Equipment seizure: Kumasi Court denies Exton Cubic compensation

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.