Jonas Mwanza and Ors v Sable Transport Limited (2008/HP/0383) [2021] ZMHC 95 (3 August 2021)

IN THE HIGH COURT OF ZAMBIA 2008/HP/0383 AT THE PRINCIPAL REGISTRY.·· · - -. _,.. ,. ' ... •· ' O 3 AUG 2021 / HOLDEN AT LUSAKA l ,I (Civil Jurisdiction) BETWEEN: JONAS MWANZA 1 ST PLAINTIFF MICHAEL KUWANI AL i D OTHERS 2ND PLAINTIFFS AND SABLE TRANSPORT LIMITED DEFENDANT BEFORE THE HONOlf&::.i._. _£ LADY JUSTICE P. K. YANGAILO, IN OPEN COURT, ON 3RD r.t Y OF AUGUST, 2021. For the Plaintiffs: Mr. J. Katati- Messrs. Dove Chambers. For the Defendant: Mr. r M. Mutale - Messrs. F. M. Legal Pract it inners . ., T"QGMENT CASES REFERRED TO: 1. J ames Nyasulu and Others 11 ;.:,mkola Cop er Mines and 2 others - 200 7 / HP/ 12 86, unrep orted; 2. Dolomite Aggrega tes Limited · · · · N. Uhusha and 102 Others - 2 005/ HP/ 066 9; 3. Wilson Masauso v A vondale I-Jo11si11g Project Umited 3 (1 982) ZR 1 72; Jl I P c1 g e 4. A. K. Mazoka and others v L. P. Mwanawasa and Others (2005) Z. R, 13 8; 5. Zambia Railways Limited v Pauline S Mundia, Brian Sialumba; 6. Jennifer Nawa v Standard Chartered Bank Pie- 8. C. Z. No. 1 of 2011; 7. Donoghue v Stevenson (1932) AC 562; and 8 . Davies v Swan Motors Co (Swansea) Ltd (1949) 2 C. B. 291 . LEGISLATION REFERRED TO: 1. The Environmental Protection and Pollution Control (Environmental Impact Assessment Regulations, 1997 - Statutory Instrument No. 28 of 1997,· 2. The Mines and Minerals Development, Act No. 11 of 2015; 3 , The Environmental Management Act No. 12 of 2011; and 4 . The Mines and Mineral Act, Chapter 213 of the Laws a/Zambia. OTHER WORKS CITED: J. Phipson on El!ldence, Seventeent h Edition, (Thomson Reuters (Legal) Limited 2010. INTRODUCTION 1.1 This Judgment is in respect of the Plaintiffs' claims for damages occasioned to their properties and crops due to the Defendant's qua rrying operations in the Plaintiffs' area. 1.2 The m atter has been long outstanding on the active cause list having been presided over by numerous Courts before it was re-allocated to this Court, the consequence of which the delivery of Judgment has unavoidably been delayed. BACKGROUND J2 I Page 2.1 The background to this matter as gleaned from the Pleadings is that sometime in 2005, the Defendant started quarrying operations on a farm which is 1 to 3 kilometres from the area housing the Plaintiffs. Due to the quarrying and heavy blasting of stones, damage was caused to the Plaintiffs' properties and crops. It is against this backdrop that the Plaintiffs launched this action against the Defendant on 21st April, 2008, by way of Writ of Summons and Statement of Claim for the following reliefs: - 1. A n order that the Defendant compensates the Plaintiffs for all the damages caused to their property and crops; 2. An order that the Defendant ceases quarrying operations at Mrs. Mizinga Chita 's farm at Subdivision A of Farm] 99a, Shimabala area; 3. Damages fo r loss of income for the crops damaged by the heavy dust arising from quarrying operations; 4. Damages fo r loss of boreholes lost and destroyed as a result of quarry ing op erations; 5. Cos ts of and incidental to these proceedings; and 6. Any other relief the Court may d eem.fit. PLEADINGS 3.1 By their Statement of Claim, the Plaintiffs averred that the they are landlords and farmers on their small holdings in the Shimabala West area of Chilanga, in the Kafue District and that the Defendant is a limited J3 I Page liability company engaged in quarrying operations at a Sub Division A of Farm 199a Shimabala West since 2005. 3.2 The Plaintiffs averred that their houses are situated between 1 to 3 kilometres from the area that the Defendant was quarrying and that as a result of the heavy blasting of stones, their properties were seriously damaged; stones were thrown 1n the Plaintiffs homesteads; clouds of dust settled in their homes and on their crops; and caused damage to the boreholes. One of the Plaintiffs registered a complaint with the Defendant and requested it to stop quarrying in the area but he was ignored. 3.3 The Plaintiffs sought assistance from the Environmental Council of Zambia and consequently, by a letter dated 19 th February, 2007, the Defendant was advised to stop the qu a rrying operations as it was contravening environmental laws. The Plaintiffs averred that the Defendant was not licensed to engage in quarrying or blasting activities on the premises by the Environmental Council of Zambia or the Ministry of Mines. 3.4 Further, the Plaintiffs averred that Defendant admitted liability for the damages and advised the Plaintiffs to submit a valuation report to determine the extent of the damages caused but continued with the quarrying operations which continued to damage their homes, adversely affected the growth of the Plaintiffs' crops, J4 j Pa g C caused movement of borehole casings and affected the water table in the area which has rendered some boreholes to dry up. 3.5 By the Defendant's Defence filed on 5 th June; 2008, the Defendant averred that it had a duly executed lease agreement with Mrs. Mizinga Chita, with respect to Subdivision A of Farm 199a, Shimabala West area of Kafue District. The Defendant denied causing damage to the Plaintiffs' . properties and that the Plaintiffs registered a complaint with it. The Defendant averred that all its quarrying activities were done in accordance with the a pplicable laws and regulations and that contrary to the Plaintiffs' assertion that it was carrying out qu arryin g opera tions without approval, the Defendant was a uthorised by the Environmental Council of Zambia to sell off and dispose of all the crushed stones by letter dated 23rd April, 2008. EVIDENCE AT TRIAL 4 . 1 PWl was J ones Mwa nza, the 1st Plaintiff herein, who testified that th e Defendant was undertaking quarrying activities in 2004 at Subdivision A of Farm 199a, a n eighbouring property, belonging to Mrs. Malambo Mizinga Chita. According to PWl , the Defendant's method of quarrying was by way of extra cting rock from the ground using explosives , which resulted in heavy blasting that echoed up to 15 kilometres away. The effects of the blasts within the area were the shaking of JS I r age I • the ground, as well as PWl 's house; flying of rocks which landed on top of PWl 's house and farm stead; thick cloud of dust hovering over PW 1 's house which stuck to his roof; and emission of fumes from the explosives used. The said blasting occurred more than twice a day and without notice. 4 .2 It was PWl 's testimony that as a consequence of the Defendant's quarrying activities, his house developed numerous cracks on the floor and walls. The roofing sheets cracked as a result of stones landing on the roof; the ceiling board fell off; and the house started leaking profusely. The dust from the blasting activities led to the stunting of PWl 's crops, such as 2 acres of groundnuts, half an acre of tomatoes, Irish potatoes and a quarter acre of soya beans. PWl stated that from 2004, th e Defendant only stopped blasting in 2008 purs u a nt to the Court's injunction and that in each of those years he had to grow crops. 4 .3 PWl testified th a t h e h a d a bore hole, two wells and a hammer mill insta lled outside the p erimeters of his house and that th e borehole collapsed as a r esult of the movem ent of the ground due to blasting. As a consequence of the said movem ent of the ground, the borehole pump was damaged and PW 1 could not draw water. The blasting further r esulted in th e movem ent of the water table which resulted in the drying up of the wells, consequently affecting PW l's farming activities. JG I Page In August, 2015, PWl had to drill another borehole of 85 meters depth following the damage to the earlier borehole which costed him K33,000.00. 4. 4 PW 1 stated that his hammer mill was affected by blasting and cracks developed at the foot of the hammer mill rendering it non-operational and requiring it to be removed completely from the premises. Other effects of the blasting were the collapse of the sewer tank, pit latrine and servant's quarters. The shaking of the ground left the foundation to PWl 's house destabilised and the roof of the house slanted. 4 .5 Having suffered the effects of the blasting, PWl wrote a letter of complaint dated 6 th June, 2016, to the Defendant to inform it of the damage that the quarrying activities were causing to his property, farming activities and consequential loss of income. PWl referred to page 1 of the Plaintiff's Bundle of Documents containing the said letter. 4.6 PWl stated that after this letter was delivered to the Defendant, he r eceived four visits at his home from four employees of the Defendant company who came to inspect the damage caused to his house. However, despite doing so, the Defendant continued its blasting activities. In 2008, PWl sought the intervention of the Environmental Council of Zambia, now Zambia Environmental Management Agency ("ZEMA") by letter dated 28th April, 2008, copy of which was exhibited at J7 I Page page 30 of the Plaintiffs Bundle of Documents. In response, ZEMA wrote to the Defendant on 19th February, 2008, de1nanding the Defendant to avail its Environmental Project Brief and give reasons why its operations should not be suspended. The Defendant continued its quarrying activities and on 25th January, 2008, some employees of the Defendant company went to the area where they carried out assessments of each housing unit and buildings on the farmstead. A report was prepared, copy of which is exhibited on pages 5, 6, 7 and 8 of the Plaintiffs Bundle of Documents. Following this report, the Plaintiffs were informed by the Area Development Committee that the Defendant had accepted liability. The Defendant, through its representative, verbally requested PWl and the rest of the Plaintiffs to quantify the damages in monetary terms before they could consider compensating them. 4. 7 PW 1 and the rest of the Plaintiffs engaged a Quantity Surveyor to assess the value of the damage in monetary terms and prepare a report. A copy of the said report was shown at page 10 of the Plaintiff's Bundle of Documents. PWl testified that three assessments were made and that the most recent one was done in September, 2010 and a copy of the report of that assessment was shown in the Plaintiffs' Supplementary Bundle of Documents. It was PWl 's testimony that the quarrying stopped following a Court injunction and the Defendant had since relocated from the site. JS I p cl g ~ 4.8 During cross-examination, PWl testified that he started staying at his 10-acre farm in Shimabala Fl 19A with his family in 2003 and that he started farming in the late 90's. He stated that he sank his borehole in 2003 and that before that, he depended on the rain water for irrigation of his crops. PWl stated that in 2002 he produced 250 bags of maize on 6 acres of land but conceded that he did not have documentation to prove this fact. PWl further stated that due to the lapse of time, he had no documents before Court to show that the seed that he bought between 2003 and 2008 did not germinate. Furthermore, it was PWl 's testimony that h e did not obtain an expert report to show that quarrying would affect germination nor that the blasting a n d quarrying activities were above the recommended li m its. 4. 9 PW 1 testified tha t at the time his house developed cr acks, it was already completed and he was living in it. He conced ed that according to the report prepared by the Defendant and shown at page 7 of the Plaintiffs' Bundle of Documents, there was no mention of damage to the borehole or of the two wells. He stated that the hammer mill was not damaged a t the time that the report was pr epared. Further, PWl stated that the recommendations on the repairs required to be made to his house did not include the hammer mill as the damage to the base of the hammer mill . were only observed after the blasting had stopped in 2008. It was Jg I r age PWl 's testimony that the assessment contained in the Plaintiffs' Supplementary Bundle of Documents included the damaged borehole but that he did not have documentation to show that he spent K33,000 .00 to drill another borehole. PW 1 confirmed that the amounts indicated on the reports had no quotations attached to them but were based on the quantification at the time. 4.10 In Re-examination, PWl stated that ZEMA came to know of the quarrying activities through a letter from the Plaintiffs and their discussions with officials from ZEMA. PW 1 testified that the findings on pages 6 to 7 of the Plaintiffs' Bundle of Documents were made by the Defenda nt. 4. 11 PW2 \Vas Mich ael Kuwani, one of the Plaintiffs herein whose testimony was similar to that of PWl in material particular. He testified that his family suffered damages in Shimaba la at his home on Farm 199 Subdivision D. According to his testimony, the land was purchased in 2003 and a house was built on it which was located about 300m away from the quarry site. As a consequence of the blasting, PW2 noticed that the concrete on the foundation of his house was splitting from one end of the house and that the crack was about 19 meters long. The kitchen developed minor cracks and more cracks could be seen up the wa lls in all the rooms of the house. The window panes h a d cracks and J10 I P age the dust from outside entered all the rooms of the house. 4.12 PW2 called experts from Tridrill Company who determined that the borehole at his house had collapsed and that it needed re-drilling, re-casing and deepening. Tridrill Company confirmed that the tremor from underground caused the borehole to collapse and subsequently the disappearance of the water. Between 2007 and the first quarter of 2008, Tridrill Company re drilled and re-cased the borehole. They were able to strike some water but the borehole suffered another collapse and could not yield any water despite several efforts. 4.13 PW2 stated that in 2008, his servants' quarters had developed cracks. He further stated that 6 other farmers surrounding the quarry suffered similar damage to their properties and they launched a complaint to the Area Development Committee, who summoned the Defendant. The Defendant undertook inspections at the Plaintiffs' premises and produced a report on the damage caused to the Plaintiffs' houses. 4.14 It was PW2's testimony that the Defendant admitted liability for the damages in issue and requested the Plaintiffs to find a Quantity Surveyor to quantify the damages 1n monetary terms so that it would compensate them. The Plaintiffs found a Surveyor and seven houses in the area, which included that of the J11 IP a ge Plaintiffs herein, were assessed and a report was submitted to the Defendant in 2008. Due to further deterioration that followed after the first report was produced, a second report was prepared by the same Quantity Surveyor in 2010 and submitted to the Defendant. The said report was produced 1n the Plaintiffs' Supplementary Bundle of Documents. 4.15 PW2 testified that when the Plaintiffs followed up on the report and the Defendant's assurance that it would pay for the damages suffered by the Plaintiffs, the response was not favourable. As a consequence, PW2 and the Plaintiffs made further inquiries to ZEMA. The quarrying activities continued until the ZEMA officers visited the Defendant's quarry and informed it that as it was operating without authority from ZEMA it would be prosecuted. To that effect a letter dated 10th July, 2008 was sent to the Defendant by ZEMA, a copy of which was produced a t page 24 of the Plaintiffs' Bundle of Documents. ZEMA granted the Defendant permission to blast the explosives that had already been set for the safety of the community. Later, the Defendant continued conducting its quarrying activities. The Defendant stopped its quarrying activities only when ZEMA visited it and threatened to take its equipment. An injunction was granted against the Defendant and all the quarrying activities ceased. J12 I P ag e 4.16 During cross examination, PW2 testified that the he did not have an expert report to show that the blasting by the Defendant caused damage to his house. He stated that the report of 2008 and that of 2010 with respect to his house did not have quotations for the costs captured and for the costs of the repairs to his borehole. PW2 further conceded that he did not produce photos showing the damage in issue. He testified that the letter on page 28 of the Plaintiffs' Bundle of Documents indicates that ZEMA would take legal action if the Defendant did not adhere to its requests but that though the quarrying continued, ZEMA did not take legal action against the Defendant. 4 .17 In Re-examin ation , PW2 testified that the Small-Scale Min ing Licen se produced at page 1 of the Defendant's Bundle of Docu1nents did not indicate where the mining would take place . He testified that the report on page 7 of the Plaintiffs' Bundle of Documents concerning the ins pection done on the Plaintiffs' properties was prepared by the site manager of the Defendant company. 4.18 PW3 wa s Christopher Mwasile of Farm l 99a/ Subdivision A/ Subdvision 1 / Subdivision P, Lusaka, one of the Plaintiffs h erein . His testimony was generally similar to that of PWl and PW2, save for the extent of the damage to his property. He testified that he had been on the said property since 1995, which J13 I P age property was located in Shimabala West of Kafue District and was 25 acres in size. 4.19 With respect to the damage to the structures on his farm, PW2 testified that he started noticing cracks and separation of the roofing sheets, especially on the ridges to the structures on his farm. He stated that he had a 3-bedroomed house that he built in 2002 and that after the blasting activities, the house had cracks that traversed three walls across his house; a crack on the floor of his living room; and separation of the wall from the ceiling. 4.20 With respect to the two-bedroomed house on his property, PW3 testified that there was a crack in the living room floor. In the chicken run, vertical cracks had developed on the extreme western side and that the roof had separated from the nails that held them together. In 2008, PW3 noticed that his borehole which was sank at 55m in 1997, had suddenly collapsed and as a consequence, he could not get any water from it. After the collapse of the borehole, PW3 could not continue with farming horticultural crops as the pump could no longer sustain his drip irrigation. 4 .21 Following these developments, PW3 consulted his neighbours PWl, PW2, Mr. Mabuti and Ms. Joyce Tembo and they confirmed that they were also expenenc1ng the same effects from the blasting activities of the Defendant. PW3 testified that through J14 IP ag e the Area Development Committee, they contacted the Defendant and the Defendant instructed one of its employees to conduct an inspection of the houses. A report was produced and its contents listed the damages to 7 housing units which included that of PW3 and the rest of the Plaintiffs. 4.22 According to PW3's testimony, the report did not accurately depict the damage to his house as the distance from his house to the quarry was not correct and the separation of the roofing sheets, the crack on the chicken run floor and the collapse of the borehole were not captured. 4.23 PW3 stated that after the report was prepared, he was informed by the Area Development Committee that the Defendant had accepted liability for the damage caused to th e h ou ses a nd had requested for the monetary value of the d a mage caused to the Plaintiffs' structures. As a follow up, a letter shown at page 9 of the Plaintiffs' Bundle of Documents, dated 6 th February, 2008, was sent to the Defendant requesting the Defendant to confirm in writing that it had accepted liability and was ready to compensate the Plaintiffs upon confirmation of the monetary value of the damage caused to the Plaintiffs' houses. An assessment was made of the monetary value of the damage caused to each house and a report was prepared in 2008, which was subsequently submitted it to the Defendant. After the report was JlS IP age subn1itted, the Defendant did not meet PW3 and the rest of the Plaintiffs nor honour its commitment to compensate the Plaintiffs. 4.24 PW3 and the rest of the Plaintiffs sought the intervention of ZEMA to establish whether the Defendant's had authorised the quarrying activities and it was determined that the Defendant was not authorised to do so. The Defendant continued their quarrying activities and only stopped after an injunction was entered against it. 4.25 PW3 stated that the report that was prepared in 2008 did not capture the damage to his borehole but that the report of 2010 captured it due to the progressive damage caused by the Defendant's quarrying activities. 4.26 During cross examination, PW3 testified that though the report in the Plaintiffs' Supplementary Bundle of Documen ts refers to the area in question being a dambo, a ll the Plaintiffs lived in the uplands away from the dambo . It was PW3's testimony that Mr. Mwanza, the Quantity Surveyor was only engaged to assess and quantify the damages and that he was told that the irresponsible blasting was done by the Defendant. PW3 stated that the area was agricultural zoned and that aside from the Defendant, there were other quarry companies coming up. 4 .27 PW3 conceded that he did not have any documentation to demonstrate that he was doing horticultural activities J16 I P age at his farm and did not obtain quotations for the value of the boreholes which were shown in the report contained in the Plaintiffs' Supplementary Bundle of Documents. He further conceded that the Quantity Surveyor who prepared the reports in 2008 and 2010 did not provide any details of his experience with blasting, if any. 4.28 In Re-examination, PW3 testified that he did not carry out any scientific research on his property to determine the cause of the damage to his property and that when he built his house in 2002 , there were no cracks to the structure. He stated that the cracks only developed after the bla s ting and shaking of the ground. With res pect to the cost of replacing the borehole being pegged at K72,7 50.00 by the Quantity Surveyor, PW3 stated that th e s aid price appeared to have been an a verage valu e \>..7hich included the borehole itself, the pump a nd its accessories. 4 .29 PW4 was Michael July Makaila, one of the Plaintiffs h erein , who is a blind farmer residing at Shimabala F / 199A, Lusaka. He testified that when he went to live in Shimabala in 1995, there was no quarry and that he built his house in 1997. He stated that in 2004, at a time when his vision was not impaired, h e heard blasting from the Defendant's quarry which was about 900 meters from his house and saw stones flying, which later caused his house to shake and subsequently J17 I P ag e caused the ring beam to his house to loosen. PW4 also noted that the well that he used to draw water from had also collapsed. Together with his neighbours who lived about 900m from the quarry site, PW4 confronted the Defendant and thereafter they reported the matter to the Area Development Committee as the houses were being damaged. 4.30 PW4 stated that the Area Development Committee approached the Defendant who in response told them that they would send some people to assess the damages. When the Defendant's employees and a representative of the Area Development Committee assessed the damage to PW4's house, they noted that . the flo or of his house and roof were cracking but did not compe n sate him or the rest of the Plaintiffs . .. .,, 4.3 1 Du ring cross-examination, PW4 testified that he did not produce a copy of the plan for his house before Court nor did h e obtain a fitness and occupancy certificate with respect to his house. Further, PW4 conceded that he did not submit proof of his agricultural activities before and after the quarrying operations. PW4 further conceded that he did not have proof of the quality of the well that collapsed before the Court. It was P\V4's testimony that the Defendant continued its quarrying activities even after the injunction was issued and that he was not aware of the mining license exhibited on page 1 of the Defendant's Bundle of Documents. J18 I Page • 4.32 PWS was Beauty Joyce Tembo, who resides at Shimabala West F / 191, Lusaka. She testified that her house is near the quarry and that in 2004, the Defendant during its quarrying activities would make_ loud noises such that she could see smoke going up in the sky three times a day. As time went by, PWS noticed that her house had developed cracks and when she consulted her neighbour to determine if they were experiencing the same, she was told that it was caused by the Defendant's blasting. 4.33 PWS testified that together with her neighbours, she lodged a complaint with the Area Development Committee. The Committee met with the Defendant and res olved to assess the damages to PWS 's house and that of h er n eighbours who had similar problems. After the assessment was done, the Committee informed PW5 and her n eighbours that the Defendant had agreed to compen sate them one house at a time. PW5 stated that the Defendant gave her K2,000,000.00 (unrebased) for the repairs to her house which she signed for. 4.34 After a few days, PWS inquired from the 1st Plaintiff as to whether he too had been given money for repairs to his house and he told her that he had not been given any money. PWS attempted to mend her house with cement but the cement kept falling out and that to date the cracks on her house are still there to date. Jt9 I Pa g f' • 4.35 During cross examination, PWS stated that she did not provide quotations for the value of the damages to her house reflected in the Quantity Surveyor's Report. Further, PWS stated that the a1noun t she received was not enough to compensate her for the damages to her house. 4.36 In Re-examination, PWS stated that the Area Counsellors were present when she received the money from the Defendant . 4.37 PW6 was Catherine Nachangwe Mukumba, the Principle Inspector at ZEMA, whose role at the Agency is to conduct inspections of various projects within the country and to review Environmental Impact Assessments Reports. She testified that the matter before this Court came to ZEMA's attention in 2007, wh en ZEMA received complaints from members of the Shima ba la Community. The complaints were that they were suffering from the effects of the operations of the Defendant Company, such as noise, dust and blasting which had caused cracks to their buildings and structures. ZEMA inspected the quarry site and wrote to the Defendant to notify them to conduct an Environmental Impact Assessment as quarrying activities require such an assessment to be conducted before it can begin. PW6 referred the Court to page 2 of the Plaintiffs' Bundle of Documents containing the letter J20 IP age requesting the Defendant to avail its Environmental Impact Assessment Report. 4.38 PW6 stated that once an Environmental Impact Assessment is done, a report referred to as an Environmental Project Brief (EPB) is produced by the developer and submitted to ZEMA. ZEMA reviews the EPB and as part of its review, ZEMA visits the site to verify what is written in the report. Another component of the review process is consulting different stake holders such as the local authority, the traditional leadership (if the land is customary) and other affected or interested parties. In the case of interested parties, such a s a community, ZEMA, the developer and members of t he community hold a meeting in which the m em bers of the community air their views before the d e\·elopmen tal activities can take place. The views of the stakeholders , including the community, are taken into consid eration before a decision on whether to allow the project to commence or not is made. 4.39 PW6 sta ted tha t the Defendant herein did not respond to ZEMA's letter and continued to operate illegally, thus the complaints continued. Another letter was written to the Defendant company dated 10th July, 2 009, as shown at page 24 of the Plaintiffs' Bundle of Documents, which directed the immedia te suspension of all activities at the Defenda nt c01npany . J21 I P a ge 4.40 The Defendant produced a draft EPB and submitted it to ZEMA, which ZEMA proceeded to review. Following the review of the EPB, a decision was made to have the project conditionally approved. PW6 stated that the activities are only considered illegal if the Defendant only has a mining licence but no authority from ZEMA. 4.41 During cross examination, PW6 testified that she did not participate in the activities conducted by ZEMA and that her testimony was based on the records at ZEMA. She further stated that she joined ZEMA in 2009 and that she had never visited the site in question before. PW6 stated that the letter on page 2 of the Plaintiffs' Bundle of Documents addressed to the Defendant from ZEMA did not close the Defendant's operations but was a demand for an Environmental Project Brief to be submitted. She stated that the letter to the Defendant company suspending its operations produced at page 24 of the Plaintiffs' Bundle of Documents gave the Defendant an opportunity to propose the means with which it would cure the impact that its operations had on the community. That the Defendant made the proposal on how it would cure the impacts, which was approved by ZEMA. 4.42 PW6 was not aware of any penalty that the Defendant was made to face and that there was no report from ZEMA to the effect that the Defendant had caused environmental damage in the area. Further, PW6 J22 I P a ge testified that the Defendant's quarry operations were eventually approved by ZEMA. 4.43 In Re-examination, PW6 stated that there were two activities that were approved by ZEMA. The first was that the Defendant was permitted to proceed with blasting as it had already inserted explosives in the drilled holes which was therefore a safety hazard to the community. The second activity permitted was the disposal of the crashed stones and rubble as the Defendant only needed to transport this material which activity had minimal impact on the environment. 4.44 This marked the close of the Plaintiffs' case. 4.45 When the Defence opened its case, Counsel for the Defendant made an application for an adjournment as the intended witnesses were not before Court. Counsel s ubmitted tha t his Co-Counsel who had conducted the pre-trial briefing with the intended witnesses had been taken ill and that the said witnesses were not before Court with one of them being out of town. The application was objected by the Plaintiffs. At its last sitting, the Court had cautioned the parties to have all their witnesses present on the return date, as it would not entertain any further applications for an adjournment. Being dissatisfied with the reasons advanced in support of the application for an adjournment, I dismissed the application and deemed J23 I P a ge this matter closed. I then directed the parties to file their final submissions within a specified period. SUBMISSIONS 5.1 With leave of the Court, the Plaintiffs filed their final submissions out of time on 10th December, 2020. Counsel for the Plaintiffs submitted that by the evidence on record, the Defendant company commenced quarrying activities in Shimabala area in 2004 near the Plaintiffs' properties. It was further submitted that the Plaintiffs by their testimonies had established that the Defendant's quarrying activities were illegal and against the procedure provided for in the Laws of Zambia as they had not submitted an EPB to the Environmental Council of Zambia before commencing its operations. Counsel cited Clause 3 of The Environmental Protection and Pollution Control (Environmental Impact Assessment Regulations)I in support of the foregoing submission. 5.2 Counsel contends that the schedule to the above Regulations requires the developer to undertake an EPB b efore commencing the project for mining and mineral processing, reduction of ores, minerals, cement and lime kilns. She cited Section 12 of The Mines and Minerals Development Act2 and Section 29 of The Environmental Management Act3 and submitted that the Defendant was in serious breach of the aforesaid provisions when it started conducting its quarrying J24 I P age operations before submitting an EPB to the Environmental Council of Zambia, which fact was supported by the evidence of PW6. 5.3 Counsel further submitted that the Defendant had no mining license to operate a quarry mine in the Shimabala West Area of Kafue District and that the Small Scale Mining License produced by the Defendant on page 1 of its Bundle of Documents did not in any way indicate the mining area in which the Defendant was to conduct its mining operations as it did not have a plan attach ed to it. 5 .4 Furth erm ore, Counsel submitted that all the Plaintiffs testified that th eir houses were intact before the Defendant began its quarrying activities and that it was only after the Defendant started its operations that they experien ced su dden dan1age to their properties. Based on th e foregoing, it was contended by Counsel that the d a m age suffered by the Plaintiffs was a direct consequ ence of th e Defendant's illegal activities in Shima bala West Area. 5 .5 Counsel contended that though the Defendant paid PW5 the sum of K2 ,500,000.00 a s shown on page 3 of the Defenda nt's Bundle of Documents , being compen s ation for the damage caused to h er house as a result of th e Defendant's blasting, PW5's house wa s not the only house that suffered damage . Counsel submitted tha t the since the Defendant had admitted J25 I P age • causing damage to PW5's house, this Court should hold the Defendant liable for the damage occasioned to the Plaintiffs structures, boreholes and crops. Counsel also submitted that the Defendant's conduct in availing its employees to conduct an inspection of the Plaintiffs' houses, further demonstrated that the Defendant admitted liability and was responsible for the damage suffered by the Plaintiffs. 5 .6 Counsel cited Section 87 (1) of The Mines and Minerals Development Act2 and the case of James Nyasulu and Others v Konkola Coper Mines and 2 Others1 in support of the submission that the Defendant should be held liable for the damage suffered by the Plaintiffs as a result of its actions. She implored this Court to find the Defendant liable for the damage occasioned by its operations and order adequate compensation to the Plaintiffs. 5.7 By the Defendant's Bundle of Documents filed on 16th December, 2020, Counsel for the Defendant submitted that there was no expert report tendered by the Plaintiffs linking the alleged damage to the properties of the Plaintiffs to the blasting at the Defendant's quarry. Further, it was submitted that there was no site visit conducted to enable the Court and the parties view the damage nor pictures placed before Court to show the alleged damage to the properties and crops. Counsel contends that the assessm ent reports produced by Mr. J26 I Page K. C. Mwansa, the Quantity Surveyor, did not have attached invoices of quotations to support the Plaintiffs claims and that all the Plaintiffs' houses were within the range of 1 to 3 kilometres from the site. 5.8 Counsel contends that the main issues for determination before this Court are as follows : - a) Whether the Defendant had the n ecessary authority to operate the kind of mining that it engaged on the area in issue; and b) Whether the Plaintiffs have adduced enough evidence to prove that the alleged damages to the properties and crops were caused by the blasting from the Defendant's quarrying activities. 5. 9 In a ddressing the first issue outlined above, the Defend a nt's Counsel submitted that the Plaintiffs had not addu ced any evidence to challenge the validity of the Defendant's Mining Licence produced at page 1 of the Defendant's Bundle of Documents. Counsel cited Section 34 of The Mines and Mineral Act4 which prescribes the rights of a holder of a Small Scale Licence and Section 56 (1) of the same Act which prescribes restrictions on the exercise of the rights conferred under the said Act. On the strength of the foregoing authorities, Counsel contends that the Pla intiffs' houses were a bout 1 to 3 kilometres away from the mining area which distance is beyond the prescribed 18 0 metres and th at the farming a rea was more than 40 m etres from the J27 I P a ge mine. Counsel further submitted that the Defendant's quarrying activities were eventually approved by ZEMA as evidenced by PW6's testimony. 5 .10 Counsel pointed out that the issues raised in this matter occurred between 2003 and 2008 and that therefore, the Laws that should be applied is the law in existence at that time and not The Mines and Minerals Development Act3 and The Environmental Management Act4 cited by the Plaintiffs' Counsel as these were not in existence at the time. Counsel cited Regulation 35 of The Environmental Protection and Pollution Control (Environmental Impact Assessment Regulations1 and argued that it provided for rem ed ial costs for the failure of a developer to provide a n EPB . That th erefore, the Plaintiffs cannot rely on the alleged illegality for compensation without adducing evidence of cau se and effect. It was Counsel's contention th at ZEMA did not adduce any evidence of d a mage to the environment. That it was for ZEMA to assess the d amage and not thir d parties as ZEMA could rem edy th e d amages and claim reimbursement from the d eveloper pursuant to Regulation 35 cited above. 5.11 Counsel also submitted th a t the la w a t the time did not even make a cquisition of a project brief by a d eveloper a prer equisite to starting mining activities and as such, the op er a tions of the Defendant a t the time were not illegal as it ha d a rnining licen ce. J28 I P age 5.12 In addressing the second issue outlined above, Counsel submitted that the Plaintiffs had failed to prove their claims in that there was no expert report or professional evidence adduced to show a causal relationship between the blasting and damage in issue. It was further submitted that there was no evidence to prove that the blasting was in breach of any condition required by the Defendant to comply with. Furthermore, Counsel submitted that the Defendant's Supplementary Bundle of Documents consisted of an expert report from the Mines Safety Department showing that the operations of the Defendant were within the law. In support of his s ubmissions, Counsel cited the case of Dolomite Aggregates Limited v C. N. Lihusha and 102 Others2 for its persu asive value in that, the Court therein rej ected claims for compensation due to the failure to prove any causa l link and for lack of expert report to prove the claims of the neighbours. 5 .13 Finally, Coun sel cited the cases of Wilson Masauso v Avondale Housing Project Limited3 and A. K. Mazoka and others v L. P. Mwanawasa and Others4 in support of the submission that the Plaintiffs had lamentably failed to establish their clain1s against the Defendant a nd that their claims ought to be dismissed with costs in favour of the Defendant. DECISION OF THE COURT J29 I r age 6.1 I have considered the Pleadings, the evidence adduced before me, as well as the submissions by both Counsel and authorities cited, for which I am gra teful. The Plaintiffs' claims, inter alia, are for orders directing the Defendant to compensate the Plaintiffs for the damage caused to their properties and crops; damages for loss of income from the crops that were spoilt by the heavy dust; damages for the loss and destruction of boreholes; and one directing the Defendant to cease its quarrying operations at Farm 1 99a Shimabala area. 6 .2 It is s ettled la w that a person who commences a civil action must prove his case against the Defendant in order to su cceed in his claim. To that effect, the learned a uthor s of Phipson on Evidence1, in paragraph 6-06, at page 151 , s ta te the following regarding the burden of proof in civil cases: - "So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when the evidence is adduced by all parties, the party who has the burden has not discharged it, the decision must be against him." 6 .3 Additionally, the standard to which a Plaintiff should prove his case was discussed by the Suprem e Court in Zambia Railways Limited v Pauline S Mundia, Brian Sialumba5 as follows: - "The standard of proof in a civil case is not as rigorous as the one obtaining in a criminal case. Simply J30 I P age stated, the proof required is on a balance of probability as opposed to beyond all reasonable doubt in a criminal case. The old adage is true that he who asserts a claim in a civil trial must prove on a balance of probability that the other party is liable ... " 6.4 The facts, in the case at hand, alleged by the Plaintiffs are that in 2004, the Defendant illegally commenced quarrying operations at Farm 199a Shimabala area near the Plaintiffs' properties. As a consequence of the Defendant's quarrying operations which were characterised by h eavy blasting two to three times a day, the Plaintiffs' structures on their farms developed cracks, separation of roofing sheets from the main structures, the collapse of boreholes and damage to the crops due to the h eavy dust that settled on them. The Defendant on the other hand contends that it was not conducting its quarrying operations illegally as it had been issued with a Small Scale Mining License with respect to the area by the Ministry of Mines. Further, the Defendant contends that its quarrying operations did not cause the damage to the Plaintiffs' properties and crops and as such it was not liable to compensate the Plaintiffs. 6.5 On my analysis of the evidence on record, I find that the points for determination are whether the Plaintiffs h ave proved on a balance of probability that the Defendant was conducting its quarrying operations illegally and if so what consequences, if any, must visit the Defendant; J31 I P age " and whether the Defendant's quarrying activities was the major cause of the damage occasioned to the Plaintiffs' properties and crops. 6. 6 I shall begin by addressing the first issue of whether the Plaintiffs have proved, on a balance of probability, that the Defendant was conducting its quarrying activities illegally. According to the testimonies of PW 1, PW2 , PW3, PW4, PWS and PW6, the Defendant began its quarrying activities illegally as it did not comply with the prescribed legal requirements before it commenced its quarrying activities. It was further contended that the Def end ant did not have a Mining License issued from the Ministry of Mines for its operations. 6.7 By the Plaintiffs' final submissions, Counsel cited a number of provisions which the Defendant is said to have violated when it started its quarrying activities in the a r ea. The Plaintiffs cited Section 12 (2) of The Mines and Minerals Devel?pment Act3 and Section 29 {l) of The Environmental Management Act4, which provide for the requirement for an environmental impact assessment to b e conducted by ZEMA before a developer undertakes mining activities and that projects that may have an effect on the environment require the written approval of ZEMA, respectively. As correctly pointed out by the Defendant m its submissions, the aforementioned Acts of Parliament were enacted in 2015 and 2011. They were therefore not in existence when J32 I P a g '-" the cause of action in this matter arose. Accordingly, I find that the aforesaid provisions are not applicable to the issues for determination before this Court. The foregoing position is fortified by the case of Jennifer Nawa v Standard Chartered Bank Pl& in which the Supreme Court held as follows: - "It is trite law that unless expressly stated, a law does not operate retrospectively." 6 .8 The Plaintiffs' Counsel also cited Clause 3 of The Environmental Protection and Pollution Control {Environmental Impact Assessment) Regulations1 as follows: - "(1) A developer shall not implement a protect for wh_ich a proiect brief or an environmental impact statement is required under these Regulations, unless the project brief or the environmental impact statement has been concluded in accordance with these regulations and the Council has issued a decision letter . (2) The requirement for a project brief applies to- (a) a deQf!.loper of any protect set out in the First Schedule whether or not the developer is part of a previously approved project; (b) any alterations or extensions of any existing project which is set out in the First Schedule; or J33 IP age • (c) any project which is not specified in the First Schedule, but for which the Council determines a project brief should be prepared." (Court's emphasis) 6.9 The Plaintiffs' Counsel went on to add that the aforementioned regulations included quarrying operations among the projects that require an EPB to be produced by a developer, in this case the Defendant, before the commencement of a project. 6.10 On my analysis of the aforementioned Clause 3 of The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations1, (which piece of law was 1n force before the commen cement of the Defendant's activities complained of by th e Plaintiffs herein), the testimonies of the Plain tiffs ' Witnesses and the documentary evidence on record , I a m satisfied that the Def end ant herein breached the foregoing provisions when it commenced its quarrying operations without conducting an Environmental Impact Assessment and producing an EPB. 6.11 It has further been contended by the Plaintiffs that the Defendant was conducting quarrying activities illegally as it did not have a Mining License issued with respect to its quarrying activities in the area. The Plaintiffs argued that the Small Scale Mining License produced at page 1 of the Defendant's Bundle of Documents did not J34 IP age • have an attached plan to clearly show the specific area to which it related. On my analysis of the said Small Scale Mining License, I find that though the License issued to the Defendant, was valid for 5 years from the 3rd of February, 2003 and refers to a plan, the said plan was not attached to the said license nor was a description of the quarry site (Shimabala West Area of Kafue District) indicated thereon, making it impossible for this Court to determine whether or not it was issued with respect to the area in question. 6.12 In support of the Defendant's contention that the said license was issued with respect to the land in question, a t trial , a receipt dated 26th March, 2008, was shown at page 2 of the Defendant's Bundle of Documents, which indica ted th a t the Defendant had paid a sum of Kl8,000 .00 for the renewal of a License to the Ministry of Mines. Though this receipt indicates that it was in respect to a renewal of a License, it does not provide information as to whether the License that was being renewed was with respect to one that was issued for the quarry site in question. Therefore, I am inclined to agree with the Plaintiffs and find that the Defendant at trial did not provide sufficient evidence to discredit the Plaintiffs' allegation that it did not have a Small-Scale Mining License issued with respect to the quarry site in question. Accordingly, I find that the Plaintiffs have proved on, a balance of probability, that the Defendant J35 I P a g e • did not have appropriate legal authority to commence quarrying operations at the site in issue. 6.13 The consequences at law of the Defendant's illegal quarrying, as found in the preceding paragraphs are specified in the offended piece of law concerned under Clause 34 (1) (g) of The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations 1 as follows: - "(1) Any person who- (g) otherwise fails to comply · with these Regulations; shall be guilty of an offence and shall be liable, upon conviction, to a fine not exceeding five hundred and fifty-six penalty units or to imprisonment for a period not exceeding one year or to both." • 6 .14 Further Clause 35 (1) of The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations1 makes it mandatory for any person that breaches the regulations to undertake corrective measures. It is couched as follows: - "The remedial costs of any environmental damage caused through the violation of any provision of these Regulations or any conditions or requirements made as part of the approval of any project under these Regulations, shall be the responsibility of the person responsible for the violation." (Court's emphasis) J36 I P age 6.15 Going by the aforesaid provisions, any injury suffered by the Plaintiffs, as resulted of this illegality on the part of the Defendant, ought to be atoned for by the Defendant to the Plaintiffs. There is nothing else more that the Plaintiffs are required to establish in relation to the Defendant's illegal quarrying apart from injury occasioned to their properties in order for them to recover damages from the Defendant. I will return to this issue of injury after consideration of the second issue for determination, as identified in 6 .5 above. 6.16 I now turn to consider the second issue of whether the Plaintiffs have proved, on a balance of probability, that the dam age caused to their properties and crops was m ainly caused by the Defendant's quarrying operations on th e s ite and that the Defendant is liable to compen sate them for their injuries and losses. 6 . 17 Clause 35 (1) of The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations 1 , which is reproduced in paragra ph 6 . 14 above, entails that an entity or person must be found to have violated a regulation which results in environmental damage before they can be held liable to bear the costs of reparation under the foregoing regulations. 6.18 According to the case of Masauso Zulu v Avondale Housing Project Limited3 the Supreme Court held as follows : - J37 I rag(' • " ... where a plaintiff... makes any allegation, it is generally for him to prove the allegations. A plaintiff who has Jailed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case." 6 .19 Based on the foregoing authority and as already alluded to above, the burden of proof lies on the Plaintiffs to prove, on a balance of probability, that it was the Defendant's quarry operations that led to the damage and loss of their properties and crops. 6.20 Accord in g to the testimonies of PWl , PW2, PW3, PW4 and PWS, th eir uncontroverted and consistent evidence is that they all settled , built their respective properties and started th eir farming prior to 2004, when the Defendant started its quarrying activities in their proximity. Prior to 2004 the Plaintiffs apparently had no issues with eith er th e state of their properties and crops. Th e eviden ce of PWl to PWS show that issues complained of in this matter, relating to the state of the structures of their respective properties and adverse effect on the crops grown, only came about after the Defendant started its quarrying a ctivities. Further the Plaintiffs asser t that t he Defendant a dmitted liability for the damage cau sed to the properties of the Plaintiffs following the assessment of the Pla intiffs ' houses and structures conducted by the Defendant's agents and the Area Development Committee and informed them that the Defendant would compensate them. However, the J38 I P a g 2 • Plaintiffs' did not produce any further evidence or documentation to indicate that the Defendant had in fact admitted liability for the damage in issue and would compensate each of the Plaintiffs. 6.21 The Plaintiffs produced a letter dated 5 th March, 2008, shown at page 20 of the Plaintiffs' Bundle of Documents, which indicated that they had requested the Defendant to acknowledge liability in writing for the damage in issue. However, the Defendant did not respond to the said letter. The Defendant did not adduce any evidence before this Court to vitiate the Plaintiffs' testimonies alluded to in paragraph 6.18 above because the Defendant at its own peril squandered the opportunity to do so under the circumstances mentioned in paragraph 4.45 above. As such this Court will have to determine this matter based on the actual evidence placed before it. 6 .22 To this extent, I noted that PWS, who is not a Plaintiff in this m atter, acknowledged receipt of the sum of K2,000,000.00 (unrebased) and stated that she received the said sum of money as compensation for the dan1age to her house caused by the Defendant's blasting. A copy of PWS's acknowledgment of receipt of the said sum of money shown at page 3 of the Defendant's Bundle of Documents indicates that she was receiving the said money from the Defendant as compensation for the damage to her house caused by the Defendant~s J39 I P a ge blasting. PWS, even if she was not one of the Plaintiffs in this matter, it is not disputed that she was a neighbour to the Plaintiffs herein prior to 2004 when the Defendant started its quarrying activities complained of by the Plaintiffs. It is reasonable and only sensible to conclude that PWS was compensated by the Defendant in the manner done because the only inference to be drawn from the Defendant's payment made was that the Defendant admitted the wrong complained of by PWS, which is the same or similar wrong complained by the Plaintiffs herein. Further, no other alternative explana tion has been given to this Court for paying PWS th e sum of money as was done by the Defendant. It is, th erefore, m y finding of fact that by compensating PW5 in the mann er th at was done by the Defendant, the Defcndan t accepted culpa bility of injuries complained of by the Plain tiffs herein, who from the evidence placed before this Court, were in the same or similar position as PWS, which injuries the Defendant must atone for t h e Plaintiffs. This finding is well supported by the celebrated ca se of Donoghue v Stevenson7 and the landmark s p eech of Lord Atkin e sta blishing the "n eighbour principle" in tha t ca se , wher e h e stated as follows : - "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be-persons who J40 I P age • are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question." 6.23 From the facts of this case and the evidence placed by the Plaintiffs before this Court, I find that the Plaintiffs were "neighbours" of the Defendant in the sense of the principle established in the case of Donoghue v Stevenson7 . The Defendant's position, in this regard, is not helped by my earlier finding on the first issue for determination, where in paragraph 6.12 above I found that the Defendant started its quarrying illegally. Now I return to my finding that the said illegality also caused injury to the Plaintiffs as established by the "neighbour" principle referred to above such that the Defendant must now atone the Plaintiffs for it. Without appearing to belabour this point, but rather to offer some clarity of the law, it will also be useful to refer to the explanation of causation, as put by Lord Denning in the case of Davies v Swan Motor Co (Swansea) Limited8, where it was stated as follows: - " ... the efficiency of causes does not depend on their proximity in point of time. It is enough that the cause forms part of a chain of events which has in fact led to the injury." 6.24 The chain of events in the current case are such that the illegality of the Defendant's quarrying activities form J41 IP age part and parcel of the injury complained of by the Plaintiffs, which this Court has already found the Defendant to be culpable of. This, indeed, in my considered view, is where the common law doctrine of "Res ipsa loquitor'' squarely applies to the facts of this matter, without doubt. 6.25 Consequently, having established that the Defendant had breached the legal requirements of Clause 3 of The Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations1 by not conducting an Environmental Impact Assessment in the area of the quarry site and producing an EPB before commencing its operations, on my analysis of the said acknowledgment of receipt given to PWS, I also find that the Defendant did not only accept liability for the damage caused to PWS's property and thereby paid her the sum of K2,500,000.00 as compensation, but also to the Plaintiffs herein, who according to the unchallenged evidence placed before this Court, were in the same or similar position to that of PWS. Additionally, I find and hold that the Plaintiffs have also proved that the quarrying activities of the Defendant resulted u1 the damage to the properties and crops in issue. 6.26 According to the evidence on record, PWl, PW2, PW3, PW4 and PWS testified that they had built their houses in the Shimabala West Area of Kafue; lived in the area; conducted farming activities; and sank boreholes and J42 j Page I wells before the year 2004, when the Defendant began its quarrying activities in the area. They further testified that their houses and structures were intact before the quarrying operation began. However, following the commencement of the Defendant's quarrying operations, they experienced persistent loud blasting sounds; douds of dust and smoke; and shaking of the ground. They noted further, that their houses suddenly developed cracks; their respective structures on the farms were damaged; their boreholes and wells collapsed; and stunted growth of their crops resulted. 6.2 7 In s upport of the Plaintiffs' claims, reports on the assessment of their Farm Housing Units were produced in th e Plaintiffs' Bundles of Documents. The first assessment and report produced at pages 6 to 8 of the Plaintiffs' Bundle of Documents was done by the Area Development Committee and the Defendant's agents in 2008 . The report provided details of the extent of the damage to the Plaintiffs' properties. 6.28 The second report produced at page 10 of the Plaintiffs' Bundle of Documents was prepared by Mr. K. C. Mwansa, a Quantity Surveyor, engaged by the Plaintiffs and was alleged to· have been prepared at the request of the Defendant, who wanted a d etern1ination of the cost of repairing the damage to the Plaintiffs' properties. This report included the extent of the damage to the Plaintiffs' properties and the cost of repairing each of the J43 I P a g e Plaintiffs' houses and structures. The final Assessment Report on record was prepared in 2010, by Mr. K. C. Mwansa and was produced at page 1 of the Plaintiffs' Supplementary Bundle of Documents detailing the extent of the progressive damage to each of the Plaintiffs' properties and the cost of repairing it. 6 .29 On my analysis of each of the foregoing reports, I find that they do provide sufficient information to support the Plaintiffs' claims that the Defendant's quarrying operations caused the damage to the Plaintiffs' properties. Accordingly, I find that the reports do s upport the Plaintiffs' claims for compensation from the Defendant. 6.30 The eviden ce of the Inspection Officer at ZEMA (PW6), confirmed th a t ZEMA determined that the Defendant did not h ave an approved EPB, when it commenced its quarrying opera tions in 2004, even though the Defendant was subsequently given an opportunity to produce one and it was subsequently approved by ZEMA. This subsequent approval of the Defendant's activities by ZEMA did not have an introspective effect. It did not wa sh away the illegality of the Defendant's quarrying activities prior to the said approval, which the Plaintiffs complained of and as such it does not aid the Defendant in its defence to the cla ims herein. 6 .31 The Defendant produced a copy of a report on the Impa ct of Blasting Activities on Surrounding Dwelling J44 I P age • Areas of Shimabala, dated 28th May, 2017, from the Mines and Safety Department, shown on pages 1 to 4 of the Defendant's Supplementary Bundle of Documents. In the conclusion of the said report, the Senior Inspector of Explosives/Mines indicated that it was impossible to determine the cause of the damage to the Plaintiffs' properties due to certain assessments that were not conducted, such as vibration monitoring, during blasting operations to determine the actual vibration levels and consider whether these were responsible for the property damages. Lamentably, this report did not offer any explanation as to why the Plaintiffs' properties, prior to the Defendant's quarrying activities did not show the damages complained of by the Plaintiffs. Neither did the report explain why the Defendant did not undertake vibration monitoring, during blasting operations to determine the actual vibration levels to ascertain whether these were responsible for the property damages or not. These failures, on the part of the report, renders it very unhelpful to absorb the Defendant of any blame in this matter, especially as it in conclusion state that "it is impossible to determine the cause of the damage to the Plaintiffs' properties". In the view of this Court, the author of this report fell far below the calling of his profession in addressing the issues he was supposed to address. 6.32 Based on my findings above, I find that the Plaintiffs herein have proved, on a balance of probability, that J45 I P a g c •· the Defendant's quarrying activities caused the damage to their properties and crops. It follows, therefore, that the Plaintiffs' claims for compensation accordingly succeeds. The total amounts due to the Plaintiffs shall be assessed by the Deputy Registrar and shall carry interest at average short term bank deposit rate from the date of the Writ to the date of this Judgment and thereafter, interest will accrue at current Bank of Zambia lending rate until the said damages are paid in full by the Defendant to the Plaintiffs. 6 .33 I accordingly order that the injunction entered against the Defendant be maintained. 6.34 Costs are awarded to the Plaintiffs to be taxed in default of agreem ent 6.35 Leave to appeal is granted. Signed, Sealed and Delivered at Lusaka, this 3 rd day of August, 2021. P. K. YANGAILO HIGH COURT JUDGE J46 I P age