Bowas Maluza v Orezone Mining and Exploration Limited (APPEAL NO.112/2022) [2023] ZMCA 347 (24 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 112/2022 HOLDEN AT NDOLA (Civil Jurisdiction) .. ...... BETWEEN: BOWAS MALUZA AND ? ._ ·--...... 'I tti✓ . '~ ' <( .. ·, ,__, , -[,;. • ....._, _; ELLANT I '- •(~l/ ~ • ~ , "<_,·,;- ·u.,.ft" '·••,./ -.:,, / ._____.,, ,~ OREZONE MINING AND EXPLORATION LIMITED RESPONDENT Coram: Makungu,Chishimba and Muzenga, JJA On the 17th and 24th day of November, 2023 For appellant: Mrs S. Kalima Banda of Messrs JM Advocates For the respondent: No appearance JUDGMENT Makungu, JA delivered the Judgment of the Court. Cases referred to: 1. Shell & BP (Zambia) LTD v. Conidaris & Others (1975) Z. R 174 2. Handling Xing-Xing Building Co. Ltd v. Zam Capital Enterprises Limited 2010/HP/439 3. Tommy Mwendalema v. Zambia Railways Board (1978) Z. R 26 4. Hilary Bernard Mukosa v. Michael Ronaldson (1993-1994) Z. R 26 5. Meanwood Property Development Corporation Limited v. History Makers Zambia Registered Trustees (2017) ZMHC 382 6. Tawela Akapelwa (Sued as Induna Inete) and 3 Others v. Josiah Mubukwanu Litiya Nyumbu SCZ Appeal No. 004/ 2015 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of C. Kafunda J, of the High Court dated 17th March, 2022 granting an interim injunction restraining the 1s t defendant Multipurpose Co operative by Matala and Luili Representatives and the 2 n d defendant (Bowas Maluza, now appellant) from carrying out mining activities either by themselves, their agents or servants on the respondent's mining area in Matala mining site in Mumbwa District, Central Province of the Republic of Zambia. Also restraining the appellant from inciting members of Mumbwa community from revolting against the respondent. 1.2 We shall proceed to refer to the parties according to their designations in this Court. 2.0 BACKGROUND 2.1 The respondent commenced an action by way of writ of summons and statement of claim seeking the following reliefs: 1. An order of interim injunction restraining the appellant and the said Multipurpose Co-operative from carrying out any mining activities either by -J2- themselves, their agents or servants at the respondent's mine. 2. An order to restrain the appellant either by himself, his servants, agents or whomsoever from inciting members of the community to rise against the respondent. 3. Damages; and 4. Costs. AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR AN INJUNCTION 2.2 The respondent's summons for an interim injunction was supported by an affidavit in support filed on 6 th October, 2021 and a further affidavit filed on 18th October, 2021. Both affidavits were sworn by Jameel Mitha, the Chief Executive Officer in the respondent company. The affidavits contain the same information as follows: 2. 3 That the respondent holds an exploration licence for a gold mine in Mumbwa town, Central Province, copy of which was exhibit marked JMl. 2.4 That in April 2021, the respondent entered into a Memorandum of Understanding (MOU) with the appellant -J3- and representatives of the Multipurpose Co-operative, copy of the (MOU is marked JM2. 2.5 The MOU provides for the parties to work together in gold mining on the Matala Mining Site with one portion of the site allocated to the respondent and the other to the community. The respondent agreed inter alia to offer technical assistance to the community and to share the profits with them. 2.6 The deponent further stated that the other parties to the MOU had breached the MOU by conducting mining activities on the respondent's portion of the mine, without the respondent's consent. 2.7 That the respondent had formally communicated to the representatives of the Co-operative and the appellant to seize the illegal mining activities, to no avail. Instead, the appellant had been inciting members of the community to revolt against the respondent. AFFIDAVIT IN OPPOSITION 2.8 The appellant filed an affidavit m opposition sworn by himself. He denied being a party to the MOU or having entered into any agreement with the respondent. He stated that the MOU was endorsed by the respondent, three senior -J4- headmen and others. He also denied being the chairperson of the said co-operative. 2. 9 He stated that the only co-op erative he chairs is Matala Gold Hero Co-operative for which he exhibited some documents marked as BMl. 2 .10 He claimed that respondent was dishonest and denied all the allegations levelled against him. 2 .11 He further averred that the respondent's exploration licence merely gives it rights to explore and not to mine. However, the respondent has been carrying out illegal mining activities in conjunction with members of the community and this was in breach of mining regulations. 2.12 That the respondent came to Court with unclean hands and failed to disclose relevant facts. Further that the relief is unclear. NO DEFENCE BY THE MULTIPURPOSE CO-OPERATIVE 2.13 The Co-operative representatives did not file any documents opposing the application for an injunction. 3.0 DECISION OF THE LOWER COURT 3.1 The trial Judge found that the respondent had raised serious triable issues in the pleadings. -JS- 3.2 He was of the view that the Large-Scale Exploration Licence was the foundation for the rights which the respondent seeks to protect. 3 .3 Further that the illegal mining activities on the respondent's mining area were conducted by certain individuals who had no licence, title, or any other documents to assert their rights for carrying out the mining activities in order for the court to weigh competing interests. 3.4 The judge found that the respondent would suffer irreparable damages if the illegal mining is allowed to continue. He proceeded to weigh the balance of convenience which he found to be in favour of the respondent as holder of an exploration licence over the area in dispute. That it was immaterial whether the activities complained of were outside the scope of the exploration licence. 3.5 In sum, he granted an interim injunction as prayed. 4.0 GROUNDS OF APPEAL 4.1 The appellant advanced the following six grounds of appeal: 1. The lea med High Court Judge erred in law and fact when he failed to determine and specify what kind of irreparable injury that the respondent (plaintiff in the court below} would s uffer warranting an injunction against a party that -J6- was not even a party to the memorandum of understanding between the respondent and some headmen. 2. The learned High Court Judge erred in law and in fact when he did not consider all the issues brought before him as he failed to address the issue of the 2 nd defendant being a non party to the memorandum of understanding (MOU) and which said MOU was the core of the dispute by the respondent in the court below. 3. The learned High Court Judge erred in law and fact when he failed to ascertain the fact that the respondent had no mining licence but an Exploration Licence which did not permit them to mine and yet the respondent admitted through its MOU and through its submission in the lower Court to conducting mining activities with an exploration licence, which in essence meant that the respondent did not come to court with clean hands and thus did not satisfy the requirements to be granted an injunction. 4. The learned High Court Judge erred in law and fact when he held on page RS of his ruling that the writ of summons reveals a serious question to be tried when he did not even identify what serious question there was more especially as against the appellant herein. -J7- 5. The learned High Court Judge erred in law and fact when in determining the issues of adequacy of damages on page RS of his ruling, he failed to identify which particular individuals were conducting illegal mining activities and whether the said individuals involved the appellant, instead he placed the burden of the said unidentified illegal miners onto the appellant herein without cause. 6. The learned High Court Judge misdirected himself when he granted the respondent an injunction when there was no proof whatsoever as against the appellant pertaining to the allegations of illegal mining. 5.0 HEARING OF THE APPEAL 5.1 When we heard the appeal on 17th November, 2023 , the appellant was represented by his legal counsel while there was no appearance on the part of the respondent and no respondent's heads of argument on record. There was an affidavit of service filed on the 9 th of November, 2022 indicating that the record of appeal and appellant's heads of argument were served on the respondent on 30th May, 2023. Further that the notice of h earing of hearing of the appeal was served on 10th November, 2023. We therefore proceeded to hear the appellant in the absence of the other party. -JS- 6.0 APPELLANT'S HEADS OF ARGUMENT 6.1 The appellant relied on the heads of argument filed on 26th May, 2022. The appellant's contention in-ground one is that the trial Judge did not establish the kind of irreparable damage that the respondent would have suffered had the injunction not been granted. He referred to the case of Shell & BP (Zambia) LTD v. Conidaris & Others 1 where the Supreme Court defined irreparable damage as: "Injury which is substantial and cannot be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired." 6.2 According to counsel for the appellant, it was unnecessary to grant an injunction in this matter as damages would have been an adequate remedy to the respondent. This assertion is supported by the respondent's statement of claim which shows that the company would consider damages to be an adequate remedy. 6 .3 He further argued that the balance of convenience does not lie in favour of granting an injunction. The case of Hondling Xing-Xing Building Co. Ltd v . Zam Capital Enterprises Limited2 was cited in support of this argument. -J9- 6.4 On the 2 nd ground of appeal, counsel for the appellant submitted that the lower court did not address his mind to all the issues brought before him, particularly, the fact that the appellant was never a party to the MOU which was the core of the dispute. He pointed out that the MOU revealed that the parties were senior headmen and one Jameel Mitha. The appellant was not a signatory to it. Therefore, there was no cause of action against the appellant. 6.5 Counsel further submitted that contrary to the contents of the affidavit in support of the application for an injunction, the appellant was not the chairperson of the Multipurpose Co-operative by Matala and Luili as he chairs a totally different cooperative named Matala Gold Hero Co-operative. Page 37 of the Record of Appeal indicates that the chairperson of the said co-operative is senior headman Oliver Shanaube who was never sued. 6.6 On the 3 rd ground of appeal, counsel submitted that the MOU and the respondent's affidavit confirmed that the respondent has an exploration licence, and as such the respondent itself was conducting illegal mining activities. 6.7 It was further submitted that for an equitable relief such as an injunction to be granted, the party seeking it must come -JlO- to equity with clean hands but the respondent did not come to court with clean hands. Therefore, the injunction should not have been granted. 6.8 Counsel further submitted that the fact that the respondent was carrying out illegal mining activities is material to the case and the respondent should be condemned for failing to disclose that. The case of Tommy Mwendalema v. Zambia Railways Board, 3 was cited as authority for this position. 6.9 In support of the 4 th ground of appeal, counsel referred us to the cases of Hilary Bernard Mukosa v. Michael Ronaldson4 and Meanwood Property Development Corporation Limited v. History Makers Zambia Registered Trustees5 as authority for the submission that for an applicant to be granted an interim injunction there must be a serious question to be tried and in the event that there is no serious question to be tried, the application should be dismissed. Counsel contended that in the present case, the lower court did not identify any serious questions to be tried. 6.10 On the 5 th ground of appeal, counsel submitted that the lower Court in determining adequacy of damages did not identify which particular individuals were conducting the illegal mining. -Jll- 6.11 In arguing ground 6 , counsel submitted that there is no evidence to show that the appellant engaged in illegal mining activities. Under clause 4.4 of the MOU, the respondent admitted to indulging in mining activities in breach of th e mining regulations and its exploration licence. 6.12 We were therefore urged to grant the appeal and reverse the ruling of the lower Court. 7.0 OUR ANALYSIS AND DETERMINATION 7 .1 We have reflected on the evidence on record, the ruling appealed against, the grounds of appeal and the appellant's heads of argument. Since all the grounds of appeal are connected, we shall tackle them compositely. 7 .2 The main question as we see it, is whether the legal requirements for the grant of an injunction were met by the respondent. 7.3 The principles applicable to injunctions are settled in this jurisdiction . In the case of Tawela Akapelwa (Sued as Induna Inete) and 3 Others v. Josiah Mubukwanu Litiya Nyumbu, 6the Supreme Court stated that: "When considering the grant of an injunction, a court must be "guided" by the principles which were so -J12- clearly set out in the American Cynamid Co v Ethicon Limited7 case namely: 1. Whether there is a serious question to be tried; 2. Whether damages would be adequate to compensate the plaintiff; 3. Whether the balance of convenience tilts in favour of granting the injunction to the plaintiff; and 4. Whether the plaintiff has come to court with clean hands. 7. 4 Most of the above stated principles were excerpted in the earlier case of Shell & BP Zambia Limited v. Conidaris and others. 1 7 .5 We shall first consider whether there is a serious question to be tried. The court below relied heavily on the pleadings and documentary evidence filed by the respondent to find that the respondent had a good and arguable case. 7.6 We have prudently examined the pleadings and the affidavit evidence on record. There is no dispute that the respondent owns a Large-Scale Exploration Licence. The respondent alleges that in April, 2021 it entered into an MOU with the Multipurpose Co-operative by Matala and Luili -J13- Representatives and the appellant, which has been breached by the named parties. 7. 7 The appellant on the other hand claims that he is not a party to the MOU. Further, that he is not the chairperson of the Multipurpose Co-operative by Matala and Luili Representatives. The appellant has shown evidence that he is the chairperson of Matala Gold Hero Cooperative Society Limited. 7.8 We have examined the documents exhibited by the respondent in the affidavit in support of the application for injunction, the MOU marked as exhibit JM2 and the letter of demand marked as exhibit JM3. We take note that the MOU shows that the Chairman of the Multipurpose Cooperative by Matala and Luili is Senior Headman Oliver Shanaube and not the appellant. The appellant does not even appear as a signatory to the said MOU. The letter of demand, wrongly addresses the appellant as Chairperson for the Multipurpose Co-operative by Matala and Luili representatives. 7 . 9 A party applying for an injunction is required to establish a prima facie case against his opponents. In casu, the respondent failed to establish a prima facie case against the appellant because it is not clear whether the appellant is one -J14- of the people allegedly mining at the respondent's site. It is also not clear whether he incited anybody to revolt against the respondent. In the defence, and affidavit in opposition, the appellant denied all the allegations levelled against him by the respondent and there was no affidavit in reply. 7.10 Given this situation, we agree with counsel for the appellant that had the lower Court considered the appellant's defence it would not have granted an injunction against him. 7 .11 Further, the respondent had failed to disclose material facts such as the names of the individuals who had allegedly encroached on its portion of the mine and that the appellant was not privy to the MOU. 7 .12 For these reasons, we see no serious question to be tried as between the appellant and the respondent. 7 .13 The lower court erred in finding that without the injunction applied for, the respondent would suffer irreparable damage because the respondent had failed to demonstrate that it would suffer irreparable injury. 7 .14 Under the circumstances, there was no need to consider the balance of convenience and the issue of the respondent having come to equity with dirty hands becomes otiose. -J15- 8.0 CONCLUSION 8.1 All in all, the legal requirements for the grant of an injunction were not met. 8.2 In the premise, the injunction against the appellant is h ereby discharged. 8.3 The appeal succeeds with costs to the appellant to be taxed in default of agreement. C. KMAKUNGU COURT OF APPEAL JUDGE F. M CHISHIMBA K. M GA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J16-