IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
JOSEPH BOAKYE DANQUAH - (Plaintiff)
PERSEUS MINING GHANA LTD - (Defendant)
DATE: 30 TH JULY, 2018
SUIT NO: OCC. 82/2015
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
This ruling is in respect of an application to set aside the instant writ of summons and statement of claim and a further order to dismiss plaintiff’s case. The application is premised on Order 11 rule 18 (d) of the High Court (Civil Procedure) Rules, 2004 (CI 47) and the inherent jurisdiction of the court.
Order 11 Rule 18 (1) (d) provides as follows:
“18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (d) it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly.”
The grounds of the Defendant/Applicant’s application are contained in the affidavit in support of the motion filed on 7/05/2018.
The Plaintiff/Respondent is opposed to the application and have demonstrated the grounds in the affidavit in opposition filed on 09/07/2018. Both counsel for the defendant/applicant and plaintiff/respondent also filed their statements of case on 25/06/2018 and 09/07/2018 respectively. The applicant’s case is that the respondent’s claim relates to mineral right compensation due him for disturbance of his right as a landowner. This claim is a fallout of the applicant’s mining activities. It is applicant’s case that the respondent failed to follow the laid down statutory procedures for resolving disputes of such nature before instituting the said action in the High Court. In his written submission, Counsel for the applicant cited sections 73 and 75 of the Minerals and Mining Act, 2006 (Act 703) and regulation 2(6) of Minerals and Mining (Compensation and Resettlement) Regulations, 2012 (LI 2175) and submitted that disputes and complaints such as that of the Plaintiff must first and foremost be submitted to the Minister responsible for Lands and Natural Resources for a determination to be made before the jurisdiction of the court can be invoked. That plaintiff/respondent’s failure to resort to the laid down statutory procedure is fatal to the writ of summons and statement of claim. Counsel cited cases including Boyefio v NTHC [1996-97]SCGLR 531 and Eugene Guddah and Anor v Goldfields (Ghana) Ltd [06/06/2005] Civil Appeal H1/66/2004 to buttress his point.
It is the position of the plaintiff/respondent that the application is misconceived and same must be dismissed. In sum, the plaintiff/respondent’s case is that since the dispute is about the defendant/applicant’s failure to pay the requisite compensation to him the court is seised with the jurisdiction to hear the matter. An aggrieved person has a right to access to court and with it the right to have his day in court. Hence case laws dictate that the court should only exercise its power to strike out a suit only in exceptional circumstances. One of such exceptions is the failure to comply with laid down statutory requirements prior to the action. One of such requirements is the exhaustion of an alternative dispute resolution mechanism dictated by statute. The court in its desire to protect its jurisdiction from wanton intrusion normally takes ambivalent position when it comes to the construction of such dispute resolution provisions. Due regard is given to clarity of expression before a court succumbs to a statutory provision that seeks to take away its power to hear a matter. This position of the court was amplified by Wood JA (as she then was) in Osei Yeboah v Bonte Goldmines Limited Case No. 82/99 Court of Appeal [10/2/2000] when she cited with approval the dictum of Somtton LJ in Re Vexatious Act 1896 as follows:
“The right of the subject to have access to the courts may be taken away or restricted by statute, but the language of any such statute will be jealously watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such expansion.”
Section 73 of Act 703 makes provision for compensation for disturbance of an owner’s surface rights. It is provided under 73 (1) that “owner or lawful occupier of any land subject to a mineral right is entitled to and may claim from the holder of the mineral right compensation for the disturbance of the rights of the owner or occupier, in accordance with section 74.”
Section 74 (1) of Act 703 further provides as follows:
“The compensation to which an owner or lawful occupier may be entitled, may include compensation for,
(a) deprivation of the use or a particular use of the natural surface of the land or part of the land,
(b) loss of or damage to immovable properties,
(c) in the case of land under cultivation, loss of earnings or sustenance suffered by the owner or lawful occupier, having due regard to the nature of their interest in the land,
(d) loss of expected income, depending on the nature of crops on the land and their life expectancy.”
Sections 73 (3) and 75 (1) specifically make provision for the resolution of dispute relating to the compensation claim.
Section 73 (3) provides as follows:
“The amount of compensation payable under subsection (I) shall be determined by agreement between the parties but if the parties are unable to reach an agreement as to the amount of compensation, the matter shall be referred by either party to the Minister who shall, in consultation with the Government agency responsible for land valuation and subject to this Act, determine the compensation payable by the holder of the mineral right.”
Section 75 (1) also provides as follows:
“The owner or lawful occupier of land affected by a mineral right shall not apply to the High Court for determination of compensation to which the person is entitled unless the person is dissatisfied with the terms of compensation offered by the holder of the mineral right or as determined by the Minister under section 73(3) or 73(5)(b).”
In the writ of summons, plaintiff is seeking the following reliefs:
a. A declaration that the defendant has breached the terms of the agreement reached between the Plaintiff and the Defendant to resettle the Plaintiff in Kumasi.
b. An order directed at the defendant to complete building the Plaintiff house, house number plot Ofori Crescent Ampabame No. 1, which he was resettled into by the Defendant.
c. An order directed at the Defendant to execute a lease and have same registered at the Lands Commission, Kumasi in favour of the Plaintiff in respect of the house number plot 5 Ofori Crescent Ampabame No. 1.
d. An order directed at the Defendant to provide water and electricityfacilities to house number plot 5 Ofori Crescent Ampabame No. 1.
e. An order for the Defendant to pay all the school fees in respect of thePlaintiff’s son who is in Kumasi Senior High and Technical School.
f. An order directed at the Defendant to pay the Plaintiff an amount of One Hundred and Four Thousand Seven Hundred and Eighty-One Ghana Cedis, Four Hundred and Sixty-FourPesewas (GHC104,781.464) being the balance of the crop compensation due the Plaintiff for his crops destroyed by the Defendant.
g. Interest on the said sum of money from 25th August 2013 till date of final payment.
It is not in doubt that the claim relates to compensation due the plaintiff. In fact, the plaintiff acknowledges that fact in his affidavit in opposition to the instant motion. His only issue is that since they are unable to agree on the amount of compensation payable,he is at liberty to come to court to vindicate his right. In interpreting the above dispute resolution provisions, the meaning of the words must be relied upon and given their legal effect. This basic approach to interpretation is supported by several respectable authorities. For example, in Chatley v. Brazilian Submarine Telegraph Company  1 QB 71, Lindley LJ stated that:
“…the expression, construction [interpretation] as applied to a document and all events as used by English Lawyers includes two things: first the meaning of the words and secondly their legal effect or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.”
The critical point worth emphasizing from the above exposition is that interpretation invariably is not concerned with the meaning simpliciter of a provision in a document, statute or constitution as suggested in a number of authorities but rather the meaning in a particular context or in relation to a particular situation. Emphasis is, therefore, placed on the scope and legal effect of the language used in a particular context.
In William Brown v. Attorney General and 2 others, (Audit Service Case)  SCGLR 183, Wood CJ expressed the clear direction of our Supreme Court when it comes to construction or interpretation of documents and statutes. She stated at page 202 that ‘‘the literalist or strict approach, that is a mechanical approach that does not look to the purpose of the contested provisions as a legitimate part of the exercise is clearly to be deprecated. … the purposive and literal approach is in proper context commendable; it is the purely mechanical or literal that pays no heed to the legislative purpose or intent that has no place in this area of the law’’.
The plaintiff’s argument appears to hold sway when section 75 (1) is interpreted in isolation. The word ‘or’ used in the provision appears to suggest that the plaintiff may opt to go to court when he is dissatisfied with the terms of the compensation offered by the defendant (a mineral right holder) or if he is dissatisfied with the compensation package as determined by the Minister. I have looked at the dispute resolution provisions closely and it is my considered opinion that the above interpretation will defeat the purpose of the internal dispute resolution mechanism provided under Act 703. This is because thequantum of compensation payable is normally at the heart of such disputes, which is why it is important to read section 73(3) together with section 75(1). My understanding of sections 73 (3) and 75 of the Act 703 read together as a whole is that the intervention of the Court is suspended in disputes involving compensation by mineral right holders to affected land owners.Not until a dispute concerning appropriate compensation is finally determined by the Minister, the court cannot go into the matter. The plaintiff can only side step the Minister’s determination and come to come when there is palpable bias or breach of natural justice.
In the instant case, the plaintiff has not exhausted the dispute resolution mechanism provided under Act 703, as per the affidavit evidence the matter has not been referred to the Minister for determination. It therefore goes without saying that plaintiff’s right to institute action in court has not accrued. In coming to this conclusion, I am fortified by the decision of the Supreme Court in Boyefio v NTHC Properties Ltd (supra) which held as follows:
“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. Thus section 12 of PNDCL 152 was in consonance with the modern practice of setting up an internal tribunal in an institution to have a first bite at disputes arising within that institution before recourse was made to the courts if the matter did not end at the internal tribunal. Where a person has ignored the internal tribunal by resorting to the courts in respect of any such internal dispute, the court would invariably order him to go back to the internal tribunal, if that person had no substantial reason for ignoring the internal tribunal.”
It is trite learning that where the rules of procedure prescribe a mode of enforcing a right or seeking a relief same must be adhered to, as failure to do so in accordance with the prescribed mode is not only an irregularity but a nullity since it raises the fundamental issue of jurisdiction. See Ayikai v Okaidja III  1SCGLR 205, 208 per Gbadegbe JSC. For the foregoing reasons, the application succeeds. The plaintiff’s writ of summons and statement of claim are premature and same is dismissed.