IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
ANGLOGOLD ASHANTI LTD - (Defendant/Appellant)
NANA KONTOH & ANOR - (Plaintiffs/Respondents)
DATE: 16TH OCT, 2018
SUIT NO: H1/18/2016
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
ANTHONY DESEWU FOR DEFENDANT/APPELLANT
NO REPRESENTATIVE FOR PLAINTIFF/RESPONDENT
This is an interlocutory Appeal against the Ruling of the High Court, Kumasi dated the 12th day of March 2014, which dismissed the Defendant/Appellant’s application praying the Honourable Court to dismiss on jurisdictional grounds the suit filed by the Plaintiffs/Respondents.
The said Ruling can be found at pages 38 to 46 of the Record of Appeal.
This case is about the effect of mining activities on the environment. The facts of the matter as stated by the Plaintiffs/respondent in their pleadings is that the Defendants/appellant have for a number of years deposited waste in the form of cyanide and other chemicals from its gold mining activities into the river Apetikooko. The plaintiffs’farms are located down -stream through which flows the river Apetikooko. The Plaintiffscultivate cocoa,palm oil, cashew, avocado pear on acres of farmland. It is the plaintiffs’ case that the effect of the dumping of the waste by the Defendant had a negative effect on their produce, and their cocoa and palm oil nurseries had been rendered unproductive. The yield capacity of their crops had been substantially reduced and in some instances destroyed altogether.Following their complaints, the Defendant/Appellant sent its officers to investigate the matter and assessed the compensation to be paid to the affected farmers. The affected farmers accepted their compensations which were paid to them with exception of the two Plaintiffs/Respondents herein.They refused to accept the compensation that was to be paid to them on the grounds that the amounts were inadequate. According to the Appellant, instead of reporting the matter to the Minister for Minerals and Mines as enjoined by law, they rather sued the Defendant/Appellant at the High Court, Kumasi and by their Writ of Summons and Statement of Claim, they sought against the Defendant/Appellant the following reliefs:
a. A declaration that the Defendant has violated the Plaintiffs right to equality of treatment and their right to own property i.e. Articles 17 and 18 of the Ghana Constitution 1992.
b. An order directed at the Defendant to restore the Plaintiff’s land to its original status as fertile land for cultivation and thereafter vacate same.
c. General damages for trespass.
In the alternative:
An order directed at the Defendant to pay prompt and adequate compensation to the Plaintiffs in accordance with section 73 of the Minerals and Mining Act, 2006 (Act 703) for causing irreparable damages/destruction to the Plaintiffs’ source of livelihood.
The Defendants/Appellant duly entered appearance and an Amended Statement of Defence was also filed on its behalf on the 27th day of July, 2012, which can be found at pages 12 to 13 of the record of appeal. On the 16th day of October, 2013, the Defendant/Appellant caused a Motion on Notice for the dismissal of the Plaintiffs’ actions to be filed under Order 11 Rule 18(1) of C.I 47 on its behalf on the grounds that the Plaintiffs/Respondents’ action was an abuse of the process of the court. It was the case of the Defendant/Appellant that the High Court was not seised with the jurisdiction to hear the matter, since the condition precedent and the procedure laid down by the Minerals and Mining Act, 2006 (Act 703) for compensation claims had not been exhausted by the Plaintiffs, before proceeding to the High Court.
The learned trial judge ruled that the trial court has jurisdiction to determine the matter. Being aggrieved and dissatisfied with the said ruling, the Defendant/Appellant herein filed the instant appeal on the sole ground that:
“The learned trial judge erred by ruling that, the High Court has jurisdiction to hear the matter in spite of the fact that the Plaintiffs admittedly did not exhaust the condition precedent laid down by the Minerals and Mining Act, 2006 (Act 703)”.
In this appeal, the Plaintiffs/Respondents are hereinafter referred to as the Respondents and the Defendant/Applicant is hereinafter referred to as the Appellant. The record of appeal is described as the ROA. 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, this Court would make reference to the aforementioned statutory provisions on the regulations of the operations of the mining company and the applicable provisions are 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 the following provision is apposite:
(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).
In proceedings brought before the High Court under subsection (2), the High Court shall be exercising its supervisory jurisdiction”.
It is not in dispute 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?
Jurisdiction is a very important and serious issue, since it goes into the root of the matter. When a party in a matter challenges the jurisdiction of a Court, that objection or challenge must be first considered by the court before any further proceedings in the matter. The jurisdiction of a Court must be conferred by the Constitution, a Statute or any other law.
Generally, the High Court’s jurisdiction is espoused in Article 140 of the Constitution of the Republic of Ghana, 1992 as follows:
(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 that;
(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. 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) A claim for compensation under Section 73(1) of Act 703 shall be copied to the Minister and the Government agency responsible for land valuation.
b) The amount of compensation payable shall be determined by agreement between the parties.
c) 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 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.
However, in evaluating the facts as found in the ROA, Specifically from the affidavit in support of the Motion on Notice for the dismissal of the Plaintiffs’ action under Order 11 Rule, it can be inferred from the submissions of Counsel for the Appellant that the conditions precedent had not been satisfied by the Respondents.
This can be found on pages 18-19 of the ROA, specifically paragraph 8 of the said Affidavit and there is no evidence in the ROA that shows that the Respondents herein have fully exhausted the conditions precedent.
It is worthy of note that Rule 8 of C.I 19 states explicitly that:
“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”
Her Ladyship, Georgina Wood, CJ in the case of AgyeiwaaV. P & T Corporation (2007-08) SCGLR 968 @ 989, stated that:
“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law”.
In the case of MamuduWangara V. GyatoWangara [1982-83]GLR 639, the Court, per Abban JA, as he then was, explained the concept to mean that the appellate court was virtually in the same position as if the hearing were the original hearing, and might review the whole case and not merely points as to which the appeal was brought. This means that in this judgment, this court is in a position to do what, in our view, the trial court ought to have done but failed to do.
Counsel for the Appellant’s case is that the court below failed to properly evaluate the evidence on its merit and thereby arrived at an erroneous decision. In his opinion, the trial Court failed to critically consider the fact that the sector Minister and the relevant Government agency were never given a copy of the Respondents compensation claims at any point, as there is no evidence as such on the ROA.
It is trite law that an appeal to an appellate court is a way of rehearing and the appellate court, in addressing same, ought to consider the entire record before it. This position of the law was amply demonstrated in the case of Tuakwa V. Bosom [2001-2002] SCGLR 61, where the court held that;
“It was incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that in a balance of probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”
A thorough scrutiny of the Respondents’ Affidavit in Opposition, (which was deposed by one Nana Kontoh, of House No. KNT 103, Kunka Town Obuasi-Ashanti which can be found on pages 20-22 of the ROA, specifically at paragraphs 5, 6, 7, 9, 11 and 12,did not disclose any indication that the condition precedent was duly followed by the Respondents in claiming their compensation, failure of which an action in the High Court is triggered.
Section 73 of Act 703, specifically provides inter alia that;
(i) a claim for compensation under Section 73(1) of Act 703 shall be copied to the Minister and the Government agency responsible for land valuation;
(ii) the amount of compensation payable shall be determined by agreement between the parties; and
(iii) 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 mine).
This Court has observed that there is no evidence on the record which shows that the claim for compensation was copied to the Sector Minister and the Land Valuation Board, the Government Agency responsible for land valuation.
Furthermore, there is no evidence as per the record that indicates that the Sector Minister in consultation with the land valuation board, the Government agency responsible for land valuation to determine the proper, fair and just compensation payable by the holder of the mineral right as stipulated by law.
For this reason, this Court is of the candid opinion that the condition precedent has not been fully exhausted and therefore, a breach of the law (in this case, Act 703).
In the instant case, the dictum of the Supreme Court as demonstrated in the case of Boyefio V. NTHC Properties Ltd (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”, is inevitably applicable.
This Court has observed from the Ruling of the court below, at pages 39 – 46 of the ROA that the Appellant sought to rely on the 5th holding of the Supreme Court in Boyefio V. NTHC Properties Limited (supra) to buttress his position that the Respondents ought to have first exhausted the condition precedent as laid down in the Minerals and Mining Act, 2006 (Act 703) for compensation claims. This argument by Counsel for the Appellant was conceded by Counsel for the Respondents. This can be found at paragraph 2 of page 40 of the ROA (Same as page 3 of the Ruling of the trial Court);
“Moving the Motion, Counsel for the Defendant/Applicant relied on the case of BoyefioVrs. NTCH Properties Ltd (supra). Counsel for the Plaintiffs/Respondent conceded that the position taken by counsel for the Defendant is right.”
This Court noted from the above extract from the ROA that, Counsel for the Respondent agreed with the Counsel for the Appellant on this position of the law.
In the case of ReAsere Stool; NikoiOlaiAmontia IV (Substituted ByTafoAmon II V. AkotiaOworsika III Substituted By LaryeaAyiku III (2005-2006) SCGLR 637 it was held that:
“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”.
Since Counsel for the Respondents has agreed with Counsel for the Appellant that the they ought to have first exhausted the condition precedent as laid down in the Minerals and Mining Act, 2006 (Act for compensation claims, they should have written to the sector Minister in that regard and not to see the Minister’s involvement as unnecessary (See the Affidavit in Opposition at pages20-22 of the ROA).
We are of the opinion that, once the Respondents had admitted that they were offered some money as compensation, which they subsequently rejected as being inadequate, they ought to have exhausted the condition precedent laid down in Act 703 for compensation before resorting to the aid of the High Court for any further remedy. This can be noted from paragraph 7 of the Respondents’ Affidavit in Opposition, filed on the 20th day of November, 2013, as noted earlier.
“That some six (6) months or more after the destruction of our crops the Defendant attempted to make some payments in the form of compensation to us but we rejected same because they were also too small.”
The Supreme Court went ahead in the Boyefio case (supra) to state in the same holding five (5) as follows:
“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”.
Indeed, the Respondents per their pleadings ought to have indicated clearly any steps they had taken so far in accordance with the procedures required under Act 703. Their pleadings should disclose whether or not they had complied with the conditions precedent to the commencement of an action for compensation. This they woefully failed to do.
This Court has not seen any substantial reason for which the Respondents should side-step the involvement of the Sector Minister and the Land Valuation Board, the Government agency responsible in the claim for their compensation as strictly stipulated under Section 73 of Act 703.
It is clear from the ROA that the Appellant herein has made consciously efforts to compensate the
Respondents for their claims. This is manifested in the following instances:
i. by sending its officers to assess, evaluate the harm caused by its activities and reported same to the Appellant;
ii. by compensating the Respondents of which they rejected for being inadequate; and
iii. by applying for leave from the Court after close of pleadings but before application for direction to settle the matter amicably with the Respondents.
There is however no evidence on the ROA to indicate how long the Appellant has delayed to respond to the proposal from Counsel for the Respondents for the settlement of the compensation claims after both parties had asked the Ministry of Agriculture for specific prices for the crops destroyed and same was given to them.
The instant case can therefore be distinguished from the recent Appeal Court’s decision in the case of Charles Fosu& 2 Ors V. Anglogold Ashanti Ltd, Suit No. H1/02/2018, Dated 26th February, 2018 (Unreported), where the Court of Appeal held inter alia that;
“...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 the Court’s opinion that the Respondent had a substantial reason for side-stepping the procedures as required by the Minerals and Mining Law 2006 (Act 703). For these reasons, the appeal is dismissed and the Judgment of the High Court is affirmed.”
In the Charles Fosucase, the condition precedent was duly followed by the Appellants therein and did not breach any law, while in the instant case the condition precedent was not fully exhausted and therefore, the Respondents herein breached the provision under Act 703.
In the Charles Fosucase, the attention of the sector Minister and the Government agency concerned was drawn to the issues, but they were rather shirking their responsibility and were not co-operating with the Appellants therein in their claim for the compensation, while in the instant case, the attention of the sector Minister was not drawn in relation to the claim of the compensation by the Respondents herein.
In the case of Agyemang Substituted ByBanaheneVrs. Anane [2013-2015] SCGLR, the Supreme Court of Ghana held that:
“As a rule, courts are not expected to endorse, concessions, compromise or agreements by parties which were contrary to, inconsistent with or not warranted by any rule of law or procedure. Thus in any proceedings where the step taken by a party or parties was in violation of any constitutional or statutory provision, same was not sanctioned by any substantive rule of law or procedure, the court has a duty to reject it; notwithstanding the fact that it was based on the mutual agreement of the parties”
In the case of Solomon Baah V. Melcom (Ghana) Ltd & Another; Suit No. HI/27/2015, Unreported, Judgment Delivered on 27th February, 2016, the Court of Appeal, Kumasi, held inter alia at page 10 of the judgment per Torkornoo JA that:
“The Courts are courts of law and our duty is to apply the law to disputes brought to it.”
Again, in the case of AddaeAikins V. Daniel Dankwa, Civil Appeal No. J4/24/2014, Unreported Judgment and same delivered on 28th May, 2014,Atuguba JSC said in passing that:
“A Court has power to uphold but not to pervert justice.”
This Court is of the opinion that the Respondents ought to have exhausted the conditions precedent before initiating any action at the High Court. By that, the Respondents’ action would have been so justified and same would have crippled the Appellant’s current application to set aside the trial Court’s ruling for want of jurisdiction.
We sympathise with the Respondents for their loss. However, this Court is of the candid opinion that there are unpardonable consequences therefrom when there is a needless breach or violation of the law, as evidenced in the instant case.
The Respondent should have avoided the needless breach of Act 703 by exhausting the conditions precedent provided therein before initiating the action at the trial Court.
For this reason, this Court in order to serve justice and fairness has no other choice but to set aside the reasoned decision of the High Court and consequently allow the appeal.
Costs of GH¢5,000.00 awarded to the Appellants against the Respondents.
MARGARET WELBOURNE (MRS.) JA
[JUSTICE OF THE COURT OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]