Konkola Copper Mines Plc v Rephidim Mining and Technical Supplies Limited and Ors (APP. NO. 74/2018; CAZ/08/111/2018) [2019] ZMCA 298 (3 July 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08//111/2018 HOLDEN AT LUSAKA ( Civil Jurisdiction) APP. NO. 74/2018 MIMBULA MINERALS LIMITED 2ND RESPONDENT MOXICO RESOURCES LIMITED 3RD RESPONDENT Coram: Mulongoti, Sichinga and Ngulube, JJA On 15th August, 2018 and 3 rd July, 2019 For the Appellant: Mr. E. Banda, SC, and Mr. T. Chibeleka of Messrs ECB Legal Practitioners, Mr. A. Dudhia, SC, Mr. M. Ndalameta, Mr. Y. Yosa of Messrs. Dudhia and Company, Mr. M. Mainza- In house counsel. For the Respondent: Mr. Z. Muya, Ms. M. Mapani of Messrs. Muya and Company JUDGMENT Sichinga, JA delivered the Judgment of the Court. Jl LEGISLATION REFERRED TO: 1. Mines and Minerals Development Act, No. 7 of 2008 2. Mines and Minerals development Act, No. 11 of 2015 CASES REFERRED TO: 1. Gibson Tembo V Alizwani, S. C. Z. Judgment No. 6 Of 1996 2. Sanhe Mining v Andrew Mazimba CAZ App. No. 83 of 2017 3. Re Wilson Syndicate and Conveyance, Wilson v Shorrock (1938) ChD 4. General Accident Fire and Life Assurance Corporation Limited v British Gypsum Ltd {1967] 3 All ER 40 5. Musunka Silungwe v Zambia Institute of Architects (Appeal No. 214 of 2014)- unreported SCZ: 6. Hadkinson v Hadkinson [1952} 2 All ER 567 7. Pepper (Inspector of Taxes) v Hart and Related Appeals 1993 1 All ER 8. Attorney General and MMD v Lewanika & Four Others Judgment No. 2 of 1994 9. Kansanshi Mining v ZRA (SCZ) Appeal No. 143 of 2014 10. China Copper Mines Ltd v Tikumbe Mining Ltd and 2 others 20 l 7/HP/255 11. Barclays Bank Zambia Ltd v Walisko and Company and Mohamed Ashraf Mansor 1980 ZR 7 12. Newplast Industries v Commissioner of Lands and Attorney General (2001) ZR 51 13. National Assistance Board v Wilkinson {1952} 2 All ER 255 BOOKS REFERRED TO: J2 1. Mvunga and Ng'ambi on Torts, Unza Press for School of Law, 2011 Edition 2. Halsbury's Laws of England, Vol 76, 5 th Edition This appeal is against a ruling of the High Court dated 23 rd April 2018, dismissing the action before it for being statute barred and an abuse of court process. By amended writ of summons dated 17th January 2018, the appellant herein took out an action against the respondents, claiming the following reliefs: 1. A declaration that the defendants have no right to enter upon Lot 694/M and the remaining extent of Lot 564/M or the land in Nchanga Mine area without the prior consent of the plaintiff; 11. A declaration that the plaintiff has reasonable grounds to withhold its consent for the defendants in respect of access to Lot 694 /M and the remaining extent of Lot 564 /M or the land in N changa Mine area; 111. An injunction to restrain the defendants whether by themselves or by their servants or agents or otherwise howsoever from entering or crossing the plaintiff's said surface and mining rights or carrying on any activities thereon; 1v. Damages for interference with the plaintiff's operations; v. Damages for trespass to the plaintiff's Lot 694 /M and the remaining extent of Lot 564 /M or the land in Nchanga Mine area and facilities; v1. Further or other relief; v11. Costs. J3 The brief background of this matter, as alleged by the appellant in its statement of claim, is that pursuant to the Zambia Consolidated Copper Mines (ZCCM) Sale Agreement of 15th December 1999, the appellant acquired all mining rights over Nchanga Copper Mine from ZCCM as part of the privatization of ZCCM, together with a large scale mining licence number 7075-HQ-LML, covering approximately 11470 hectares with a validity of 25 years from its first issue on 30th March 2000. It was stated further that by virtue of the various real property purchased under the said ZCCM Sale Agreement, the appellant has valid certificates of title, or otherwise owns the Nchanga Mine Area, and for purposes of the dispute herein, the appellant's properties are Lot 694 /Mand the remaining extent of Lot 564/M or the land in Nchanga Mine area. At the time of the ZCCM Agreement, the parties also entered into a Defunct Areas Call Option Agreement (the Defunct Areas Agreement) the effect of which was to postpone the registration of the appellant's purchased land, including Nchanga mine, into the appellant's name pending an environmental clean-up and rehabilitation of the defunct areas by Zambia Consolidated Copper Mines Investment Holding (ZCCM-IH). Under this Defunct Areas Agreement, the appellant was granted a call option which once exercised, would require ZCCM-IH to effect registration of the said defunct areas, and thereafter complete the formalities of transfer to the appellant. Notwithstanding that the rehabilitation exercise of the defunct areas was not carried out, the appellant was desirous of exploiting the defunct areas. The parties therefore agreed that the appellant would proceed to exercise the call J4 option, which the appellant did and in pursuance thereof gave notice to ZCCM-IH to this effect, and ZCCM-IH undertook to complete the formality of registration of the appellant as the registered proprietor of the defunct areas. The statement of claim reads further that on 12th August 2015, the 1 st respondent was issued with a small scale mining licence SML 296 to mine copper, cobalt and gold for a period of 10 years from January 2007, and the said licence was reissued under the Mines and Minerals Act of 20081 as 844-HQ-SML in April 2010. The land that was the subject of this licence included an area which is N changa Mine Licence relating to Lot 694 / M and the rema.1n1ng extent of Lot 564 / M or the land in N changa Mine area. In 2016, the 1st respondent applied for consent to transfer its small scale mining licence to the 2 nd respondent, which application was granted, and the said small scale mining licence was subsequently converted into a large scale mining licence number 21816-HQ-LML to the extent of 15.388904 square kilometres, and which also falls within Lot 694 /M and the remaining extent of Lot 564 /M. The respondents then moved on site, placed boundaries and advertised their intention to exploit the mineral resources at Mimbula Dumps and Mimbula Pits, in the press, and further moved machinery on to Lot 694/M and the remaining extent of Lot 564/M. Mainly, the appellant's position is that these actions by the respondents constitute a trespass on its land and further that it did not grant the defendants consent to commence mining activities. JS The respondents filed a defence and counter-claim dated 17th November 201 7, in which they denied that the appellant acquired all mining rights over ZCCM, and contended that the appellant's mining rights were subject to the Defunct Areas Agreement, which provided that the Mimbula Area was one of the defunct areas that could be transferred to the appellant after making a call option to ZCCM, and the Government of the Republic of Zambia did not object. That the effect of the agreement was that the subject defunct areas could only become the appellant's upon its option to call for them even after completion of the environmental clean-up program, and that at the time the appellant was exercising its right to call for the defunct areas, the Government had already issued Small Mining Licence No. 8441-HQ-SML and No. 8514-HQ-SML. The respondents therefore deny that the mine in the disputed area was sold to the plaintiff in 2000. In response to the appellant's allegation that the large scale mining licence number 21816-HQ-LML granted to the 2 nd defendant on 2 nd May 2017 falls within the plaintiff's Lot 694 /M and the remaining extent of Lot 564 /M, the defendants contended that the plaintiff did not adduce title to this effect, and that there was no need for consent from the plaintiffs before the defendants could commence mining activities, as the defendants obtained underground mining rights by virtue of Mining License No. 8441-HQ-SML. The respondents then applied to dismiss the matter for abuse of process on the basis that the matters raised were to be resolved in the J6 manner prescribed under the Mines and Minerals Development Act2 of 2015 (new Mines Act). The judge in the lower Court, after considering various prov1s1ons relating to procedural requirements under the Mines Act, came to the conclusion that the issues in consideration fell within the ambit of the new Mines Act, that is, sections 16, 52, 55, 97, 98 and 100. As regards the question of the action being statute barred, the learned judge in the court below did not address this issue, given her position that the High Court has no jurisdiction to determine any matter until the statutory procedures and processes are dealt with under the Act, as only then can a matter go to the High Court by way of appeal. Equally, given that the cause of action is one of trespass, mining rights and the requirement for prior consent by the person with mining rights, the judge in the Court below was of the view that it was restrained from dealing with the matter until the statutory procedures and processes under the Act were exhausted. For these reasons, the learned judge took the position that the plaintiff's action was an abuse of the court process. The appellant, being dissatisfied with the ruling of the learned judge in the Court below, lodged an appeal before this Court on the following grounds: 1. The Court below misdirected itself when it failed to properly consider that the action before it was a case based on rights of ownership of land and trespass over those rights; J7 2. The Court below misdirected itself in fact and in law when it failed to properly take into account that the appellant holds mining rights as well as surface rights on the land, and that the two rights are separate rights protected in different ways by the laws of Zambia; 3. The Court below erred in fact and in law when it determined that the issue of granting and withholding of consent falls within the ambit of the mines legislation, when in fact the issue of consent arose in the action because appellant's ownership of the land on which the respondents trespass, which is not governed by the mining legislation; 4. The Court below erred in fact and in law when it found that the reliefs sought in the writ of summons emanate from the appellant's large scale mining licence, when in fact they emanated from the rights of ownership of land held by the appellant; 5. The Court below erred in fact and in law in finding that the possession of the land arises as a consequence of the mining rights granted to both parties because the possession of the appellant arose from a sale and purchase of the land and the respondents do not have any right to ownership or possession of the land; J8 6. The Court below erred in fact and in law in its application of sections 16, 52, 56 and 97 of the Mines Act, and in its understanding of the applicability of the mining legislation to the dispute before it; 7. The Court below erred in fact and in law when it ignored the fact that a claim in trespass for damages cannot be determined by the Mines Tribunal (especially one that is not in existence); 8. The Court below erred in its constitutional duty to resolve the dispute before it, particularly after taking cognizance that the Mines Tribunal has not been appointed; 9. The Court below fell in to great error by dismissing the action before hearing all the relevant facts and evidence because if the Court had heard the evidence it would have established that the action was validly constituted as an action in trespass; and 10. The Court below erred in law and in fact by dismissing the committal proceedings against the Respondents considering that the order said to have been breached remained valid and in force throughout the proceedings. The appellant also filed heads of argument and supplementary heads of argument on 14th May 2018 and 15th August 2018, respectively. Under the first ground of appeal, our attention is drawn J9 to a portion of the ruling appealed against, at page R 19 where the judge stated as follows: "In my considered view, any possession whether legal or equitable arises as a consequence of the mining rights granted to both parties, and resolution of these conflicting rights are within the ambits of the Act." In light of the said finding, it is the appellant's submission that the problem is that there is no law that provides for possession of land belonging to, or even occupied by, another merely because a mining licence is granted, and that even if such law existed, that is not what prompted the appellant to commence the case in the lower Court. The appellant's contention is that the respondents are trespassing on the subject property, as the same was sold to the appellant by the Government, and is also listed in the 1999 Sale Agreement, by which the mining licence over the entire mining refractory and ores was sold to the appellant. As such, it is the appellant's submission that it is entitled to maintain the dismissed action either as purchaser in possession and/ or the legal or equitable owner and/ or the owner and occupier of the property, and that the respondents ought to have investigated the title to the subject properties before seeking to assert their rights on the surface of the land. Reliance is placed in this regard on the case of Gibson Tembo v Alizwani1 . Our attention is further drawn to texts by the learned authors of John Cooke on Law of Torts (9th Ed.) and Mvunga and Ng'ambi on Torts 1 to the effect that trespass to land is an unjustifiable JlO interference with the possession of land, and that it may occur where a person either remains upon the land or places or projects any object upon the land without the permission of the owner and occupier, respectively. The appellant submits in toto under ground one that the respondents have not obtained consent from the appellant, which consent the appellant does not intend to grant, and further that the action in the court below was meant to decide on whether the appellant was reasonably withholding consent, and to prevent the trespass until the case was disposed of after a trial. At the hearing of the appeal, Mr. Dudhia made oral augments in support of the first ground of appeal. He drew our attention to the case of Sanhe Mining v Andrew Mazimba2 in which this Court held that the Mining Appeals Tribunal does not have jurisdiction to try cases of trespass and render judgment accordingly. Counsel submitted that this is because a claim for damages in tort has to be commenced in the High Court by way of writ of summons. In response to the appellant's application of the Sanhe case (supra), Mr. Muya made reference to a portion of the judgment where we stated at page 19 as follows: "Therefore, the High Court has jurisdiction to try cases in which trespass has been alleged, against a person or entity who or which has no mining right or non mining right over the area in question, and who Jll trespasses on or becomes a nuisance to a small scale mining licence holder." Mr. Muya distinguished the basis of this finding from the matter in this case in that it applies where the said trespass has been alleged against a person with no mining right. As such, trespass could only be adjudicated upon by the High Court where there is no mining right granted to the person against whom the trespass is alleged. However, in this particular case, the respondent is a holder of a mining right. Under the second ground of appeal, it is argued that although the appellant also bought mining rights over Nchanga Mine, the basis of the action in the court below was not to assert or protect its mining rights, as even though the issue of encroachment over the appellant's mining rights is within the ambit of the Ministry of Mines, the lower court did not pay attention to the independent question of how surface or land rights are protected. On this premise, the appellant contends that if the lower court had regard to the question of surface or land rights, and accordingly allowed the action to proceed to trial, it would have arrived at a different conclusion and realized that the issue was about land rights and not mining rights. In this regard, the appellant heavily relies on the case of Re Wilson Syndicate and Conveyance, Wilson v Shorrock3 in which the court considered whether the holder of a mining right is entitled to exercise their right by entering upon the surface of land owned by another person in order to access such minerals. It is the J12 appellant's submission that the said Syndicate Case3 shows that to be able to mine on someone else's land, the respondent would have to be able to find somewhere in the law, where it is provided that they may not only enter upon the surface of the land, but also that the respondent may go on to destroy the surface to get the minerals. There is no express provision anywhere in the law that allows a person to damage the surface of someone's land; not in the Mines and Minerals Development Act, the Lands Act, or the constitution. The appellant's application of the Syndicate case (supra) is that the appellant owns not just the surface of Lot 694/M and its remaining extent, but the surface all the way down to the core of the earth, except the minerals that the respondents have allegedly been licensed to mine. In this regard, reference is also made to the case of General Accident Fire and Life Assurance Corporation Limited v British Gypsum Ltd4 wherein the rights granted were to minerals except and with reserve to the surface rights. It was held that the right could therefore only be exercised underground as the deed did not grant the right to enter the surface. The appellant admits that its registration as the proprietor of the land has not been completed because of the notorious delays in obtaining the title from the former ZCCM, which the appellant contends we should take judicial notice of. Further, the appellant's contention that it has been in occupation of the land since the privatization in 1999, a fact which has not been challenged by the respondents. J13 Counsel contends that the Court erred in holding that the pnor consent of the holder of the mining right is required, instead of that of the legal owner or occupier. Our attention is further drawn to the provisions of section 52 (l)(b) of the new Mines Act2 relating to the respondent's requirement to have obtained the consent of the appellant, and that the respondents have neither obtained nor even requested for such consent from the appellant, hence the appellant's action for trespass. It is the appellant's submission that the provisions of the new Act are specific as to when the Ministry of Mines can get involved in a consent issue between a licence holder and a person in occupation of or owner of the land over which the licence holder wants to exercise mining rights. We are referred to section 56(1) and (2) which reads as follows: "56. (1) Where there is dispute concerning- (a) whether or not PARAGRAPH (b) of subsection (1) of section fifty-two applies in respect of any land, or the withholding of any consent under that subsection; (b) the withholding of any consent under paragraph (c) of subsection ( 1) of section fifty-two; or (c) any other matter arising under this Part that is prescribed by the Minister by statutory instrument; a party to the dispute may, by consent of the parties, apply to the Director of Mining Cadastre to determine J14 the dispute or the Director may require the parties to enter into a submission to arbitration within the meaning of the Arbitration Act, 2000. (2) Subsection (1) shall have effect subject to the terms of any access agreement." The appellant's interpretation of the provisions cited above is that for a dispute to be determined by the Director, both or all parties to such dispute have to give consent for it to be determined by the Director. Alternatively, they must consent to submit the dispute to arbitration. The parties are not by law required to submit a dispute relating to consent to exercise mining rights over a proprietor's land to the Director for determination, as this "may" only be done by consent of both parties. That the Court below therefore erred by stating that the issue of consent falls to be determined in the context of the New Mines Act. Essentially, in as much as the appellant agrees that the new Mines Act makes provision for a dispute resolution mechanism involving the Director and arbitration, such is not mandatory. Counsel further points out two key pieces of evidence that if the trail court properly took into account, would have allowed the matter to proceed to trial. One such evidence is the appellant's affidavit in opposition of summons to dismiss matter for being statute barred and an abuse of Court process, where the deponent categorically stated that the appellant was and is not willing to resort to the optional dispute resolution procedure under the New Mines Act. On this premise, counsel contends that it is surprising that even in the J15 face of such evidence of unwillingness by one party, the lower court could find that the question of approaching the Director or resorting to arbitration still arose in the circumstances of this case. Secondly, that the evidence on record shows that the respondents have not even attempted to obtain consent from the appellant, and the respondents are therefore acting in defiance of the law. In support of the fourth ground of appeal, the appellant advanced submissions to the effect that it is not seeking cancellation or annulment of the respondent's mining licence, but a declaration to the effect that the respondents have no right to enter the subject properties without the appellant's consent. Such consent, the appellant submits, arises from the appellant's rights of ownership and possession asserted under ground one, the basis of which is the protection of surface and land rights as argued under ground two. In his oral submissions under the fourth ground of appeal, Mr. Dudhia alluded to the failure or omission of the learned judge in the Court below to consider the provisions of section 96 of the new Mines Act in reference to the procedural requirements for dispute resolution mechanism. He submitted that the learned judge started at section 97 instead of section 96, which is where the appellate process begins. The said provision states as follows: "96. Whenever the Minister, the Committee, any of the Directors or an authorised officer makes a decision against which an appeal lies by virtue of a provision of this Part, the holder or applicant affected by the J16 decision shall be informed of the decision and the reasons for the decision by notice, in writing, and the notice shall inform the person notified of that person's right of appeal." Based on the provisions cited above, Mr. Dudhia submitted that the appeal process under the Mines Act can only begin when there has been adherence to the provisions of section 96, that is: the Minister or authorized officer who makes a decision against which an appeal lies should inform the holder of the mining right of such decision, the reasons for the decision, and the person's right of appeal, by notice in writing. Mr. Muya's response to these oral submissions was that if the appellant claims that the correct process was not adhered to, that is the very reason section 97 exists, to give the appellant the platform to exhaust the dispute resolution mechanism established under the Act, instead of prematurely commencing an action in the High Court. In support of the fifth ground of appeal, the appellant contends that it is in possession of the subject property not by virtue of a mining licence at Nchanga, but pursuant to the Sale Agreement. That the respondents, on the other hand, are not in possession of the property, and the instances when they have entered the land they did so illegally because the prior consent of the owner/ occupier had not been obtained, and this was the basis for the appellant's commencement of the action before the Court below. J17 Under ground six, the appellant contends that section 16 applies to scenarios where the Minister is considering granting licences, and not the present case. Our attention is drawn to a portion of the judgment appealed against where the learned Judge stated to the effect that where an Act has a mechanism of dealing with a specific issue or dispute by a designated body or functionary, the High Court should not be invoked until such mechanism has been exhausted. It is on this basis that the learned Judge in the Court below held that it has no jurisdiction to hear the matter, as the appellant's action constitutes an abuse of process. It is the appellant's submission that the learned judge fell in to error by not considering that even where a procedure is properly provided by statute, there are pre-conditions that determine whether such process is applicable. Counsel for the appellant cited the case of Musunka Silungwe v Zambia Institute of Architects5 where the Supreme Court held that; "An appeal under any piece of legislation must be properly traceable to a particular provision in that legislation; and any matter that one may be aggrieved about but which matter cannot be linked to a right of appeal under any particular piece of legislation must be resolved through the normally accepted channels." Counsel's application of this authority is that the position set out therein underscores the principle that just because issues relating to the New Mines Act may have arisen in the matter in casu does not mean they ought to have been resolved through appeal under the J18 new Mines Act, as any appeal under the said Act must be traceable to Part VIII of the said Mines Act. Reference is made to section 96 of the Act, which requires a minister or an authorized officer who makes a decision against which an appeal lies under the Act to inform the person affected by such decision and the reason for the decision by notice in writing notifying that person of their right to appeal. On this score, it is counsel's submission that the evidence on record shows that at no point did the appellant receive a notice from Director of Mining Cadastre granting the 1st respondent a mining licence, nor was the appellant informed of its right to appeal against this decision. The appellant contends that such requirements are mandatory pre-conditions for the exercise of a right of appeal, which were not satisfied, and it was therefore not proper to go by the appeal process under the Act. In summary, it is submitted that since the statutory appeal process could never be properly commenced in this case, the court below had a duty to allow the matter to proceed, especially that it borders on land rights. Under its seventh ground of appeal, the appellant notes that the lower court endeavored to set out matters that are dealt with through the administrative structures in the Act, and jurisdiction to determine claims of land owners in trespass was not one of them, and it was therefore a misdirection to dismiss the case as the matter will remain unresolved. J19 In relation to ground eight, the appellant reiterates that the dispute in the court below is with regards to surface or land rights between corporate entities, incapable of resolution under the Mines Act. That however, should this Court be inclined to agree with the Court below, then it is the appellant's view that the Mining Appeals Tribunal not having been appointed, the Judge had a duty to adjudicate on the matter. The appellant submits that it cannot be disputed that the non existence of the Mining Appeals Tribunal leaves a lacuna where an aggrieved party wishes to seek redress under the appeal mechanism of the Mines Act, and the lower Court ought to have safeguarded the interests of the appellant pending the establishment of the Tribunal. In this regard, counsel submits that it cannot be argued that Parliament intended to take away any remedy available to the appellant, or implied that there is a period of time where it is acceptable that the appellant will be without recourse (i.e. before the establishment of the Mining appeals Tribunal). The appellant submits further that the Court ought to have come to the realization that owing to the non-existence of the Tribunal, the appellant was in an impossible situation. On this premise the appellant urges us to adopt us to a purposive interpretation of the Act and find that until the Tribunal is appointed, an aggrieved party can have recourse to the courts of record to exercise their pre existing rights. In the alternative, should we find that the dispute herein be referred to statutory appellate process under the new Act, J20 the appellant submits that we consider two consequential directions; firstly, that the current proceedings be stayed (not dismissed) until the statutory appeal process is complete, and secondly, that the interim injunction dated 10th November 2017 be continued or restored until the statutory appeal process is completed. The appellant's argument under the ninth ground of appeal is mainly that the lower Court, by refusing to hear the matter, prematurely denied the appellant its right to be heard, thereby falling into errors which could have been avoided if viva voce and documentary evidence had been presented. Under ground ten, we are directed to the portion of the record that contains committal proceedings, which were dismissed as a result of the action being an abuse of court process. On this score, the appellant submits that the lower Court fell into error when it decided that as a result of the dismissal of the action, it necessarily followed that the committal proceedings were automatically dismissed too, as counsel contends that the lower Court was duty bound to deliver a decision in the committal proceedings. It is the appellant's contention that it is trite law that even if an order is irregularly granted, it has to be obeyed. The case of Hadkinson v Hadkinson 6 was cited as authority. In addition, that committal is not just about the appellant's grievance but it also ought to be the court's interest to see to it that disobedience of a court order is punished. In this regard, our attention is drawn to the explanatory notes at paragraph 52/ 1/5 of J21 the White Book, which provides to the effect that the Court itself has a very substantial interest in seeing that its orders are upheld. In summary, the appellant seeks to persuade us to find that the lower court should have proceeded to determine the committal proceedings, which ideally should not have been affected by the lower Court's finding that the action was an abuse of court process. The respondent filed heads of argument dated 15th June 2018 opposing all ten grounds of appeal. In response to grounds one and four, the respondent requests us to take judicial notice that the said Mimbula open pit defunct area in dispute is a mining area. In this regard, counsel submits that such was the court's direction when it brought it to the fore that the appellant's intention and grievance is not simply to secure the land but undertake mining activities. As regards the appellant's assertion that they acquired the land through a sale agreement, counsel submits that the said agreement was in hindsight of mining and as such, a dispute surrounding mineral rights ought to be brought before the forum designated by the Act. Our attention is drawn to the provisions of section 33 of the Lands and Deeds Registry Act1 , to the effect that a certificate of title is conclusive evidence of ownership of land. On this premise, Mr. Muya submits that the appellant having not produced certificate of title, it does not have exclusive rights or any right to Lot 694 /M. As regards the effect of the Sale Agreement, it is argued that the same does not entitle the appellant to be legal owner of Lot 694 /M and its remaining extent in the absence of its J22 registration 1n accordance with the law. Counsel further submits that seeing as the Sale Agreement was primarily for purposes of transferring mining activities and a license, the Court below correctly stated that the rights claimed were rights where the Act has set out the appropriate forum, and the appeal ought to lie with the Director of Mines and Minerals Development. It is counsel's contention that the law only protects a legal owner on land subject to a certificate of title. In response to the second and fifth grounds of appeal, the respondent submits that it is impossible for them to exercise exploration rights without being on the land in dispute, adding that an interest in surface rights is subject to mineral rights and as such, the respondent is entitled to explore on or under the land as provided by the law. Further, the respondent objects to the appellant's reliance on the Syndicate case on the basis that there is no need to resort to English law when the Lands and Deeds Act in our jurisdiction is clear on the status of mineral rights on land that is subject to a certificate of title. Yet another argument advanced by the respondent in response to this ground is that the appellant is not a registered proprietor of the land in dispute in line with section 2 of the Lands and Deeds Act, and that the appellant cannot claim legal rights in respect to interference or trespass on Lot 694 /M. The respondents contend that even if the appellant had secured title, it would still only be entitled to the land subject to restricts. The respondent is in support J23 of the finding of the learned Judge in the Court that the appellant's alleged mining rights and surface rights can be properly addressed by the Ministry. The respondent submits further that in order to ascertain the rights granted to the respondent over the disputed area, the appellant ought to address the issue with the Mines and Minerals Development Act. In response to ground three, the respondents repeat their arguments under the first ground and add that the Court below rightly found that it lacked jurisdiction to determine the matter, as the appellant had not exhausted the statutory procedure set out in the Mines Act. In relation to the requisite consent before commencing mining activities, the respondents submit that this concept is derived from section 52 of the Mines Act, and that the law clearly outlines that disputes arising on the basis of withholding of consent must be resolved pursuant to section 52(3) as read with section 56. That the appellant cannot rely on the provisions of the Mines Act and yet negate the procedure outlined in the rest of the Act vis consent, such as sections 52(3) and 56(l)(a) and (c) of the new Mines Act. The respondents' interpretation of these prov1s1ons 1s that where consent is denied, a land owner ought to seek redress from the Director of Mining Cadastre and not commence litigation. We are invited to consider the cases of Pepper (Inspector of Taxes) v Hart and Related7 and Attorney General and MMD v Lewanika & Four Others8 to establish that after having due regard to the J24 purposive approach in the construction of legislation, it gave effect to the true intentions of the legislature. In opposing the sixth ground of appeal, the respondent submits that the lower Court properly distinguished between the requirement to obtain consent before issuance of a licence and post issuance thereof, and that in this particular case, the appellant's grievance as can be deciphered from its pleading is in relation to after a licence had been issued to the respondent. That the appellant could only resort to the High Court on appeal from the decision of the Mines Tribunal, short of which, entitled the Court below to properly dismiss the matter for want of jurisdiction before the dispute resolution procedure under the Act was exhausted. In response to ground seven, the respondent refers to the preamble of the Mines Act, to the effect that all matters connected with or incidental to the exploration of mining as is the case in casu, should eventually be brought before the Mining Appeals Tribunal. As regards the appellant's argument that the Tribunal is not yet in existence, the respondent refers us to section 98 (1) and (2) by which the Tribunal is established, to be appointed by the Minister. The respondent contends that the issue of the Tribunal not being in existence as of now is inconsequential in these proceedings because where the law prescribes the mode of commencement, it must be followed to the letter. The case of Kansanshi Mining v Zambia Revenue Authority9 is cited in this regard, particularly where the Supreme Court stated at page J18 as follows: J25 "The argument by the appellant that the tribunal had not yet been constituted, and hence there was no decision upon which the appellant could appeal to the High Court, does not, in our considered view, justify commencing an action by the Writ of Summons under order 6, or any other mode other than that prescribed by statute. Therefore, we reiterate our position in the New Plast case that the mode of commencement of an action is not dependent on the relief sought, but on what the statute provided as a mode of commencing the action. The High Court only has jurisdiction if the matter is correctly before it." On the principle of abiding by the statutory procedures of dispute resolution, three cases have been cited by the respondent, namely; China Copper Mines Ltd v Tikumbe Mining Ltd and 2 others10, Barclays Bank Zambia Ltd v Walisko and Company and Mohamed Ashrof Mansor11 and Newplast Industries v Commissioner of Lands and Attorney General12 In response to ground eight, the respondent's position is that the appointment of the tribunal is subject to the appellant's petitioning of the Minister of Mines to appoint such tribunal, and that the appellant cannot, therefore, rely on the absence of the tribunal when it made no effort to begin the statutory grievance procedure by reporting to the Director of Mining Cadastre. J26 In opposing ground nine, the respondents reiterate their arguments under grounds one and four, and add that the lower Court rightly determined the issue of jurisdiction at the point of commencement of the action, otherwise it would have been inconceivable for the Court to have heard an action for which it lacks the requisite authority to determine. We have considered this appeal, read the ruling appealed against and analyzed all the heads of argument and the respective responses thereto. We will now address the grounds of appeal. Some will be dealt with together, as we hold the view that the issues raised therein are interrelated. The question confronting us as we seek to determine grounds one and four is; on what legal basis is the action founded? Is it founded in tort for damages on account of trespass, or is it a dispute bordering on the rights to mine? In other words, by commencing this action in the Court below, was the appellant asserting its rights as land owner (of the surface rights) or protecting its mining rights by virtue of being a holder of a mining licence? To adequately address these issues, we will once again direct our minds to the appellant's arguments in this regard. In support of its position that commencement of the action in the Court below was necessitated by its claim over proprietary rights on the subject land, a perusal of the statement of claim reveals that the appellant asserted its proprietary rights over the subject property as emanating from the purchase of the land from ZCCM-IH pursuant to the Sale Agreement (this includes lot 694/M). With regards to this J27 assertion by the appellant, the learned trial judge in the Court below had the following to say: "On the issue of ownership rights and possession of Lot 694/M, counsel for the Plaintiff argues that it is entitled to maintain this action as a purchaser in possession, legal or equitable and relied on the case of Gibson Tembo v Alizwani SCZ Judgment No. 6 of 1996. In my considered view, any possession whether legal or equitable arises as a consequence of the mining rights granted to both parties, and resolution of these conflicting rights are within the ambits of the Act." As we deliberate on this portion of the impugned ruling, it should be noted from the onset that the parties herein acquired their respective rights to the subject land in different ways. Whereas the appellant acquired its interest in the land by purchasing the land itself together with the mining rights pursuant to the Sale Agreement of 1999 the respondent acquired its interest when it was granted mining SML 296. Whether or not the different ways in which the parties acquired their interests in the subject land has a bearing on the outcome of this appeal is a question for our determination. Rather than dwelling on the probable intentions of the appellant when it executed the Sale 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 J28 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 license 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. We will now address the issue of the propriety of the appellant's assertion of proprietary rights in the absence of a certificate of title to establish ownership. Indeed, a perusal of the record of appeal reveals that the appellant did not produce a certificate of title to this effect. The appellant contends that it is entitled to maintain the dismissed action either as purchaser in possession and/ or the legal or equitable owner and/ or the owner and occupier of the property, and that the respondents ought to have investigated the title to the subject properties before seeking to assert their rights on the surface of the land. The case of Gibson Tembo v Alizwani1 is cited in this regard. The respondent, on the other hand, contends that the law protects a legal owner where a party's rights are clearly premised on J29 a certificate of title, and that in any event, the recitals on a certificate of title, envisage that another party may exercise mineral rights upon the same land. That if the appellant were not pleased with the respondents' exercise of their mineral rights over the subject land, it should have addressed the issue with the body that granted it a licence as required by law. According to the Gibson Tembo (supra) 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 sale of the 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 the 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. The respondent having been aware of the appellant's interest on the subject land, whether actual or apparent, should have investigated the title before carrying out mining activities. The respondent's argument that the law only protects a legal owner of land that is subject to a certificate of title has no merit. J30 The learned Judge in the Court below found that the appellant's claim for the relief s in the Court below arises as a consequence of the mining rights granted to it when it purchased the land. In our view, this entails that the learned judge in the Court below did not deem it necessary to differentiate between the appellant's interests in the surface rights as well as its acquired mining rights on the one hand, and the respondents' acquisition of only the mining rights. We have of course taken note of the respondent's argument that the recitals on a certificate of title envision that another person may exercise mining rights over land that is owned by someone else. Indeed, this is the correct position. However, the appellant acquired an interest not only in the surface rights of the subject land, but also mineral rights. These two interests are protected by different legal regimes. Given the manner in which the appellant acquired its interest on the subject land, which we have emphasized earlier, it is erroneous to state that whatever interest the appellant has in the subject land is as a consequence of the mining rights granted to it. In this regard, we are in agreement with the appellant's submission that there is no law that provides for possession of land belonging to or even occupied by another merely because a mining license is granted. In fact, in the circumstances of this case, the position we hold is that the interest the appellant has in the subject land, arises as a result of its purchase of the land and the mining licence subject thereon, on the terms set out in the Sale Agreement, which stipulates that the appellant had acquired the land together with the mining rights. J31 The respondents, on the other hand, acquired only mining rights by virtue of a mining license and it is safe to say that whatever interest the respondent has in the subject land arises as a consequence of the mining rights granted to it. The appellant was, therefore, on firm ground when it commenced this action in the High Court to assert its right over the surface rights by way of seeking damages for trespass, a tort that cannot be enforced within the framework of the Mines Act. It cannot therefore, be said that the appellant's reliefs as per its writ of summons emanated from its large scale mining license, as we hold the view that what prompted the appellant to commence this action was not the conflicting of its mining rights with those of the respondent, but the respondents' interference. On this score, we allow the first and fourth grounds of appeal. As regards the application of the case of Sanhe cited by the appellant, we are mindful of the respondents' submission that the said case is distinguishable from the matter in casu, in that both parties herein are holders of mining rights and as such, the Tribunal is competent to handle the issue. In addressing this issue, we ought to have in mind the circumstances surrounding this particular case, which are based on the issue raised in grounds four and five. This matter is not primarily premised on two conflicting mining rights, but on one party which has both mining and surface rights asserting its surface rights against another party, which only has mining rights. The Sanhe case is therefore distinguishable from this matter to this extent. J32 In relation to the issue of the application of section 96 of the new Mines Act asserted by the appellant. The appellant's argument is that there was no decision to be appealed against as it did not receive any notice of a decision by the authorized officer, and as such, the appellate process could not have been started. Indeed, section 96 does place an obligation on the Minister or other authorized officer who makes a decision subject to appeal to notify such person of the reasons thereof and their right of appeal. In the circumstances of this case, the evidence on record shows that no such notice was given to the appellant of any decision relating to its mining rights. As such, there was really no decision to be appealed against. However, we hold the view that section 97 is not dependent on section 96 as a matter of pre-condition. By use of the phrase 'a decision' as opposed to 'the decision', section 97 relates to any decision of the Director of Mining Cadastre, Director of Mines Safety, Director of Mines, Director of Geological Survey or the Committee, which is to be resolved by way of appeal to the Minister. It cannot, therefore, be said that there can be no appellate process under the new Mines Act in the absence of adherence to section 96, as the said section 96 is independent, and has the effect of directing an authorized officer who makes a decision, and it prescribes what should be contained in such decision, and in what manner. In any event, this issue of the application of section 96 has no bearing on the outcome of the fourth ground of appeal, as we have already allowed the first and fourth grounds of appeal. J33 We will now address the second and fifth grounds of appeal. With regards to the absence of evidence to the effect that the appellant is a registered proprietor of the subject land, we reiterate our position under the first and fourth grounds of appeal that the appellant is entitled to assert its rights as purchaser in possession, as by virtue of the Sale Agreement, it acquired an interest over both surface rights and mineral rights. Section 52 of the Mines Act deals with the requirement for a holder of a mining right to obtain consent. It states that: "52. (1) A holder of a mining right or mineral processing licence shall not exercise any rights under thisAct- (b) without the written consent of the owner or legal occupier of the land or the duly authorised agent-" 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 respondent does not dispute that the appellant has been in occupation of the subject property since 1999 following the execution of the Sale Agreement. We have also stated earlier that surface rights and mineral rights are protected by different legal regimes. We make reference to the learned authors of Halsbury's Laws of England, Vol. 762 at paragraph 117 where it is stated as follows: J34 "At common law, where there has been severance of title and the surface and mineral rights are in different hands, ownership of the surface land carries prima facie a natural right of support which is a right to have the surface kept in its natural position and condition. The right is not an easement but a natural right incident to the ownership of the soil . . . . . . in many circumstances, the application of the common law principles is subject to statutory provi.sions. By the effect of such provisions, or of subordinate instruments, rights and obligations in regard to support may be created, overridden or varied, or new remedies may be established where the withdrawal of support has caused subsistence damage." On this premise, we are inclined to agree with the appellant that while matters relating to mineral rights, the grant of licences thereto are governed by the Mines Act, matters relating to surface rights can be enforced by taking out a civil action. We cannot easily ignore the fact that whereas the respondent acquired mineral rights when it was granted a small scale licence on the land in dispute, the appellant, on the other hand, acquired both, mineral and surface rights or an interest therein. In order to enforce its surface rights, it is only appropriate to sue for trespass to land where another person commences mining activities on the land without the consent of the proprietor. This is not to ignore the fact that the appellant also has J35 mineral rights over the same land, which possibly conflict with the rights of the respondent. A dispute bordering on such mineral rights can properly be dealt with in the manner prescribed under the Mines Act. To this effect, Section 56 provides for the nature of the disputes that can be resolved in accordance with the provision of the Act. We find that the second and fifth grounds of appeal have merit, and we accordingly allow them. It is the appellant's contention 1n support of the third ground of appeal that the trial Court overlooked the requirement for consent of both parties before reference of a dispute to arbitration, especially seeing as the respondents did not even attempt to obtain consent from the appellant before starting mining operations. Such consent, the appellant submits, arises from the appellant's rights of ownership and possession asserted under ground one, the basis of which is the protection of surface and land rights as argued under ground two. The respondents, on the other hand, contend that the primary basis for such consent is section 52 of the Mines Act, and the appellant cannot ignore the rest of the provisions of the Act relating to dispute resolution procedures concerning requirement for consent. We have already found that the appellant is entitled to assert its rights as purchaser in possession. The respondents' position that the requirement for consent is based on section 52 raises the question of whether or not that was the basis upon which the action in the court below was commenced. We are inclined to answer this J36 question in the negative as a reading of the appellant's pleadings in the Court below shows that the appellant did not make reference to any such provisions. Yet another question confronting us is whether the dispute resolution mechanism under the Mines Act that the respondent persistently refers to is intended to impede a land owner's common law right to bring out an action for trespass. On the subject of statutory interpretation, the learned authors of Halsbury's Laws of England (5th Edition)1 state at paragraph 1140 that: "It is a principle of legal policy that Acts should not be taken to limit common law rights, or otherwise alter the common law, unless they do so clearly and unambiguously but, if the language is clear, there is no reason why such Acts should be construed differently from others." In the same vein, 1n National Assistance Board v Wilkinson 12 , Devlin, J. stated at page 260 as follows: "It is a well-established principle of construction that a statute is not to be taken as affecting a fundamental alteration in the general law, unless it uses words that point unmistakably to that conclusion." The view we take as we determine this ground of appeal is that the Mines Act does not state or imply that a land owner cannot sue for trespass where his/ her consent is not sought before mining J37 activities are carried out, especially in the context as set out in the second ground of appeal, where the appellant has an interest in both surface and mineral right. The tort of trespass is of course in relation to surface or land rights, which as we have already stated, are governed by different legal regimes. We find merit in this ground of appeal and we accordingly allow it. With regards to the question of a claim for trespass being tried under the Mines Act, we have already settled that in the negative under the sixth ground of appeal. In determining the seventh and eighth grounds, we will dwell on the effect of the non-existence of the Tribunal. The respondent's position is that there cannot be a Tribunal unless the appellant petitions the Minister to appoint members. We fail to appreciate the legal basis upon which the respondent arrived at this conclusion. Section 68 merely empowers the Minister to appoint members of the Tribunal. It neither states nor implies that the tribunal can only be instituted by way of petition by a party seeking redress before the Tribunal. Also, the case of Kansanshi Mining (supra) is distinguishable from this matter in that the cited case was bordering on mineral rights, while the matter herein before the High Court was bordering on an action for trespass, which we have found cannot be resolved under the dispute resolution procedure under the Mines Act. When the appellant seeks redress for matters pertaining to conflict of mining rights, it can then resort to the grievance procedures under the Mines Act. We allow grounds seven and eight. J38 In as much as we are in agreement with the respondent that the lower Court properly dealt with the issue of jurisdiction at an early stage of the proceedings, we find that had the Court properly applied its mind to the circumstances of the appellant's case, it would have inevitably arrived at the conclusion that the plaintiff's claim was not in relation to conflicting mining rights, but the tort of trespass, which as we have already stated, does not fall within the ambits of the nature of disputes subject to the grievance procedure under the Act. To this extent, we allow this ground of appeal. The respondents' position in relation to ground ten is that the lower Court having dismissed the action for lack of jurisdiction, it follows that in the absence of such authority to determine the matter, the Court could not enforce any power of punishing persons. We disagree. At the time the order in question was allegedly disobeyed by the respondents, it was valid for all intents and purposes, and the ruling of the Court below dismissing the matter did not automatically dismiss the valid order. Committal proceedings therefore ought to have continued and determined. Effectively, we allow the tenth ground of appeal. The net effect of our judgment is that we find merit in this appeal. In conclusion, having held that the appellant was entitled to protect its proprietary rights by commencing this action before the High Court, we wish to emphasise that the tort of trespass, by its very nature, is not one that can be enforced under the dispute resolution mechanism under the new Mines Act. Therefore, the High Court J39 has jurisdiction to deal with the matter, as it is premised on trespass as opposed to mining rights. Having allowed the appeal, we hereby order that the matter be remitted to the High Court for trial before another judge. We award costs to the appellant to be taxed in default of agreement . . -~~~- J . Z. MULONcia'TI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE J40