Deputy Attorney has taken to the media to express his unhappiness
with Exton Cubic’s elation at yesterday’s ruling on the invalidation of their mining
leases by the Minister for lands and Natural Resources.
The Court presided over by Justice Kweku Ackaah Boafo
yesterday ruled “I am satisfied that the Applicant has succeeded in making a
case which calls into question a letter 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 it is hereby QUASHED accordingly.”
The Minister in the said letter invalidated the mining leases
granted indigenous mining company Exton Cubic over the bauxite concessions in Kyekyewere,
Mpasaso and Kyiraso because the company failed to fulfill the mandatory
requirements for the acquisition of these leases.
Justice Ackaah-Boafo in his ruling on application for
judicial review filed by the company decided “the Minister could not by the stroke
of a pen declare as invalid the leases without due process. Therefore his
decision was inherently flawed. Consequently, I overrule the submissions of
learned Counsel for the Respondents that the Respondent did not exceed his
jurisdiction when he invalidated the leases.”
The High Court Judge further reasoned “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 natural justice.”
Lawyers for Exton Cubic have described this ruling as welcome
news but deputy AG Godfred Yeboah Dame says the company has nothing to celebrate.
He referred to the opinion of the court on the processes
leading to the acquisition of the mining lease.
On the question of whether or not the leases should have
received parliamentary ratification, Justice Ackaah-Boafo stated “Taking
cognizance of the fact that the Constitutional provision uses the word shall “shall”
it is trite learning that it is imperative and not optional. It is beyond dispute
or argument that the phrase to “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 can be adopted mutatis
mutandis. From the foregoing analysis and based on the law, I hold the
respectful opinion that the Applicant
does not have a mining right as required by law as of now.”
The deputy Attorney General believes the above opinion of the
judge imposes a duty on the company to appeal the ruling.
Lawyers for Exton Cubic have always held the opinion that the
mandate to seek parliamentary ratification was the duty of the Lands Minister
and that of their client hence their client cannot be held responsible by the
Minister for his own failure.
Godfred Yeboah Dame however believes that the statement above
imposes a burden of proof on Exton Cubic and not on the State which granted the
leases.
It is however important to note that, Justice Ackaah-Boafo’s
definite statement on the deputy AG’s claim.
The High Court Judge in the ruling stated “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 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 the 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 circumstance of 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 I cannot impose my view without hearing from those who
participated in the process in the instant application.”
Reading the Judge’s own words it is right to conclude that
the Judge was not delivering a ruling on the propriety of the leases but conveying
an opinion based on the limited facts available to him at the time.
Godfred Yeboah Dame has described the celebration of the
decision by Exton Cubic and its lawyers as false propaganda and deliberate
misrepresentation but the ruling of the court agrees with the company’s
elation.
This is evident in the fact that in the said interview the
deputy AG admits that the ruling was unfavourable.
“My only qualm is
the whole thing that the Minister cannot on his own write a letter terminating
the lease and that he must come to court before terminating the lease,”
It is also
instructive to note that he in fact agrees with Judge even though he still
holds the opinion that the minister should have the right to revoke the license
if he has the right to grant it.
“The Court
rightly pointed out based on the application put before it that the Minister in
proceeding to invalidate the mining leases granted to Exton Cubic group without
giving them a hearing,”
Despite this tacit admission of defeat, Godfred Yeboah Dame
is still convinced that the State has no adverse ruling to appeal against choosing
to rather find comfort in an opinion which the Judge himself admits can only be
confirmed by trial.
Well, until he snaps out of this dream, Exton Cubic and its
lawyers have every right to jubilate whiles they consider how to use the ruling
to their favour.
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