THE Supreme Court has upheld Lusaka High Court decision to grant an order of interlocutory injunction to Chief Chiyengele of the Mbunda-speaking of Western Province to remain recognised as chief until the matter is determined.
The Lusaka High Court rcently granted the chief an injunction restraining the Litungu’s Royal Establishment from interfering with Chief Chiyengele.
However the defendants’ indunas Tawela Akapelwa, Mwangala Akapelwa, Steven Nawa Matongo and Simakando Siyunda appealed to the Supreme Court against the granting of an injunction.
In a judgment delivered by Supreme Court judge Gregory Phiri on behalf of other judges Evans Hamaundu and Mumba Malila recently, the court dismissed the appeal.
The High Court had ruled that if the injunction was not granted, the respondent would suffer irreparable damage.
Mr Justice Phiri said the chief feared that the whole cultural and traditional order for the Chiyengele chiefdom of the Mbunda speaking people was bound to suffer while he was precluded from performing functions of a chief.
“If, in the present case, an order of injunction was not granted, but the appeal succeeded, the respondent will have suffered the pains and penalties of the decision of the Kuta, and a de-gazzeting of his chieftaincy,” he said.
Mr Justice Phiri said the court was unable to see how appellants would suffer prejudice than the respondent if the injunction was not granted pending determination of the action in the High Court.
He said the veracity of allegations of misconduct on Chief Chiyengele are a matter for the trial judge to determine and that he had not gone to court to seek an equitable remedy with soiled hands.
“We think the exercise of discretion by the learned judge in the court below was judicious. Applying all the above principles to the ruling of the lower court, it seems to us that the lower court’s decision is unassailable. The result is that the appeal is dismissed. Costs shall follow the event, to be taxed in default of agreement,” he said.
And Chief Chiyengele has asked the Lusaka High Court to grant him a leave to apply for judicial review against the decision of revocation of his recognition as chief.
The chief said before the court could deliver its judgment on appeal and before the trial could be heard in the High Court, the President proceeded on June 5, 2015 to issue Statutory Instrument no. 29 of 2015 revoking his recognition without affording him an opportunity to be heard on the allegations that precipitated the request for withdrawal of his recognition as chief.
He said he had legitimate expectation that he would be called to give his side of the story during the inquiry before any decision was made whether or not to withdraw his recognition.
“I also had legitimate expectation that if there was any issue to be resolved regarding my chieftaincy the same would be resolved by the community of Mbunda speaking people of Mushuwa palace in accordance with the provision of Article 127(2) of the Constitution of Zambia and not by any other tribe outside the Mbunda Royal Establishment.
“I reasonably believe that the President acted outside the jurisdiction of the law by allowing himself to be influenced by the Lozi Royal Establishment in demanding for the withdrawal of my recognition as Chief Chiyengele,” he said.
Chief Chiyengele said the action by the President to de-gazette him as chief was not in line with section 4 and 5 of the Chief Act Chapter 285 of the Laws of Zambia.
He said the President acted illegally in proceeding to withdraw his recognition based on the request of the Litunga when the Chief’s Act did not give any powers at all to the Litunga to demand the withdrawal of recognition of any dully recognised chief in Western Province.
Chief Chiyengele asked the court to quash the decision of President Lungu to withdraw recognition of his chieftaincy on the ground of illegality, procedural impropriety and irrationality.
He is also seeking an order prohibiting the Litunga and the Royal Council (Kuta) from doing anything that would give effect to the decision