Charles Chinayi and Ors v Chilufya Findeli and Anor (2019/HK/523) [2022] ZMHC 35 (16 August 2022)

> IN THE HIGH COURT FOR ZAMBIA AT THE KITWE DISTRICT REGISTRY 2019/HK/523 HOLDEN AT KITWE (Civil Jurisdiction) BETWEEN: CHARLES CHINAYI AND 480 OTH~~~y~-~',7'~,\. PLAINTIFFS AND C CHILUFYA FINDELI MAURICE NSOFWA 1/ j · _ .. ·· . J' . •·· ' . i : ~ .. ,-..1 \ ~ . I \ J . \ \\; , i ' . . 1.sT DEFENDANT / ,' \ \ __ ~~· . . . ,··,"-~~;:~ ; DEFENDANT ~, .--~ -~ ---..... Before the Hon. Mr. Justice E. Pengele on 16th August, 2022 For the Plaintiffs: Mr. K. Chali of Messrs. G. M. Legal Practitioners For the Defendants: Mrs. M. K. Muselitata and Mrs. M. C. Matowe of Messrs. Muya and Company JUDGMENT " f . f ' Cases referred to: 1. Henry Mpanjilwa Silwale and Others V. Tapalila Si~ale; ···· 2. Zambia Railways Limited V. Pauline S. Mundia, Brian Sialumba (2008) Z. R. 287 Vol. 1; and 3. Khalid Mohamed V. The Attorney-General ( 1982) Z. R. 49. Legislation referred to: a. Mines and Minerals Development Act No. 11 of 2015; and b. Co-operative Society's Act, Chapter 397 of the Laws of Zambia. INTRODUCTION 1. This Judgment follows an action commenced by the Plaintiffs on 30th September, 2019, by way of a writ of summons and statement of claim against the Defendants. The Defendants filed their defence on 1 7 th August, 2020. ( WRIT OF SUMMONS AND STATEMENT OF CLAIM 2. In their originating process, the Plaintiffs have asked this Court for a declaration that the Defendants have no authority to act for and or make any decisions for and on behalf of Mimbula Community without consent or approval from the selected community leaders or indeed the general members of the community; a declaration that any decision made by the Defendants purporting to be for or on behalf of Mimbula Community is null and void; a declaration that any sale of any portion of dump SP13 Chingola is null and void; an order of interlocutory injunction; any other and/ or further relief the Court shall deen1 fit; and costs. 3. The case for the Plaintiffs, as can be gathered from the statement of claim is that, the Plaintiffs are m e mbers of Mimbula Community where, according to them, the Defendants are Chairperson and Secretary, respectively, of Mimbula C01nn1unity Society. The Plaintiffs have stated that -J2- the said society 1s the owner of Dump SP 13 Chingola. They have averred that over the last twenty five (25) years, they have been mining and picking various materials as groups and as individuals from Dump SP 13. 4. The Plaintiffs have alleged that the Defendants, without any consultations or consent from other chairpersons of the society, have engaged in negotiations with some known Chinese nationals for the sale of part of the Society's land. ( DEFENCE 5. In its defence filed on 17th August, 2020, the Defendants admitted that they did not consult nor obtain any consent from the various chairpersons of Mimbula Community because they are not accountable to the said Chairpersons. 6 . The Defendants denied having sold or engaged in negotiations to sell any land or property that belongs to the Plaintiffs. They asserted tha t a ll their actions in relation to Dump SP13 have been 1n their respective capacities as Secretary and ( Chairperson of Fitula Society Community which holds an artisanal mining li cen ce in respect of Dump SP13. 7 . The Defendants went on to say that the Plaintiffs do not have any interest and/ or right entitling the1n to exploit Dump SP13. TESTIMONIES FOR THE PLAINTIFFS 8. The Plaintiffs called four witnesses 1n support of their case. The first witness was Mr. Charles Chinayi, the first Plaintiff (PW 1). The gist of PW l 1s testimony is t hat the Plaintiffs used to -J3- collect minerals fro1n Dump SP13 until the Police started chasing them from the Dump. He stated that the Police informed them that someone had purchased the Dump. He testified that he later came to discover that the Defendants had sold the Dun1p to a Chinese national. 9. PWl went on to testify that later, the first 1st Defendant approached him and asked whether the two could negotiate on how the 1s t Defendant could give PWl some money. According to PWl , he told the 1st Defendant that there was nothing to ( negotiate about since the Defendants had already sold the Dump and shared the money. Further, that PW 1 had already taken the 1natter to Court. 10. In response to a question as to whether the Plaintiffs had a licence to operate on Du1np SP13, PWl stated that the licence they had was the one they were using together with the Defendants. When challenged that the Plaintiffs were mining on Dump SP13 illegally, PWl admitted that initially, the Plaintiffs did not have any documents. He was quick to add , however, that they later acquired a licence. Asked how the Plaintiffs acquired the licence, PW 1 told the Court that they acquired the licence logcther with the Defendants but that the Defendants later left the Plaintiffs. According to PW 1, he was a Chairperson of some sections during the time the licence was acquired. Although he stated that he had s01ne d ocuments to show that h e was a Chairperson, he claimed that he did not file that document into Court. -J4- l ( 11. In further cross-examination, PW 1 claimed that he has a mining licence for Mimbula Community. But when asked to show that licence to the Court, he stated that the licence was not before Court. 12. When further cross-examined, PW 1 admitted that his name does not appear on the registration document as one of the members of the society registered on the document appearing at page 20 of the Plaintiffs' bundle of documents. 13. In response to another question, PWl conceded that he had not shown the Court any document of ownership to show that the Plaintiffs h a ve an interest in Dump SP13. 14 . In re -examina tion , PWl clarified that, when they were operating fro m Dump SP13, the Plaintiffs were initially working with the Defendants without a mining licence. He stated that th ey la ter d ecided stop mining illegally and instead obtain ed a licen ce. According to him, after the licence came out, the m embers of the community were supposed to form groups of ten ( 10) . He stated that he only later heard that Dump SPJ 3 h a d been sold . He maintained that the Defendants did not h ave a uthority to sell Dump SP13 because they did not call for a m eeting to consult and get the consent of the members . 15. The second witness for the Pla intiffs was Sabina Nsompa (PW2). The summary of her testimony was that in 2002 the late former President Levy Patrick Mwanawasa ga ve Dump SP13 to Fitula Co1n1nunity. She testified that after working on the Dump for smne time, t he com1nunity d ecided tha t they -JS- should form a co-operative society. She stated that the com1nunity proceeded to form Fitula Co-operative Society, in respect of which a certificate of registration was issued on 29 th October, 2019. She added that the Co-operative Society was registered on 7th December, 2017. 16. PW2 proceeded to testify that after the certificate of registration was issued, members of the community decided to divide themselves into groups of. ten and to start empowering women, youths and orphans. She explained that, however, ( when they started working on the Dump, a Chinese national started c hasing them claiming that he had bought the Dump from the 1 st Defendant. 1 7. PW2 claimed that later on the 1 s t Defendant went to her home and requested that they negotiate and agree but that she told him that the ma tter had already been taken to Court. She asked the Court to h elp the Plaintiffs retrieve Dump SP13 and h a nd it back to the Community. 18. Under cross-examination, PW2 conceded that her name does not appear on the document appearing at page 13 of the Plaintiffs' bundle of documents which is an application form for registration of Fitula Society Co1nmunity. She, however, insisted that she is a member of Fitula Society Community. When asked whe the r she h ad a ny proof to support the claim, she simply stated that she used to work in that community and that the names a ppearing on the registration form are nrunes of the c01nmunity leaders. -J6- 19. When asked what the leaders of Fitula Society Community had promised to do for the Community, she stated that they had promised to build a clinic and to empower women, youths and teachers. When challenged as to whether the Plaintiffs' discontent is as a result of the failure by those leaders to fulfill their promises, she simply stated that the Plaintiffs are not happy. 20. In response to a question as to whether the 1 :.t Defendant and (. members of his executive had authority to represent Fitula Society, PW2 told the Court that they indeed had that authority. 21. PW2 was not re-examined. 22 . The third witness for the Plaintiffs was Francis Kahelo. His testimony was that the Plaintiffs started working with the Defendants on Dump SP13 in 2002 when President Levy Patrick Mwanawasa gave them the Dump. 23. PW3 went on to testify that on 7 th December, 2019, they obtajned a Co-operative licence for Fitula Co-operative ( Community. He explain ed that to his surprise, a Chines e national started chasing the Plaintiffs from the Dump claiming that he had bought the Dump. 24. Under cross-examination , PW3 claimed that h e took p art in the registration process of Fitula. Society Co1nmunity. But when challenged on whether his name appears on the list of m embers at page 14 of the Plaintiffs' bundle of documents, he con ceded that his name does not appear. He claimed that the said names were included on the list illegally. -. J7- -·---· ~-- . ·• . . · • - . 25. In response to a question as to whether he had any proof that he was a member of Fitula Society Community, PW3 said that when he was working on Dump SP13, he was doing so as a member. When asked whether he had any proof to show that President Mwanawasa gave Dump SP13 to the community, PW3 simply stated that everyone was aware. 26. PW3 was not re-exan1ined. 2 7. The fourth and last witness for the Plaintiffs was Mwanza Simbeye. The crux of his testimony was that in 2002, ( President Mwanawasa gave Dump SP13 to Mimbula Fitula Society Community. He testified that the Community chose leaders who included the Defendants and the 1 st Plaintiff. He wen t on to say that in 2017, the community decided to form a Co-operative after which it was issued with a Certificate of Registration and a mining licence. 28. The further testimony of PW4 was that their leaders proceeded to obtain a certificate of registration after misrepresenting that the 10 of them were each representing a section of Mimbula Community. It was PW4's additional testimony that he later learnt that a Chinese national had purchased the Dump from the Defendants. 29. Under cross-examination, PW4 agreed th at the Plaintiffs do not h ave a mining licence. He, however, added that the licence is with their lea ders. 30. In response to a question as to whether h e had any proof tha t President Mwa nawasa gave Dump SP13 to the Community, PW4 testified that h e did not have any doc ument to that effect -JS- because the President simply permitted them to be working at the Dump. 31. When further cross-examined, PW4 admitted that the 1st Defendant had authority to represent Fitula Society as a registered leader of Fitula Community. 32. When asked whether he had any document to prove that he made contributions towards the formation of Fitula Society Community, PW4 claimed that the documents he had have {. been misplaced. 33. PW4 was not re-examined. CASE FOR THE DEFENDANTS 34. The Defendants called two witnesses in their defence. 35. The firs t witness was Mr. Findeli Chilufya, the 1 st Defendan.t (DWl) . The gist of his testimony was that in 2015, he and his nine colleagues called the then l\1inister of Mines to go to Dump SP 13. 36. DW l proceeded to testify that he and his colleagues travelled to Lusaka wh ere they subsequently got a small scale mining licence on 20th December, 2019. He also explained that they later registered Fitula Society Community as a Co-operative. DW 1 explained that he and his nine colleagues were screened by relevant Govern1nent institutions before they registered the Co-operative. He pointed out that none of the 481 Plaintiffs was screened as a me1nber of the co-operative. -J9- 37. Under cross-examination, he agreed that the society was registered to empower the community and not to empower DW 1 a s individual. 38. In response to another question, he stated that the society was not intended to empower everyone in the community. However, when referred to the application form for the co operative appearing on page 1 of the Defendants' bundle of documents, h e conceded that the application was for the purpose of empowering the community. (_ 39. When f urthcr questioned, he refused to accept that the mining licence was is sued to th e society. Further, he maintained that the licence was not m eant for the benefit of the entire community. According to him, the licence was meant for his benefit and the benefit of the other m embers of the cooperative who appear on the a pplication form. When Counsel insisted on whether th e licen ce was meant only for DWI and his colleagues, DW 1 s tated tha t it was not. In response to a follow up qu estion h e agreed tha t the licence was meant for the be n e fit of the entire community. 40. In response to a question as to whether anyone has been mining a t Dump SP1 3 , DW 1 stated that he could not know. With regard to wheth er m embers of the community have b een p revented from accessing the Dump, DWI testified that he could not know that either . 41 . There wa s nothing material in re-exa1nination. 42 . The second a nd last witness for the Defendants was Mr. Peter Chola (DW2 ). The kernel of his testimony wa s tha t when h e -JlO- moved to Mimbula area in 1997, he found that the 1 st Plaintiff's occupation was that of a hunter. He explained that in 2000, the 1 st Plaintiff was imprisoned for five years and was only released in 2006. He maintained that he had never seen the 1 st Plaintiff do any mining activities. 43. His further testimony was that in 2015, the 1st Defendant approached him and requested that they work together to acquire Dump SP13. He explained that he and his other colleagues raised some money which they used to travel to Lusaka to legalize their mining activities on Dump SP13. He explained that after some members of the community heard that he and his colleagues had obtained a mining licence, they started claiming that the licence was for the entire community. 44. D\V2 explained that in 2019, he and his colleagues registered a Co-operative. He maintained that none of the Plaintiffs made any contributions towards the formation of the Co-operative and that none of them is me1nber of the Co-operative. He insisted that the licence was not for the entire community. ( 45. Under cross-examination, he agreed that the 1nining licence was given to Fitula Society Community before the Society was incorporated in 2019. He, however, reject an assertion that the licence was issued to all members of the con1munity. He accepted that the objective of the society was to uplift the community. 46. In re-examination the witness clarified that, although the name on the licence was Fitula Society Community, th e licence was not for the entire community. -Jll- 4 7. That marked the close for the case of the Defendants. PLAINTIFFS FINAL SUBMISSIONS 48. On 22 11d April, 2022, the learned Counsel for the Plaintiffs filed the Plaintiffs' final submissions. 49. The gist of Counsel's submissions is that all the Plaintiffs are residents of Mimbula Fitula Community which, according to Counsel, is also loosely referred to as Mimbula Community or Fitula Community or even Fitula Mimbula Community. ( 50. Counsel submitted that on 7 th December, 2017, the Plaintiffs were given an artisanal mining licence to lawfully carry out min ing activities on Dump SP13. In Counsel's view, the Plaintiffs are the rightful owner of Dump SP13 because they were given th e Dump by President Mwanawasa in 2003 and, in Counsel's view, they have proved on a balance of proba bilities that th ey own legal documentation to the Dump, which th ey h ave exhibited on page 18 of the Plaintiffs' bundle of documents. Counsel submitted that the question of ownership of t he Oump is further clarified by the artisanal mining licen ce which is produced on page 17 of the Plaintiffs' bundle of documents. 51 . To reinforce this submission, Counsel relied on section 32 of the Mines and Minerals Development Acta. In Counsel's opm10n, the granting of the licence implied that the community is entitled to exploit Du1np SP13 in any manner they wish. -J12- 52. In support of the foregoing, Counsel cited the case of Henry Mpanjilwa Silwale and Others V. Tapalila Siwale 1 in which, according to Counsel, the Court stated that- "persons who would be affected by the grant of a deed should be consulted". However, Counsel did not provide the full citation for that case. 53 . Counsel went on to advance the opinion that the interests of the community must override individual interests. Counsel ( 1naintained that the mere fact that the Defendants applied for the society to be formed does not mean that the society belongs to them and that they have authority to sell portions of the Dump without consulting members of the community. 54 . In conclu sion , Counsel prayed that the Plaintiffs' claims sh ould be uphe ld with costs against the Defendants. DEFENDANTS' FINAL SUBMISSIONS 55. On 16 th May, 2022, the learned Counsel for Defendants filed the Defendants' final submissions. Counsel asked the Court ( to d ete rmine two issues, namely- 1. whether or not the Defendants are the legal owners of mining licence No. 22407-HQ-AMR granted in respect of Dump SP13 and whether they have power to sell the said Dump; and 2. Whether or not the Plaintiffs are registered members of Fitula Society Community. -J13- 56 . Counsel submitted that the Defendants met all the requirements for the grant of an artisan's 1nining licence as contained in sections 2 and 29 of the Mines and Minerals Development Act8 • 57 . Counsel insisted that the Defendants lawfully obtained the subject mining licence in accordance with section 32 of the Mines and Minerals Development Act8. Counsel, accordingly, argued that the Defendants have the right to mine from, and deal with, Dump SP13 in any manner they deem fit (_ as envisaged in section 35(1)(c) of the Mines and Minerals Development Act•. 58. Counsel went on to contend that, the letter of protection authored by the Director of Mining Cadastre Department dated 26 th February, 20 19, attest to the ownership of Dump SP 13 by Fi tula Society Community. Counsel averred that the Plaintiffs did not exhibit any documentation to prove that they own Dump SPl 3 or that they have any right over the said Dump or indeed that they made any contributions towards the acquisition of the subject mining licence. 59 . Counsel proceeded to submit that in order for Dump SP13 to be sold , the Director of Min es Safety has to direct that it b e sold by public auction . Counsel contended that, therefore, the Defendants do not have a n y righ t or power to sell the said Dump. To buttress the foregoing, Counsel referred me to section 8( 1) of the Mines and Minerals Development Acta. 60. Counsel a dded that the Plaintiffs have not shown any proof of the purported sale of Mimbula Community's property by the -J14- Defendants. Counsel cited the case of Zambia Railways Limited V. Pauline S. Mundia, Brian Sialumba2 on the fact that the burden of proof lies with the party that alleges. 61. Coming to the issue of whether or not the Plaintiffs are registered members of Fitula Society Community, Counsel submitted that, during cross-examination, PW 1 confirmed that he was part of a registered society called Mimbula Society Community and not Fitula Society Community. Counsel ( argued that, however, PWl did not present any evidence to support the registration of Mimbula Society Community. According to Counsel, PW2, PW3 and PW4 equally failed to establish that they were members of Fitula Society Community and to show that they participated in the formation of the said society. To augment the foregoing submissions, Counsel ref erred m e to section 10( 1) of the Co-operative Societies Actb. 62. In conclusion, Counsel submitted that the Defendants complied with a ll the necessary requirements under the law in ( the acquisition of the artisanal mining licence and that, therefore, the Plaintiffs' action should be dismissed with costs. CONSIDERATION AND DECISION 63. I have carefully considered the Plaintiffs' originating process; the Defendants ' defence; the t esti1nonies given by both sides; and t h e submissions n1a d e by Counsel for both sides. 64. In their originating process, the Plaintiffs have claimed for six reliefs . A look at the said reliefs, particularly the first three -J15- reliefs, establishes that the Plaintiffs' case is premised on the presupposition that the Defendants' alleged actions were supposedly done on behalf of Mimbula Community. The Plaintiffs' claims are also premised on the assumption that Dump SP13 belongs to Mimbula Community and that, therefore, the Defendants' decisions affecting that Dump should have only been made with the approval of Mimbula Community. 65. In view of the foregoing, I hold the considered view that it will ( be neater for me to first decide on the ownership of the artisanal mining rights for Dump SP13 before considering whether the Plaintiffs have proved the specific reliefs they have listed in th e originating process. 66. In their defence, the Defendants have asserted that their ownership o f mining rights to Dump SP 13 is founded on Artisan 's Mining Right Licence No. 22407-HQ-AMR. 6 7 . The refore , the question that follows invariably is whether or not the Plaintiffs have proved on a balance of probabilities that they own Dump SP 13 and, consequently, that they are en t itled to the relie fs they h ave asked for. ' 68. To start with, in his testimony in examination -in-chief, PWl did not adduce any e vidence of ownership of Du1np SP13 by the Plaintiffs. I find an d hold that th e furth est. PW l 's testimony in chief went was to only show that the Plaintiffs were conducting illegal 1nining activities from the Dump before Police Officers started chasing them. -Jl6- . - ------ - -- ----• ·- 69. In addition, I have found that PW l 's claims of having been part of the mining licence in issue are not believable. I say so because, under cross-examination, PW 1 claimed that the mining licence the Plaintiffs had was the same one that the Defendants were also using. However, when asked about how the Plaintiffs acquired that licence, it was manifestly clear that he had nothing to do with the acquisition of that mining licence. In fact, under further cross-examination, PW 1 claimed that he has a mining licence for Mimbula Community. This testimony of PW 1 suggested that, the mining licence for Mimbula Community was different from the subject mining licence that has been produced before this Court. This is because, when asked to show the Court the mining licence he had for Mimbula Community, he claimed that the said licence was not before Court. ( 70. fn their testimonies, PW2, PW3 and PW4 claimed that the Plaintiffs' ownership of Dump SP 13 originated fro1n the year 2 002, when Presiden t Mwanawasa allegedly gave the Dump to the Community. ln his final sub1nissions, Counsel for the Plaintiffs also ground ed some of his contentions on the assertion that President Mwana wasa gave Dump SP 13 to the Community. However, Counsel did not point this Court to any la w which provides that the alleged presidential pronouncement could be taken to be a legal grant of mining rights to the Dump for the Plaintiffs. It is trite law that a mining licence can only be legally granted under section 32 of -J17- the Mines and Minerals Development Acta, by the Mining Licensing Committee. 71. In any case, there is absolutely no credible evidence to support the Plaintiffs' claim that President Mwanawasa made any pronouncement giving the Dump to the Community. 72. Like PW 1 ' the Plaintiffs' three other witnesses claimed that they were part of Artisan's Mining Right Licence No. 22407- HQ-AMR. The testimonies of these witnesses created an impression that the mining licence was issued to the whole (_ community. PW2 testified that after the issuance of the mining licence, members of the community were supposed to be divided into groups of ten members each before they could start empowering members of the community. 7 3. In cross-examination, PW2 stated that the leaders of Fitula Society Community had promised the Community that they would build a clinic and empower women, youths and teachers. It appears, and I find as a fact, that the disappointment on the part of the Plaintiffs resulted from the alleged failure by the leaders of Fitula Society Community to fulfil! the promises that the Cooperative had n1ade to the Community. My finding is supported by the testiinony of PW2 under cross-examination where, when challenged as to whether the Plaintiffs' unhappiness is as a result of the failure by the leaders of Fitula Society Con1munity to fulfill their pro1nises, PW2 simply stated that the Plaintiffs are not happy. -Jl8- 74. Like the testin1ony of PW2, the testimonies of PW3 and PW4 equally appear to suggest that the mining licence was issued to all members of the community. · 75. The question that begs an answer is whether or not it is legally tenable that the subject mining licence was issued to the Community as a whole. This question is easily answered by taking a look at relevant provisions of the Mines and Minerals Development Act8 • A look at that Act shows that it contains ( conditions that must be met before an artisan 's mining rights licence can be issued. 76 . Section 29 of the Act provides for the licencing of m1n1ng activities by the Mining Licensing Committee. That section requires that a person who intends to carry on any artisanal mining should apply for a mining licence. There is also a requirement that artisanal mining can only be undertaken by a citizen or a co-operative wholly composed of citizens. The foregoing means lhal when an application for the grant of an artisanal mining licence is made, the Mining Licensing ( Committee is supposed to ascertain, among other things, whether the applicant is a citizen of Zainbia or is a cooperative consisting of citizens of Zatnbia. 77. Further, section 14 of the Act provides for disqualifications from holding mining rights. One of the disqualifications is that a mining licence cannot be issued to a person under the age of eighteen years. 78. I hold the considered opinion that in view of the qualifications and disqualifications set out under the Act, it is not legally -J19- tenable to grant a m1n1ng licence to an entire community without first ascertaining the eligibility of members of that community to obtain the mining licence under the Act. 79. Section 30 of the Act requires the Mining Licensing Committee to scrutinize applications for mining licences and to reject those that do not meet the requirements set out in the Act. In this regard, section 30(3) of the Act provides that- "(3) The Committee shall, where an application does not comply with the provisions of this Act, reject the application and inform the applicant of the rejection and the reasons for the rejection, in writing." 80. In th e case before m e, the Plaintiffs have not proved that there was any s tage a l which their citizenship statuses; their ages or any oth er qualifications or disqualifications set out in the Act, were verified by the Mining Licensing Committee before the subject mining licence was issued. Conversely, DWl told the Court about the trips h e and his nine colleagues undertook to Lusaka and about them submitting national registration cards to relevant Government authorities. The Defendants' referred the Court to theirs and their eight other colleagues' national registration cards appearing at pages 2 to 11 of the Defendants' bundle of docu1nents, which they submitted to relevant authorities in the process. To this extent, I am inclined to accept the testimony of DW 1 that he and his nine colleagues were screened by relevant Government institutions -J20- while none of the 481 Plaintiffs was so screened before the mining licence was issued and before the cooperative society was registered. 81 . Further, there is no evidence on the record to prove that any of the Plaintiffs contributed financially or otherwise towards the acquisition of the mining licence. The testimony of DW2 in this regard remained intact after cross-examination. 82. Above all, I hold the firm opinion that, the fact that the Mining ( Licensing Committee issued Artisan's Mining Rights Licence No. 22407-HQ-AMR, following an application by the Defendants a nd t h eir other colleagues, meant that the Committee was satisfied that the applicants had met all the requirements set out under the Act for the grant of that licen ce. This is what section 32(1) of the Act requires when it provides that- ''32. (1) Subject to the other provisions of this Act, the Committee shall, within ninety days of the receipt of an application under section thirty, grant the applicant a mining licence, in the prescribed form, if the application meets the requirements of this Act." I 83. The other issue is whether or not the Plaintiffs are m embers of the co-operative , Fitula Society Com1nunity. I hold the firm opinion th at the Plaintiffs' claim of 1nembership to that co operative seems to be premised on their mere supposed association with the Defendants during the times they used to -J21- -- ·-------·---···- -- illegally mine from Dump SP 13. Similar to what I have already held elsewhere in this Judgment, the Plaintiffs did not submit themselves or their identities to any authority for scrutiny for purposes of registration as members of the subject Cooperative Society. 84 . According to section 10(1) of the Co-operative Societies Actb, any ten or more persons may associate themselves together to form a cooperative society which shall have litnited liability. Section 10( 1) specifically provides that- ( "10. (1) Any ten or more persons, or two or more societies, desiring to associate themselves together to form a society in accordance with co-operative principles, with or without capital divided into shares, may, on payment of the prescribed fee and subject to the approval of the Registrar, be registered under this Act with limited liability." 85 . Once the Cooperative Society is formed, the registered members of the Coopera tive Society have individual liability to creditors of the Co-operative Socie ty only to the extent of the amounts tha t th ey h ave not paid on their allotted shares or m embership fees, as the case may be . This is pursuant to section 15 of the Co-operative Societies Actb, which provides as follows: -J22- ( "15. Every member shall be individually liable to the creditors of a society for the debts and liabilities of the society in a sum not exceeding the amount, if any, unpaid on the shares allotted to him, if any, or on his membership fee, as the case may be, until the whole amount of his shares or membership fee has been paid up." 86. It is clear from the foregoing that a Cooperative Society must have registered and identifiable members who can be held liable by creditors of the Cooperative to the extent of the unpaid amounts on the member's allotted shares or membership fees. Therefore, contrary to the claims by the Plaintiffs , it is untenable at law for the entire community to be members of Fitula Society Community when members of that community were not registered in the application for registration of that Co-operative Society. All the witnesses for the Plaintiffs conceded that they do not appear on the a pplication form for registration of Fitula Society Community appearing on page 1 of the Defendants' bundle of documents. 87. From the foregoing, I find and hold that the Plaintiffs have failed to prove on a balance of probabilities that they are members of the Cooperative Society, Fitula Society Community, which was registered on 29th October, 2019. 88. It is a trite principle of law that the person who alleges bears the burden of proof. In this case, the burden was on the Plain tiffs to prove their case. In the case of Khalid Mohamed -J23- V. The Attorney-General3 the Supreme Court held that "A plaintiff cannot automatically succeed whenever a defence has failed; he must prove his case." The Plaintiffs needed to prove their case on a balance of probabilities as enunciated in the case of Zambia Railways Limited V. Pauline S. Mundia, Brian Sialumba2 , where the Supreme Court said that- "The standard of proof in a civil case is not as rigorous as the one obtaining in a criminal case. Simply stated, the proof required is on a balance of probability "as opposed to beyond all reasonable doubt in a criminal case." 89. On the totality of what I have already said in this Judgrnent, I hold that there is a bsolutely no merit in all the reliefs that the Plaintiffs have outlined in their writ of summons and statement of claim. I, accordingly, hold that the Plaintiffs have fa iled to prove their case on a balance of probabilities. I dismis:5 the Plaintiffs' action forthwith with costs for the Defendants which shall be taxed in d efault of agree1nent. 9 0 . Leave to appeal is granted. Delivered at Kitwe this 16th day of August, 2022 . PE ELE HIGH COURT JUDGE -J24-