Court of Appeal remits to high court for trial KCM suit against Rephdim Mining, Mumbula Minerals, Moxico Resources

THE Court of Appeal has remitted to the High Court for trial the matter in which Konkola Copper Mines (KCM) has sued Rephdim Mining, Mumbula Minerals Limited, and Moxico Resources for trespassing on its Nchanga Mine Area.

In their judgment, Court of Appeal judges Dominic Sichinga, Judy Mulongoti, and Petronella Ngulube said KCM’s grounds of appeal had succeeded.

KCM was challenging the lower court’s decision to dismiss the matter in which it sued the respondents on the tort of trespass on its mining area for abuse of court process.

The Court of Appeal found that KCM’s grounds of appeal had merit and ordered that the matter be taken back to the High Court to be tried by a different judge.

KCM had appealed against a ruling of the High Court dated April 23, 2018 in which it dismissed the action before it for being statute barred and an abuse of court process.

This followed an action by the appellant on January 17, 2018, against the respondents, claiming a declaration that the defendants have no authority 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, among other grounds.

KCM claimed that according the ZCCM-IH sale agreement of December 15, 1999, it acquired all mining rights over Nchanga Copper Mine from ZCCM as part of the privatisation of the mines, together with a large scale mining licence 7075-HQ-LML, covering approximately 11,470 hectares with a validity of 25 years from its first issue on March 30, 2000.

The mining company said it had valid certificates of title to the area otherwise known as Lot 694/M and the remaining extent of Lot 564/M or the land in the Nchanga Mine area.

The appellant said Rephdim Mining, 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 that the licence was re-issued under the Mines and Minerals Act of 2008 as 844-HQ-SML in April 2010.

KCM contended that the land subject to that licence included an area which is Nchanga Mine licence relating to Lot 694/M and the remaining extent of Lot 564/M or the land in Nchanga Mine area.

In 2016, the first respondent applied for consent to transfer its small-scale mining licence to the second respondent, Mimbula, which application was granted and the said mining licence was converted to the new owner.

KCM stated that the respondents then moved on site, placed boundaries and advertised intentions 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.

KCM contended that the actions of the respondents constitute trespass on its land and further that it did not grant the defendants consent to commence mining activities.

However, the respondents, on November 17, 2017, filed a defence and counter-claim, denying that the appellant acquired all mining rights over ZCCM-IH and that the appellant’s mining rights were subject to the Defunct Areas Agreement which provided that Mimbula Area was one of the defunct areas that could be transferred to the appellant after making a call option to ZCCM.

Rephdim, Mumbula and Moxico argued that at the time KCM was exercising this call, government had already issued a small-scale mining licence No. 8441-HQ-SML and No- 8514-HQ-SML.

The respondents, further denied that the disputed area was sold to the plaintiff in 2000.
The High Court in its judgement ruled that KCM’s action was an abuse of the court process.

However, KCM appealed the ruling in the Court of Appeal on 10 grounds, stating that the lower court 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.

The Court of Appeal, in its judgement, said that in as much as it was in agreement with the respondents that the lower court properly dealt with the issue of jurisdiction at an early stage of proceedings, they found 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 did not fall within the ambits of the nature of disputes subject to the grievance procedure under the Act.

The Court of Appeal also found that committal proceedings should have been taken against the respondents for disobeying a court order that restrained them from proceeding with mining activities in the disputed area.

The Court of Appeal has since awarded costs to the appellant to be taxed in default of agreement.

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