Fight against galamsey: How A-G set aside US$15.3m Heritage Imperial Galamsey Judgment against the state

The leakage of the Professor Frimpong Boateng Report on the work of the Inter-Ministerial Committee on Illegal Mining has revived interest in the activities of big companies and prominent individuals engaged in illegal mining (galamsey).

One company which has been brought into the limelight is Heritage Imperial, a company with whom big personalities and politicians in the country, have been associated.

Details are emerging of how in 2019, Heritage Imperial, a company cited in the report of Prof Frimpong-Boateng as engaged in big-time galamsey, applied to the High Court, Kumasi for payment by the State of 15.3 Million United States Dollars as damages for the alleged unlawful seizure of its machinery, equipment and monies by the Taskforce 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^th July, 2020, that, the invasion of the plaintiff’s mining site and the seizure of its excavators and equipment were unlawful.

The court, as a result, ordered 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^th July, 2021, filed an application for an order setting aside the judgment as a nullity and vitiated by a lack of jurisdiction of the High Court to entertain the action. Mr. Dame subsequently indicated in an answer to a question in Parliament about the judgment debt, that he had only heard about the judgment for the first time in 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, Kumasi on 23^rd July, 2021, the Attorney-General, Godfred Dame, raised a number of procedural flaws with the plaintiff’s action and contended that the commencement of the action by 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 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 herein. In his view, the relief of US$15,304,714.20 granted by the Court was a material and specific one, clear notice of which had to be given on the writ of summons and statement of claim. The Court thus did not have jurisdiction to grant the relief of US$15,304,714.20.

The Attorney-General also claimed that the failure of plaintiff 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, according to Mr. Dame, was one calculated at overreaching not only the Court but also the Government of Ghana, and, therefore ought not to be rewarded by a court of law and equity.

The court upheld the submissions of the Attorney-General. On 30^th July, 2021, Justice Diawuo, delivering his ruling, held that a Superior Court has inherent jurisdiction to set aside its own judgment when same was plainly entered without jurisdiction or is offensive to any provision of the laws of Ghana. He considered the failure of the plaintiff to state the specific relief claimed by the plaintiff on its writ of summons a fundamental defect, especially as same resulted in the State being deprived of the fruits of the appropriate filing fees. Failure of a party to indorse the specific relief claimed by that party on 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.

The judge 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 enquiry 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^th November, 2021, the Attorney-General was actually invited to Parliament to answer questions asked by Mr Rockson Nelson-Dafeamekpor and Mr. Okudzeto Ablakwa on the floor of the House.

The Attorney-General, Mr. Dame, explained to Parliament the processes which culminated in the setting aside of the 15.3 Million US Dollars judgment debt against the State by the High Court, Kumasi.

Attached is the tape of the Attorney-General’s answers to questions in Parliament.

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 for Lands and Natural Resources Joseph Asomah Chiremeh, was illegally using their prospecting licence to engage in ‘bulk exploration’ activities, loosely interpreted as ‘galamsey’. The company’s excavators were seized and or burnt by the Inter Ministerial Mining Committee’s Task Force at the peak of the fight against galamsey. sHeritage Imperial despite not possessing the requisite documentation to mine rather sued the state for recovery of the full cost of the excavators and  other inventory like gold which they claim were missing.

The setting aside of the US$15.3 million dollar judgement debt, pursuant to the application of the Attorney-General, represents one positive for the State in its fight against illegal mining and shows that companies engaged in wrongdoing cannot profit from their illegality.