By William
Yaw Owusu
Saturday
June 16, 2018
Exton
Cubic Group Limited, the company with links to Ibrahim Mahama, brother of
former President John Mahama, has been prevented by the Kumasi Human Rights
Court 2 from claiming compensation from the government.
The
court, on Thursday, dismissed Exton Cubic’s application that was seeking to
claim compensation from the government for the confiscation of equipment it
hired from Engineers and Planners (E&P), a private company, which also
belongs to Ibrahim Mahama.
The
confiscation of the equipment was in respect of the attempt by the Exton Cubic
to mine bauxite in the forest of Nyinahini in the Atwima Mponua District of the
Ashanti Region.
Mineral Right
The
court held that since the company did not have a valid mineral right, any
attempt at commencing mining operations will amount to engaging in illegal
mining, also known as ‘galamsey’ and ought not be countenanced.
Exton
Cubic had sued the Attorney General, the Ashanti Regional Minister and the
Atwima Mponua District Chief Executive for abusing the company’s rights by
unlawfully detaining its mining equipment.
In Exton
Cubic’s reliefs, the company had asked the court to, among other things, order
the government to pay in excess of GH¢51,000 per day times the number of days
the defendants kept all the equipment in their custody.
The
equipment confiscated included heavy-duty machines and trucks used for mining,
among others.
Previous Decision
In
February, an Accra High Court (General Jurisdiction), presided over by Justice
Kweku Ackah Boafo, ruled that Exton Cubic did not have a mining right as
required by law after the company had sued the government for preventing it
from entering the Nyinahini Forest to mine bauxite.
The
court, however, ruled that the Minister of Land and Natural Resources, John
Peter Amewu, also erred in revoking the mining lease granted Ibrahim’s company
by his brother’s government when it was leaving power.
As a
result, the court refused two other reliefs sought by Exton Cubic, including
the application for an injunction restraining the Minister from interfering
with its (Exton Cubic Ltd.) rights acquired by virtue of the leases, as well as
an order of injunction restraining the Minister from granting the rights
acquired by the mining leases.
Mining Act
According
to the court, going through the processes leading to the signing of the mining
lease showed that the lease did not comply with the statute, the Minerals and
Mining Act, 2006 (Act 703).
The court
further said that the Minerals Commission advised Exton Cubic Limited to pay
for the lease on November 10, 2016 and the company did the payment on December
12, 2016, before the Minerals Commission on December 28 purportedly recommended
to the sector Minister to grant Exton Cubic the mining lease.
The
judge held that the process was not in accordance with the Minerals and Mining
Act, saying the Minerals Commission erred in its decision to recommend that
Exton Cubic should be given the lease.
“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 leases and request it to make payment before the
recommendation,” the court held.
Minister’s Prerogative
The
judge also said it was the prerogative of the Minister of Lands and Natural
Resources to offer the leases and not the Minerals Commission, but added that
that the statutory timelines were not complied with by Exton Cubic Ltd.
The
judge further held that pursuant to Article 268 of the 1992 Constitution and
Clause 1(f) of the signed lease, Exton Cubic cannot be said to have a mineral
right based on the wording of the lease and constitutional provision and case
law.
He said
the Supreme Court held that a failure to comply with a constitutional provision
for parliamentary ratification is fatal and creates no rights.
Minister’s Action
However,
Justice Boafo held that the Minister also exceeded his powers when he ‘clothed’
himself with jurisdiction to determine the legality or otherwise of the lease.
He said
the Minister arrogated himself the role of an adjudicator, as it seems he
legitimately believed he was protecting the state resources.
Bauxite Concession
Ibrahim
Mahama’s Exton Cubic Limited in November last year, filed an application for
Judicial Review at the High Court in Accra, challenging the decision of the
Lands and Natural Resources Ministry to revoke the mining lease granted the
company.
The
much-talked-about multi-billion cedi bauxite concession granted to Ibrahim
Mahama’s company at the tail end of his brother, John Dramani Mahama’s
presidency, was revoked in September after the sector Minister, John Peter
Amewu, contended that the lease granted Exton Cubic was invalid.
Controversial Lease
Exton
Cubic Group Limited was controversially granted a long lease concession by the
Mahama-led NDC administration on December 29, 2016 when the ruling party had
lost the December 7 general elections miserably and was on its way out of
office.
The
company moved heavy-duty machines into one of the concessions near Nyinahin
with the intent to start exploratory activities in the area but was barred from
doing so.
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