On Exton Cubic Case
Edudzi Kudzo Tameklo, one of the lawyers in the Exton Cubic case against government which was decided by an Accra Fast Track High Court last Thursday, has set the record straight, in view of the negative twist that Deputy Attorney General, Godfred Yeboah Odame, is putting out in the media.
Shortly after Justice Kwaku Ackah-Boafo’s judgment, the Deputy Attorney-General, went to town, saying the Akufo-Addo government, intends to further pursue the case of the legitimacy of Exton Cubic Group Limited’s permit to prospect in the Nyinahini bauxite concession in the Ashanti Region.
The Accra High Court, overturned the decision by the Minister of Lands and Natural Resources, John Peter Amewu, to revoke the Ghanaian company’s mining license to prospect on the concession.
The court said, the sector minister, exceeded his powers by withdrawing the license.
But Mr. Dame, who led government side in court justifying Mr. Amewu’s action, speaking on Citi FM, said, although the court quashed the decision of the minister, it still concurred with the assertion that the activities of Exton Cubic were illegal.
He also intimated that, his outfit would also be looking into the circumstances under which a company with affiliations to Ibrahim Mahama, was granted the mining lease when his brother, John Mahama was President.
“These are matters of monumental importance. We have to even look at the processes, [asking] how come just a week before the handover of power by a real government, the President of the day, through the Minister will convey a mining lease to a company owned by [the president’s] brother. These are things we have to look at.”
“We don’t rush. We will take our time to do things. We will probe into how these infractions were committed and committed in favour of the company owned by the brother of the then-President [Mahama] granting about 79 percent of the nation’s known bauxite resources in the company’s favour,” the Deputy AG said.
But Lawyer Edudzi Kudzo Tameklo in a post decided to counter his former Company Law Lecturer by setting the records straight on the outcome as per the facts put before Justice Ackah-Boafo and his judgment.
Below is what he wrote:
Let us all put the issues here.
On 4th September,2017,the Lands and Natural Resources Minister caused a letter to be served on Exton Cubic Group Limited.
On the same day, that letter was withdrawn and replaced with another with some amendments.
In this letter, the Minister INVALIDATED three mining leases.
The Company applied to the High Court for judicial review pursuant to Order 55,Article 23 and 296.
Two main grounds.
1.The Minister acted without legal authority.(exceeded his powers).
2. Failed to give the Company hearing required by law.
Thereby making the decision unreasonable, whimsical and capricious.
The Deputy Attorney General, on Godfred Yeboah Dame opposed the application in two parts.
On the procedure and on the merit.
1.That the proper person to sue was the Attorney General under article 88(5) and that by suing the Minister, the application was wholly incompetent and same must be dismissed.
The Judge dismissed this objection as wholly misconceived and lacking merit.
2.That the application was premature and therefore the jurisdiction of the court has been wrongfully invoked because section 27 of Mineral and Mining Act, Act 703.
This objection was also overruled. In fact, the Judge indicated that the position of the Deputy Attorney General was full of inconsistency.
On the merit of the application, this is how the Judge proceeded.
“xi. The Main Issue:
 Now, despite the opinion expressed above on the lease and the lack of Parliamentary ratification, it is important to reiterate that in so far as the instant application is concerned, it is the legality or otherwise of the Minister’s letter being Exhibit “E1” which is at stake and NOT, as indicated above, the collateral question which is the process that led to the signing of the mining lease. I am not called upon to pronounce judgment on how the lease was acquired in this application …
 overall, I am satisfied that the Applicant has succeeded in making a case which calls into question the letter authored by the Minister for lands and natural Resources dated September 4, 2017, and for the letter to be brought into this court to be quashed and it is hereby QUASHED accordingly.”Ex Parte Exton Cubic Group (Feb 8, 2018) H.C.
I am therefore surprised that the Deputy Attorney General has decided to confuse people over an issue that was not even the ratio of the Court.
It is important that the Deputy Attorney General soberly reflect on the ruling and do the honorable thing.
Exton Cubic is not fighting the Government because Government is still the regulator of the mining sector.
However, like the Court noted, the Minister decision was self serving, unreasonable and whimsical.
The Judge was clear in his mind that he has not been called to decide on the legality or otherwise of the lease.
He indicated that will be done only when a writ has been called, witnesses called, before a decision can be made on that.
He said his jurisdiction is limited in this application.
Only in respect of the Minister’s letter without more.
Rightly quashed the letter invalidating the leases.
He finally took the view that Exton Cubic Group Limited has a “vested right” in the lease.
” Again, I would add that even if the statute was not complied with, Applicant by signing the lease acquired a vested right and therefore it ought to have been heard…” Paragraph 115
“Overall, I am satisfied that the Applicant has succeeded in making a case which calls into question the letter authored by the Minister for Lands and Natural Resources dated September 4, 2017 and for the letter to be brought into this court to be quashed and it is hereby QUASHED accordingly”
If the invalidation is quashed, we go back to the status quo ante.
There is no invalidation.
On the lack of parliamentary approval, that is the responsibility of the Minister.
He can’t use his own failure to submit the lease to Parliament as basis to punish the Company.
I am unable to say more to my former Company law lecturer.
Ghana is the winner.
Rule of law is the winner.
Exton Cubic is good corporate citizen.