Konkola Copper Mines Plc (In Liquidation) v Attorney General and Ors (SCZ/7/20/2024) [2024] ZMSC 31 (23 October 2024)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/7/20/2024 BETWEEN: KONKOLA COPPER MINES PLC (IN LIQUIDATION) AND BUCOF i:. COURTO JUDICIARY --- 2 3 OCT 2024 . .... ......... _______ . ATTORNEY GENERAL SHENZEN RESOURCES LIMITED KAKOSO METALS LEACH LIMITED OJcMT x 50067 • SPONDENT RESPONDENT . 3RD RESPONDENT Before Lady Justice R. M. C. Kaoma in Chambers on the 24th of September 2024 and 23 rd of October 2024 For the Applicant For the 1st Respondent For the 2 nd & 3 rd Respondents Mr. T. Chibeleka and Mr. N. Chaleka both of ECB Legal Practitioners Mrs. C. L. Kasonde-Mwanza, Principal State Advocate Mr. T. S. Chilembo and Miss. N. B. Chilembo both of T. S. Chilembo Chambers and Mrs . S. P. Hinji of Chifumu Banda and Associates RULING Cases referred to: 1. Konkola Copper Mines PLC v. Sensele Enterprises limited - CAZ Appeal No. 133 of 2018 2. Konkola Copper Mines PLC v. Rephidim Mining and Technical Supplies Limited - CAZ Appeal No. 74 of 2018 3. Chikuta v. Chipata Rural Council (1974) Z. R. 241 4. New Plast Industries v. Commissioner of Lands and Attorney General (2001) Z. R. 51 5 . Bidvest Food Zambia Limited and Four (4) others v. CAA Import and Export Limited - SCZ Appeal No. 56 of 2017 6. Proximity Engineering and Mining Limited v. Paulgil Cheick Enterprises Limited - CAZ Appeal No. 170 of 2022 R2 Legislation referred to: 1. Court of Appeal Act No. 7 of 2016, section 13(3) 2. Mines and Minerals Development Act, sections 52, 56, 96 and 97 3. Lands Act, Chapter 184 of the Laws of Zambia 4. Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 1. Background Facts 1.1 On 27th September 2019, the applicant issued legal proceedings against the 2 nd and 3 rd respondents in the Kitwe High Court. The primary relief sought was a declaration that the respondents had no rights over the Kakosa Tailings Dump and that it was the rightful owner of the mining and surface rights over the Dump. Alternatively, it sought a declaration that the 2 nd and 3 rd respondents had no right to enter upon the disputed area without its prior consent; a declaration that it had reasonable grounds to withhold its consent in respect of access to and mining in the disputed area; and damages for interference with its operations and for trespass to its land and facilities. 1.2 The applicant also sought an injunction to restrain the 2 nd and 3 rd respondents from entering on or crossing its surface and mining rights or conducting any activities on the property. The injunction was granted ex-parte and later confirmed on 27th January 2020. 1.3 Afterwards, the learned High Court judge, A. Patel, S. C., (as she then was) joined the Attorney General to the action. Thereafter, the R3 Attorney General raised a preliminary issue challenging the jurisdiction of the High Court, arguing that the matter was wrongly commenced and that the proper forum for resolving the dispute was under the Mines and Minerals Development Act 2015 (the Act). The 2 nd and 3 rd respondents supported the application. 1. 4 On 20th May 2021, the learned judge resolved that the matter was properly comrnenced as the claims were grounded in tort for trespass and not the violation of mining rights and that she had jurisdiction to determine the matter. She based her decision on the Court of Appeal cases of Konkola Copper Mines PLC v. Sensele Enterprises Limited 1 and Konkola Copper Mines PLC v. Rephidim Mining and Technical Supplies Limited2 . 1. 5 The Attorney General appealed to the Court of Appeal. The main contention was that the 2 nd respondent was granted permission by the Director of Mining Cadastre to carry out its mining activities in the area after the applicant refused to grant it consent. Therefore, the applicant should have appealed to the Minister as prescribed by section 97(1) of the Act. The cases of Chikuta v. Chipata Rural Council3 and New Plast Industries v. Commissioner of Lands and the Attorney General4 were relied on. R4 1.6 The Court found in favour of the Attorney General. It distinguished the Sensele Enterprises 1 and Rephidim Mining2 cases on the basis that the respondents there did not seek consent from the holder of the mining rights whilst in this case, the 2 nd respondent did not commence activities as a trespasser, but as a licensee, having obtained consent from the Director of Mining Cadastre. 1. 7 As a result, the Court held that the applicant was caught up by the Supreme Court decisions in the Chikuta3 and New Plast4 cases and that the High Court had no jurisdiction to entertain the matter since it was commenced contrary to the prescribed mode. 1.8 The applicant was aggrieved by the decision and sought leave to appeal to the Supreme Court, but the leave was denied by the Court of Appeal in a majority ruling, with Justice A. Patel (who is now in the Court of Appeal) dissenting. 2 Renewed Application 2 .1 The applicant has now renewed the application for leave to appeal before me as a single judge of the Supreme Court, eager to challenge the finding by the Court of Appeal that the 2 nd respondent commenced mining activities as a licensee with consent from the Director of Mining Cadastre and that the action was wrongly commenced by writ of summons in the High Court. RS 2.2 The parties filed their respective affidavits and heads of argument, on which they relied at the hearing of the application. Counsel on both sides augmented their arguments by oral submissions. 2.3 I do not intend to set out the submissions by the parties in any detail at this stage in my ruling. I shall refer to relevant parts of the submissions when determining the application. 3 Decision 3.1 I have considered the application before me and scrutinised the affidavits, arguments and authorities relied on by the parties. In an application for leave to appeal to the Supreme Court, the central question is whether the applicant has satisfied any of the criteria outlined in section 13(3) of the Court of Appeal Act. In this case, the applicant relies on section 13(3)(a)(c) and (d). 3.2 Firstly, the applicant contends, in brief, that the proposed appeal raises points of law of public importance concerning the authority of the Director of Mining Cadastre under the Act. More precisely, the applicant seeks clarity from the Supreme Court, whether the Director has authority to grant consent to a mining entity to operate on land where the surface rights holder has withheld consent. It is argued the issue transcends the particular interests of the parties to this case and bears upon the public interest. R6 3.3 It is also argued that the matter involves two competing legal regimes: The Lands Act and the Mines and Minerals Development Act, and merits clarification by the Supreme Court. 3.4 The applicant contends that if the decision of the Court of Appeal is allowed to stand, without intervention by the apex Court, it could set a dangerous precedent that would allow the Director to effectively seize land from surface right holders, potentially leading to arbitrary acquisition of land in mining regions. 3.5 On their part, the respondents submit that the applicant has failed to demonstrate that the proposed appeal raises a point of law of public importance. They refer to section 52(2) of the Act, which they claim gives the Director of Mining Cadastre the authority to grant consent for mining activities, including instances where consent has been withheld by the surface right holder. 3.6 They contend that the law is clear on this point, that the applicant's grievance is specific to this case, and that there is no ambiguity or widespread public concern that would require clarification by the Supreme Court. They rely on Bidvest Food v. CAA Import and Export5 , which established that a point of law must have general significance and transcend the particular circumstances of the case. R7 3 . 7 The Supreme Court has guided in the Bidvest Food 5 case that for an issue to qualify as a point of law of public importance, it must transcend the immediate interests of the parties and have broader implications for society at large. Public importance involves matters that affect the general public or address uncertainty in the law that requires resolution for the common good. 3.8 In this case, the issue that fell to be decided by the Court of Appeal related to the mode of commencement of the proceedings. The 1st respondent argued that the applicant should have invoked the procedure under section 97( 1) of the Act, while the applicant contended that the action was founded in tort and was, therefore, properly commenced in the High Court. 3. 9 The Court of Appeal accepted in its judgment that the law requires anybody that is given surface rights over a mining area over which another entity holds a mining licence, to seek the licence holder's consent before conducting any activities on the land. 3 .10 Quite clearly, the Court of Appeal did not state that the Director of Mining Cadastre has authority to grant consent to enter upon a surface area held on title. However, the issue raised by the applicant is implied from the decision of the Court that the 2 nd respondent did not commence activities on the disputed area as a R8 trespasser, but as a licensee, having obtained consent from the Director of Mining Cadastre. 3.11 The question the Court did not interrogate, is whether the Director of Mining Cadastre had authority to grant the 2 nd respondent consent to access the tailing dump when the applicant, as surface right holder (and mining right holder) had withheld the consent. 3 .12 There are several provisions in the Act that deal with the responsibilities and powers of the Director of Mining Cadastre such as sections 5(6), 52(2) and (3) and 56(c) . I am also aware of the provisions of sections 16, 38(1), 39 and 40(1). 3 . 13 It is clear that section 52 imposes restrictions of rights of entry by a holder of a licence or permit in the circumstances stipulated in subsection (1). The parties believe that section 52(l)(b)(i) applies to this case and the respondents insist that the Director of Mining Cadastre had the authority under section 52(2) to grant the 2 nd respondent consent after the applicant unreasonably withheld it. However, the Court of Appeal did not deliberate on the specific provision that gives the Director such power or authority. 3 .14 The view I take , is that the question raised by the applicant emanates from the appeal that was before the Court of Appeal. It R9 raises a point of law of public importance which transcends the facts of the individual case and it bears upon the public interest. 3.15 It is also my view that what is in issue in the proposed appeal concerns the interpretation of provisions of the Act especially that there have been several matters in the courts, including the Court of Appeal, relating to the applicant and other companies holding surface and or mining rights and the interpretation the Court has given to some of the provisions. 3 .16 This is not a mere procedural issue regarding how a dissatisfied surface right and or mining right holder should challenge consent granted by the Director of Mining Cadastre. It is a fundamental legal issue that presents uncertainty in the law that justifies intervention by the Supreme Court. 3.17 The applicant also contends that the proposed appeal has reasonable prospects of success. They maintain that the 2 nd and 3 rd respondents acted without valid consent and should have been treated as trespassers under the law. The applicant further submits that there are other compelling reasons for the Supreme Court to hear the appeal, citing a need for guidance on how mining rights and surface rights should be reconciled when consent is withheld. R10 3.18 On their part, the respondents argue that the Court of Appeal correctly applied the law, that the 2 nd and 3 rd respondents were operating legally with consent from the Director of Mining Cadastre, and that the applicant's failure to appeal the decision under section 97(1) of the Act undermines their case. They insist that the applicant used the wrong mode of commencement, and that the case is governed by the Act, not by tort law. 3.19 The respondents further contend that there are no compelling reasons to grant leave, as the Act provides sufficient clarity on the issue. They assert that the applicant's real grievance lies with the consent granted by the Director of Mining Cadastre, which should have been addressed through an appeal to the Minister especially that the applicant has not disputed the existence of the mineral processing licence, making the claim of trespass baseless. 3.20 I have considered the above arguments. For an appeal to have reasonable prospects of success under section 13(3)(c), there must be a real chance that the Supreme Court would overturn or modify the decision of the lower court. Further, for a compelling reason to exist under section 13(3)(d), the applicant must show that there is a pressing need for the Supreme Court to hear the case beyond the specific issues of the parties. 3.21 There is no dispute that the Act governs how disputes over mining R11 and surface rights should be handled and the Court of Appeal has dealt with some of the issues in cases such as Sensele Enterprises 1 and Rephidim Mining2 . However, section 96 of the Act requires that the holder or applicant affected by a decision made by the Minister, Committee, Director or authorised officer against which an appeal lies should be informed of the decision and the reasons for the decision by notice, in writing, and the notice should inform the person notified of the right of appeal. 3.22 In this case, the applicant maintains that it was not notified of the decision and of the right of appeal. The respondents concede that they have no information or proof that the applicant was informed of the decision by the Director of Mining Cadastre granting consent to the 2 nd respondent or of the right of appeal. 3.23 In Proximity Engineering and Mining Limited v. Paulgil Cheick Enterprises Limited6 , a judgment delivered by the Court of Appeal on 13th June 2024, prior to the ruling, refusing the applicant leave to appeal, the Court dealt with sections 96 and 97 of the Act. It held that section 96 is in mandatory terms . Because there was no communication of a decision to cancel or suspend a mining licence in accordance with section 6, it found that the lower R12 court enjoyed the necessary jurisdiction to pronounce itself on the alleged dispute taken to court by the appellant. 3.24 Therefore, in view of the non-communication of the decision of the Director of Mining Cadastre granting consent to the 2 nd respondent and informing the applicant of the right of appeal, was the applicant wrong not to invoke the procedure under section 97(1)? 3 .25 On the basis of all the foregoing, I am satisfied that the applicant has demonstrated that the appeal has reasonable prospects of success and that there is a compelling reason for the appeal to be heard by the Supreme Court. 3.26 In conclusion, the applicant has met the threshold set out in section 13(3)(a)(c) and (d) of the Court of Appeal Act and I grant it leave to appeal. Costs shall abide the outcome of the appeal. Dated at Lusaka this 23rd day of October 2024. ~ ~fj}~:-: .. ---~ R. M. C. KAOMA SUPREME COURT JUDGE