Lubinda Mubiana v Beatrice Mantinanga Sitali and Anor (Application No. SP. 85/2024) (18 November 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Application No. HOLDEN AT NDOLA SP.85/2024 (Civil Jurisdiction} BETWEEN: LUBINDA MUBIANA ELLANT AND BEATRICE MATINANGA SITALI 1 ST RESPONDENT FREDY TOLOPO RESPONDENT 2ND CORAM: CHASHI, NGULUBE AND BANDA-BOBO, JJA. On 12th November, 2025 and 18th November, 2025. For the Appellant Mr. J. Katati, Messrs Katati Newtons Legal Practitioners For the Respondent : Mrs. L. Tembo - Tindi, Senior Legal Aid Counsel, Legal Aid Board RULING NGULUBE, JA delivered the Ruling of the Court. Cases referred to: 1. Bidvest and others vs CAA Imports and Export Limited - SCZ Appeal No. 56/ 201 7 (2020) ZMSC 39 2. Savenda Management Services Limited vs Stanbic Bank (Z} Limited SCZ Selected Judgment No. 10 of 2018 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1.1 The applicant herein has moved the court by Notice of Motion for an order for leave to appeal to the Supreme Court, against this court's Judgment, that was delivered on 19 November, 2024. 1.2 The Motion is dated 2 December, 2024 and is made pursuant to Section 13(1) and 13(3) (c) of the Court ofA ppeal Act, as well as Order XI Rule l of the Court of Appeal Rules. On 19 November, 2024, we delivered a Judgment on an appeal at the instance of the applicant from the Judgment of the High Court. 1.3 The High Court found that the appellant had failed to establish his claim to the Kakumba family lineage. The court also found that the second respondent's installation at Lealui was justified and went on to dismiss the appellant's claims for lack of merit. The Court upheld the second respondent's installation as the rightful Chief Kakum ba. 1.4 In the appeal, the appellant advanced twelve grounds of appeal and we ultimately dismissed the appeal. 2.0 THE MOTION FOR LEAVE TO APPEAL 2.1 Based on the provisions of section 13(1) and section 13 (3) of the Court ofA ppeal Act, the applicant has cited subsections (a), (c) and (d) seeking leave to appeal to the Supreme Court. -R2- 2.2 The paragraphs of section 13 cited by the applicant speak to the intended appeal having reasonable prospects of success and raising points of law of public importance. In the proposed grounds of appeal, the applicant contends as follows: 1. The Court erred both in law and fact when it held that there was no evidence to the effect that there was no suitable candidate to become Chief Kakumba within the family to justify resorting to outsiders when there is evidence on record to the effect that Naliele rejected the 2nd Respondent on the basis of age and inability to deal with tribal tensions. 2. The court erred in both law and fact when it upheld the decision of the High Court that the Appellant failed to prove his claim to the throne of Chief Kakumba and that the 2nd Respondent was rightfully installed as Chief Kakumba, thereby upsetting the Status Quo which has existed for almost 10 years in the Chiefdom since the year 2015 when the Appellant herein was installed as Chief Kakumba. 3. The court erred in law and fact when it upheld the decision of the High Court to rely on the Sikalo Judgment in deciding whether the Appellant was properly installed or not, when the Appellant was never given a chance to be heard at Sikalo contrary to the Rules ofnaturaljustice. 4. The court erred in law and fact by holding that the Appellant failed to establish his claim to the throne of Chief Kakumba when the Appellant was validly -R3- installed at Naliele in the year 2015, signifying that the Naliele Kuta was satisfied that the Appellant was the right person to be installed as such. 5. The court erred in law and fact by holding that the installation of the 2nd Respondent at Lealui was properly done when it deviated from the long-standing tradition, custom and practice of the Lozi People of installing Chief Kakumba at Naliele. 3.0 APPLICANT'S AFFIDAVIT IN SUPPORT 3.1 In the affidavit in support, the applicant deposed that he is of the view that this court erred in its Judgment delivered on 19 November, 2024 and that the grounds of appeal raised in the intended memorandum of appeal bring out points of law of public importance which are likely to succeed on appeal to the Supreme Court. We were urged to grant an order of stay of execution and grant leave to appeal to the Supreme Court. 4.0 ARGUMENTS IN OPPOSITION 4.1 The respondent filed an affidavit in opposition deposed to by Limose Tembo Tindi, Counsel seized with conduct of the matter on behalf of the respondents. 4.2 She deposed that the intended appeal does not meet the threshold for the grant of leave to appeal to the Supreme Court. We were urged to dismiss the Motion. It was deposed that the -R4- Judgments of the High Court and this Court took into account the traditions, customs and practices in finding for the respondent. 5.0 APPLICANT'S ARGUMENTS IN SUPPORT OF MOTION 5.1 The applicant relied on section 13(1) of the Court of Appeal Act which provides that- " 13. (1) An appeal/ram the Judgment of the Court shall lie to the Supreme Court with leave of the court. (2) An application for leave to appeal under subsection (1) shall be made within fourteen days of the judgment. (3) The court may grant leave to appeal where it considers that- (a) the appeal raises points of law of public importance; (b) it is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; (c) the appeal would have a reasonable prospect of success; or (d) there is some other compelling reasons/or the appeal to be heard." 5.2 Further reliance was placed on Order XI of the Court of Appeal Rules which provides that- -RS- "3. Where leave is granted the appellant shall give Notice of Appeal as prescribed in these n.Lles and the order granting leave shall be included in the record of appeal. 4. Where Leave of Appeal is refused by the Court, an application for leave to appeal may be made to the Supreme Court. . . " 5.3 The case of Bidvest and Others vs CAA Imports and Export Limited1 was referred to where the court guided that- "The purpose of the whole section 13 of the Court of Appeal Act, is to enable the Court of Appeal to filter and winnow out those cases that are undeserving of the attention of the Supreme Court. Many cases of a purely private nature including many in contract and tort are unlikely to raise points of law of public importance since they quite often are designed to resolve the dispute to the satisfaction of only one or the limited parties to a particular dispute. This, however, is not in any way to suggest that such dispute would never transcend or snowball in the public arena or arouse or engage public interest or concern." 5.4 It was argued that the appeal is not private but is public as it relates to the installation of Chief Kakumba in Nkeyema District of Zambia. It was submitted that the intended appeal is neither frivolous nor vexatious and has prospects of success. -R6- 5.5 It was argued that evidence was led in the High Court that the applicant was the prefe rred choice for the Chieftaincy as opposed to the second respondent, due to his age and capabilities in dealing with tribal issues. 5.6 It was further contended that the applicant was not given an opportunity to be heard by the Namuso Court before it made the decision that he was not properly installed by the Naliele Court. It was the Namuso Court which then installed the second respondent as Chief Kakumba in place of the applicant. It was submitted that the rules of natural justice were not adhered to and that this disadvantaged the applicant. 5.7 It was argued that Chief Kakumba has always been installed in Naliele and not in Lealui in accordance with tradition and customs. It was submitted that this appeal has prospects of success and that there are clear and compelling reasons why leave to appeal to the Supreme Court should be granted. 5.8 It was submitted that the intended appeal has high prospects of success and that there are clear and compelling reasons why the appeal should be heard. 5.9 It was further argued that the appeal raises issues of public importance. We were urged to grant leave to appeal to the Supreme Court for the aforestated reasons. -R7- 6.0 HEARING 6.1 At the hearing of the Motion, both Counsel relied on their arguments with brief augmentation. 7 .0 DECISION OF THIS COURT 7. 1 We have considered the motion, the affidavits in support and in opposition as well as the affidavit in reply. We have also considered the List of Authorities and Skeleton arguments. 7.2 In the cases of Savenda Management Services Limited vs Stanbic Bank (Z} Limited2 and Bidvest Food Zambia Limited, Chipkins Bakery Suppliers (PTY} Limited, Crown National (PTY} Limited, Bidfood Ingredients (PTY} Limited and Bidvest Group Limited vs CAA Import and Export Limited (supra}, the Supreme Court set out the threshold that must be met before leave to appeal, can be granted under any one of the three heads. These are whethera} The appeal raises a point of law of public importance; b} c) The appeal has reasonable prospects of success; or d) There is some other compelling reason for the appeal to be heard. -R8- 7.3 In view of the guidance of the Supreme Court, we are of the view that the issues raised by the applicant do not amount to a legal question to be treated as points of law of public importance. 7.4 Having considered the intended grounds of appeal, we find that the required threshold has not been met. It is our view, that the intended appeal does not raise any points of law of public importance, nor are there any reasonable prospects of it succeeding. Further, there are no other compelling reasons for the appeal to be heard. It follows that the application for stay of execution falls away as it is predicated on the motion for leave to appeal. 7 .5 Consequently, we dismiss the Motion £ lack of merit. We make no order for costs. J. CHA I COURT OF APPEAL JUDGE ~ P. C. M. NGULUBE A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -R9-