Kalulushi Municipal Council v Lunga Resources Limited (APPEAL NO. 22/2018) [2018] ZMCA 611 (21 November 2018)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction ) BETWEEN APPEAL NO. 22/2018 I' KALULUSHI MUNICIPAL COUNCIL ' AND APPELLANT LUNGA RESOURCES LIMITED RESPONDENT CORAM: Mchenga, DJP, Mulongoti and Lengalenga, JJA On 27 th June 2018 and 21 st November 2018 For the Appellant: I . Mulenga, Iven Mulenga and Company For the Respondent: M. Mulele, GM Legal Practitioners RULING Mchenga, DJP, delivered the ruling of the court . Case referred to: 1. Zambia Revenue Authority v Hi tech Trading Company Limited, SJZ 40 of 2000 Legislation referred to: 1. The Court of Appeal Act , Act No . 7 of 2016 When thi s appeal came up for hearing, the respondent , pursuant to the provisions of Section 24 (1) (b) (i) of the Court of Appeal Act , applied for leave to introduce s -J2- new evidence. The application is supported by an affidavit deposed by Mr. Shawi Fawaz . Mr. Fawaz has deposed that at the time the court below granted the injunction which is the subject of this appeal, the respondent was in occupation of the land in issue as lessees of Chibuluma Copper Mines Plc. , the legal and beneficial owners. However, during the hearing of the application for the injunction, the appellant averred that they were illegally on it. They now seek to produce a mineral processing licence granted to them by the Ministry o f Mines and Mineral Development on 5 t h April 2018 , confirming that they were legally on the property and authorised to carry out mining activities. At the hearing of the app lication, Mr. Mulele indi cated that he would wholly rely on the affidavit deposed by Mr . Fawaz. -J3- In response and opposing the application, Mr. Mulenga submitted that the evidence the re s pondent seeks to introduce does not meet one of the conditions for calling new evidence on appeal , it being necessary for the determination of the matters in issue. He submitted that the appeal is against the grant of the injunction on the grounds that the respondent did not come to court with clean hands and that an injunction should not have been granted against a planning authority . In the case of Zambia Revenue Authority v High-tech Trading Company Limited1 , it was held, inter alia, that "For an application to introduce new evidence to succeed, it must be shown that the evidence could not be obtained with reasonable diligence at the evidence will have an important influence on the result of the case and that the evidence will be credible." trial; that We have no doubt that the evidence the respondent seeks to introduce could not have been obtained with due diligence because the licence was granted almost 2 years after the application for the injunction was .- -J4- heard. However, as Mr . Mulenga rightly submitted, the introduction of the mineral processing licence will not have any effect on the outcome of this appeal. The appeal is not concerned with whether the respondent had a mining licence, but with whether full disclosure was made when the injunction was being sought and whether an injunctive order, in the circumstances of this case, could l ie against the appellant , a statutory p l anning authority. In the circumstances, we find no merit in the application and dismiss it with costs. . . DEPUTY JUDGE PRESID - -~~ - - - · · · -·-·· COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE