Kumasi High Court sets aside $15.3Million Galamsey judgment against government

Supreme Court of Ghana

The High Court in Kumasi has in a ruling dated Friday, 30th July, 2021, set aside a $15.3 million dollars Galamsey judgment entered against the Government on 30th July 2020 for the seizure machineries, equipment and monies belonging to Heritage Imperial Company, (Plaintiff) by the Taskforce of the Inter-Ministerial Committee on illegal mining in 2018.

The court presided over by His Lordship Justice Samuel Diawuo had exactly a year ago, held in a judgment after trial, that, the invasion of the plaintiff’s mining site and the seizure of its excavators and equipment was unlawful.

The court as a result, ordered recovery of the sum of US$15,304,714.20 being the value of machinery and equipment seized from the plaintiff’s site by the Inter-ministerial task force on illegal mining on 6 December 2018 or its current value in Cedis; general damages of GHC500,000; and costs of GHC100,000” against the State.

Argument by Attorney General

However, on 13th July, 2021, the Attorney-General filed an application for an order setting aside the judgment as a nullity and vitiated by a lack of jurisdiction of the High Court to entertain the action.

Arguing the application himself on 23rd July, 2021, the Attorney-General, Godfred Yeboah Dame, contended that the commencement of the action by plaintiff without regard to the mandatory statutory stipulations of the State Proceedings Act, 1998 (Act 555), was unlawful.

He further contended that the order for payment by the Government of Ghana of the sum of US$15,304,714.20, was manifestly unlawful and utterly without basis, as no indorsement on the writ of summons issued in action supported same.

He explained that the rules of court require a writ of summons to be indorsed with a concise statement of the nature of the claim made, or the relief or remedy required in the action. In no part of either the writ of summons or the pleadings of the respondent did the respondent claim the sum of US$15,304,714.20 against the applicant herein.

“The relief of US$15,304,714.20 granted by the Court was a material and specific one, clear notice of which had to be given on the writ of summons and statement of claim. The Court thus did not have jurisdiction to grant the relief of US$15,304,714.20” Attorney General Godfred Dame argued in Court.

Mr. Dame further contended that “the plaintiff failed to indicate on its writ of summons whether the claims were against the defendants were either jointly and severally or jointly or severally. The judgment of the Court also failed to indicate same, and to this extent, the reliefs granted were unenforceable”.

The Attorney-General asserted that “the default in stating whether reliefs claimed by plaintiff or granted by the Court were jointly and severally or jointly or severally was a fundamental and incurable defect which avoids the entire judgment, as the 1st defendant, the Ministry of Lands and Natural Resources. did not have capacity to be sued under Ghana law”.

The Attorney-General also insisted that “the failure of plaintiff to claim the relief of US$15,304,714.20 on its writ of summons was clearly intended to deceive the Court and deprive the State of appropriate revenue, as appropriate filing fees were paid on the reliefs awarded to Heritage Imperial Company”.

The act of the plaintiff in concealing the specific cost of the equipment it alleged to have acquired, according to Mr. Dame, “was one calculated at overreaching not only the Court but also the Government of Ghana, and therefore ought not to be rewarded by a court of law and equity”.

Ruling of the Court

Delivering the ruling, Justice Diawuo’s Court held that a Superior Court has inherent jurisdiction to set aside its own judgment when same was plainly entered without jurisdiction or is offensive to any provision of the laws of Ghana.

He found the failure of the plaintiff to state the specific relief claimed by the plaintiff on its writ of summons a fundamental defect, especially as same resulted in the State being deprived of the fruits of the appropriate filing fees.

“Failure of a party to indorse the specific relief claimed by that party on its writ of summons, with the consequential effect of the plaintiff not paying appropriate filing fees meant that the court had no jurisdiction to consider the case placed before it” the Judge stated.

The judge ruled that “to the extent that the court had no jurisdiction to consider the claim before it, the judgment was a nullity and would be set aside”.

Background

Sometime, in 2017, the Government of Ghana, in order to tackle the menace of illegal mining, set up an Inter-ministerial committee on illegal mining. In order to enforce its mandate, the committee was assisted by a taskforce made up of members of the security forces and Environmental Protection Agency (EPA) officials.

On 6th December, 2018, the Inter-Ministerial Committee on illegal mining invaded Heritage Imperial Company’s mining concession and seized its equipment, machinery and monies.

Claiming that the invasion and seizure were unlawful, the company on 20th February, 2019, instituted an action for the following reliefs endorsed on its writ of summons:

1.Declaration that the invasion of the plaintiff’s mining site and the seizure of its excavators and equipment is unlawful.

2. An order directed at the defendants to release the plaintiff’s machineries, equipment and monies seized by the Taskforce of the Inter-Ministerial Committee on illegal mining from its concession.

3. Or in the alternative the cost of the machineries and equipment to be assessed and the value paid to the plaintiff.

4. General damages

5. Cost of these proceedings including counsel’s fees on a full indemnity basis.

Wilberforce Asare

Gh Extractives

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