Konkola Copper Mines Plc v Kalymnos Processing Limited and Anor (2018/HKC/0030) [2022] ZMHC 33 (26 September 2022)

r IN THE HIGH COURT FOR ZAMBIA 2018/HKC/0030 ALBERTINA KASHIBA PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT Before the Hon. Mr. Justice E. Pengele on 26th September, 2022 For the Plaintiff: Mr. T. Chibeleka with Mr. N. Chaleka and Ms. S. Banda of Messrs. ECB Legal Practitioners. For t he Defendants: Mr. G. Miti of Messrs. Wilson & Cornhill Legal Practitioners. Mr. J. Sinkala of Messrs. Freddie & Co. Mr. L. K. Phiri and Ms. C. Muleya of Messrs. KBF and Part:q,~r.f.~ ': •• . \. •_,. • ., '."'.'-'•.c . ... .. : ~ ,'; ''~., JUDGMENT Cases referred to: -:, \' _~. ~ \ ,_ ..... \.. \\\ \ .. \ . -- . -, ::~~<t~·'.·i· .·. · ~ :-: · -. ·-.: / . ' . 1. Konkola Copper Mines Plc V. Rephidim Mining and . ·~ i i , s i :plies Limited, Mimbula Minerals Limited and Moxico Resources Limited Appeal No. 74/2018; 2. Francis Xavier Nkhoma V. Godfrey Miyanda (Sued in his own behalf and on behalf of Movement for Multiparty Democracy) SCZ/8/61/94; and 3 · Konkola Copper Mines Pie V. Martin Kalunga and Others, 2 00S/HK/6 8 (Unreported). Legislation referred to: a. Mines and Minerals Development Act No. 11 of 2015; and b. Lands Act, Chapter 184 of the Laws of Zambia. Other works referred to: (i) Oxford Advanced Learners Dictionary International Student's Edition, 8 th Edition (2010), Oxford University Press: Oxford; and (ii) Halsbury's Laws of England, 4th Edition, Volume 31, (1980), Butterworths: London. INTRODUCTION 1. This action was commenced on 13th April, 2018, by way of writ of summons and statement of claim. On 14th May, 2018, the 1 s t Defendant entered appearance and filed a defence. On 7 th June, 2018 , the Plaintiff filed a reply to the 1 s t Defendant's defence . On 18°1 August, 2020, the Defendants filed an amended defence and counter-claim. STATEMENT OF CLAIM 2. The gist of case for the Plain tiff, as can be gathered from the statement of claim, is that on 15t h Decen1ber, 1999, the Plaintiff acquired all mining rights over Nchanga Copper Mine in Chingola District from Zan1bia Consolidated Copper Mines (ZCCM) as part of the privatization of ZCCM. The Plaintiff stated that the transaction was done under the ZCCM Sale -J2- Agreement where the Plaintiff purchased large scale mining licence LML 34, valid for 25 years from the date of issue, which was, 30th March, 2000. 3. The Plaintiff went on to state that it has valid certificates of title over the N changa Mine area by virtue of the various pieces of real property which it purchased from ZCCM. It pointed out that for purposes of the current dispute, the properties the Plaintiff owns are sub- division C of Farm No. 927, Farm No. 1426 and Farm No. 942. It explained that the Nchanga Mine area covers overburden dump 1 (0B1) and stock pile dump 6 (SP6) (the disputed area). The Plaintiff went on to plead that the 1 st Defendant was 4. purportedly granted small scale exploration licence 21443-HQ SEL issued on 23rd November, 2016, for a period of four years. Further that the 2 nd Defendant was purportedly granted artisanal mining right 21419-HQ-AMR issued on 3 rd October, 2016, for a period of two years. It stated that the said licences relate to the disputed area. 5. The Plaintiff disclosed that sometime in February or March, 2017, the 1 s t Defendant approached the Plaintiff seeking consent to enter on the Plaintiffs land to access the Plaintiff's Dump 0B 1 after which it held meetings with the 1 st Defendant to deliberate on the request. 6. The Plaintiff disclosed that it later advised the 1st Defendant that it would not grant access to OB 1 because the coordinates of the 1 st Defendant's licence showed that the bulk of the 1 st Defendant's licence rests on the Plaintiff's surface and mining -J3- rights. Further, that the activities which the 1st Defendant \vished to undertake were not supported by its mineral exploration licence number 21443-HQ-SEL because that licence only allowed the 1st Defendant to conduct mineral 7. exploration and not mining activities. The Plaintiff proceeded to state that by a letter dated 26th January, 2018, but received by the Plaintiff on 29 th January, 2018, the 1st Defendant purported to give the Plaintiff notice that the 1 st Defendant is proceeding to commence operations at the disputed area, and that it would incorporate the 2nd Defendant's artisanal mining right number 21419-HQ-AMR, in the operations. The Plaintiff revealed that by a letter of 2 nd February, 2018, it advised the 1st Defendant that it had refused to grant its consent to the Defendants to access Dump 0B1. 8. The Plaintiff advanced the view that it is entitled to reasonably withhold its consent because, among other reasons, it o,vns the mining rights over the area; it intends to exploit the mineral resources contained in the disputed area; it intends to use its surface rights area to support its mining activities; the subject properties belong to the Plaintiff as it purchased them from ZCCM in 1999; and having two entities in the same area will create difficulties in apportionment of liabilities and responsibilities for any environmental harm or injury to persons. 9. The Plaintiff has clai1ned for the following reliefs: -J4- 1. a declaration that the Defendants have no right to enter upon the Plaintifrs properties Farm No. 927, Farm No. 1426 and Farm No. 942 or the land in Nchanga Mine area without the prior consent of the Plaintiff; 2. a declaration that the Plaintiff has reasonable grounds to withhold its consent from the Defendants in respect of access to Farm No. 927, Farm No. 1426 and Farm No. 942 or the land in Nchanga Mine area; 3. an injunction to restrain the Defendants whether by themselves or by their servants, agents or otherwise howsoever from entering or crossing the Plaintiff's surface and mining rights or carrying on any activities thereon; 4. further or other relief; and 5. costs of and incidental to this action. AMENDED DEFENCE AND COUNTER-CLAIM 10. The crux of the Defendants' defence and counter-claim is that their mining licences grant them permission to enter into the 1nining area and take all reasonable measures for the purpose of exploration operations. The Defendants expressed the view that the Plaintiff unfairly denied the 1 s t Defendant access to its licence area. They n1aintained that their licences only share boundaries with the Plaintiff's licence and do not in any \vay rest on the Plaintiffs mining licence as claimed by the Plaintiff. 11. The Defendants asserted that the Plaintiff is not entitled to withhold its consent and that the Plaintiff does not have any -JS- reasonable justification at law to deny them access to the subject Dumps. 12 · In their counter-claim, the Defendants stated that it came to their attention so1netime in 2017 that the Plaintiff had illegally extended its operations into the Defendants' tenement areas. The Defendants alleged that the Plaintiff had wrongfully removed the Defendants beacons and refused to stop its illegal activities. They stated that the Mines Development Department engaged a qu~tity surveyor whose report revealed that the Plaintiff had removed a total of 12.6 million tonnes valued at US$2,400,000,000.00. 13. The Defendants, accordingly, claimed for, inter alia, a declaration that they have a right to enter upon and conduct mining activities on their tenement areas; a declaration that the Plaintiff is illegally conducting mining operations on the said tenement areas; a declaration that the Plaintiff had no right to prevent the Defendants from entering upon the said tenement areas; and a declaration that the Plaintiff has unreasonably, unfairly and unlawfully denied them access to their tenement areas. 14. The Defendants have further asked for an order that the Plaintiff pays them the sum of US$ 2,400,000,000.00 being the value of the 12.6 million tonnes of tenements that the Plaintiff got from the Defendants' n1ining tenement areas; an order that the Plaintiff renders an account for the tenements it has removed from the Defendants mining tenement areas after the date of the survey; an order of injunction; and damages. -J6- PLAINTIFF'S WITNESSES r' l5. The Plaintiff started with Mr. Amigo Lumingo, a Mining Technician under the Ministry of Mines and Minerals Development, who they had subpoenaed. The kernel of his testimony was that the 1ninutes of the meeting held between officials from the Plaintiff and the Ministry of Mines in August, 2018, which he did not attend, stated that the 1 st and 2 nd Defendants' licences were encroachments on the Plaintiffs licence. He stated that the 1ninutes indicated that corrective measures would be taken by cancelling the Defendants' licences. 16. Mr. Lumingu expressed the view that the licences held by the Defendants are outside the Plaintiffs licence. 17. Under cross-examination, Mr. Lumingo explained that he was aware that the licences for the Defendants have been renewed and that the licence for the 1 st Defendant is expiring in 2025 while that of the 2 nd Defendant is expiring in 2022. 18. Under further cross-examination, he stated that to date, the ( ·_. Ministry has not cancelled the Defendants' licences. He pointed out that in paragraph 4.3 of the minutes, the Ministry advised the Plaintiff that if it needed to reclaim from any dumpsite, outside its mining licence, it needed to apply for a mining licence because reclamation is also mining under the law. 19. There was nothing malerial in re-examination. 20. The second witness called by the Plaintiff was Obino Kalela (PWl), the Plaintiffs Chief Integrated Planning and Projects. -J7- This w1·tness adopted what is contained in his witness statement filed on 5th March, 2021, as part of his testimony in-chief. He testified from the site of the disputed area. 21 - The gist of PW l 's testimony is that during the years he has worked for the Plaintiff, he has witnessed the continuous mining at the Nchanga Open Pit and the buildup of overburden dumps and stockpiles. He explained that one of such dumps is OB 1, which encompasses SP6. According to him, several stockpiles were generated in the course of mining operations for future reclamation. 22. It was PW l 's further testimony that the Plaintiff bought Nchanga Mines from ZCCM together with the associated overburden dumps and stockpiles. He told the Court that the dumps included OBI and SP6 which the Plaintiff continued to use and manage for its operations. He expressed the opinion that, therefore , OB 1 and SP6 belong to the Plaintiff. 23. At the site of OBI and SP6, PWl explained that during reclamation the Plaintiff confines itself to materials up to the earth surface by just picking the actual material which it dumped on the earth surface. 24. Under cross-examination, on that part of the site, he agreed that at the ti1ne h e joined the Plaintiff in 1990, the building of OBI was already in process. He also confirn1ed that part of the material on 0B1 was dun1ped by ZCCM. 25. There was nothing material in re-examination at that site. -JS- 26. PW 1 took the Court to stockpile 16 (SP 16) where he explained how reclamation is done in practice through scooping of materials. 27. Under cross-examination, the witness refused to confirm that what was being done at SP16 involved moving material from the earth. 28. Under cross-examination in the court room, the witness explained that the Plaintiff can only undertake mining activities within the boundaries of its mining licence. He admitted that by 1997, the dumps and stockpiles were already in existence. The witness further agreed that ZCCM wanted a boundary adjustment to include the area marked No. 3 on the document at page 13 of the Defendants' bundle of documents for th e purpose of retaining for the stockpiles and dumpsites. 29 . In response to an.other question, PW 1 confirmed that there is no ove rlap of the mining rights between the Plaintiff and the Defendants on the map appearing at page 436 of the Plaintiffs bundle of documents. He explained that the overlap is on the Plaintiffs surface rights. ( : 30. In response to another question, PWl accepted that the Plaintiff has not produced Certificates of Title for the areas in dispute. The witness agreed that in the letter from the Minister of Mines appearing at page 50 of the Defendants' bundle of documents, the Plaintiff was advised that the licences for the Defendants related to areas outside the Plaintiff's mining licence. -J9- 31 · When further cross-examined the witness told the Court that ' the Plaintiff has never re-claimed materials falling in the area covered by the licences for the Defendants. 32· In re-examination, the witness clarified that the buildup of the overburdens and the stockpiles has been ongoing and that the Plaintiff has been piling more waste on the overburdens and stockpiles. 33. The second witness for the Plaintiff was Mr. Moses Mambwe Chibuye (PW2), the Chief Surveyor at the Plaintiffs Nchanga Mine. This witness adopted the contents of his witness statement filed into Court on 8th October, 2021. The gist of his witness statement is that at vesting, following privatization, 0B1 and SP6 were situated partially within the Plaintiff's m1n1ng boundary but entirely within the Plaintiffs surface area. 34. PW2 explained that the map appearmg at page 336 of the Plaintiffs bundle of documents shows that the I st Defendant's exploration licence boundaries sit partially within the Plaintiffs surface right's boundary particularly the area which covers 0B 1 and SP6 dumps. He said that the 2nd Defendant's mining licence falls wholly within the Plaintiffs surface rights area. He added that the licences for both Defendants have since expired. 35. The additional testiinony of PW2 was that sometime in February or March, 2017, the 1 Rt Defendant approached the Plaintiff seeking consent to enter upon the disputed area. He explained that at the m eetings held between representatives of -JlO- the Plaintiff and the 1 st Defendant, the 1 st Defendant explained that its interest was to mine the material that was situated on OB 1 and ·SP6 dump sites. Further that the 1 st Defendant intended to set up a processing plant outside the Plaintiffs surface and mining rights and to construct roads for accessing OBl dumpsite. 36. It was his testimony that the Plaintiff advised that it could not grant consent to the 1 st Defendant because of the reasons that have been outlined in the statement of claim and already summarised in this Judgment. He expressed the opinion that stockpiling is an essential aspect of mining and that the material is later reclaimed. 37. The additional testimony of PW2 was that on 27th August, 2018, he attended a meeting at Intercontinental Hotel in Lusaka with officials from the Plaintiff and the Ministry of Mines where one of the resolutions was that the Defendants licences would be cancelled. 38. The witness went on to tell the Court that the area in dispute and the material on OB 1 and SP6 are integral to sustaining the Plaintiff's operations. According to him, the operations on SP6 are currently providing 75% of the total ore feed. He stated that allowing the Defendants to access the materials on SP6 would imply that the Plaintiff would have to cease its operations on SP6 and effectively shut down its . Nchanga Mine. 39. Under cross-examination, he confirmed that it is clear from the map appearing at page 436 of the Plaintiff's bundle of -Jll- documents that the licences for the Plaintiff and the Defendants are not overlapping into each other. 4 o. When referred to documents appearing at pages 30 -37 of the Defendants' bundle of documents, he confirmed that in the said documents, the Plaintiff presented a map for proposed extension of the mining area to cover part of OB 1. The witness agreed that the assignment of properties from ZCCM to the Plaintiff were not registered with the Ministry of Lands. 41. In re-examination, he stated that the Plaintiff could only be outside its mining licence if it did drilling and blasting but not if it simply re-handled the material it has dumped on its surf ace right area. 42. That marked the end of the Plaintiffs case. DEFENDANTS'WITNESSESS 43. The Defendants called Dimitrious Monokandilos (DWl), a Director in the 1 s t Defendant, as their first witness. In his witness statement, he referred the Court to some documents on the history relating to licences over the disputed area. In particular, h e testified that historically the area in contention was previously owned by Anglovaal Minerals (~rhich he also referred to as AVMIN (Z) Litnited), under prospecting Licences Nu1nbers PLLS 72, PLLS 73 and PLLS 74. 44. DWl went on to testify that sometime in 1997, ZCCM wrote a letter to the Director of Mines expressing its desire to readjust its mining rights areas in Nchanga. According to this witness, as a result of that letter, some areas which were under ZCCM's -J12- Mining Licence were detached fro1n ZCCM's m1n1ng rights areas in order to free areas which were not directly related to mining. For this, he referred the Court to documents appearing at pages 3 to 7 of the Defendants' bundle of documents. He testified that, at privatization, the Plaintiff only acquired rights in respect of areas which had not been detached from ZCCM's mining licence. 45. The witness went on to refer the Court to documents appearing at pages 9, 10, 15, 16 and 18 of the Defendant's { ' _ bundle of documents, in relation to the alleged detachment of certain portions by ZCCM. He maintained that at the time ZCCM's mine area was sold to the Plaintiff in 2000, AVMIN (Z) Limited had not given its consent to having ZCCM's Mining Licence extended into AVMIN (Z) Limited's mining areas. 46 . He proceeded to testify that later on, TEAL Zambia Limited took over prospecting permit Numbers PLLS 72, PLLS 73 and PLLS 74 from AVMIN (Z) Limited. He went on to say that in a letter dated 11 th October, 2007, appearing at page 20 of the Defendant's bundle of documents, TEAL Zrunbia Limited ( . relinquished to the Government the said prospecting permits. He explained that PLLS 7 4 covered a major part of OB 1. 47. According to DWl, in January, 2008, the Plaintiff also surrendered to the Government the part of OB 1 which was falling within the Plaintiff's mining rights. For this, he referred the Court to the documents at pages 28 and 29 of the Defendants' bundle of documents. -J13- 48. He went on to testify that a surpns1ng turn of events happened on 24 th March, 2009, when the Plaintiff attempted to once again extend its mining rights to cover the entire area where it had the surface rights. He claimed that the Plaintiff made an application appearing at pages 30 to 37 of the Defendants' bundle of documents to the Ministry of Mines for the grant of mining rights over the entire OBl. He expressed the opinion that this showed that the Plaintiff did not have 1nining rights over that area. 49. The witness went on to say tha~ on 16th July, 2010, in a letter appearing at pages 38 and 39 of the Defendants' bundle of documents, the Director of Mines wrote a letter to the Attorney General advising that he was unable to process the Plaintiffs application for a mining licence over that area because doing so would create problems with Kronos who was the owner of a large portion of O B 1. 50. He disclosed that in October, 2016 and November, 2016, the 1 st and 2 n d Defendants were issued ,vith the licences appearing on pages 42-44 of the Defendant's bundle of documents. He went on to testify that in 2017, after the 1 st Defendant had partnered with the 2 nd Defendant, the Defendants learnt that the Plaintiff had illegally extended its mining operations into the Defendants' rights by reclaiming mineral deposits from SP6 which was under the Defendants' licence. He claimed that it was also discovered that the Plaintiff had deliberately removed the beacons which had been fixed to mark the -Jl4- boundaries between the Plaintiff's and the Defendants' " licences. 51. DW 1 explained that the Defendants wrote several letters to the Plaintiff, including the letters appearing at pages 51, 72 and 7 4 of the Defendants' bundle of documents, requesting the Plaintiff to stop the illegal mining but that the Plaintiff did not stop. He stated that the Defendants then notified the Director of Mines who also wrote several letters to the Plaintiff including those appearing at pages 46, 50, 60 and 70 of the ( ·, ,· Defendants' bundle of documents. 52. It was DWl 's additional testimony that the Defendants wrote several letters to the Plaintiff, including the one appearing at p a ge 74 of the Defendants' bundle of documents, seeking the Plaintiffs consent to allow the Defendants to access the Defendants ' licenced areas but that this proved futile. 53. The witness went on to refer the Court to reports appearing on p ages 5 6, 58, 6 1- 65, 81, 84 and 86 of the Defendants' bundle of documents which relate to compliance inspections by the Ministry of Mines. ( 54. The witness claimed that notwithstanding the fact that this matter was p ending before the Court, the Plaintiff continued recouping mineral deposits from OB 1 and that this has led to the depletion of all minerals at SP6 area. He alleged that the total volume mined by the Plaintiff is about 12 million tonnes of tenements worth US$ 2.4 billion as of 2018 when the mineral valuation was done. He referred the Court to Mineral Valuation Report, Mineral Valuation Certificates, Mineral -J15- Analysis Certificates and Export Permits appearing at p a ges 88 -135 of the Defendants' bundle of documents. 5 5. The witness maintained that the Plaintiff does not have a mining right but only surface rights in respect of the portion of land on which the Defendants' have both mining and prospecting rights. 56. In cross-examination when asked whether there was any evidence to show that the licence held by A VMIN moved to Teal ' Zambia Ltd and later to the 1st Defendant, he stated that there is a document from the Ministry of Mines to that effect appearing at page 37 of the Defendants' bundle of documents. He, however, accepted that he was the one who generated the said document and that it does not have the Ministry of Mines on it and does not say anything about the movement of the mining licen ce from A VMIN to Teal Zambia and then to the 1 st Defendant. 57. When re ferred to the 1 s t Defendant's licence appearing at page 4 3 of the Defenda nt's bundle of documents, the witness a dmitted that th e said licence is not an outright mining licen ce but an explora tion licence. 58. When referred to the letter appeanng at page 52 of the Defendant's bundle of documents, he admitted that the intention of the 1 s t Defenda nt was to mine the materials at 0B1 and set up a processing plant. 59. He conceded that the maps a ppearing at page 436 of the Plaintiffs bundle of documents and page 45 of the Defenda nt's bundle of documents conta in an accura te repres entation of -Jl6- the Plaintiff's surface rights and mm1ng rights, the 1 s t Defendant's exploration licence as well as the 2 n d Defendant's mining rights. 60. Under further cross-examination, as to what evidence the witness had to show that the Plaintiff surrendered part of OB 1 to the Government in 2008, the witness failed to show the Court any documentary evidence to that effect. When questioned on whether the agreement at privatization entered into between the Plaintiff and ZCCM detached OB 1 and SP6 from the area acquired by the Plaintiff as claimed by the witness in paragraph 7 of his witness statement, the witness simply stated that that agreement was not about licences. 61 . Under further cross-examination, DW 1 admitted that the Plain tiff has never collected any material from the portions of 0B 1 and SP6 which fall outside its surface rights area. He accepted that the US$2.4 billion worth of the material that the Defendants are claiming is in respect of the material on OBI and SP6 falling within the Plaintiff's surface rights. He also agreed that the claim by the Defendants is for the material on the surface and not the minerals underground. 62. In re-examination, the witness stated that, according to the document appearing at page 28 of the Defendants' bundle of documents, the Plaintiff surrendered part of 0B 1 to the Government. 63. The second witness called by the Defendants was Mr. Amigo Lumingo, a subpoenaed witness. The gist of Mr. Lumingo's testimony was that sometime in 2016, the Ministry of Mines -J17- received a complaint from the Defendants that some of their beacons had been removed. He testified that in February, 2018, the Ministry conducted a physical inspection and confirmed that indeed the beacons had been removed due to mining operations which were being conducted by the Plaintiff. He explained that when the coordinates were put and plotted in the cadastre system, it was confirmed that the Plaintiff was conducting mining operations on licences belonging to the Defendants. It was his testimony that the Ministry issued an instruction to the Plain tiff to stop all operations which were being done outside the Plaintiffs mining rights area. 64. The ·witness went on to explain that when another follow-up inspection was done in June, 2018, the Ministry of Mines discovered that the Plaintiff had continued with its mining operations. He disclosed that another inspection conducted in October , 2018, revealed that the Plaintiff was still conducting mining operations. He explained that at that point, the Director of mines advised the Defendants to seek legal protection from the Court. In support of his testimony, Mr. Lumingo submitted to the Court a schedule of documents. 65. In cross-examination by the learned Counsel for the Defendants, the witness expressed the view that reclaiming is one of the main processes of mining. 66. Under cross-exrunination by Counsel for the Plaintiff, Mr. Lurningo agreed that, as Mining Technician, he does not d eal with surface rights. He accepted that where there is a -J18- complaint relating to surface right, his office does not come in if the issue has nothing to do with mining rights. 67. In response to another question, Mr. Lumingo testified that the 1 st Defendant's exploration licence has since been renewed and that he has produced the renewed licence in his schedule of documents. 68. When further cross examined, Mr. Lumingo testified that, according to the document appearing at page 64 of the Plaintiff's bundle of documents, as at 1999, the area where OBl is situated was transferred to the Plaintiff. 69. He agreed that construction of a plant is not within the scope of an exploration licence. He explained that if what the 1 st Defendant wanted to do was to reclaim materials, it needed to o btain a m inin g licence. 70. When asked wh eth er a mine would need a licence to reclaim wh a t it h as stockpiled, Mr. Lumingo expressed the opinion th a t if there h as been a change of ownership, then the new owner would n eed to obtain a licence. With regard to whether material tha t h as b een stockpiled belongs to the mine which has stockpiled it, the witness advanced the opinion that it does if the material is reclaimed within the period of validity of the mining licence. He explained that the owner of the stockpile could only need a fresh mining licence if the tenure of the previous mining licence has expired. 71. That marked the close of the Defendants' case. ( -J19- SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF AND COUNSEL FOR THE DEFENDANTS 72. On 10th May, 2022, the learned Counsel for the Plaintiff filed the Plaintiffs submissions. The learned Counsel for the Defendants filed the Defendants' submissions on 3 rd June, 2022. I have taken time to painstakingly study those submissions. However, I will not reproduce them in this Judgment but I shall only refer to relevant aspects thereof in my consideration and decision part of this Judgment. CONSIDERATION AND DECISION 73. I have attentively considered the Plaintiffs case; the defence and counter-claim of the Defendants; the testimonies of witnesses from both sides and the written submissions filed by Counsel. I will deal first with the Plaintiffs case before deciding on the Defendants' case. 74. I will adjudicate on the Plaintiffs case on the basis of the actual reliefs that the Plaintiff has asked for in its originating process. The first relief that the Plaintiff has prayed for is- "A declaration that the Defendants have no right to enter upon the Plaintiff's properties Farm No. 927, Farm No. 1426 and Farm No. 942 or the land in Nchanga Mine area without the prior consent of the Plaintiff." -J20- 75. The question raised by the first relief is basically whether or not the ·Defendants have a right to enter upon the contested properties without first obtaining the Plaintiffs consent. The issue relating to the need for a mining rights holder to obtain written consent from a surface rights holder is dealt with by section 52(l)(b) of the Mines and Minerals Development Act 1 (hereinafter ref erred to as "the Act"), which provides, in the relevant portion, that- "52. (1) A holder of a mining right or mineral processing licence shall not exercise any rights under this Act- (b) without the written consent of the owner or legal occupier of the land or the duly authorised " t agen .... ( 76. It is plain from section 52 of the Act that, in order to resolve the Plaintiffs first relief, I must answer two apposite questions. These are, firstly, whether or not the Plaintiff is the owner or legal occupier of the disputed pieces of land where OB 1 and SP6 are situated; and secondly, whether the Defendants need to obtain the Plaintiff's written consent before exercising their mining rights on the disputed portions of OBl and SP6. 77. In its statement of claim, the Plaintiff has stated that it has valid Certificates of Title over Nchanga Mine area and particularly the disputed properties, Farm No. 927, Farm No . 1426 and Farm No. 942, where 0B1 and SP6 are located. -J21- 78 - In cross-examination of the Defendants' witnesses, as well as in their written submissions, Counsel for the Plaintiff suggest that the licences for the Defendants have since expired. When Mr. Lumingo was cross-examined by Counsel for the Defendants, as well as when he testified at the instance of the Defendants, he told the Court that the exploration licence for the 1 st Defendant has since been renewed and is expiring in 2025; and that the 1nining licence for the 2 nd Defendant has equally been renewed and is expiring in 2022. 79. I hold the firm opinion that the foregoing evidence of renewal of the Defendants' licences was not discredited under cross examination by Counsel for the Plaintiff. Further, having had the opportunity to observe Mr. Lumingo as he testified before me on that issue, I have no reason to doubt the veracity of his testimony with regard to renewal of the licences. I am, therefore, inclined to agree with Mr. Lumingo that the Defendants' licences have been renewed after they expired. 80. The question for my decision still remains ~rhether or not the Plaintiff is the owner or legal occupier of the disputed land, where OB 1 and SP6 are situated. It is not in dispute that, pursuant to the ZCCM Sale Agreement dated 15th December, 1999, appearing at pages 1 to 356 of the Plaintiffs bundle of documents, the Plaintiff purchased from ZCCM and the Government of the Republic of Zan1bia, among other things, the land covered by its 1nining licence and some additional portions of land where it holds surface rights. -J22- 81. The testimony of Mr. Moses Mambwe Chibuye (PW2) was that, for purposes of this action, the area in dispute is the surface rights area covered by Farm No. 927, Farm No. 1426 and Farm No. 942 (hereinafter also referred to as "the three properties"). It is not in dispute and I find as a fact that the contested OB 1 and SP6 are situated on those three properties. According to the Plaintiff, it is the legal occupier and owner of surface rights covered by those three properties. 82. During the cross-examination of PW2, the learned Counsel for f✓-. the Defendant challenged him on whether indeed the Plaintiff has Certificates of Title to the disputed properties. Despite the foregoing, in his evidence-in-chief, DWl 's acknowledged that the Plain tiff has surface rights in respect of the portion of land on which the Defendants have mining and prospecting rights. Furth erm ore, a look at the submissions by Counsel for the Defendants establishes that they acknowledged that the entire 0B 1 and S P6 sit on the Plaintiffs surface rights as originally purch ased from ZCCM. 83. In addition to the above1nentioned, all the parties did not I(' dispute the facts tha t the 1naps appearing at page 436 of the Plaintiffs bundle of documents and page 45 of the Defendants' bundle of docu1nents represent the correct boundaries of the Plaintiff's mining and surface rights and the Defendants' respective exploration licence and mining licence areas. The two 1naps clearly show that the three properties and, consequently, the disputed portions of OBl and SP6, fall inside the boundaries of the Plaintiffs surface rights. -J23- 84 · Besides the above, the ZCCM Sale Agreement plainly shows at pages 64 and 65 of the Plaintiff's bundle of documents, that the Plaintiff purchased the three properties from ZCCM and the Government. The said properties appear under clause 1.2.1 which lists the 29 surface rights areas under Nchanga Division which the Plaintiff purchased under the ZCCM Sale Agreement. 85. In vie\.\r of the foregoing evidence, I do not accept that the failure by the Plaintiff to produce the Certificates of Title means that it has failed to prove ownership, or legal occupation, of the three properties. In so holding, I am fortified by the d ecision of the Court of Appeal in the case of Konkola Copper Mines Pie V. Rephidim Mining and Technical Supplies Limited, Mimbula Minerals Limited and Moxico Resources Limited1, cited to me by Counsel for the Plaintiff. In that case, the Court held at page J30, inter alia, as follows: "According to the Gibson Tembo case cited by the appellant on its right to assert ownership of the subject land, even in the absence of a certificate of title, the Supreme Court held that a purchaser in possession/ occupation of land may protect its equitable rights over the land and in particular, where the other party had notice of such interest. A reading of the respondent's defence in the Court below shows that the respondent acknowledged that there was indeed an agreement for the sale of the -J24- subject land between the appellant and the government, but only to the extent that the land was going to belong to the appellant only when it exercised its option to call all or any of the defunct areas. The view that we take in light of the Tembo case is that the appellant was entitled to commence the action in the court below even in the absence of a certificate of title in its name, as purchaser in possession." 86. After citing section 52(1)(b) of the Act, the Court of Appeal went on, in the Rephidim Mining and Technical Supplies Limited 1cas e, to say the following at page J 3 4 : "In our view, these provisions entail that the interests of a legal occupier of land subject to mineral rights is also protected. It is therefore erroneous to assume that the appellant cannot assert ownership of the subject property in the absence of a certificate of title. In any event, the res pondent does not dispute that the appellant has been in occupation of the subject property since 1999 following the execution of the Sale Agreement." 87 . On the totality of the foregoing, I am inclined to find and hold tha t the Plaintiff h as proved on a b alan ce of probabilities that it is the own er and legal occupier of surface r igh ts over th e three properties where 0B1 and SP6 a r e located. -J25- 88 - The second issue I have identified from the Plaintiff's first relief is whether the Defendants need to obtain the Plaintiffs written consent before exercising their mining rights on the Plaintiff's surface rights area. Counsel for the Plaintiff have contended that, since the Plaintiff purchased the surface rights where 0B1 and SP6 are located, any person who wishes to enter upon the said surface rights area needs to obtain consent from the Plaintiff. They have relied on section 52( l)(b) of the Act for this contention. 89. Conversely, Counsel for the Defendants have submitted that, when construing section 52(l)(b) of the Act, this Court should use the golden rule of statutory interpretation as envisaged in th e case of Francis Xavier Nkhoma V. Godfrey Miyanda2 . According to Counsel for the Defendants, if the words of section 52 (l)(b) of the Act are given their natural and ordinary meanin gs, it becomes clear that the provision contains the specific instan ces under which a holder of a mining right or minera l processing licence would require written consent from the surface righ ts holder . In Counsel's view, none of the instances listed in section 52 of the Act applies to the Plaintiff and, therefore, the Defendants are not obliged to get the written consent of the Plaintiff. 90. I hold the cons idered opinion tha t interpreting section 52(l)(b) of the Act in the 1nanner proposed by Counsel for the Defendant s would lead to a meaning that was not intended by Parliament when enacting tha t provision. This is beca use the interpreta tion proposed by Counsel for the Defendants would -J26- mean that the Defendants could simply enter onto the Plaintiffs surface rights areas and start conducting their mining and/ or exploration operations without first obtaining the Plaintiff's consent. Clearly that was not the intention of Parliament. 91. To put the issue in its proper context, I will particularly focus on section 52(1)(b)(i) of the Act, which I hold to be apt to the facts of this case. The contention of Counsel for the Defendant is that the Plaintiff cannot rely on that subparagraph (i) to insist that the Defendants must obtain its consent because the area where the Defendants intend to exercise their mining rights is not within 180 metres of the inhabited buildings. While I agree with Counsel for the Defendants that the words of section 52(l)(b)(i) of the Act are plain and unambiguous and must be given their grammatical and ordinary meanings, I do not accept the interpretation arrived at by Counsel for the Defendants. 92. It must be understood that the commas and the conjunction "or" in subparagraph (i) are very essential in the interpretation of that provision and should not be ignored in the manner Counsel for the Defendants appear to have done in paragraph 71 (i) of their submissions. For the sake of clarity, I have reproduced section 52(1)(b)(i) of the Act below. In order to furnish further clarity, I have underlined the portions of the provision which, in my opinion, apply to the facts of this case. For one to properly understand the applicable part of that -J27- provision, the underlined portions must be read without t h e portion that is not underlined, thus- " 52. (1) A holder of a mining right or mineral processing licence shall not exercise any rights under this Act- (b) without the written consent of the owner or legal occupier of the land or the duly authorised agent- (i) upon any land which is the site of, or which is within one hundred and eighty metres of, an inhabited, occupied or temporarily uninhabited house or building .... " 93 . It is evide nt that the a bove subparagraph (i) h a s two parts, namely , (1) "upon any land which is the site of an inhabited, occupied or temporarily uninhabited house or building" and (2) "upon any land which is within one hundred and eighty metres of an inhabited, occupied or temporarily uninhabited house or building". I hold the firm op1n1on that th e part applicable to the Plaintiffs cir cumstances is the first one. 94. Th e ten11 "site" which is used in s ubpar a gra ph (i), a s a noun, simply means a location or a place wher e s om ething h as b een built or will be built. The Oxford Advanced Learners Dictionary International Student's Editionlil gives one of th e -J28- definitions of the term "site" as "a place where a building, town, etc. was, is or will be located". 95. On the basis of the foregoing, my interpretation and application of section 52(l)(b)(i) of the Act is that the disputed area of the Plaintiffs surface rights is a site of inhabited and occupied buildings. It is indisputable that the Plaintiff conducts its mining operations around that site. 96. I do not, therefore, agree with Counsel for the Defendants that the Defendants can simply enter the Plaintiffs surface rights (r( area without the Plaintiffs consent and start conducting mining and/ or exploration operations on that land. 97 . I, therefore, hold that the Plaintiff has proved its entitlement to the first relief on a balance of probabilities. I, accordingly, declare that the Defendants have no right to enter upon the Plaintiffs three properties, to which the Plaintiff holds surface righ ts, without the prior written consent of the Plaintiff. 98. Coming to the second relief, the Plaintiff has claimed for a declaration th a t it has reasonable grounds to withhold its consent from the Defendants in respect of access to the three properties. In its statement of claim and in the witness statement of PW2, the Plaintiff has outlined the reasons for withholding its consent. 99. On the other hand, in its amended defence and counter-claim ' the Defendants have advanced the position that the Plaintiff unfairly denied the 1 st Defendant access to its licence areas. They have further said that the Plaintiff is not entitled to -J29- withhold its consent and that the refusal of consent 18 n ot reasonable. 100. It is important to point out that the essence of section 52 of the Act is not that when written consent is sought it must be granted ipso fact. If that was the intention of Parliament it could have stated so expressly. I hold the considered opinion that a surface rights holder may decline to give consent if there are reasonable grounds for withholding the consent. A reading of section 52(3) of the Act shows that consent should only b e denied if there are reasonable grounds for withholding · it. 101. Th e question in this case, therefore, is whether or not the Plaintiff h a s reasonable grounds for withholding its consent. I will start by addressing the issue of whether or not both Defendant s sou ght the Plaintiffs consent to enter the Plaintiffs surface rights areas. 102 . T h e pleadin gs, evidence and submissions of the Plaintiff show th at it is only the 1 st Defendant who requested for consent from the Plaintiff to enter upon the Plaintiffs surface rights area and , therefore, that it is only in relation to the 1 st Defendant tha t th e Plaintiff withheld its consent. 103. It appears fron1 pa ragraph 16 of the defen ce and counter-claim th at th e Defendant s seem to suggest that the Plaintiff withheld consent in rela tion to both Defend ants. However, in his evidence-in-chief, DW 1 did not give any evidence r ela tin g to the 2 11 rl Defendant's request for consen t from the Plaintiff. What cam e out of th e cross -examination of DW 1 was tha t it -J30- was only the 1s t Defendant that requested for consent from the Plaintiff. 104. I have taken time to carefully examine the letters on the record relating to consent. It is clear that the original request for consent was 1nade by the 1st Defendant in a letter written by DWl dated 11th May, 2017, appearing at page 47 of the Defendants' bundle of documents. In that letter, which is headed "Consent for Access for Kalymnos Processing Limited", it is plain that there was no reference made to ( __ either the 2°d Defendant or its artisan. mining licence. 105. There is another letter, written by the 1st Defendant to the Director of Mines, appearing at page 49 of the Defendants' bundle of documents. In that letter, the 1 st Defendant informed the Director of Mines about the letter of request for consent that it had written to the Plaintiff on 11 th May, 2017. The 1 ~1 Defendant went on to humbly request the Director of Mines to intervene so that the 1 st Defendant could commence its operations. That letter too did not say anything about the 2 nd Defendant. ,r · 106. The Minister of Mines wrote a letter to the Plaintiff dated 25th July, 2017, appearing at page 50 of the Defendants' bundle of documents in which he indicated that he had received a letter of complaint from the 1 ijl Defendant. The Minister appealed to the Plaintiff to consider granting the 1 st Defendant consent. The letter does not say anything about the 2 11c1 Defendant. 107. The 2 nd Defendant appears to have only come into the picture in the letter written by the 1 s t Defendant to the Plaintiff on 26th -J31- January, 2018, which appears at page 51 of the Defendants' bundle of documents. That letter made reference to the i~t Defendant's letter of 11 th May, 2017, in which the 1 st Defendant originally made its request for consent. The letter then went on to inform the Plaintiff to take that letter as a Notice that on 31 st January, 2018, the 1st Defendant would officially commence its operations. The 1 st Defendant further notified the Plaintiff that the 1st Defendant would be incorporating Artisanal Licence No. 21419-HQ-AMR. Clearly that letter did not constitute a request by the 2 nd Defendant for consent to operate her mining licence on the Plaintiffs surface rights area. 108. There is yet another letter appeanng at page 72 of the Defendants' bundle of documents which was written by the 1st Defendant to the Plaintiff. That letter appears to have been some sort of a demand letter. It mentioned the 2 nd Defendant's mining licence together with the 1 st Defendant's exploration licence as the licences owned by the Defendants. Although it purports to have been authored by "Kalymnos Processing Limited & Partners", it is only signed by one person with a signature similar to those endorsed on the other letters written by DWl. The letter does not show that the 2nd Defendant was thereby seeking the consent of the Plaintiff to enter the Plaintiff's surface rights area. 109. On the totality of the foregoing, I am disposed to find and hold that the 2 nd Defendant did not seek the Plaintiffs consent at any point to enter and operate her artisan's mining licence on -J32- the Plaintifrs surface rights area. I, therefore, hold that the issue of whether or not the Plaintiff has reasonable grounds for withholding its consent relates only to the 1 st Defendant's request for consent. 110. It appears, however, that the suggestion by the 1st Defendant is that it partnered with the 2 nd Defendant in order to operate their two licences together. The question that has inevitably been sparked by that suggestion is whether or not that partnership is tenable at law. ( . . J' • - -. 111. One of the reasons given by the Plaintiff in paragraph 19 of its statement of claim, for withholding its consent, is that the 1 st Defendant's licence, being an exploration licence, does not support the mining activities that the 1 st Defendant informed the Plaintiff it intended to undertake. The foregoing is echoed by the testimony of PW2 in paragraph 21 of his witness statement. In their submissions, Counsel for the Plaintiff have contended that a reading of sections 2, 23 and 26 of the Act establishes that the exploration licence cannot permit the 1 st Defendant to conduct mining operations. ( · 112. Under cross-examination, when referred to the letter written by the Plaintiffs lawyers to the 1 s t Defendant, DW 1 admitted that the intention of the 1 s t Defendant is to mine the materials situated at OB1 and to set up a processing plant. 113. I have no hesitation in holding that the law does not allow the 1 ::;t Defendant lo use its exploration licence to mine minerals from 0B 1 or SP6 or fron1 anywhere else for that matter. Section 29(1) of the Act provides that a person who intends to -J33- carry on any artisanal m1n1ng, small-scale mining or large scale mining should apply for a mining licence. In fact, in their submissions, Counsel for the Defendants have conceded that the 1 st Defendant's exploration licence only allows it to prospect for minerals and not to mine the minerals. Further, under cross-examination by Counsel for the Plaintiff, Mr. Lumingo testified that construction of a plant is not in the scope of an exploration licence. 114. However, Counsel for the Defendants seem to suggest that the contested minerals can be mined using the 2 nd Defendant's licence because the 2 nd Defendant has an artisan's mining licence which gives her an outright permission to mine the minerals in her area. Further, the evidence of DW 1 was that the 1 s t Defendant has partnered with the 2°d Defendant. 115. Therefore, the question still re1nains whether or not the law allows the 161 Defendant to partner with the 2nd Defendant and mine the minerals in the contested area of the Plaintiff's surface rights. It is trite law that artisan.al mining rights are reserved exclusively for citizens of Zambia. In this regard section 2 of the Act defines "artisanal mining" to mean "an artisan's mining operation undertaken by a citizen pursuant to a mining licence granted under Part III". The Act goes on to provide in section 29(2) that- "29(2) Artisanal mining sha~l only be undertaken by a citizen or a co-operative wholly composed of citizens.,, -J34- 116. It is not in dispute that the 1st Defendant is neither a citizen of Zambia nor a co-operative wholly composed of citizens of Zambia. The 1 st Defendant is a limited company. Additionally, as rightly submitted by Counsel for the Plaintiff, section 69 of the Act is inapplicable to the 1 st Defendant because that section applies only to mergers or co-ordination of mining operations of holders of mining · licences for artisan al and small-scale mining. 117. I, therefore, hold the considered op1n1on that it could be unlawful and a clear contravention of the Act for the 1 s t Defendant to purport to circumvent the above provisions of the Act by partnering with the 2 nd Defendant to mine the minerals contained on 0B 1 and SP6 using the 2 nd Defendant's artisan's mining licence. 118. Therefore, I accept that it was reasonable for the Plaintiff to withhold its consent from the 1 s t Defendant on the ground that the activities that the 1 s t Defendant intended to undertake on the Plaintiffs surface rights area are not supported by the explora tion licence held by the 1 st Defendant. ( 119. A further look at the Plaintiff's statement of claim shows that the other reason used by the Plaintiff to withhold its consent is that the Plaintiff is the owner of 0B 1 and SP6 having purchased the1n from ZCCM under the ZCCM Sale Agreement. The Plaintiff has gone on to say that it intends to exploit the mineral resources contained in the Nchanga Mine area and to use its three properties to support its mining activities including depositing materials produced fro1n the said mining -J35- activities. In addition, in his witness statement, PW2 has stated that 0B 1 and SP6 existed at privatization and the Plaintiff inherited the material as part of the sale process. He added that the Plaintiff has been stockpiling more material on OB 1 and SP6 since it commenced its operations after privatization. 120. On the other hand, the Defendants have said in their defence and counter-claim that the portions of 0B1 and SP6 covered by their licences are in their tenement areas. In effect, the Defendants are saying that the dumps do not belong to the Plaintiff. In paragraph 28 of his witness statement, DW 1 has gone on to say that since the Plaintiff only holds surface rights over the portions of OBl and SP6 where the Defendants hold both artisan mining licence and exploration licence, it is illegal for the Plaintiff to engage in mining or any other activities on the said parcel of land. 121. I have already held elsewhere m this Judgment that the Plaintiff purchased from ZCCM the surface area where the contested portions of OBl and SP6 are situated. It is not in dispute that OB 1 and SP6 were in existence at the time the Plaintiff purchased the three properties where those dumps are located. The testimony of PW 1, which I accept, was that overburden du1nps are a creation of the process of mining at the Nchanga Open Pits. 122. Therefore, the germane question still remains whether or not the contested dumps belong to the Plaintiff. According to Mr. Lumingo, reclamation of dumped material from a dump -J36- constitutes one of the forms of mining. However, Mr. Lumingo did not tell the Court where he got that position from. A perusal of the Act establishes that the Act does not contain any provision to that effect. 123. The evidence of Mr. Lumingo, on whether or not a m1mng licence holder that has dumped material on its surface rights area would need a separate mining licence to reclaim that material, was less than satisfactory. He explained that if there has been a change of ownership, then the new owner would need to obtain a licence. This seemed to be his personal opinion which I have refused to accept. This is because, Mr. Lurningo's answer means that if there is no change of ownership of the mine, the owner of that mine, who has stockpiled material on its surface rights, could not need a separate mining licence to reclaim that material. It is difficult to appreciate then why the new owner of the same mine, who has purchased the mining licence area and the surface rights area, would not be in the same position as the previous owner. 124. Furthermore, when asked whether material that has been stockpiled on the surface rights area belongs to the mme which has put the stockpile, Mr. Luningo stated that it does if the material is reclaimed within the period of validity of the mining licence. He explained that the owner of the stockpile could only need a fresh n1ining licence if the tenure of the previous mining licence has expired. Again, Mr. Lubingo did not state the legal source of that position. Additionally, he did not say whether or not the fact that the mining licence is -J37- renewed immediately upon expiry changes the position relating to ownership of the stockpiled material. 125. I hold the considered opinion that where material 1s mined and stockpiled by a mining licence holder, on its mining licence area or surface rights area, that material belongs to that licence holder provided the licence holder continues to have the mining licence that authorised it to mine the material. In my judgment, the ownership of the material does not come to an end at the expiry of the mining licence if that mining licence is renewed immediately before, or immediately upon, expiry so much that there is virtually no break in the chain of ownership of that mining licence. I am of the considered view that the ownership of the stockpiled material could only be lost if the relevant mining licence has expired and has not been renewed as earlier stated or if the owner has abandoned the dumped or stockpiled material. This is because it is my considered belief that if the mining licence has expired and has not been renewed or if the owner of dumped or stockpiled material has abandoned that material, the material then becomes part of the land on which it has been put. In holding as I have done, I have taken a leaf from the words of the authors of Halsbury's Laws of England, 4 th Edition, Volume 31, (1980), Butterworths: London1iil , who have said at page 22, paragraph 29, that- "Refuse produced in refining the minerals gotten may be sold by the lessee, but refuse or spoil, if abandoned, becomes part of the freehold." -J38- 126. It 1s not in dispute that the Plaintiff purchased its mining licence area and surface rights area from the Government and ZCCM. There is no evidence to show that there was a break in the renewal of the mining licence previously owned by ZCCM, before the Plaintiff took it up, to an extent where the said break could be construed to have been an abandonment of the material that ZCCM had stockpiled on the contested surface rights area. There is no contest that the dumps existed during the ZCCM days and continued to subsist during the Plaintiffs period. Further, it is not in dispute that at privatization in 199 9 , the Plaintiff inherited ZCCM's mining licence which was reissu ed in 2 000 for a period of 25 years. 127. From the evid en ce b efore me I am willing to find as a fact that ZCCM used to utilise its surface rights area to support its mining activities and that the contested dumps were created in that process. To this effect I accept the testimony of PW2 that stockpiling is an essential aspect of n1ining and that the materiaJ is stockpiled on designated dumps for future reclamation . PW2 's testimony is in line with what the General Manager of ZCCM, Nch a.nga Division, said in his letter to the Director of Mines, d at ed 4 th September , 1998, a ppearing a t p a ges 16 to 17 of the Defendant's bundle of documents. He s ta ted , among o ther things, the following: "We have made plans to extend the dumps to the proposed Mining Licence boundary, as mining pits progress. We should also mention that some dumps contain low grade refractory -J39- ore, which we intend treating in the near future." 128. I hold the considered opinion that the above letter from ZCCM shows that ZCCM was stockpiling materials on the dumps, including 0B1 and SP6, as part of its mining process, with the intention of later treating that material in the near future. It is my view that ZCCM had not thrown away or abandoned that material but simply stockpiled it for future use. 129. My findings and holdings above are buttressed by the fact that it is not in dispute that the Plaintiff owns not only surface righ t s a round that area but also mining rights. It cannot, therefore, be an exa ggeration to hold that, in the conduct of its m ining oper a tion s pursuant to its mining licence, the Plaintiff is likely to u se some of the land under its surface rights to facilitate or s u pport its mining activities. I hold the considered view that par t of that facilitation or support is stockpiling som e of th e extr acted material on the surface rights area. 13 0 . In m y opinion , it is b ecause of the foregoing that Courts have previous ly recognized tha t the Plaintiff purchased the surface rights from ZCCM together with the mining rights because it has use for the s urface rights in its mining operations. In the case of Konkola Copper Mines Pie V. Rephidim Mining and Technical Suppliers Limited, Mimbula Minerals Limited and Moxico Resources Limited1 , the Court of Appe al s tated that- "Rather than dwelling on the probable intentions of the appellant when it executed the Sale -J40- ,, Agreement, we deem it more prudent to consider the effect thereof, lest we read in terms that may be contrary to the Agreement and violate the parole evidence rule. It is evident from clause 2.1 of the Sale and Purchase Agreement that in addition to the proprietary rights, the appellant also acquired the mining rights as a term of the Sale Agreement, contrary to the Respondents' submission that the purpose of the Sale Agreement was strictly to transfer mining activities and transfer the mining licence previously owned by ZCCM-IH. In any event, if this was the case, the appellant would have merely acquired the mining licence from ZCCM IH without having to purchase the land. On this premise, even though we are inclined to take judicial notice that Lot 694/M is situated in a mining area, we are of the view that Mr. Muya's submission that the appellant's intention in acquiring the property was strictly for mining has no merit, as it is highly probable as can be inferred from the terms of the Sale Agreement that the appellant intended to use the surface as well as access minerals when it executed the Sale Agreement." 131. Similarly, in the case of Konkola Copper Mines Pie V. Martin Kalunga and Others3 , which also related to a contest for, inter -J41- alia, OBl, Kao1na, J (as she then was), at page JlO, came to the conclusion that- "It is also in evidence and not disputed that OBl is an active dump; the plaintiff is still dumping waste material from the Nchanga Open Pit on that dump. Further whilst part of OBI falls outside the plaintifrs mining rights area, the whole dump is within the plaintiff's surface right's boundary . ... Therefore, it is very clear to me that the plaintiff is the owner of the refractory ore which the defendant has been mining on OBs 1 and 2.t' 132. Kaoma, J proceeded to hold at page J13 that- "! am convinced that OBl was not part of the abandoned waste dumps and that OBs 1 and 2 do not fall under Fitula Open pit . ... I agree entirely with the argument by State Counsel that the plaintiff has shown on a reasonable preponderance of probabilities that it is the registered licencee of OBs 1 and 2 and thus entitled to undisturbed usage thereof and that the defendant is a trespasser on these dumps and he should desist from further moving the plaintiff's material.'' 133. In a d dition to the foregoin g, th e rninutes of 17th November I 1997, to which DW 1 referred in his witness statem ent ' appearing a t pages 11 and 12 of the Defendant's bundle of -J42- documents show that the Ministry of Mines had previously resolved a dispute with facts similar to those of the case now before me. Those minutes report, at page 12 of the Defendant's bundle of documents, what Mr. Munthali, the then Deputy Director of Mines, said thus- "Mr. Munthali suggested that it would be useful to consider all alternative solutions to this problem so that all operations could continue uninterrupted. He said that there was a precedent in that a similar situation had arisen at Chambishi, where it had been necessary for the Ministry of Mines to intervene and confirm ZCCM's ownership of a dump outside that Mining Licence area but within the Surface Right." [Underlined for emphasis only] 134. On the totality of the foregoing, I am disposed to find and hold that the contested dumps OB 1 and SP6 were transferred by ZCCM and the Government to the Plaintiff at privatization. I r am also inclined to accept the evidence of the Plaintiffs witnesses that, just like ZCCM, after privatization, the Plaintiff continued to dump some of the material it mined from its mining rights area onto the said dumps for future reclamation. To this extent, I agree with the finding made by Kaoma, J (as she then was), in 2013, when she decided the case of Konkola Copper Mines Pie V. Martin Kalunga and Others3 . Her Ladyship concluded at page J 10 that "It is also in evidence and not disputed that OBl is an active dump; the plaintiff -J43- is still dumping waste material from the Nchanga Open Pit on that dump." 135. I hold the view that it cannot acceptably be said that the Plaintiff needs a separate mining licence to get back the stockpile it puts on its surface rights area. I do not accept the submission by Counsel for the Defendants that the Plaintiff has a right to dump materials on its surface rights areas but does not have the right to reclaim that material afterwards. Contrary to the contention by Counsel for the Defendants, I do not think that this case is concerned with whether or not a holder of a Certificate of Title to land has ownership rights to the minerals exempted in that Title. Of course I agree entirely with Counsel for the Defendants that section 2 of the Lands Actb, define s "land" to exclude minerals. The sections states that- '"land'means any interest in land whether the land is virgin, bare or has improvements, but does not include any mining right as defined in the Mines and Minerals Act in respect of any land .... " 136. However, in the instant case, the Plaintiff is not clain1ing ownership of any minerals that form part of the land to which it holds surface rights. The Plaintiff is claiming ownership of materials which it merely dun1ped on that surface. When I conducted a site visit to the disputed areas, I saw the location of the contested 0B 1 and SP6. I was shown that from where -J44- .. . ... we were standing on SP6, Nchanga Open Pit Mine was just a few metres away, across the road. 137. During the site visit PWl demonstrated that when reclaiming the dumped materials the Plaintiff does not go below the surface of the earth but confines itself to the earth's surface. I indeed observed that where the Plaintiff has done reclamations at SP16 it has gone only up to where the natural earth's surface starts from. It was clear that the process of reclaiming does not involve mining of material that forms part of the land ( in the context defined in section 2 of the Lands Actb. 13 8. The Defendants appear to have taken the point further by a pparently advancing the position that ZCCM and the Plaintiff abandoned the contested OB 1 and SP6 at some points. I have taken time to carefully read DW l 's testimony in this regard and attentively examined the documents he has referred to in his witness statement. 139. In paragra p hs 5 a nd 6 of his witness statement, DW 1 has said that in 1997 ZCCM wrote to the Director of Mines expressing its desire to re-a dju st its mining rights areas. He has gone on to say that the resolutions a t pa ges 3 and 7 of the Defendant's bundle of docu ments s how tha t ZCCM detached, from its mining rights ar eas, portions which were not directly related to m1n1ng. 140. I h a ve looked at the n1inules referred to by DWl. In my vie w, those minutes do not say t hat ZCCM de tached OB 1 and SP6 fro1n its mining licence area. The minutes were for a meeting whose purpose was indicated a s b eing to examine reports from -J45- ZCCM on the extent of overlaps of mining rights into residential areas and to discuss the issue of land with great agricultural potential which fell in ZCCM's mining rights area. 141 . In paragraph 18 of his witness statement, DW 1 went on to allege that in January, 2008, the Plaintiff surrendered OBI to the Government. For this he referred m e to documents at pages 28 and 29 of the Defendants' bundle of documents. Having looked at those documents, it is unmistakable that they did not originate from the Plaintiff and it cannot be said that the Plaintiff surrendered its OBI and SP6 through those documents. As a matter of fact the document at page 28 is an internal memorandum from the Permanent Secretc;µy of the Ministry of Mines to the Director of the same Ministry. It is clear from paragraph 3 of that memorandum that the Perma nent Secretary recognized that the subject dumps belonged to the Plaintiff. Page 29 is just some newspaper cu tting. 142 . In any case, under cross-examination, DWl reneged on what he h a d said in his witness statement and instead admitted that there is no documentary evidence to show that the Plaintiff surrendered 0 B 1 to the Government. 143. Fron1 the foregoing, I am inclined to find and hold that there was absoluttly no point at which either ZCCM or the Plaintiff abandoned or surrendered to the Governn1ent 0B 1 and SP6. Accordingly, I. hold that OB 1 and SP6 still belong to the Plaintiff. -J46- ( 144. On the totality of the foregoing, I hold that the Plaintiff has proved its entitlement to the second relief on a balance of probabilities. Accordingly, I declare that the Plaintiff has reasonable grounds for withholding its consent from the Defendants in respect of access to Farm No. 927, Farm No. 1426 and Farm No. 942 or the land in Nchanga Mine area. 145. It also follows from the above that the Plaintiff has proved on a balance of probabilities that it is entitled to a permanent injunction to restrain the Defendants whether by themselves or by their servants, agents or otherwise howsoever from entering or crossing the Plaintiffs surface rights and mining rights areas or carrying on any activities on those areas. 146. The Plaintiff's action having succeeded in the manner I have indicated in this Judgment, it follows ipso facto, that the Defendants ' counter-claim has no legs to stand on and I dismiss it forthwith. 14 7. In view of th e noticeable possibility that the Defendants might have been misled by the Ministry of Mines to believe that they owned the contested portions of OBI and SP6, I will not condemn the Defendants in costs. Instead I order that each party must bear their own costs. 148. Leave to appeal is granted.