JAMES ACQUAH & ANR (PLAINTIFFS) vs. MR BEN & 6 ORS [2019]DLHC9248

Date	2019-11-28
Suit No.	SUIT NO. TRS 2/19
Citation No.	[2019]DLHC9248

P. BRIGHT MENSAH JUSTICE OF THE HIGH COURT

EDEM NUHOHO FOR ASSAD GBADEGBE FOR THE 6TH DEFENDANT/APPLICANT

SAMUEL ADINKRAH FOR THE PLAINTIFFS/RESPONDENTS

[2019]DLHC9248
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													<main id="main" class="content" style="min-height: 60rem" >JAMES ACQUAH &amp; ANR<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>MR BEN &amp; 6 ORS<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (CIVIL DIVISION), ACCRA]<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. TRS 2/19&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
28TH NOVEMBER, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EDEM NUHOHO FOR ASSAD GBADEGBE FOR THE 6TH
DEFENDANT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SAMUEL ADINKRAH FOR THE
PLAINTIFFS/RESPONDENTS&nbsp;&nbsp;&nbsp;&nbsp; <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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P. BRIGHT
MENSAH JUSTICE OF THE HIGH COURT<o:p></o:p>

</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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</div>The instant suit then pending before
the Tarkwa High Court was on 21/06/2019 transferred under the hand of the Chief
Justice to this court.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The first time the case was called in
court here, was on 30/07/2019.&nbsp; Both
lawyers for the plaintiffs and the 6th defendant were in court. The
business for the day was for the consideration of a motion for the dismissal of
the plaintiffs’ suit which motion has been pending since it was filed on
03/09/2018.&nbsp; However, upon agreement of
Counsel, the matter was adjourned to 14/10/2019. &nbsp;On record, the lawyer for the 7th
defendant, the Forestry Commission was present in court 14/10/2019 but the
other lawyers were not.&nbsp; The lawyer for
the 6th defendant/applicant had written for an adjournment and upon
his request the matter was adjourned to 20/11/2019. <o:p></o:p><o:p>&nbsp;</o:p>It is worthwhile to state that
pursuant to the filing of the motion for the dismissal of the plaintiffs’ claim,
the 2nd plaintiff/respondent herein swore to an affidavit opposing
the application.&nbsp; The affidavit in
opposition was filed on 25/10/2018.&nbsp; The
court’s record shows that the lawyer for the plaintiffs/respondents was duly
served with hearing notice for the hearing of the motion.&nbsp; For unexplained reason, the lawyer was absent
from court on the return date ie 12/11/2019 but the lawyer for the 6th
defendant/applicant did appear.&nbsp; In the
circumstance, the lawyer for the applicant insisted and was permitted to move
the application.&nbsp; The law now appears
settled that where parties have filed their respective processes in connection
with an application the court has the jurisdiction to consider and determine it
without even inviting arguments from Counsel.&nbsp;
See: R v Court of Appeal; Exparte Eastern Alloy Co. Ltd (2007-2008) 371.<o:p></o:p><o:p>&nbsp;</o:p>Now, the basis for the instant
application as catalogued in the affidavit supporting the motion is that the
claim discloses no reasonable cause of action and or an abuse of the legal
process.&nbsp; It is equally contended that
the plaintiffs lack capacity to mount the instant action.<o:p></o:p><o:p>&nbsp;</o:p>In moving the application, learned Counsel
for the 6th defendant/applicant referred the court to Exhibit
A (Mining Lease) attached to the motion and submitted quite forcefully
that the 6th defendant company has been granted mining rights over
2124 acres of land which the disputed subject matter forms part.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>Proceeding further, Counsel made
reference to Article 257(6) of the 1992 Constitution and submitted that all
minerals in their natural state is the property of the Republic vested in the
President for and on behalf of, and in trust for the people of Ghana.&nbsp; The 6th defendant having been
granted the mining rights, he was subject only to the 1992 Constitution and the
Minerals
&amp; Mining Act (Act 703) as amended, Counsel stressed.<o:p></o:p><o:p>&nbsp;</o:p>Counsel next submitted that once the 6th
defendant has been granted the mining rights over the land, the plaintiffs’
remedy, if any, only lies in compensation.&nbsp;
He did refer to the LAND LAW, PRACTICE &amp; CONVEYANCING IN
GHANA authored by Dennis Agyei JA and argued that the land owner whose
land has been affected by the grant of any mining lease has to go through
certain procedures under Act 703 to be able to receive
compensation.&nbsp; He added that until that
procedure was followed the court’s jurisdiction cannot be invoked as done in
the instant case.<o:p></o:p><o:p>&nbsp;</o:p>Counsel furthermore referred to
paragraph 6 of the affidavit in opposition and opined that if the
plaintiffs/respondents admitted that the land, the subject matter is a forest
reserve then it was the 7th defendant, the Forestry Commission that has the mandate
to manage and deal with it and not the plaintiffs even if it was established
that they could lay claim to the forest.<o:p></o:p><o:p>&nbsp;</o:p>Counsel then referred to a similar
process the lawyer for the 1st – 5th defendants earlier
filed but which was dismissed by the court differently constituted. He explained
that circumstances have changed since that application was dismissed and that
on the authority of Vanderpuye v Nartey (1977) 1 GLR 428 @ 429-430 the
applicant rese</main>