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Supreme Court dismisses Exton Cubic case against High Court

BY: Emmanuel Ebo Hawkson
Mr Ibrahim Mahama
Mr Ibrahim Mahama

The Supreme Court has thrown out an application challenging the decision of the Kumasi High Court not to award compensation to Exton Cubic Group, a mining company with links to businessman, Ibrahim Mahama, over the seizure of its mining equipment.

In a unanimous decision on Tuesday, a five-member panel of the court, presided over by Mrs Justice Sophia Adinyera, held that the application had no merit and, accordingly, dismissed it.

Other members of the panel were Justices Anin Yeboah, Sule Gbadegbe, Samuel Marful-Sau and Professor Nii Ashie Kotey.

Exton Cubic, in its certiorari application, wanted the apex court to nullify the High Court’s decision not to award it compensation for the seizure of its mining equipment by the Ashanti Regional Minister, Mr Simon Osei-Mensah, in September 2017.

High Court’s decision

On February 22 last year, Exton Cubic Group sued the minister and the District Chief Executive (DCE) for Atwima Mponua, Mr William Darko, for ‘illegally’ seizing its mining equipment when the company went to mine bauxite in the Tano-Offin Forest Reserve in the Atwima Mponua District in the Ashanti Region.

The company wanted the court to order the return of its mining equipment and also prayed for compensation for ‘wear and tear’ of the equipment.

The suit was filed  shortly after the Accra High Court upheld the application of the company and quashed the decision to revoke the mining lease granted Exton Cubic to explore bauxite at Nyinahin in the Ashanti Region.

However, the Accra High Court held that the company did not have a valid mining lease because the procedures it used in securing the licence were inaccurate and unlawful.

In June, 2018, the Human Rights Division of the Kumasi High Court, presided over by Mr Justice George Krofa Addae, dismissed Exton Cubic’s claims for compensation on the basis that it had no mineral rights because its mining lease had not been ratified by Parliament as required by Article 268 clause 1 of the 1992 Constitution.

Article 268 clause 1 of the 1992 Constitution states that “any transaction, contract or undertaking involving the grant of a right or concession by or on behalf of any person including the Government of Ghana, to any person or body of persons howsoever described, for the exploitation of any mineral, water or other natural resource of Ghana made or entered into after the coming into force of this constitution shall be subject to ratification by Parliament.’’

Certiorari application

Dissatisfied with the Kumasi High Court’s ruling, lawyers for Exton Cubic filed a certiorari application at the Supreme Court challenging the jurisdiction of the High Court.

Making his case, lead counsel for the company, Mr Osafo Buabeng, argued that the Kumasi High Court interpreted Article 268 clause 1 which was the sole responsibility of the Supreme Court.

He submitted that rival meanings were put on Article 268 clause 1 by the parties, and, therefore, the High Court should have stayed proceedings and refer it to the Supreme Court for interpretation as required by law.

The state was an interested party in the case and was represented by a deputy Attorney-General, Mr Godfred Yeboah Dame.

No need for new interpretation

In its ruling, however, the Supreme Court stated that it had already interpreted Article 268 clause 1 in a previous case, and, therefore, there was no need for the Kumasi High Court to refer it again for another interpretation.

According to the apex court, if Exton Cubic was dissatisfied with the Kumasi High Court’s decision, it should appeal to the Court of Appeal and not file a certiorari application seeking for interpretation.

“The said article has already been interpreted. The High Court only applied it in its ruling. We find no merit in the application, and it’s accordingly dismissed,’’ the court ruled.

Background

Exton Cubic was granted a long lease concession by the Mahama government on December 29, 2016, a few days before it handed over power to the NPP government.

In September 2017, Mr Osei-Mensah ordered the police to seize eight trucks, one caterpillar generating set and two container offices belonging to Engineers and Planners that had been contracted by the Exton Cubic Group for bauxite prospecting in the Tano-Offin Forest Reserve.

During the seizure, the company insisted that it had the legal authorisation from the government to work in the forest reserve.

However, the then Minister of Lands and Natural Resources, Mr John Peter Amewu, explained later that the company failed to meet the legal requirements and, therefore, its lease was not valid.

He argued that the failure to obtain environmental and operational permits, as well as the various statutory infractions leading to the purported grant of the three mining leases to the company, rendered the purported leases invalid and of no effect.