AMI AFRICA EXPLORATION LIMITED vs. THE ATTORNEY GENERAL [2014]DLCA16190

Date	2014-10-24
Suit No.	SUIT NO. OCC/18/11
Citation No.	[2014]DLCA16190

DENNIS ADJEI J.A (PRESIDING)

BERNASKO-ESSAH J.A

ADJEI-FRIMPONG JA

ERNEST OWUSU- ABOAGYE FOR PLAINTIFF

DOROTHY AFRIYIE - ANSAH FOR DEFENDANT

[2014]DLCA16190
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													<main id="main" class="content" style="min-height: 60rem" >AMI AFRICA EXPLORATION LIMITED <o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY GENERAL <o:p></o:p>(DEFENDANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

SUIT
NO. OCC/18/11&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH OCTOBER, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ERNEST
OWUSU- ABOAGYE FOR PLAINTIFF<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

DOROTHY AFRIYIE - ANSAH FOR DEFENDANT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM: <o:p></o:p>DENNIS
ADJEI J.A (PRESIDING), BERNASKO-ESSAH J.A, ADJEI-FRIMPONG JA<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>TORKORNOO (MRS.) JA<o:p></o:p>Lake
Bosumtwi, a crater site noted as a world heritage, and supposed to have been
caused by a meteor’s impact with earth more than one million years ago (see
exhibit 15), is at the center of this dispute. In July 1996, the plaintiff, a
Canadian company then called Norcan Mining Corporation applied for a
prospecting license in the Lake Bosumtwi area at a location called Ankasi.
Norcan Mining eventually obtained three prospecting licenses in the lake area
called the ANKASI, ADUMASA AND PEMENASE concessions. In 2004, these three
concessions were subsumed into a single unit called the BEPOSO Concession. <o:p></o:p>In
2005, the Environmental Protection Agency (EPA) refused to give the plaintiff
an environmental permit to mine in the Beposo Concession on the ground that
there was a 10 kilometer radius restricted non-economic zone (hereinafter
referred to as the restricted zone or NEZ) around the lake. The plaintiff
raised a complaint against this position and the Ministry of Environment and
Science (MES) set up a panel to investigate the plaintiff’s complaints about
this refusal. While the panel was yet to complete its investigations, it’s
chairman recommended that the ‘EPA issue
the permit and seek real scientific reasons to show cause why Norcan Mining
Corporation should be denied a mining permit when it completes its prospecting
activities in the area…’. At the direction of the MES, the EPA issued the
permit to commence in June 2006 and expire in June 2008. &nbsp;<o:p></o:p>The
prospecting license over the BEPOSO Concession expired in 2006 and was extended
for one year. In 2007, the plaintiff
sought a further extension of the license and the Minerals Commission refused
to extend same. In exhibit K, it advised the plaintiff to apply for a renewal
of the license, and shed off 50% of the land mass of the concession as required
by law. The plaintiff did not do so. It presented several petitions to
government against this direction to shed off part of its concession in
exhibits L, M, N, P, Q. Eventually and in 2009, (exhibit X) the plaintiff instructed
its lawyers to apply for a renewal of the concession under the Minerals and
Mining Act 2006 Act 703 and without shedding off any part of the concession site
in 2009. When the Minerals Commission refused to accede to this application in
exhibit Y and subsequent petitions, the plaintiff commenced this action on 13th
May 2011.<o:p></o:p>Plaintiff’s
first contention in this suit is that the Beposo concession license was granted
to it on the understanding that the plaintiff could apply for a mining lease if
it thought it commercially prudent to do so. However the 10 kilometer NEZ
asserted by the EPA wiped out more than half of its Beposo concession. Its
second position is that in 2006, the investigative panel found that there was
no credible justification or scientific reason for restricting mining in the
alleged restricted area and this was affirmed by the then Minister for
Environment, Science and Technology when she directed the EPA to issue a permit
to the plaintiff. It tendered exhibit H in support of this position. <o:p></o:p>Thirdly,
the plaintiff asserts that the 2004 -2006 delay in obtaining the environmental
permit after it was given the concession in 2004 retarded its exploration work.
As a result, the direction of the Minerals Commission that it renew the
prospecting license and shed off half the concession area offends the spirit
and letter of Act 703. It argued that it had been assured by the Minerals
Commission that its Beposo Concession would not be affected by the 10 kilometer
restricted area because the plaintiff had a mineral right in the area before
Government took the decision to create a restricted area around the lake. That
it had applied for a renewal of its EPA permit on the concession and the EPA
had refused to extend the environmental permit on the basis of their earlier
refusal of 2005. Without the EPA permit, the plaintiff cannot conduct any
operations in the area. Its complaint is that the government of Ghana through the
Minerals Commission and the Ministry of Lands and Natural Resources induced it
into investing huge sums of money to do exploration. Plaintiff alleges that its
terminal report filed with the Minerals Commission indicates that there is
229,935 ounces of gold embedded in the Beposo Concession which can mostly be
found in the restricted area. Its case is that exploring in the Beposo
concession had cost it approximately $3,328,525 worth of investments. <o:p></o:p>It
contends that the Beposo concession is being illegally and extensively mined
and the declaration of the restricted zone is illegal and arbitrary, offending
section 4 of Act 703 and Article 20 (1) and (2) of the 1992 Constitution.&nbsp; <o:p></o:p>The
plaintiff is seeking: <o:p></o:p>a)