ANGLOGOLD ASHANTI LTD. vs. NANA KONTOH & ANOR [2018]DLCA4565

Date	2018-10-16
Suit No.	SUIT NO. H1/18/2016
Citation No.	[2018]DLCA4565

ADUAMA OSEI J.A. (PRESIDING)

DZAMEFE J. A.

WELBOURNE (MRS) J. A.

ANTHONY DESEWU FOR DEFENDANT/APPELLANT.

NO REPRESENTATIVE FOR PLAINTIFF/RESPONDENT.

[2018]DLCA4565
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													<main id="main" class="content" style="min-height: 60rem" >ANGLOGOLD ASHANTI LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>NANA KONTOH &amp; ANOR<o:p></o:p>(PLAINTIFFS/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. H1/18/2016&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; &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 16TH OCT., 2018<o:p></o:p>

NO
REPRESENTATIVE FOR PLAINTIFF/RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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>WELBOURNE, JA<o:p></o:p>This
is an interlocutory Appeal against the Ruling of the High Court, Kumasi dated
the 12th day of March 2014, which dismissed the Defendant/Appellant’s
application praying the Honourable Court to dismiss on jurisdictional grounds
the suit filed by the Plaintiffs/Respondents.<o:p></o:p>The
said Ruling can be found at pages 38 to 46 of the Record of Appeal.<o:p></o:p>Brief
facts:<o:p></o:p>This
case is about the effect of mining activities on the environment. The facts of
the matter as stated by the Plaintiffs/respondent in their pleadings is that
the Defendants/appellant have for a number of years deposited waste in the form
of cyanide and other chemicals from its gold mining activities into the river
Apetikooko. The plaintiffs’farms are located down -stream through which flows
the river Apetikooko. The Plaintiffscultivate cocoa,palm oil, cashew, avocado
pear on acres of farmland. It is the plaintiffs’ case that the effect of the
dumping of the waste by the Defendant had a negative effect on their produce,
and their cocoa and palm oil nurseries had been rendered unproductive. The
yield capacity of their crops had been substantially reduced and in some
instances destroyed altogether.Following their complaints, the
Defendant/Appellant sent its officers to investigate the matter and assessed
the compensation to be paid to the affected farmers. The affected farmers
accepted their compensations which were paid to them with exception of the two
Plaintiffs/Respondents herein.They refused to accept the compensation that was
to be paid to them on the grounds that the amounts were inadequate. According
to the Appellant, instead of reporting the matter to the Minister for Minerals
and Mines as enjoined by law, they rather sued the Defendant/Appellant at the
High Court, Kumasi and by their Writ of Summons and Statement of Claim, they
sought against the Defendant/Appellant the following reliefs:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the Defendant has
violated the Plaintiffs right to equality of treatment and their right to own
property i.e. Articles 17 and 18 of the Ghana Constitution 1992.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order directed at the Defendant to restore
the Plaintiff’s land to its original status as fertile land for cultivation and
thereafter vacate same.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General damages for trespass.<o:p></o:p>In
the alternative:<o:p></o:p>An
order directed at the Defendant to pay prompt and adequate compensation to the
Plaintiffs in accordance with section 73 of the Minerals and Mining Act, 2006
(Act 703) for causing irreparable damages/destruction to the Plaintiffs’ source
of livelihood.<o:p></o:p>The
Defendants/Appellant duly entered appearance and an Amended Statement of
Defence was also filed on its behalf on the 27th day of July, 2012, which can
be found at pages 12 to 13 of the record of appeal. On the 16th day of October,
2013, the Defendant/Appellant caused a Motion on Notice for the dismissal of
the Plaintiffs’ actions to be filed under Order 11 Rule 18(1) of C.I 47 on its
behalf on the grounds that the Plaintiffs/Respondents’ action was an abuse of
the process of the court. It was the case of the Defendant/Appellant that the
High Court was not seised with the jurisdiction to hear the matter, since the
condition precedent and the procedure laid down by the Minerals and Mining Act,
2006 (Act 703)&nbsp; for compensation claims
had not been exhausted by the Plaintiffs, before proceeding to the High Court. <o:p></o:p>The
learned trial judge ruled that the trial court has jurisdiction to determine
the matter. Being aggrieved and dissatisfied with the said ruling, the
Defendant/Appellant herein filed the instant appeal on the sole ground that:<o:p></o:p>“The
learned trial judge erred by ruling that, the High Court has jurisdiction to
hear the matter in spite of the fact that the Plaintiffs admittedly did not
exhaust the condition precedent laid down by the Minerals and Mining Act, 2006
(Act 703)”. <o:p></o:p><o:p>&nbsp;</o:p>In
this appeal, the Plaintiffs/Respondents are hereinafter referred to as the
Respondents and the Defendant/Applicant is hereinafter referred to as the
Appellant. The record of appeal is described as the ROA. Relevant to the
determination as to whether or not the learned High Court </main>