KALENGWA Mineral Processing Limited has opposed an application by Moxico Resources Zambia Limited to have the case against the latter and Euro Africa Kalengwa Mines Limited set aside for irregularity and abuse of court process.
In this matter, Kalengwa Mineral Processing Limited has dragged Moxico Resources Zambia Limited and Euro Africa Kalengwa Mines Limited to the Lusaka High Court, seeking an order that it is the title holder and vested with the surface rights to its properties known as Farm No. 31477, Farm No. 31478 and Farm No. 31479, situated in Mufumbwe District.
Moxico Resources Zambia Limited director Davies Mwanamoya had, however, asked the Court to set aside Kalengwa Mineral’s writ of summons and statement of claim for being a multiplicity and an abuse of court process.
But according to an affidavit in opposition to the affidavit in support of summons to set aside the writ of summons and statement of claim, Brenda Gama, a shareholder in Kalengwa Mineral Processing, argued that there were two different matters, bearing two different subject matters.
She stated that even assuming that the same was true (multiplicity of actions), the name Kalengwa Processing Zone Limited was not the plaintiff as it was a different entity with a different legal existence.
“This can be seen from the documents that the parties in this matter and the matter referred to by Mwanamoya in the affidavit in support of summons to set aside the writ of summons and statement of claim are different. The claims in both matters are different as one seeks to address the tort of trespass, while the other relates to ownership and certificates of title as well as the aspect of being a bona fide purchaser,” Gama stated.
She stated that the said certificates of title relate to three properties being; Farm No. 31477, Farm No. 31478 and Farm No. 31479, whereas the matter under cause number 2019/HN/186 relates to a portion known as Kalengwa area, which portion was clearly not Farm No. 31477, 31478 or 31479.
Gama further stated that there was no numbered property, which was the subject of litigation under cause number 2019/HN/186.
She stated that this matter further seeks to preserve property that sits on the surface, which property was well set out in the said process and the order of preservation granted by the court on January 27, 2020.
Gama stated that the issue of surface rights was not one of the issues to be determined in both matters, but that the subject matter was ownership and issues of trespass in the other matter under cause number 2019/HN/186.
“That be it as it may, the subject matter relates to two distinct pieces of land, one being three farm lands and the other being an area called Kalengwa area. The fact that the shareholders are similar in no way means that the company is the same, and as such, the plaintiff in this matter is not the plaintiff under cause number 2019/HN/186. Further, the plaintiff and Moxico Resources are not parties in the said action,” read the affidavit.
“Essentially, these are two different matters and bearing two different subject matters. The fact that shareholders may be the same does not make the parties the same.”