IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
MICHAEL OWUSU PREMPEH - (Plaintiff)
MR. THANK & ANOR. - (Defendant)
DATE: 19TH APRIL, 2016
SUIT NO: OCC/10/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
AKUA ADOMAH ADDAE FOR WILLIAM KUSI FOR PLAINTIFF
NANA KWASI BOATEY FOR DEFENDANTS.
The Plaintiff who describes himself as a businessman resident in Kumasi commenced the instant action against the Defendants who are also described as Chinese Nationals engaged in mining on 15/08/14. On 28/08/14, he amended his writ of summons and statement of claim. He sought to recover an amount of one hundred and Sixty-Five Thousand Ghana Cedis ( GH¢165,000.00); 15% share of gold mined for the period and a further order for the defendants to pay for the cost of reclamation of the land acquired.
The Plaintiff's case is that sometime in June, 2013, he entered into an agreement with the Defendant to mine gold in the Manso Nkwanta area. He asserted that he was to facilitate the acquisition of land for mining as well as pay for all expenses on the land inclusive of compensation to farmers. In return, he alleged that he was to be paid 15% of the gold mined. He gave details of the expenses totaling GH¢165,000.00 in paragraph six (6) of his amended statement of claim. He also averred that the Defendants have failed to reclaim the land which they caused him to acquire on their behalf and have used the proceeds to acquire excavator machines.
The Defendants by paragraph 2 of their statement of defence filed on 13/10/14 admitted that they are Chinese Nationals engaged in mining. That apart, they denied the Plaintiff's claim and contended that the concession they worked on at Tontokrom was given to them by one Kofi Brentuo. As such, they have no agreement with the Plaintiff who is an errand boy of one Nana Kwadwo Tonto. The Defendants further asserted that they acquired the excavator in issue long before they got to know the Plaintiff and that the Plaintiff is not entitled to any of his claims.
Two issues were set down for trial by the pre-trial judge, namely:
1. Whether or not there was a valid contract between the parties?
2. Whether or not the Plaintiff is entitled to his claim?
In his rather terse evidence-in-chief given on 26/02/2016, the Plaintiff testified inter alia as follows:
... I know the defendants. I dealt with them in a small scale mining business in 2013. The arrangements were oral but there are witnesses to it. We agreed that I go and look for the land and they will bear all the expenses involved. When I got the land, they asked me to bear the expenses and they will reimburse me later. About the compensation to be paid to them, I measured the land and it was nine acres. The land is at Manso Tontokrom. After measuring the nine acres, we agreed to pay GH¢90,000.00 for the nine acres. After I had acquired the land, I spent GH¢15,000.00 on preparing the land. Defendants also caused me to perform some rituals on the land and it also cost me GH¢10,000.00. There was an adjoining land near the Offin near Tontokrom. The Defendants asked that I acquire that land from the farmers. The total expenses was GH¢165,000.00. The Defendants failed to reimburse me. They have finished with the mining but have not reclaimed the land. I pray the court to compel the Defendants to reimburse me with the GH¢165,000.00 and to go and cover the pits."
Counsel for the Defendants subjected the Plaintiff to a very rigorous cross-examination wherein the Plaintiff admitted that he did not acquire any documentation from the minerals commission but that somebody acquired the concession and sold it to him. The Plaintiff further said the person who sold the concession to him showed him his small scale mining licence but he did not obtain copies of the same. When asked how much he paid for the concession, the Plaintiff said he paid GH¢40,000.00 but the money was paid by Wie to be given to the concession owner. The Plaintiff was further challenged on the basis that the Defendants are not engaged in any form of mining. This was what transpired:
Q. I am suggesting to you that the Defendants have never been engaged in any Small Scale Mining in this country?
A. They are dealing in small Scale Mining and I have witnesses who are in Tontokrom now.
Q. You are fully aware that the Defendants being Chinese were not entitled to lawfully undertake Small Scale Mining in Ghana?
A. That is correct. If I have my concession and because of their machines I take them and there is a licence on the land.
Q. When you allegedly engaged the Defendants to undertake Small Scale Mining, you knew you were engaging them to undertake an illegal venture?
A. I know, If you have document covering the concession, the law allows you to bring miners to work on the land so that you can get money for your upkeep.
Q. Are you telling the court you employed the Defendants to operate machines on your licensed mining concession?
A. No. They came on their own to work and I also gave it to them.
Q. So that even if we agree that it is lawful for them to operate machines in a lawful concession as you professed, that is not the nature of this case?
The Plaintiff's first witness was one Robert Kwakye Nketia who described himself as an Industrialist and a cousin to the Plaintiff. He gave evidence to the effect that in the year 2013, the Plaintiff borrowed an amount of GH¢ 120,000.00 from him to pay for a piece of land on behalf of some Chinese. He said the Plaintiff was to repay the loan by giving him gold and when the gold was not forthcoming, he approached the Plaintiff who also invited the 1st Defendant for the issue to be resolved. In his presence, PW1 said the 1st Defendant agreed to refund the GH¢165,000.00 to the Plaintiff.
Again, in cross-examination, Counsel for the Defendants asked the witness whether the laws of Ghana permit Small Scale Mining by foreigners. PW1'a answer was that generally, foreigners are not permitted to do small scale mining. However, the law allows it when it is properly organized and operational within the laws of Ghana. He also conceded that when he gave the money to the Plaintiff, he did not find out whether the Plaintiff and his partners were going to operate within the laws.
After PW1 had been discharged by the court, several adjournments were granted at the instance of the Plaintiff to enable his next witness to come to court. The said witness however failed to come to court and on 29/02/2016, Counsel for the Defendants prayed the court to order a closure of the Plaintiff's case. When that prayer was granted, counsel intimated to the court that the Defendants will not testify in this case and that their defence will be legal. Thus, the court set a date for the filling of closing addresses by counsel. They were to file their addresses by 21/03/2016. As of the time of writing this judgment, Counsel for the Plaintiff had not filed his address and so I proceeded without having the benefit of his written address.
ISSUE OF THE VALIDITY OF THE CONTRACT BETWEEN THE PARTIES.
As in all civil suits, a Plaintiff who alleges the existence of a contract in issue is enjoined by the provisions in sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323 to adduce credible evidence from which the contract can be inferred.
In this case, the Plaintiff bears the onus of proof of the issue under consideration. In Ackah v Pergah Transport Ltd (2010) SCGLR 728 at 731, the Supreme Court explained the methods of producing evidence in this manner:
It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence".
In the instant case, the Defendants did not testify and did not also call any witness of fact. Generally, they are not bound to do so since the onus of proof does not rest on them. However, if the Plaintiff is able to establish some credible and concrete facts, the burden of persuasion will shift onto the Defendant to displace the same and for the court to evaluate the evidence on the balance of probabilities. Therefore, where a Defendant fails to testify or call any witness of fact, the court will have just the Plaintiff's evidence to consider. This is the situation in the instant case.
The outcome of such a failure to lead evidence on the part of a defendant came up in the case of Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003-2004) SCGLR 420 where the following observations as regards the burden of proof were made:
... A litigant who is a Defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose. Such loss may be brought about by default on the part of the Defendant ..."
In the case before me, the cross-examination conducted by counsel for the Defendants could not totally displace the oral evidence adduced by the Plaintiff and PW1 that the Defendants entered into an agreement with the Plaintiff to mine gold at Manso Tontokrom. Having weighed the evidence on record, I find that the Plaintiff's version of the rival stories that he entered into an oral agreement with the Defendants to mine gold at Manso Tontokrom on terms to be more probable than not and I accept the same.
What remains to be resolved is whether the said agreement is valid in law? This being a question of law, the written submissions of counsel will have to be considered. But, as I earlier noted, Counsel for the Plaintiff failed to file his closing address.
In the closing address filed by Counsel for the Defendants, he made reference to and relied on sections 83 and 99 of the Minerals and Mining Act , 2006 Act 703. He argued that these provisions clearly criminalize the engagement in small scale mining by unlicensed persons. Continuing, counsel submitted that since the Defendants are Chinese Nationals and are not qualified under section 83 of Act 703 to be licensed to undertake small-scale mining, it is illegal for any person to contract with them to engage in Small-Scale mining. In counsel's own words "the case of the Plaintiff is akin to an agreement with a person to commit armed robbery so as to share the proceeds and the robber fails to give the other party his share of the proceeds."
Counsel concluded his arguments by relying on two cases. The first case is Dahabieh v S.A.Tarqui & Brothers (2001-2002) 1GLR 171 where the court stated that " where the issue raised amounted to an illegality per se, none of the parties could invoke the aid of the court, and the court itself had to take cognizance of the illegality...". The second case is Schandorf v Zeini & Anor (1976) 2 GLR 418, CA where the court refused to enforce a contract which it found to be contrary to public policy.
It is provided under sections 83 and 99 of Act 703 as follows:
Sec. 83. Qualification of applicant for small scale mining licence
A licence for small scale mining operation shall not be granted to a person unless that person
(a) is a citizen of Ghana,
(b) has attained the age of eighteen years, and
(c) is registered by the office of the Commission in an area designated under section 90 (1).
Sec. 99. Offences and penalties under sections 81 to 99
(2) A person who,
(a) without a licence granted by the Minister undertakes a small scale mining operation contrary to section 1, or
(b) acts in contravention of a provision of this Act in respect of which an offence has not been specified, commits an offence and is liable on summary conviction to a minimum fine of one thousand penalty units or to imprisonment for a term not more than three years or to both.
The evidence before me shows that the Plaintiff who is a Ghanaian and who has not produced any credible evidence of being a small -scale mining licence holder, agreed with two Chinese Nationals to do small scale mining at Manso Tontokrom in the Amansie West District of the Ashanti Region. The evidence of the Plaintiff that he purchased the land in issue from a concessionaire who has a licence is not only unreliable but of no consequence. This is because a person cannot hide behind a mining licence given to another person to carry out small-scale mining in his own right. And in this case, the alleged mining licence of the non-disclosed concessionaire was not even brought to the notice of the court for the same to be commented on. The Defendants cannot be granted small-scale mining licences within the meaning of section 83 of Act 703. That notwithstanding, the Plaintiff who did not also possess a small-scale mining licence entered into an agreement with them to engage in small scale mining. The evidence on record does not support an arrangement whereby the foreigners provided equipment for the mining activities but rather, they paid money for the acquisition of land and they were to be responsible for paying compensation to the affected farmers. Indeed, the agreement between the parties was to circumvent the provisions of Act 703. In entering that agreement, both parties breached the provisions of Act 703 referred to, supra. Hence, their agreement and their subsequent activities are not only illegal and void, but also contrary to public policy.
The reliefs which the Plaintiff is claiming in this court are based on these illegal activities. The Plaintiff had to rely on the illegalities so as to prove his case, i.e. fronting for the two Chinese men and acquiring land from farmers at Manso Tontokrom; taking monies from these Chinese who are not permitted to engage in small-scale mining to purchase land for them to engage in small-scale mining; pre-financing other expenses related to the acquisition of land and performance of rituals to enable these foreigners carry on their illegal activities.
As rightly noted by Counsel for the Plaintiff in his closing address, this court will not aid parties to an illegal contract. In Ramia v Chiavelli ( 1967) GLR 737, the court categorically stated that:
the courts would decline to aid a plaintiff to an illegal contract even if the Defendant was equally in the wrong..."
Similarly, in Kwarteng v Donkor (1962) 1 GLR 20, Apaloo J (as he then was) in dismissing the
Plaintiff's suit as being illegal and contrary to public policy noted:
"... no party should be assisted by the court to recover anything given or promised to be foregone, whether it be a physical thing or an incorporeal right if it was in furtherance of an illegal transaction"
And to crown it all, the court in Dahabieh V S.A. Tarqui & Anor had this to say (Holding 5):
"The law was well settled that where the issue raised amounted to an illegality per se, none of the parties could invoke the aid of the court, and the court itself had to take cognizance of the illegality..."
Accordingly, the Plaintiff's action fails. His hands are so tainted and equity will not in any way assist him to recover anything. The parties are to bear their own legal expenses.