Konkola Copper Mines Plc v The Attorney General and Ors (APPEAL NO. 09/2024) [2025] ZMSC 28 (27 October 2025)

-. IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 09/2024 BETWEEN: KONKOLA COPPER MINES P APPLICANT AND ATTORNEY GENERAL SHENZEN RESOURCES LIMITED KAKOSO METALS LEACH LIMITED 1ST RESPONDENT 2lm RESPONDENT 3RD RESPONDENT Coram Musonda DCJ, Kaoma and Mutuna, JJS on 5 th August, 2025 and 27th October, 2025 For the Applicant . . Mr. E. Banda SC, Mr. T. Chibeleka and Ms. K • Zimba of Messrs ECB Legal Practitioners and Mr. N. Chaleka - Konkola Copper Mines {In-House Counsel} For the 1" Respondent: Mrs. C. L. Kasonde - Mwan.sa and Ms. M. Mwiya of Attorney General's Chambers For the 2"d and 3rd Respondents . • Mr. T. S. Chilembo of Messrs T. S. Chilembo Chambers and Mr. R. Musumali of Messrs SLM Legal Practitioners RULING Mutuna, JS, delivered the ruling of the Court. Cases Referred to: 1) Zambia Revenue Authority v Hitech Trading Company Limited, (2001) Z. R. 17 2) Ngimbu v Kakoma and Electoral Commission of Zambia, SCZ Judgment 29 of2014 3) Bwalya and Attorney General and Another v Mwanamuto Investments Limited, SCZ Judgment No. 8 of(2012) Volume 1 ZR. 473 4) Livingstone Motor Assemblers Limited (In Receivership) v Indeco Estates Development Company Limited and 4 Others, Appeal 4 of2007 5) Ladd v Marshall 1954, 3 ALL ER 745 6) Musupila v Copperbelt University, Appeal 149 of2013 7) ZESCO Limited v Carolyne Maphenduka, Appeal 40 of 2008 8) Murphy v Stone Wallwork (Charlton) Ltd, {1961/ UKHL, J0618-2 9) Mulholland and Another v Mitchell (by his next friend Hazel, Doreen Mitchell) (1971) 1 All E. R. 307 Statute referred to: 1) Rules of the Supreme Court of England, 1965 (1999 Edition) White book 2) Mines and Minerals Development Act, 2015 3) The Supreme Court of Zambia Act, Cap 25. Introduction 1) This is the 1st respondent's motion for production of a document. It is made pursuant to section 25 of the Supreme Court of Zambia Act and is a request to adduce fresh evidence. The motion is supported by an affidavit sworn by one Samuel Maango. 2) The appellant supported the motion, while the 2 nd and 3rd respondents opposed the motion. ~ R2 ~ Background 3) The dispute in this appeal arises from a decision of the Court of Appeal which dismissed the decision of the High Court that the appellant had issued the correct originating process 1n commencing the action in the High Court. The decision arose from an action taken out of the High Court for trespass by the appellant against the 2nd and 3rd respondents. The two had moved onto the appellant's mining concession after a licence was issued to the 2nd respondent by the Ministry of Mines and Minerals Development to carry out mining activities. 4) The 2 nd and 3 rd respondents raised a preliminary objection against the appellant's action in the High Court contending that the appropriate action which the appellant should have taken out was an appeal pursuant to section 97(1) of the Mines and Minerals Development Act (the Act) and not an action by way of a writ. The High Court dismissed the preliminary objection prompting the 2 nd and 3rd respondents to appeal to the Court of Appeal. ~ R3 ~ 5) After considering the appeal, the Court of Appeal held that the appellant had wrongly commenced the action in the High Court in view of the fact that the respondents' occupation of the mineral concession was by way of a licence as opposed to them having occupied it illegally as trespassers. It held further that the appellant should have appealed against the decision of Ministry of Mines and Minerals Development to grant the 2nd respondent the licence pursuant to section 97(1) of the Act, as opposed to commencing an action in trespass by writ of summons. 6) The appellant appealed against the decision of the Court of Appeal and while the appeal was pending hearing, the 1st respondent raised this motion. The evidence and arguments by counsel 7) In the evidence in support of the motion, the witness testified that he is the Director, Cadastre Department in the Ministry of Mines and Minerals Development. He went on to testify that on 2nd March, 2025, the 1st respondent requested him to provide a status report on licence number 22868-HQ-MPL. This information was - R4- required by the 1st respondent to produce before us as fresh evidence showing the status of the licence issued to the 2 nd respondent. 8) The witness produced the status report as exhibit "SMJ" and stated that it revealed that the licence was terminated in 2018 as a consequence of an arbitral award in an action taken out by Chillerton Group Limited. The award affected the area to which the licence related. The witness concluded by stating that, in any event, the licence expired on 14th April, 2025. 9) The arguments in support of the motion by the 1st respondent began by restating that the motion is made pursuant to section 25(1)(b)(i) of the Supreme Court of Zambia Act which states as follows: "On the hearing of an appeal in a civil matter, the Court may, if it thinks it necessary or expedient in the interests of justice order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case." - RS - According to counsel, the foregoing provision of the law grants us discretionary power to direct the production of documents, exhibits or other materials if such production is deemed necessary or expedient for the just resolution of an appeal. 10) As for when it is appropriate for the court to exercise such discretion, counsel argued that we must be guided by the principles of fairness, completeness of the record and ensure that the appeal is adjudicated upon on the basis of all relevant evidence. Counsel drew our attention to the cases of Zambia Revenue Authority v Hitech Trading Company Limited1 and Ngimbu v Kakoma and Electoral Commission of Zambia2 . In these two cases, we reaffirmed our powers under section 25 of the Supreme Court of Zambia Act and instances when we will invoke such powers. Our attention was also drawn to our decision in the case of Bwalya and Attorney General and Another v Mwanamuto Investments Limited3 in which we restated our discretion under section 25 and emphasized the need for the discretionary power to be exercised judiciously. ~ R6 ~ 11) Counsel advanced their argument by stating that the document sought to be produced has a significant bearing on our decision in this appeal as it clarifies the factual position of the dispute. In addition, the production will eliminate the potential for miscarriage of justice, therefore, the ends of justice demand that we have sight of all relevant material to reach a just and informed decision. To this end, counsel cited a passage from our decision in the case of Livingstone Motor Assemblers Limited (In Receivership) v Indeco Estates Development Company Limited and 4 Others" as follows: "The law on introducing new evidence on appeal is to be found in section 25 of the Supreme Court Act as well as order 59/10 of the Rules of the Supreme Court, 1999 edition. In the case referred to us by counsel for the appellant, we had restated the principles set out in Ladd v Marshall 1954, 3 ALL ER 745 that for an application to introduce new evidence to succeed, it must be shown that the evidence could not be obtained with reasonable diligence at trial; that the evidence will have an important influence on the result of the case and that the evidence will be credible." We were urged to allow the motion. ~ R7 ~ 12) The evidence in support of the 1st respondent's motion by the appellant was led by one Nathan Chaleka and the relevant portions of the evidence are as follows: 12.1) Contrary to the assertion by the 2nd and 3rd respondents, the evidence sought to be introduced is relevant for the determination of the appeal because the decision of the Court of Appeal was anchored on the evidence by the Director Mining Cadastre that the two respondents occupied the area in dispute by way of the licence in dispute. The evidence sought to be introduced will now show that the said licence has since been terminated; 12.2) Since the 2 nd respondent no longer has a licence, then any purported consent given to it by the Director Mining Cadastre to undertake mining activities on the Konkola Tailing Dump falls away; 12.3) As a consequence of the matters stated in paragraph 12.2, any attempt by the 2 nd respondent to conduct mining ~RS~ activities on the appellant's property renders it a trespasser; and, 12.4) The document sought to be produced is crucial to the determination of the appeal because it shows that the licence which is the subject of this dispute was issued for a period of 15 years from January 2010 and has since expired, rendering the 2 nd respondent's interests in the Konkola Tailing Dump void. 13) The arguments by counsel for the appellant in support of the motion mirrored the 1st respondent's arguments. The only departure was a reference to counsel's duty to the court which we consider unnecessary for the determination of this motion. For these reasons, we have not summarised the arguments. 14) Responding to the motion, the 2 nd and 3 rd respondents was led evidence through Griver Chola Sikasote. The evidence revealed that the document sought to be produced is not relevant in the determination of the appeal because of the subject matter of the appeal which was whether or not the appellant correctly ~ R9- commenced the action in the High Court. The witness also denied that the licence, which is the subject of this dispute, had expired because of the injunction obtained by the 2nd and 3rd respondents. 15) In the arguments in opposition, counsel for the 2 nd and 3 rd respondents began by explaining the case which was before the High Court and the decision of that court. They submitted that the High Court found that it had jurisdiction to entertain claims made by the appellant based on the fact that it was an action in trespass. The Court of Appeal reversed this decision on the ground that the prescribed mode of commencement of the action was an appeal under section 97(1) of the Act and not a writ of summons. Counsel argued that for this reason, the appeal tabled before the Court of Appeal was on this procedural issue. 16) Counsel then set out the provisions of section 25(1)(b)(i) of the Supreme Court Act with emphasis on the fact that our discretion will be exercised where the fresh evidence sought to be produced is relevant in the resolution of the dispute. They concluded that contrary to this provision, the document sought to be produced ~ RIO - will not in any way assist us in deciding the matter before us which is purely one of procedure to be adopted when challenging a decision by the Director Mining Cadastre to issue a mining licence. 17) The other thrust of counsel's argument was that since the document sought to be produced has always been available from the time the 1st respondent was joined to the proceedings in the High Court, it does not qualify as fresh evidence to be produced on appeal. Counsel set out the principles in the case of Ladd v Marshall5 adopted by this court in the Hitech Trading 1 decision, and argued that the appellant has not satisfied the test that the document sought to be produced could not have been obtained with reasonable diligence for use at the trial. 18) As regards the 1st respondent's argument that the licence in issue had been terminated by an arbitral award, counsel submitted that no such award has been exhibited to prove this fact. In any event, the issue of termination of the licence via the arbitral award was not an issue considered in the court below, therefore, we were - Rll - • urged not to consider it on appeal in line with our decision in the case of Musupila v Copperbelt Universit1f'. 19) Next, counsel attacked the argument by the 1st respondent and appellant that the licence had expired on 14 th April, 2025. The position taken by counsel was that, since there has been continuing litigation between the appellant and 2 nd and 3 rd respondents resulting from which injunctions have been issued, the contention by the appellant is untenable. According to counsel, the licence is caught up in Regulation 63 of the Act which provides that where there is a conflict in a mining area, the area shall be blocked off pending resolution of the conflict. Here, we understood counsel to be saying that as a consequence of the ongoing dispute between the parties and injunctions issued out by the court, the termination of the licence has been put on hold. 20) Concluding their arguments, counsel submitted that the issue of expiration of the licence is a new issue which was not advanced before the trial court. Therefore, it cannot be brought on appeal especially that it is contentious and the 2 nd and 3 rd respondents ~ R12 ~ will not have an opportunity to test its credibility by way of cross examination of the appellant's witness. Counsel referred us to a decision of this Court in the case of ZESCO Limited v Carolyne Maphenduka7 . We were urged to dismiss the motion. 21) At the hearing of the motion, counsel for the parties restated their written arguments. For this reason, there is no need for us to summarise their arguments as it would amount to repetition. Consideration and decision by the Court 22) The 1st respondent seeks to adduce fresh evidence tending to show firstly, that the 2 nd respondent's licence was terminated by an arbitral award and secondly, that the licence expired in April 2025. The argument is that this fresh evidence is relevant for the resolution of the appeal. We will deal with the evidence contending termination of the licence by an arbitral award first. 23) All the parties to this dispute are in agreement that the test for admission of fresh evidence on appeal is set out in the Ladd5 case. They have also referred us to our decisions which have applied this test as follows: - R13 - " ... first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible." c.f. Dennings, L. J, (as he then was) Ladd v Marshall page 748. 24) Applying the first test to this matter, the 1st respondent's witness testified as follows regarding the fresh evidence sought to be produced: "3. That on 3 rd March, 2025, the Learned Solicitor General requested me to provide the status of Licence No. 22868-HQ MPL. Now produced and shown to me is marked exhibit "SMl ", a copy of the status of the Licence shown on the Cadastre computer printout dated 5 th March, 2025. 4. That Licence No. 22868-HQ-MPL was terminated as a result of an arbitral award obtained by Chillerton Group Limited which ~ R14 ~ covered the area on which the aforementioned licence was issued on. " The position we have taken regarding this evidence is that the document constituting the fresh evidence sought to be produced was available at all material times and easily accessible. It does not in any way show " ... that the evidence could not have been obtained with reasonable diligence for use at the trial ... ". 25) The request for the evidence was made by the Learned Solicitor General and promptly attended to by the witness, attesting to the fact that it was available and easily accessible from the time the 1st respondent was joined to the proceedings as alleged by the 2 nd and 3 rd respondents. We accordingly hold that the evidence does not pass the first test in the La.dd5 case. 26) As for the second test of, the evidence if given would probably have an important influence on the result of the case, the witness for the 1st respondent has not in any way addressed this in his testimony. There is nothing in his evidence which reveals the relevance of the evidence with the subject matter of this appeal. As - R15 - for the arguments in support, counsel for the 1st respondent merely argued that the fresh evidence will clarify the factual position of the dispute. On the other hand, the witness for the appellant speaks to the relevance of the evidence being tied to the nature of the case which was before the Court of Appeal. He suggests that the decision of the Court was solely based on the evidence of the Director Mining Cadastre. 27) Our perusal of the record before us leads us to conclude that what is at the heart of the dispute is whether the appellant used the correct mode of commencement of the action against the 2 nd and 3 rd respondents in the High Court. The fact that the licence may have been terminated by an arbitral award has no bearing on this issue and the evidence would, therefore, have no bearing on the decision we would make in the appeal. The fate of the fresh evidence sought to be adduced is compounded by the fact that the pleadings filed in the High Court reveal that the appellant was unhappy with the manner in which the Ministry of Mines and Minerals Development issued the licence to the 2 nd respondent. It alleged a contravention of its mining and surface rights. - R16 - 28) The decision on appeal focused solely on determining the mode of commencement of actions related to the grievance such as the one the appellant had against the 2 nd respondent. There was no contest or decision regarding the life or validity of the licence. Therefore, in determining the appeal, we will interrogate the question, what was the appropriate mode of deploying the appellant's grievance in the High Court. We accordingly hold that the evidence fails the second test as well. It does not also satisfy the requirement of section 25 (l)(b)(i) that we will exercise our discretion where the fresh evidence is "... connected to the proceedings ... " and it " ... appears (to us) necessary for the determination of the case ... ". The fresh evidence having failed the two tests, there is no need for us to consider the third test. 29) Coming to the second evidence tending to show that the licence expired on 14th April 2025, this fresh evidence is evidence occurring after the action was dismissed before trial and alleges a recent occurrence. The Rules of the Supreme Court 1965 (White Book) under Order 59 rule 10 subrule 17, refer to such situations - R17- as exceptional cases where the Ladd v Marshalr conditions do not apply or apply in a modified form. 30) The test for reception of such evidence is set out in Order 59 rule 10 subrule 18 of the White Book which references the English cases of Murphy v Stone Wallwork (Charlton) Ltdf3 and Mulholland and Another v Mitchell (by his next friend Hazel, Doreen Mitchelzp. It begins by acknowledging the need to preserve the principle that there should be finality in litigation. Then it states that such evidence will be admitted if the change it creates would substantially affect a basic assumption made at the trial. 31) In explaining the foregoing principle further and for completeness, we feel compelled to set out the facts in the Murphy8 case. The appellant had worked at the respondents' foundry for nearly twelve years and was 54 years of age when an accident occurred, in March, 1965, which strained and injured his back. This awakened a previously silent condition of degenerative arthritis in the spine and made it painful. As a result, he was away from work for three ~ R18 ~ months, thereafter he had to have lighter work at the foundry. In 1966 he was off work for three months and in 1967 for three weeks owing to a recurrence of the trouble. 32) The case came on for trial in Octa ber, 196 7, two and a half years after the accident. The judge held that the respondents were liable for breach of statutory duty. The special damage, which included various losses of wages, was agreed. There was conflict of evidence and argument as to how much overtime the appellant would lose owing to his having been moved to a different class of workers by reason of his post-accident inability to do the heavier kind of work. The learned judge assessed the general damages at £750. 33) A reading of the evidence reveals that nobody addressed their mind to the possibility of the respondents dismissing the appellant due to his disability. On appeal, the Court of Appeal increased the amount of general damages. But that court also was going on the assumption that the appellant would continue to work for the respondents unless incapacitated at work. Counsel also argued their case on that assumption. - R19 - • 34) Within a fortnight of the judgment of the Court of Appeal, the respondents dismissed the appellant from employment on the ground that his physical condition made him too big a risk. The appellant sought permission to appeal before the Court of Appeal. His intention was to apply to admit fresh evidence on appeal of the fact occurring after judgment, being, his dismissal from employment with the respondents. In granting permission to appeal, the Court indicated that its judgment was based on the assumption that the appellant would remain in employment. 35) When the matter came up in the Supreme Court (then House of Lords), the court determined the appeal and held that it had power to admit the fresh evidence of the appellant's dismissal which occurred after trial because the basis upon which damages were assessed by the two lower courts had been falsified. It exercised its discretion in favour of admitting the fresh evidence and reopened the case. 36) We agree with the reasoning of the Supreme Court of England and Wales in this decision and we find it persuasive. The fresh evidence ~ R20 ~ • sought to be produced showing the appellant's dismissal, a fact occurring after trial, substantially changed the assumption upon which the two courts awarded damages to the appellant. Therefore, it satisfied the test under order 59 rule 10 subrule 18 of the White Book. However, the facts in the Murphg3 case are distinguishable from the facts of this matter. 37) The fresh evidence sought to be adduced in this matter of the expiring of the licence was pleaded in the statement of claim when the appellant contended that the 1st respondent was purportedly granted a mineral processing licence number 22868-HQ-PPL for a period of 15 years from 6 th January, 2010. Having been so pleaded, the evidence of the expiry of the licence after 15 years was known, not only to the parties, but the two courts as well. Their decisions unlike, the two courts in the Murphg3 case, were made with the full knowledge of this fact which occurred subsequently. The change in the circumstances, i.e. the expiry of the licence, cannot, therefore, affect the assumptions made by the two courts in arriving at their decision. Our decision is reinformed by the fact that, although the 1st respondent cited the case which refers to - R21 - • order 59 rule 10 of the White Book, it and the appellant made no effort to convince us that the evidence of expiry of the licence satisfied the test under order 59 rule 10 subrule 18 of the White Book. Conclusion 38) The decisions we have made in the preceding paragraphs lead us to one inescapable conclusion that the 1st respondent's motion, which has the support of the appellant, has no merit. We accordingly dismiss it with costs against both the appellant and 1st respondent. In doing so, we refuse to accept the fresh evidence sought to be adduced. M. MUSONDA, SC DEPUTY CHIEF JUSTICE R. M. C. KAOMA SUPREME COURT JUDGE .· N. K SUPREME - R22-