Konkola Copper Mines v Chillerton Group Limited [2019] ZMCA 349 (18 April 2019)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO.81 OF 2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KONKOLA COPPER MINES (cid:9) 18 AP 21J I. APPELLANT AND CHILLERTON GROUP LIMITED RESPONDENT Coram: Makungu, Kondolo and Mafula J. J. A On the 281h day of November, 2018 and the . A&day of April, 2019 For the Appellant: Mr. E. Banda, SC and Mr. T. Chibeleka of ECB Legal For the Respondent: Mr. M. Haimbe of Messrs Sinkamba Legal Practitioners Practitioners and Mr. M. Mainsa In - House counsel - KCM JUDGMENT MAKI. JNGU, JA delivered the Judgment of the Court. Cases referred to: 1. New Plast Industries v. The commissioner of Lands and the Attorney General (2001) ZR 1 2. Mutale v. Mutale Appeal No. 141 of 2008 3. JCN Holdings Limited, Post Newspapers Limited, Mutembo Nchito V. Development Bank of Zambia - SCZ Appeal No 87 of 2012. Statute referred to: 1. (cid:9) Mines and Minerals Development Act No. 7 of 2008 (cid:9) In cause No. 2010/HP/327 Chillerton Group Limited the appellant, herein was the plaintiff and the respondent Konkola Copper Mines PLC was the 7th defendant. The 1st - 6th defendants were Attorney General, Ministry of Mines and Minerals Development, Dr. Kalombo Mwansa MP, Gerald Kangwa Kangamba, Mooya BC Lubarnba and Redrock Resources Limited respectively. In this judgment we shall refer to the appellant as the 7th defendant and the respondent as the plaintiff. The background of this matter is that the plaintiff was granted large scale mining licences numbered LML 41, 42, 45 and 46 (Kariba Bombwe "B" Block Fitwola) sometime in 2001 by the Ministry of Mines and Minerals Development. Sometime in January, 2007, the said licences were cancelled by the Minister of Mines for alleged failure by the licencee to abide by the Development Agreement. Cause Number 2007/HC/0 153 was then instituted by the plaintiff against the Ministry of Mines and the Attorney General and in the process, the parties entered a Consent Judgment dated 29th February, 2008, revoking the Ministers decision to cancel the said licences and nullifying all disputes that led to the cancellation. The plaintiff was then allowed to continue with its mining operations. It was further agreed that the plaintiff was free to carry out mining operations -J2- within the provisions of the said large scale mining licences and in accordance with the terms of the Development Agreement. Despite the Consent Judgment, the Ministry of Mines failed or neglected to cancel the 6th defendant's licence from 2007 - 2009. However, on 22nd October, 2009, over a year from the date of the Consent Judgment, the plaintiff's licences were cancelled again by the Minister of Mines at the time. After the said cancellation, mining licences were issued to the 6th and 7th defendants. Thereafter, the plaintiff commenced cause No. 2010/HP/327 on 6th April, 2010 by way of Writ of Summons claiming: 1. A declaration that the purported cancellation of the plaintiffs licence by the 5th Defendant was null and void ab initio due to illegality. 2. An order restoring the said licences to the plaintiff. 3. A declaration that the licences issued to the 6th and 7th defendants are null and void ab initio due to illegality. 4. An order cancelling the licences issued to the 6th and 7th defendants. 5. An order of injunction restraining the 6t and 7th defendants by themselves, their agents or servants of whatsoever description from in any way interfering with the plaintiff's -J3- rights and from carrying out activities whatsoever: be it mining or not, in areas covered by the plaintiff's licences numbered 41 to 46. 6. Damages for trespass and loss of business. 7. An order fully restoring the plaintiff's rights as contained in the Development Agreement. 8. Costs. An ex-parte Order of interim Injunction was granted to the plaintiff on 13th April, 2010 and the court set 28th April, 2010 as the date for the inter - partes hearing. When the matter came up on the scheduled date, it was adjourned to 27th May, 2010, to enable the Court examine the documents that had been submitted by counsel. The matter was reserved to an unspecified date for Ruling on whether or not the order of injunction that was granted to the plaintiff would be sustained. In her Ruling dated 23rd February, 2018, the lower court ruled in favour of the plaintiff and the interim injunction was confirmed. Dissatisfied with the ruling, the 7th defendant appealed to this court advancing the following five grounds: 1. The court below erred in law and in fact when it proceeded to deliver a ruling 8 years after the -J4- hearing based on assumption that facts had remained the same and in the process using the unexplained long period of time to the detriment of the 7th defendant. 2. The court below erred in law and in fact by treating the inter partes hearing of the injunction as an application to discharge the injunction granted ex- parte, thereby shifting the burden of proof to the 7th defendant. 3. The court below erred in law and fact when it found that the plaintiff had a clear right to relief, yet the 7th defendant's license number LML 35 pre- dates the plaintiff's alleged licence LML 46. 4. The court below erred in law and fact when it found that the balance of favour lies in favour of granting the injunction. 5. The Court below erred in law and fact by non - suiting the 7th defendant when it stated that it would not deal with a pending application for committal but went ahead and relied on the plaintiff's evidence -J5- in that application, to the detriment of the 7th defendant." The 7th defendant's advocates filed heads of argument on 21st May, 2018. The plaintiff's heads of argument were filed on 7th August, 2018. We have found it unnecessary to summarize the said heads of argument for reasons that will be revealed later in this judgment, suffice to say that we have scrutinized them. During the hearing of the appeal on 29th November 2018, we raised a crucial issue of whether the lower court had the requisite jurisdiction to determine the matter. We then ordered learned counsel for both parties to address us on this issue. On 10th December, 2018 written submissions were filed on this issue on behalf of the 7th defendant. No submissions have been filed on behalf of the plaintiff with regard to the issue of jurisdiction. In summary, the 7th defendant's submissions on jurisdiction are that: The court below had no jurisdiction to entertain the matter as it was improperly before it. At the time that the matter was commenced, the Act that governed mining related matters was the Mines and Minerals Development Act No. 7 of 2008. Sections 152 (1) (c) and 153 (1) of the said Act which was later repealed provided as follows: -J6- 11152. (1) Any person aggrieved by the decision of the Director.- (c) to cancel or suspend any licence or permit held by the person; May appeal to the Minister, who shall determine the appeal, consistent with the provisions of this Act and the circumstances of the case. 153. (1) Any person aggrieved by the decision of the Minister may appeal to the High Court, which shall determine the appeal, having regard to the provisions of this Act and the circumstances of the case. (2) A determination of the High Court under this section may include such directions to the Minister as the court considers appropriate for the disposal of the matter and the Minister shall give effect to the directions." It was submitted further that the law relating to commencement of cases is clear. Reference was made to the case of New Plast Industries v. Commissioner of Lands and The Attorney General (1) where the Supreme Court held thus: "It is not entirely correct that the mode of commencement of any action largely depends on the reliefs sought. The correct position is that the mode of commencement of any action is generally provided by the relevant statute." -J7- Counsel went on to state that it is clear from the writ and statement of claim that the plaintiff is aggrieved primarily by the cancellation of its mining licences by the Director of Mines. Therefore, the plaintiff should have firstly appealed to the Minister of Mines and thereafter to the High Court. There is no evidence on record that the plaintiff made an attempt to appeal to the Minister. Counsel submitted therefore that the lower court had no jurisdiction to grant an injunction as the matter was wrongly commenced. In the premises, the appeal should succeed and the injunction granted by the court below should be set aside with costs to the 7th defendant. Having considered the submissions on jurisdiction, we agree with the 71h defendant that when the matter was commenced in the lower court on 6th April, 2010 the legislation that governed mining issues was indeed the Mines and Minerals Development Act No. 7 of 2008. Although Section 152 of the said Act stated that a person "may" appeal to the Minister, a further reading of the same provision made it mandatory for the Minister to determine the matter as the word "shall" was used. In this particular case, it was impractical for the plaintiff to appeal to the Minister as he was the one who -J8- cancelled the licences. Section 153 of the same Act made it mandatory for the High Court to determine appeals from the decision of the Minister. Under the circumstances, the proper mode of commencement of the matter was supposed to be by way of an appeal and not writ of summons. The New Plast (1) case supra applies and therefore the lower court had no jurisdiction to hear the case and to make any order. It is trite law that all proceedings emanating from a case where the court lacks jurisdiction are a nullity. This was the position in the case of Mutale v. Mutale (2) where it was stated thus: "Since the court of first instance did not have jurisdiction to hear and determine this dispute the entire proceedings and the appeals emanating therefrom were all a nullity. We accordingly quash those proceedings for want of jurisdiction." The same legal principal was applied in the case of JCN Holdings Limited, Post Newspapers Limited, Mutembo Nchito v. Development Bank of Zambia. (3) Similarly, in the present case, we hold that the entire proceedings were a nullity. Be that as it may, we find it imperative to comment on the fact that it took almost eight years for the injunction -J9- application to be determined. The record shows that the matter was commenced on 6th April, 2010 and the ruling was rendered on 23rd February, 2018. It is trite law that injunction applications are urgent. Therefore, court's need to handle them carefully and expeditiously in order to avoid dealing with changes in the state of affairs and possibly doing injustice. Coming back to this appeal, we order each party to bear its own costs both for the annulled proceedings as well as for this appeal. C. K. MAKUNG1 COURT OF APPEAL JUDGE M. M. KONDOLO, SC (cid:9) B. M. MAJULA COURT OF APPEAL JUDGE (cid:9) COURT OF APPEAL JUDGE -J1O-