IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
ANGLOGOLD ASHANTI LIMITED - (Defendant/Appellant)
CHARLES FOSU & 2 ORS - (Plaintiffs/Respondents)
DATE: 26 TH FEBRUARY, 2018
SUIT NO: H1/02/2018
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
SMITH MBAKIMBEH FOR PLAINTIFFS/RESPONDENTS
OSCAR KOFI JIMAH FOR DEFENDANT/RESPONDENT
This is an interlocutory appeal against the ruling of the High Court, Kumasi dated the 19th day of December 2016, which dismissed the Defendant/Appellant’s application praying the Honourable Court to dismiss on jurisdictional grounds the suit filed by the Plaintiffs/Respondents.
In this appeal, the Plaintiffs/ Respondents will be described as Respondents and the Defendant/Applicant as Appellant.
The Appellant is a mining company whose operations are governed by the Minerals and Mining Act, 2006 (Act 703). The Respondents, one hundred and eighty-six (186) in number are farmers based at Nhyiaeso and Apitikoko villages near Obuasi. In or around 2008/2009 the Respondents reported to the Appellant that its gold mining activities has caused massive destruction on their cocoa and oil palm seedlings. The Respondents in their statement of claim in paragraphs 12 and 13 stated that it took them several months to get the Appellants to engage experts to undertake the assessment and valuation which was finally concluded and documented on 22nd December, 2011. The Respondents per paragraphs 41 and 43 of their statement of claim described the way their very livelihood was destroyed and this had affected their economic fortunes and thrown them into abject poverty.
They further claimed that the minimum lifespan of oil palm and cocoa is estimated to be fifteen and fifty years respectively and that their entire future is dependent and inextricably linked to these investments that they make. The Appellants on the other hand in their statement of defence contended that it was a contractor who was engaged by it to desilt the Kwabrafo River who destroyed crops which were at the nurseries stage and not seedlings as alleged.
According to the Appellants the “Form Fs” were incorrectly labelled seedlings instead of nurseries and were kept for correction and thus not issued to the farmers (Respondents).
In their reply, the Respondents were emphatic that the crops which were destroyed were expressly captured as cocoa and oil palm seedlings and that their case had nothing to do with the desilting of the Kwabrafo River, but rather it borders on Apitoso and Nhyiaeso communities with the nearest river called Nyam.
Based on the report, a team made up of the representatives of the farmers, the Land Valuation Officers from Kumasi and Officers of the Appellant visited the sites and a comprehensive report was prepared as to the extent of damage caused. Report was captured on a form called “FORM Fs” which was duly signed by each of the parties of the team that went for the evaluation.
It is clear and undisputed that there is a controversy with relation to the rate of price for seedlings to be duly paid, as well as, payment of compensation due the Respondents, and same has not been duly paid by virtue of a delay in the requisite process. It is also clear on the face of the facts that efforts to get the Appellant to pay the compensation were faced with frustrations. That the Respondents had tried as much as possible to engage the Appellant to pay the compensation but to no avail.
The Respondents eventually engaged a lawyer who wrote to the Appellant for the “Form Fs”, which had been in their custody for years for amicable settlement, but the Appellant failed to nevertheless acknowledge receipt of the letters written to it as found at pages 40, 41, 42 and 43 of the Record of Appeal.
Subsequently, the Respondents petitioned the Minister for Minerals and Mining as required by law under the Minerals and Mining Act, 2006 (Act 703) but same was to no avail (this is found on pages 44, 45, 46, 47, 48 and 49 of the Record of Appeal).
This compelled the Respondents to fall on their last available resort which is to pursue their claims at the High Court against the Appellant and same filed on the 9th day of March, 2016 at the High Court, Kumasi for the following reliefs (found on page 11 of the Record of Appeal);
a) Recovery of Sixty Eight Million, Nine Hundred and Thirty-Four Thousand, Nine Hundred And Forty Ghana cedis (GH¢68,934,940.00) being compensation for destroying their cocoa and oil palm seedlings;
b) Interest of Sixty-Eight Million, Nine Hundred and Thirty-Four Thousand, Nine Hundred and Forty Ghana cedis (GH¢68,934,940.00)
The Appellant entered appearance and subsequently filed a statement of defence on the 21st day of June 2016 (pages 21, 22 and 23) and it was admitted thereof that the Appellant was a mining company registered under the laws of Ghana and by virtue of that its operations are governed by the Minerals and Mining Act, 2006 (Act 703). Appellant admits that the crops of the affected farmers were destroyed. In consequence thereof, the Appellant on the 29th day of September 2016 caused a motion to be filed under Order 11 Rule 18(1) of CI 47 on its behalf, on the ground that the action was an abuse of process of the court. It was the case of the Appellant that the High Court was not seized with the jurisdiction to hear the matter. The Appellant cited the prescribed mode and procedure by which claims were to be made which the Respondents did not follow.
It was the case of the Appellant that when the compensation offered to the Respondents was rejected by them, they were obliged under the Minerals and Mining Act, 2006 (Act 703) to have reported the matter to the Minister for the Minister to refer the issue to the Valuation Board for the determination of the appropriate compensation and they were bound to wait for the Minister ‘but not to rush to court’. The Appellant further argued that it is only when they were not satisfied with the compensation as determined by the valuation board that they could resort to the High court and having failed to do so, the High Court was not to be seised with the jurisdiction because by law it could only exercise supervisory jurisdiction in such matters.
Notwithstanding the argument advanced by the Appellant, the trial judge dismissed the application premised on Order 11 Rule 18(1) of CI 47, stating that the High Court has the jurisdiction to hear the matter. The Appellant, aggrieved and dissatisfied by the ruling, launched this instant appeal.
GROUNDS OF APPEAL
Notices and grounds of appeal which can be found at page 70 and 71 as follows:
The learned trial judge erred by ruling that the high court has jurisdiction to hear the matter in spite of fact that the Respondents admittedly did not exhaust the condition precedent laid down by the Minerals and Mining Act, 2006 (Act 703) before proceeding to the High Court;
The learned trial judge failed and or refused to give adequate or any adequate consideration to the case of the Defendant;
The ruling was manifestly against the Affidavit evidence placed before the Learned Trial Judge;
The cost of GH¢3,000.00 awarded by the court was manifestly excessive in all circumstances of the case.
Relevant to the determination as to whether or not the learned High Court Judge rightly assumed jurisdiction and rightly dismissed the application of the Appellant, the aforementioned statutory provision on the regulations of the operations of the mining company would be stated as follows:
“Minerals and Mining Act, 2006 (Act 703)
(1) The 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.
(2) A claim for compensation under subsection (I) shall be copied to the Minister and the Government agency responsible for land valuation.
(3) 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.
On the issue of access to the Court in respect of compensation:
(1) 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).
(2) The person entitled to be compensated or the holder of the mineral right may apply to the High Court for a review of a determination by the Minister made under section 73(3) or 73(5)(b).
(3) In proceedings brought before the High Court under subsection (2), the High Court shall be exercising its supervisory jurisdiction”.
It is however undisputed that the Minerals and Mining Act, 2006 (Act 703) lays down a condition precedent to the acquisition of compensation due an aggrieved party whose crops or seedlings are destroyed by mining activities.
The question to be asked here, therefore, is whether or not the Respondents satisfied the conditions precedent before resorting to the aid of the High Court. And subsequently, under what circumstances (in totality) can the Respondent seek the aid of the High Court.
Generally, the High Court’s jurisdiction is espoused in Article 140 of the Constitution of the
Republic of Ghana, 1992 as:
(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.
(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.
(5) For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any appeal, and for the purposes of any other authority, expressly or by necessary implication given to the High Court by this Constitution or any other law, the High Court shall have all the powers, authority and jurisdiction vested in the Court from which the appeal is brought.
It is also worthy to note section 74 (2) of Act 703 which provides;
(2) In making a determination under section 73(3), the Minister shall observe the provisions of article 20(2)(a) of the Constitution which states that, in the case of compulsory acquisition of property, prompt payment of fair and adequate compensation shall be made.
Article 20(2) of the Constitution of the Republic of Ghana, 1992 also provides:
“Compulsory acquisition of property by the State shall only be made under a law which makes provision for.
(a) the prompt payment of fair and adequate compensation; and
(b) a right of access to the High Court by any person who has an interest in or right over the property whether direct or on appeal from other authority, for the determination of his interest or right and the amount of compensation to which he is entitled”.
The mention of article 20(2)(a) as a guide to the Minister as to how to address the determination of the compensation, reasonably indicates that such a matter ascribes to the Fundamental Human Rights as espoused in Chapter 5 of the constitution of the Republic of Ghana, 1992. It is thereby worthy to note that the High court has been allotted the exclusive original jurisdiction in the enforcement of the Fundamental Human Rights and Freedoms guaranteed by the Constitution- per Article 140(2). Also, per Article 140 (1), The High Court has been clothed with such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law, albeit subject to the provisions of this Constitution, to have jurisdiction in all matters and in particular, in civil and criminal matters. Lastly, on the jurisdiction, the High Court has been provided as the court of last instance (subject to appeal however) of the procedure to attain one’s compensation after the exhaustion of the statutory conditions precedent as provided for in section 75 of Minerals and Mining Act, 2006 (Act 703).
It, therefore, would be incorrect and unjust to conclusively propose that the High Court lacks the jurisdiction to determine the matter as it so did.
Now further to the question as to whether or not the Respondents as a matter of fact exhausted all the conditions precedent to the acquisition of compensation before resorting to the High Court. Listing the conditions precedent in simple words are:
A claim for compensation under shall be copied to the Minister and the Government agency responsible for land valuation.
The amount of compensation payable shall be determined by agreement between the parties.
Where 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 (emphasis is mine).
In effect, the Respondents must have, as a matter of fact, exhausted the conditions above, and upon the failure of these, would entitle them to resort to the High Court.
In evaluating the facts as found in the record, from the affidavits, it can be inferred from the submissions of the various counsel that the satisfaction of the aforementioned conditions is not in dispute (so to speak). The only point of departure is where upon the notification of the Minister, the Respondent is alleged to not have waited for the Minister to come up with a determination of the compensation payable.
The question that seeks to be posed is: how long should the Respondents have waited from the time of sending a notice to the Minister, as well as the time of the destruction, till the time of instituting the action? In effect, did the Respondents ‘rush to court’?
Referring to page 40 of the record of appeal, a request for “FORM Fs” was sent to the Appellant on the 19th day of February 2011. This request indicated that the form itself was documented on the 22nd day of December 2011. Subsequently, after nothing was done about the request, the Respondents sent a letter of reminder dated the 25th day of March 2015 for a retrieval of the “FORM Fs”. These letters also stated the likelihood of the Respondents instituting legal action against the Appellant upon the failure to submit “FORM Fs”.
On the 2nd day of July 2015, a letter (found on page 44 of the record of appeal) was sent to the Minister and the Ministry of Lands and Natural Resources on the delay of payment of compensation by Appellant. This letter stated (on page 46 of the record of appeal) that:
‘…The Company (Appellant)’s posture in respect of the above-stated matter is so worrying that it is only through legal action that can get the company pay heed to the outcry of these poor farmers.’
This seeks to notify the ministry of the severity of the progress of the matter, hence, calling on it to intervene and perform what had been statutorily entrusted in their reach to do according to sections 73(3) and 74, and Article 20 of the constitution of the Republic, 1992. Pages 46 and 47 indicate that all relevant authorities were also copied in the letter.
On the 8th day of October 2015 (after three months of sending the first letter), another reminder was sent to the Ministry of Lands and Natural Resources. This indicated that the Respondents had not heard of any response from the ministry, thereby, entreating the ministry to grant their request.
It is clear on the face of the record that the Respondents have been respecters of due process. They have proven that they had not formulated the intent to skip or breach a clear and unambiguous statutory procedure. One can say without equivocation that in accordance with good conscience and reasonability, the farmers had taken all reasonable steps to observe the performance of the conditions precedent the acquisition of the compensation. The only fact that leads to a reasonable opposition from the Appellant is where a petition had been sent to the Minister as required by section 73 (3) and on the quest of finalising due process, the Respondents resorted to the High Court.
It is worthy to take notice of section 74 of Minerals and Mining Act, 2006 (Act 703) which renders it incumbent on the Minister to treat such a matter as would be treated a matter of compulsory acquisition. Accordingly, the compensation so claimed under sections 73(3) and 75 of Act 703 must be prompt, fair and adequate. Failure to do so would entitle the aggrieved party to access the High Court for a redress.
Referring to Article 33 (1) and (2) of the constitution therefore;
Protection of Rights by the Court
(1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
(2) The High Court may, under clause (1) of this article, issue such directions or orders or writs including rites or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warrant as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.
Furthermore, as a question of fact, and in the quest of the court according legal protection, the bargaining powers of the respective parties would be examined. Bargaining power is the ability of the relative parties to exert influence over each other. This is for the purpose of the agreement and the respective positions in which each party has been placed.
The farmers can be seen to be of very weak influence and it is incumbent on the court to protect the weak and downtrodden. It would, essentially, be contrary to good conscience to deprive these farmers access to justice based on a breach of due process which they have little (if any at all) to do with.
It would therefore not be in the interest of justice to further delay these farmers their constitutional rights based on the delay of the Minister, something that they had no control of. The Appellant asking for the issuance of prerogative orders based on the review jurisdiction of the court, in my view, would not be in the best interest of the aggrieved farmers. It is worthy to be addressed that the proposed remedy by the Appellant is not the only avenue left. The High Court is authorized to issue orders that are in the interest of justice.
Now, this brings us to the point that it had been three months after the petitioning of the Minister when the Respondents resorted to the High Court. It is worthy to not lose sight of the fact that this destruction of seedlings took place in the year 2008/2009 and long before the 22nd day of December 2011 since that was the date of the documentation of the assessment and valuation conducted on the destruction.
The question therefore is this; how long should the Respondents have waited to satisfy the statutory requirements? Essentially, the Respondents have been aggrieved for years on, and they had done ‘all’ that was statutorily expected of them. What then would be reasonably expected of an aggrieved party whose fate had been left hanging on the Minister, who has been notified twice already but still, had not addressed their matter for three months? How long would it have been reasonably expected of such a party to wait? Can it be reasonably contemplated, based on the turnout of events that the Respondents could reasonably rely on the intervention of the Minister sooner? What then would happen to the administration of justice that espouses that ‘justice delayed is justice denied’? What then happens to that which espouses ‘equity will not suffer a wrong without a remedy’?
All these questions posed raise the inference that it is reasonably expected of a party in the armchair of the Respondents to seek the protection of the courts, as the Respondents have.
The Appellant sought to rely on the 5th holding of the Supreme Court in BOYEFIO V NTHC PROPERTIES LIMITED (1996/97) SCGLR 531 that:
“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”.
This position upon further reading the same holding was not without exceptions. It was further stated:
“Furthermore, section 12(1) of PNDCL 152 was in consonance with the modern practice of setting up an internal tribunal in an institution to determine at first instance disputes arising within that institution before recourse was made to the courts if the matter did not end at the internal tribunal. In such situations, where a person ignored the internal tribunal and came to court in respect of any such internal dispute, unless that person had a substantial reason for side-stepping the internal tribunal, the courts would invariably order him to go back to the internal tribunal”.
The Counsel for the Appellant submitted that the learned trial judge got it all wrong when she ruled that the High Court was seised with jurisdiction to determine the matter based on this case. In this instant case, however, it is clear that the Respondents indeed had written to the Minister, reminded him a few times on 25th March 2015 at pages 42 and on 8th October 2015 at page 48 of the Record of Appeal. One cannot also forget or gloss over the length of time it had taken for them to get to this stage, namely from 2008/2009, the date of the destruction of the cocoa and oil palm seedlings, to the date of filing this suit. Indeed, in the circumstances, the Respondents had done enough, and could not in all fairness wait for the Minister to take his “own” time to determine the matter. This is why the courts are available for redress.
For it is my opinion that the Respondent had a substential reason for side-stepping the procedures as required by the Minerals and Mining Law. For these reasons, the appeal is dismissed and the Judgment of the High Court is affirmed.
Cost of GH¢10,000.00 awarded.