Posted on: www.dailyguideghana.com
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.
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.”
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.
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.
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.