IN THE MATTER OF THE MINERALS AND MINING ACT, 2006 (ACT 703) AND OTHERS - (Plaintiff)

vs.

MINISTER FOR LANDS AND NATURAL RESOURCES EX PARTE: EXTON CUBIC GROUP AND ATTORNEY GENERAL - (Respondents / Interested Parties)

DECISION

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i. Introduction/Overview:

 

[1] This is an application in the nature of Certiorari brought pursuant to Order 55 Rule 1 (a) and 4 of the High Court Civil Procedure Rules, 2004 C.I. 47. The Applicant, alleges that the Respondent Minister acted beyond his powers and breached the Applicant’s right to be heard when he revoked three mining leases granted the Applicant by the government of the Republic of Ghana.

 

 

 

[2] Order 55 Rule 1 (a) and 4 (2) state:

 

“1. An application for;

 

(a) an order in the nature of mandamus, prohibition, certiorari or quo warranto;

 

4. (1) An application for. judicial review shall be made to the High Court by motion.

 

(2) The motion shall be supported by an affidavit by or on behalf of the applicant which shall contain the following particulars

 

(a) the full name, description and address for service of the applicant:

 

(b) the facts upon which the applicant relies;

 

(c) the relief or remedy sought by the applicant and the grounds on which he seeks the relief or remedy; and

 

(d) the full name, description and address for service of the person directly affected by the application”.

 

 

 

[3] The Applicant is praying for an order to bring up for the purpose of quashing the decision of the Honourable Minister dated September 4, 2017 revoking the three Mining Leases in respect of the land covering the areas of Kyekyewere, Mpasaso and Kyirayaso and for an order of interlocutory injunction restraining the Respondent or his agents from interfering with the Applicant’s rights acquired under the leases. In effect, the injunctive order seeks to restrain the Respondent and/or the Government and the people of Ghana from interfering with the Applicant’s mining activities in the afore-mentioned areas of the Ashanti Region.

 

 

 

ii. Facts/Background:

 

[4] To understand the circumstances that led to the current application, it is necessary to review the background of events that occurred prior to the filing of the application. The Applicant is a Limited Liability Company registered under the laws of Ghana and authorized to carry on the business of mining, among others. The Applicant contends that it applied for and was granted three mining leases by the government of the Republic of Ghana and as a result it acquired the right to the minerals in the lands covering the areas mentioned supra. According to the Applicant, it subsequently submitted applications to the Minerals Commission (the Commission) in accordance with requirements specified in Section 11 of the Minerals and Mining Act, 2006 (Act 703) and regulation 172 of the Minerals and Mining (Licensing) Regulations, 2012 (L.I. 2176).

 

 

 

[5] The Applicant alleges that it obtained the aforementioned mining leases after duly complying with its statutory obligations, following which the Minerals Commission recommended the mining leases to the Minister for approval and execution. It is the further case of the Applicant that neither the Respondent herein nor the Commission has alleged any violation or failure of the Applicant in complying with its statutory obligations in the presentation of its application for the mining leases. The Applicant further alleges that the Respondent herein openly defended it in public media and also maintained that the Applicant had all the necessary documentations, and had satisfied all the relevant conditions to obtain the mineral right granted by the government.

 

 

 

[6] It is the case of the Applicant that despite the Respondent Minister publicly defending the validity of the mining leases, on September 4, 2017 by a letter referenced as SCR/FC-100/124/O1A, the Respondent wrote to the Applicant to inform it that upon “scrutiny of the processes leading up to the grant of the mining leases,” the Respondent had observed “non-compliance with statutory requirements for the grant of any valid Mining Lease” to the Applicant for which reason the mining leases granted to the Applicant by the government of the Republic of Ghana are “invalid and of no effect.”

 

 

 

[7] Being aggrieved, the Applicant has brought the instant application for judicial review (Certiorari) with the aim that this Court may quash the Minister’s decision as contained in the letter of September 4, 2017. The Attorney General has filed an affidavit in opposition and raised objections to the competency of the application and submitted that the application violates Article 88 (5) of the 1992 Constitution and therefore same is incompetent and ought to be dismissed as unmeritorious.

 

 

 

[8] It is instructive to state at the outset that the Court allowed Counsel to argue the preliminary objection together with the arguments in opposition to the merits of the application itself and therefore, the following questions are to be considered: based on the affidavit evidence, is this a proper case for judicial review and has the Applicant made a sufficient case enough to entitle it to the orders it seeks? And as opposed and articulated by the Honourable Deputy Attorney General, is the application incompetent because the Minister for Lands and Natural Resources is named as the Respondent and should the application be against the Attorney General because as submitted by learned Deputy Attorney General based on Articles 88 and 293 of the 1992 Constitution, the Attorney General does not share its capacity in instituting actions on behalf of the state and also defending the actions of government with anybody? This is the premise on which I shall proceed to consider the present application. It is however, convenient, before considering the legal objections raised by both parties and outlining the issues raised in this instant application, to chronicle in detail the respective positions and claims of the parties as contained in the depositions of the affidavits filed and the arguments of Counsel to the Court.

 

 

 

iii. The Case of the Applicant as per the Affidavit Evidence:

 

[9] In an initial 44-paragraph affidavit supporting the motion paper, sworn to by Tachiwura Amidu Ahmed Sulemana on October 10, 2017 and filed at the registry of this Court on the same day, and a 20 paragraph Supplementary Affidavit also sworn on November 21, 2017 by the same Mr. Sulemana, it is the case of the Applicant that it is the holder of three mining leases granted to it by the government of Ghana and as a result it acquired the right to the minerals in the lands aforementioned. Copies of the leases are attached as Exhibits “B”, “C” and “D”. By Exhibit “B”, the Applicant was granted a twenty-two year lease to mine bauxite at Kyekyewere covering an area of 56.64 square kilometres. By Exhibit “C’, the Applicant was granted an eighteen-year lease to mine bauxite at Mpasaso covering an area of 22.46 square kilometres and by Exhibit “D”, the Applicant’s lease is for 21 years to mine bauxite at a Kyiraso also covering an area of 32.68 square kilometres. All the leases were signed on December 29, 2016 on behalf of the Government of Ghana by the then Minister for Lands and Natural Resources.

 

 

 

[10] It is the case of the Applicant that prior to the grant of the leases, it was required to submit applications to the Mineral Commission in accordance with the requisite law and based on that a recommendation was made to the Minister who approved of the application and subsequently executed the leases. It is deposed that the Applicant duly complied with its statutory obligations and the law. According to the Applicant, pursuant to Section 13(2) of Act 703, upon the recommendation of the Commission the Minister is required to publish a notice in writing “in among others a Gazette, of a pending application for the grant of a mineral right in respect of the land to a chief or allodial owner and the relevant District Assembly.” It is the case of the Applicant that the statutory obligation to publish the notice is that of the occupant of the Respondent’s office and not a burden placed on the Applicant.

 

 

 

[11] Further, it is averred that by a letter dated September 4, 2017 exhibited as Exhibit “E” the Respondent wrote to inform the Applicant that upon scrutiny of the processes leading to the grant of the mining leases it had observed “non-compliance” with some statutory requirements and therefore the leases are not valid and revoked. It is further averred that Exhibit “E” relied on Section 87 of Act 703 as the basis for the revocation. It is the contention Applicant that Section 87 of Act 703 only gives the Respondent power to revoke licenses of small scale mining operations and not mining leases and therefore according to the Applicant, the Respondent exceeded his jurisdiction when he wrote Exhibit “E”.

 

 

 

[12] It is further averred by the Applicant that immediately after writing Exhibit “E”, the Respondent Minister wrote another letter similar to Exhibit “E” and also referenced as SCR/FC- 100/124/01, a copy of which is attached as Exhibit “E1”. It is the further contention of the Applicant that the “Respondent (probably prompted that his reliance on Section 87 of Act 703 to terminate Applicant’s mining leases were erroneous) then deleted the sentence which referred to section 87 of Act 703 as the basis for terminating the Applicant’s mining leases.” According to the Applicant Exhibit “E1” alleged a number of statutory breaches including failure of the Minister to publish the appropriate notice in the gazette, the Applicant’s failure to comply with its Environmental Assessment obligation as provided for in the Environmental Assessment Regulations (L.I. 2176), the Mining Leases did not receive Parliamentary approval and the Applicant’s failure to comply with its obligations under the Minerals and Mining (Health, Safety and Technical Regulations, 2012 (L.I. 2182) among others.

 

 

 

[13] It is further averred that all the reasons stated by the Respondent are of no moment because upon “the grant of mining leases, the said leases can only be validly revoked on the grounds statutorily provided for, in accordance with due process and in the manner contractually agreed upon.” The Applicant at paragraph 30 has deposed and outlined some of the circumstances for the revocation based on Section 68 (1) of Act 703, Regulation 200 of L.I. 2176 and Clause 27 of the lease agreements and says they include failure to pay on the due date, the applicable fees and any taxes and royalties, failure to conduct operations in accordance with the approved programmes of mining operations and specified in the feasibility report, when it becomes insolvent or bankrupt, if convicted of any offence relating to smuggling or illegal sale or dealing in minerals etcetera.

 

 

 

[14] It is the further contention of the Applicant that the reasons given by the Respondent are erroneous because it cannot leverage its own failure to comply with statute as a reason for terminating the mining leases. In regards to the allegation that the Applicant failed to comply with its Environmental Assessment obligations, the Applicant has averred that they are unfounded and false because it complied with same. The Applicant attached as Exhibits “F”, “F1” and “F2” to confirm its compliance.

 

 

 

[15] It has been further averred in the supporting affidavit that the allegation that the Mining Leases did not receive parliamentary approval is also mischievous by virtue of Section 87 of Act 703 and Regulation 188 of L.I. 2176 because the responsibility to obtain such approval is placed squarely on the office occupied by the Respondent. The Applicant also averred and denied all of the other allegations of the Respondent and contends that by Section 68 (2) of Act 703 and Regulation 200 (3) of

 

L.I. 2176 the Applicant is required to be given notice in writing, in the manner specified in Form Sixty- Four of the First Schedule of L.I. 2176, stating the breach which forms the grounds for the termination and then given the opportunity to remedy the breach in one hundred and twenty (120) days before the termination. According to the Applicant, that was not done in this case and contends that the Respondent did not afford it the opportunity to be heard and therefore the Respondent’s decision dated September 4, 2017 is ultra vires the statutory provisions regulating the Respondent’s powers to revoke mining leases, a breach of the Applicant’s rights to administrative justice and due process, violation of the audi alteram partem rule of natural justice and therefore unreasonable.

 

 

 

[16] In the Supplementary Affidavit filed by the Managing Director of the Applicant Company on November 21, 2017 as a rebuttal to the Affidavit in Opposition filed with the consent and authority of the Attorney-General on November 15, 2017, the Applicant vehemently denied all the material allegations of fact contained in the Respondent’s affidavit in opposition. Firstly, the Applicant denied that the instant application violates Article 88(5) of the 1992 Constitution. Further, the Applicant further averred that “there was no dispute between the Applicant and the Respondent that could be referred to arbitration contemplated under Section 27 of Act 703.” It is also the case of the Applicant that it is the Minister’s responsibility to publish the notices stated at paragraph 9 (iii) in the affidavit in opposition filed but same was not done and therefore the said notices were published at the request of the Minerals Commission in April 2015. The Applicant attached as Exhibits G, G1 and G2 being the copies of the requests made by the Minerals Commission. The Applicant further averred that the requests were followed by Certificates of Service of Notice by the District Chief Executives for the areas where the lands are situated. Copies of the Certificates are also attached as Exhibits H, H1 and H2.

 

 

 

[17] In further denial of the allegations contained in the affidavit in opposition, the Applicant denies paragraph 9 (v) and contends that its prospecting licences have never been invalidated and that same remain valid. According to the Applicant a liability estimate in relation to environmental degradation can only be done after the submission and consideration of the Draft Environmental Social Impact Assessment (ESIA) Report with the input of the Environmental Protection Agency (EPA). The Applicant says that a Draft ESIA Report was submitted to the EPA in March 2017 and a copy is exhibited as Exhibit F2. The Applicant has also deposed that two subsequent letters dated 30th March 2017 and 18th July 2017 were delivered to the EPA and same have been attached as Exhibit I and II but says both are yet to be acknowledged and responded to.

 

 

 

[18] In further denial of the affidavit in opposition, the Applicant says it is not true that the concessions granted under the lease “constitute 79% of the nation’s known bauxite resources.” It is also the case of the Applicant that it did not enter the site to undertake mining activities, but rather that the Minerals Commission on/or about the 16th of August 2017 called the Applicant to inform it that it intended to visit the concession site to discuss the Applicant’s efforts at developing the concession. An email dated Wednesday, August 23, 2017 was attached to confirm the said communication as Exhibit “J”. The Applicant contends that it therefore prepared for the said visit by engaging a contractor to prepare an access road and a camp site to receive the delegation but did not go to undertake any mining activity. It is the further case of the Applicant that in its attempt to prepare the access road for the visit, its equipment and trucks were seized on August 20th, 2017 and then on August 23, 2017 it received a letter from the Minister “reminding them of the need to acquire relevant permits before undertaking mining activities.” The Applicant further contends that it explained to the Respondent the reasons for its presence on the concession in a letter dated August 25, 2017. A copy is attached and marked as Exhibit “K” in the application.

 

 

 

[19] The Applicant has further averred and denied that the grant of an environmental permit is a pre-requisite for the grant of the leases. To that extent, the Applicant says the deposition in paragraph 14 of the affidavit in opposition is misplaced. Further, the Applicant denies paragraph 19 of the affidavit in opposition and says ratification by Parliament cannot be a “precondition for the execution of a contract between the Applicant of a mining right and the Government of Ghana.” According to the Applicant, subsequent to the acquisition of the mining lease, the responsibility to obtain Parliamentary approval is placed on the office occupied by the Respondent and therefore same cannot be used as the basis for the Respondent’s action.

 

 

 

[20] In response to paragraph 22 of the affidavit in opposition, the Applicant has deposed that the legality or otherwise of a duly executed contract between the Applicant and the Government of Ghana, acting through the occupant of the office of the Respondent cannot be within the powers of  the Respondent herein. Finally, the Applicant denied paragraphs 30 and 31 of the affidavit in opposition and says all the depositions contained in the affidavit in opposition are misconceived and lack legal backing. It has therefore implored the Court to grant the application and the reliefs it seeks.

 

 

 

iv. Applicant’s Counsel’s Argument in Support of the Application:

 

[21] Applicant’s Counsel submission is premised on three main grounds as:

 

1. Want or Excess of Jurisdiction by the Respondent Minister.

 

2. Denial of natural justice or absence of procedural fairness.

 

3. Unreasonableness

 

 

 

[22] In moving the application, learned Counsel for the Applicant relies on the statement of case filed and raised two objections against the materials filed by the Attorney General on behalf of the Respondent. Mr. Osafo-Buabeng first vehemently objected to the receipt of the Supplementary Affidavit deposed to by Ms. Ivy Vanderpuije and filed on November 23, 2017. According to learned Counsel, the Respondent ought to have sought the leave of the Court before filing same and therefore it sins against Order 55 sub-rule 7 of C.I. 47. Further, learned Counsel submitted that the contents of the affidavit sins against Order 20 Rule 9 as being scandalous, irrelevant and offensive. According to Mr. Osafo-Buabeng the depositions are in the realm of partisan politics rather than law, and thus untenable because the deponent is a lawyer. The second objection raised by Counsel for the Applicant is that the Respondent has no Statement of Case because the document filed does not have a stamp of the Court’s Registry. Therefore, according to the Applicant’s Counsel it should be rejected.

 

 

 

[23] On the merits of the application, learned Counsel submitted that the Applicant wholly relies on the affidavit evidence and the statement of case filed and submitted that Exhibit E1, which is the centerpiece of this application was issued in excess of the Minister’s jurisdiction and therefore the Respondent acted ultra vires his statutory powers and erred in law when he issued that letter to revoke the Applicant’s mining leases. Learned Counsel rhetorically asked whether or not a Mining Lease could be cancelled, revoked or withdrawn by a stroke of a Minister’s pen. Learned Counsel submitted that by the provisions of the 1992 Constitution and with greater emphasis on Articles 23 and 296, a Mining Lease properly executed by the state acting through a Minister and an Applicant for the lease cannot be revoked by a stroke of a pen unless due process has been followed. According to Applicant’s Counsel in terms of procedure, Section 68(2) of Act 703 and Regulation 200(3) L.I. 2176 provide the requirement of due process as a condition precedent for the Minister exercising the right to terminate any mining lease. It is the Applicant’s case that the Minister ought to have given it a notice as a holder of a mining lease in writing in the manner specified in Form Sixty-Four of the First Schedule of L.I. 2176, informed of the nature of the breach and then given the opportunity to rectify same. The Applicant says the Respondent did not comply with the law.

 

 

 

[24] In response to the allegation that there was non-compliance with the statutory obligations to publish appropriate notices in the Gazette, Learned Counsel submitted that the allegations are erroneous because it is not one of the reasons set out in Section 68(2) of Act 703 and Regulation 200 of

 

L.I. 2176 and Clause 27 of the agreement signed. Counsel further submitted that the responsibility to publish the notices is placed on the Respondent’s office which has the obligation to initiate the publication. Counsel therefore submitted that it is untenable for the Respondent to set up his own failure to comply with statute as a reason for terminating Applicant’s Mining Leases.

 

 

 

[25] Further, according to the Applicant’s Counsel, the Respondent’s allegation that the Applicant failed to comply with Sections 11 to 22 of Act 703 is also without any merit because Exhibits “A” to “D” attached to the application makes the allegation untrue. In further response, learned Counsel submitted that the presumption of regularity requires the Respondent to have due regard to the rights of Applicant as having been duly and properly acquired unless there is clear evidence to the contrary. In this case, according to Counsel the Applicant should be presumed to have complied with all statutory requirements based on which the Minerals Commission recommended the grant to Applicant of the mining lease and for which reason the leases were signed.

 

 

 

[26] Mr. Osafo-Buabeng further submitted that whilst the Minister has the right to revoke a mining lease pursuant to Section 68 of Act 703, he can only do so after he has satisfied statutory preconditions. Further, Counsel referred to Section 5 of Act 703 and submitted that the Minister can only revoke a mining lease upon the recommendation of the Minerals Commission and can only do so with Parliamentary ratification. In this case, learned Counsel submitted that Exhibit “E1” does not indicate anywhere on its face that the Minister acted on the recommendation of the Minerals Commission. Specifically, Counsel referred to the last two paragraphs of Exhibit “E1” and submitted that the Respondent’s action goes against Sections 5 and 68(1) of Act 703.

 

 

 

[27] Based on the above, learned Counsel further submitted that as a public official the Respondent’s action falls under the remit of Article 23 and 296 of the 1992 Constitution because he acted contrary or outside the scope of the requirement imposed on him by law. To learned Counsel, in this case the Applicant has suffered a breach of its right to administrative justice because the Minister failed to act fairly, reasonably and within the ambits of the law and therefore his decision ought to be quashed. Counsel cited the case REPUBLIC v. CIRCUIT COURT, ACCRA; EX PARTE KOMELEY ADAMS & OTHERS [2011] 1 SCGLR 111, REPUBLIC v. KORLE GONNO DISTRICT MAGISTRATE GRADE 1; EX PARTE AMPOMAH [1991] 1 GLR 353 and also the High Court case of REPUBLIC v. THE PRESIDENT, BUEM TRADITIONAL COUNCIL; EX PARTE ISUKU II [1991] 1 GLR 455 to support the submission.

 

 

 

[27] Learned Counsel has equally strongly submitted that the Respondent’s decision to revoke the Applicant’s mining lease was made in breach of the audi alteram partem rule. It is because according to him the Applicant was not given the opportunity to be heard as stipulated in Section 68(2) of Act 703 and Regulation 200(3) of L.I. 2176. The Applicant contends that a reading of Exhibit “E1” leaves no one in doubt that the Respondent failed to resort to the conditions outlined in the law to revoke the licenses and to give the Applicant a hearing. In support of the arguments, learned Counsel relied on Article 23 of the 1992 Constitution and the Supreme Court case as AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL (2003-2004) SCGLR 471 and in particular the opinions of Kpegah JSC and Sophia Akuffo JSC (as she then was) and the dictum of Dr. Twum JSC at page 566[1]. Counsel also relied on the statement of law by Lord Justice Green in the old English case of CARLTON LTD. v. COMMISSIONERS OF WORKS for the submission.

 

 

 

[29] The final ground of argument submitted by the Applicant’s Counsel is that the Respondent’s decision revoking the mining lease is unreasonable. According to Learned Counsel the submission is anchored in the fact that the Respondent’s decision did not comply with the requirements of the law and breached the rules of natural justice and therefore same is unreasonable even if the Respondent Minister was well intentioned. Counsel relied on AWUKU SAO v. GHANA SUPPLY COMPANY LTD [2008-2009] 2GLR 183 SC, ABOAGYE v. GHANA COMMERCIAL BANK LTD [2001-2002] SCGLR 797 @ 806 and also the opinion of Atuguba JSC in the case of TEMA DEVELOPMENT CORPORATION & MUSAH v. ATTA BAFFOUR [2005-2006] SCGLR 121 for the submission that the decision made was unreasonable.

 

 

 

v. Affidavit in Opposition of the Respondent:

 

[30] The record reflects that the application is opposed to by the Attorney General named as an ‘Interested Party’ in this application on procedural grounds and the merits. The Attorney General filed two affidavits. The initial Affidavit in Opposition was sworn to by Veronica Adigbo, a Senior State Attorney and same was filed on November 15, 2017 and a Supplementary Affidavit was also filed by Ivy Vanderpuije, another Senior State Attorney. In the initial affidavit, it is averred that the Applicant has erred because the instant application violates Article 88 (5) of the 1992 Constitution and to that extent, the application is incompetent. It is also averred that there is no proper Respondent to the application because the Respondent “has no capacity to sue and be sued.” It is also averred that the “instant application does not satisfy the essential criteria for a judicial review application and therefore same ought to be dismissed as wholly unmeritorious”.

 

 

 

[31] It is also averred that in so far as the Applicant relies on the Minerals and Mining Act, 2006 Act 703 and also asserts the acquisition of a mineral right, the filing of this action violates the “express mandatory provisions in Section 27 of Act 703.” Based on the above procedural objections, it is deposed that the application should be dismissed. I shall later speak to these depositions in this decision.

 

 

 

[32] On the merits of the matter, the Attorney General has averred by denying the Applicant’s depositions in support of the application and put it to strict proof. It is also averred that the depositions in the affidavit in support of the application are laden with “deliberate misrepresentations of fact in so far as the process leading to the purported grant of the mining leases are concerned.”

 

 

 

[33] It is deposed that further to an application made in April 2015, the Applicant was issued with a prospecting license on December 24, 2015 under Section 34 of Act 703 for a two-year term in respect of the areas afore-mentioned. According to the deponent, there was no publication of notice of the pendency of the application for the prospecting licence in the Gazette as required by Section 13(2) (3) of Act 703 and Regulation 177 of L.I. 2176. The deponent further averred that in the absence of the publication of notice in the gazette there could not have been a delivery of same to the relevant District Assembly, publication in a newspaper circulating in the area concerned, the relevant office of the Minerals Commission, publication on the land, the subject matter of the application and notification of the office of the Administrator of Stool Lands and also the Lands Commission.

 

 

 

[34] It is further averred that even though there was no gazette publication, the Environmental Protection Agency (EPA) issued the Applicant with a permit for the prospecting licence on June 7, 2016 based on which the Applicant proceeded to carry out prospecting activities on the land. It is also deposed that in accordance with the Environmental Assessment Regulations, 1999 (L.I. 1652) the Applicant was required to among others submit within three months of the date of the issuance of the permit, a liability estimate of environmental degradation. According to the deponent, that would have enabled the posting of a Reclamation Bond in accordance with Regulation 23 of L.I. 1652 but the Applicant failed to do so. Consequently, it is the case of the Attorney General that the prospecting licence issued became invalidated. It is further averred to that the Applicant failed to file Exploration Operating Permit for the year 2017 and an Exploration Operating Plan to the Minerals Commission as required by the Minerals and Mining (Health, Safety and Technical) Regulations, 2012 (L.I. 2182).

 

 

 

[35] It is also averred that on October 29, 2016 the Applicant submitted an application for mining leases in respect of the areas mentioned supra which according to the deponent constitute “about seventy-nine percent (79%) of the nation’s known bauxite resources.” The deponent says the application failed to satisfy the particulars required under Regulations 172 of L.I. 2176. A copy of the application is attached as Exhibit AG1.

 

 

 

[36] Further, it is averred that on November 10, 2016 three Mining Leases were purportedly made by the Minerals Commission to the Applicant for the areas identified and stated in Exhibits “B” “C” and “D” in this application and the Applicant proceeded to pay for the leases. The Deponent attached as Exhibits “AG2 series and AG3 series copies of the offers of the mining leases by the Minerals Commission and receipts evidencing the payment by the Applicant. It is the case of the Attorney General that there was no publication of the notice of the application for the Mining Leases in the Gazette and there was also no notification to the Chiefs of the areas or the allodial owners as required by the law. It is also averred that the Applicant failed to obtain environmental permits.

 

 

 

[37] It is further averred that the offer of the mining leases by the Minerals Commission to the Applicant and the payment for same were done before the Commission forwarded its recommendations to the Minister for approval on December 28, 2016. A copy of the letter from the Commission to the Minister in favour of the Applicant is attached as Exhibit “AG4”. It is the case of the Attorney General that based on the recommendation, the Minister consequently signed the Mining Leases on December 29, 2016. Attached and marked as Exhibit “AG5” is a copy of the cover letter signed on behalf of the Minister by one Simon Atebiya, Technical Director, Mines to the signed leases forwarded to the Commission for onward transmission to the Applicant by the Minister.

 

 

 

[38] It is also deposed that the Applicant failed to comply with Section 18(1) of Act 703 by failing to obtain Forestry Commission and EPA permits before carrying out an undertaking or activity in relation to the mineral right. It is further deposed that even though the Minerals Commission notified the Applicant of the statutory violations in August 2017, it failed to comply. A copy of the said letter dated August 23, 2017 is attached as Exhibit “AG6”.

 

 

 

[39] It is also the case of the Attorney General that in spite of the Applicant’s attention having been drawn to what it termed ‘gross infractions,’ it persisted in undertaking activities on the land. It is deposed that as a result of the Applicant’s persistence to enter the land, the residents in the areas protested vehemently and as a result an investigation was undertaken by the Respondent and same culminated in the writing of the September 4, 2017 letter attached as Exhibit “E1”.

 

 

 

[40] Further, it is deposed that the “Applicant’s actions were in clear violation of Section 9 of Act 703”. It is also contended that the Applicant’s Exhibits “F”, “F1” and “F2” are not permits from the Forestry Commission and the EPA and that because they are dated April 2017, January 2017 and March 2017 they show that the Applicant did not obtain the relevant permits before the grant of “purported grant of mineral rights”.

 

 

 

[41] It is also the case of the Attorney General that the Tano-Offin Forest Reserve, the areas the leases granted cover are important parts of the ecosystem of Ghana because it is the source of water for millions of people in Ghana and therefore, a compliance with all the requirements of statute before the grant of a mineral right is very essential. It is also averred that it is in view of importance of the areas concerned that the “Respondent is mandated by Section 11 of the Civil Service Law 1993 (PNDCL 327) to ensure the sustainable management and utilization of the nation’s land, forests and wildlife resources for socio-economic growth and development.” To the Attorney General, therefore, the decision taken by the Respondent in this matter was in furtherance of the statutory duty imposed on him.

 

 

 

[42] Also, the Attorney General in response to the depositions in the Applicant’s affidavit that the Respondent failed to comply with Section 68 of Act 703, has averred that it is misconceived because according to the deponent “those provisions apply to processes for terminating a lease validly granted in accordance with the Constitution and laws of Ghana.” It is also averred that “the acquisition of a mineral right is a process culminating in the ratification of a mining lease by the Parliament of Ghana, and not an event occurring only after the purported signing of a mining lease without regard to the mandatory statutory preconditions”.

 

 

 

[43] It is the case of the Respondent that there is no mineral right which has accrued to the Applicant because there has been no transaction between the Applicant and the government of Ghana because of non-compliance with Act 703 and the transaction has also not been ratified by Parliament in accordance with the Constitution. It has therefore been averred that Exhibit “E1” merely stated the obvious invalidity of the lease. The Respondent further says the “violations of statutory provisions and the process leading up to the grant of the purported miming leases, rendered the conduct of the Applicant and the product of that conduct illegal and incompetent to confer any rights on the Applicant.” It is further averred that the Respondent totally denies all the depositions of the Applicant that it complied with statutory provisions and/or the presumption that it complied with statutory provisions.

 

 

 

[44] The Attorney General has also deposed that the Minister who signed the lease breached the Presidential (Transition) Act, 2012 (Act 845) because the Act requires every Minister of State to prepare their handing-over notes covering their term of office and present same to the Administrator- General not later than a month before the presidential elections. Therefore, by signing the lease on December 29, 2016 after the deadline for the submission of the handing over notes, his act was illegal. The deponent of the affidavit says that accordingly, the Respondent as the repository of the public trust, did not act ultra vires his powers in declaring the “purported leases invalid and of no effect, nor violated any right of the Applicant.”

 

 

 

[45] As indicated at paragraph 22 supra a Supplementary Affidavit in opposition was filed on November 23, 2017 in reaction to the Applicant’s Supplementary Affidavit. It is averred at paragraph 5 that the Applicant’s Exhibits G, G1 and G2 are irrelevant to the question whether the statutorily prescribed notices were published before the execution of the Mining Leases because the exhibits are rather in respect of the application for prospecting licence and not the Mining Lease. Further, it is averred that those exhibits do not show a satisfaction of the requirements of the statute for publication in the gazette and subsequent publication of the notice in the gazette.

 

 

 

[46] It is also the case of the Respondent that “the deliberate avoidance of recourse to the mandatory procedures of the law was as a result of undue influence, fraudulent and intended to unjustly favour the Applicant.” The particulars of the fraud the deponent provided include the fact that the Applicant Company is owned by a brother of the President of the Republic at all material times of the time of the lease. It is also averred that officers of state were “in furtherance of the scheme to grant unto the Applicant Company about 79% of the known bauxite resources of the state, impressed upon to sidestep statutory procedures before a valid grant of mineral rights.” It is also averred that officers of state were not in a position to insist on compliance with the law by the Applicant because of the “link of Applicant Company with the President.”

 

 

 

[47] The Respondent has also averred that the transaction was carefully contrived to evade legitimate scrutiny of public officers duly appointed to discharge their lawful duties. According to the Respondent, the Minister at the time of the transaction and the signing of the lease knew that he was bound to leave office together with the President six days after the transaction and also knew that he had already delivered his handing over notes and therefore could not legitimately engage in a transaction to convey state resources of that magnitude to any person without informing the incoming administration, let alone exclude them in any such transaction.

 

 

 

[48] Finally, the Respondent denied the Applicant’s claim of a telephone call by the Minerals Commission and also denies the authenticity of the email correspondence attached as Exhibit “J”. Based on all of the above, the Attorney General on behalf of the Respondent has averred that the application should be dismissed.

 

 

 

vi. Arguments in Opposition to the Application:

 

[49] The Deputy Attorney General who argued against the application relied on the affidavits depositions and the statement of case. Learned counsel first raised a preliminary objection to the application on the grounds that it is incompetent because there is no proper Respondent. According learned Counsel Articles 88 and 293 of the Constitution provide the basis for actions against the state and by those provisions the Attorney General does not share that capacity with anyone. Counsel submitted that the Applicant has erred by naming the Minister for Lands and Natural Resources as the Respondent instead of the Attorney General. Counsel also questioned the legal basis for naming the Attorney General as an Interested Party. Counsel relied on the case of REPUBLIC v. HIGH COURT, ACCRA; EX PARTE ATTORNEY-GENERAL (DELTA FOODS CASE) [1998-99] SCGLR 595. As well, according to learned Counsel, there is only one instance by which a public officer can be brought before the Court and that is under Article 14 (5) but that does not include the present circumstance and therefore he submitted that the application should be dismissed.

 

 

 

[50] Secondly, learned Counsel submitted that this Court lacks jurisdiction to deal with the matter. Counsel submitted that Act 703 by which the Applicant invoked the Court’s jurisdiction sets out the procedures for resolving disputes and therefore the Applicant ought to have resorted to those provisions before bringing the instant application. To that extent, Counsel submitted that the instant application sins against Section 27 of Act 703. Counsel submitted that Section 27 provide a two stage approach for the resolution of dispute to include Section 27(1) where the parties mutually agree they resort to Alternative Dispute Resolution (ADR) and the second stage being Section 27(2) which enjoins the parties to attempt settlement under the ADR Act.

 

 

 

[51] Inviting this court to the binding nature of the above provisions, learned Counsel submitted that the Applicant has not contended that the dispute is one that cannot be resolved by ADR and therefore submitted that this dispute is caught by Section 27(1) and the ADR Act. According to learned Counsel, if the Applicant asserts a mineral right which the Respondent denies it had, then in so far as it is claiming a right under Act 703, Section 27 is binding on it. According to Mr. Yeboah Dame, the dispute arose when Exhibit “6” being the letter dated August 23, 2017, was written by the Minerals Commission and the Applicant’s Solicitors also wrote Exhibit “K”, dated August 25, 2017. To learned Counsel the Applicant ought to have invoked Section 27 of Act 703 rather than filing the instant application. By failing to resort to the provisions under Act 703 the instant action is nullified, Counsel submitted. Basing himself on BOYEFIO v NTHC PROPERTIES (1997-98) 1 GLR 768 SC and the old case of OSEI YAW v. NSIAH [1968] GLR 951 HC, Counsel submitted that when the law provides a procedure to be followed, it is that procedure only that ought to be used.

 

 

 

[52] Further, Counsel relying on the unreported Supreme Court case of THE REPUBLIC v. HIGH COURT COMMERCIAL DIVISION) ACCRA, EX PARTE REPUBLIC BANK LTD, HFC BANK (GHANA) LTD & SECURITIES AND EXCHANGE COMMISSION – INTERESTED PARTIES submitted that failure to comply with the provisions of the Act is wrong because complying with such a procedure is substantive and not procedural. Counsel submitted that because the Applicant failed to comply with the procedure sets out in Act 703, the jurisdiction of this Court is not properly invoked and the instant action is clearly incompetent and ought to be dismissed.

 

 

 

[53] On the substantive application, learned Counsel rehashed the facts as contained in the affidavit in opposition and the statement of case and submitted that the Applicant has no mineral right to be protected. Learned Counsel strongly contended as flawed the Applicant’s position that it is a holder of a mineral right. According to Mr. Yeboah Dame this is because the grant of a mineral right is not an event but a process which includes the parties and also the parliament of Ghana. Learned Counsel referred to Article 268(1) of the Constitution and submitted that the words used are not just “ratification” but “subject to ratification.” To learned Counsel, the ordinary meaning of the words makes it such that the right only accrues after parliamentary ratification and not before[2].

 

 

 

[54] On the issue of parliamentary ratification, learned Counsel quoted and relied on the case of AMIDU v. ATTORNEY GENERAL; WATERVILLE HOLDINGS (BVI) LTD & WAYOME (NO.1) [2013-2014] 1 SCGLR and submitted that the apex Court has on a number of occasions pronounced on the effect of failure to obtain parliamentary approval would have consequence including making the agreement null and void and thus create no right. Learned Counsel submitted that even though that case was in respect of Article 181(5), nevertheless, the Court must apply same mutatis mutandis in the instant case to the extent that the Applicant’s failure to obtain parliamentary approval for the lease signed has created no right to it[3].

 

 

 

[55] Recounting the facts of the case and the circumstances under which the Applicant’s lease was signed, Learned Counsel further argued that the Applicant failed to comply with the mandatory provisions of Act 703 and other applicable statutes and therefore the lease granted is invalid. Counsel submitted that the application submitted by the Applicant did not comply with Section 11(1) of Act 703 because it was not in the prescribed form as required by Regulation 172 of L.I. 2176 and more importantly, contrary to the requirement of Section 13 of Act 703 of Act 703 and Regulation 177 of L.I. 2176 there was no gazette publication of the leases signed.

 

 

 

[56] Counsel next submitted that it is the sole prerogative of the Minister to grant a mining lease but in this case all the steps were taken before the Minister was informed. Counsel referred to Exhibit 2 series dated November 10, 2016 being the letters the Minerals Commission wrote to the Applicant and submitted that all that took place more than one month before the Minister was informed contrary to Section 13 (1) (4) and (5) of Act 703. Counsel further submitted that the Applicant acted on the Minerals Commission letter referred to in Exhibit 3 series. Learned Counsel therefore submitted that it was fait accompli as there was an offer and acceptance before the Minister was notified as per Exhibit 4 when the Minister was the one who should have made that decision to grant the lease as per Section 13 (1) of Act 703. According to Counsel, if the laws of the land were not complied with, then the capacity of the state as a contracting party is in issue and therefore the agreement is invalid. Counsel has therefore urged on the Court not to confirm the transaction which is in violation of statute because doing so will be an illegality and contrary to public policy. Counsel relied on the Supreme Court case of CITY & COUNTRY WASTE LTD v. ACCRA METROPOLITAN ASSEMBLY [2007-2008] 1 SCGLR 407 for the submission.

 

 

 

[57] He next argued that in interpreting Section 6(1)(2)(4) of the Presidential (Transition) Act, 2012 Act 846 this Court ought to declare all the transactions which took place after the handing over notes to be illegal. Learned Counsel submitted that even though the Act is silent on whether or not a Minister could take a decision as fundamental as giving away about 79% of the nation’s known bauxite resources as in the instant matter, Counsel urged on the Court to interpret and give effect to the Act that it was wrong and against public policy especially after the Minster included the bauxite deposits in his handing over notes as forming part of the state’s existing resources.

 

 

 

[58] In response to the Applicant’s natural justice argument, Counsel submitted that there has not been any violation of the audi alteram partem rule because according to him, by Exhibit 6 dated August 23, 2017 the Applicant was notified of the violations and it responded by Exhibit “K” through it Solicitors. Mr. Yeboah Dame submitted that when a person is given ample notice and he responds, there cannot be a violation of natural justice. Counsel further submitted that in so far as the Applicant has no right as argued supra, it cannot complain of a breach of natural justice. Counsel cited and relied on LAGUADA v. GCB [2005-2006 SCGLR 388, Holding 1 and AWUKU SIAW v. GHANA SUPPLY CO. LTD. [2009] 1 SCGLR for the submission.

 

 

 

[59] Finally, in response to Applicant’s Counsel objection that the Respondent’s Supplementary Affidavit should be rejected by the Court as scandalous, irrelevant and offensive, Counsel prayed the Court to overrule the objection because the Applicant has not demonstrated any basis in substance or procedure to warrant the grant of same. Based on all of the above Counsel strongly implored the Court to dismiss the application.

 

 

 

vii. Applicant’s Response to the Respondent’s Case:

 

[60] In response to the Respondent’s affidavit and case, learned Counsel submitted that even though Article 268 makes reference to the word “ratification,” ratification is “post-” and not “pre-” and therefore it can only take place after the lease is signed and placed before Parliament. To Mr. Osafo-Buabeng therefore, the fact that the leases have not been sent to Parliament cannot be the reason for revocation because Clause 1(f) of Exhibit “B”, being the lease speaks to the need for a ratification upon the execution and submitted that as per the wording of the lease it is the Minister who should have laid the lease before Parliament for ratification rather than using his own failure as the reason for revocation.

 

 

 

[61] In further response to the Respondent’s case and in particular the deposition that pursuant to Section 27 of Act 703, the Applicant ought to have referred the matter to Arbitration for resolution and not the instant application for judicial review. Learned Counsel submitted that Section 27(2) uses the word “may” and therefore it is not mandatory but optional. Also, Counsel submitted that the Respondent having cancelled the lease already has no right to contend that the Applicant ought to have pursued resolution pursuant to Act 703.

 

 

 

[62] In response to the Respondent’s submission that because under the Transition Act, the Minister was required to hand over his notes at least a month before the handing over, the signing of the lease on December 29, 2016 after the handing over was wrong, Mr. Osafo-Buabeng submitted that the handing over notes is only for administrative purposes and same therefore had no legal basis to stop the Minister from performing his statutory duties. Counsel submitted that there is no statute that states that when handing over notes are made a Minister cannot continue to work to perform his statutory duties. According to learned Counsel if that interpretation is accepted it would lead to absolute absurdity because the consequence would be that the Executive machinery of Government grinds to a halt after elections and before the official transfer of power.

 

 

 

[63] On the issue that there is no proper Respondent to the application, Applicant’s Counsel further submitted that Article 88 of the Constitution does not override Article 23 which the instant application is based on. He strongly contended that as a prerogative writ and pursuant to the rules, the Minister is the proper Respondent. In this case, Counsel submitted that it out of the abundance of caution, the Attorney General is made an Interested Party.

 

 

 

[64] Assailing the correctness of the procedure adopted, learned Counsel submitted that the Attorney General’s submission and the cases relied upon are misconceived. For instance, Counsel submitted that in the case of DELTA FOODS CASE SUPRA the Court went ahead to substitute the Attorney General for the Minister for Agriculture and further submitted that like the AMPRATWUM MANUFACTURING CO. LTD. v DIVESTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692 case also relied upon by the learned Attorney General the underlying cases were instituted by a Writ of Summons and the action did not originate as a judicial review as in this case. In any case, Counsel submitted that this is a judicial review and therefore this Court looks at the illegality, irregularity and the reasonableness of the decision made by the Minister and not the substance because in TEMA DEVELOPMENT CORPORATION & MUSAH v. ATTA BAFFOUR SUPRA the Court held that the Court has the right to investigate the actions of administrative officials and be satisfied that the law is complied with.

 

 

 

[65] Inviting this Court to look at the reasonableness of the decision made, Counsel submitted that based on the law one would have expected that Exhibit “E1” would be based on the recommendation of the Minerals Commission but that was not the case. Furthermore, Counsel contended that for the Minister to make such an important decision which affects the right of the Applicant without hearing from it, the discretion exercised by the Respondent Minister was capricious and unreasonable and therefore this application should succeed.

 

 

 

[66] Finally, in response to the Respondent’s contention that the Applicant went onto the land without complying with the statutory rules, Learned Counsel referred to Exhibit “J” the email correspondence and paragraph 14 of the supplementary affidavit and the Minerals Commission letters dated November 10, 2016 with the attached receipts and December 28, 2016 and submitted that if indeed the Applicant did not comply with the statutory rules, then upon what basis did the Minerals Commission write those letters? To Learned Counsel, the Respondent’s reasons and arguments are lame and ought to be rejected by the Court. For instance, Counsel submitted that Exhibit 6 did not say the mining lease is defective and ought to be reviewed but it rather stated that the Applicant ought to obtain EPA and other licences before entering the land which it responded that it already had. Based on all of the facts and the law, learned Counsel has urged on the Court to grant the application.

 

 

 

viii. The Law, Analysis and the Court’s Opinion:

 

[67] I now proceed to review and consider the arguments of Counsel in relation to the merits or otherwise of the instant application. I need to state that the instant application has raised many legal issues including ethics and the scope of judicial review. I shall therefore deal with the numerous legal issues raised by Counsel including the legal objections.

 

 

 

ix. The Scope & Ambit of Certiorari:

 

[68] The power of the High Court to exercise that supervisory jurisdiction to issue Prerogative Writs is provided in Article 141 of the 1992 Republican Constitution of Ghana. That provision of the law enacts:

 

 “141. The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority, and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.”

 

The prerogative orders contained in Article 141 have been held to be the mechanism whereby administrative law principles are applied[4].

 

[69]

Judicial review in the nature of Certiorari is the procedure by which the superior court is able, in certain cases, to review the legality or otherwise, of decisions or actions by state institutions including lower courts and adjudicating bodies which decisions/orders affect the rights of citizens or the public. The law covers not only judicial acts but also administrative duties of public institutions and officials. This system of judicial review, therefore, allows the courts to interfere in the machinery of public administration where circumstances warrant it.

 

 

 

 

[70] Wade and Forsyth have defined Certiorari in the following terms:

 

“…[It] is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed. That is to say, it is declared completely invalid, so that no one need respect it.

 

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.”

 

 

 

[71] It is important to note that Certiorari as a common law remedy has evolved historically. The statement of law by Williams J. in Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189 is instructive. He stated:

 

“. . . In its earliest application by the courts, the prerogative or royal writs, including certiorari, were a mechanism whereby the Royal Courts of Justice maintained a surveillance over the conduct of the inferior tribunals of the land. Gradually, as the organization of justice and the judiciary developed, these review mechanisms were broadened in their reach and refined in the degree of control until, by 1878, certiorari was available not only for the review of jurisdictional transgressions by statutory tribunals, but also for errors committed by those tribunals in the course of the discharge of their assigned function, where such errors were apparent on the face of the record”.

 

 

 

[72] In Ghanaian jurisprudence, the opinion of His Lordship Dr. Seth Twum JSC regarding the historical evolvement of Certiorari in the Supreme Court case of REPUBLIC v. HIGH COURT, DENU; EX PARTE KUMAPLEY [2003-2004] 2 SCGLR 219 is also instructive. His Lordship stated:

 

“Originally, in England, an order of certiorari and prohibition only lay to control the judicial functions of inferior Courts. But the notion of what is a Court and what is a judicial function has been greatly expanded and stretched so that these remedies have grown to be comprehensive remedies for the control of all kinds of administrative as well as judicial acts. In R. v. PANEL ON TAKEOVERS & MERGERS; EX PARTE DATA FIN PLC [1978] 2 WLR 699, CA Sir John Donaldson MR explained at 714 that: ‘The Criminal Injuries Compensation Board, in the form which it took, was an administrative novelty. Accordingly, it would have been impossible to find a precedent for the exercise of the supervisory jurisdiction of the Court which fitted the facts. Nevertheless the Court not only asserted its jurisdiction, but further asserted that it was a jurisdiction which was adaptable thereafter. This process has since been taken further in O’REILLY v MACKMAN [1983] 2 ACER 237, 279 (per Lord Diplock) by deleting any requirement that the body should have a duty to act judicially; in Council of Civil Service [1985] AC 374 by extending it to a person exercising purely prerogative power…’

 

In England, these remedies are now an essential part of administrative law which is primarily concerned with the control of abuse or misuse of public power either at the local level or the central level. It is the law governing relations between individuals and state agencies and its evolution was due in a great measure, to the complexity of modern government.

 

In England, certiorari and prohibition have therefore become general remedies for the control of administrative decisions affecting the rights of subjects, remedies which may be granted in respect of the exercise of discretionary power, which may either be an act rather than a legal decision or determination. A lot of matters have been dealt with this way, such as the grant or refusal of a license, the making of a rating list, the issue of a passport, the refusal of entry by an immigration office etc” [Emphasis Mine].

 

 

 

[73] Author of scholarly texts such as Professor de Smith in his article[5] has supported the evolution of judicial review and explained how Certiorari as a prerogative writ, alongside others, now more or less defunct, were originally associated exclusively with the King but were later issued selectively, to the King’s subjects. The writ of Certiorari, “essentially a royal demand for information,” was developed by the Court of King’s Bench, mainly on the basis of its recognition as an invaluable device for regulating the activities of justices of the peace, whose statutory powers were greatly extended in the years following the Restoration. What it means is that certiorari was essentially a  royal demand for information regarding allegations of extortion made against the King’s appointees by the subjects, based on which he appointed individuals such as Commissioners to look into it.

 

 

 

[74] Distinguished authors Sir Michael Supperstone, James Goudie QC and Sir Paul Walker in their authoritative book[6] have boldly observed that Certiorari has evolved and acquired a particularly important role because it enables the High Court to exercise supervision over lower Courts and other adjudicating bodies and in doing so the High Court does not make a distinction between judicial and administrative functions.

 

 

 

[75] It can therefore be argued that what began from a royal command for information has evolved as a writ and a means through statute for a superior court to supervise lower courts, administrative tribunals and public officials alleged to have exceeded their jurisdiction and/or abused the rights of citizens without giving them a hearing. In effect, the state has given the High Court as a Superior Court, a jurisdictional review powers or surveillance of statutory tribunals to prevent the abuse of the rights of the citizens of the state.

 

 

 

[76] It is deducible therefore from the above that an application for judicial review in the nature of Certiorari is different from a Writ of Summons which is a merits review and an appeal in terms of their purpose and function. The underpinning purpose in a judicial review application is that the Court is called upon to determine the appropriateness of a lower court or administrative tribunal’s decision. A Judicial review is not the re-hearing of the merits of a particular case. In hearing an application for judicial review, the Court examines the decision to determine whether or not the decision-maker used the correct legal reasoning or followed the correct legal procedure.

 

 

 

[77] It is also instructive to note therefore, that in a judicial review, the Court’s powers are limited to quashing and re-mitting only and nothing more. It cannot make consequential orders. In the Australian case of ATTORNEY-GENERAL [NSW] v. QUIN [1990]170 CLR 1 @ 35-36, Brennan J stated the law with regards to the scope and nature of judicial review as follows:

 

“The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government…The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository power. If in so doing, the Court avoids administrative injustice, so be it, but the Court has no jurisdiction simply to cure administrative injustice or error.

 

 

 

[78] The Supreme Court has further expounded the frontiers of the law of judicial review in our jurisprudence that Certiorari is a discretionary remedy and that it is not always the case that Certiorari shall be granted automatically. The Supreme Court speaking through Date-Baah JSC postulated as follows:-

 

“… Accordingly, in relation to the High Court’s supervisory jurisdiction also even an error patent on the face of the record cannot found the invocation of that jurisdiction of the court unless it is fundamental, substantial, material, grave or so serious as to go to the root of the matter. In sum, in addition to jurisdictional errors, only a fundamental non-jurisdictional error of law can be the basis for the exercise of the High Court’s supervisory jurisdiction.”[7]

 

 

 

[79] On the principle that Certiorari is a discretionary remedy, Atuguba JSC is credited with that statement of law which runs as follows:-

 

“It is well-known that Certiorari is a discretionary remedy and therefore it does not necessarily follow that when the technical grounds upon which Certiorari principles are established, it will be pro tanto granted.”[8]

 

 

 

[80] Further, the apex Court in the case of REPUBLIC v. HIGH COURT, SEKONDI, EX PARTE AMPONG aka AKRUFA KRUKOKO I (KYEREFO III AND OTHERS) – INTERESTED PARTIES) [2011] 2 SCGLR 716 @ 722 stated the law with regards to the scope and ambit of certiorari application as follows:

 

“An order of certiorari, it is trite learning, is discretionary remedy granted on grounds of excess of jurisdiction and/or some breach of a rule of natural justice.”

 

 

 

[81] Also, in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE CHARGE D’AFFAIRS, BULGARIAN EMBASSY (Suit No. J5/34/2015 dated February 24, 2016, the Supreme Court again delivered itself with regards to the scope and ambit of certiorari and postulated that:

 

“It is well-settled that certiorari will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the record that makes the decision a nullity, Certiorari will also be granted to quash a decision given in breach of a rule of natural justice.”

 

 

 

[82] I have gone to this length to state the historical background of the prerogative writ of Certiorari mainly because of the legal objections raised by the Attorney General including whether or not the decision maker, the Minister for Lands and Natural Resources is a proper party to this application and also to show that this Court’s jurisdiction is limited, in the context of the application which has invoked its jurisdiction. I note that the instant matter before the Court is an application for judicial review in the nature of Certiorari to examine the decision of September 4, 2017 using the framework above and not a merit-based review in the nature of Writ of Summons.

 

 

 

ix. Respondent’s Preliminary Objection:

 

[83] Firstly, learned Counsel for the Respondent anchored the objection in Article 88(5) of the 1992 Constitution which provides at clauses (1) and (5) as follows:

 

There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government.

 

(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.

 

Based on the above the Attorney-General has submitted that there is no proper Respondent before the Court because the Attorney-General ought to have been named and not the Minister for Lands and Natural Resources whose decision is the focus of this application.

 

 

 

[84] In the opinion of the Court, the objection is misconceived because the instant application is neither a civil proceeding “on behalf of the state” nor “a civil proceeding instituted against the state.” It is important to note that unlike other Common Law Jurisdictions like Canada where the Provinces have enacted Judicial Review Procedure Acts[9], the only rule of procedure for Judicial Review in Ghana is as provided for in Order 55 of C.I. 47 earlier stated in this ruling. The rule requires that the persons directly affected ought to be named in addition to the reliefs sought. To my mind therefore, naming the Minister who made the decision is the way to go and not the Attorney-General.

 

 

 

[85] In the further opinion of the Court the issue raises a fundamental question which this Court previously answered[10] that a judicial review is not a suit against the Attorney-General but the Attorney-General defends same when the Respondent is a public official. I note that this Court’s earlier reasoning which is repeated herein was based on the Supreme Court decision in REPUBLIC v. KORLE GONNO DISTRICT MAGISTRATE GRADE I; EX PARTE AMPOMAH [1993-94] 2 GLR @  270 where Hayfron Benjamin JSC (as he then was) opined that the Attorney-General come in to defend such an application because the Respondent is a public officer but it is not a suit against the Attorney-General who ordinarily should be prosecuting it.

 

 

 

[86] Further, in my view it is important to understand the basic historical antecedents/principles underpinning judicial review and in particular the prerogative writ of Certiorari and the rules of procedure prescribed by statute. The burning question is: in a judicial review is there a true lis/dispute between the Applicant and the Attorney-General? The answer is no but rather an issue of jurisdiction of a lower court or administrative tribunal and/or the reasonableness of a decision made by a public official or failure to observe rules of natural justice. It seems incongruous to name the Attorney-General as a party, because to my mind and with all deference to Counsel that proposition hinges on a fundamental misunderstanding of the origin and nature of the proceeding of judicial review. To accede to the Honourable Deputy Attorney-General’s submission would mean that the Attorney-General is to be against a citizen and/or an entity which complains that a state public official or an adjudicating body of the state has infringed on its right and thus put the Attorney General representing the state on both sides of the dispute. That would clearly be absurd and defy logic in my respectful opinion.

 

 

 

[87] Finally, I need to state that I am persuaded by statement of the law to agree with Counsel for the Applicant that cases such as the DELTA FOODS case Supra and the others relied upon by the Respondent are clearly distinguishable from the instant case because in all of those cases the Court’s jurisdiction was invoked by way of a writ of summons and not a judicial review. Consequently, the first objection on who should be the party is overruled.

 

 

 

[88] I also do not accept the Honourable Deputy Attorney-General’s legal objection premised on the grounds that the Applicant ought to have resorted to the Section 27 provisions of Act 703. At first blush, the argument is very attractive but again in my respectful view it is misconceived. This is because the submission is a contradiction in terms. In one breath Counsel has argued forcefully that the Applicant has no mineral right because of non-compliance with statute and lack of parliamentary ratification but in another breath Counsel submits that Section 27 of Act 703 is applicable. Now what does Section 27(1) of Act 703 say? It provides:

 

“Where a dispute arises between a holder of a mineral right and the Republic in respect of a matter expressly stated under this Act as a matter which shall be referred for resolution all efforts shall be made through mutual discussion and if agreed the parties, by reference to alternative dispute resolution procedures to reach an amicable settlement.” [Emphasis mine]

 

 

 

[89] Clearly, the operative word is “a holder of a mineral right.” If the Applicant as argued by Counsel for the Respondent is not a holder of such mineral right then what it means is that it cannot avail itself of the ADR provision under the law. Also, I think it is curious and in fact surprising that the Respondent after authoring Exhibit “E1” now calls upon the Applicant to resort to ADR for settlement of “a dispute.” Further, can the alternative dispute resolution mechanism be used to “quash” the Minister’s decision which the Applicant contends is unreasonable and illegal? In my respectful opinion the answer is no because the Courts are the forum conveniens for matters involving serious questions of law.

 

 

 

[90] I am fortified in this reasoning having regard to that statement of law espoused by the Supreme Court in THE REPUBLIC v HIGH COURT TEMA; EX-PARTE OWNERS OF SMV ESS SPIRIT (DARYA SHIPPING SA INTERESTED PARTY) (2003-2004) SCGLR 689 holding 2 that recourse to arbitration is not automatic even where there is an arbitration clause. The apex court after analyzing the law and Section 8 of the Arbitration Act 1961 (Act 38) stated that:

 

“…Generally, the court would not grant a stay of proceedings if the matter in dispute involved difficult questions of law; or if the matter was more convenient and suitable for determination by the court rather than an arbitrator who might have to stay a case for the decision of the court….” (Emphasis Mine)

 

Based on the law and the facts of this application, the second procedural objection by the Respondent is also overruled.

 

 

 

x. Applicant’s Counsel’s Objections:

 

[91] I now proceed to consider the objection and submission of the Applicant’s Counsel with regards to the admissibility of the supplementary affidavit in opposition filed on November 23, 2017 and the statement of case of the Respondent. I understand the objection to be founded on Order 20 Rule 9 of the High Court Civil Procedure Rules, (2004), C.I. 47 which provides:

 

9. The Court may order any matter which is scandalous, offensive, irrelevant or otherwise oppressive to be struck out of an affidavit.

 

[92] The objection is that the depositions are political and not based on law and also that the supplementary affidavit was filed without the leave of the Court and in the case of the statement of case, it was not filed at all because there is no official Court registry stamp and therefore the Court should not admit and rely on same. The Respondent has urged on the Court to overrule the objection in respect of the statement of case that it was an administrative error from the registry which the Respondent should not be punished for. On the affidavit, learned Counsel submitted that the Applicant has not demonstrated in law and procedure as to why it should not be accepted.

 

 

 

[93] In dealing with the filing or lack thereof of the ‘statement of case’ much as I do agree with the Applicant that the provision at Order 55 Rule 6(5) uses the word “shall” and therefore it is imperative and not optional, I accept as a fact that filing of process is an administrative duty and not that of the Respondent and it should not be ‘punished’ for the administrative lapse of Court staff. Also, I do not think that the lack of the Court stamp renders the statement of case filed void and incurably bad. In my opinion, it can only be said to be an irregularity that may be cured by Order 81 1. (1) of C.I. 47. Besides, the irregularity does not impede or affect the Applicant and the Court’s hearing of the application in any conceivable way, in the Court’s view. But even if in this case, Order 81 cannot be invoked, the law is that once the breach sins not against the 1992 Constitution or a statute the breach does not go to the root of the case or the jurisdiction of the court. In coming to this conclusion, I have immensely benefitted from the dictum of Date-Bah JSC as stated in R v HIGH COURT, ACCRA; EX PARTE ALLGATE (2007-08) SCGLR 1041 as follows:

 

 

 

“… Non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non- compliance is also a breach of the Constitution or of a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction.”

 

 

 

[94] Also, it cannot be over-emphasized that contemporary notions of justice require that a court should do substantial justice between parties unhampered by technical procedural rules. See: IN RE: ASERE STOOL (2005-06) SCGLR 637. It is therefore my ruling that the statement of case filed by the Respondent which has no Court stamp on it is admissible.

 

 

 

[95] The above position does not end the matter, however. I must say there is substance with regards to the Order 20 Rule 9 argument and the Court made it clear at the oral hearing that indeed some of the depositions are more of emotive innuendo than fact. I shall therefore not revisit the issue except to say that in the case of THE REPUBLIC v. HIGH COURT JUDGE, KUMASI: EX PARTE HANSEN KWADWO KODUAH; PARAGON INVESTMENT LIMITED – INTERESTED PARTY the Supreme Court established that lawyers owe it as a duty to assist the Court in maintaining that litigation is conducted in a civil manner devoid of indecent attacks on opponents or parties to the litigation and to project the profession as the most honourable one[11]. Ironically, such innuendo could fuel the Applicant’s suspicions that the cancellation of its leases was an act of vindictiveness.

 

I now proceed to consider the merits or otherwise of the main application.

 

 

 

[96] A useful starting point is to state in clear terms that this Court as a review Court is called upon to examine the reasoning and the procedure adopted by the Respondent in the decision which is the centerpiece of the instant application. In other words, the Court is called upon to take a decision as to whether the Respondent adopted flawed reasoning or procedure in arriving at the decision of September 4, 2017. It is to be noted that it is solely this decision that is before this Court for the purpose of judicial review and not the procedure leading to the lease signed on December 29, 2017. My role as a reviewing judge on an application for certiorari is thus substantially different from that of a judge on appeal or a judge tasked with determining a case based on a writ of summons. In this case it is only if the Respondent whose decision is being reviewed has acted in excess of his jurisdiction or has breached the principles of natural justice, that certiorari will be granted.

 

 

 

[97] Having looked at the scope of judicial review, I now proceed to consider the crucial issue as to whether the instant application should be granted. To assist me answer it, I shall have regard to the following two questions posed here below:

 

i) whether the Respondent exceeded his jurisdiction when he signed the letter invalidating the mining lease signed on December 29, 2016 on the grounds contained therein; and

 

ii) whether the Applicant’s right to be heard was breached.

 

 

 

[98] The fundamental issue dovetails with other sub-issues such as the thorny issue as to whether or not there were non-compliance with statute and whether or not the Applicant has a “Mining Right.” A cursory look at the materials filed and in particular the affidavit in opposition and the Exhibits 1 to 5 show, prima facie, that the application and the circumstances leading to the signing of the lease did not comply with the statute even though the Applicant vehemently denies same and has submitted that it should be presumed to have complied with the statute.

 

 

 

[99] By Sections 12 of the Minerals and Mining Act, 2006 the Minerals Commission is required by law to submit its recommendation on an application for mineral right to the Minister within ninety days after receiving an application The provision of the law runs as follows:

 

“12. The Commission shall, unless delay occurs because of a request for further information from an applicant or a delay is caused by the applicant, submit its recommendation on an application for a mineral right to the Minister within ninety days of receipt of the application.

 

 

 

[100] Significantly, the Minister is required by law to within sixty days upon receipt of the recommendation make a decision and notify the applicant in writing. This proposition of law is reinforced by Section 13 of Act 703 which provides:

 

“Grant of Mineral rights

 

13. (1) The Minister shall within sixty days on receipt of recommendation from the Commission make a decision and notify the applicant in writing of the decision on the application and where the application

 

is approved, the notice shall include details of the area, the period and the mineral subject to the mineral right.

 

(2) The Minister shall, not less than forty- five days prior to making a decision under subsection (1), give a notice in writing of a pending application for the grant of a mineral right in respect of the land to a chief or allodial owner and the relevant District Assembly.

 

(3) A notice given under subsection (2) shall

 

(a) state the proposed boundaries of the land in relation to which the mineral right is applied for, and

 

(b) be published in

 

(i) a manner customarily acceptable to the areas concerned, and (ii) the Gazette and exhibited at the offices of the District Assembly within whose district, a part of the area is situated.

 

(4) The applicant shall within sixty days of receipt of notification of approval, notify the Minister in writing of acceptance of the offer of the grant”.

 

 

 

[101] The combined effect of these statutory provisions is that where a party applies for a mineral right, the Commission is required to submit a recommendation to the Minister and he makes the decision to either approve or reject same. But is that what happened based on the materials filed in this case? Exhibit 1 shows that the application was made on or about October 26, 2016. Exhibit 2 shows that on November 10, 2016 the Minerals Commission informed the Applicant that it would recommend to the Minister to grant the lease but advised the Applicant to pay the required fees and says the offer is open for 60 days from the date of the letter. The Applicant went ahead to make the payments on December 12, 2016. Consequently, by Exhibit 4, the Commission by a letter dated December 28, 2016 recommended to the Minister to grant the Applicant a 22-year Mining Lease and accordingly attached three mining leases for the Minister’s signature. The Minister signed the leases the next day. Clearly, based on the law as stated above and a thorough review of the materials filed, I have no hesitation in concluding that the Minerals Commission had no authority to offer the Applicant the lease. It is the prerogative of the Minister. It is also clear that the statutory timelines were not complied with.

 

 

 

[102] Now, before turning to the main question of this application, it is convenient, in so far as it is relevant to also address the issue of Parliamentary ratification of the lease signed. I do not understand learned counsel for the Applicant to argue that the lease is ratified by parliament. The Applicant concedes that there is no Parliamentary ratification but argues that it cannot be the basis for the invalidation of the lease because the Respondent is the one who is to place same before parliament for ratification and not the Applicant. In the light of Clause 1(f) of the signed lease and Article 268 of the Constitution, I agree with the submission in principle but it raises the question as to whether or not in the absence of that, the Applicant has a mineral right to empower it to start mining or just has a signed lease awaiting Parliamentary ratification. To my mind, without a Parliamentary ratification the Applicant cannot be said to have a mineral right based on the wording of the lease and the Constitutional provision and case law.

 

 

 

[103] In the instant case, Article 1 (f) of the lease states:

 

“This Mining Lease is subject to ratification by Parliament in accordance with Article 268(1) of the Constitution and Section 5(4) of Act 703. Upon the execution of this Mining Lease, the Company shall submit a certified true copy of the Mining Lease to the Minister to be laid in Parliament for ratification”.

 

Article 268 (1) of the Constitution also provides that:

 

“(1) 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 other 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”. [Emphasis Mine]

 

 

 

[104] Taking cognizance of the fact that the Constitutional provision uses the word “shall” it is trite learning that it is imperative and not optional. It is beyond dispute or argument that the phrase “subject to ratification” has been the subject of judicial consideration by the Supreme Court. The apex court has interpreted a similar provision in the Constitution in regards to failure to comply with a Constitutional provision for a Parliamentary ratification and concluded that such failure is fatal and creates no right therefore same can be adopted mutatis mutandis[12]. From the forgoing analysis and based on the law, I hold the respectful opinion that the Applicant does not have a mining right as required by law.

 

 

 

[105] Finally, having considered all of the arguments proffered by both Counsel, I wish to also comment on the argument submitted by the Deputy Attorney-General in regards to the Presidential (Transition) Act, 2012 Act 846. Even though it is a sound moral argument, it is, in my opinion, not a particularly compelling legal argument because the provisions of the Transitional Act are for administrative purposes but the tenure of government is constitutional. I cannot find in any of the provisions of the Constitution and/or the Transition Act 2012, Act 846 itself any recognition by Parliament, express or implied, of an overriding prohibition or bar that after writing handing over notes, a Minister of State cannot carry out his or her ministerial functions or duties. Consequently, it is my opinion that in so far as there was no legal impediment barring the Minister from acting, signing the leases dated December 29, 2016 was legal, the date of the signature notwithstanding.

 

 

 

[106] I cannot think that it was the intention of Parliament to enact a law to change the tenure of government because any such enactment would, in my opinion, be ultra vires of the legislature. The power of the legislature to enact such a law, if it exists, must be in accordance with the Constitution as the supreme law of the land.

 

 

 

xi. The Main Issue:

 

[107] Now, despite the opinion expressed above on the lease and the lack of Parliamentary ratification it is important to reiterate that in so far as the instant application is concerned it is the legality or otherwise of the Minister’s letter being Exhibit “E1” which is at stake and not as indicated above the collateral question which is the process that led to the signing of the mining leases. I am not called upon to pronounce judgment on how the lease was acquired in this application. The jurisdiction of this Court in this matter is controlled by the nature by which it was invoked, which is by a judicial review and not a writ of summons or appeal. Under the latter two options, the circumstances of the acquisition would be properly investigated in a merits-based review where all the actors including the former Minister of Lands and Natural Resources and officials of the Minerals Commission could be heard. This is because even if my view is that the right thing was not done I cannot impose my view without hearing from those who participated in the process.

 

 

 

[108] It is worth noting that I have thoroughly reviewed Exhibit “E1”, but I am unable to ascertain the law the Minister based his decision on and/or the source of his power. I appreciate the fact that the letter cited many aspects of Act 703 and it is stated that “a scrutiny of the process leading up to the grant of the Mining Leases in favour of the company discloses non-compliance of the statutory requirements for the grant of any valid Mining Lease.” The question though is upon which law did the Minister exercise the power of invalidation and/or cancellation? Learned Counsel for the Respondent relies on Section 11 of the Civil Service Law 1993 (PNDCL 327) and submits that the Minister is mandated to ensure the sustainable management and utilization of the nation’s resources. With the greatest respect to Counsel it is a self-serving submission because I see no linkage between the law quoted and the decision made. Simply put, the letter does not indicate the law on which the Minister exercised the authority. Is the conduct of the Minister arbitrary, capricious, an abuse of discretion, or unlawful?

 

 

 

[109] Articles 23 and 296 of the Constitution are the focal law for the analysis. In Article 296 of the Constitution, 1992, it is provided as follows:

 

“when in this Constitution or in any other law discretionary power is vested in any person or authority

 

(a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased whether by resentment, prejudice or personal dislike and shall be in accordance with due process of law…”

 

Article 23 of the Constitution also provides:

 

“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or a tribunal”

 

 

 

[110] It is clear from the constitutional provisions that to the extent that the Minister for Land and Natural Resources remain a public officer or servant, the exercise of his discretionary powers are at all times governed by Article 296 of the 1992 Constitution. Due process which means the rule of law including procedural fairness must be adhered to in the exercise of public discretion particularly where it affects the rights and freedoms of citizens and entities engaged in legitimate business in Ghana. The exercise of the discretionary powers should not be arbitrary, capricious or biased in so far as the authority is derived from constitutional powers. Decisions or acts of public officials are not immune to the judicial review if they infringe on rights of citizens and/or if they are not done in accordance with law or due process of law or if they are ultra vires the authority given. The actions of state officials are not exempt from judicial scrutiny when they fall outside the law. This scrutiny ensures that the state is not overbearing vis-à-vis the individual.

 

 

 

[111] It is also important to note that even though I have found that based on the materials filed and presented in this application there is a clear case of non-compliance with statute; in the opinion of the Court the Respondent Minister herein is not clothed with the jurisdiction to determine the legality or otherwise of the lease. It is the preserve of a court of competent jurisdiction which ought to make that determination. I hold the respectful opinion that the structures of the state as set out in the Constitution ought to be respected at all times and therefore, judicial functions or legal adjudication should be the preserve of judges or, persons who are marked by legal training and they should be allowed to do what they are mandated to do through institutional design or the rule of law. It is a fundamental rule from which I would not, for my part, sanction any departure. As it is, the Minister arrogated to himself the role of an adjudicator even if as it seems he legitimately believed that he was protecting and/or preserving the state’s resources.

 

 

 

[112] It is relevant to revert to the well-established principle expressed in the old English case of THE KING v. ELECTRICITY COMMISSIONERS; EX PARTE LONDON ELECTRICITY JOINT COMMITTEE COMPANY (1920) LIMITED & OTHERS, [1924] 1 K.B. 171 at p. 205, that;

 

“Wherever anybody of persons having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”

 

 

 

[113] In the light of the above discourse, it is my finding that the Respondent exceeded his jurisdiction when he authored Exhibit “E1” and his decision is therefore unreasonable. To my mind, reasonableness is a deferential standard and is concerned mostly with whether a decision made is justifiable, transparent and intelligible and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law[13]. He could not by the stroke of a pen declare as invalid the lease without due process. Therefore, his decision was inherently flawed. Consequently, I overrule the submissions of learned Counsel for the Respondents that the 1st Respondent did not exceed his jurisdiction when he invalidated the three leases.

 

 

 

xii. Breach of the Rules of Natural Justice:

 

[114] On the issue of the breach of the rules of natural justice, I note that learned Counsel for the Respondent submitted that the Applicant was given a hearing and therefore its right was not breached. Counsel referred to Exhibit 6 dated August 23, 2017 authored by the Chief Executive Officer of the Minerals Commission and the subsequent response by the Applicant’s Solicitors marked as Exhibit “K”. I have looked at the referred exhibits and I am of the respectful opinion that the submission is not properly situated in the context of the issue. Exhibit 6 referred to Clause 8(a) of the Lease Signed and the need to obtain operating permits from the Minerals Commission, EPA and the Forestry Commission before undertaking any activity or operations on the land. It had nothing to do with the defects of the lease signed and the response through Exhibit “K” was that those permits had already been obtained.

 

 

 

[115] I am not convinced that the Applicant was given a hearing before the Minister made the impugned decision. Therefore, I have no difficulty in holding that the Respondent fell into error in not giving hearing to the Applicant. Again, I would add that even if the statute was not complied with, the Applicant by signing the lease acquired a vested right and therefore it ought to have been heard. The lack of hearing is a breach of the audi alteram partem rule of rule of natural justice.

 

 

 

[116] The error committed was a procedural impropriety and that is a fertile ground for the orders to be called into question and quashed by judicial review. The Supreme Court in TEMA DEVELOPMENT CORPORATION & MUSA v ATTA BAFFOUR SUPRA established the rule that one of the grounds upon which an administrative action would be subject to judicial review is procedural impropriety. Their Lordships held further:

 

“By procedural impropriety was meant not only failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who would be affected by the decision but also failure by an administrative tribunal to observe procedural rules expressly laid down in legislation by which its jurisdiction was conferred, even where such failure did not involve any denial of natural justice.”

 

 

 

[117] Further, in REPUBLIC v. HIGH COURT, ACCRA EX PARTE SALLOUM (SENYO COKER, INTERESTED PARTY [2011] 1 SCGLR 574, Anin Yeboah JSC stated at page 585 as follows:

 

“Equally so, if a party is denied his right to be heard, as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The Courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.”

 

 

 

[118] Further, in AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL SUPRA Kpegah JSC stated the law with regards to acting fairly and reasonably pursuant to Article 23 of the 1992 Constitution and giving notice and hearing in Holding 2 of the report as follows:

 

“The phrase ‘to act fairly and reasonably’ in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article 23…In this country, the right to be heard is a fundamental principle enshrined in our Constitution and cannot be ignored for reasons of administrative inconvenience.”

 

 

 

xiii. Holding/Conclusion:

 

[119] Overall, I am satisfied that the Applicant has succeeded in making a case which calls into question the letter authored by the Minister for Lands and Natural Resources dated September 4, 2017 and for the letter to be brought into this court to be quashed and are hereby QUASHED accordingly.

 

 

 

[120] Based on the law and as held by the Supreme Court in many cases including the unreported case of THE REPUBLIC v. HIGH COURT (COMMERCIAL DIVISION) ACCRA, EX PARTE ELECTORAL COMMISSION; PAPA KWESI NDUOM – INTERESTED PARTY – Civil Motion Number JS/7/2017 dated 7TH November 2016 in a judicial review, the Court’s powers are limited to quashing and in appropriate cases remitting only and nothing more. The Court cannot make consequential orders. Accordingly, the other reliefs prayed for by the Applicant such as an injunction to restrain the Respondent from interfering with the Applicant’s rights acquired by virtue of the leases signed cannot be granted by the court. They are therefore dismissed.