By William
Yaw Owusu
Monday June
18, 2018
Exton
Cubic Group Limited, which has links to Ibrahim Mahama, brother of former
President John Mahama, is planning to appeal against a ruling by a court to prevent
the company from claiming compensation from the government.
The High Court 2 (Human Rights Division)
in Kumasi on Thursday dismissed Exton Cubic’s
application that tried 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.
Appeal Mode
However,
a source told DAILY GUIDE that the camp of Ibrahim Mahama is dissatisfied
with Justice
Addai Krofah’s judgement and wants a superior court to review the verdict.
Exton Cubic Company Limited instituted the action
against the Attorney-General, the Ashanti Regional Minister and the District
Chief Executive (DCE) of Atwima Mponua District Assembly, claiming, among
others that “the seizure of the company’s equipment by the Ashanti Regional
Minister and the continued detention of same amounted to a violation of its
property rights under article 18(2) of the Constitution.”
Total
Amount
It
sought another order for the payment of GH¢61,000 for each day the equipment
remained seized by the State, being indemnity for the cost of hire of the
equipment, as well as damages for injury.
The
total amount claimed by Exton Cubic as cost of daily hire of the equipment up
to the end of February, 2018, when the equipment
were released by the regional minister, was in excess of GH¢12,000,000.00, in
addition to damages for injury suffered from the loss of use.
Plantiff’s Counsel
Represented by Osafo-Buabeng, Godwin Edudzi Tamakloe
and Twumasi Ankrah, Exton Cubic argued that the seizure of the mining equipment
by the State was unwarranted as the equipment were being conveyed onto the land,
the subject matter of three mining leases validly granted by the State.
Counsel told the court that Exton Cubic had
rightfully hired the equipment under a contract with Messrs Engineers and
Planners Limited, an Accra-based company.
As a result, counsel argued that the seizure of the
equipment under the circumstances amounted to an unjustified interference with
their human rights, particularly the company’s right to own property.
The defendants, represented by Deputy
Attorney-General, Godfred Yeboah Dame, argued that the application by Exton
Cubic was incompetent since Article 18(2) of the Constitution only protects a
person’s right to privacy in his communication, correspondence, home or
property, explaining that “the impounding of the equipment allegedly hired by
Exton Cubic and being conveyed on public roads did not occasion any breach of
privacy of the company.”
Deputy
AG Response
Mr Dame argued, “In any event the purported
execution of three mining leases in favour of Exton Cubic on 29th December,
2016, did not convey any mineral rights to the company as the leases had not
satisfied the constitutional precondition of parliamentary ratification”. “To
this extent, the attempt by Exton Cubic to go on to the lands in question illegally.”
According to the Deputy Attorney-General, the courts
of Ghana had held in many cases that no restitutionary rights flowed from an
agreement entered into in violation of the laws of Ghana.
He added that the alleged agreement between Exton
Cubic and Engineers and Planning Limited was thus illegal and the claim for
indemnity by Exton Cubic was untenable.
Mr. Dame further argued that a claim for indemnity
can only be validly made under a contract between two parties.
“Since the State was not a party to the alleged
contract between Exton Cubic and Engineers and Planners, the claim by Exton
Cubic for indemnity by the State was baseless,” Mr Dame argued.
Court’s
Decision
In its judgement, the court, presided over by
Justice Krofah, upheld the submissions of the state that the purported mining
leases of Exton Cubic conveyed no mineral rights and therefore the company had
no business moving equipment to the land.
The judge said the Exton Cubic supervised illegal mining
activities in the nature of what is popularly known as “galamsey.”
Justice Krofah observed that the Regional Minister,
who is vested with executive authority in the region, had a duty to prevent a
breach of the law which the youth in the area, on the evidence, were
threatening to cause.
The judge further held that since no restitutionary
rights could flow from an agreement entered into contrary to the laws of Ghana,
the claim for compensation by Exton Cubic was without basis.
The court also held that an allegation of breach of
privacy cannot be competently made in respect of the seizure of equipment being
conveyed in broad daylight on the roads of Ghana.
It said the applicant failed to demonstrate how its
rights were infringed upon by the State.
Product
of Collusion
Justice Krofah also cast doubt on the alleged
contract between Exton Cubic and Messrs. Engineers and Planners since Exton
Cubic had failed to rebut the allegation by Deputy Attorney-General, Yeboah
Dame, to the effect that the two companies were related and the purported
contract between them was the product of collusion.
No costs were awarded by the court.
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