Kagem Mining Limited v Bisma Investments Limited and Ors (2024/HP / 1635) (9 April 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/HP/ 1635 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KAGEM MINING LIMITED PLAINTIFF AND BISMA INVESTMENTS LIMITED 1 DEFENDANT ST PRIDEGEMS MINES LIMITED DEFENDANT 2ND GRIZZLY MINING LIMITED JRD DEFENDANT ABDOULAYE NDIAYE DEFENDANT 4TH MANITOBA TRADING DMCC DEFENDANT 5TH BEFORE: HONOURABLE, LADY JUSTICE G. C. CHAWATAMA IN CHAMBERS ON THE 09TH APRIL, 2025 For the Plaintiff Mr. A. Akapelwa from Messers Chibesakunda & Co v Miss. P. Lombe. In house Counsel For the Defendant Mr. Z. Muya and Miss. N. Chila from Messers Muya & company. • Mr. C. Chali from Messers Chali Chitalu Advocates RULING CASES CITED 1. Katenge Resource Limited v Avarmma Mining Co,poration Limited, ZCCM Investment cjA Holdings and the Attorney General no 153 of2 017 2. Kalymnos Processing Limited, Albe ··na Kashiba v Konkola Copper Mines CA no 74 of2023 LEGISLATION REFERRED TO 1. Mines and Minerals Development A t No. 11 of 2015 2. Rules of the Supreme Court of Engl nd 1999 edition · Rl 1.0 INTRODUCTION 1.1 The record reveals that on the 15th November, 2024, the Plaintiff commenced this action, seeking the following reliefs: 1. A declaration that there existed an express contract, alternatively a contract implied by law between the Plaintiff and the 1st Defendant for the sale and purchase of the Bisma Licence in consideration for the payment by the 1st Defendant to the Plaintiff of the fair market value of the Bisma Licence; 2. A declaration that the fair market value of the Bisma licence was USD 165,000,000; 3. A declaration that the 4th Defendant is the ultimate beneficial owner of the 2nd , 3rd and 5th Defendants and that the 2nd and 3rd Defendants are to be treated as the 4th Defendant's nominees and agents for all • purposes in connection with the holding of the Bisma licence and the exercise of mining rights thereunder; 4. A declaration that by virtue of the transfer of the Bisma Licence from the 1st Defendant to the 2nd and or 3rd and or 4th Defendants, the 1st Defendant's liability to the Plaintiff under the contract transferred onto the 2nd and or 3rd Defendant; 5. An order for payment by the 1st Defendant to the Plaintiff of the fair market value of the Bisma Licence R2 under the contract and or damages for breach of the contract; 6. Alternatively, an order for payment by the 2nd 3rd and , 4th Defendants to the Plaintiff of the fair market value of the Bisma Licence in accordance with the express terms of the Bisma licence and/ or section 66(5) of the Act; 7. A declaration that the 2nd Defendant holds title to the mining rights under the Bisma licence on a constructive trust for the sole benefit of the Plaintiff; 8. An order that the 2nd defendant and or the 3rd defendant and or the 4th Defendant take all necessary steps forthwith to transfer, alternatively an order that they procure the transfer of the mining rights subject of the Bisma Licence to the Plaintiff. 1.2 On the 24th January, 2025, the Defendants filed a • memorandum of appearance and notice of motion to raise preliminary issues. 1.3 The notice of motion to raise preliminary issues contained the following points of law for determination: "1. Whether the Plaintifjs action against the Defendants constitutes an abuse of court process on account of multiplicity of actions or forum shopping, given that R3 there have been two separate previously commenced and dismissed actions by this Court before the Honourable Mrs. Justice Lamba under cause No. 2016/HK/758 and before the Hounorable Justice Pengele under cause No. 2022/HK/08. 2. Whether, in the alternative, this Honourable court has no jurisdiction to determine mining rights disputes as the Mines and Mineral Development Act provides for alternative dispute resolution; 3. Whether the Plaintiff did not properly serve the 5th defendant, a corporate entity registered outside Zambia and whose registered address is not in Zambia; and 4. That the Plaintiff herein be condemned in costs due to the forgoing. 1.4 I must state that the Plaintiff, on the 3rd March, 2025, filed an ex parte summons, which this Court directed that it be heard inter party for an order to stay proceedings pending an application for consolidation of actions pursuant to Order 3 rule 2 of the High Court Act. 1.5 This is therefore the Ruling on the applications stated above. I will start with the notice of motions filed by the Defendants. R4 2.0 THE DEFENDANT'S NOTICE OF MOTION 2.1 The Defendant's notice of motion to raise preliminary issues was made pursuant to Order 14A rule 1 of the Rules of the Supreme Court 1999 edition, which provides that: Order 14A: "fl) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that- (a) Such question is suitable for determination without a Ju ll trial of the action, and (b) Such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. 3.0 AFFIDAVIT EVIDENCE 3.1 The affidavit in support of notice of motion was sworn by Carolyne Maphenduka, the company secretary in the 3rd Defendant, a personal assistant to the 4th Defendant, and an officer in the 5th Defendant. RS 3.2 She deposed that the action has been commenced by the suppression of the following material facts. a) That the Plaintiff had previously commenced an action at the High Court under cause No. 2016/ HK/ 758 relating to the ownership, issuance, and use of the Bisma licence, but was dismissed for want of jurisdiction by honourable Justice Lamba. A copy of the Ruling was produced in evidence and marked ((CMl ". b) That the Plaintiff commenced another action under cause No. 2022/H K/ 08 attacking the issuance, ownership, and the 2nd Defendant's purchase of license number 13811-HQ SML from the 1st Defendant, but the said action was again dismissed for want ofj urisdiction, inter alia by Honourable Justice E. Pengele. Copies of the originating process of cause no. 2022/ HK/ 08 was exhibited and marked ((CM2". 3.3 That the 1st Defendant was the holder of the licence number 13811-HQ-SML, which was produced and marked "CM3". The 2nd Defendant purchased the mining rights comprised in the Mining Licence 13811-HQ-SML from the 1st Defendant at the consideration of USD 3,000,000 as a bona fide purchaser for value without notice of any allegations of misrepresentation, mistake, fraud, or procedural impropriety on the part of any person or persons relevant to the purchase. Copies of the smallR6 scale mining licence no. 13811-HQ-SML and the sale-purchase agreement were exhibited and marked "CM4-5". 3.4 It was averred that the 2nd Defendant undertook all the statutory obligations, including taxes, to effect the change of ownership of mining licence No. 13811-HQ-SML. A copy of the property transfer tax receipt was exhibited and marked "CM6". 3.5 That the 2nd Defendant is currently the lawful and registered holder of mining license no. 13811-HQ-SML, being a bona fide purchase for value without any notice of fraud, mistake, misrepresentation, or procedural impropriety from any relevant party. 3.6 It was averred that the recitals exhibited in "CM4" show that the transfer of the license from Bisma Investments Limited to the 2nd Defendant was effected on the 15th February, 2022, as per court order. That the local chief of the area covered by the mining licence No. 13811-HQ-SML, Chief Nkana (Godfrey Shamanena), is a majority shareholder in the 1st Defendant company. Acknowledged payment of the consideration under the sale-purchase agreement was exhibited and marked "CM3". 3.7 That Chief Nkana consequently consented to the 2nd Defendant exercising its rights as the holder of the mining licence No. 13811-HQ-SML and has sworn several affidavits to that effect. R7 That the Plaintiff has not lodged any appeal with the Ministry of Mines expressing its dissatisfaction with the rights acquired by the 2nd Defendant under license No. 13811-HQ-SML. 3.8 It was deposed that this action has been commenced without disclosing the material fact that the Plaintiff had previously commenced two separate actions before the High Court sitting at Kitwe, before the Honourable Justice Lamba, as well as another before the Honourable Justice Pengele, concerning the ownership of mining license number 13811-HQ-SML and re issuance of the same to the 1st Defendant. 3. 9 That the Plaintiff has overlooked that the two actions it previously commenced have been determined and dismissed by the honorable Courts before which they were commenced. That evidence is on page R38 under cause No. 2022/HK/08 of the exhibit "CM2". 3.10 It was averred that the Plaintiff has improperly issued a writ of summons in the action against the 5th defendant, as it has refused, failed, and neglected to properly serve the 5th Defendant, a corporate entity registered and having its registered address in Dubai in the United Arab Emirates. R8 4.0 AFFIDAVIT IN OPPOSITION 4.1 The affidavit in opposition was sworn by Penelope Chisanga Lombe, the in-house legal counsel of the Plaintiff. She deposed that it is disputed as regards the allegations that the Plaintiff suppressed material facts in the commencement of this action. Also, that she was advised by her advocates that the statement of claim that the Plaintiff filed is only meant to contain material facts relevant to the case that the Plaintiff is advancing in the matter. 4.2 It was averred that the action under cause No. 2016 /HK/758 emanated from judicial review proceedings wherein the Plaintiff applied for leave to commence judicial review against a decision of the then Minister of Mines reinstating mining licence no. 13811-HQ-SML to the 1st Defendant. That the parties to the cause no. 2016/HK/758 were the 1st Defendant and the Attorney General (on behalf of the Minister of Mines); none of the other Defendants to this matter were a party to the cause No. 2016/ HK/ 758. Also, that cause no. 2016/ HK/ 758 was dismissed on a technicality relating to the wrong mode of commencement as provided by the ruling dated 8th December 2017 at pages Rl0 and Rll, which ruling is exhibited in the affidavit in support of the Notice of Motion as "CMl". R9 4.3 That the action under cause No. 2022/HK/08 was commenced initially by one Joseph Chanda a shareholder in the 1st Defendant company against the defendant. That Joseph Chanda alleged that the sale of the Bisma licence from the 1st defendant to the 2nd Defendant was fraudulent and sought an interim injunction against the 2nd Defendant's continued mining in the area. That the claims that Joseph Chanda had against, inter alia, the 2nd Defendant are contained in the affidavit in support of notice of motion and exhibited as "CM2". That the exhibits CM2 do not contain any of the Plaintiffs originating process in the cause no. 2022/HK/ 08. 4 .4 Further, that in those same proceedings, another shareholder of the 1st Defendant named Godfrey Shamanena deposed to the affidavit in support of the injunction and in the affidavit stated that the Bisma licence was fraudulently sold to the 2nd Defendant, which evidence contradicts the statements made at paragraph 13 of the Affidavit in support of the notice of motion. The affidavit of Godfrey Shamenena was exhibited and marked "PCLl". 4.5 The deponent verily believes that both Joseph Chanda and Godfrey Shamanena are still shareholders in the 1st Defendant, holding 43% and 11 % issued shares respectively. A copy of a Patents and Companies Registration Agency printout on the 1st Defendant was exhibited and marked "PCL2". RlO 4.6 That the Plaintiff, upon becoming aware of the proceedings under cause no. 2022/HK/ 08 made an application for joinder on the basis that it had an interest in the proceedings and was likely to be affected by the outcome of those proceedings. By the Ruling of Justice Pengele dated 27th March, 2023, the Plaintiff was joined to the proceedings. A copy of the ruling of joinder was exhibited and marked "PCL3". f 4.7 It was averred that upon being joined to the proceedings, the Plaintiff presented its claims, which were primarily founded on tort, against inter alia, the 1st and 2nd Defendant in relation to the bisma licence and the fraudulent/invalid issuance and transfer of the licence. The Plaintiffs statement of claim was exhibited and marked "PCL4" 4.8 That in cause no. 2022/HK/08, the Plaintiff sued, inter alia, the nd 1st and 2 Defendant and the Attorney General as the allegations therein related only to the issuance and the transfer of the bisma licence. The 3rd 4th and 5th Defendants were not , party to the cause no. 2022/HK/08. 4.9 It was averred that Honourable Justice Pengele by his ruling dated 10th September 2024 determined that the ruling in cause no. 2016/ HK/ 758 having not been overturned still stood and therefore the court had no jurisdiction to deal with the matter and that the matter ought to be before the Mining Appeals Rll Tribunal. A copy of the ruling of 10th September, 2024 was exhibited and marked "PCLS". 4.10 That in the proceedings under cause no. 2022/HK/08, in addition to raising a preliminary issue on jurisdiction, the 2nd Defendant had contended that the matter was res judicata on the basis that there had been a previous action determining the dispute relating to the Bisma licence. That in the Ruling of 10th September, 2024 Justice Pengele held that the matter was not res judicata as there was no judgment or decision of the court that had adjudicated upon the Plaintiffs claims on the merits. 4.11 It was averred that the deponent has not stated the full factual matrix regarding the bisma licence and how the mining rights it relates to shifted from the Plaintiff, now purportedly to the 2nd Defendant. That the deponent believed and is informed, having perused relevant documents, that the 1st Defendant applied for and was issued the bisma licence on 7th August, 2009, which licence purportedly granted the 1st Defendant mining rights over the area subject to the licence. That the bisma licence was revoked on 10th November, 2009 by the Director of Mines on the basis that it had been granted over an area that fell within the Plaintiffs mining licence area licence no. 14105-HQ-LML. Copies of the letters issued by the Director of Mines speaking to the illegality and ultimate cancellation of the Bisma licence were exhibited and marked "PCL6 (a) and (b)". R12 4.12 It was the deponent further averment that having read letters of correspondence between the office of the Minister of Mines, the Director of Mines and the Plaintiff that in the period of August to November, 2015 the 1st Defendant made efforts to re-acquire mining rights over the area that had been subject to the bisma licence through seeking the Plaint iffs consent to mine in the area, which consent was denied. That at the time it was made clear by the Ministry of Mines that inter alia, the 1st Defendant did not own any mining right within the Plaintiffs' mining rights area, and it was further confirmed that any acquisition of the mining rights over the Bisma licence area by the 1st Defendant would be subject to the Plaintiff's absolute discretion and consent. Copies of the letters dated 21st 28th October, 2015 and , 9th November 2015 were exhibited and marked "PCL7a-f'. 4.13 That the bisma licence was purportedly reinstated to the 1st Defendant by the Minister of Mines on 29th November, 2016, which reinstatement prompted the judicial review proceedings under cause no. 2016/HK/758. A copy of the letter of the Minister's reinstatement was exhibited and marked "PCL8". That in the year 2019 the bisma licence was renewed for a period of 10 years, with the 1st defendant being registered as the holder of the licence. Also, that the reinstatement and thereafter renewal of the bisma licence was done without the Plaintiff consenting to the 1st Defendant's acquisition of mining rights subject to the bisma licence. R13 4.14 It was deposed that the Plaintiff does not acknowledge or accept the assertion that the 2nd Defendant is a bona fide purchaser for value without notice of any allegations of fraud, mistake, or procedural impropriety. That the question as to whether or not the 2nd Defendant is a bona fide purchaser for value without notice is one that is yet to be determined by this Court or any other adjudicative body. 4.15 The deponent believed that the 2nd and 3rd Defendant were informed by the chief executive officer of Gemfields group limited (Gemfields is a 100% shareholder of Hagura Mining Limited, which company holds 75% shares in the Plaintiff) of the tainted nature of the bisma licence and the fact that the licence fell within the Plaintiffs licence area. A copy of the letter to the 3rd Defendant was exhibited and marked "PCL9". That, further in any event, had the 2nd Defendant conducted a proper due diligence on the bisma licence it would have become aware of the irregularities surrounding the licence. 4.16 That regarding the sale and purchase agreement exhibited as "CMS" in the affidavit in support of the notice of motion, the same was subject to the allegations of being fraudulent not only by the Plaintiff in the cause No. 2022/HK/08 but also by the 1st Defendant's shareholders who collectively hold over 50% shares in the 1st Defendant company as per Patents and Company Registration Agency printout exhibited as "PCL2". R14 4.17 It was averred that the deponent is aware that the proceedings under cause no. CAZ/08/ 148/2023 the 1st Defendant and Godfrey Shamanena issued and obtained an injunction against the 2nd Defendant in relation to the bisma licence. The claims in that matter stemmed from allegations of the sale and purchase agreement having been entered into fraudulently. A copy of the injunction ruling of the Court of Appeal was exhibited and marked "PCLlO". ' 4.18 That the determination as to whether or not the 2nd defendant did comply with all relevant statutory obligations is one that the court will be required to determine. That the purported property transfer tax certificate exhibited as CM6 is not conclusive evidence as to whether or not the 2nd Defendant lawfully complied with all statutory obligations to effect the change of ownership of the bisma licence. 4.19 It was averred that the Plaintiff contends in these proceedings that to the extent that the 2nd Defendant is the lawful holder of the bisma lice!lce, having obtained the same from the 1st Defendant, then the Defendants ought to have paid fair market value for the mining rights subject to the licence which belong to the Plaintiff. That exhibit CM5 contains the sale and purchase agreement and does not appear to be any acknowledgment of receipt of consideration by Godfrey RlS Shamanena of the sale and purchase agreement purchase pnce. 4.20 That the deponent believes that on or about 6th September 2022, the 3rd defendant did make payment of the sum of USD 165,000 to Godfrey Shamanena, purportedly with respect to the bisma licence. A copy of the bank transfer was exhibited and marked "PCLl l". 4.21 That upon becoming aware that the 3rd Defendant was in fact the party who had made payments to Godfrey Shamenana purportedly in relation to the sale and purchase agreement, the Plaintiff became fully aware of the 3rd Defendant's involvement in relation to the bisma licence and the likelihood that ultimately it is the 3rd Defendant and 4th Defendant benefiting and opted to bring claims against the 3rd Defendant. 4.22 It was further stated that the Plaintiff also became aware of the 5th Defendant's role in trading and auctioning emeralds on behalf of the 2nd to 4th Defendant and its role in the facilitation and receipt of the proceeds of emeralds sold from the bisma licence, prompting the claims against it by the Plaintiff in this matter. 4.23 That the deponent was advised by her advocates that the transaction between the 3rd Defendant and Godfrey R16 Shamenema is subject to investigations by the Anti-Corruption Commission and that there are proceedings before the Economic and Financial Crimes Division of this Court under cause no 2024 / HPEF / 03 relating to corruption allegations in relation to the bisma licence. 4.24 That the Plaintiff contends in these proceedings that to the nd extent that the 2 Defendant does wish to exercise rights over tf the bisma licence, then the 2nd Defendant ought to have paid or to pay the Plaintiff fair market value for the exercise of those rights. 4.25 It was averred that the Plaintiff has not lodged any appeal with the Minister of Mines because, in any event, the Minister cannot address the nature of claims that the Plaintiff has against the Defendants as contained in the statement of claim. That in this matter the Plaintiff has claims against all of the Defendants for unjust enrichment for the benefit that they have gained at the Plaintiffs expense through operating the mining rights subject to the bisma licence and selling emeralds mined from the area. 4.26 That the claims in cause no. 2016/ HK/ 758 and the cause no. 2022/ HK/ 08 are distinct from the claims the Plaintiff has made in this action. That in addition, the Plaintiff in this action has claims against three parties who were not party to the cause no. 2016/ HK/ 758 or the cause No. 2022/ HK.08 the 3rd, 4th and 5th R17 defendant. The claims against the 3rd 4th and 5th Defendant , arose as a result of the Plaintiff becoming aware that they have equally been unjustly enriched at the Plaintiffs expense. 4.27 It was averred that the Plaintiff has not overlooked the two previous actions; rather, the claims and the parties to those actions are not the same or identical. In fact, in the statement of claim at paragraph 44, the Plaintiff expressly acknowledges the existence of previous claims against the 1st and 2nd Defendant. That the Plaintiff brought these claims against the Defendant before this Court on the basis of inter alia its contention that the Defendant has jointly and severally been enriched at the Plaintiffs expense in an unjust manner. 4.28 That the statement of claim is only meant to contain material facts relevant to the case that the Plaintiff is advancing in the matter. 4.29 Furthermore, that the record will review that the Plaintiff obtained an order for leave to issue and serve the 5th Defendant outside of jurisdiction, and that the 5th Defendant, on 24th January, 2025, entered an appearance following service of the commencement documents. R18 5.0 AFFIDAVIT IN REPLY 5.1 It was deposed that cause no. 2016/HK/ 758 emanated from the issuance of licence No. 13811-HQ-SML, the bisma licence to the st 1 Defendant by the Ministry of Mines and Mineral Development. That the fact remains that Plaintiff and the 1st Defendant have remained the same in all causes, and the subject from which all the reliefs claimed by the Plaintiff emanate is the bisma mining right under licence no. 13811-HQ SML. 5.2 That "CMl" is a true copy of the writ of summons and the statement of claim filed by the Plaintiff under cause no. 2022/HK/08 wherein the Plaintiff claimed for a declaratory order that it is the rightful holder of the mining rights over the area where the bisma license was issued and that license No. st 13811-HQ-SML was wrongly and or illegally issued to the 1 Defendant by the Ministry of Mines. 5.3 It was averred that the 1st Plaintiff under cause no. 2022/HK/08 wholly discontinued his action; thus, the Plaintiff was the only standing complainant to this cause. That cause no. 2022/HK/08 was dismissed by this court sitting at Kitwe on the grounds that the High Court did not have jurisdiction to hear and determine the matter because the reliefs sought emanated from mining rights, the Plaintiffs mining right under R19 licence No. 14105-HQ-LML and the bisma licence; the claims in cause no. 2016 / HK/758 were the same as the reliefs under (a) (b) (h) and (1) of the exhibit marked as "CMl", and the subject matter under the 2016 cause was the same as the one under the 2022 action. 5.4 That this Court held that the High Court still did not have jurisdiction to hear and determine cause no. 2022/ HK/ 08, it dismissed the matter for want of jurisdiction and abuse of court process as per exhibit "PCL5" pages 30,33-35 and 37-38 of the ruling. Also, that under cause no. 2016/HK/758, this Court held that the High Court did not have jurisdiction to entertain the Plaintiffs claim as they related to a decision pertaining to mining rights under license number 13811-HQ-SEL, cause no. 2016/HK/ 785 was supposed to have been commenced by way of an Appeal from a decision of the Mines Appeals Tribunal as per exhibit "CM l ". 5.5 It was averred that, regardless of the High Court holding on two occasions that it had no jurisdiction to hear and determine matters emanating from mining rights at first instance, the Plaintiff, after lodging an appeal against the ruling dismissing cause no. 2022/HK/ 08 still commenced this action, which emanates from the same mining right under licence no. 13811HQ-SML and is now claiming restitution on grounds of unjust enrichment purportedly derived from the bisma licence. F or R20 purposes of this court's record and the application herein, the notice of appeal and memorandum of appeal under CAZ/08/490/240 were exhibited and marked "CM2". 5.6 That in the Ruling, the Court exhibits "PCL5" held that "I agree with the Defendants that this action is an abuse of court process because the Plaintiff has brought before this court the same claims in relation to which the High Court in cause no. 2016/HK/758 decided that it has no jurisdiction and that it is the mining appeals tribunal which is vested with that jurisdiction". 5.7 It was averred that the bisma license was issued in 2009 and reinstated in 2016, this is 9 years post the 1st Defendant's acquisition of the license. That the Plaintiff has had justifiable issues surrounding the issuance of the bisma license, it could have addressed the same earlier in time via the procedure provided for by statute. That the subject is the bisma license, and clearly the Plaintiff is still aggrieved with the decision surrounding the issuance and reinstatement of license no. 13811-HQ-SML, which occurred over 9 years ago. 5.8 That is not in dispute that the bisma license was renewed in 2019. Nevertheless, a perusal of the Defendant's defence shows that the 1st Defendant did not require to obtain the Plaintiffs consent in the acquisition, reinstatement, and renewal of its R21 licence as the Plaintiff has had no rights whatsoever over the area covered by the bism a license. 5.9 That the 2nd Defendant purchased license no. 13811-HQ-SML without notice of fraud or illegality. Further, that at the point the missive referred to as "PCL9" was issued, license no. 13811HQ-SML was already transferred to the 2nd Defendant and its name. 6.0 SKELETON ARGUMENTS 6.1 The respective parties filed skeleton arguments, but I will, however, not recast them but include them in my decision hereunder. 7.0 HEARING 7 .1 At the hearing of this matter, Miss Chila relied on the documents filed. She augmented stating that the amended statement of claim was amended without leave of Court. That also, a perusal of the statement of claim, specifically at paragraph 3, the Plaintiff claim that the Bisma licence number 1381 lHQ SML falls within its m1n1ng licence number14105HQLML. Counsel argued that paragraphs 17, 16, 15 of the statement of claim, the Plaintiff faults the Ministry of Mines for issuing and reinstating the bismas licence. That, R22 according the Plaintiff, it was unlawful for the Minister to issue and re-state the licence. It was submitted that there is no way this Court can determine this matter without properly determining the ownership of the bisma licence. This Court was referred to the case of Konkola Copper Mines v Rafilia Mining and Mechanical Supplies Ltd, wherein it was held that the Court has time and again held that the issues related to mining, mining rights, and issues that emanate from the grant of the licence implementation of mining rights are a preserve of the Mines Appeal Tribunal at first instance. It was counsel's position that the matter before this Court is anorchid on mining rights and that this Court has no jurisdiction to determine the same. Counsel referred this Court to the case of Konkola. Mrs. Chila then repeated the contents of the skeleton arguments which I shall not reproduce. 8.0 ANALYSIS AND DECISION OF THIS COURT 8.1 I have carefully considered the application for preliminary issues before me, the affidavit evidence, and the skeleton arguments filed by the parties. The preliminary issues before me raise jurisdictional questions. Jurisdiction for any Court is paramount, as where a Court lacks jurisdiction its decision amounts to nothing. I shall therefore consider the question: R23 1. Whether, this Honourable court has no jurisdiction to determine mining rights disputes as the Mines and Mineral Development Act provides for a lternative dispute resolution. 8.2 It is not in dispute that the Plaintiff commenced this action on 15th November, 2024, seeking the following reliefs: 1. A declaration that there existed an express contract, alternatively a contract implied by law between the Plaintiff and the 1st Defendant for the sale and purchase of the Bisma Licence in consideration for the payment by the 1st Defendant to the Plaintiff of the fair market value of the Bisma Licence; 2. A declaration that the fair market value of the Bisma licence was USD 165,000,000; 3. A declaration that the 4th Defendant is the ultimate beneficial owner oft he 2nd 3rd and 5th Defendants and , that the 2nd and 3rd Defendants are to be treated as the 4th Defendant's nominees and agents for all purposes in connection with the holding of the Bisma licence and the exercise of mining rights thereunder; 4. A declaration that by virtue of the transfer of the Bisma Licence from the 1st Defendant to the 2nd and or 3rd and or 4th Defendants, the 1st Defendant's liability R24 to the Plaintiff under the contract transferred onto the and or Defendant; 2nd 3 rd 5. An order for payment by the 1st Defendant to the Plaintiff of the fair market value of the Bism a Licence under the contract and or damages for breach of the contract; 6. Alternatively, an order for payment by the 2nd , 3rd and 4th Defendants to the Plaintiff of the fair market value of the Bisma Licence in accordance with the express terms oft he Bisma licence and/ or section 66(5) of the Act; 7. A declaration that the 2nd Defendant holds title to the mining rights under the Bisma licence on a constructive trust for the sole benefit of the Plaintiff; 8. An order that the 2nd defendant and or the 3rd defendant and or the 4th Defendant take all necessary steps forthwith to transfer, alternatively an order that they procure the transfer of the mining rights subject of the Bisma Licence to the Plaintiff 8.3 In the affidavit in support of the notice of motion, as well as in their skeleton arguments, the Defendant contends that the fact remains that Plaintiff and the 1st Defendant have remained the same in all causes, and the subject from which all the reliefs claimed by the Plaintiff emanate is the bisma mining right under licence no. 13811-HQ-SML. That the Plaintiff under cause no. R25 2022 / HK/ 08 claimed for a declaratory order that it is the rightful holder of the mining rights over the area where the bisma license was issued and that license No. 13811-HQ-SML was wrongly and or illegally issued to the 1st Defendant by the Ministry of Mines. That this Court held that the High Court did not have jurisdiction to hear and determine cause no. 2022/HK/08, it dismissed the matter for want of jurisdiction and abuse of court process. Also, that under cause no. 2016/HK/758, this Court held that the High Court did not have jurisdiction to entertain the Plaintiffs claim as they related to a decision pertaining to mining rights under license number 13811-HQ-SEL, cause no. 2016/HK/785 was supposed to have been commenced by way of an Appeal from a decision of the Mines Appeals Tribunal. The High Court holding on two occasions that it had no jurisdiction to hear and determine matters emanating from mining rights at first instance, the Plaintiff, after lodging an appeal against the ruling dismissing cause no. 2022/ HK/ 08 still commenced this action, which emanates from the same mining right under licence no. 13811H Q-SM L and is now claiming restitution on grounds of unjust enrichment purportedly derived from the bisma licence. 8.4 On the other hand, the Plaintiff refutes the allegation, maintaining a position the full factual matrix regarding the bisma licence and how the mining rights it relates to shifted from the Plaintiff, now purportedly to the 2nd Defendant. That R26 st the 1 Defendant applied for and was issued the bisma licence st on 7th August, 2009, which licence purportedly granted the 1 Defendant mining rights over the area subject to the licence. That the bisma licence was revoked on 10th November, 2009 by the Director of Mines on the basis that it had been granted over an area that fell within the Plaintiffs mining licence area licence no. 14105-HQ-LML. The Director of Mines and the Plaintiff in st the period of August to November, 2015, the 1 Defendant made efforts to re-acquire mining rights over the area that had been subject to the bisma licence through seeking the Plaintiffs consent to mine in the area, which consent was denied. That at the time it was made clear by the Ministry of Mines that inter t alia, the 1s Defendant did not own any mining right within the Plaintiffs' mining rights area, and it was further confirmed that any acquisition of the mining rights over the Bisma licence area st by the 1 Defendant would be subject to the Plaintiff's absolute discretion and consent. That the bisma licence was st purportedly reinstated to the 1 Defendant by the Minister of Mines on 29th November, 2016, which reinstatement prompted the judicial review proceedings under cause no. 2016/ HK/ 758. That in the year 2019 the bisma licence was renewed for a st period of 10 years, with the 1 defendant being registered as the holder of the licence. Also, that the reinstatement and thereafter renewal of the bisma licence was done without the Plaintiff consenting to the 1st Defendant's acquisition of mining rights subject to the bisma licence. The Plaintiff does not R27 acknowledge or accept the assertion that the 2nd Defendant is a bona fide purchaser for value without notice of any allegations of fraud, mistake, or procedural impropriety. That the question as to whether or not the 2nd Defendant is a bona fide purchaser for value without notice is one that is yet to be determined by this Court or any other adjudicative body. 8.5 I have considered the respective positions of the parties. In resolving the issues at hand, recourse must be placed on the Court of Appeal case of Katenge Resource Limited v Avarmma Mining Corporation Limited, ZCCM Investment Holdings and the Attorney Generall, wherein it was held that: "Given the provisions of the new Act that we have cited above, it is with no difficulty that we find that the correct procedure that the 1st respondent herein should have followed upon being aware of the news on ZNBC on 10th August, 2015 that the Minister had given the mine to the community of Kasempa was to seek recourse with the Tribunal within 30 days. If unsatisfied with the decision of the tribunal, to appeal to the High Court. We are inclined to agree with the case ofP olythene Products Zambia Limited v Cyclare Hardware and others cited by the Appellant regarding the time the action was commenced, that the High Court's unlimited jurisdiction does not entitle a party to deviate from the procedure prescribed by statute. The High Court therefore ought not to have entertained the 1st Respondent's purported appeal, as the same did not fulfil the requisite legal provisions relating to the prescribed grievance procedure". R28 Also, in the case of Kalymnos Processing Limited, Albertina Kashiba v Konkola Copper Mines2 the Court of Appeal held that: "In our understanding of the intent of the framers of the Act, recourse to Courts of law can only be had after the grievance procedure set out under section 97 of the Act has been exhausted. The section clearly provides for complainants from aggrieved parties in relation to mining rights to lie to the Directors within the Ministry, then to the Minister, thereafter to the Tribunal and finally to the Courts of Law. The High court is therefore, not the rightforum to determine the claims raised by the Appellants and part of the Respondent's claim that the Appellant are within the area covered by its mining licence... the result is that the learned Judge acted without jurisdiction." 8.6 In applying the above position of the law, although the Plaintiffs in this case contend that they are seeking the reliefs outlined above. It is my firm view that this Court is not the right forum for the Plaintiffs' claims to be determined, as the Plaintiffs ought to exhaust the procedure set ou t in section 97 of the Mines and Minerals Development Act. 8. 7 Having found, under the preliminary issue on jurisdiction raised, that this Court lacks jurisdiction to deal with this matter, the other question becomes otiose. The inevitable consequence is that this matter is dismissed for want of jurisdiction. R29 8.8 Each party to bear its own costs. 8.9 Leave to appeal is hereby granted. DELIVERED AT LUSAKA THIS 17™ DAY OF DECEMBER, 2025. G.C. AWATAMA HIGH COURT JUDGE R30