The Attorney General and Ors v Konkola Copper Mines Plc (In-Liquidation) (APPEAL NO 67 of 2022) [2023] ZMCA 353 (23 August 2023)

I ' I ' . - - - - - - - - - ' Jc d. IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO 67 f 2022 HOLDEN AT LUSAKA (Civi-Z Juris.diction): B ETWEE N ,.... KONKOLA ·coPPER MINES PLC {In-Liquidatii:on) . RESPONDEN. T CORAM:: SIAVWAPA JP, CHIS:HIMBA AND BANDA-BOBO, JJA On 13th June. and 23,rd August 202'3. FOR. THE 1 sr APPELLANT ~ MR . . NDOVI, PRINCIPAL ST. ATE ADVOCATE 'WITH MR . PHIRii SENIOR STATE ADVOCATE F OR THE _2n,d & . 3rd APPELLANTS : MIS. S K . MW1LA ·OF MESSRS MillEZA MWIMB U & CO FOR THE RESPONDENT: MR J'. CHIBELEKA OF ECB' LEGAL PRACTITIONE R S s tAVWAPA, . JP delivered the Judgment of the Court. Cases· Referred to:: 1. Konko.la Copper Mines PLC v Rephidim Mining· and Technical Supp[iers. LimitedAppea:l No 74 o/2:018- ,, :, ,I ' ,, ' :; i ' ., ., ., ·' :j ' ,. 2. 3. 4. Konkola Copper Mines PLC v Sensele Enterprises Limited AppealN-o 13-3 of 2018. Chilcu-ta v Chip.ata Rural Cou-ncil (1974) ZR1 241 Newplast ]rl.dustries v Co.mmi-ssioner of Lands and Attorney General-(2-001) Z~, 51 Legislation. referr.rd to·: 1. Mines and: Minerals Development Act No i 1 o-f 2:015 2.. Rules of the Supreme Court 1999 edition 1..0 INTROPUCTION- 1. l On the- scheduled date of hearing,. the. I 3.m J1:+D-e:; 2023, (D counsel for the Respondent1 'Mr. Chibeleka, informed the Court that the parties were in negotiations for an ex curia. settlement . . In that reg_ard,. he: requested for an adj:ournrn.en.t. of the hearing to the next session. 1.2 Mr. Ndovi., and Miss Mwila, counsel for the fu~t, second and l '::J third Appellants· respectively, did .no-t oppGse the application for the adj'ournment while ·indicating the:ir readiness- to proceed with the appeal. 1 ,.3, By way of.emphasis, Mr. Chibeleka, re-assured the Court that he was confident the parties would ·Settle the matter ex curia vs in view of the serious ·discussions that were in progress~ 1.4 Based on the submission, we granted the, adjournment on condition that the parties would file a consent Judgment on or before the 22nd }\µgust, 20.23-, the date of the commencement of the next session at Ndola. We further I ·1 j I I i :I I I I I ; i i -I 1) ~ I I -I I :I 1' I j 1 ·, ; I I: ! I . I I I j:i ! I I ' I I I I I i : : stated that should the partie-s fail to meet the c0ndition a:bo:v:e., we- would deliver our Judgment on 23rd August,. 2023: without a hearing_ .. 1. 5 When we sat on 22nd August, 2023, there was no attendance by all the parties and they had not filed the consent Judgment as. ·directed. Furth-er to- the above, the. Re·sp.ondent had not filed heads. of argument in opposition at the time of the hearing. This Jud~ent is therefore, based. on the grounds of Appeal, the heads of argument filed by the Appellants and the· Ruling appealed agains:t. 1. 6 This appeal is against the Ruling delivered by the. Honomable Mrs Justice Abha Pa~el SC,. on 20th May 2021 in the High Court at Kitwe .. By·•the said Ruling, the learned Judge refused to cede juri:sdiction following an .application by the 3rd Appellant on the basis that the- matter was wrongly co.mmenced. 1. 7 In dismissing the application, the .learned Judge formed the view that the matter was properly commenced. by writ o.f summons and not by way of appeal as. ar.gue_d by the 3rd Appellant be.cause the. claims are grounded in the tort of <),.(:) trespass. to land and not violation of mining rights t0 be governed. by the. M•ines. and Minerals Development Act _No 11 of 2.015:. The Learned Judge also relied on our decisions in the cases of Konlcol'd Cooper Mines. PLC 1JRephidim. Mninqand 13 RG 'lJo ' r !_: I ' I j -1 I i I: ! ' r: t' 1-: , ._: r.: Technical Suppliers Limlted1 and Konkola Copper. Mines PLC v Sensele Enterprises Li·mited2 . 2.0 BACKGROUND 2.. 1 By writ of summons and a statement of claim filed into Court on 27 th September, 2019·, the Respondent mad.e the following 5 i H L ,, ·, .) :I lj :i ·! ·I i! claims,. A declaration that the Defendants. have no rights over the Kakosa Tailings Dump and that the. Plaintiff is the · rightful owner of the mining arid surface rights over the dump In the alternative·, a declaration that the Defendants. have rro right to ehter upon the land in the Kakoso Tailings Dump Disputed Area without the prior consent of the Plaintiff m A declaration that the Plaintiff has reasonable grounds. L 5 to withhold .its consent from the· Defendants in respect of access to and/ or mining in. the kakoso Tailings. Dump Disputed Area An injunction to restrain ·the Defendants whether 1Jy iv themselves or by their servants or agents or otherwise 1... o hows.oever from entering on or crossing the :Plaintiff's said surface and mining rights or carrying on any activities thereon V V1 Damages for interference with the Plaintiff's operations Damages for·trespass to the Plaintiff's land and facilities. ·7.,,(J V.ll Further or other relief, and Vlll Costs of and incidental to this action J4 - - - - - -- - -- - - - - -- - -- - - - - -- - - - - - -·-- - . 2 .2 The Re.spondent corn:menced the above stated action because it had entered into a Purchase Agreement with Zambia Consolidated_ Copp.er Mines under the- Privatisation program. The Purchase Agreement induded Large Scale Mining_ Licences, among them, No 7076-HQ-LML, which is the S" subject of this appeai, in 2000. 2..3 The Large-Scale Mining Licence in. issue granted mining_ rights to the Respondent over the Kakosa Tailing~ Dump. 2 .. 4 In 2018:, the Ministry of Mines and Minerals Development granted the 2 nd Appellant a Mineral Processing Licence No Ii> 22868-HQ-MPL in respect of copper and cobalt. The licence was to run for a period of fifteen years- effective 10~ January, 2010. The licence covered the Kakosa Tailings. Dump which is M:thin the coverage area of the Respondent's Large-Scale . Mming. Licence NQ 7076-HL-LML. 3.0 PRELIMINARY ISSUE· 3.1 On 26th November, 2020, the 1st Appellant, who was the 3 rd Res-pendent in the Court below~ filed into Court s11mmons to raise a preliminary issue pursuant to Order 14A rule 1 as read with Order 33 rule 3 of the Rules of the Supreme Court r2 o 1999 ecliti·on. The is.sue the 1st Appellant asked the Co.urt to resolve: was whether the matter had been wrongly commenced. thereby .depriving the Court cif jurisdiction to, hear it. JS ~ t- ·i :I I i I : 1 , 1-: • I 1,1 I-! r -1 ., . ! i : F L, I:' I, f . ~-i • I . - . ··- ·- ·- - -·· - - -·· - ·-- ·· -·-··-· ·- --- ·-· .. ::.:.:.... .. ...:,:.;.:...; .. -·- ·- · 3 .. 2 In the affidavit in support of the Summons, the deponent, Michael Chibonga, averred that because the: Respondent was aggrieved by the decision of the 1:St Appellant to grant consent to the 2nd Appellant to access and carry-out mining activities in the Kakosa Tailings Dump, the Respondent ought to have 6' appealed that decision rather than commence an aetion by writ of summons. 4.0 DECISION BY THE. COURT BELOW 4. 1 In her ruling delivered on 20th May, 2021, the lea,rned Judge considered the arguments for ·and against the application as l D well as the law applicable .. The learned Judge considered the argument whether or not the mode .of commencing the matter divested her of the jurisdiction to hear it. 4 .2 In deterrrnning the issue· before her., the learned Judge relied oh two. of our decisions in Sensele Enterprises Lim·ited arid t S ,, jj l' ,I Rephidim Mining and Technical Supplies Limited earlier cited in this Judgment In the tw0 cases, the gist of the p0.s1tio•n we took is that not every interest one has in land acquired pursuant to: the Mines and M:i,nerals Development Act is: a consequehce of the Mining Rights granted. We further held that no law provides. for possession of land belonging or CJccupled by .another purely on the basis that they have been granted a Mining Licence. 4 .,3 Ultimately, the learned Judge conciuded that the, law was settled by this Court as the matter before her was grounded % - - - - ·-· -· .. in tort for trespass and therefore, properly commenced and within her jurisdi~tion. 5.0 APPEAL S. l The Attorney Generq:} expressed his dissatisfaction Mth the· outcome o:f the preliminary is.sue by filing Notice and 6 Memorandum of Appeal on 11th June, 2021 anchored on three _grounds namely:: 1. The learned trial Judge in the Court below erred in law and fact when she relied only on -clause.s · ii and vi instead of all the relevant clauses. i, rit iii,. iv, v and. vi of Lo the Plaintiff's endorsement on the writ of summons in order to appreciate the arguments of the State on the preliminary issue that chall~nged t.h.e- juris.dictjon 2. The learned trial Judge itr the Court below inisdirecte;d herself when she changed the legal is'.sue bro~ght before ·1 6 her for determination when .she considered only portions: of the originating process favourable· to the Pla:j.n tiffs case and not taking into consideration the entire endorsement together with the statement of claim 3. The iearned trial Judge misdi:rected hers:eJfby focusing ho ,,L._; only on clause, ii and vi of the endorsement to rend.er hi~r Ruling. That by thls action the Attorney General was n0t heard and all the legal is.sues of concern to the State were not traversed - -- - -- - - - - . - - - - .... - -- . w· I~ 6 .... 0 ARGUMENTS IN SUPPORT 6 .. 1 In the heads. of argument filed by the Attorney-General,. the gravamen theTeof is. that the learned Judge ignored the main. claim. by the Respondent in the Statement of Claim and based her de.cision on the clairns in the alternative. The Appellant has submitted that claims i to vi assail the 1st Appellant's right to carry out mining activities in the Kakosa Tailings Dump .. 6.2 The Attorney-G.eneral has further argued that the 2nd Appellant was granted permission to carry out its. mining ( 0 activities in the disputed are.a by the Director of Mining Cadastre following the Respondent's. refusal to grant it permissio•n. According to the Attorney-Generc:j]., th.e Respondent should have appealed to the. Minister as prescribed by -section 97( 1) of the Mines and Minerals / '5 Development Act No 11 0(2.015. 6.3 The Attorney-General relied largely on the. cases of Chik:uta V. Chipata Rural Cou-nciP and Newplast Commission.er of Lands- and Attorney Genera:l4. both of which Indu:stries v are to the effect that where a matter is, commenced contrary '2D to the mode. prescribed 'by the law, the Court has no jurisdiction to entertain it or make any orders on it. 7.0 OUR ANALYSIS AND DECISION 7 .1 In -our considered opinion, the bone of c-ontention between the Appellants and the Respondent in this appeal is whether '2,,o J8 .'• I j · .. ,·' the. dispute between the parties is rooted in the law of tort or the- Mines and Minerals Development Act. Fr.om the record of proceedings--in the Court below, it is· evident that the· Par.ties. are poles apart in their opinions while larg€ly relying on the; same provisions of the law and. judicial precedent. 7 . .2 The Respondent asserted, in the Court below,. that it commenced. the matter by the· correct mode and that the 2nd Appellant. trespassed .on the: Kakosa Tailings Dump when it commenced mining activities without its consent. According to the Respondent, the trespass upon its. property brought L D the claims within the teahn of the law of torts-·under whlch an action can be· c-ommenced by writ of sUillIIlons .. 7..3" The. Appellants-hold that th:e. matter remains within the realm of section 9-7 of the Mines and :M:inerals Development Act which prescribes the grievance reso. L.uti:on procedure. 'They l ~ argue that tb.e procedure provided unde:r the Act was not exhausted and as. suGh, the Appellant fell foul o-f the Law PY commencing an action in the High Court. 7. 4 We have considered the provisions of t..h.e law and the cases relied upon by both parties .. We also,.ta:ke note of one point of de.p-arture as argued by the Appellants based on our decisions tl.,O in the- two cases earlier referred to. That point, as. we "Will demonstrate hereunder, distinguishes the. facts of the cas.es- we· decided earlier and this appeal .. i b P. r. ,I _t I ' J9 I:: !· ! • Ii .. , . " I I ·1 I i I · I ·! ' i ,I ·1 :I '-! ij ' · -·- : .·-- ·- ----- .. - -- - - -- - -· .. - ·--·. 7 . .5 The starting point is that the law requires anybody that is given surlace rights ·over a mining area over which another entity holds a mining licence, requires to seek the licence holder's coI'l.sent before conducting any activities on the land. 7. 6 In the cases relied upon by the parties., we- based our. decisions on the fact that the Respondents, or the trespassers in those cases did not seek consent from the h-older of the Mining Rights. They instead went on the land purely on the basis of the exploration rights that the Ministry of Mines. and Minerals Development had been granted them. ,,-. I:, lD 7. 7 In thrn~e cases, we took the view that the facts had taken the matter outside the realm of the parties' mining and surface rights. This: is. because,, having failed to ~eek the· consent of the licence holder before commencing their activities:,. they bec8Ill..e trespas:sers at law .. Therefore} the grievance that arose had fallen to be determined under the raw· of tort as constituting trespass: to land. 7 . B In the present case, the Attorney-General contends tbat the 2 nd Appellant sought the Respondent's cons.ent but that it was. unreasonably denied. The refusal by the Respondent to give consent prompted the 2n4 Appellant to· seek redress from the Director of Mining . Cadastre, who-granted the consent. 7. 9 It ·was argued that ·only after it received consent from the Director did the 2 n d Appellant commenced its activities on the J10 . ... -· . - - ·- -- ·-·- ··- - - -- - - - - - - - - - -- -- - - - - - - - - - -·- - -···· •·- ------- - -·-··-· -· ·- ·- -- ·· -· Dump. The Respondent did not dispute this argument by the Appellant and we accept it as. a fact. 7 . JO It is therefore, clear that the facts of this case and those of the two-cases earlier decided by this Court, upon which the Respondent has relied are distinguishable. The 2n d Appellant, 6 in this case,. did not commence activities on the Kako:Sa Tailihgs Dump as a trespas·ser,. but as a licens.eer having. obtained consent from the Director of Mining. Cadastre .. 7.11 It is submitted that consequent to the consent7 the Respondent ought to· have. appealed the decision by the I v Director to the Minister as prescribed by section 97 ( 1) of the A.ct rather thl:l. Il commence an action in the High Court. This is the only available route for anyone aggrieved by the decision of the Director. 7.12 In view of what we have said above, the Res_pondent is. caught up: by the Supreme Court dedsions in the cases of Chiku-ta V Chfr;ata Rural Council an d New plas.t Inaustries u Commissioner o{Lands an d Attorney General earlier referred to in this Ji. Idgment. The Respondent m this case jumped the gun by approaching the High Court. rz. P 7. 13 It follows that the learned Judge has no ju,risdiction to entertain the matter before. her because it was commenced contrary to the prescribed. mode under section 7 (1 }.: of the Mine s. and Minerals Development Act. J11 ·• 7 .14 We therefore, set aside the Ruling of the Court below and allow the appeal. The consequence of our decision is that the matter in. the Court below stands dismissed for want of jurisdiction.. 7. 1.~·•:1~osts a:re for the Appellants to b e taxed by the Taxing. Master 15""" in default_ ,0£ agreement .. I J l I ............ ,, .... ........ •·•·· .. ···•· .......... ...... . M . J. SIAWAPA JUDGE-PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE ············~ ···· .. ······ •······'········· A .. M. BAN""DA-BOBO COURT OF APPEAL JUDGE - r: Ii i I, ti ,, I f, ! !: " Ii I. ' i.1 ,~ I r: l ! \ ! .. , 'l ·.1 .; : ,,: f ,j t.i r ... .. , ;_.~ ,, lo j·, I· , . i l" I [.:,, l ! ' 1· ! i ! i I I ~ I ::i ! . !-::., i .. ' ' ) ' -1 i, ·i i ' ,~.' I·. J-12 :