Moxico Resources Zambia Limited and Anor v Kalengwa Mineral Processing Limited (Appeal No. 395/2023) [2025] ZMCA 157 (4 November 2025)

IN THE COURT OF APPEAL OF Z~BIA Appeal No. 395/2023 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: 0 4 l~OV 2u25 \ MOXICO RESOURCES ZAMBIA LIMITED 1 sT APPELLANT EUROAFRICA KALENGWA MINES LIMITED 2N° APPELLANT AND KALENGWA MINERAL PROCESSING LIMITED RESPONDENT CORAM : Siavwapa JP, Chishimba, and Patel JJA On 20th May and 4 th November 2025 For the Appellants: Mr. Z. Muya Ms. N. C. Matolosi Mr. P. Muya Ms. M. Chabala Ms. A. Mukosa Ms. K. Muya of Messrs Muya and Co. Ms. A. C. Sakanga of Messrs C. L. Mundia and Co. For the Respondent: Mr. P. K. Chibundi and Mr. A. Mushokabandi of Messrs Mosha and Co. JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court ., J2 CASES REFERRED TO: 1. NFC Africa Mining Pie v Techno Zambia Limited (SCZ Judgment 22 of 2009), 2. Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda & Paul Ngandwe (292) Vol 1. ZK 404 (SC) 3. Minister of Home Affairs & Attorney General v Lee Habasonda (2007) ZR 207 (HC), 4. Philip Mhango v Dorothy Ngulube (1983) Z. R. 61 (SC) 5. Amchile Import & Export Limited v Marks Motorways (Appeal No. 43A/2011) 6. Wilson Masauso Zulu v Avondale Housing Project Ltd (1982) Z. R. 7. Richmans Money Lender Enterprises v Mususu Kalenga Buildings Ltd and Another (Appeal 68 of 2002) 8. Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 9 . Zambia National Building Society v Nayunda (SCZ No 11 of 1993) 10. Attorney General v Mpundu (1984) ZR 6 (SC) 11. Pius Kakungu (1982) Z. R. 167 (SC) 12. Lamasat International Ltd v. Finance Bank Zambia Ltd(2017 ZMHC 365) 13. Muchinka Farms Limited v The Attorney General and Two Others AppealNo. 47/2017 14. Nkhata & Others v Attorney General (1966) ZMC 11 15. Air Express Ltd v . Ansett Transport Industries (1981) 16. Direct Sea Enterprises Ltd v. O'Connor J3 17. Anti-Corruption Commission v Barnett Development Corporation Limited (2008) 1 ZR 69 18. Zambia Publishing Co. Ltd v Simon Mwansa Kapwepwe (SCZ Judgment No. 44 of 1974) 19. Ventriglia and Ventriglia v Finsbury Investments Limited 20. Sanhe Mining Zambia v Andrew Mazimba and Tirumala Balaji (Z) Limited Appeal No. 83 of 2017 21. Konkola Copper Mines Pie v Rephidim Mining and Technical Supplies Limited and Others (Appeal. No. 74/2018 22. EuroAfrica Kalengwa Mines Limited v. Lunga Mineral & Exploration Limited Appeal No 76 of 2016 (SCZ) 23. Chillerton Group Limited v Konkola Mineral Resources Limited and Another CAZ Appeal No. 215/2023 24. Hetro Mining & Ore Dealers Limited and EuroAfrica Kalengwa Mines Ltd v. Attorney General (SCZ/8/39/2009) 25. EuroAfrica Kalengwa Mines Limited v Hetro Mining & Ore Dealers Limited (SCZ/237 /2012). 26. Madison Investment, Property and Advisory Company Ltd. v Peter Kanyinji Appeal No. 10 of 2016 LEGISLATION CITED: The Mines and Mineral Development Act, No. 11 of 2015 (repealed) The Lands and Deeds Registry Act Chapter 185 of the law of Zambia The Minerals Regulation Commission Act No 14 of 2024 of the laws of Zambia. The High Court Act Chapter 27 of the laws of Zambia The Supreme Court Practice 1999 Edition (White book) OTHER WORKS CITED: J4 1. Zambian Civil Procedure: Commentary and Cases, Volume 1 (Lexis Nexis, 2017) 1.0 INTRODUCTION 1. 1 This appeal is against the judgment of the Hon. Mr. Justice E. L. Musona dated 23rd September 2023, which found in favour of the respondent. The Court below found that the Order of injunction was maliciously obtained against the respondent, the rightful owner and bonafide purchaser of Farm No. 31477, Farm No. 31478 and Farm No. 31479 Mufumbwe District, Northwestern Province. The Court held that the respondent is the title holder of a mineral processing licence No. 24982/HQ MPL. In addition, that due to the order of injunction taken out by the appellants, the respondent suffered damages in the sum of USDlS,000,000 and loss of its high-grade stockpiles during the period of the injunction valued in the sum ofUSD6,000,000. 1.2 The Court below proceeded to award damages arising from the 1st appellant's illegal and irregular entry and occupation of the respondent's properties and out of pilferage of the equipment and plant. The said damages to be assessed by the Registrar in default of agreement. Interest and cost were awarded to the JS respondent. 2.0 BACKGROUND 2.1 The dispute subject of this appeal has been raging before the Courts for many years in numerous actions between the parties and connected entities going up and down the hierarchy of our Courts. 2. 2 The background facts g1v1ng nse to the appeal is that the respondent entered a Memorandum of Understanding {MOU) with Lunga Resources, wherein it was agreed that the respondent would purchase Lunga Resources' plant equipment, machinery and properties known as Farm 31477, 31478 and 31479. According to the said MOU, it was agreed that the respondent would liquidate the loan owed by Lunga Resources Limited to a company known as Rochester Global Mining Corporation in lieu of the purchase price. Arising from the above, a subordinated agreement dated 11 th September 2011 was entered into between the respondent and Rochester Global Mining Corporation for the payment of USD 15,000,000. The respondent paid Lunga Resources' indebtedness. This J6 culminated into asset and purchase agreements relating to the plant equipment, machinery and properties being executed. 2 .3 According to the respondent, as title holder of the three properties, it gave consent to its sister company Kalengwa Process Zone Limited (KPZL), to enable it to obtain mining rights over the said titled area, which licence was later obtained. The respondent pleaded that it is also the holder of Mineral Processing Licence No. 24982-HQ-MPL over its m1n1ng tenement in Mufumbwe known as Kalengwa Mine. 2.4 In June 2019 , representatives of the appellant companies were found on the respondent's property claiming ownership of Kalengwa Mine, which sits on the respondent's property. The appellants instituted proceedings in August 2019 in Ndola under cause 2019/HN/0186 against KPZL and obtained an interim order of injunction dated 23rd April 2020. 2 .5 In 2020, the respondent commenced an action in Lusaka under cause No. 2020/HP/0133 and an interim injunction was obtained against the appellants. The cause was dismissed for being an abuse of Court process on 15th January 2021, and the interim injunction was vacated. 2.6 The appellants also instituted another action against 16 J7 defendants, who included the respondent, KPZL, Lunga Mineral Processing and Rochester Global Mining Corporation, among others, under cause No. 2020/HP/055. This action was later discontinued on 13th October 2020. 2.7 In 2022, cause no. 2019/HP/ 186, commenced in the Ndola High Court, was discontinued against KPZL. On 7 th February 2023, the appellants commenced an action against the respondent in the Ndola High Court under cause No. 2023/HN/048, which was only served on the respondent on 23rd April 2023. Prior to service of the above process, the respondent on 18th April 2023 commenced the action subject of this appeal against the appellants under cause no. 2023/HPC/0282 claiming the following: (i) Immediate payment of the sum of Twenty-One Million United States Dollars (US$21,000,000.00) being sums owed by the 1st and 2 nd Defendants to the Plaintiff for damages, costs and losses occasioned to the Plaintiff over its land, mining rights, capital and investments over Kalengwa Mine in Mufumbwe. (i) A Declaration that the Plaintiff is the Title Holder of Certificates of Title relating to Farm No. 31477; Farm J8 No. 314 78, and Farm No. 314 79 Mufumbwe and Bona Fide Purchaser of the said properties which properties remain those of the Plaintiff to date. (ii) A Declaration that by virtue of Certificates of Title the Plaintiff is entitled remain on the property in question. (iii) A Declaration that the Plaintiff is the holder of valid Mineral Processing Licence No.24982-HQ-MPL over its Mining Tenement in Mufumnbwe known as Kalengwa Mine. (iv) An Order of Injunction restraining the 1 st and 2 nd Defendants from accessing, entering, and conducting any activity or trespass on the subject properties which are subject of Certificates of Title without the written consent of the Plaintiff whom is the Title Holder thereof and vested with the surface rights; and whom is the holder of valid Mineral Processing Licence No.24982-HQ-MPL. (v) An Order for Damages arising out of the 1st Defendant's illegal and irregular entry and occupation of the Plaintiffs properties; and (vi) Further damages arising out of theft and pilferage of the Plaintiffs plant and equipment. (vii) Interest on all sums due. (viii) Any other and/or further relief the Court shall deemfit. (ix) Costs J9 2.8 On 25th April 2023 KPZL instituted a similar action against the appellants 1n the Kitwe High Court under Cause No.2023/HK/206, s eeking the following reliefs : (i) Immediate payment of the sum of Sixteen Million United States Dollars (US$16,000,000.00) being sums owed by the 1st and 2 nd Defendants to the Plaintiff for damages, costs and losses occasioned to the Plaintiff over its, mining rights, capital and investments over Kalengwa Mine in Mufumbwe directly occasioned by the Order of Interim Injunction obtained by the Defendants against the Plaintiff under cause no. 2019/HN/186 which injunction Order restrained the Plaintiff from conducting its mining activities over the tenement it held an exploration licence at the time thereby making the Plaintiff suffer the claimed damages. (i) An Order for Damages arising out of demurrage charges and costs for hired Exploration and Drilling expenses and other exploration materials when the Plaintiff was ejected from the tenement on account of the Injunction Order obtained against it by the Defendants. (ii) Interest on all sums due. (iii) Any other and/or further relief the Court shall deemfi.t. (iv) Costs. 2. 9 On 19th May 2023, the appellants applied to dismiss the subject JlO of this appeal for multiplicity of actions. On 29th May 2023, the respondent raised a preliminary issue stating, inter alia, that Cause 2023/HN/O048 was commenced on 7 th February 2023 but served on it on 27th April 2023 after it had already commenced cause no. 2023/HPC/0282. The trial Court in its ruling dated 13th June 2023 upheld the preliminary issue and found that the proceedings under cause no. 2023/HK/206 and 2023/HN/0048 were in respect of KPZL and not the respondent. He went on to state that the appellants could have made the application for multiplicity of actions in the Kitwe matter under cause No . 2023/HK/206. 2.10 The learned Judge proceeded to hear the matter under cause No. 2023/HPC/0282 subject of this appeal. 3.0 DECISION OF THE COURT BELOW 3.1 After considering the evidence on record, the Learned Judge was of the view that the respondent had been affected and suffered the repercussions of the injunction on account that it was the title holder of the affected land and is the holder of a Mineral Processing Licence No. 24982-HQ-MPL. The Court stated that the injunction had been subsisting for almost three Jll years when the appellants, unilaterally and without consent from the respondent, discontinued the whole case. It was the Court's view that the injunction was maliciously obtained against the respondent as evidenced by the discontinuance of the action which resulted in the respondent incurring loss. In view of the above, the lower Court awarded the respondent the sum of USD21, 000,000 as pleaded. 3.2 Regarding the relief sought that the respondent be declared as the title holder of Farm No.31478, Farm No.31477 and Farm No.31479, Mufumbwe, the Court below found that by virtue of section 54 of the Lands and Deeds Registry Act, the Chapter 185, the Court below held that the respondent was the bonafide purchaser of the aforementioned parcels of land and was therefore the rightful owner. It went on to hold that the respondent was entitled to remain on the property in question by virtue of the certificates of title and could therefore continue/ resume their mining operations over its mining tenement in Mufumbwe District known as Kalengwa Mines. 3.3 In respect of the sought Order of injunction to restrain the appellants from accessing, entering and conducting any activity or trespass on the subject properties, the lower Court held that J12 the claim was resjudicata as the respondent was granted an Ex parte Order of Interim Injunction on 19th April 2023, which was confirmed inter-partes by a ruling dated 8 th May 2023. 3.4 In regard to the claim for damages arising from the appellants' illegal entry onto the respondent's properties, and those arising from theft and pilferage of the respondent's plant and equipment, it was held that the respondent had furnished sufficient evidence that theft and pilferage occurred during the time the injunction was subsisting. The lower Court awarded damages as pleaded to be assessed by the District Registrar in default of agreement by the parties. The lower Court further ordered that all sums found due shall attract interest at the short-term bank deposit rate from the date of writ to the date of judgment and thereafter at the current Bank of Zambia lending rate. Costs were awarded to the respondent to be taxed in default of agreement. 4.0 GROUNDS OF APPEAL 4.1 The appellants appealed the judgment of the Court below, advancing sixteen grounds as follows: J13 1) The Honourable Court below erred in law and/act when, without the requisite Jurisdiction proceeded to determine the issues pertaining to mining rights by: a) Holding that the Plaintiff is entitled to remain on the area in dispute and so continue/ or resume their mining operations under their Mineral Processing License No.24982-HQ-MPL over its mining tenement in Mufumbwe known as the Kalengwa Mines. b) Declaring the validity of the Respondent's purported Mineral Processing License No. 24982-HQ-MPL despite the fact that the appellant is a valid holder of Large Scale Exploration License No. 8584-H()-LEL over the Kalengwa mine, which Large Scale Exploration License No. 8584- HQ-LEL predates the Respondent's purported Mineral Processing License NO. 24982-HQ-MPL. (ii) By holding that the Respondent is the owner of surface rights over certain land situated within the Kalengwa mine and granting it possession of the said land, the Honourable Court erred in law and fact as it: a) Totally disregarded and conflicted the Supreme Court judgments of 19th of September 2011, the 25th of March 2015 and the 30th of March 2017 which granted possession of the Kalengwa mine to the 2nd Appellants, and held that the issue regarding the Kalengwa mine was resjudicata, binding and could not be questioned by anyone; b) Contravened the well-established principle of stare decisis, encouraged a multiplicity of actions and abuse of Court process. iii) That the proceedings before the Honourable Court below were irregular, as there was no scheduling conference in those proceedings. J14 IV) The Court erred in law and fact by declaring the Respondent as holder of Certificates of Title No. 66773 relating to Farm No.31478, 66775 relating to Farm No.31477 and No.66769 relating to Farm No. 314 79 Mufumbwe and that the Respondent is a bona fide purchaser of the said properties disregarding the overwhelming evidence: a) That Certificates of Title No.66773 relating to Farm No.31478, 66775 relating to Farm No.31477 and No.66769 relating to Farm No.31479 Mufumbwe were fraudulently acquired, disregarding the procedure requiring coordinates on the Certificates of Title. It was evident that the three Certificates of Title No.66773 relating to Farm No.31478, 66775 relating to Farm No.31477 and No.66769 relating to Farm No. 314 79 that do not have coordinates showing where the Land being claimed is specifically situate and the extent thereof. b) From Kelvin Chibangula, the Surveyor General, that the Certificates of Title purportedly acquired over the Kalengwa Mine of Mufumbwe, were for parcels of land located in Lufwanyama district of the Copperbelt Province of the Republic of Zambia and not the Mufumbwe District for the North-Western province of the Republic of Zambia; c) That Certificate of Title No. 66773 for Farm No.31478 (which the Respondent exhibited as relating to the Surface Rights over the Kalengwa Mine in Mufumbwe District in the Northwestern Province), clearly stipulates that the Title was for land situate in the Mufulira District of the Copperbelt Province of the Republic of Zambia and not Mufumbwe; d) That the Certificates of Title purportedly acquired over certain land located with the Kalengwa Mine of Mufumbwe (in 2019), at a time when the 2 nd Appellant herein had been in possession of the said area since 2007 and was recognised as the rightful owner of the Kalengwa mine by the Supreme Court on three occasions; JlS e) That the Respondent was fully aware of the 2nd Appellant's prior interest in both the surface area and the Kalengwa area of Mufumbwe. The Respondent gave evidence at pages 15 to 16 of the Judgment that it visited the Kalengwa area on the 18th and 2()th June, 2019 and found the 2nd appellant's officials who indicated that they were the owners of the said area. Further, there was evidence before the Court that prior to the Respondent's acquisition of the proceedings under cause NO. 2019/HN/189 wherein, the 2 nd appellant sued and the respondent's sister company, Kalengwa Processing Zone Limited (an entity with the same Directors and shareholders as the Respondent herein)for trespassing over the 2 nd appellant's f) Kalengwa area. The 2 nd Appellant has been in possession of the Kalengwa of Mufumbwe and mine since 2007; was granted possession of the Kalengwa mine by the Supreme Court in 3 Judgments of the said Court, and acquired customary surface rights over the said area in 2018. 6. The Honourable Court erred in law and in fact by declaring that the Respondent is the valid holder of certificates of titles to land within the Kalengwa Mine and is entitled to remain in possession of such land when it had no jurisdiction to make the said declarations and determine issues pertaining to mining rights or surface rights. 7. The Honourable Court erred in law when it went against the well established principles of delivering a Judgment of the Court by completely disregarding and purely failing to consider, analyze and determine the material evidence and issues in controversies between the parties. 8 . The Court below erred in law and fact when it held that the Respondent was affected and suffered repercussions of the Order - - -- ~ - - J16 of Injunction under cause No.2019/HN/186 due to the fact that the Respondent was the Title holder of the affected land and holder of Mineral processing License No.24982-HQ-MPL without considering the following undisputed material/acts: a) That at the time the Respondent purportedly acquired Certificates of Title No.66773 relating to Farm No.31478, 6775 relating to Farm No.31477 and No.66769 relating to Farm No.31479 Mufumbwe in November, 2019, and Mineral Processing License No.24982-H()-MPL in October, 2020, the Order of Injunction under cause No.2019/HN/186 was already subsisting as it was obtained in July, 2019. The Respondent herein was fully aware of the nature of the proceedings under cause No. 2019/HN/ 186 and the existence of the Order of Injunction, but willfully decided to subject itself to the said Order of Injunction. This was clearly noted at page 16 paragraph 3 of the Ruling of the Court confirming the Injunction under cause No.2019/HN/ 186. b) The Order of Injunction under cause No.2019/HN/ 186 was against Kalengwa Processing Zone Limited an entity that was sued for trespass and not the Respondent herein. 9. The Honourable Court misdirected itself in law and when it granted the Respondent damages in the Sum of US$21,000,000.00. 10. The Honourable Court erred in law and in fact when it proceeded to hold as follows regarding the injunction obtained under cause No.2019 /HNI 186 and the undertaking made under the Ex-parte Order on interim injunction: a) That the Order of Injunction under Cause No. 2019/HN/ 186 was obtained maliciously and there was no need/or it. b) That the undertaking in the injunction under Cause No. 2019/HN/ 186 was a promise to indemnify anybody who would be injured or suffer loss ifit was found by a Court J17 that the Order of Injunction, in/act, should not have been applied for. c) When it proceeded to enforce the undertaking under Cause No. 2019/HN/ 186 when it was not the Court before whom the undertaking was made. d) That the Plaintiff was in the mining business and it was interrupted by the Order of Injunction. 11. The Honourable Court erred in law and in/act when holding that the respondent was entitled to the US$15,000,000.00 purportedly paid to Rochester Global Mining Corporation under a subordinated mortgage when it was not a loss or injury occasioned by the Order of Injunction under Cause No. 2019/HN/ 186 and despite the/act that there was no evidence of any mortgage between the respondent and Rochester Global Mining Corporation. 12. The Honourable Court erred in law and in fact when it awarded US$ 6,000,000.00 to the Respondent as damages for economic value of the Respondent's purported assets and mineral license. 13. The Honourable Court erred in law and in fact when it found that the 1st and 2 nd Appellants had illegally and irregularly entered upon the Respondent's purported land. 14. The Honourable Court erred in law and in fact when it awarded damages for the purported illegal entry, the theft, and pilferage of the respondent's plant and equipment without proof on the preponderance of the evidence. 15. The Honourable Court erred in law and fact when it unjustly enriched the respondent by awarding damages for purported theft, pilferage and damage of the respondent's purported assets when it awarded the US$ 6,000.000.00 which accounted for the purported loss of assets. 16. That the proceedings before the lower Court were irregular as the Court dispensed with the requirement to have a scheduling conference in the said proceedings. 17. Any further Grounds of Appeal (if any) 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 On 11 th December 2023, the appellant filed heads of argument. Grounds 1,2, 4 and 8 of the appeal were expunged from record for being in breach of the provision of Order 10 Rule 9(2) of CAR upon the respondent raising a preliminary issue, upheld by the court. 5.2 We note that there is no ground 5, the numbering of the grounds jump from 4 to 6. 5.3 The Court also notes, with concern, the repetitive nature of the grounds of appeal. Grounds 3 and 16 challenge the lower Court's procedural error of failing to call for a scheduling conference. We have therefore collapsed grounds 3 and 16 into one ground. Grounds 12, 14 and 15 challenge the award of USD6, 000,000 as damages relating to the illegal entry, theft, pilferage of plant equipment and stockpiles. Grounds 12, 14 and 15 will be dealt with together as one ground. 5.4 The grounds of appeal show a clear failure to specify the error of law relied upon in the said grounds!, 2, 4 and 8 of the memorandum of appeal. We cannot overemphasize the need for J19 grounds of appeal to be clear and concise, setting out the points of law upon which the appellant relies. Are we as an appellate Court expected to guess the points of error of law and fact over which we are required to determine? We caution litigants to ensure that the grounds of appeal are crafted in conformity with the CAR. 5.5 Turning to the surviving grounds of appeal, the appellants in grounds 3 and 16 contend that the trial proceedings were fundamentally flawed due to the failure by the lower Court to conduct a scheduling conference in accordance with Provisions of Order 53, Rule 6( 1) of the High Court Rules Cap 27 of ~he Laws of Zambia (High Court Rules). The provision stipulates that a judge shall, within fourteen days after filing of the memorandum of appearance and defence, summon the parties to a scheduling conference. Reference was made to the case of NFC Africa Mining Pie v Techro Zambia Limited 111, where the Supreme Court held that rules of the Court must be strictly adhered to. 5 .6 The appellants submit that failure to convene the scheduling conference rendered the proceedings procedurally irregular. -- • 5.7 With respect to ground 7, the appellants submit that the trial J20 Court erred in law by failing to properly consider, analyse, and determine material evidence and the issues in controversy between the parties. As authority the principles of judgment writing as set out in the cases of Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda & Paul Ngandwe r21 and Minister of Home Affairs & Attorney General v Lee Habasondaf3J was drawn to our attention. 5.8 It is the appellants' position that the trial Court merely reproduced the respondent's pleadings without analysis of contradictory material facts or evidence presented by the appellants' defence. Further, the judgment recites witness testimony without analysis. The fact-finding process was negated by the Court below. Therefore, the Judgment of the Court below should be set aside. 5 .9 Under grounds nine, eleven and twelve, the appellants contend that the sum of USD21,000,000 awarded as damages was improperly granted and comprised of: (i) USD 15,000,000 as compensation for a purported mortgage which was subordinated to the respondent by a company called Lunga Resources Limited, which J21 purportedly owned Farm No. 314 77 and transferred the same to the respondent; and (i) USD 6,000,000 for loss and damages for being disabled from retaining the economic value of their Mineral Processing License, to account for their high-grade stockpiles and to process the same. 5.10 Reliance was placed on the case of Philip Mhango v Dorothy Ngulube f4J, wherein the Supreme Court held that a claim for special loss must be proved with evidence in contending that the respondent failed to provide documentary proof of the stockpile loss, rendering the award of the sum of USD 21 ,000,000 legally unsustainable. Furthermore, there was no proof that the respondent entered into a mortgage agreement for USD 15,000,000 and that any actual payment of the said sum was made. No agreement was produced before the Court showing the terms of the assignment of Farms No. 31477, 31478, and 31479 between the Respondent and Lunga Resources, or any other two vendors that the Respondent relied upon to justify the claim of the astronomical figure ofUSDlS, 000,000. In addition, reference was made to pages 901-906 of the Record of Appeal, J22 Ministry of Lands printouts, which does not indicate any mortgage held by Rochester Global Mining Corporation. 5.11 The cases of Amchile Import & Export Limited v Marks Motorways 151 and Wilson Masauso Zulu v Avondale Housing Project Ltd 161 were cited on instances when an appellate Court can reverse findings of fact made by a trial Court. That it must be demonstrated that the trial Court made findings which are perverse or made in the absence of relevant evidence, or upon a misapprehension of facts. The appellants contend that the trial Court's finding in respect of the Mortgage in the USD 15,000,000 was perverse and made in the absence of relevant evidence. 5.12 Regarding the awarded sum of USD 6,000,000 for stockpile losses, the appellants submit that the trial Court accepted the claim at face value without requiring evidence to substantiate the alleged loss. Reliance was placed on the case of Richmans Money Lender Enterprises v Mususu Kalenga Buildings Ltd and Another 171 on providing credible evidence to justify the claim for losses. 5. 13 The appellant's gist of argument is that the claim for USD 6,000,000 was speculative, unsupported by business records, J23 valuation reports, or inventory documentation. That on the totality of the facts , in purchasing land that was the subject of an injunction, the respondent was well aware that no 'business' would occur on that property until the injunction was discharged. The respondent was alive to this and failed in its duty to minimise and mitigate its perceived losses. Therefore, the award ofUSD21, 000,000.00 to the respondent has no basis in fact or law and should be vacated. 5.14 In ground 10, the appellants submit that the Court misapplied principles governing undertakings as to damages. They referred to Order 27 Rule 6 of the High Court Rules, which gives the Court power to make an order for assessment of damages where an injunction is found to be unjustified. It is the first port of call when it comes to the enforcement of undertakings under an injunction. 5 . 15 The case of Cheltenham & Gloucester Building Society v Ricketts 1s, was cited where it was held that an undertaking as to damages is the price that the person asking for the injunction must pay. It does not give rise to any cause of action but enables the person in whose favour it is given, to apply for compensation if it is later established that the order should not have been J24 granted. It was submitted that the question of whether the undertaking should be enforced is separate from the question of whether the injunction should be discharged or continued. 5 . 16 The appellants contend that discontinuance of the action in Cause No. 2019/HN/186 was not malicious contrary to the holding by the Court below. The appellants wished to join issue with the respondent who , after the appellants had curbed the actions of Kalengwa Processing Zone Limited, emerged and claimed title to the same property. 5. 1 7 The essence of grounds 13, 14 and 15 is that the findings by the Court below in respect of trespass, theft, and pilferage were unsupported by evidence, leading to an Order of the Court that resulted in unjust enrichment. We were referred to the case of Zambia National Building Society v Nayunda191 , where the Supreme Court guided that in an award for damages, the injured party should be put in the same position as they would have been had they not been injured and should not be unjustly enriched. 5 .18 The appellants submit that damages for illegal and irregular entry ought not to have been granted because there was no illegality or irregularity. The case of Attorney General v J25 Mpundu 110 J was cited in which it was stated that while usual ' ordinary or general damages may be generally pleaded, unusual or special damages may not, as these must be specifically pleaded and proved. 5.19 It is the appellants' position that the Court below misdirected itself in both law and fact by awarding the sum of US$15,000,000.00 in damages, an amount equivalent to the purchase price the Respondent claims to have paid for the land. That effectively, the Court ordered a refund of the purchase price solely because the Appellants discontinued proceedings. This is a perverse finding, particularly given the Court's finding that the Respondent is the lawful owner of Kalengwa Mine and entitled to remain on the land. Reference was made to the case of Pius Kakungu lllJ where the Supreme Court held that consideration of extraneous matters not flowing directly from the cause of action constitutes a misapprehension of facts, warranting the appellate Court to interfere with the amount awarded. 5.20 The appellants maintain that no trespass occurred in this matter and urged the appellate Court to uphold their position. That the award for damages to the tune of USD 21,000,000. 00 is exorbitant and has a wrong tone to the economy, given the J26 difficulty the country has in attracting investors. 6.0 ARGUMENTS BY THE RESPONDENT 6.1 The respondent filed heads of argument on 20th February 2024 and responded in the manner the appellant argued the grounds. 6. 2 The argument in so far as they relate to grounds 6, which is similar to the expunged ground 2, is that the High Court properly exercised jurisdiction over the matter, as it primarily concerned commercial losses and land ownership issues, rather than disputes over mining rights. The respondent contends that the claims arising from economic losses sustained due to an injunction, made them commercial in nature and properly within the Commercial Division of the High Court. Further, the declaration of land ownership was necessary to protect investments from continued interference by the Appellants. 6.3 According to the respondent, sections 97-100 of the Mines and Minerals Development Act No. 11 of 2015 do not mandate exclusive referral to the Mining Appeals Tribunal. The Act provides discretion for judicial oversight, allowing the High Court to retain jurisdiction. J27 6.4 The respondent referred the Court to Lamasat International Ltd v. Finance Bank Zambia Ltd 1121, where the Court ruled that commercial and legal claims should be adjudicated together to prevent conflicting decisions by Courts of equal jurisdiction. 6 .5 It is contended that the claim was not about ownership of mining rights but rather damages resulting from economic loss caused by the injunction. 6.6 In response to grounds 3 and 16, the contention that the proceedings before the Court below were irregular as there was no scheduling conference, the appellant's position is that the Lower Court had conducted a scheduling conference. Further, reference was made to Article 118(2)(e) which urges Courts not to pay undue regard to procedural technicalities. The case of Muchinka Farms Limited v The Attorney General and Two Others <131 was also cited in which the Supreme Court stressed that the provision of the Constitution was not intended to do away with existing rules of court. 6.7 In ground 7, it is argued that the High Court properly weighed all evidence and that the appellants have not demonstrated any misdirection. Trial Courts have discretion in weighing J28 evidence, as established in Nkhata & Others v Attorney General f14J. In this regard, the trial Judge assessed and analysed submissions from both sides before rendering judgment. Further, the appellants failed to show how any alleged oversight materially impacted the final decision. The respondent maintains that the judgment reflected a proper evaluation of facts, making this ground unsubstantiated. 6.8 Responding to grounds 9, 11 and 12, the respondent submits that the award of damages was justified, arguing that the sum of USD 6,000,000 accounted for lost stockpile value, as mining operations were disrupted. Secondly, the sum of USD 15,000,000 covered debts assumed by the Respondent in acquiring assets from previous owners. That the said damages flowed directly from the injunction, making compensation appropriate. As authority the case of Air Express Ltd v. Ansett Transport Industries 1151 was cited in this regard. The respondent maintains that the High Court correctly quantified damages, as the losses were direct and provable. 6.9 In response to ground 10, the respondent contends that the injunction lasted over three years and caused economic losses. Thereby, triggering the appellant's undertaking to compensate J29 for damages. According to the respondent, the appellants wrongfully took possession of the respondent's land, and plant machinery, and processed minerals/ stockpiles without lawful, cause despite. Notwithstanding that the Respondent is the holder of a Mineral Processing Licence No.24982/HQ/MPL located on the area covered by the said Title Deeds, the appellants used the injunction to restrict their business operations. That the undertaking remains enforceable despite the discontinuance of the case by appellants. The losses directly resulted from the injunction for which it sought compensation. The case of Direct Sea Enterprises Ltd v. O'Connor 1161 was cited in this regard. 6.10 In response to ground 13, it is submitted that the appellants unlawfully entered the respondent's land, violating clear legal protections under Section 33 of the Lands and Deeds Registry Act. The respondent's Certificates of Title legally establish ownership, whilst the appellants failed to produce any valid competing title. This fact is confirmed by the testimony of the former Mufumbwe Council Secretary, Chief Lands Officer. No Court of law has ruled that the certificates of title were fraudulently obtained. J30 6.11 Reliance was placed on the Supreme Court case of Anti- Corruption Commission V Barnett Development Corporation Limited 1171 , in which it was held that a certificate of title is conclusive evidence of ownership of land by a holder of a certificate of title. 6.12 With respect to grounds 14 & 15, the respondent submits that the damages awarded for pilferage, theft, and asset destruction were justified on account of the following: (i) The appellants' occupation of the land facilitated asset destruction and unauthorised removal of processed minerals. (i) Exemplary damages were warranted, given the contumelious disregard of the Respondent's rights. The Court was referred to Zambia Publishing Co. Ltd v. Simon Mwansa Kapwepwe (181. (ii) The appellants failed to rebut claims that machinery and stockpiles were taken from the site. 6.13 The Respondent contends that these damages were properly awarded based on direct financial injury suffered. 7.0 AT THE HEARING J31 7.1 At the hearing, the learned Counsel for the appellants, Mr. Muya, submitted that the Order of Injunction complained of was granted on 26th July 2019, which was way before the surface rights were obtained. Further, the Mineral Processing Licence No. 24982-HQ-MPL was issued on 29th October 2020. 7.2 It was submitted that there is no way that the respondent could have suffered damages with respect to the property that they acquired after the injunction had already subsisted, prior to their acquisition of the rights acquired. 7 .3 Counsel contented that the respondent was never a party to the proceedings under cause 2019 / HN / 186 where the undertaking was made. In this regard, a claim relating to the undertaking cannot be made in a fresh action. It must be made in the same action. It was the learned Counsel's submission that the procedure as set out in Order 29/L/32 of the Rules of the Supreme Court is that where the Court that granted an Order with an undertaking as to damages determines that there is damage that resulted, an assessment ought to be conducted. Further, the rule specifies that a party or a defendant in that J32 action can claim damages. Counsel strongly contended that the appeal arises out of a fresh action. 7. 4 In regard to the jurisdiction to hear the matter, Counsel submitted that the Court below had no jurisdiction to determine mining rights whether under repealed law or the new law. That under the repealed law, the jurisdiction was limited to the Mining Appeals Tribunal. It was Counsel's contention that the lower Court was wrong to have awarded damages and declare the respondent owner of the mining rights under that land. 7 .5 Counsel added that there are three Supreme Court decisions that have determined the issue of ownership of the Mine in question. Therefore, the matter was res judicata. 7.6 Learned Counsel Mr. Chibundi, on behalf of the respondent, contended that the argument that the Supreme Court had determined the issue of ownership of the mine does not come into play in this case because the respondent's Licence No. 24982-HQ-MPL has never been the subject of litigation in cause No. 2019/HN/ 186 or any other cause. 7.7 Counsel submitted that it was not in dispute that the injurious acts were done while the injunction was subsisting. Further, it was not in dispute that the respondent bought the land in J33 dispute at USD 15,000,000, which was dissipated under the guise of an injunction. Assets worth USD6, 000,000 in the form of stockpile and equipment were dissipated. The respondent submitted further, that there was no bar under the law against commencing a fresh action for a tortious act. The respondent properly commenced the action in the High Court. As the Judgment of the Court, the same was well reasoned based on the documents and arguments before the trial Judge. We were urged to dismiss the appeal for lack of merit. 7.8 In response to the above arguments, learned Counsel Ms. Chabala reiterated that the lower Court determined the mining rights of the respondent by its declaration that the respondent was the valid owner of Mineral Processing Licence 24982-HQ MPL. She submitted that the Supreme Court had stated in the case of EuroAfrica Kalengwa Mines v Lunga Mineral Resources (Supra) that the issues to do with the ownership of Kalengwa Mine had already been resolved in its earlier decision. She reiterated the appellants' position that the lower Court erred by awarding damages in this matter. We were urged to uphold the appeal. 8.0 ANALYSIS AND DECISION OF THE COURT J34 8.1 We have considered the appeal, the arguments and the authorities cited by the learned Counsel for the parties. As already noted earlier in the Judgment, we will only confine ourselves to the remaining grounds of appeal after having expunged those that offend the provisions of Order 10 rule 9(2) of the CAR 8 .2 We shall not rehash the historical background to the appeal earlier narrated under paragraphs 2 .1 to 2. 10. The facts are not in dispute that the appellants commenced an action against KPZL under cause No 2019/HN/ 186 wherein an Order of interim Injunction was obtained. It is also not in dispute that, in the application for an Order of Injunction, the Appellants made an undertaking as to damages should it later turn out that the injunction was erroneously obtained. The appellants discontinued the said action against KPZL and the Order of Injunction that was subsisting was vacated. Thereafter, the respondent commenced an action in the Lusaka High Court under Cause No. 2023/HPC/0282 claiming a number of reliefs earlier stated under paragraph 2.7 as well as damages. 8.3 It is not in dispute that the Court below upheld the respondent's J35 claim in a Judgment dated 22n d September 2023, which the appellant seeks to assail. See the holding of the Court below in paragraphs 3 .1 to 3.4. The issues for determination in this appeal, as we see them, are as follows: 1. Whether the High Court had jurisdiction to determine issues related to mining rights, namely the holding that the respondent is holder of a valid mineral licence number 24982-HQ-MPL or whether the matter should have been referred to the Mining Appeals Tribunal pursuant to the Mines and Minerals Development Act No. 11 of 2015. 11. Whether the High Court proceedings were irregular due to the alleged failure to conduct a scheduling conference, as required under Order 53, Rule 6(1) of the High Court Rules. 111. Whether the Judgment of the Court met the standard format or general set principles of judgment writing. 1v. Whether the appellants' injunction undertaking under Cause No. 2019/HN/0186 was properly enforced, and whether the respondent was entitled to - - J36 compensation for damages suffered due to the injunction. v. Whether the appellants unlawfully entered the respondent's land and deprived it of possession. vi. Whether the Court below erred in law and fact by awarding damages 1n the sum of USD21,000,000 arising from the alleged theft, pilfer age, and destruction of the Respondent's assets, and whether exemplary damages were justified. 8.4 In ground 6, similar to the expunged ground 2, the appellants contend that the Court below erred in law and in fact by declaring that the respondent is the valid holder of certificates of titles to land within the Kalengwa Mine and is entitled to remain in possession of such land when it had no jurisdiction to make the said declarations and determine issues pertaining to mining rights or surface rights. 8.5 The Court below, in its judgment at page J49 granted a declaration that the respondent is the title holder of certificates of title relating to farm no. 31477; farm no. 31478; and farm no 317479 Mufumbwe and bona fide purchaser of said properties, J37 which properties remain those of the Respondent to date and that by virtue of certificates of title, the Respondent is entitled to remain on the property in question. The Court went further and granted a declaration that the respondent is the holder of a valid Mineral Processing Licence no. 24982-HQ-MPL over its mining tenement in Mufumbwe known as Kalengwa Mine. According to the appellants, in the first instance, the said reliefs granted do not arise from a commercial transaction. Secondly the Mining right issues could only be determined by the Mining Appeals Tribunal under the repealed Mines and Mineral Development Act. 8 .6 The respondent, on the other hand, contends that the trial Court did not determine the dispute as to ownership of mining rights. It is contended that the Court was asked to make a declaration on the right relating to the Mineral Processing Licence, which should be distinguished from a Mining Licence. 8 .7 In determining the issues, we have considered the pleadings in the Court below. The reliefs sought by the respondent are noted on page 75 of the Record of Appeal. Particularly, under reliefs (ii} to (iv} the respondent pleaded as follows: J38 (ii) A Declaration that the Plaintiff is the Title Holder of Certificates of Title relating to Farm No. 31477; Farm No.31478, and Farm No. 314 79 Mufumbwe and Bona Fide Purchaser of the said properties which properties remain those of the Plaintiff to date. (iii) A Declaration that by virtue of Certificates of Title the Plaintiff is entitled remain on the property in question. (iv) A declaration that the Plaintiff is the holder of valid Mineral Processing Licence No. 24982-HQ-MPL over its mining tenement in Mufumbwe known as Kalengwa Mine. 8 .8 It is trite that in determining any action, it is imperative that a Court is vested with the requisite jurisdiction to do so. In Ventriglia and Ventriglia v Finsbury Investments Limited 1191 , it was held that: "Jurisdiction is everything (and that) without it, a Court has no power to make one more step .. . where the Court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing." According to the appellants, the jurisdiction to hear and determine matters arising from mining rights is the preserve of the Mining Appeals Tribunal in accordance with section 98(3) of the Mines and Mineral Development Act which provides that: 98 (3) The Tribunal has jurisdiction to- (a) inquire into and make awards and decisions in any dispute relating to exploration, gold panning and mining under this Act; J39 (b) inquire into, and make awards and decisions relating to, any dispute of compensation to be paid under this Act; (c) generally, to inquire into and adjudicate upon any matter affecting gold panning, the mining or non-mining rights and obligations of any person or the Government under this Act, except for matters under Part VII which shall be heard and determined by the Tax Appeals Tribunal; and (d) perform such other functions as may be prescribed under this Act or any other written law. 8.9 We had occasion to interpret this provision in the case of Sanhe Mining Zambia v Andrew Mazimba and Tirumala Balaji (Z) Limited t20J and guided on the jurisdiction of the Mining Appeals Tribunal as follows: In our considered view, the disputes that the Tribunal is empowered to resolve are those that relate to mining and non mining rights, inter alia. A disputant therefore, must have been granted a mining right, or a non-mining right or may have applied for a mining or non-mining right. The disputes that arise must relate to applications for the mining or non-mining rights, and the implementation of the rights, and all intermediate matters that arise from the application or the grant of the rights, as well as the implementation of those rights. (emphasis added) 8 .10 The relief in contention is number (iv) , a declaration that the Plaintiff is the holder of a valid Mineral Processing Licence No. 24982-HQ-MPL. Mineral processing is d efined in section 2 of the Mines and Mineral Development Act as the practice of beneficiating or liberating valuable minerals from their ores which may combine a number of unit operations such as crushing, grinding, sizing, screening, classification, washing, froth floatation, gravity concentration, electrostatic separation, magnetic separation, leaching, smelting, refining, calcining and gasification. A mineral processing Licence is further defined as a Licence granted under Part III for processing minerals and cutting, polishing and manufacturing jewelry. A non-mining right, referred to 1n section 98(3)(c), includes a mineral processing right. 8.11 Based on the above definitions, we hold the view that a dispute relating to mineral processing rights is captured under the Mining Appeal Tribunal. This is in line with our decision in the Sahne Mining (supra) 8.12 In the case of Konkola Copper Mines Pie v Rephidim Mining and Technical Supplies Limited and Others 1231, we distinguished the Sahne case <21J and noted in that case that the matter was not primarily premised on two conflicting mining rights, but on one party which has both mining and surface rights asserting its surface rights against another party, which • J41 only has mining rights. After consideration of the pleadings and the arguments, we went on to find that the matter not arising purely out of mining rights, the High Court had jurisdiction to hear and determine it. 8 . 13 The facts in casu, like the Konkola Copper Mines Pie (Supra) are different from the scenario in Sahne Mining case. The respondent in the present case holds certificates of title for Farm No. 31477; Farm No.31478, and Farm No.31479, Mufumbwe and also holds a mineral processing Licence No. 24982-HQ-MPL. The said certificates of title are alleged to be on property whose possession was given to the appellants by a decision of the Supreme Court under the case of EuroAfrica Kalengwa Mines Limited v. Lunga Mineral & Exploration Limited 1221. A clear reading of the respondent's reliefs in heads (ii) and (iii) reveals that it sought a declaration that it was the holder of the certificates of title and bona fide purchaser who should remain on the said property. 8 .14 It further sought a declaration that it held a valid mineral processing licence. The Court heard evidence on the validity of the certificates of title from pages J22 to J29 and J31 to J39 of the Judgment. Premised on this evidence, the Court below J42 found that the respondent is the rightful owner of the said properties. The Court below proceeded to hold that the respondent held a valid mineral processing licence and as such was entitled to resume and or continue their mining operations under the said licence. 8.15 The facts in this matter raise two distinct issues. The first one is a declaration purely on the validity of the title under the Lands and Deeds Registry Act, and the other is a declaration that the respondent holds a valid mineral processing licence and, as such should continue mining operations. 8.16 In the case of Chillerton Group Limited v Konkola Mineral Resources Limited and Another 1231, dealing with a matter that raised issues of both surface rights and mining rights, we held that: ... As rightly observed by the learned Judge in the Court below, the Respondents were title holders to the land to which they owned surface rights. In addition, they had a large-scale mining licence to the same land. By virtue of which they do not fall under the ambit of Part IV. In addition to that, as we held in the Sense le case, they are entitled to enforce their surface rights by civil action in the High Court as matters relating to surface rights are protected by The Lands Act and The Lands and Deeds Registry Act. • J43 A perusal of the writ of summons and the statement of claim shows that the Respondents in the Court below, in their reliefs were seeking declaratory orders as the rightful owners of the surface rights over their titled land and a declaratory order that the Appellants have no right to enter the land. Attendant to that, they were seeking a prohibitive injunction. They were also seeking anticipatory damages for interference and trespass. In our view, all these reliefs could not be sought under the provisions of the Act. 8.17 Based on the above decision and the other authorities we have referred to, we hold the view that the High Court correctly assumed its jurisdiction in respect to the claims sought relating to declaration that the respondent is title holder of the Farm numbers 31477 , 31478 and 31479 Mufumbwe and bonafide purchaser of the said properties, injunction and damages. The High Court had the requisite jurisdiction to interrogate the evidence led on the respondent's surface rights. 8.18 Our view in respect of the claim on the validity of the respondent's mineral processing license No. 24982-HQ-MPL over its alleged mining tenement in Mufumbwe in which the 2 nd appellant claims is a valid holder of Large-Scale Exploration License No. 8584-HQ-LEL should be determined by the Mining Appeals Tribunal. The Court below had no jurisdiction to determine the said claims and erred in law and fact. J44 8.19 In ground 13, the respondent challenges the holding of the lower Court that the appellant had illegally and irregularly entered the respondent's property and the award of damages for illegal entry, theft and pilferage of the respondents' plant and equipment. 8.20 We have combed through the record. It is evident that the question of the surface rights of the area is directly linked to the certificates of title held by the respondent namely, Certificate of Title number 302434 relating to Farm E/31477 Mufumbwe, Certificate of Title number 302431 relating to Farm E / 314 78 Mufumbwe and Certificate of Title number 302681 relating to Farm F/31479 Mufumbwe all situate in the North Western Province of the Republic of Zambia. 8.21 According to the evidence on behalf of the respondent, the records at the Lands and Deeds Registry revealed that the title was transferred from Lunga Mineral Resource to the respondent on 19th November 2019. 8.22 There was no counterclaim explicitly alleging fraud and setting out particulars of fraud in obtaining the said certificates of title. Furthermore, the record confirms that the 2 n d appellant initiated an action under cause number 2020/HP/ 1055 J45 challenging the certificates of title issued to the respondent. This matter was discontinued, and the issue remained unsettled. 8 .23 Another action under Cause No. 2023/HN/048 before the Ndola High Court, was commenced challenging the respondent's titles, contending that the certificates of title had been fraudulently acquired. This matter appears to be pending determination by the said N dola High Court. 8.24 Premised on this evidence, the Court below was bound to recognise the existence of the certificates of title issued to the respondent relating to the disputed property. 8 .25 We therefore do not fault the finding of the Judge that, in line with section 54 of the Lands and Deeds Registry Act, in the absence of fraud, a certificate of title is conclusive evidence of ownership of land. It therefore follows that the certificates of title are evidence that the respondent had subsequently acquired surface rights over the properties, namely farm no. 31477; farm no. 31478; and farm no 317479 Mufumbwe. 8.26 Notwithstanding the above, we find it cardinal to consider the contention by the appellants that the Land or Mine in issue was already given to the 2 nd appellant as held in a number of J46 Supreme Court decisions. Perusal of the record shows that the question relating to the ownership of the Kalengwa Mine was raised in several actions before the matter herein subject of the appeal. 8 .27 Our analysis of these feuds starts with the case ofHetro Mining & Ore Dealers Limited v. Attorney General & EuroAfrica Kalengwa Mines Limited 1241 decided in the year 2009. In that case, Hetro Mining, which was the appellant in that matter, had commenced judicial review proceedings in the High Court challenging the decision by the Minister to refuse the renewal of its small-scale mining licence and granting Euro Africa Kalengwa Mines Limited a prospecting licence over a mining area in Mufumbwe. On appeal, the Supreme Court found that the appellant had illegally obtained the Small-Scale Mining Licence in the first place, as there was already a valid prospecting licence held by African Minerals over the same area and therefore the renewal could not be issued. This decision, in essence, confirmed the decision granting a prospecting licence to Euro Africa Kalengwa Mines Limited over the mining area in Mufumbwe. 8 .28 In 2012, another action was instituted involving the same J47 parties namely, EuroAfrica Kalengwa Mines Limited v Hetro Mining & Ore Dealers Limited 1251. The appeal to the Supreme Court assailed the High Court ~ecision granting Hetro Mining ownership of the mineral stockpile at Kalengwa mine and the order that Hetro Mining be given not less than two years to process the copper ore that had accumulated. The Supreme Court reversed the High Court's finding and ordered that EuroAfrica Kalengwa Mines Limited should take vacant possession of the Kalengwa Mine. 8 .29 In 2015, another action graced the Court over the same Mine between EuroAfrica Kalengwa Mines Limited v. Lunga Mineral & Exploration Limited (supra) the Supreme Court reiterated its position in EuroAfrica Kalengwa Mines Limited v Hetro Mining & Ore Dealers Limited 1251 and ordered vacant possession of Kalengwa Mine to the 2 nd appellant herein. 8 .30 In the present case, key evidence on behalf of the appellants came from Chief Kizela whose evidence was that the conversion of customary land into leasehold title under the aforementioned certificates was conducted without his consent or knowledge , nor that of the royal establishment. Additionally, the Record of J48 Appeal reveals that 15,000 hectares had been approved by the royal establishment in favour of the 2 nd appellant, with subsequent recommendations for conversion from customary to leasehold title made by the Mufumbwe District Council. Despite this, evidence from the Ministry of Lands was that no such recommendation appeared in records at the Ministry of Lands. 8.31 Faced with this evidence, we hold the firm view that by virtue of the Supreme Court decisions regarding Kalengwa Mine, the 2 nd appellant was given vacant possession of the Mine, including the Mineral stockpile. The Respondent's certificates of title at present are clear evidence of the surface rights it possesses over the said properties until determining of the cause 2023/HN/048 challenging the said titles. Whether the undertaking by the Appellant in respect of the injunction under Cause No. 2019/HN/0186 was properly enforced. 8.32 Grounds 9, 10, 11 , 12, 14 and 15 in essence, seek the determination as to whether the undertaking as to damages arising from the injunction was properly enforced against the appellants. The starting point is a careful analysis of the nature of the claim under that cause. Guided by our finding as to who J49 owns the surface rights and in possession of the Mine. Facts as discerned from the record are that Lunga Minerals Resources transferred its surface rights to the respondent in November 2019. Prior to that, the appellants had already commenced an action against KPZL and obtained an order of interim injunction against it on 29th July 2019 under cause No. 2019/HN/0186. 8.33 One of the interim reliefs sought was an interim order of injunction restraining KPZL from conducting its mining activities over the tenement it held an exploration licence for. The respondent was not a party to those proceedings. The respondent alleges that it had given KPZL consent to conduct exploration activities on its properties. 8.34 It is noted that at the time KPZL is said to have gotten consent to start conducting mining operations on the disputed property, the respondent neither held surface rights nor mining rights. According to the Record of Appeal at page 867, the respondent made an application for a mineral processing licence on 23rd July 2019. By a letter dated 23rd October 2020, the respondent was issued a Mineral Processing Licence. A year after the injunction was obtained against KPZL. As already JSO established, the respondent only acquired surface rights to the disputed property in November of 2019 four months after the injunction was obtained. 8.35 We have observed, at page 1009 of the Record of Appeal, that KPZL was incorporated on 21 s t September 2018 and is a completely separate legal entity from the respondent. The law is settled on the principle that companies, even if subsidiaries of a parent company, have separate legal personality. In the case of Madison Investment, Property and Advisory Company Ltd. v Peter Kanyinji1261 the Supreme Court stated thus: The law takes the position that companies in a group are separate entities and are not agents of each other. At a general level, therefore, the effect of the rule in Salomon v. Salomon & Co. as it relates to individual subsidiaries within a conglomerate or group of companies is that they will be treated as separate entities and the parent company cannot be made liable for their legal obligations. Where there is an express agency relationship between a parent and a subsidiary, the veil of incorporation could be pierced. In Ebbau Vale Urban District Council v. South Water Traffic JSl Licencing Authority, the English Court of Appeal considered the relationship between the parent and a wholly owned subsidiary company. Cohen W pertinently observed that under: "the ordinary rules of law, a parent company and a subsidiary company, even a hundred per cent subsidiary company, are distinct legal entities, and in the absence of a contract of agency between the two companies, one cannot be said to be the agent of the other. " 8 .36 In this regard, it follows that any loss incurred as a result of the injunction against KPZL can only be claimed by KPZL as a separate legal entity. It is also on record that KPZL has instituted an action s eeking similar claims for damages against the appellants before the Ndola High Court referred to earlier. 8 .37 The learned author of Zambian Civil Procedure: Commentary and Cases, Volume 1 (Lexis Nexis, 2017) canvassed the issue of an undertaking as to damages at page 779 when he stated that: It is important to note that the undertaking in damages is given to the Court and not to the party enjoined. However, if it should be held at the trial that the plaintiff had not been entitled by interlocutory injunction to restrain the defendant from doing what he was threatening to do, or if it is established before trial that the injunction ought not to have been granted in the first place, the party enjoined may apply. .. J52 8.38 Under this principle, there are two aspects involved when an undertaking as to damages is made. Firstly, the party seeking an injunction gives an undertaking to the Court, rather than directly to the party restrained by the injunction. This gives the Court jurisdiction to enforce the undertaking, if necessary. Secondly, where the Injunction is later found to have been wrongfully granted, the party restrained by the injunction has the right to apply for damages. This means that unless a Court assesses that the third party had a direct legal interest in the injunction's impact, they cannot be allowed to claim damages. In other words, unless proof is shown that the injunction directly affects a third party, only a defendant so restrained can claim damages. 8.39 The basis of the claim for damages arising out of the injunction granted against KPZL is that the respondent is the owner of the certificates of title in respect of the land subject of the injunction. That the 2 nd appellant made a promise to pay damages to anybody who would suffer if it were found that it was unnecessary for it to have obtained the order. This injunction was in place for 3 years and fell off when the matter was discontinued in 2022. The Court below awarded damages JS3 in the sum of USD21, 000,000. 8.40 Our views on this are twofold. Firstly, the trial Court erred when it enforced the undertaking as to damages in an action where the respondent was not a party to the matter subject of the injunction. It 1s evident that the trial Court misapprehended the facts as to whether the defendant (KPZL) under cause No. 2019/HN/0186 was the same as the plaintiff before the lower Court (Kalengwa Mineral Processing Ltd). On pages J43-J44 of the Judgment, the Judge stated that: "I have already stated that after making others suffer that injunction/or almost three (3) years, the 1st and 2 nd Defendants unilaterally and without consent from the Plaintiff discontinued the whole case." 8.41 Secondly, even assuming for argument's sake that we accept that the injunction affected the respondent as a surface rights owner or title holder, the Court erred by awarding the said sum of US$21,000,000 without evidence of proof of damages suffered. In his judgment, the Judge recounted the respondent's claims and stated that the loss claimed was broken down as follows, the sum of USD 15,000, 000 which was the purchase price paid to Rochester Global Mining J54 Corporation by the respondent on behalf of the previous owner of the Land which in turn sold the land to them. The further sum ofUSD 6,000,000 awarded as damages arose from the loss in respect of the stockpile at Kalengwa mine. 8.42 In our view, in respect of USD 15,000,000, the said sum was the purchase price for the properties from Lunga Resources and cannot constitute damages/or foreseeable damages. The said damages are too remote and were paid for the purchase of the land subject of the issued certificates of title stated earlier. The said sum was actually pleaded to have been a loan from Rochester Global Mining Corporation to the previous owners of the land, which the respondent assumed in exchange for the land by way of a subordination agreement. The said sum awarded as damages is untenable. 8. 43 As regards the loss/ award of damages in the further sum of USD 6,000,000, the basis is on account of the appellants not getting economic value from its Mineral Processing Licence No. 24982 - HQ- MPL and being unable to account for its high-grade stockpiles as well as to process the same. In our view, this loss was not proved. Further, the Supreme Court, in respect of the Mineral stockpile at Kalengwa Mine, gave vacant possession of the said Mine to the 2 nd appellant, Euro Africa Kalengwa Mines JSS Limited. 8.44 In any event, there was no evidence led to show how the sum of USD6, 000,000 was arrived at. As already noted, this is insufficient to support the respondent's claim in this action. We therefore find merit in grounds 9, 10, 11, 12, and 15. We hold that the lower Court erred in law and fact in enforcing the undertaking under cause No. 2019/HN/ 186 because not only was the respondent not a party to the proceedings, it had no interest in the property whatsoever at the time the matter was commenced and the said injunction obtained. The lower Court's Order was made in the absence of evidence of proof of damages suffered by the respondent, warranting the award of the sum of twenty-one million dollars. 8.45 In ground 3 , duplicated in ground 16, the appellants challenge the proceedings in the lower Court as being irregular for failing to hold a scheduling conference. Though the appellants have raised this issue it was not raised in the Court below. It is trite that a point not raised in the Court below will not be raised on appeal. For this reason, we shall not consider the issue raised in ground 3 and 16. In any event, the record shows that on 15th J56 June 2023, the Court was scheduled to hear the matter by consent of the parties by an Order for Directions. The appellants were not present on the agreed date, and the Court went ahead to hear the respondent. 8.46 The record also shows that both parties subsequently had the opportunity to call witnesses in support of their cases. It is our firm view that the appellants suffered no prejudice in this matter as they were allowed to call witnesses and defend their case. 8.47 Regarding the challenge to the format of Judgment raised ground 7, we have read the decision of the Court below. Although the judgment is brief in its analysis, it is clear that it contains the facts, and the contentions by the parties. Further, the learned judge analysed the facts, evidence and made his finding. We hold that the Judgment met the requirements of a judgment as set out 1n the case of Zambia Telecommunications Company Limited v Aaron Mweene Mq.lwanda & Paul Ngandwe (supra). 8.48 In grounds 13 and 14, the appellants assail the holding that it illegally and irregularly entered the respondent's purported land and deprived it of possession. Further, the awarding damages J57 for the purported illegal entry, theft and pilferage of the respondent's plant and equipment. We have perused the Supreme Court Judgment. We quote a portion of the relevant holding of the case of EuroAfrica Kalengwa Mines Limited v. Lunga Mineral & Exploration Limited (Supra) in which the Supreme Court ruled that: "There is no dispute that the Respondent was not party to the earlier proceedings and the argument by the Respondent that it is a legal entity separate and distinct from its shareholders and Directors has merit. However, as we have determined above, the subject matter of this appeal has already been adjudicated upon by this Court in two final Judgments and in the Judgments of 25th March 2015 we ordered Hetro Mining to vacate the disputed mine with immediate effect and we allowed the Appellant to take possession of the mine, which was done under a writ of possession. For the Respondent to now challenge possession based on our Judgments is pure arrogance, particularly which the people behind the Respondent and Hetro Mining are the same people that have made unsuccessful claims to the mine in the two previous appeals. The view we take is that our fudgments and the Kalengwa Mine are res fudicata, meaning that it is finally decided. Res Judicata bars re-litigation of matters that have already been determined in adjudication. Specifically, res Judicata precludes only subsequent suits on the same cause of actions by the same parties after a final judgment on merits as we stated in Bank of Zambia v Jonas Tembo and others, but it also • J58 means the matter that is settled or a judgment, award or other determination that is consideredftnal and bars re-litigation of the same matter. In this case, the issue of fact affecting the status of the Kalengwa Mine has been determined in a final manner as a substantive part of the judgment of this Court, and the same issue cannot come directly in question in subsequent civil proceedings between any parties whatsoever. (Court's emphasis) 8.49 The Supreme Court granted possession o~ Kalengwa Mine to Euro Africa Kalengwa Mines Ltd, the 2 nd Appellant herein. The Supreme Court stated that the issue of Kalengwa Mine was res judicata, having been determined in a previous case. That the issue affecting the status of Kalengwa Mine had been determined in a final manner. Further, in their judgment of 25th March 2015, they ordered Hetro Mining to vacate the disputed mine and for the 2 nd appellant (EuroAfrica Kalengwa Mine Ltd) to take possession of the mine. 8.50 In our view, possession of the Mine having been given to the 2 n d appellant, it cannot be said to have unlawfully entered the land and deprived the Respondent of its right to possession. Therefore, the lower Court erred. In any event, we established earlier in the judgment that at the time the action was .. JS9 commenced in the Ndola High Court, the respondent in this matter had neither surface nor mining rights to the said properties. We agree with Counsel that the property was purchased from its previous owners knowing fully well that there was an injunction subsisting. To this extent, we find that the Court erred in granting an Order for damages arising out of the 1st appellant's illegal and irregular entry and occupation of the said property Mine. 8.51 We wish to note that the dispute over Kalengwa Mine, and the prospecting and mining licences therein has been confounded, in our view, by the Ministry of Mines and Mineral Development in the manner they issue, cancel and reinstate prospecting and mining licences, coupled with the Litigants and connected entities' lack of respect for Court Judgments\ Orders of the Courts of law, even where the Supreme Court has determined and pronounced itself on whom possession of Kalengwa Mine belongs to. Instead of accepting the outcome, the respondent and predecessor entities come up with ingenious means of challenging settled issues. This is a waste of precious limited Court resources and time. And is highly condemned by the Court. (,. 9.0 CONCLUSION J60 9.1 We uphold grounds 6, 9 , 10, 11, 12, 13, 14 and 15. We accordingly set aside the judgment of the Court below and hold that the respondent is not entitled to the claims sought, save for a declaration that it is title holder of certificates of title relating to Farm numbers 3 1477, 31478 and 31479 Mufumbwe. 9 .2 For the avoidance, we hold that the r espondent is not entitled to damages in the sought sum ofUSD 21,000,000. We set aside the award of damages in the said sum arising out of the alleged illegal irregular entry occupation of the said properties as well as the damages arising out of theft and pilferage of the alleged plant and equipment. 9. 3 We uphold the claim for a declaration that by virtue of certificates of title, the respondent is title holder of certificates relating to Farm No. 31477, 31478 and 31479 Mufumbwe and are entitled to remain on the properties as surface rights owner, possession of Kalengwa Mine having been given to the 2 nd Appellant by the Supreme Court in the earlier cited decision. 9 .4 The issue of whether the respondent is a bonafide purchaser for value is pending determination before the lower Court in another Cause. As is the issue of whether the said titles were ,, J61 fraudulently obtained. We shall not pre-empt the decision. The appeal having substantially succeeded, we award costs to the appellants to be taxed in default of agreement . . . . . . . . . . . . .. . . . . . . J. ................... . M. J. Siavwapa JUDGE PRESIDENT F. M. Chishimba ..................................... A. N. Patel COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE