Chillerton Group Limited v Konkola Mineral Resources Limited and Anor (APPEAL No. 215/2023) [2024] ZMCA 165 (19 June 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 215/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 1 9 U I• I r . ' · ' ' l . . 1 CHILLERTON GROUP LIMITED APPELLANT AND KONKOLA MINERAL RESOURCES LIMITED 1 ST RESPONDENT KONKOLA COPPER MINES PLC 2ND RESPONDENT CORAM: Chashi, Makungu and Sichinga JJA ON: 27th March, 30th April and 19th June 2024 For the Appellant: fl) M. Mwenye, SC and 0. Samba, Messrs Mwenye & Mwitwa Advocates (2) C. P. Chuula, Messrs Chi besakunda & Company Advocates For the 1 st and 2 nd Respondents: E. C. Banda, SC and T Chibeleka, Messrs E . C. B Legal Practitioners JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Konkola Copper Mines Plc v Rephidim Mining and Technical Supplies Limited and Others - CAZ Appeal No. 74 of 2018 -J2- 2. Konkola Copper Mines Plc v Sensele Enterprises Limited & Others - CAZ Appeal No. 133 of 2018 3. Sanhe Mining Zambia Limited v Andrew Mazimba & Another - CAZ Appeal No. 74 of 2017 4. The Attorney General v Marcus Kampumbe Achiume (1983) ZR,l 5. Antonio Ventriglia and Emmanuela Ventriglia v Finsbury Investments Limited- SCZ Appeal No. 2 of 2019 6. Harry Mwanga Nkumbula v Mindeco Small Mines Limited (1977) ZR 240 (HC) 7. Tecklemicael Mengstab v Semar Transport & Mechanical Limited & Another - SCZ Appeal No. 218/2013 8. Kalymnos Processing Limited & Albertina Kashiba v Konkola Copper Mines - CAZ Appeal No. 74 of 2023 9. The Attorney General, Shanzen Resources Limited and AG/Shenzen Metal Leach Limited v Konkola Copper Mines Plc -CAZ Appeal No. 67 of 2022 Legislation referred to: 1. The Mines and Minerals Development Act, No. 11 of 2015 2. The Lands Act, Chapter 184 of the Laws of Zambia 3. The Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia Rules referred to: 1. The Supreme Court Practice (White Book) 1999 .. -J3- 1.0 INTRODUCTION 1.1 This is an interlocutory appeal against the Ruling of Honourable Lady Justice Abha Patel, SC, High Court Judge, Commercial Division, as she then was. 1.2 In the said Ruling, the learned Judge dismissed all the seven (7) preliminary issues raised by the Appellant, which was the defendant in the court below, pursuant to Order 14A of The Rules of the Supreme Court1 (RSC) and awarded costs to the Respondents who were the plaintiffs. 2.0 BACKGROUND 2.1 The Respondents on 13th June 2022 , commenced an action against the Appellant, by way of writ of summons, claiming the following reliefs: (i) A declaration that the Appellant has no rights over Kakosa Tailings Dump (Kakosa Dump) and that the pt Respondent is the rightful owner of the surface rights over the area comprising S/D G of Farm 2198, S/D H -J4- of Farm 2198 and S/D Cl51 of Farm 1883 and that the 2 nd Respondent beneficially owns the remaining extent of Farm 2198; (ii) In the alternative, a declaration that the Appellant has no right to enter upon the land in Kakosa Dump without the prior consent of the 1 st Respondent and/ or the 2 nd Respondent (iii) A declaration that the 1st Respondent and/ or 2nd Respondent has reasonable grounds to withhold its consent from the Appellant in respect of access to and/ or mining in the Kakosa Dump. (iv) An injunction to restrain the Appellant whether by itself or by its servants or agents from entering or crossing the 1st Respondent's said surface rights and/ or carrying out any activities thereon. -JS- (v) Damages for interference with the 1st and 2nd Respondent's operations should the same arise. (vi) Damages for trespass to the 1st Respondent's land and facilities should the same arise (vii) Further or other relief and (viii) Costs of and incidental to the action 2.2 According to the attendant statement of claim, the Respondents own the surface rights to Kakosa Dump which it acquired under the defunct areas call option agreement. In addition it was averred that the Respondents own the mining rights over Kakosa Dump under licence 7076-HQ-LML 2 .3 It was also averred that, the Appellant was purportedly granted a large scale mining licence which spans over the area which is covered by the Respondents' surface rights. According to the Respondents, they had not given access to their land as they intend to derive benefit from the said land by exploiting and mining resources contained in the Kakosa Dump 2.4 It was the Respondents' further averment that, in terms -J6- of environmental and legal implications, having two separate entities in the same area will create difficulties in the apportionment of liabilities and responsibilities for any environmental harm or injury to persons. That this is particularly important in these circumstances where the Appellant and the Respondents both have mining related large scale licences. 2.5 According to the Respondents, the Appellant was expected to, or was likely to move on site and commence mining activities on Kakosa Dump, which action will constitute a trespass on the Respondents' surface rights in the circumstances. 2.6 The Appellant settled its defence on 19th August 2022, in which it averred that as a holder of a large scale mining licence, insofar as the licence extends over the surface rights of the Respondents, if at all, the manner of resolution of any dispute between the parties is provided for under The Mines and Minerals Development Act1, (the Act) which does not include the commencement of '. -J7- an action by writ of summons through the High Court of Zambia. 2. 7 According to the Appellant, it did not need consent to access the areas purportedly owned by the Respondents, insofar as they fall within its mining tenement, because the requirement of consent of the owner of surface rights is limited under sections 52-58 (Part iv) of the Act, as none of the circumstances listed thereunder apply to the Respondents, as a result of which the Appellant was not obliged to seek the Respondents' consent by law. 2.8 It was averred that, if any right exists pertaining to the surface rights purportedly owned by the Respondents, then the jurisdiction to resolve the dispute lies in arbitration as provided for under the Act. That as a result, the High Court is not vested with jurisdiction to determine the issues of consent, compensation or to adjudicate where the parties are not agreed on compensation. 3.0 PRELIMINARY ISSUES IN THE COURT BELOW -JS- 3 . 1 On 14th September 2022, the Appellant filed into the court below a summons for disposal of the matter on points of law, pursuant to Order 14A RSC. The Appellant moved the court to dispose of the matter by determination of the following questions of law. (i) Whether any dispute between the holder of a mining licence and an owner or occupier of land, is to be determined in accordance with the Mines and Minerals Development Act No. 11 of 2015 (hereinafter the MMDA") and that the dispute between the parties in the matter is governed by the MMDA. (ii) Whether by law, the holder of a mining right, being a large scale mining licence holder, does not have an obligation to seek consent from the owner or legal occupier of the land before exercising its rights to its tenement unless: -J9- (a) The land is the site of or is within 180 meters of an inhabited, occupied or temporarily uninhabited house or building (b) The site is within 45 meters of any land which has been cleared or ploughed or otherwise prepared in good faith for growing of farm crops or upon which farm crops are growing; (c) The land is the site of, or is within 90 meters of any cattle dip tank, dam or any private water; or ( d) If the land forms part of an aerodrome (iii) Whether from the pleadings filed by the parties, the plaintiff alleged pieces of land/location of surface rights do not fall within the categories listed at 2(a)-(d) above and that the defendant is therefore not obliged to seek the plaintiff's consent before exercising its legal rights -JlO- (iv) Whether by law, a surface rights owner/occupier who does not fall within the categories listed at 2 (a)-(d) above and sections 52 ( 1) (c) (d) (e) (f) (g) (h) (i) of the MMDA can prevent mining rights holder from accessing its tenement on the ground that it has not granted consent to the mining licence holder. Consequently, whether the plaintiff can prevent the defendant from exercising its right on the ground that they have not granted the defendant consent to exercise its rights (v) Whether, even assuming that the defendant was obliged to obtain the plaintifrs consent before exercising its rights, any dispute over the lack of the said consent ought to be determined by arbitration in accordance with sections 52 (3) and 56 of the MMDA and that consequently, any dispute over the alleged lack of consent is therefore improperly before this honourable court. -Jll- (vi) Whether, by law, the only recourse that a surface rights owner/ occupier has against a mining licence holder for the disturbance of its rights, is to demand for compensation for the disturbance of its rights pursuant to section 57 of the MMDA and if compensation is not forthcoming or is inadequate, as the case may be, to resolve the dispute through arbitration as required by section 57 (6) of the MMDA (vii) Whether as a consequence, by law, the only recourse the plaintiffs have, as surface rights owner/ occupiers, against the defendant for the alleged disturbance of their rights is to demand for compensation and if the compensation is not forthcoming or is inadequate then to proceed to arbitration and whether this matter, is improperly before this honourable court ·- -J12- 3.2 ARGUMENTS IN SUPPORT OF THE SUMMONS 3.1 According to the Appellant, the reliefs sought by the Respondents in the action were an order of interlocutory injunction, and damages for trespass to the land and facilities should the same arise. In addition, the Appellant alleges that the action is partially disguised as a trespass action; the action relates to the allegation by the Respondents that the Appellant requires consent from the Respondents to exercise its mining rights under the large scale mining licence. 3.2 It was further argued that, the Act provides distinctly for the circumstances which require a mining right holder to obtain consent from the surface right holder to exercise their mining rights under a mining licence. According to the Appellant, the Act provides for a dispute resolution mechanism where a holder of surface right denies to grant or unreasonably withholds consent to a m1n1ng right holder and this is the only mechanism under which a dispute can be resolved. ._ 4.0 ARGUMENTS IN OPPOSITION TO THE SUMMONS -J13- 4.1 It was the Respondents' argument that the Appellant had misapprehended the totality of the claim in that the claim is protected by two legal regimes, being The Lands Act2 and The Lands and Deeds Registry Act3 on one hand and the Act on the other. 4.2 According to the Respondents, they were not challenging a decision of the Director of Mines or that of the Mining Appeals Tribunal and cannot therefore follow the grievances procedure outlined under the Act. That the High Court is the right forum to determine the Respondents' claims. 4.3 It was submitted that the arguments raised by the Appellant have been aptly dealt with by the Court of Appeal in the following decisions; (i) Konkola Copper Mines Plc v Rephidim Mining and Technical Supplies Limited and Others1 -J14- (ii) Konkola Copper Mines Plc v Sensele Enterprises Limited2 (iii) Sanhe Mining Zambia Limited v Andrew Mazimba & Another3 4.4 It was the Respondents' contention that the Appellant's motion to raise preliminary issues lacked merit. 5.0 DECISION OF THE COURT BELOW 5.1 After considering the arguments by the parties, the learned Judge formulated three (3) issues for determination as follows: (i) Was the Appellant's Order 14A application properly before court? (ii) Can this matter be disposed off upon consideration by the court of the seven (7) questions of law listed by the Appellant and its attendant consequences? (iii) Did the court have the jurisdiction to hear and proceed with this matter? 5.2 After determining the first issue 1n the affirmative, the -JlS- learned Judge proceeded to analyze the application. In considering the issue of consent and in particular the first question for determination, the learned Judge had recourse to the statement of claim and the list of documents before court, filed by the Respondents and noted that the Respondents' surface rights are under title as evidenced by the list of documents filed on 13th June 2022, in its first schedule, showing three (3) certificates of title. That the three certificates were exhibited in the affidavit in support of summons for an interlocutory injunction. On that basis, the learned Judge found that the Respondents had pleaded and disclosed registered interest in the land. 5.3 The court also noted that the issue of large scale mining licences had been pleaded by both parties, but as like any factual issue, not been tried. According to the learned Judge, the issue was not solely between a mineral right holder and an owner or occupier of land. ._ - -J16- 5.4 In respect to the second question, the learned Judge found that the argument was prematurely before her, as she could not with certainty make the findings on what the Appellant was calling on her to make, more so that, the Respondents had not anchored any of the reliefs or claims on the provisions of the Act. Same applied to the issues of consent, compensation and / or arbitration under part iv of the Act. 5.5 On the issue of trespass, the learned Judge stated that she would stand guided by the decisions of the Court of Appeal as applicable to the facts before her. She then went on to consider the Rephidim case and the reasoning by the Court of Appeal when it asked the following question: "The question confronting us as we seek to determine grounds one and four is: on what legal basis is the action founded? Is it in tort for damages on account of trespass or is it a dispute bordering on the right to mine. In other words, by commencing this action in the court below, was the Appellant -Jl 7- asserting its rights as land owner (of the surface rights) or protecting its mining rights by virtue of being a holder of mining licence." 5 .6 The Court of Appeal a nswer ed th a t question 1n the following term s : "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 licence, as we hold the view that what prompted the Appellant to commence this action was not conflicting of its mining rights with those of the Respondent but the Respondent's interference." 5 . 7 In distinguishing t he Rephidim case from th e Sanhe case, the Court of Appeal stated as follows: "This matter (referring to its decision in Rephidim) is not primarily premised on two -J18- 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 that extent." 5.8 The learned Judge was in total agreement with the question which was posed by the Court of Appeal and found that the Rephidim case was on all fours with the facts of the case at hand . 5. 9 Reverting to the statement of claim, the learned Judge came to the inescapable conclusion that the claims were centred on the protection of the Respondents' protection of its surface rights and further that they had reasonable ground to withhold consent from the Appellant and for damages should they arise. The learned Judge was of the view that the Respondents were not moving the court seeking compensation or challenging the decision of the ·- - -J19- Minister in the purported grant of the large scale mining licence granted to the Appellant. 5.10 The learned Judge then went on to state that, issues inter alia of ownership, licences, consent and consequential claims in trespass and damages were yet to be tried in the main action and therefore desisted from making pronouncements on the same. 5. 11 In endorsing the decision of the Court of Appeal in the Sensele case, the learned Judge made reference to the holding at page J26 of the Judgment where we held as follows: "The surface rights and mineral rights are protected by different legal regimes - that is; the Lands Act and The Lands and Deeds Registry Act in respect to the surface rights and the Mines Act in respect to the mineral rights acquired under the large scale mining licence incidental to the sale agreement. We are therefore inclined to agree with the Appellant that matters relating -· -J20- to mineral rights, the grant of licences are governed by the Mines Act. Matters relating to surface rights can be enforced by taking out a civil action. 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." 5.12 In conclusion, the learned Judge was of the considered view that, the dispute as pleaded, was properly before her and that the issue of consent, compensation and/ or arbitration under the Act were not central to the dispute at hand. The learned Judge found that she was possessed with jurisdiction to deal with the case as pleaded. Consequently she dismissed the Order 14A application to determine the matter on a point of law. 6.0 THE APPEAL 6.1 Disenchanted with the Ruling, the Appellant appealed to this Court advancing the following six grounds; -J21- (1) The learned High Court Judge misdirected herself in law, when she decided, at page 22 paragraph 10.6 of the ruling, inter alia, that the dispute between the Appellant and the Respondents was not purely one between a holder of a mining right and an owner occupier of land to be determined in accordance with the Mines and Minerals Development Act No. 11 of 2015 ("MMDA") contrary to the case as pleaded by the parties. (2) The learned High Court Judge erred in law when she held, at pages 22 and 23 under paragraph 10. 7 of the ruling, that the questions of law presented to her were prematurely before her notwithstanding the fact that the law as stipulated by the MMDA makes the case and claims pleaded by the Respondent untenable at law. -J22- (3) The learned High Court Judge misdirected herself in law and fact, when she held at pages 23 to 25 under paragraphs 10.9 to 10.10 of the ruling, that the Appellant did not place any evidence before the court in support of the seven (7) preliminary questions of law it raised and that the mere fact that the Appellant raised seven questions at such an early stage in the proceedings raised a "red flag" in the mind of the court. In making such a determination the learned Judge relied on an extraneous factor, being the number of preliminary issues, as being a legal reason to dismiss the Appellant's application and not the merits of the questions raised. (4) The learned Judge in the court below, erred in law when she decided at page 28 paragraph 10.14 of the ruling to decline to make a finding on the ability of the 2 nd Respondent, as a company in liquidation since 21st May, 2019, to -J23- hold and transfer a mining licence to the 1st Respondent notwithstanding that the issue was directly relevant to the questions of law raised by the Appellant, and also directly relevant to the question as to whether the dispute was between mining holders or between a mining right holder and an owner/occupier of land. (5) The learned High Court Judge erred in law and fact when she held, at page 29 paragraph 10.6 of the ruling, that the dispute as pleaded was properly before the court and that the issues of consent, compensation and/ or arbitration, which are mandatory under the MMDA were not central to the dispute notwithstanding the fact that the dispute, as pleaded by the parties is one between a mining licence holder and a surface rights holder which is regulated by the MMDA. (6) The learned Judge in the court below erred in law and fact when she decided, at page 29 of the -J24- ruling in line 10. 7, to decline to answer the questions of law posed by the Appellant and to dismiss the Appellant's question of law in their entirety. By so doing, the learned Judge granted the High Court jurisdiction to hear a matter which should be properly referred to arbitration in accordance with the law. 7.0 ARGUMENTS IN SUPPORT OF THE APPEAL 7 .1 At the hearing of the appeal, Mwenye SC, Counsel for the Appellant relied on the heads of argument filed into Court on 12t h July 2023. In arguing ground one, it was submitted that the proceedings in the court below were instituted by the Respondents to protect or assert their purported rights over Kakosa dump. Further that the Respondents are seeking a declaration that the Appellant has no right to enter upon the Respondents' purported surface rights without their prior consent. 7 .2 It was submitted that although the Respondents did not specifically mention that their claims were anchored on -J25- the provisions of the Act, the statement of claim clearly shows that their claims were about enforcement of its purported surface rights against a mining right holder which in this jurisdiction is provided for under the Act. 7 .3 According to the Appellant, the only piece of legislation that provides for an interplay between a surface rights holder and a mining rights holder is the Act, under Part IV of the Act, in particular Section 52. 7.4 It was submitted that the court below erred in deciding that the dispute between the parties was not solely between a mineral right holder and a surface right holder, when the statement of claim shows that, that was the dispute before the court and that therefore the action is required to be determined under the Act. 7 .5 In arguing ground two, it was submitted that, it is important to note that the questions of law were raised before the court pursuant to Order 14A/ 1 RSC. According to the Appellant, the questions raised were such that had the court properly addressed itself, it -J26- would have dismissed the entire action, considering that the court misdirected itself by holding that the Appellant was required to place evidence before it in support of the question raised. That the application before the court was for determination of the law and not factual issues to require the Appellant to tender evidence, which would have ultimately required the court to determine the issues at trial. 7 .6 According to the Appellant, the court below took into account an extraneous factor, which was the number of questions of law, the Appellant raised before the court at an early stage. That the finding was not based on the provisions of the law and was therefore a misdirection. We were urged to set aside the finding. 7.7 In respect to ground three, it was submitted that the court below misdirected itself when it made a finding that a wrong relief according to the Act was sought and the wrong forum was used to assert the alleged surface rights by the Respondents. 7 .8 It was submitted that the question of law was suitable for -J27- determination without a trial or hearing if its determination hinges on the interpretation of law. That the questions of law the court ruled were prematurely before the court were all based on the interpretation of the Act. We were urged to reverse the finding by the court below based on the case of The Attorney General v Marcus Kampumbe Achiume4 • According to the Appellant, the finding was not made after a proper evaluation of the pleadings. 7.9 In arguing ground four, it was submitted that for a court to determine a question of law under Order 14A, such a question should be suitable for determination without a full trial of the action. The Appellant made the finding which was not supported by law. It was submitted that it is not mandatory that a question which the Appellant required the court's determination on must be stated in the question raised. According to the Appellant, it was at liberty to raise the question of law orally at that stage of the proceedings. 7 .10 It was the Appellant's submission that the court below -J28- ought to have determined the question as it was relevant to the determination of all the questions raised before the court as to whether the 2 nd Respondent, a company 1n liquidation was capable of transferring mining rights to the 1st Respondent. 7 .11 As regards ground five, it was submitted that as argued under ground one, the dispute as pleaded was one between a surface right holder and a mining right holder and the only legislation that provides for resolution of dispute is the Act. 7 .1 2 In arguing the sixth ground, it was submitted that, it is trite law that for a court to properly dispense justice and determine an action before it, such court must have jurisdiction. That when a court proceeds without addressing jurisdictional issue, the court will have wasted both its time and that of the litigants, because the proceedings and everything that flows from them will be rendered a nullity and of no effect. The case of Antonio -J29- Ventriglia and Emmanuela Ventriglia v Finsbury Investments Limited5 was cited where it was held as follows: "Jurisdiction is everything (and that) without it, a court has no power to make one more step ... where the court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing." 7 .13 It was submitted that the court's decision that it had jurisdiction in disregard of the Act, was a misdirection. It was further submitted that allowing the High Court to entertain a trespass action where there is a dispute between a surface right holder in relation to consent to access mining rights that fall beneath a surface right holder holder's land, waters down and diminishes the provisions of the Act, which were enacted to regulate the interplay between mining rights holders and surface rights holders. J • -J30- 7. 14 We were urged to uphold all the grounds of appeal and overturn the decision of the court below, with costs 8.0 ARGUMENTS IN OPPOSITION 8.1 At the hearing of the appeal, Banda SC, Counsel for the Respondents relied on the Respondents' heads of argument filed into court on 10th October 2023. In response to ground one, it was submitted that the finding of the court below must be understood in its proper context. That by stating that the dispute was not one solely between a surface rights holder and a mining rights holder, the court was not in any way suggesting that the Respondents were asserting both their surface and mining rights. That the court was merely taking cognizance of the fact that the Respondents while asserting their surface rights, do in fact hold both surface and mining rights to the disputed area. 8.2 According to the Respondents, where a party to an encroachment dispute holds both surface and mining rights to the disputed are, even though such a party -J31- chooses to assert only its surface rights against another who purportedly has a mining right over the same area, such a matter must be dealt with in the High Court and not under the procedure provided for in the Act. 8.3 It was the Respondents' contention that, whilst they are only asserting their surface rights, it cannot be ignored that they own mining rights as well to the disputed area. That an examination of pleadings clearly reveals that the Respondents hold both surface and mining rights. According to the Respondents the court therefore was on firm ground when it found that the dispute was not solely between a mining right holder and an owner/ occupier of the land. 8.4 The Respondents further submitted that the question as to whether a dispute between an occupier of land and a mineral right holder ought to be dealt with in the High Court was sufficiently answered by the Court of Appeal in the Sensele Enterprises case. According to the Respondents, the position of law expressed in that case is an old position of the law as recognized in the case of Harry Mwanga -J32- Nkumbula v Mindeco Small Mines Limited6 , wh ere Hadden J , stated a s follows: "Proceedings for trespass can only be brought at the suit of a person in possession of the land; a person in possession can sue although he is neither the owner nor derives title from the owner. It is clear from part IX of the Act that the rights held by the holder of a mining right are rights limited in that they cannot be exercised in certain areas or unless certain conditions have been fulfilled, and there are no provisions to ensure that the rights are exercised in such a manner as to cause the minimum of disturbance to the land and to the rights vested in the owner or occupier of the land .... I find that the statutory rights acquired by the holder of a prospecting licence are limited to those set out in the Act and these rights do not, on their own confer upon him possession of the land covered by the licence. Sufficient possession of land to -J33- maintain an action for trespass could be acquired as a result of def acto possession and such action could be maintained against all wrongdoers but not against the lawful owner ... " 8.5 It was submitted that the position of the law has not changed in respect to the relationship between mining rights and surface rights. In that a person who owns land, who is in possession of the land, who holds the surface rights can sue for an action in trespass. 8.6 In responding to the second ground, it was submitted that, there is no dispute on the position of the law in respect to the effect of Order 14A RSC. That however, the questions raised must be ones that can be disposed of and must be questions suitable for determination without a trial. 8 .7 It was the Respondents' argument that the question of whether the Respondents' surface right falls into the category provided for under section 52 (1) (b) of the Act, is not a question of law as there is need to determine the -J34- physical parameters which 1s clearly a question of fact and needs evidence to be presented at trial. 8.8 It was the Respondents' contention that, the observation made by the court below that the Appellant had not anchored any of its reliefs or claims on the provisions of the Act is of major importance. According to the Respondents, it underscores the point that the action is rooted in trespass and not under the Act. According to the Respondents, their reliefs are anchored on their ownership and possession of the land upon which the Appellant wishes to enter. 8. 9 In responding to the third ground, it was submitted that questions raised under Order 14A RSC are raised on the back of certain facts upon which a party believes that such a question can be determined with finally without going to trial. That in order to determine a question of law, it must take into account the surrounding facts . Reliance was placed on the case of Tecklemicael Mengstab v Semar Transport & Mechanical Limited & -J35- Another7, where the Supreme Court at page J 11, stated as follows: "There is a requirement under Order 14A Rule 2 (8) of the Rules of the Supreme Court for supporting evidence deposing to all material facts relating to the questions of law or construction of any document to be determined by the court." 8.10 As regards the argument by the Appellant that the court took into account an extraneous factor, being the number of preliminary issues, it was submitted that the court merely noted that this in itself raised a red flag. That in reaching this conclusion, the court below drew inspiration from the words of the Supreme Court in the Tecklemicael case where they made a similar observation at page J 11 as follows: "The mere fact that thirteen issues were raised as preliminary issues was in itself a red flag that the issues being raised were highly unlikely to be suitable for determination without a full trial." 8.11 In respect to the fourth ground, it was submitted that, in -J36- so far as the Respondents' action is rooted in trespass as owner/ occupier in possession of the land, it is immaterial whether a company in liquidation can hold or otherwise transfer a mining licence. 8.12 In response to the fifth ground, it was submitted that a reading of sections 52 and 56 ( 1) of the Act, clearly shows that, the only time a matter can be taken to arbitration under section 56 is where a party to a dispute, by consent of the parties, applies to the Director of Mining Cadastre. 8 .1 3 In respect to the sixth ground, it was submitted that parties cannot be compelled into arbitration as suggested by the Appellant. That would negate the entire arbitration process. According to the Respondents, Section 56 of the Act is not mandatory in compelling the parties to arbitration . That it follows therefore that the jurisdiction to deal with any of the scenarios listed under section 52 (b) or indeed 56 remain with the court. That therefore the -J37- jurisdiction to deal with an action 1n trespass remains with the court 9.0 APPELLANTS ARGUMENTS IN REPLY 9.1 In its reply, the Appellant reiterated its position in respect to the appeal. In doing so, it drew our attention to our recent decisions in the cases of The Attorney General, Shanzen Resources Limited and AG/Shezen Metal Leach Limited v Konkola Copper Mines Plc8 and Kalymnos Processing Limited & Albertina Kashiba v Konkola Copper Mines9, on the question of consent from an owner of surface rights to a mining right holder which cases have confirmed that, this is regulated by the Act. 10.0 OUR ANALYSIS AND DECISION 10.1 After considering the Judgment being impugned, the grounds of appeal and the arguments by the parties, we are of the view that grounds three and four of the appeal are peripheral and as observed by the learned Judge, ... -J38- they are issues which were not suitable for determination under Order 14A, RSC without a full trial. 10.2 Significant to this appeal, are grounds one, two, five and six which shall be dealt with simultaneously, as they all bring to the fore the ultimate issue of jurisdiction. The appeal calls for the determination of whether the matter was brought before the correct forum and consequently whether the High Court had jurisdiction to entertain the same or not. The opposing view being that the correct forum should have been as provided for under the Act. 10.3 In addressing this issue, it is noted that, we have in the past addressed the issue which was before the court below, as was observed by the learned Judge, 1n a plethora of cases, notable amongst them and relevant to the determination of the appeal, the Sahne, Rephidim and Sensele cases. We will therefore not be doing much service to our already decided cases by restating what we have said before which was ably captured by the learned Judge in the court below apart from just adding clarity. •• -J39- 10.4 Part IV of The Act compns1ng of sections 52-58, deals with mining rights and surface rights. Section 52 restricts a holder of a mining right or mineral processing licence access to certain land, places or buildings without written consent of the appropriate authority, owner of the land or legal occupier. Section 52 (3) provides that, where any consent required is unreasonably withheld, the Director of Mining Cadastre may arrange for arbitration in accordance with section 56 of the Act. 10.5 Section 56 of The Act provides for what disputes can be referred to arbitration and it states as follows: "56 ( 1) where there is a 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 -J40- (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 Cadestre to determine the dispute or the Director may require the parties to enter into a submission to arbitration within the meaning of the Arbitration Act, 2000." 10.6 Section 57 deals with compensation of the owner or occupier of land by the holder of a mining right or mineral processing licence for disturbance of rights and assessment of compensation. 10. 7 Section 97 of the Act provides for appealing the decision of the Director of Mining Cadastre, Director of Mines safety, Director of Mines, Director of Geological Survey or the Committee under the Act to the Minister. It also provides for any party aggrieved with the decision of the Minister to appeal to The Mining Appeals Tribunal. 10.8 It is evident that the disputes under Part IV of the Act are restricted to those between the owner or legal occupier of -J41- land and a holder of a mining right or mineral processing licence. It is therefore evident that Part IV of the Act and Section 97 of the Act are not applicable to this matter, taking into consideration the reliefs which were being sought by the Respondents in the court below. 10.9 As rightly observed by the learned Judge in the court below, the Respondents were title holders to the land to which they owned surface rights. In addition, they had a large scale mining licence to the same land. By virtue of which they do not fall under the ambit of Part IV. In addition to that, as we held in the Sensele case, they are entitled to enforce their surface rights by civil action in the High Court as matters relating to surface rights are protected by The Lands Act and The Lands and Deeds Registry Act. 10.10 A perusal of the writ of summons and the statement of claim shows that the Respondents in the court below, in their reliefs were seeking declaratory orders as the rightful owners of the surface rights over their titled land and a declaratory order that the Appellants have no right to -J42- enter the land. Attendant to that, they were seeking a prohibitive injunction. They were also seeking anticipatory damages for interference and trespass. In our view, all these reliefs could not be sought under the provisions of the Act. 10.11 In view of the aforestated, the matter was rightly before the court below as it had jurisdiction. We find no basis on which to fault the learned Judge. The appeal in our view has no merit and is accordingly dismissed with costs to the Respondents to be paid forthwith. Same to be taxed in default of Judgment. The matter is remitted back to the for an Order for directions COURT OF APPEAL JUDGE I C. K. MAKUN COURT OF APPEAL JUDGE . COURT GA, SC L JUDGE