Exton Cubic Case: Supreme Court upholds revocation of Mining Leases by Gov’t

A five-member Supreme Court panel presided over by Justice Julius Ansah has granted an application by the Attorney General (AG) seeking to quash the decision of an Accra High Court in relation to the revocation of mining leases in respect of three areas in the Ashanti Region, (Kyekyewere, Mpasaso and Kyirayaso) granted to Exton Cubic Group Limited by the Minerals Commission on the 10th of November, 2016.

The High Court on the 8th of February 2018, quashed the letter written by the Minister for Lands and Natural Resources which essentially revoked the purported granting of mining leases in three areas which constituted 79% of the nation’s known bauxite resources, namely Kyekyewere – 56.64 Sq. Km, Mpasaso – 22.46 Sq. Km and Kyirayaso 32.68 Sq. Km.

It was the case of Exton Cubic owned by Ibrahim Mahama brother of Ex-President John Mahama that the Minister for Lands and Natural Resources in his revocation letter contravened section 68 and 69 of the Minerals and Mining Act, 2006, (Act 703).

The Attorney General, aggrieved by the decision of the High Court, proceeded to the Supreme Court by invoking the Apex Court’s supervisory jurisdiction seeking an order of certiorari directed at Justice Kwaku Ackaah-Boafo’s High Court to quash its ruling as it believes the ruling violated the Minerals and Mining Act, 2006, (Act 703) and that the High Court lacked jurisdiction to even entertain the application of Exton Cubic Group Limited in the first place.

In an affidavit deposed to by Veronica Adigbo, of the Civil Division of the Office of the Attorney General, stated that prior to the said offer of three mining leases to Exton Cubic on the 10th of November, 2016, “…there had not been no publication of notice of the pendency of the application for the mining leases in the Gazette as required by section 13 of the Minerals and Mining Act 2006 (Act 703)” .

Exton Cubic, the affidavit stated, failed to satisfy the environmental obligations required by law including obtaining an Environmental Assessment Firm EA2, Environmental Impact Assessment, Scoping Report, Environmental Impact Statement, an Annual Environmental Report to the EPA and a Liability Estimate of Environmental Degradation. Furthermore, the affidavit pointed out that, “the purported offer of the mining leases by the Minerals Commission to Exton Cubic Group Limited on the 10th of November, 2016 and payment for same by Exton Cubic Group Limited on the 12th of December, 2016, were all done before the Commission forwarded its recommendations to the Minister on the 28th of December, 2016, contrary to sections 12 and 13 of Act 703”.

“The Attorney General sought an order of certiorari to quash the decision of the High Court dated 8th of February, 2018, asserting jurisdiction in a matter contrary to the explicit provisions of an Act of Parliament, and purporting to enforce rights under three mining leases when same had not satisfied the fundamental requirement of parliamentary ratification,” the Attorney General’s affidavit in support of her case stated.

“In result, it is submitted that the decision of the High Court dated the 8th of February, 2018 is a nullity. Same is vitiated by the absence of jurisdiction to determine the interested party’s (Exton Cubic) suit without prior recourse to the mandatory provisions of Act 703. We humbly pray for the supervisory intervention of this Honourable Court,” the affidavit concluded.

The Supreme Court in its ruling indicated that the High Court exceeded its Jurisdiction when it quashed the letter of the Minister and by extension erred in reaching the said conclusion. The Supreme Court also held that in accordance with article 257 of the 1992 Constitution, all minerals belong to the people of Ghana and the President holds same in trust for the people and that is why article 268 enjoins all mining leases to obtain Parliamentary ratification. The Court further proceeds to hold that the grant of 3 mining leases in favour of Exton Cubic was in violation of the Constitution and section 12 of the Minerals and Mining Act, (Act 703) and same was declared invalid, void and of no effect for failure to comply with the mandatory statutory provisions.