JOSEPH BOAKYE DANQUAH vs. PERSEUS MINING GHANA LTD [2018]DLHC3983

Date	2018-07-30
Suit No.	SUIT NO. OCC. 82/2015
Citation No.	[2018]DLHC3983

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

[2018]DLHC3983
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH BOAKYE DANQUAH<o:p></o:p>vs.<o:p></o:p>PERSEUS MINING GHANA LTD<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), 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&nbsp;NO. OCC. 82/2015&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30TH JULY, 2018<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This
ruling is in respect of an application to set aside the instant writ of summons
and statement of claim and a further order to dismiss plaintiff’s case. The
application is premised on Order 11 rule 18 (1) (d) of the High Court (Civil
Procedure) Rules, 2004 (CI 47) and the inherent jurisdiction of the court.<o:p></o:p>Order
11 Rule 18 (1) (d) provides as follows:<o:p></o:p>“18.
(1) The Court may at any stage of the proceedings order any pleading or anything
in any pleading to be struck out on the grounds that (d) it is otherwise an
abuse of the process of the Court and may order the action to be stayed or
dismissed or judgment to be entered accordingly.”<o:p></o:p>The
grounds of the Defendant/Applicant’s application are contained in the affidavit
in support of the motion filed on 7/05/2018.<o:p></o:p>The
Plaintiff/Respondent is opposed to the application and have demonstrated the
grounds in the affidavit in opposition filed on 09/07/2018. <o:p></o:p>Both
counsel for the defendant/applicant and plaintiff/respondent also filed their
statements of case on 25/06/2018 and 09/07/2018 respectively.<o:p></o:p>The
applicant’s case is that the respondent’s claim relates to mineral right
compensation due him for disturbance of his right as a landowner. This claim is
a fallout of the applicant’s mining activities. It is applicant’s case that the
respondent failed to follow the laid down statutory procedures for resolving
disputes of such nature before instituting the said action in the High Court.
In his written submission, Counsel for the applicant cited sections 73 and 75
of the Minerals and Mining Act, 2006 (Act 703) and regulation 2(6) of Minerals
and Mining (Compensation and Resettlement) Regulations, 2012 (LI 2175) and
submitted that disputes and complaints such as that of the Plaintiff must first
and foremost be submitted to the Minister responsible for Lands and Natural
Resources for a determination to be made before the jurisdiction of the court
can be invoked. That plaintiff/respondent’s failure to resort to the laid down
statutory procedure is fatal to the writ of summons and statement of claim. Counsel
cited cases including Boyefio v NTHC <a name="_Hlk520621124">[1996-97]</a>SCGLR
531 and Eugene Guddah and Anor v Goldfields (Ghana) Ltd [06/06/2005] Civil Appeal
H1/66/2004 to buttress his point.<o:p></o:p>It
is the position of the plaintiff/respondent that the application is
misconceived and same must be dismissed. In sum, the plaintiff/respondent’s
case is that since the dispute is about the defendant/applicant’s failure to
pay the requisite compensation to him the court is seised with the jurisdiction
to hear the matter.<o:p></o:p>An
aggrieved person has a right to access to court and with it the right to have
his day in court. Hence case laws dictate that the court should only exercise
its power to strike out a suit only in exceptional circumstances. One of such
exceptions is the failure to comply with laid down statutory requirements prior
to the action. One of such requirements is the exhaustion of an alternative dispute
resolution mechanism dictated by statute. The court in its desire to protect
its jurisdiction from wanton intrusion normally takes ambivalent position when
it comes to the construction of such dispute resolution provisions. Due regard
is given to clarity of expression before a court succumbs to a statutory
provision that seeks to take away its power to hear a matter. This position of
the court was amplified by Wood JA (as she then was) in Osei Yeboah v Bonte
Goldmines Limited Case No. 82/99 Court of Appeal [10/2/2000] when she cited
with approval the dictum of Somtton LJ in Re Vexatious Act 1896 as follows:<o:p></o:p>“The
right of the subject to have access to the courts may be taken away or
restricted by statute, but the language of any such statute will be jealously
watched by the courts and will not be extended beyond its least onerous meaning
unless clear words are used to justify such expansion.”<o:p></o:p>Section
73 of Act 703 makes provision for compensation for disturbance of an owner’s
surface rights.&nbsp; It is provided under 73
(1) that “owner or lawful occupier of any land subject to a mineral right is
entitled to and may claim from the holder of the mineral right compensation for
the disturbance of the rights of the owner or occupier, in accordance with
section 74.”<o:p></o:p>Section
74 (1) of Act 703 further provides as follows:<o:p></o:p>“The
compensation to which an owner or lawful occupier may be entitled, may include
compensation for,<o:p></o:p>(a)
deprivation of the use or a particular use of the natural surface of the land
or part of the land,<o:p</main>