Fight against galamsey: how the Attorney General set aside the $15.3 million Heritage Imperial judgment
The leak of the Kwabena Frimpong-Boateng report on the work of the Inter-Ministerial Committee on Illegal Mining (IMCIM) has revived interest in the activities of big companies and prominent individuals engaged in illegal mining (“galamsey“).
One company that has come into the limelight is Heritage Imperial, a company with which big personalities and politicians in Ghana have been associated.
Details are emerging of how Heritage Imperial, a company cited in the report by Professor Frimpong-Boateng as engaged in big-time galamsey, applied to the Kumasi high court in 2019 for payment by the state of US$15.3 million as damages for the alleged unlawful seizure of its machinery, equipment and monies by the task force of the Inter-Ministerial Committee on Illegal Mining.
The company indeed initially succeeded.
After a full trial, the court presided over by Justice Samuel Diawuo held on 30 July 2020 that the invasion of the plaintiff’s mining site and the seizure of its excavators and equipment were unlawful.
As a result, the court ordered the “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.
However, on assumption of office as the Attorney General in 2021, Godfred Yeboah Dame, on 13 July that year, filed an application for an order to set aside the judgment as a nullity and one vitiated by a lack of jurisdiction of the high court to entertain the action.
Dame subsequently said in an answer to a question in Parliament about the judgment debt that he had only heard about the judgment for the first time on a news programme on Joy FM, Newsfile. He explained that the matter had not been part of his schedule as a deputy attorney general and therefore never came to his attention.
Arguing the application himself at the high court in Kumasi on 23 July 2021, the Attorney General raised a number of procedural flaws with the plaintiff’s action and contended that the commencement of the action by the 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 the same.
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.
In his view, the relief of US$15,304,714.20 granted by the court was material and specific, clear notice of which had to be given on the writ of summons and statement of claim. Thus, the court did not have jurisdiction to grant the relief of US$15,304,714.20.
The Attorney General also claimed that the plaintiff’s failure 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, Attorney General Dame said, was calculated to overreach not only the court but also the Government of Ghana, and, therefore, ought not to be rewarded by a court of law and equity.
Failure to declare
The court upheld the submissions by the Attorney General. On 30 July 2021, Justice Diawuo, delivering his ruling, held that a superior court has inherent jurisdiction to set aside its own judgment when this was plainly entered without jurisdiction or is offensive to any provision of the laws of Ghana.
He considered the plaintiff’s failure to state the specific relief claimed by the plaintiff in its writ of summons a fundamental defect, especially as this resulted in the state being deprived of the fruit of the appropriate filing fees.
Failure of a party to endorse the specific relief claimed by that party in 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.
Justice Diawuo 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.
Questions in Parliament
The story of Heritage Imperial’s brazen claims was the subject of an inquiry by Parliament as some members of the minority National Democratic Congress set it down as a question for the Attorney General to answer in Parliament.
On 11 November 2021, the Attorney General was actually invited to Parliament to answer questions by Rockson Nelson-Dafeamekpor and Samuel Okudzeto Ablakwa on the floor of the House.
Attorney General Dame explained to Parliament the processes which culminated in the setting aside of the US$15.3 million judgment debt against the state by the high court in Kumasi.
Fight against galamsey
Heritage Imperial came to the limelight in 2019 for engaging in illegal mining in the Apraprama Forest Reserve in the Amansie District in the Ashanti Region.
The company, according to the then minister of lands and natural resources, Joseph Asomah-Cheremeh, was illegally using its prospecting licence to engage in “bulk exploration” activities, loosely interpreted as “galamsey”.
The company’s excavators were seized and/or burned by the Inter-Ministerial Mining Committee’s Task Force at the peak of the fight against galamsey.
Though it did not possess the requisite documentation to mine, Heritage Imperial rather sued the state for recovery of the full cost of the excavators and other inventory, such as gold, which it claimed was missing.
The setting aside of the US$15.3 million judgement debt, pursuant to the application by the Attorney General, represents one positive step for the state in its fight against illegal mining and shows that companies engaged in wrongdoing cannot profit from acting illegally.