Robert Manja and Nsaka Yelala v Peter Bervin Ngosa (APPEAL NO. 238/2023) (28 February 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO 238/2023 • HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN ROBERT MANJA 1 ST APPELLANT NSAKA YELALA 2ND APPELLANT AND PETER BERVIN NGOSA RESPONDENT CORAM: MCHENGA DJP, MUZENGA AND CHEMBE JJA ON 16th January and 28th February, 2024 For the Appellants Mrs. G. Nkonde - Messrs Grace and Partners Advocates For the Respondent Mr. A. Mbambara - Messrs A. Mbambara Legal Practitioners JUDGMENT Chembe JA delivered the judgment of the Court. Cases referred to: 1. The Minister of Home Affairs and the Attorney General v Habasonda (2007) ZR 207 2. Zambia Telecommunication Company Limited v Mulwanda and other (2012) ZR 404 3. William Harrington v Dora Siliya and the Attorney General SCZ No 14 o/2011 4. Masauso Zulu v Avondale Housing Project (1982) ZR 5. Sentor Motors Limited and 3 othersjudgment No 9 of 6. Vincent Mulevu Musukuma and another v major Baster C Chibanda and 2 others SCZjudgment No 33 of 2014 7. Zambia Consolidated Copper Mine v Mutale (1993-94) ZR 8. Kapembwa v Maimbolwa and another (1982) ZR 127 9. The Attorney General v Marcus K Achuime (1983) ZR 1 10. BP Zambia PLC v Zambia Competition Commission and others SCZ Judgment No 22 of 2011 11. Scherer v Counting Instruments Limited (1986) 1 WL 615 12. YB and F Transport Limited v Supersonic Motors Limited SCZ Judgment No 3 of 2000 13. Muwowo and another v Muwowo 2014/ZM HC 14. Nkhata and four others v The Attorney General (1966) ZR 15. AMI Zambia Limited v Peggy Chibuye SCZ Judgment No 8 of 1999 16. Ubuchinga Investments Limited v Teklemicael Menstab and Semhar Transport and Technical Limited 2014 ZMSC 2 1 7. Senior Chief Chibala and Another v Muchinshi SCZ Appeal No 216/2012 .. 18. Mutale v ZCCM (1993-1994) ZR G4 19. BP Zambia PLC v Zambia Competition Commission and others SCZ Judgment No. 22 of 2011 20. Masauso Zulu v Avondale Housing Project (1982) ZR 172 21. Zambia Consolidation Copper Mines v Mutale (1993- 1994) ZR94 22. Simon Kalaba Chisha and others v Philipion Mbola Appeal No 192 of 2007 23. Mathew Namahalika Musokotwane v George Simundu Simukali and others SCZ Appeal No. 97 of 2015 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Honourable Mr. Justice K. Limbani delivered on 18th February 2022. In the said judgment, the learned Judge found that the selection of the 1 st Appellant as chief Muchinka was not conducted in accordance with the Lala custom and tradition. 1.2 He also dismissed the Respondent's claim that he was selected to be the heir to the Muchinka chieftainship. 2.0 BACKGROUND 2. 1 The brief background to the appeal is that the respondent commenced an action against the Appellants by way of writ of summons claiming the fallowing reliefs 1. An order that the Plaintiff is the rightful person to be installed as chief Muchinka of Muchinka chiefdom as he is a member of the Nyendwa family tree. 2. An order that the method used by the 2nd Defendant to elect the 1 st Defendant as chief Muchinka was wrongly done. 3. An order for an interim injunction restraining the 1 st defendant to be installed as chief Muchinka as he is not a member of the Nyendwa family tree. 4. Costs 5. Any other relief the court may deem fit 2.2 According to the statement of claim, following the death of chief Muchinka in December 2016 the royal family sat to choose a successor. The Respondent who hailed from the Na Mulikita womb or line was selected. However, the 1st Appellant was also selected as the heir apparent at another meeting. 2.3 The Plaintiff averred that the 1 st Appellant was not eligible to succeed the throne as he did not belong to the Na Mulikita line which produces chiefs. He also that the 2nd Defendant had no authority over the selection of a new chief. 2.4 He prayed that he be declared the ne,~ chief Muchinka. 2.5 The Appellants in their defence maintained that the 1 st Appellant was a member of the Royal family in the Muchinka chiefdom and was eligible to succeed. 2.6 They averred that the 2nd Appellant was responsible for choosing a successor to the Muchinka throne and at the meeting, the Na Mulikita line failed to come up with a candidate. 2.7 The Appellants also maintained that the 1st Appellant was duly selected as the new chief after beating two other candidates. 3.0 THE RESPONDENT'S EVIDENCE 3.1 The Respondent called four witness during the trial. The evidence adduced was that fallowing the death of chief Muchinka, the members of the royal family met on 4th February 201 7 and selected the Respondent as the new chief as he hailed from the Na Mulikita line which produced chiefs. 3.2 The Respondent later learned that the 1 st Appellant who was not from the Mulikita line had been elected as chief at another meeting. 3.3 According to the Respondent, the 1 st Appellant was not eligible to succeed to the Muchinka throne because he was a descendent of the Na Chisanshilo line who was prohibited from producing an heir. This was because when the 1 st chief Nkonde Musela developed leprosy during his reign, his sisters Kalyabane and bana Chisanshilo refused to look after him. He was looked after by bana Mulikita who also kept the instruments of power. And since then the chiefs who followed came from the Na Mulikita line. 3.4 There was also evidence that the 2nd Appellant had no power to select the new chief as its role was mainly advisory. It was argued that the selection of the 1 st Appellant which was presided over by the 2nd Appellant was therefore flawed. 4.0 THE APPELLANTS' EVIDENCE 4.1 The Appellants also called 4 witnesses. Their evidence was that after chief Muchinka passed away, the royal family was given 3 months to choose a successor. 4. 2 There were four lines from the family tree who could produce a successor namely Na Chisanshilo, Na Sangwe, Namulikita and Namalilo. Each line was asked to choose a candidate. The Na Mulikita line chose the Respondent, Ivy Changwe, Benson Kalunga and Cheene. 4. 3 The other family lines fielded candidates as well and due to the large number of eligible candidates it was agreed that the selection would be by vote. Some candidates withdrew and at the time of voting there were only 3 candidates being the 1 st Appellant from the Na Chisanshilo line, Benson Kalunga from the Na Mulikita line and Aphet Ngosa Chola from the Na Sangwe line. 4 .4 They agreed that the Electoral College would be 20 members from each line. After the vote, the 1 st Appellant emerged the winner. There was undisputed evidence that the Respondent was not a candidate during the election for a successor. 4.5 The Appellants denied the allegation that the Na Chisanshilo line was disqualified from ascending to the throne due to a curse by the 1 st chief although they admitted that the chief was taken care of by bana Mulikita when he contracted Leprosy. 4.6 There was evidence that Able Mupeta from Na Chisanchilo line had reigned as chief Muchinka. That upon his death, the chieftancy had reverted to the Na Mulikita line. 4.7 The Appellants contended that the chieftancy rotated between the four lines in the royal family tree and the 1 st Appellant was therefore eligible to succeed the throne. 5.0 DECISION OF THE LOWER COURT 5.1 Upon considering the evidence and submissions the learned trial Judge found that there were four lines who descended from Chief Nkonde who formed the royal family being Na Mailo, Na Chisanchilo, Na mulikita and Na Sangwe. 5.2 The trial Judge accepted the Respondent's evidence that the Namulikita line was the favoured line from which chiefs were appointed and rejected the Appellants' explanation that the chief Nkonde was nursed by Na Mulikita as punishment for having bewitched him as being unreasonable. 5.3 He found that the 2nd Appellant had no authority to participate in the selection of a new chief as its role was largely advisory. 5.4 The trial Judge determined that the election of the 1s t Appellant as the successor to chief Muchilika was void ab initio as he did I not belong to the Nyendwa clan. He also found that the selection of the 1s t Appellant was not in accord with the Lala custom and tradition. 5.5 The trial Judge declined to declare that the Respondent was duly selected as the new chief because the meeting at which he selected was not conclusive. He left the selection of the new chief to the royal family and awarded costs to the Respondent on the ground that his claims had partially succeeded. 6.0 THE APPEAL 6.1 Aggrieved with the decision of the lower Court, the Appellants have appealed to this Court fronting the following grounds. 1. The Honourable trial Judge misdirected himself in law and fact in failing to fully adjudicate on the matter. 2. The Honourable trial Judge erred by making findings of fact hereunder, which were not supported by evidence. (a) "The matter accordingly succeeds to the extent that the 2nd Defendant was wrongly elected to the heir of chief Muchinka and that he is not a member of the favoured Nyendwa family tree". (b) "I also find that the meeting that was held to select the chief at which PW1 was among the persons considered was not conclusive, a position that both PWl and PW3 confirmed. As per the minutes there was no chief selected. However the selection was as per the custom and traditions". (c} "After considering the adduced evidence, I find the selection of DWl to succeed the late chief is void ab initial as he does not belong to the family tree that ascends to the chieftainacy, that is, the favoured Na Mulikita family. The process that was also used in the selection of DWl is not as per Lala custom and tradition. (d} "It is clear from the above that the Namulikita family was favoured after it took care of the late chief Nkonde and was therefore blessed with chieftanacy. It is clear that the proper was of choosing the successor to the late chief is by the family selecting who succeeds and not through the guidance of the 2nd Defendant. There is no voting in the process". 3. The trial Judge misdirected himself in fact by glossing over the fact that the family tree for the Nyendwa clan comprised of four matriarchs namely Namalilo, Na Chisanshilo, Na Mulikita and Na Sangwe who were all eligible to rule. 4. The trial Judge misdirected himself in law and fact in disregarding the norms and culture of the Muchinka clan which led to the ascendancy of the 1st Appellant as he did not sit with assessors. 6 The trial Judge misdirected himself in glossing over the fact that the Respondent was not chosen as a candidate by his own family and ergo cannot be given legitimacy_t o complete the selection process. 7. The trial Judge erred in law by awarding costs to the Respondent when the Respondent was unsuccessful in his quest to be declared chief Muchinka. 7.0 APPELLANTS ARGUMENTS 7 .1 In support of the first ground of appeal, Counsel for the a Appellants submitted that the trial Judge failed to fully adjudicate the matter when he failed to make an order that the Respondent was the right person to be installed as chief Muchinka. He instead ordered that the process of appointing a new chief should be completed after which he would make an order confirming the selection. 7.2 Counsel contended that that the trial judge should have made a finding that the Respondent had failed to prove his case. He referred us to the cases of The Minister of Home Affairs and the Attorney General v Habasonda1 and Zambia Telecommunication Company Limited v Mulwanda and others2 where the Supreme guided on what constitutes a judgment. Our attention was also drawn to the case of William Harrington v Dora Siliya and the Attorney General 3 where it was held that a Court should adjudicate on all issues placed before it in order to achieve finality. 7 .3 It was submitted that there was no finality in the Judgment delivered as the Court had abdicated its responsibility to an extra judicial body by merely stating that the selection process should be completed. Reference was made to the cases of Masauso Zulu v Avondale Housing Project:', Sentor Motors Limited and 3 Others5 and Vincent Mulevu Musukuma and another v major Baster C Chibanda and 2 others6 on the duty of a Court to adjudicate fully on all matters before it. 7.4 It was the Appellants' contention that there was no finality in the judgment as the issue of selection of the successor to the Muchinka throne was left in abeyance. 7.5 The Appellants argued grounds two, three and six together. It was submitted that the finding by the trial Court that the 2nd Defendant was not a member of the Nyendwa family tree was flawed and was not supported by evidence. The evidence adduced showed that the Nyendwa clan comprised of four matriarchs namely Namalilo, Nachisanshilo, Namulikita and Nasangwe which the trial Judge glossed over. 7.6 The Appellants submitted that in view of the divergent views on who was part of the Nyendwa family tree, the trial Judge ought to have sat with assessors. They maintained that the evidence on record supported the position that the 1 st Appellant was a member of the royal family. 7. 7 It was submitted further the trial Judge fell into error when he held that the process used to select the 1 st Appellant as the successor to the late chief was flawed as it was not according to Lala custom and tradition without referring to any evidence establishing the said custom. 7 .8 Regarding the finding that the Namulikita line was the favoured family to produce a successor, it was submitted that there was no evidence adduced to support this finding rendering it perverse. In support of the argument, we were referred to the cases of Zambia Consolidated Copper Mine v Mutale7 , Kapembwa v Maimbolwa and another8 and The Attorney General v Marcus K Achuime9 which addressed the issue of perverse findings by a trial Court. We were urged to interfere with the findings of fact by the trial Court and reverse them. 7.9 Regarding ground four, the Appellants contended that in the absence of assessors, the evidence of the witnesses ought to have been evaluated objectively. They charged that the trial Court ignored the evidence of the 2nd Appellant which possessed deep knowledge of the culture of the Lala people. 7.10 We were referred to section 8 of the constitutional Court Act No 8 of 2016 which recognizes the use of assessors. It was submitted that the trial Court not being an authority in Lala customary law should have invoked section 34 of the High Court Act and sat with assessors. 7 .11 On the award of costs to the Respondent, the Appellants argued that as the trial Court did not grant the Respondent the order he sought, the trial Court should not have awarded him costs. We were referred to the cases of BP Zambia PLC v Zambia Competition Commission and others10 Scherer v Counting , Instruments Limited11 and YB and F Transport Limited v Supersonic Motors Limited12 which guide that generally costs follow the event. 7.12 It was submitted that it was unjust to award costs to the Respondent in the circumstances. We were urged to allow the appeal. 8.0 RESPONDENT'S ARGUMENTS 8.1 In relation to the 1 st ground of appeal, the Respondent submitted that the trial Court did in fact adjudicate on all matters that were pleaded. 8. 2 We were refe rred to page 36 of the record of appeal where the trial Court considered the evidence and made findings of fact. It was submitted that the trial Court did not have a duty to determine matters which were not pleaded. 8.3 The Respondent also argued that there was nothing remiss about the trial Judge's failure to hold that the Respondent was duly selected and should be installed as chief. We were refe rred to the case Muwowo and another v Muwowo13 where it was held that it was not for the Court to decide that the Plaintiff be installed as chief. The Court made a finding that the proper way to select a successor was by the royal family selecting a successor. 8.4 On grounds two, three and six, the Respondent's position was that the trial Court's findings were based on the evidence adduced and cannot be said to be perverse. It was submitted that the trial Judge analysed the evidence from both sides as shown on page 35 of the record of appeal. 8. 5 We were referred to the cases of Nkhata and four others v The Attorney General14 and AMI Zambia Limited v Peggy Chibuye15 where guidance was given on the circumstances under which findings of fact can be reversed. 8.6 Regarding ground four, the Respondent submitted that it was not mandatory for a High Court to sit with assessors. The Appellant referred to the cases of Ubuchinga Investments Limited v Teklemicael Menstab and Semhar Transport and Technical Limited16 and Senior Chief Chibala and Another v Muchinshi17 where it was held that the calling of assessors was discretionary. It was submitted that there was no need to call assessors as the evidence was clear and sufficient to enable the Court make a determination. 8.7 In relation to the award of costs, the Respondent argued that according to the Record of Appeal at page 36, the trial Judge found that the Respondent's action was partially successful in view of the determination that the 1 st Appellant was wrongly selected as the heir to chief Muchinka. It was argued that the Court followed the rule that the successful party is awarded costs. The cases of Mutale v ZCCM18 BP Zambia PLC v , Zambia Competition Commission and others19 and Kuba Chambers v Concillia Subilo were cited to buttress the argument that costs follow the event. 8. 8 We were urged to dismiss the appeal. 9.0 DECISION OF THIS COURT 9.1 We have carefully considered the judgment appealed against, the record of appeal and arguments by both sides. In the first ground of appeal the Appellants argue that the trial Judge did not fully determine all the issues before it. 9.2 It is trite law that a trial Judge has a duty to adjudicate upon every issue in a suit. In the case of Masauso Zulu v Avondale Housing Project20 the Supreme Court held that ''the Court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter is controversy determined in finality" 9.3 From the heads of argument 1n support of the appeal, the Appellants have not clearly articulated which aspect of the suit was not adjudicated upon. The Appellants appear to suggest that the trial should have made a finding that the Respondent had failed to prove his claim that he was the duly selected successor to the Muchinka throne instead of referring the issue back to the royal family. 9. 4 Perusal of page 36 of the record of appeal shows that the trial Court found that the Respondent was not selected as chief as the process was not conclusive. The Judge went on to state as follows: "This Court can therefore not make an order that he is the rightfully person to be installed as chief Muchinka of the Muchinka chiefdom. The whole process has to be completed for the traditional leaders or the royal family to confirm the selection after which the Court may make the orders". 9.5 In our view although the trial Judge did not state the Respondent had failed to discharge his evidential burden of proof, it is clear that this was the conclusion of the Court. We do therefore do not agree that the trial Judge failed to adjudicate on the issues before him. 9.6 However, we agree that that there was no finality in the Judgment of the court below as there appeared to be a suggestion that the process of appointing the Respondent needed to be completed after which the court could confirm the appointment. This was a grave misdirection on the part of the trial court. 9.6 We note further, that the Appellants proceeded to argue that the judgment of the Court below fell short of the requirements of a judgment as set out 1n the case of Zambia Telecommunications Company Limited v Mulwanda (supra). Whilst we agree that the findings of the trial judge were not properly reasoned, the Appellant did not raise this as a ground of appeal. To the extent that none of the grounds of appeal challenged the quality of the judgment, we are of the view that reference to the issue was misguided. 9. 7 In view of the failure to identify any issue which the trial Judge failed to determine, the 1 st ground of appeal fails. 9.8 Regarding grounds two, three and six, the Appellants submitted that the trial Judge made findings of fact which were not supported by evidence. We were urged to reverse the said findings of fact. 9.9 At page 36 the Judge held that the 1st Appellant was wrongly elected as he was not a member of the favoured Nyendwa family tree. We have carefully perused the proceedings. At page 280 of the record of appeal, the Respondent under cross examination told the Court that the Nyendwa clan had four families who all descended from the Na Mulikita line. However, at page 227 of the record of appeal, PW3 conceded that the Nyendwa clan included other families apart from Namalikita line who did not reign. 9.10 This position was supported by the 1st and 2nd Appellants who both testified that the four matriachs who farmed the royal family were Namalilo, Nachisanshilo, Namulikita and Nasangwe. 911 None of the witnesses testified that the Nyendwa clan was the favoured clan as held by the trial Court. In our view, this finding was perverse and was not supported by evidence. 9.12 The Appellants also charged that the finding by the trial Judge that selection process for the Respondent was in accordance with the Lala custom and tradition was not supported by evidence. 9.13 We are inclined to agree with this submission as the minutes of the meeting (at page 148 of the ROA) at which the Respondent was allegedly selected show that two groups chose their preferred candidates. The Respondent's family chose him and Ivy Changwe while the other group chose someone who is not named in the minutes. 9.14 In our view, there was no evidence to support the finding that the correct procedure for selection was followed in the meeting held by the Respondent's family. According to the minutes there was confusion at the meeting on which family line should produce a successor. 9. 14 The evidence on record from both sides was that the royal family was responsible for selecting the successor. However, the trial Court did not make a finding on who constituted the royal family as there was divergent evidence from the two sides. 9.15 Although the trial Judge accepted the Respondent's evidence that the Na chisanshilo line from which the 1 st Appellant descended was banned from producing heirs to the throne, there was no evidence that they were not members of the royal family and had no say in the selection of a chief. 9. 16 We, therefore, determine that the finding that the selection was done in accordance with Lala custom was perverse as there was no evidence that the royal family was properly constituted. 9. 1 7 Regarding the finding that the selection of the 1 st Appellant was void because he did not belong to the favoured N amulikata line and the selection was contrary to the Lala custom and tradition, we are of the view that there was evidence that supported this view. 9.18 DW2 conceded during cross examination, that the selection of the successor to chief Muchinka's throne was done by the royal family and that there was no voting involved. It followed therefore that the selection of the 1 st Appellant who was selected via a vote was contrary to the Lala custom. 9. 19 Further, the trial Court accepted the evidence from the Respondent and his witnesses that the Nachisanchilo line was banned from producing chiefs because their ancestor had refused to take care of chief Nkole when he was afflicted with leprosy. He rejected the Appellants' version that the Na sangwe line looked after the chief as punishment for bewitching him. 9.20 However, I note from the record that there was evidence that not all chiefs who had reigned had come from the Na Mulikita line " as Elia Chebaika, who was Chief at some point, descended from the Nasangwe line. The finding that the Namulikita family was the only one which could produce chiefs was therefore flawed and without basis. 9.21 In the case of Nkhata and four others v the Attorney General 14 the circumstance under which the findings of fact of a trial Court can be reversed by an appellant were clearly articulated as follows: a} By reason of some non-direction or otherwise the Judge erred in accepting the evidence which he did accept; or b) In assessing and evaluating the evidence the Judge had taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or c) It unmistakably appears from the evidence itself, or from the unsatisfactory reasons by the Judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or d) In so far as the Judge has relied on manner and demeanor there are circumstances which indicate that the evidence of the witnesses which he accepted it is no credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer." 9.22 In the more recent case of Zambia Consolidation Copper Mines v Mutale20 the Supreme Court held that finding of fact becomes a question of law when it is a finding not supported by evidence or when it is one made on a view of the facts which cannot reasonably be entertained. 9.23 In the present case, the trial judge made findings of fact which were not supported by evidence. The evidence adduced was not clear as the parties gave very divergent stories. In our view the trial judge ought to have assessed and evaluated the entire evidence and given a reasoned explanation for believing one version over the other. For the most part, the evidence adduced was inconclusive and therefore the trial judge did not take advantage of seeking clarifications from the witnesses. On the issues raised by the Appellants in ground two, three and six, we cannot uphold the findings of the trial Court for reasons stated above and will interfere with the findings. These grounds are accordingly allowed. • 9.24 In ground 4 the Appellants challenge the trial Court's failure to sit with assessors. As correctly argued by counsel for the Respondent calling of successor is at the discretion of the Court. Section 34 of the High Court Act is not couched in mandatory terms and the trial Court can choose to sit without assessors especially were witnesses possessed with knowledge of customary law are called. The Supreme Court clarified this position in the case of Senior Chief Chibale of Another v Muchinshi (supra). This ground of appeal lacks merit and is dismissed. 9.25 With regard to ground 7 which questions the award of costs to the Respondent despite him only being partially successful, the Appellants do acknowledge that the Respondent succeeded in one of his claims. The plethora of authorities cited by the Appellants including the case of BP Zambia PLC v Zambia Competition Commission and others guide that costs are at the court's discretion and are awarded to the successful party. The Appellants also acknowledge that in this jurisdiction costs follow the event. 9.26 However, strangely, the Appellants argue that the Respondent having been only partially successful cannot be deemed to have • been successful. We do not agree with the Appellants' reasoning in this regard. The Respondent succeeded in having the selection of the 1 st Appellant as the successor to Chief Muchinka declared null and void which was one of the main claims. The Respondent having partially succeeded was entitled to his costs. This ground according fails. 10.0 CONCLUSION 10. 1 The appeal partially succeeds in ground two, three and six. 10.2 We would be failing in our duty if we did not address the confusing last paragraph in the judgment complained of. The trial Court appeared to suggest that as the process for selecting the Respondent was not conclusive and the matter had to be completed by the traditional leaders and or royal family to confirm the selection of a chief. Thereafter, the Court would make an order declaring the Respondent the rightful person to be installed as chief Muchinka. 10.3 The above order is not only unclear but also wrong at law as it ~ • presupposes that the trial Court will have jurisdiction to make a declaratory order when the selection is complete. It is trite law that once judgment is delivered, the Court becomes functus officio and cannot make any further orders. 10.4 The trial Judge fell into grave error when he made such an order. He should have merely referred the matter back to the Nyendwa royal clan to select the successor to the Muchinka chieftaincy in accordance with their custom and tradition. We are guided by the Supreme Court holding in the case of Simon Kalaba Chisha and others v Philimon Mbola22 that it is not for the Court to decide who should be installed as chief. In view of the foregoing, the last paragraph of the judgment of the Court below is set aside. 10.5 We note that the evidence adduced did not disclose the custom and tradition of the Lala people relating to the selection of a successor to Chief Muchinka chieftaincy or the composition of the royal family. There also appears to be no acceptable family tree which would guide in identifying eligible candidates. 10. 6 The above issues need to be resolved before the successor 1s . ' • selected. We, therefore, guide that the Nyendwa Royal family members must urgently convene a meeting to be attended by all stakeholders to agree and document the family tree and the current custom and tradition. Thereafter an eligible successor may be selected in accordance with the Lala custom and tradition to fill the vacant throne of Chief Muchinka. 10.7 We are guided by stance taken by the Supreme Court in the case of Mathew Namahalika Musokotwane v George Simundu Simukali and others23 where it provided guidance , to the parties to break the impasse in a succession wrangle. 10.8 We award costs to the Appellants. 28