Kronos Mining Ltd and Ors v Konkola Copper Mines Ltd (SCZ 28 of 2012) [2012] ZMSC 97 (4 December 2012)

I JI IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCZ JUDGEMENT NO. 28 OF 2012 P646 APPEAL NO. 71/2011 KRONOS MINING LIMITED ATTORNEY GENERAL ZCCM INVESTMENTS HOLDINGS PLC APPELLANT INTERESTED PARTY INTERESTED PARTY AND KONKOLA COPPERMINES LIMITED RESPONDENT CORAM: Mumba, Ag/DCJ, Chibomba and Wanki JJS On 20th March, 2012 and 4th December, 2012 FOR THE APPELLANT: MR. B. MUTALE, S. C., MESSRS, ELLIS & COMPANY. MS. B. ZALOUMIS OF MESSRS DOVE CHAMBERS. FOR THE RESPONDENT: MR. ELIJAH BANDA S. C. OF ECB LEGAL PRACTITIONERS. MR. NCHIMA NCHITO OF NCHITO AND NCHITO ADVOCATES. 1st INTERESTED PARTY: MS. M. CHOMBA, SENIOR STATE ADVOCATE. 2nd INTERESTED PARTY: MS. S. NAMWILA, IN HOUSE COUNSEL FOR ZCCM INVESTMENTS HOLDINGS PLC. JUDGMENT Mumba, Ag/DCJ, delivered the Judgment of the Court. J2 P647 Cases refereed to:- (1) . DOCTOR J. W. BILLINGSLEY VS J. A. MUNDIA (1982) ZR 11. (2) . TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT COMPANY LTD. B. S. K CHITI (SUED AS RECEIVER), & ZAMBIA STATE INSURANCE CORPORATION LTD (1984) ZR 105. (3) . AMERICAN CYANAMID CO. VS. ETHICONLIMITED (1975) 1 ALL ER 504. This is an appeal against the Ruling delivered by the learned trial Judge granting an interlocutory injunction to the respondent. Briefly, the appellant and the respondent hold mining licences which show that each party has an interest in the Nchanga Open Pit Mine Overburden Dump No. 1, generally referred to as, OBI. The respondent’s licence was granted nine years earlier than that of the appellant by the time of this action. The mining licences and entitlements thereto appear to cover both underground and surface mining rights. The respondent had worked the OBI all along until the appellant got their mining licence. In the process of mining activities, the appellant started removing dump materials from OBI where both parties’ mining rights are in dispute. J3 P648 On affidavit evidence as well as the exhibited documentary evidence, the learned trial Judge found that OBI was actively pursued by both parties in their mining operations which were linked to the profitability of both parties pursuits. The learned trial Judge discussed at length the material aspects of an interlocutory injunction in circumstance where a full trial to determine the disputed rights was pending and decided to grant the interlocutory injunction to the respondent. The learned trial Judge pointed out uncertainties regarding the rights of the respondent and those of the appellant as to their mining activities over OBI which were overlapping, she decided in favour of the respondent and granted the injunction to preserve the status quo because materials that were being removed or that were being dumped on OBI were shifting the value of the contents of mining materials. When describing the scenario facing the trial court, the learned trial Judge stated as follows, at page 25 of the record:- “I am uncertain as to whether the Defendant has been exploiting materials from the part of OBI belonging to the Plaintiff or from a dump that had earlier been granted to ARM under PLLs 102 which the Plaintiff may not be interested in. The other issue is whether or not the Plaintiff has been dumping ore on the part of OBI to which the Defendant has exclusive mining and surface rights. I am uncertain as to the Plaintiffs right to dump J4 its materials on the part of OBI in question and whether the Plaintiff also has the right to re-use the dumped material. The other issue is whether or not the issuance of the mining license to the Defendant was right or wrong.” P649 The learned trial Judge considered that under the circumstances, the balance of convenience lay with the respondent and granted the injunction. The appellant filed four grounds of appeal, as follows: 1. That the Court below erred in law and fact in granting an injunction whose effect was to determine the outcome of the main action. 2. That the Court below erred in law and fact in making declarations which had the effect of granting the Respondent rights over land which is the subject of a Mining Licence legally held by the Appellant. 3. That the Court below erred in law and fact in holding that the Respondent had an interest in general over land which the Court actually found to belong to and was under the control of the Appellant Company. 4. That the Court below erred in law and in fact by holding that the Respondent herein would suffer irreparable injury if the Appellant was not stopped from continuing to exploit the land in question when it was clear from the J5 P650 5. facts before the Court that the Defendant was the holder of a valid Mining Licence over the said land. Both parties filed written heads of argument and lists of authorities. The Attorney General and ZCCM Investments Holdings Pic, who are Interested Parties were not involved in the appeal as their respective advocates stated that the interlocutory appeal was purely between the respondent and appellant. The appellant argued grounds one, two and three together. The gist of the arguments in these three grounds was that the injunction granted by the court below effectively determined the outcome of main action and disadvantaged the appellant. The appellant submitted that among the reliefs sought were:- “(a) A declaration that (the appellant’s) operations and activities on OBI are illegal and inconsistent with the letter and spirit of the Mines and Minerals Development Act No. 7 of 2008, and (the Respondent’s) accrued rights under its Large Scale Mining Licence No. LML 34; and (b)An Order of injunction to restrain (the appellant) either by himself, his agents servants or licences from interfering with the (the respondent’s rights) in respect of OBI.” The appellant submitted that the interlocutory injunction defeated all the claims in the main action, any decisions would result in the trial being nugatory and of no benefit to the appellant. Several J6 P651 cases was cited on the merits of interlocutory injunctions in the face of contentious issues to be decided at trial. The case of Doctor J. W. Billingsley V J. A. Mundia1 was cited in support of this submission. In that case this court said:- “An interim injunction application should be treated as such, and purported final determination of all the issues at that stage is a nullity”. It was submitted that the learned trial Judge, in the Ruling, held that the respondent had a general interest in the land belonging to the appellant, it was argued that that was a serious misdirection because it was tantamount to revoking the title or licence of the appellant to the said land and granting it to the respondent. It was submitted that that negated the whole essence of injunctive relief as it was an attempt to create a status favourable to the respondent at the interlocutory stage. In support of this submission the case of Turnkey Properties V. Lusaka West Development Company Ltd. B. S. K Chiti (Sued as Receiver) And Zambia State Insurance Corporation Ltd2 was cited. In that case this court held, inter alia, that, “An interlocutory injunction should not be regarded as a device by which an applicant can attain or create new conditions favourable only to himself’. J7 P652 It was further submitted that the learned trial Judge not only pre­ empted the decision supposed to be made after trial but went further to grant the respondent rights over land which was the subject of a mining licence held by the appellant. Such a decision, it was contended, amounted to usurpation of the powers of the entity which grants mining licences. In support of this submission sections 25, 35, and 54 of the Mines and Minerals Development Act No. 7 of 2008, were cited. It was argued that in granting an injunction a court should not create conditions which amount to an advantage over the other party and, finally, that the lower court’s decision created an enabling environment advantageous to the respondent but disadvantageous to the appellant. In response to grounds 1, 2 and 3, the respondent submitted that an injunction is an equitable remedy to enable the court to order a party to refrain from specific acts in order to maintain the status quo while the matter was awaiting final resolution. It was pointed out that the learned trial Judge made no findings that the respondent owned the dump but pointed out that the respondent had an interest in the dump which interest had to be protected until final resolution of the matter. It was argued that this was so J8 P653 because it was not in dispute that the respondent had a long term use of the dump and that that was the interest which the court below was referring to. It was contended that as such, there was no misdirection as the court did not make any findings of fact on ownership and control of the said dump. It was argued that both parties held licences which appeared to protect conflicting interests over the dump, the respondent’s licence was granted nine years before that of the appellant, the respondent, having been making use of the dump and its mining licence for that long, it was proper for the court to protect that interest. On ground 4, the submission was that when considering the application for an injunction, the question whether or not the other party will suffer irreparable injury if the injunction was to be refused, was one of the cardinal principles. The case of American Cyanamid Co. vs. Ethicon Limited3 was cited in support of this submission. It was pointed out that there must be a genuine issue that needs to be properly examined at trial, and, secondly, that a party seeking an injunction, if not granted would be injured or prejudiced such that damages would not be an adequate form of compensation. It was also contended that the court should not grant an interlocutory injunction unless the right to relief is clear, convenience alone was not enough. It was argued that the Ruling appealed against was based on the evidence which was sufficient J9 P654 for this court to make necessary findings, and that the record had all the affidavits and documentary evidence to enable this Court to resolve all matters in issue. It was finally submitted that the court below did not state the kind of irreparable injury the respondent would suffer if the injunction were declined. In responding to ground 4, the respondent submitted that it had held the mining licence over a period of time and that it was making use of the dump, an entitlement its mining licence had already conferred. It was submitted that the court below could not ignore this fact, and that the state of affairs made it clear that denial of the injunction sought could not be atoned for in damages. It was, therefore, in the interests of all parties for the status quo to be maintained. Recalling the written submissions supporting the first three grounds of appeal which were argued together and the response by the respondent, we state that we have carefully considered them. We are at pains to find anything in the Ruling that amounts to an unfair advantage to the respondent over the appellant because of the injunction granted. On the contrary, we agree that the respondent’s long term use of the dump as part of its mining operations could not be ignored. The validity of a latter mining licence held by the appellant was one of the issues for trial. We do J10 P655 not accept that the trial court did determine all the contentious issues such that the ruling will render the trial nugatory. On the contrary, the mining rights and the validity of the mining licences are yet to be determined at trial, these are some of the genuine issues. At worst, such submission appears to be a result of misapprehension of the triable issues involved in this case. We do not see any “purported final determination of all issues...” The dump was operated by the respondent long before the appellant came on the scene, preserving the status quo, a principle cardinal to the exercise of injunctions, was followed, the learned trial Judge cannot be faulted. We do not agree that new conditions favourable only to the respondent were created as submitted by the appellant. The submission that powers to issue mining licences were usurped by the trial court on account of its ruling, is clearly misconceived. Grounds one, two and three are dismissed as they have no merit. Regarding the fourth ground of appeal, most of the submissions cannot stand. Even though the record appears to contain voluminous evidence on the contentious issues, this court has no role in making any findings as invited by the appellant, there is no basis in law for such procedure and we decline to do so. On the whole, the learned trial Judge cannot be faulted for granting the injunction in the manner that she did. The fourth ground of appeal also fails. JU P656 In the result, the appeal is dismissed with costs to the respondent in any event. F. N. M. MUMBA ACTING DEPUTY CHIEF JUSTICE H. CHIBOMBA M. E. WANKI SUPREME COURT JUDGE SUPREME COURT JUDGE