Chivumbwe Mining Limited v Grizzly Mining Limited and Anor (2025/HP/0904) (12 December 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HP/0904 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CHIVUMBWE MINING LIMITED PLAINTIFF AND GRIZZLY MINING LIMITED 1 ST DEFENDANT PRIDEGEMS MINES LIMITED DEFENDANT 2ND Before the Honourable Lady Justice S. Chocho, in chambers on the 12th day of December, 2025. For the Plaintiff Mr. W Chinyemba of Messrs Eric Si/wamba, Jalasi and Linyama Legal Practitioners. For the Defendant: Mr. C Chali of Messrs Chali Chitala Advocates. RULING Cases referred to: 1. Antonio Ventrigrilia and Another v Finsbury Investments Limited SCZ Appeal No 2 of 2019. 2. Order 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 3. Konkola Coppermine PLC Appeal No. 74 of 2018. 4. Kalymnos Processing Limited and Another v Konkola Copper Mines Appeal No. 74 of 2023. Scanned with ~ CamScanner- Legislation referred to: 1. Order 33 Rule 3 and 7 of the Rules of the Supreme Court of England (White Book) 1999 Edition. 2. Order 14 Rule 2 of the Rules of the Supreme Court of England (White Book) 1999 Edition. 3. Order 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 4. Sections 5(1), 11, 78 (3), 84 and 86 (6) of the Minerals Regulations Commission Act, 2024. l . INTRODUCTION 1.1. This is a Ruling in Respect to the Defendants application for an Order to dismiss matter on a point of law. The Notice of Motion to Raise Preliminary Issues on points of Law is made pursuant to Order 33 Rule 3 and 7 and Order 14 Rule 2 of the Rules of the Supreme Court of England (White Book) 1999 Edition as Read together with Order 18 Rule 19 (a) of the High Court Rules, Chapter 27 of the Laws of Zambia. 1.2. The Defendants application is supported by an affidavit in support of application Lo raise Preliminary Issues on points of law and a list of authorities and skeleton arguments filed into Court on August J 911t, 2025. Scanned with Ci CamScanner- 2. BACKGROUND 2.1. The background this matter as per pleadings and affidavit evidence LO is that the Plaintiff commenced this matter against the Defendants by \\'ay of Writ of Summons and Statement of Claim dated June 26th, 2025 claiming the follo,,·ing reliefs; i) An Order for an injunction restraining the Defendants, their servants, agents, or any persons acting under their authority, from further trespassing upon, entering, occupying or conducting any unauthorized activities, including but not limited Lo mining and water pumping operations, within the area covered by Small Scale Exploration Licence No. 38563-HQ-SEL; ii) Damages for trespass Lo be assessed by the Court; iii) /\n Order for the removal of all equipment, structures and materials introduced by the Defendants onto the area covered by Small Scale Exploration Licence No. 38563-HQ-SEL; iv) Costs incidental Lo this action; and v) Any other relief the Court may deem just and equitable. 2.2. The Defendants entered Appearance and filed a Defence on .July 21st, 2025. 2.3. The Defendants made an application for lhe determination of points of law on August l 9th, 2025. The issues for determination arc as follo\\'s; Scanned with : Ci CamScanner-! ------------·······---------· i) Whether or not this Honourable Court has jurisdiction to adjudicate upon this matter as it relates to ownership, boundaries of and entitlement to Mining Rights; ii) Whether or not the Plaintiff has a cause of action against the Defendants herein; and iii) If all the questions or one them is answered in the negative, the Plaintiff's case should be dismissed with costs to the Defendants. 2.4. The Plaintiff made an application for an Order for interim injunction on September l 8th, 2025. 3. AFFIDAVIT EVIDENCE 3.1. The Defendants filed an affidavit in support of application to raise Preliminary Issue on points of law on August l 9th, 2025 deposed by one Langsone Mukuma. 3.2. The Defendants aver that this Court cannot adjudicate on this matter without determining the ownership, boundaries and entitlements relating Lo the Plaintiffs' Small Scale Exploration License No. 38563 - HQ - SSL and BestGrade under License No. 7200 - HQ-SML and Small Scale Mining License No. 7142 - HQ - SML. 3.3. The Defendants ave,· that all disputes concerning the issues, validity and boundaries, of mining rights fall within the jurisdiction of the Mines and Minerals Tribunal which is mandated by statute Lo resolve such matters. Scanned with Ci CamScanner· 3.4. The Defendant avers that seeking an injunction from this Court under the guise of a trespass action amounts to the Plaintiffs improperly attempting to circumvent the statutory procedures and the exclusive jurisdiction of the Mines and Minerals Tribunal. 3.5. The Defendants avers that the Plaintiff has no cause of action 111 trespass against the Defendants. 3.6. In opposition, the Plaintiff filed an affidavit in opposition to the affidavit in support of Notice of motion to raise Preliminary Issues on points of la\\" on September 1 ll11, 2025 deposed by one Bryan Pinkney. 3.7. The Plaintiff avers that the area covered by the Plaintiff's Small-Scale Mineral Exploration License No. 38563 - HQ - SEL does not overlap with License No. 7200 - HQ - SML and Mining License No. 38563 - HQ - SEL. 3.8. The Plaintiff avers that a search as conducted on the Zambia Mining Cadastre eGovernment portal in respect of Small-Scale Mineral Exploration Licence no. 38563 - HQ SEL on July 20th, 2025 and it was discovered that the Plaintiff was no longer reflecting as the legal owner but the records indicated the existence of Small-Scale licences 3.9. No. 7142 - IIQ - SML and No. 7200 HQ - SML registered in the name of Best Grade Mining Investments Limited. 3.10. The Plaintiff avers that the area covered by the Plamtifrs Small-Scale Mineral Exploration Licence No. 38563 - HQ - SEL has not been subject of sale as the same was acquired from the Ministry of Mines ;:rnd s Scanned with ~ CamScanner- Mineral Development directly after cancellation of the licence previously held by Marlex Mining Investment Limited. 3. I I. The Plc1intiff avers that the Ministry of Mines and Minerals Development issued a public notice averring that 3,429 mining and non-mining rights were to be defaulted by the Mining Licence Committee for non compliance \\'ilh Mines and Minerals Development Act, and that the respective holders were given 30 days within which to sho\,. cause why their licences should not be revoked. 3. 12. The Plaintiff avers that on August and 12th 2024, the said Small Scale License No. 7200 held by Marlex Investments Mining Limited \\'as cancelled al the time it was allegedly transferred or given to BestGracle Mining Investments Limited. 3.13. The Plaintiff avers that this dispute is not one of mineral rights but rather surface rights and that this Court docs have the Jurisdiction to adjudicate upon this matter. 3.14. The Plaintiff further avers that this matter is deeply entrenched in the torL of trespass. 3. 15. The Defendants filed an affidavit in reply Lo the affidavit in opposition to affidavit 1s support of Notice of Motion to raise Preliminary Issues cla1cd September 17th 2025 deposed by one Langsone Mukuma. , 3.16. The Defendants aver that they do not claim or assert ownership of the area covered by the Exploration Licence Number 38563-1 IQ-SEL but deny that the Pla1n1iff has exclusive rights over the area as the area is Scanned with Ci CamScanner- subject of and covered by Small Scale Licence No. 7200-HQ-SML owned by BestGrade Mining Investment Limited. 3. 17. The Defendants aver that the Plaintiff has conceded that il holds no legal claim lo the area covered by the Exploration Licence No. 38563HQ-SEL as the system does not reflect or recognise the Plaintiff as the owner of the said licence. 3.18. The Defendants aver Lhal any activities conducted have been under the instructions and on behalf of BetsLGrade Investment Limited who is the registered owner of Small Scale Licence No. 7200-HQ-SML and Small Scale Licence No. 7142-HQ-SML. 3.19. The Defendants aver that Small-Scale Licence No. 7200-HQ-SML and Small Scale Licence Number 7142-HQ-SML were transferred to BeslGrade Mining Investments Limited on July 2nd, 2025 and not the alleged July 23rd, 1997. 4. COURSE OF HEARING 4. I. The application was heard on September 18th, 2025 and both parties were present al the hearing. 4 .2. The Defendants abandoned the second question of law raised in the Notice of Motion and staled Lhal Lhey wish lo concentrate on the first question on Jurisdiction. 4 .3. The Defendants slated that reliance will be placed on the affidavit in support and !isl of authorities and skeleton arguments filed into Court Scanned with Ci CamScanner- on August 1 Sth, 202:i ,rnd the afficl..n 1t in reply and skeleton argunwnts filed into Court on St·ptt·mbcr J 7111, 202:'>. •1.4. The Defendants submitted that the issues hert'm can on!) be rcsol\'l'cl b, the i\linislry of Lands through the Mining Appeals Tribunal and that even though this Court has the Jurisdiction to adjudicate upon mining rights concerning trespass, the ,Jurisdiction only comes in when the complainant cnjo,·s surface rights acquired by O\\"ning license and in the case 111 casu, the Plaintiff docs not own the land. 4 5 In response, the Plaintiff stated that they filed an affidavit in opposition and skeleton arguments on September 11th, 2025 and stated that they will rclv on the same. 4 .6. The Plaintiff submilled that the action has been commenced against the Defendant relating to trespass over land the Pl,unliff acquired consent to use from the Chief. 4.7. The Plaintiff submitted that the action is one of trespass and not competing licences and that the action for trespass is viable. •1.8. In reply, the Defendants submilled that the Plaintiff has no locus standi to take out these procccd111gs. 5 LAW AND SUBMISSIONS :1 I. The D< f< ncbnts filed skeleton argumc nts in support of its <1pphcation on St'ptcmbcr I 2025. J 1h, S 2 The Defc.:nclants sub1111t that this Court l,1cks the ,Jurisd1ct1on lo t ntcrtain th<.: Plaintiff's claim ,ts 1t contains matters exdus1vt:I\' \\'ithin Scanned with Ci CamScanner- the jw·isdicLion of the Minerals Regulations Commission c1nd the ivlming Appeals Tribunal under the Mineral Regulation Commission Act, 2024. 5.3. The Defendants submit that this Court has the jurisdiction lo hear and determine the Defendant's preliminary issues. Reliance is placed on a plethora of authorities which I shall not reproduce as the same arc on record. 5.4. The Defendants submit that this Court lacks jurisdiction to entertain the Plaintifrs claims as the subject matter, the ownership and controlling mining rights fall exclusively under the jurisdiction of the Mines and Minerals Regulation Commission, the Mines Appeals Tribunal and the Court of Appeal in that Order. 5.5. Placing reliance on Sections 5(1), 78 (3) and 86 (6) of the Minerals Regulations Commission Act, 2024, The Defendants submit that the /\ct provides the grievance and dispute resolution procedures where it comt:s to dealing with mining rights and that Lhe Mining Appeals Tribunal is the appropriate body for hearing disputes regarding mining rights and related matters. The Sections provide as follows; "There is established the Minerals Regulation Commission which is a body corporate with perpetual succession and a common seal, capable of suing ad being sued in its corporate name and with power subject to the prouisions of this act, to do acts and things that a body corporate may, by law, do or perform." Scanned with Ci CamScanner· "The Tribunal shall have jurisdiction to hear and detennine (d) appeals from decisions of the Commission, or a person exercising the functions or power of the Commission; (e) proceedings relating to misconduct in the mining industry; and {f) Such other matters as may be specified in, or prescribed in terms of this Act or any other written law." "A person aggrieved with the decision of the Tribunal may, appeal to the Court of Appeal." 5.6. The Defendants submit that it is clear that the jurisdiction of the Mining Tribunal is exclusive and exhaustive in malters relating lo mining rights and the High Court has no role in adjudicating such disputes. 5.7. The Defendant's further submit that the Plaintiffs allcmpl to frame this mauer as a simple trespass action is a deliberate effort to circumvent the ,Junsdict1on of the Tribunal and improperly obtain an injunction from the Court. 5.8. In oppoc;1t1on, the Plaintiff filed skeleton arguments in opposition on September I I 11, 2025. 5.9 Tht Plaintiff submits that Order 33 of the Rules of the Supreme Court of England dews not appl~ to the present circumstances as BcstGradc Mining ln\'cstment Limited, an interested party is not a purtv to these proceccl1ngs. Scanned with ~ CamScanner- :i I 0. The Platntiff submns that \\·hcthcr this Court has Junsd1ction is anchored on BcstGrade's Small-Scale Mining License No. 7299 - HQ - S£\IL and Small - Scale Mining License No. 7142 - HQ - SML but BcstGrade M111111g Investment Limited is not a party to the proceedings. 5. I I. In reply to the Plaintifrs opposition, the Defendants submit that m hght of the case of Antonio Ventrigrilia and Another v Finsbury Investments Limited SCZ Appeal No 2 of 20191 a Court cannot , make la\\'ful decrees in the absence of jurisdiction. 5. I 2. Placing reliance on the case of Citi Bank v Suhahyl Dudhia Appeal No. 6 of 20222, the Defendants submit that a jurisdictional question must be raised at any stage of proceedings either by formal application or viva voce. 5.13. The Defendants submit that the Plaintifrs concession that the Ministry of Mines records do not reflect them as holder of licence goes to the very root of this matter as the Plaintiff docs not have a legal right or interest capablt.: of being affected. fi COURTS DECISION 6. I. I h;1ve had occr1s1011 Lo review and consider the application, having hcmd Counsel for the Plaintiff ,rnd Counsel for the Defendants, rl'ad till' affida\'its, skclt·ton arguments and authoril!l'S cited by the p,lrllcs for \\'hich I am grateful. 6.2. The quest 1011 the Defendants raise 1s one of jurisdiction and one that must be attendee.I to as 1t is a tntc pnnc1pk of la\\' that a Court can onl\· Scanned with : Ci CamScanner-! ------------·······---------· hear and determine matt<.:rs that arc within its jurisd1ct1on The c.letcrm111at1on of the same has a bearing on the injunction application. The issue for clcterm111ation is reproduced 111 2.3 above. fi.3 It 1s the Defendants contention that this Coun as no Junsdiet10n to ,ldJu<licatc this matter as 1t boarders on dcterm111at1on of ownership. boundaries and entitlement of mining rights. The Defendants arc of the ,·1c,,· that although cause of action is trespass, the same cannot be determined m111us the Court pronouncing itself on the issue to do ,,·nh mining nghts. b . .:.I On perusal of the Plaintifrs Statement of Claim, it is the Plaintifrs claim that the Defendants have \\'rongfully/unlawfully entered, occupied and conduct unauthorized activities in the area covered by Small-Scale Exploration Licence No. 38563-1 IQ-SEL, the Licence \\'hich the Plaintiff claims to be the la\\'ful holder. 6.5. The Court of Appeal 111 the case Konkola Coppermine PLC Appeal No. 74 of 20183 nghtl\' guided that matlers relating to mineral rights and mining licences arc governed by the l\lines Act while malters relating to su1face rights can be enforced by taking out a civil action. This position \\'as later affirmed in the case of Kalymnos Processing Limited and Another v Konkola Copper Mines Appeal No. 74 of 20233. 11.(>. The Minerals Regulation Commission Act provides fur a dispute n solution framc\\'ork The /\cl in Section 11 provides for the types of 111111111!~ nghts .I!-. folio\\ s: Scanned with : Ci CamScanner-! ------------·······---------· "11. (1) The following mining rights may be issued under this Act: (a) an exploration licence; and (b) a mining licence". G 7. From the above pro\'ision of the la\\', it is clear that mining licences/ issues to do with mining licences fall under mining rights. Furthermore, the dispute resolution procedure is embedded 111 Sections 78, 84 and 86 which provide as follo\\'s: "78. (1) There is established the Mining Appeals Tribunal. (2) The Tribunal shall have an official seal which shall be judicially noticed. (3) The Tribunal shall have jurisdiction to hear and determine (a) appeals from decisions of the Commission, or a person exercising the functions or powers of the Commission; (b) proceedings relating to misconduct in the mining industry; and (c) such other matters as may be specified in, or prescribed in terms of this Act or any other written law". "84. A person aggrieved with a decision of the Commission may, within thirty days of the decision of the Commission appeal to the Tribunal". "86. (6) A person aggrieved with the decision of the Tribunal may, appeal to the Court of Appeal". b.8. 011 perusal of the pleadings and evidence on record, I am of the view that the Plaintiff has not shown that they have surface rights but rather Scanned with Ci CamScanner- claim to have <l Small-Scale Exploration Licence over the .1rca 111 dispute. o.o. This 1s one such matter m which the procedure provided in the Minerals Regulation Commission Act is to be followed as the claim OH'r the c1rca is based on a Small-Scale Exploration Licence and in dctermi111ng whether the Defendant has trespassed on the area; this Court will have to mterpn:t/ look into the Plaintiffs assertion that the Plainllff 1s the rightful licensee over the area \\'hich goes to a determination of mining rights. Determination of the same lies \\·1th the M111111g J\ppeal Tribunal. 6 10. For the foregoing, this Court does not have the jurisdiction to entertain the Plaintiff's action. I am fortified by the authority in the case of Antonio Ventriglia and Another v Finsbury Investments Limited Appeal No. 2 20191 in which it was guided that jurisdiction is indeed cvcrnhing and out of nothing comes nothing. The proceedings Ml' improper!\' before me. o.11 I laving found as above, determining the Plaint1ffs injunction appl1cat ion becomes ot1ost. ·--------------------------- : Scanned with ii ! CamScanner- ·---------·-······----------- 7. CONCLUSION 7.1. For the foregoing reasons, I HEREBY dismiss the Plaintiff's matter in its entirely as this Court lacks the requisite jurisdiction Lo hear and determine the action. 7 .2. For the avoidance of doubt, the injunction application and other applications filed by both parties and arc yet Lo be heard and determined in this matter fall for want of jurisdiction. 7.3. Costs to the Defendants lo be taxed in default of agreement. 7.4. Leave Lo appeal is granted. Delivered at Lusaka on the 12th day of December, 2025. REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA MiG.□EC /Q/5 •~ S. CHOCHO S. CHOCHO.J P. 0. BOX 50067, LUSAKA HIGH COURT JUDGE 15 Scanned with Ci CamScanner-