1
SELECTED JUDGMENT No. 22 of 2019 P. 725
IN THE SUPREME COURT OF ZAMBIA Appeal No. 175/2016
HOLDEN AT LUSAKA SCZ/8/208/2016
(Civil Jurisdiction)
BETWEEN:
JUDICiARY %
ABEL HACHAAMBWA 1st appellant
'^^EMURT
HAKASISI JOHN BUBALA ''^SOX 50067, 2nd APPELLANT
ESNART NG’ANDU 3RD APPELLANT
AND
CHEELO mweemba RESPONDENT
Coram: Hamaundu, Malila and Kaoma JJS
On 9th July, 2019 and 1st August, 2019
For the Appellants: Notice of non-appearance - Messrs H. M. Munsanje &
Company
For the Respondent: Notice of non-appearance - Messrs Mulenga &
Wallace Advocates
JUDGMENT
Malila, JS delivered the judgment of the court.
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P. 726
Case referred to:
1. Minister of Home Affairs, Attorney General v. Lee Habasonda (2007)
ZR177
2. Kansanshi Mine Plc v. Maini Joseph Mundumina & Others (Appeal No.
149 of 2010)
3. Nkata and Others v. Attorney General (1966) ZR 124
4. Zambia Telecommunication Company Ltd. v. Mulwanda & Others
(2012)1 ZR 404
5. Zambia Breweries Plc v. Sakala (2012) 2 ZR 460
6. Nevers Sekwila Mumba v. Muhabi Lungu (sued as National Secretary of
the Movement for Multiparty Democracy) (2014) 3 ZR 335
7. Henry Mpangwila Siwale, Reverend Siwale, Kelvin Siwale, Stephen
Siwale, Dr. Sichilindi Siwale, Peter Siwale v. Ntampalila Siwale (SCZ No.
24 of 1999)
8. Mwiinde v. Gwaba (1974) ZR 188
9. Frannk Chitambala v. The Queen (1955-1958) NRLR (Vol. VI) page 29
10. Attorney General v. Kakoma (1975) ZR 216
11. Patrick Makumbi & 25 Others v. Greytown Breweries Limited and 3
Others (SCZ Appeal No. 032/2012)
Legislation referred to:
1. Intestate Succession Act, chapter 59 of the laws of Zambia
2. Supreme Court Rules, chapter 27 of the laws of Zambia
3. High Court Rules
4. Subordinate Court Act, chapter 28 of the laws of Zambia
Customary land is of great significance to rural landholders not
merely because of its centrality to life and livelihood, but also for its
value as clan land, essential in the conceptualisation of home,
heritage and family identity. However, unclean land status as well
as undocumented allocations of such land, is increasingly
undermining customary land ownership and tenure.
J3
P. 727
This appeal involves a land dispute in a customary area in
Handoomba Village, Chief Mwanza in Monze District of the Southern
Province of Zambia. That dispute had also descended into somewhat
of a defamation tiff between the parties. It comes to us on appeal
following the decision of the High Court, sitting in its appellate
jurisdiction.
The action was commenced in a local court at Monze by the
respondent. It was transferred to a subordinate court at the behest
of the respondent, who sought to be represented in the matter by
counsel.
The facts were that the respondent, desiring to settle in
Handoomba Village, attended upon the village Headman Handoomba
with a request that he be allocated some land. Acting through his
secretary, Headman Handoomba identified a suitable parcel of land
upon which the respondent was allowed to settle. By way of
completion of the formalities for land occupation in such areas, the
Chief’s consent was sought and duly obtained, after the Chiefs
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P. 728
messenger had visited the land proposed to be allocated to the
respondent and undertaken a survey of sorts. The purpose of that
survey was to confirm that the land allocated by the Headman was
not already occupied or given out to another person.
Following his admission as a member of Handoomba Village,
the respondent cleared part of the land and cultivated it regularly
from September 1998. His occupation and use of that land was
without incident until November 2013, when the first appellant was
seen ploughing what the respondent had come to regard as his land,
using a tractor.
Unbeknown to the respondent at that time, the first appellant
considered himself to have had a legitimate claim to the disputed
land which had belonged to one Kamangilila, the grandfather to the
first appellant.
The respondent reported the incident of the appellant’s
perceived intrusion with his tractor to Headman Handoomba who
advised him to report the matter to the police.
J5
P. 729
What then transpired beggars belief. The respondent was picked
up by a team of what he called ‘neighbourhood watch members’ (but
who may well have been part of a traditional court), who convened a
meeting. At that meeting, it was alleged that the respondent had
determined to bewitch the first appellant. What can fairly be
described as a curial session resembling a kangaroo court, made up
of those neighbourhood watch members was convened. The
respondent was assaulted, charged and found guilty. He was ordered
to pay the value of seven herd of cattle (two of which were to be living
animals, while the rest was to be in the monetary equivalent).
Additionally, he was ordered to pay the sum of KI,250 as well as
K250 costs.
At the time of the verdict by that seemingly curial assembly of
neighbourhood watch members, the respondent had already
commenced legal proceedings in a local court at Monze against the
appellants. He asked the ‘neighbourhood watch court’ to avail him
the record of proceeding (the minutes) for possible reference in court
but, not surprisingly, to no avail.
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P. 730
It is these developments that prompted the respondent to
engage counsel, and to have his action in the Local Court transferred
to a subordinate court. This was duly done. In the latter court, he
sought an order directing the appellants to desist from interfering
with his quite enjoyment of the land in question. He also sought
compensation for defamation for the stigmatizing label of wizard
which had been tagged on him. Additionally, he claimed costs.
By way of defence in the Subordinate Court, the appellants
claimed that the land in question had belonged to their grandfather,
Kamangilila who lived with his brother, Hagwiinta, and they were
thus rightfully entitled to it. It was established that the appellants’
grandparents died and were buried on the land. The first appellant
claimed that his mother, Margaret Kamangilila, had given him the
authority to settle on that land. The appellants sought to assert their
entitlement to the land on the basis that Tonga customary law vests
land of a deceased person in the children.
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P. 731
When the first appellant, who incidentally was at the time
registered in the adjoining village of Headman Nangweluka, inquired
from his headman as to what arrangement had been made between
Headman Handoomba and the respondent regarding the
respondent’s occupation of his land, the response he is said to have
received was that the respondent was on the land on a temporary
basis.
The learned magistrate heard the parties and their witnesses
and received the submissions of counsel. He came to the conclusion
that the subject land had been abandoned by the children of
Kamangilila and Hagwiinta. The first appellant’s effort to reclaim the
land at the time and in the manner he did, was an effort too late. He
held that the respondent followed correctly the procedure for
acquiring the land in dispute which had no occupant at the time it
was allocated to him. In the ultimate, the learned magistrate
declared that the respondent was the only person entitled to remain
on the land. He, accordingly, granted the restraining order sought
by the respondent.
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P. 732
In regard to the defamation claim, the learned magistrate was
of the view that the respondent did not bring forth any evidence to
prove this claim. He, accordingly, treated that claim as abandoned.
He declined to take judicial notice of the neighbourhood watch court’s
order stating that, that would be an endorsement that such courts
are part of the judicature of Zambia. He awarded costs to the
respondent.
The appellants then appealed that decision to the High Court
on three short points, namely, that it was a misdirection for the
magistrate to have failed to take into account the fact that the land
in dispute devolved upon the biological children of Tikie Kamangilila
and Mazuba Hagwiinta upon their deaths. Second, that it was a
misdirection on the part of the magistrate to hold that the subject
land was vacant and had no occupant at the material time, and
finally, that the magistrate was wrong to have held that the
respondent had rightly followed the necessary procedure in acquiring
the land in dispute.
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P. 733
The learned High Court judge (Muuka J, now deceased) on
review of the evidence and the arguments, found that there was no
evidence that the proper beneficiaries of the estate of Tikie
Kamangilila and Mazuba Hagwiinta had laid claim to the land in
question, let alone settled on it. His reading of the evidence was that
the land had remained vacant for eight years before it was allocated
to the respondent, and it took another five years for the respondent
to learn of the appellants’ adverse claim to the land. He also found
that the land was vacant when it was allocated to the respondent who
had followed all necessary procedures in acquiring it. The learned
judge accordingly dismissed the appeal.
The appellants, unhappy with that judgment, have now
appealed to us on four grounds structured as follows:
GROUND ONE
The appellate judge misdirected himself and erred in law and fact
when he delivered a judgment which failed to apply any legal
authorities to the facts and evidence thereby failing to satisfy the
legal requirements of a judgment.
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P. 734
GROUND TWO
The appellate judge misdirected himself in law when he held that the
Intestate Succession Act applied to the customary land in dispute and
consequently that the Tonga customary law which vested land of a
deceased person in his biological children was changed by the Act in
relation to the land in dispute.
GROUND THREE
Having found that according to the evidence adduced in the court
below the children of Tikie Kamangilila and Mazuba Hagwiinta were
duly entitled to the land in question, the learned appellate judge erred
in law and in fact when he held that the absence of a claim to the land
negated the rights of the said children over the land.
GROUND FOUR
The learned appellate judge erred in law and in fact when he failed to
take into consideration the evidence of the appellants.
The learned advocates for both parties filed their heads of
argument in support of the parties’ respective cases, but did not
appear following their filing of notices of non-attendance under rule
69 of the Supreme Court Rules, chapter 27 of the laws of Zambia.
In respect of ground one of the appeal the appellants’ complaint
was against the standard or quality of the lower court’s judgment. It
was submitted on behalf of the appellants that the judgment of the
lower court failed to apply any legal authorities to the facts and the
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P. 735
evidence and did not meet the threshold for a standard, acceptable
judgment. The case of Minister of Home Affairs, Attorney General v.
Lee HabasondalL was cited as authority for that submission. In
particular, counsel quoted a passage from that judgment as follows:
Every judgment must reveal a review of the evidence where
applicable, a summary of the arguments and submissions, if made,
finding of fact, the reasoning of the court on the facts and the
application of the law and authorities if any, to the facts.
Counsel also referred to our judgment in Kansanshi Mine Plc v. Maini
Joseph Mundumina & Others<2).
Allusion was also made to Order XLVII Rules 20 and 21 of the
High Court Rules which state that the court has power to make any
order necessary for determining the real question in controversy in
the appeal and has power to give any judgment and make any order
that ought to have been made.
We can state right away that we do not see the relevance of
Order XLVII Rules 20 and 21 cited by the appellants’ advocates to
the argument under ground one of the appeal.
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P. 736
The response of the respondent to the argument on ground one
is that the whole ground is totally misconceived, misplaced and not
supported by the facts as recorded in the court below. It was
submitted that the two cases cited by the appellants’ counsel to
support the argument made under ground one are inapplicable and
thus misplaced because the lower court judge did, after all, cite in
his judgment the case of Nkata and Others v. Attorney Generali3).
Additionally, the lower court judge had made reference to the
Intestate Succession Act, chapter 59 of the laws of Zambia, which he
applied to the situation before him.
According to counsel for the respondent, there is no justification
to argue, as the appellants’ counsel did, that the judge below failed
to apply any legal authorities to the facts and the evidence. The fact
that the authorities used by the learned judge below did not support
the appellants’ case does not alter the position that the judge
rationalized his decision with reference to legal authorities. In any
case, submitted counsel for the respondent, the case of Minister of
Home Affairs, Attorney General v. Lee Habasondal1) cited by the
J13
P. 737
appellants did not lay down, in absolute terms, the rule that the trial
court must apply authorities. The judgment speaks of authorities if
any.
We are grateful to counsel for their very brief arguments on this
point. Indeed, although judges in this jurisdiction have a free hand
to style their judgments as they please, there is a basic structure of
a judgment which should accommodate the minimum core content
of any lucid judgment. A judgment should preferably have an
introduction which sets out the nature of the dispute, and the
identity of the parties. It should also have a narration, in summary
form, of the material facts; the issues requiring determination; a
discussion of the law relative to those issues; an application of the
law to those facts; and more significantly perhaps, the decision and
order of the court vis-a-vis the relief sought by the parties. In the case
of Zambia Telecommunication Company Ltd. v. Mulwanda & Others!4),
we spelt out and expatiated on these requirements. The decision in
Zambia Breweries Plc v. Sakala<5) was to the same effect.
J14
P. 738
We cannot ignore the fact that judges differ significantly in the
styles they employ to write their judgements. What is to us of
significance, is that the judgment should communicate the decision
on the litigated question or questions lucidly. We underscored this
point in the case of Nevers Sekwila Mumba v. Muhabi Lungu (sued as
National Secretary of the Movement for Multiparty Democracy)!6) where
we stated as follows:
We must state that judgments will vary in style, aptness, perspicuity
and elegance of diction, depending on a variety of factors, including
the judge’s own disposition, the subject matter of the judgment, the
complexity of the arguments and whether or not, a matter before the
judge is dismissed on a technical point.
We have perused the judgment complained against. The learned
judge begins the judgment by setting out what he termed as the
grounds of argument by the appellants which he listed by number.
He then, in similar fashion listed, by number, the respondent’s
arguments in response. He thereafter, moved on to make a
statement, rather in isolation, that the appellants’ argument
challenged findings of fact which the Supreme Court in the case of
Nkata & Others v. Attorney General!3) frowned up.
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P. 739
learned judge then, by ]temized
stances we identified in
challenge of findings of fact by a lower court tQ
The learned judge then moved on to ground one where he
Started with the conclusion that “the dearth of evidence in support of
this argument and the time line in the sequence of events both
contributed to the lack of merit in ground one. ” Working backwards,
he then proffered some reasons why he thought ground one could
not succeed.
He addressed ground two in six lines. All the judge stated in
those short lines was that the weight of evidence presented by the
respondent and the appellants’ own concession, all lent credence to
the fact that a claim must be secured or made in good time by a
beneficiary. He did not particularise that evidence.
Ground three was not treated any differently by the learned
judge. He started with his conclusion and preferred absolutely no
authority to rationalise his decision.
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P. 740
We agree with the appellants’ learned counsel that the judgment
of the lower court is most unconventional in the manner in which it
was structured and styled. It is a classic repudiation of all the tenets
of a good judgment as we have repeatedly identified them. We think,
therefore, that the appellants’ grievance under this ground is
legitimate.
Having said so, however, we must clarify that the poverty of a
judgment in terms of style, syntax or diction, cannot of itself ground
the success of an appeal. It has to be established whether, on the
particular circumstances of the case as presented, a decision of the
court is discernable. In other words, the determinative question
should be whether, notwithstanding the decidedly evident defiance of
the qualities of a good judgment as we have set them out in numerous
case authorities, some of which we have alluded to in this judgment,
it is still possible to identify the soul of the decision and order of the
court.
J17
P. 741
Our reading of the lower court’s judgment is that in spite of its
unorthodox formulation, there is, nonetheless, a decision of sorts and
reasons for that decision. In the event the appeal cannot succeed
merely on the premise that the shape or structure of the judgement
is not conformist; it has to be on the efficacy of the reasons assigned
by the judge for his decision, or rather the lack thereof.
Ground two alleges that the judge was wrong to hold that the
Intestate Succession Act, chapter 59 of the laws of Zambia, applied
to customary land disputes and that Tonga customary law, which
vested land of a deceased land owner in his biological children, was
changed by the Act.
It was submitted on behalf of the appellants that the disputed
land had devolved to them by virtue of a Tonga customary convention
or law which was codified in by-law No. 15 recognised by Senior Chief
Mwaanza and states that:
When a person dies, his fields remain the property of his biological
children.
The statement in the lower court’s judgment, which the appellants
are grumbling about, reads as follows:
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P. 742
The appellate court is of the opinion that By-law 15 “when a person
dies, his Helds remain the property of his biological children” has to
be applied within the provisions of the Intestate Succession Act, in
particular section five, nine, ten, or eleven which provide for the
distribution of the estate of the deceased persons who die intestate.
The Intestate Succession Act, override any customary practice or
administrative by-laws such as those tendered in the trial court
below. In fact, the Tonga customary law was effectively changed by
the provisions of the Intestate Succession Act...
According to counsel for the appellants, this finding by the lower
court in fact flies in the teeth of section 2 of the Intestate Succession
Act, which expressly states that the Act, does not apply to land which,
at the time of intestacy, was held under customary law. Counsel
then submitted that the judge was clearly in error. This ground of
appeal should, according to counsel, thus succeed.
In response to the arguments of the appellants under ground
two, the learned counsel for the respondent magnanimously
conceded that the judge was wrong on a point of law. The Intestate
Succession Act was not applicable. Counsel, however, insisted that
the judge was right in his overall finding.
J19
P. 743
Again we are grateful to both counsel for their efforts in respect
of this ground of appeal.
As regards the Intestate Succession Act and its applicability to
customary land, which is what the disputed land is, we note with
much discomfort that the learned lower court judge bravely
descended into the arena of intestacy totally uninvited by the parties
either through their pleadings or their submissions. He attempted to
make a good job of the provisions of that Act on a suo moto basis, to
justify his decision.
What the learned judge did not appear to have done, or at any
rate to have done properly, was to read, comprehend and consider
the importance of section 2 of Intestate Succession Act which, as
quoted by counsel for the appellants, clearly makes the Act
inapplicable to the dispute before the court. We entertain no
misgiving whatsoever, that the learned judge goofed. Ground two has
merit, and it is upheld accordingly.
J20
P. 744
Turning to ground three of the appeal, the appellants impeach
the conclusion of the learned lower court judge that although the
children of Tikie Kamangilila and Mazuba Hagwiinta were entitled by
Tonga custom, to the land in question, the absence of a claim to the
land negated their right.
The appellants* counsel cited by-law No. 11 of Chief Mwaahza’s
Chiefdom, which deals with allocation of fields left by persons who
have relocated. A headman does, in those instances, have power to
re-allocate such land. Counsel also cited by-law No. 15 by which,
where a person dies, the fields he leaves behind remain the property
of his biological children.
We were referred to the evidence of the first appellant, Abel
Hachaambwa, where he told the trial court that in October 2013, he
and others had gathered to erect tombstones on the graves of their
grandparents, Tickie Kamangilila and Mazuba Hagwiinta, (who were
brothers) within the land the respondent had settled on, and that the
evidence was not challenged.
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P. 745
Counsel also referred us to the evidence of Safelino Chilongo in
the record of appeal where he stated that, to his knowledge, the
disputed land belonged to Kamangilila and Hagwiinta. These two,
according to further evidence on record to which counsel referred,
were parents of the second and third appellants, respectively, and
that they did not relocate from that land but died and were buried on
it.
Counsel also invited us to consider the finding of the learned
judge below that the second and third appellants were among the
beneficiaries, and that the children of Tikie Kamangilila and Mazuba
Hagwiinta were the rightful beneficiaries of the estate of the deceased.
According to counsel, having made these finding, the learned judge
should have, in construing by-law 15, held that the land devolved
immediately to the beneficiaries rather than conclude, as he did, that
the beneficiaries were required to lay their claim to the land, and
having failed to do so, they lost their entitlement to inherit what was
in effect clan land. This finding, according to the appellants, was
wrong and ought to be reversed.
J22
P. 746
Flowing from the foregoing, it was submitted that the land in
question could not be said to have been vacant, abandoned and
without an occupant. The evidence, according to counsel, showed
that the respondent was only allocated the land to occupy on a
temporarily basis.
Reacting to ground three of the appeal it was contended, by
counsel on behalf of the respondent, that the lower court judge was
right to hold as he did. He submitted that the appellants, as the
evidence showed, failed to lay claim in time to the land in question.
Additionally, according to counsel for the respondent, under Tonga
customary law, land cannot be held in perpetuity.
After referring to by-law 11 and 15 of Chief Mwaanza’s By-laws,
counsel referred us to the evidence in the record of appeal to support
the position that all the three appellants had relocated from the
village and settled elsewhere. Furthermore, evidence on record
showed that the first and the second appellants were not even the
biological children but grandchildren of the late Tikie Kamangilila
and Mazuba Hagwiinta. In this respect, we were referred to the
J23
P. 747
Village Register in the record of appeal which showed that the first
appellant had become a subject of a different village - Hamatako
Village.
Counsel submitted that land could not be held timelessly and
that when it was abandoned, it reverted to the village Headman. The
land in question remained vacant for eight years and thus had
reverted to village Headman Handoomba who thereby became
entitled to reallocate it as he did.
Counsel for the respondent distinguished the case of Henry
Mpangwila Siwale, Reverend Siwale, Kelvin Siwale, Stephen Siwale,
Dr. Sichilindi Siwale, Peter Siwale v. Ntampalila Siwale^ from the
present case. In that case it was held that the appellant had as such
rights to the land as had the respondents, who were all children of
the deceased. While in that case there were at least one of the siblings
who remained in occupation of the land, in the present case,
according to counsel, the land had been abandoned and vacated by
all. .
J24
P. 748
Secondly, while in the Siwale(7) case both the appellants and the
respondents were biological children of the deceased, in the present
case, the first and second appellants were grandchildren who were
not and had never occupied the land in issue, and the third, the
appellant in that case had left the land to settle in another village for
thirty years.
Learned counsel also distinguished the case of Mwiinde v.
Gwaba^ on the basis that whereas in that case, the appellant had
left the village of residence temporarily so as to seek grazing pasture
for his animals, here the appellants had abandoned the village
permanently altogether. Further, it was pointed out that, whereas,
in that case the appellant did not leave his ordinary residence vacant
as his wife was resident there, in the present case there was complete
abandonment with no soul in occupation of the disputed land.
Counsel, therefore, submitted that the appellants had no
subsisting customary rights over the land at the time it was allocated
to the respondent.
J25
P. 749
We have mulled over counsel’s submissions on this ground of
appeal. Our view is that the grievance on this ground is a short one.
The question is whether there is such a thing as abandoning
customary land and what the consequences of having the appellants’
grandparents buried on the land are.
It is clear to us that the dominant issue to be determined here
involves Tonga customary law of land tenure, and in particular the
circumstances underwhich customary land previously owned may be
alienated or reallocated.
We note to begin with that the trial of this matter occurred in
the Subordinate Court. That court does, in terms of section 16 of the
Subordinate Court Act, chapter 28 of the laws of Zambia, have power
to apply African customary law, in appropriate circumstances, to
resolving disputes brought before it. We,' of course, understand the
difficulty experienced by a court in finding out, and applying the
customary law applicable to the case before it where the adjudicator
has no ethnic connection or affinity with the local environment and
is thus unlikely to have deep knowledge of the customary law in
J26
P. 750
question. It is in this light that section 8 of the Act sanctions the
hearing of such proceedings with the help of assessors. Here,
however, the court proceeded to determine the dispute unaided.
Although there is no clear statutory. provision on the point,
customary law, if relied upon by a party to a civil case, must normally
be specifically pleaded and proved by calling witnesses acquainted
with the local customs making up such customary law. The existence
of a custom may thus be proved by the testimony of witnesses able
to testify to actual occasions in the past when a particular custom
was practiced, (i.e. they are witnesses of fact); and by opinions of
those with peculiar or special knowledge of the customary law on
specific aspects. This has been the position since Sommerhough J
(High Court) articulated it in Frannk. Chitambala v. The QueenW.
The appellants in this case called witnesses that testified as to
the existence of Tonga customary practice obtaining in Chief
Mwaanza’s Chiefdom as regards land alienation and clan ownership
of land that has been physically abandoned, but still belonged to the
first person that settled there; that the fact that the grandfather
J 27
P. 751
stayed on the land and his remains are buried there is a unique
caveat of the clan’s claim to the land called in Tonga as matongo.
We note that with respect to the graves of the appellants’
grandparents, the respondent, while confirming his knowledge of
their existence, denied that they lay in the land he was allocated.
We have reviewed the evidence of the various witnesses that
testified before the Subordinate Court. The respondent’s first
witness, Pilate Chimuka (Headman Handoomba) testified that the
first appellant did not belong to his village but to the adjoining one;
that the respondent was properly settled on the disputed land which
now belongs to him. He testified that the land that had belonged to
Kamangilila was not shared and that although there are no specific
boundaries available, they, as owners of the village, know where the
boundaries are.
Leonard Namachuta Kayuma (PW3 in the Subordinate Court) a
Headman in Hamatako Village, testified that if land is unoccupied for
a long time and where the owners die or even where it remains idle
for a long time, it reverts to the headman and the Chief.
J 28
P. 752
Jethrow Mambo’s (PW4), Ng’ambela for Chief Mwaanza
(formerly headman Maarnbo), testified that if a person relocated
together with his family and no one remained on the land, then the
headman became the custodian of the land. More significantly that
such land was amenable to be reallocated, subject to the concurrence
of the Chief.
Our considered view is that traditional institutions such as the
Headman and the Chief are central in determining disputes relating
to access, use and control of land and natural resources in rural
livelihoods and are thus in the best position to settle any land
disputes arising in their communities. Although Chiefs are the
primary administrator of customary land, in practice their authority
is largely delegated to village headmen.
There is clearly disagreement recorded between the parties as
to what the custom or practice was. The evidence of witnesses who
testified on behalf of the respondent as we have captured it, appears
to have consistently taken a leaning towards the claim that the
allocation of the land in dispute to the respondent was regularly
J29
P. 753
done. The evidence called on behalf of the appellants, on the other
hand, leaned towards the very opposite end of the spectrum. That
evidence was hinged principally on the by-law No. 15 and the
conversations that were had between the appellants and the
headman Handoomba and others.
The bottom line is that the learned trial magistrate, who had
occasion to hear the witnesses in person and assess their demenour,
accepted the evidence of the respondent in preference to that of the
appellant as having been sufficiently consistent with the Tonga
customary land practice. The learned High Court judge endorsed the
findings of the learned trial magistrate. For our part, we have no
reason to disturb those findings either. We think, therefore, that
ground three is without merit and we dismiss it accordingly.
Ground four accuses the lower court of having failed to take into
consideration the evidence of the appellants in coming to its decision.
That evidence, according to the appellants’ counsel is (i) that the
appellants had given the respondent permission to be on the land on
a temporarily basis; (ii) the evidence of the first appellant’s exchange
J 30
P. 754
with headman Handoomba regarding the status of the respondent as
a temporarily occupant of the land; (iii) the evidence of the
respondent having informed the first appellant’s relatives at a funeral
held in 2012 that he was going to stop using the land in dispute; (iv)
the evidence of the third appellant to the effect that her late father
was Hagwiinta Mazuba who was buried on the land, and that the
children of Hagwiinta had given authority to the first appellant to stay
on the land.
Also, not considered, according to counsel for the appellant, was
the evidence of the third appellant to the effect that the children of
Hagwiinta and Kamangilila no longer wanted the respondent to
remain on the land and had to this effect written a letter to Headman
Handoomba, asking him to request the respondent to vacate. It was
also submitted that the evidence of Sefelino Chilongo was not taken
into account.
The respondent’s learned counsel did not address the issues
raised under ground four of the appeal specifically.
J31
P. 755
Our view is that the grievance of the appellants under this
ground is evidentiary in substance. The trial court preferred the
evidence of some witnesses to that of others. It had the responsibility
to make a judicious assessment of the evidence before it. In Attorney
General v. Kakoma<10> we stated as follows:
[a] court is entitled to make findings of fact where the parties advance
directly conflicting stories, and the court must make those findings
on the evidence before it having seen and heard the witnesses giving
evidence.
Indeed in the present case, the evidence of the various witnesses was
assessed by the court whose responsibiEty it was to place probative
value on that evidence. In Patrick. Makumbi & 25 Others v. Greytown
Breweries Limited and 3 Others<n) we observed that:
...assessment of conflicting witnesses’ evidence is in the province of
the,trial court; it does not belong here.
Although the appellants have grumbled that the trial magistrate
paid no attention to the isolated statements made by identified
witnesses, we think the overall substance of the judgment did take
into account the appellants’ position as presented. The trial court
did not have to specify what each individual witness said to show
J32
P. 756
that it had understood the gist and substance of the appellants’
grievance. In any case the appellants have not made any attempt to
demonstrate in their argument how that evidence would have
changed the overall picture of the decision of the court.
We have also examined the evidence of Sefelino Chilongo who
testified as the appellants’ third witness. The complaint by the
appellants is that the lower court did not appear to have taken that
evidence into account altogether. His evidence as recorded was fairly
brief. He was the village headman in Nagweluka village. He did not
give any evidence that was particularly illuminating in a different way
from that which the court had already heard.
We are of the considered view that in coming to his decision the
learned trial magistrate had taken a proper conspectus of the
evidence before him. The bottom line is that the trial court accepted
the evidence of the respondent in preference to that of the appellants,
hence his finding for the respondent. Ground four has no merit. It is
hereby dismissed.
J33
P. 757
The net result is that the whole appeal is destitute of merit and
is hereby dismissed.
Costs shall abide the event to be taxed in default of agreement.
SUPREME COURT JUDGE
Malila R. M. C. Kaoma
SUPREME COURT JUDGE SUPREME COURT JUDGE
