Kazembe Chieftaincy is based on the Tumbuka tradition and does not follow the Chewa tradition on succession. PWl also testified that Chiefs Kazembe I, II, III inherited their throne from their father, while Kazembe IV, their niece inherited the throne from her uncle Kazembe III. J34 PW2's testimony was that the Kazembe throne's relationship to his His Majesty Kalonga Gawa Un.di, was recent and that the Kazembe Chiefdom was only subject to Senior Chief Mwase of Lundazi. PW2 and PW4 both testified that because Chiefs Kazembe V and VI had no sisters, it was impossible to follow the matrilineal system of succession. As a result the Kazembe Chiefdom resorted to ' the Tumbuka tradition and custom. PW3 did not know whether the Kazembe throne is patrilineal or matrilineal. On the other hand DWl, DW2 and DW3 contended that the Kazembe Chiefdom is Chewa and follows the strict Chewa matrimonial system of succession. Further, the Inquiry set up by His Majesty Kalonga Gawa Un.di on the Kazembe Chieftaincy on 28th June, 2006, affirmed that the Kazembe throne is matrilineal. DW3 testified that Senior Chief Mwase Nthembwe told the members of the Royal family at a meeting held on 29th October, 2013, that the Kazembe throne is matrilineal and is bound by the Chewa customs and tradition. J35 I take judicial notice that the history of the Chewa people of --~----- Eastern Province is barely documented. As a result, it has been quite difficult if not impossible to accept the parties competing assertions on the Kazembe Chieftaincy. To overcome my dilemma, I have had to resort to the "Outline History of Lundazi District", in the Plaintiff's bundle which in my view presents authoritative text ' on the customs and traditions of the Chewa people. In the Outline History of Lundazi District at page 80 in the Plaintiff's bundle, quoting relevance, the author states that: "The first major incursion seems to have taken place about 1750 and shortly after; it was part of the movement of the Chewa people from the Luapula-Lualaba Basin, by way of Southern Tanganyika, to the triangular plateau enclosed by Lake Nyasa, the Zambezi and the Luangwa. An offshoot of the Southerly movement down the west shore of Lake Nyasa was led by Mwase Nthembwe and Mwase wa Minga, now respectively Chiefs Mwase Lundazi and Mwanya, to_ occupy both the plateau and the valley south of the Lundazi river to about the present boundary between Lundazi and Fort Jameson Districts. The indigenous Tumbuka do not appear to have offered any serious resistance and to have been largely absorbed into the tribal organization of the conquerors. The Lundazi Chewa Chiefs maintained a close connection with Mwase Kasungu in Nyasaland, but only a very shadowy allegiance, if indeed any, to the larger body of Chewa who moved further south under Undi". (underlining m y own) The Outline History of Lundazi District at page 85 in the Plaintiffs bundle, shows a Copy of Tribal Map which was drafted in J36 ' 1910 by P. E. Hall Esq., Native Commissioner, 111 which Mwase Lundazi is placed in Chewa territory. Further, the Outline History of Lundazi District at page 87 of the Plaintiff's bundle, states thus: "The Lo_wer Lundazi should, I think, be called Chewa on the whole, Kazembe (Chitete} is Chewa by descent, and a sort of Chi-Chewa is generally spoken. Chewa blood slightly predominates, I think, but there is a good deal of Kunda and Viza and Senga, and a little Tumbuka. Some natives consider all the Luangwa people from the north edge of Kambwiri to the south edge of Chikwa to be practically VaKunda". (underlining my own) In consequence, I find that it rapidly falls on me to settle the issue whether the Kazembe Chieftainship is Chewa or Tumbuka. It is clear that Chief Mwase Nthembwe, who the Plaintiffs' witnesses claim to owe allegiance occupied part of Lundazi District, where he and his subjects found the indigenous Tumbuka. It is also reported in the Outline History that the Tumbuka offered little resistance to their domination by Chiefs Mwase Nthembwe and Mwase wa Minga. By implication, this meant that the Chief Mwase's were foreigners who occupied Tumbuka land. According to the Tribal Map in the Outline History, Mwase Lundazi is visibly traced to the Chewe tribe and not the Tumbuka. In addition, Kazembe (Chitete) is described to be of Chewa descent. J37 From the evidence adduced by the parties on the Chief Kazembe genealogy in the Plaintiffs bundle, there is general agreement amongst the witnesses that Chiteta was Kazem be IV and a recognized Chieftainess Kazembe. This being the case, I am led to th e inescapable conclusion that t he Kazembe Chieftaincy is Chewa and not Tumbuka as advocated by PWl and his witnesses. Thus, ' the parties are bound by their Chewa heritage. In my view, the evidence tendered by PWl, PW2 and PW4 on their ancestry being Tumbuka is misleading and a great distortion of history. It is most discontenting that PWl, PW2 and PW3 contended that their matrilineal heritage disintegrated because Chiefs Kazembe V and VI had no sisters, when the Chiefs had a sister named Manase whose son later became Chief Kazembe VIII. Surely one cannot not argue that the matrilineal line extinguished when Manase could have provided a successor. I therefore, do not accept the Plaintiff's contention that the Kazembe Chieftaincy is Tumbuka. I wish to add that I am fortified that Chief Kazem be follows matrilineal succession given that Chiefs Kazembe I - VI and VIII, all J38 inherited the throne through their 1natrilineal heritage as shown in the Plaintiff's bundle. It is only Chief Kazembe VII who inherited the throne from his father, leading to a departure from the Chewa tradition and custom. Since the issue is not on trial, I need not say more except to reiterate that the Kazembe Chiefdom is Chewa and bound by the matrilineal system of succession, which is deeply f footed in the Chewa customs and traditions. (ii) What historical role does His Majesty Kalonga Gawa Undi play in enthroning Chief Kazembe? PW l 's evidence was that after h e was selected by the Royal family members as Chief Kazembe, Senior Chief Mwase communicated his name to His Majesty Kalonga Gawa Undi so that he could be installed Chief. He also testified that although the District Commissioner handed him the instruments of power, His Majesty Kalonga Gawa Undi never installed him Chief. PW2 confirmed that after the Royal family members informed Senior Chief Mwase of PW l's selection, he told him that he would present PWl 's name to His Majesty Kalonga Gawa Undi. J39 PW2 also testified that the Kazembe Chiefdom falls under the jurisdiction of Senior Chief Mwase and the relation to His Majesty Kalonga Gawa Undi is recent. PW4 1s evidence was no different from PWl and PW2 1s evidence on Chief Mwase 's reaction to PWl 1s selection. In rebuttal, DWl testified that the Kazembe Chiefdom is Chewa and has owed allegiance to His Majesty Kalonga Gawa Undi since the 17th Century. I quickly want to point out that DWl 's evidence is supported by the Outline History of the Lundazi District. I take judicial notice that His Majesty Kalonga Gawa Undi is the head of the Chewa people . That b eing the case, I do not need to take a difficult discourse in affirming His Majesty's Kalonga Gawa Undi's paramancty on the Chewa people for the reasons given this judgment. By his own admission PW 1 is aware that His Majesty Kalonga Gawa Undi 1s responsible for enthroning Chief Kazembe. In any case, Senior Chief Mwase told the members of the Royal family that he is subordinate to His Majesty Kalonga Gawa Undi. Thus, his role in my view was misapprehended by the Plaintiffs' J40 witnesses even after the position was conveyed to them. In addition, Article 165(2) of the Constitution, bestows the responsibility on enthroning Chiefs with traditional leadership. This being the case, His Majesty Kalonga Gawa Undi's role cannot be challenged given that it is universaly accepted that he is the head of the Chewa people. ' (iii) Whether the electoral college of Chief Kazembe is composed of the four villages of the Kazembe Chiefdom or the female members of the Royal family known as the Mbumba? The evidence led by PW 1 was that the members of the electoral college are drawn from the four villages of Chitete, Kabimba, Mukazingoma and Bungulu in the Kazembe Chiefdom. PWl, PW2 , and PW4 all gave evidence that on 10th September, 2005, PWl was selected as Chief Kazembe IX and he was presented to Senior Chief Mwase. The Kazembe Royal family handed PWl the instruments of traditional power. His selection was communicated to the relevant Government authorities. J41 PWl testified that on 29 th June, 2008, His Majesty Kalonga Gawa Undi told the Royal family that PW 1 was not was not qualified to be enthroned Chief because he was a son of a former Chief. He then imposed DWl on the throne. In rebuttal, DWl testified that the electoral college comprising I the Mbumba, who are the only body empowered to select Chief Kazembe chose him. DWl refuted PWl 's claim that His Majesty Kalonga Gawa Undi imposed him as Chief, adding that he only intervened to restore order in the succession of Chief Kazembe. From the evidence adduced by the DW 1, His Majesty Kalonga Gawa Undi constituted an Inquiry whose terms of reference were twofold. Firstly to establish the matrilineal lineage of the Kazembe Chieftaincy from all the interested 1nembers of the Kazembe family; and secondly to establish who was entitled to the throne of Chief Kazembe IXth . I i i ; J42 On 28th June, 2006, the Inquiry met all the members of the Kazembe family. A further meeting was held on 30th July, 2006, chaired by His Majesty Kalonga Gawa Un.di in Katete as shown at page 30 of the Plaintiffs bundle. The relevant portion from the minutes is reproduced herebelow:- "CHIEF MBANG'OMBE'S REMARKS Chief Mbang'ombe informed the gathering that vide to the RESOLUTION of the meeting of 23rd June, 2006, the appointed entourage of Chiefs traveled to Kazembe. They had their meeting on 28th June, 2006 where all the Kazembe family were present. He went on to report that a draft family tree was prepared which revealed that most of the members present were from the patrilineal side contrary to the Chewa Royal family succession policy. Hon. Chief Mbang'ombe narrated the family tree. It was unanimously supported by Hon. Senior Chief Lukwa, Mwase, Zumwanda and Mwangala of Chadiza respectively. SUBMISSION BY MR EDWIN PHIRI Mr Phiri was requested to give a narration of the Kazembe Royal family establishment. He submitted as for Chief Mbang'ombe submitio. SUBMISSION BY MR STATESON PHIRI Mr Stateson Phiri was requested to make his narration of the Kazembe family tree. With difficulties he gave out a narrative of the Kazembe Royal family Tree and it was noted. IDENTIFICATION OF THE ROYAL MEMBERS His Royal Highness Kalonga Gawa Undi categorized the Kazembe entourage into three (3) groups as follows: Group i Royal family from the patrilineal side (i) (ii) Group ii Royal family from matrilineal side (iii) Group iii relatives to the Royalfamily. After a lengthy debate, it was decided that the following be identified as members of the Kazembe Matrimonial Royal family establishment: (i) Lina Phiri (ii) Wi llyman Phiri (iii) Tafwauli Phiri J43 (iv) Losinasi Phiri Justina Phiri (v) (vi) Simon Phiri (vii) Aaron Phiri (viii) Cecilia Phiri (ix) Loniya Phiri His Royal Highness Kalonga Ga wa Undi requested the above people to submit the names of the selected heir to the throne of Chief Kaze mbe the [)(th. SUBMISSION OF THE HEIR THE KAZEMBE THRONE TO HIS ROYAL HIGHNESS KALONGA GAWA UNDI 11TH Ms Lina Phiri, the eldest in Kazembe matrimonial Royal family establishment submitted that Mr Phillip Chitambo Nyirenda was selected heir to the Kazembe 7th throne. M,- Phillip Chitambo Nyire nda was a son to Tafwauli Phiri daughte r to Mailess of the Kazembe Royal family tree. His Royal Highness Kalonga Gawa Undi 11 t h received the nomination and set August 10t h 2006 as date to ordain Mr. Phillip Chit ambo Nyire nda as Kazembe IXt11 ... " After carefu lly analyzin g the m inutes, I find th a t th e m eeting was important in two respects. Firstly it establis h ed that the memb er s of th e Kazembe Royal family th a t attended the meeting of 28th June, 2 006, were m ostly from the patrilineal sid e. Thus, they were n ot entitled to be enthroned Chief Kaze1nbe. Secondly, the meeting established t h e Kazemb e matrilineal Royal family which is the Phiri family, the de scen dants of Mailess. J44 In the minutes of the meeting held on 29th June, 2008, at Mkaika, at pages 40 to 42 in the Plaintiffs bundle, His Majesty Kalonga Gawa Undi is recorded to have stated thus: KALONGA GAWA UNDI'S OPENING REMARKS Kalonga Gawa Undi welcomed everyone to the meeting. He emphasized that in keeping with the Chewa succession tradition, Chiefs are elected from the matrilineal line. He also cited examples of people who constitute the matrilineal family tree. He further advised that the selection of a Chief was the preserve of the members of the Kazembe matrilineal Royal family members. He, however, requested all the Kazembe patrilineal Royal family members to leave the meeting to allow chance to those that constituted the Electoral College to select the Chief. Kalonga Gawa Undi informed the Royal family members that the Electoral College for selection of Chief Kazembe had since been established and comprised the following members: i. Lina Phiri ii. William Phiri Loniya Phiri iii. Losinasi Phiri iv. Justina Phiri v. Simon Phiri vi. vii. Aaron Phiri viii. Cecilia Phiri Kalonga Gawa Undi directe d the above constituted Electoral College to go for a private meeting and come up with a nominee to the Kazembe throne. He advised the members to be factual and not to select names of those whose fathers were previously Chiefs. He added that such submission would foster squabbles in the Royal family for the fact that their fathers were previously Chiefs. He also emphasized that in keeping with the Chewa tradition of succession, Chiefs were to be selected from purely matrilineal line. Two (2) private meetings were held but the Electoral College settled for Phillip Chitambo Nyirenda. Kalonga Gawa Undi inquired as to who the father to Phillip Chitambo Nyirenda was? J45 In responding to this query, Ms Lina Phiri informed Gawa Undi that Phillip Chitambo Nyirenda · was the son to Stephen Nyirenda and Tafwauli Phiri her young sister, the daughter to Mailesi who was the daughter to Luvunga the sister to Kabimba Kazembe 1. Hon. Senior Chief Lukwa said that during their meeting with the Kazembe Royal family on 28th June, 2006 at Kazembe, they established that the only matrilineal line existed starting from Lina Phiri with her brothers and sisters going up to Mailesi on the family tree. Kalonga Gawa Undi advised the members of the Electoral College to adhere to his earlier advice. He gave them a last chance to sit and submit the name of the nominated heir to the throne. Gawa Undi received the nomination for his consideration. He advised that he would, after considering the name, call the Royal family for a meeting for recognition as nominee to be successor to Chief Kazembe ... 11 In my view the significance of that meeting is that it re affirmed the members of the electoral college. It also affirmed that PW 1 's selection as Chief Kaze1nbe was rejected by His Majesty Kalonga Gawa Undi because he was a son of a Chief. It is my view that in keeping with the Chewa matrilineal system of succession, the Kazembe Royal family then selected Lina Phiri as Chief, after tracing her descent from Mailess to Luvunga and finally Mwila. According to minutes of a meeting held on 28th April, 2014 at Senior Chief Mwase Nthembwe palace in the Defendant's bundle, the following was stated, quoting relevance only: J46 "The Senior Induna reminded the meeting that the Chewa Tradition and Culture follows totally . MATRILINEAL type of succession and does not allow PATRILINEAL system. Therefore the ELECTORAL COLLEGE consists of the sisters of the deceased chief and grandchildren. It does not allow children of the deceased chief or brothers or outsiders in the selection of a chief. Induna Chrisford further explained that no matter how much you love someone as long as he/she is not a NEPHEW OR GRANDCHILD, cannot inherit the CHIEFTAINSHIP ... SENIOR CHIEF MWASE - LUNDAZI XII REMARKS Prior to the claims of Phillip C Nyirenda against Hon. Chilcuta Mbewe, the Senior Chief advised that selecting a new Chief is entirely in the hands of the Royal family and Kalonga Gawa Undi and his Indunas do not appoint or select chiefs .... He further explained that the Kazembe Royal Family had MISLED PHILLIP C. NYIRENDA lose his employment .. This was due to IGNORANCE of the family and had nothing to do on the Law of Succession .... to TIME FOR SELECTION OF NEW CHIEF Senior Induna Chrisford E. Ngulube screened the Electoral College and rejected all men except Mr Aaron Banda as overseer. Therefore, the Electoral College comprised of: 1. Tafwali Phiri 2. Loniya Phiri 3. Justina Phiri 4. Losenasi Phiri 5. Aaron Banda (Observer) The Senior Chief Mwase ordered the electoral college to go and select the name of the successor in line with our Chewa customary law. The electoral college successfully nominated Vincent Banda, the grandson of the late Chieftainess Kazembe (Lina Phiri) from her eldest daughter. The name was submitted to Senior Chief Mwase-Lundazi without any queries. After having received the name, the name matched with the original Kazembe Family tree ... " From the foregoing extracts of the minutes, I find that the Mbumba were repeatedly stated as the electoral college for the selection of Chief Kazembe, and not the members of the four J47 villages of the Kazembe Chief dam as con tended by PW I . In the case of Chief Mpepo v Senior Chief Mwamba 1 the Supreme Court stated thus: " .... We have no difficulty in accepting the argument .... that a Chief is selected or appointed by the people of the community. The Chief is to superintend over in accordance with the customs and traditions of that community. It is n_o! the duty of the Court, as the Learned trial Judge seemed to imply to choose or impose a Chief on a community .... " (underlining my own) Being guided by the Chief Mpepo case, I find that it is not my place to choose or impose Chief Kazembe but rather to restate the choice of Chief of the Kazembe Chiefdom community who is DWI. I am bound to respect their wishes on their choice of DWI as Chief Kazembe, according to their custom and tradition. (v) Who between the Plaintiff and Defendant is entitled to ascend to the throne of Chief Kazembe? PWl and PW3 testified that PWl is entitled to be installed Chief Kazembe . PWl further testified that his right to the Kazembe throne was granted to him by Chief Kazembe V. PWI contended that DWI is not entitled to be enthroned Chief Kazembe because he J48 is not a member of the Kazembe Royal family. DWl, DW2 and DW3 disputed PWl 's assertion insisting that DWl traces his Royal connection from his grandmother, Lina Phiri to Mailess his great grandmother, the daughter of Luvunga. The issue therefore is who between the contesting parties is entitled to inherit the throne of Kazembe IXth . I have already touched on the issue in this judgment and will therefore be brief. I am satisfied that according to the Chewa system of succession which is matrilineal, PW 1 is not entitled to be enthroned Chief Kazembe. I therefore, declare without hesitation that he is disqualified from the throne of Kazembe IXth . I am satisfied on the evidence adduced by DW 1 the grandson of Lina Phiri who traces his ties to the Royal family through matrilineal lineage, is entitled to inherit the throne of Kazembe JXth. I accordingly declare that he is duly appointed Kazembe IXth . Let me state that I find no fault in the Defendant's family tree which DWl avers was drafted at a 1neeting held by the Inquiry in consultation with the members of the Kazembe Royal family. I find J49 this explanation plausible and affirms the matrilineal heritage of the Kazembe throne from the eldest female member of the Phiri family, that is Lina Phiri. It also affirms the existence of a matrilineal line from Luvunga to Mailess down to Lina Phiri, her siblings and their children and grandchildren. The cases of Senior Chief Milambo v Benson Shapi and Phillimon Mbola2 and Kenneth Kenneth Mpengula v Reverend Hudson Litana 3 are thus distinguishable from the facts of this case. In the result, the Plaintiff has failed to prove any of his claims against the Defendant. For the avoidance of doubt, I hold that the Defendant is the rightfully installed Chief Kazembe IXth . Albeit, the Defendant's claim for damages against the Plaintiff has not been proved and is therefore unsuccessful. Costs are awarded to the Defendant to be taxed in default of agreement. Leave to appeal is granted. JSO Dated this 17th day of March, 2017 flftal-p&L. J'ul,; M. Mapani-Kawirnbe HIGH COURT JUDGE