Chivumbwe Mining Limited v Grizzly Mining Limited and Anor (2025/HP/0904) [2025] ZMHC 130 (12 December 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2025/ H P/0904 CHIVUMBWE MINING LIMITED PLAINTIFF AND GRIZZLY MINING LIMITED PRIDEGEMS MINES LIMITED 1 ST DEFENDANT 2ND DEFENDANT Before the Honourable Lady Justice S. Chocho, in chambers on the 12th day of December, 2025. For the Plaintiff Mr. W Chinyemba of Messrs Eric Si/wamba, Jalasi and Linyama Legal Practitioners. For the Defendant: Mr. C Chali of Messrs Chali Chitala Advocates. RULING Cases referred to: 1. Antonio Ventrigrilia and Another v Finsbury Investments Limited SCZ Appeal No 2 of 2019. 2. Order 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 3. Konkola Coppermine PLC Appeal No. 74 of 2018. 4. Kalymnos Processing Limited and Another v Konkola Copper Mines Appeal No. 74 of 2023. Scanned with ~ CamScanner- Legislation referred to: 1. Order 33 Rule 3 and 7 of the Ru les of the Supreme Court of England (White Book) 1999 Edition. 2. Order 14 Rule 2 of the Rules of the Supreme Court of England (White Book) 1999 Edition. 3. O rder 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 4 . Sections 5(1), 11, 78 (3), 84 and 86 (6) of the Minerals Regulations Commission Act, 2024. l . INTRODUCTION 1. 1. This is a Ruling in Respect to the Defe n d a nts appl ica tion for a n Order to di s mi s s m a tte r o n a point of la w. The Notice of Motion to Ra ise Prelim in a ry Issue s on points of La w is m a de pursua nt to Order 33 Rule 3 and 7 and Order 14 Rule 2 of the Rules of the Supreme Court of England (White Book) 1999 Edition as Read together with Order 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 1.2. The Defend a n ts a pplica tion is s upported by a n a ffid a vit in support of a pplicati o n Lo ra ise Pre liminary Issu es on points of la w a nd a list of a uth o rities a nd s ke le ton a rgum e nts fil e d into Court o n Au gu st J 911t, 2 0 25 . Scanned with Ci CamSca nne r- 2. BACKGROUND 2.1. The background LO this matter as per pleadings and affidavit evidence is that the Plaintiff commenced this m a tte r agai n st the Defendants by \\'ay of Writ of Summons and Statement o f Claim dated June 26th , 2025 claiming the follo,,·ing reliefs; i) An Order for a n injunction restrai ning the Defendants, their servants, age nts, or a ny pe rsons acting under their authority, from furth er trespassing upon, e n tering, occupying or conducti ng any un a utho rized ac tivities, including but not li mited Lo mining and water pumping o pera tion s, within t h e a r ea covered by Small Scale Exploration Licence No. 38563-HQ-SEL; ii) Damages fo r trespass Lo be assessed by the Court; iii) /\n O rd e r for th e re m oval of a ll equipment, structures and materials introduced by the Defendants onto the area covered by Sma ll Scale Exploration Licence No. 38563-HQ-SEL; iv) Costs inc idental Lo thi s ac tion ; a nd v) Any other relief the Court may deem just a nd equitable. 2 .2. The Defendants entered Appearance a nd fil ed a Defence on . July 21 st , 2025. 2.3 . The Defendants made an applica tion for lhe dete rmin ation of points of law o n August l 9 th , 2025. The issues for dete rmin ation arc as follo\\'s; Scanned with : Ci CamScanner-! ------------·······---------· i) Whether or not t hi s Honourable Court has jurisdiction to adjudicate upon thi s matter as it relates to ownership, boundaries of a nd entitlement to Mining Rights; ii) Whether or not the Pla intiff h as a cause of action against the Defendants herein; and iii) If all the questions or one them is a n swer e d in the negative, the Plaintiff's case s h o uld be dismissed with costs to the Defenda nts. 2.4. The Pla intiff m ade an appli cation fo r a n Order for interim injunction on September l 8 th , 2025. 3. AFFIDAVIT EVIDENCE 3. 1. The Defenda nts fil ed an a ffid avit in s upport of a pplication to raise Preliminary Issue on points of law on August l 9 th , 2025 d e posed by one Langsone Mukuma. 3.2. The Defendants aver t h a t thi s Court cannot a djudicate on thi s matter without determining the owne rs hip, bounda ries and entitlements relating Lo the Plaintiffs' S m a ll Scale Exploration License No. 38563 - HQ - SSL and BestGrade under License No. 7200 - HQ -SML and Small Scale Mining Li ce n se No. 7142 - HQ - SM L. 3.3 . The Defendants ave,· that a ll di sputes co n cern ing the issues, validity a nd bounda ries, of mining ri g hts fal l within th e jurisd iction of t he Mines a nd Minera ls Tribu n a l which is m a nda ted by sta tute Lo resolve s u ch m atters . Scanned with Ci CamScanner· 3.4. The Defendant avers that seeking an injunct ion from this Court under the guise of a trespass action amounts to the Plaintiffs improperly atte mpting to circumvent the statutory procedures and the exclusive jurisdiction of the Mines and Minerals Tri bunal. 3.5. The Defe nda nts avers that the Plain tiff has no cause of ac tion 111 trespass agai nst the Defendants. 3.6. In opposition, t he Pla in tiff fi led a n a ffid avit in opp osition to the affidavit in support of Notice of motion to ra ise Preliminary Issues on points of la\\" on September 1 ll11 , 2025 deposed by on e Bryan Pinkney. 3.7. The Plaintiff avers tha t the a rea covered by the Plaintiff's Small-Scale Mineral Exploration License No. 38563 - HQ - SEL does not overlap with License No. 7200 - HQ - SML and Min ing License No. 38563 - HQ - SEL. 3.8. The Plaintiff avers that a search as conducted on the Zambia Mining Cadastre eGovernment portal in respec t of Sma ll-Sca le Mineral Exploration Licence no. 38563 - HQ SEL on July 20 th , 2025 and it was discove red th at the Plaintiff was no longer re flec ting as the legal owner but the records indicated the existence of Small-Scale licences 3.9. No. 7142 - IIQ - SML and No . 7200 HQ - SML registered in the name of Best Grade Mining Inves tmen ts Limited. 3. 10. The Plain tiff avers that th e area covered by the Pla mtifrs Small-Scale Minera l Explo ration Licence No. 38563 - HQ - SEL has not been subject of sale as the same was acquired from the Ministry of Mines ;:rnd s Scanned with ~ CamScanner- Mineral Development directly after can cellation of the licence previously held by Marlex Mining Investment Limited. 3. I I. The Plc1 in tiff avers that the Ministry of Mines and Minerals Development issued a public no tice averring that 3,429 mining and non-mining rights were to be defau lted by the Mining Licence Committee for non compliance \\'ilh Mines and Minerals Developme n t Act, and that the respective holders were given 30 days within which to sho\,. cause why their licences should not be revoked. 3. 12. The Plaintiff ave rs th at on August a nd 12 th 2024, the said Small Scale License No. 7200 held by Marlex Investme nts Mining Limited \\'as cancelled al the time it was allegedly tra n sferred or given to BestGracle Min ing In vestmen ts Limited. 3.13. The Plaintiff avers that this dispute is n ot one of mineral rights but rather surface rights a nd tha t this Court docs have the Jurisdiction to adjudicate upon this matter. 3.14. The Plai n tiff further avers that this matter is deeply entrenched in the torL of trespass. 3. 15. The Defendants fi led an affidavit in rep ly Lo the affidavit in opposition to affidavit 1s support of Notice of Motion to ra ise Pre liminary Issues cla1cd September 17th , 2025 deposed by one Langsone Mukuma. 3. 16. The Defendants aver that they do not claim or assert ownership of the area cove red by the Exploration Licence Number 38563-1 IQ -SEL but deny that the Pla1n1iff has exclusive rights over the area as the area is Scanned with Ci CamScanner- subject of and covered by Small Scale Licence No. 7200-HQ-SM L owned by BestGrade Mining Inves tme nt Limited. 3. 17. The Defendants aver t hat the Pla intiff h as conceded that il holds no legal claim lo the a rea covered by the Exploration Licen ce No. 38563- HQ -SEL as the system does not reflect or recognise the Plaintiff as the own er of the said licence. 3. 18. The Defendants aver Lhal any activities co nducted h ave been un der the instructions a nd on behalf of BetsLGra d e Inves tment Limited who is the registered owner of Sma ll Scale Lice nce No. 7200-HQ-SML and Small Scale Lice nce No. 7142-HQ-SML. 3. 19. The De fe nda nts aver that S m all-Scale Lice nce No. 7200-HQ-S ML and Small Scale Lice n ce Number 7142-HQ-SML we re tra n s fe rred to BeslGrade Mining In vestments Limited on July 2 nd , 2025 a nd not the a lleged July 23 rd , 1997. 4. COURSE OF HEARING 4. I. The application was heard on Septe mbe r 18 th , 2 0 25 a nd both parties were present al the hearing. 4 .2. The Defendants abandon ed the seco nd question of law raised in the Notice of Motion a nd s taled Lh a l Lh ey w is h lo con centrate on the first question on Juri sd iction. 4 .3. The Defe nd an ts slated th at relia nce will be p laced o n the affidav it in s uppo rt and !isl of a uthorities a nd skele ton a rgu m e nts filed into Court Scanned with Ci CamScanner- on August 1 Sth , 202:i ,rnd the afficl..n 1t in reply and skeleton argunwnts filed into Court on St·ptt·mbcr J 7 111, 202:'>. •1.4. The Defendants submitted that the issues hert'm can on!) be rcsol\'l'cl b, the i\linislry of Lands through the Mining Appeals Tribunal and that even though this Court has the Jurisdiction to adjudicate upon mining rights concerning trespass, the ,Jurisdiction on ly comes in when the com plainant cnjo,·s surface rights acquired by O\\"ning license and in the case 111 casu, the Plaintiff docs not own the land . 4 5 In response, th e Plaintiff s tated that they filed a n affidavit in opposition a nd skeleton arguments on September 11 th , 2025 and stated that they wi ll rclv on the same. 4 .6. The Plaintiff submilled that the action has been commenced against the Defendant relating to trespass over land the Pl,unliff acquired consent to use from the Chief. 4.7. The Plaintiff submitted that the action is one of trespass and not competing licences and that the action for trespass is viable. •1.8. In reply, the Defendants submilled that the Plaintiff has no locus standi to take out these procccd111gs. 5 LAW AND SUBMISSIONS :1 I. The D< f< ncbnts filed skeleton argumc nts in support of its <1pphcation on St'ptcmbcr I J 1h, 2025. S 2 The Defc.:nclants sub111 1t that this Court l,1c k s the ,J urisd1ct1on lo t ntcrtain th<.: Plaintiff's claim ,ts 1t contains matters exdus1vt:I\' \\'ithin Scanned with Ci CamScanner- the jw·isdicLi on of the Minerals Regulations Commission c1nd the ivlming Appeals Tribunal under the Mineral Regulation Commission Act, 2024. 5.3. The Defendants submit th a t thi s Court h as the jurisdi ction lo hear and determine the Defendant 's prelimina ry issues. Re liance is placed on a plethora of a uthorities whic h I shall n ot reproduce as the same arc on record. 5.4. The Defendants submit tha t this Court lacks jurisdiction to entertain the Plain tifrs c la ims as the subject matter, the ownership and controllin g mining righ ts fall exclus ively under the jurisdiction of the Mines a nd Minera ls Regula tion Commission , the Mines Appeals Tribunal a nd th e Court of Appeal in that Order. 5.5. Placing rel iance on Sectio ns 5 (1), 78 (3) and 86 (6) of the Minerals Regulations Co mmissio n Ac t, 2 0 24, The Defend ants submit that the /\ct provides th e grievance and di spute resolution procedures where it comt:s to dea li ng with minin g righ ts a n d that Lhe Mining Appeals Tribunal is th e appropria te body for hea ring di s putes regarding mining rights and re lated matters. The Sections provide as follows; "There is established the Minerals Regulation Commission which is a body corporate with perpetual succession and a common seal, capable of suing ad being sued in its corporate name and with power subject to the prouisions of this act, to do acts and things that a body corporate may, by law, do or perform. " Scanned with Ci CamScanner· "The Tribunal shall have jurisdiction to hear and d e t e nnine (d) appeals from decisions of the Commission, or a p erson exercising the functions or power of the Commission; (e) proceedings relating to misconduct in the mining industry; and {f) Such other matters as may be specified in, or prescribe d in terms of this Act or any other written law. " "A person aggrieved with the decision of the Tribunal may, appeal to the Court of Appeal." 5.6. The Defendants submit that it is clear that the jurisdiction of the Mining Tribunal is exclusive and exhaustive in malters relating lo mining rights and the High Court has no role in adjud icating such disputes. 5.7. The Defendant's further submit that the Plaintiffs allcmpl to frame th is mauer as a simple trespass action is a deliberate e ffort to circumvent the ,Junsd ict1on of the Tribunal and improperly obtain an injunction from the Court. 5.8. In oppoc;1t1on, the Plain tiff filed ske leton a rguments in opposition on September I I 111 , 2025. 5.9 Tht Plaint iff subm its that Order 3 3 of the Rule s o f t h e S upreme Court o f E n g land dews not appl~ to the present c ircumstan ces as BcstGradc Mining ln \'cstment Limited, a n inte reste d party is not a purtv to these proceccl1ngs. Scanned with ~ CamScanner- :i I 0. The Platntiff submns that \\·hcthcr th is Court has Junsd1ction is anchored on BcstG rade's Small-Sca le Mi ni ng License No. 7299 - HQ - S£\IL and Small - Scale Mining License No. 7142 - HQ - SML but BcstGrade M111111g Invest men t Limi ted is not a party to the proceedings. 5. I I. In reply to the Plaintifrs opposition , th e Defendan ts subm it that m hght of the case of Antonio Ventrigrilia and Another v Fi nsbury Investments Limited SCZ Appeal No 2 of 2019 1 , a Court cannot make la\\'ful decrees in t he a bsence of j urisdic tion. 5. I 2. Placing re liance on the case of Citi Bank v Suhahyl Dudhia Appeal No . 6 o f 20222 , the Defendants submi t th a t a j urisdictional question must be raised at any s tage of p roceed ings e it her by formal a p plication or viva voce. 5.13. The Defend ants subm it th a t t he Plain tifrs concession that the Ministry of Mines records do not re flect them as holder of licence goes to the very root of this matter as the Plai ntiff docs not have a legal right or interest capablt.: of being affec ted. fi COURTS DECISION 6. I . I h;1ve had occr1s1011 Lo review and consider th e app lication, having hcmd Counsel for the Plaintiff ,rnd Counsel for the Defendants, rl'ad till' affida\'its, skclt·ton arguments and a u th oril!l'S cited by the p,lrllcs for \\'hich I am grateful. 6.2. The quest 1011 the Defendants raise 1s one of jurisdiction and one that must be attendee. I to as 1t is a tntc pnnc1pk of la\\' that a Court can onl\· Scanned with : Ci CamScanner-! ------------·······---------· hear and determine matt<.:rs t hat a rc wi th in its jurisd1ct1on The c.letcrm111at1on of t he same has a bearing on the inj u nction application. The issue for clcterm111atio n is re produced 111 2.3 above. fi.3 It 1s the Defendants contention that t h is Cou n as no Junsdiet10n to ,ldJu<licatc th is matter as 1t boarders on dcterm111at1on of ownership. boundaries and entitlement of m ining rights. T he Defend ants arc of the ,·1c,,· that although ca u se of act ion is trespass, the same cannot be determined m111us the Court pronounci ng itself on the issue to do ,,·nh m ining nghts. b . .:. I On perusal of the Plaintifrs S tate me n t of Clai m , it is the Plaintifrs claim that the Defendants have \\'ro ngfu lly/u nlawfully e ntered , occupied and conduct unauthorized act ivities in the area covered by Small-Scale Exploration Licence No. 38563-1 IQ-SEL, th e Licence \\'h ich t h e Plaintiff claims to be the la\\'ful holde r. 6 .5. The Court of Appeal 111 the case Konkola Coppermine PLC Appeal No . 74 o f 2 0 183 nghtl\' guided th at ma tlers re la tin g to m in eral righ ts and mining licences arc governed by the l\li n es Act whi le ma lters relating to su1face rights can be enforced by taking out a civil action. This position \\'as later affirmed in t he case of Ka lymnos Processing Limited and Ano ther v Konkola Copper Mines Appeal No. 74 of 20233. 11. (>. The Minera ls Regula tio n Com m ission Act provides fur a dispute n solution framc\\'ork The /\cl in Sec t ion 11 provides for the types of 111111111!~ nghts . I!-. folio\\ s: Scanned with : Ci CamScanner-! ------------·······---------· " 11. (1) The following mining rights may be issued under this Act: (a) an exploration licence; and (b) a mining licence". G 7. From the above pro\'isio n of the la \\', it is clear tha t mining licences / issu es to do wi th mining licences fa ll under mining rights. Furthermore, the dispute resolution procedure is embedded Sections 78, 84 a nd 86 which provide as follo\\'s: "78. (1) There is established the Mining Appeals Tribunal. (2) The Tribunal shall have an official seal which shall be judicially noticed. (3) The Tribunal shall have jurisdiction to hear and determine (a) appeals from decisions of the Commission, or a person exercising the funct ions or powers of the Commission; (b) proceedings relating t o misconduct in the mining industry; and (c) such other matters as may be specified in, or prescribed in law". terms of this Act or any other written "84. A person aggrieved with a decision of the Commission may, within thirty days of the decision of the Commission appeal to the Tribunal". "86. (6) A person aggrieved with the decision of the Tribunal may, appeal to the Court of Appeal". b .8 . 011 perusal of th e pleadi n gs and ev idence on reco rd, I a m of the view th a t th e Plaintiff has not s hown that t h ey have s urface rights but rather Scanned with Ci Ca mSca nne r- claim to have <l Small-Scale Exploration Li ce n ce over the .1rca 111 dispute. o.o. This 1s one such matte r m which the procedure provided in the Minerals Regulation Commission Act is to be followed as the claim OH'r the c1rca is based on a Small-Scale Exploration Licence and in dcterm i111ng whether the De fe nda nt has trespassed on the area; this Court will have to m terpn:t / look into th e Pla intiffs assertion that the Plain llff 1s the rightful licensee over the a rea \\'hich goes to a determinatio n of mining rights. De te rmination of the same lies \\·1th the M111111g J\ppea l Tribuna l. 6 10. For the foregoing, this Court does not h a ve the jurisdic tion to entertain the Plaintiff's act io n . I am fortified by th e a uthor ity in t he case of Antonio Ventriglia and Another v Finsbury Investments Limited Appeal No. 2 2019 1 in which it was guid ed that jurisdiction is indeed cvcrnh in g a nd out of nothing comes nothing. The proceedings Ml' improper!\' before me. o.11 I lav ing found as a bove, determining th e Plain t1ffs injunction appl1 cat ion becomes ot1ost . ·--------------------------- : Scanned with ! ii CamScanner- ·---------·-······----------- 7 . CONCLUSION 7.1. For the foregoing reasons, I HEREBY di smiss the Plaintiff's matter in its entirely as this Court lacks the req uisite jurisdiction Lo hear and determine the action. 7 .2 . For the avoidance of doubt, the inj u nction application and other app lications filed by both parties and a rc yet Lo be heard and determined in this matter fa ll for want o f j u r isdiction. 7.3. Costs to the Defe ndants lo be taxed in defau lt o f agreement. 7.4. Leave Lo appea l is granted. Delivered at Lusaka on the 12th day of December, 2025. REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA MiG.□EC /Q/5 •~ S. CHOCHO. J P. 0. BOX 50067, LUSAKA S. CHOCHO HIGH COURT JUDGE Scanned with Ci CamScanner-