MINERALS COMMISSION vs. COMMISSION FOR HUMAN RIGHTS AND ADMINISTRATWIVE JUSTICE (No 2) [1997-1998] 2 GLR 890

CASES REFERRED TO

(1) People’s Popular Party v The Attorney-General [1971] 1 GLR 138.

(2) Fawsitt, Re Galland v Burton (1885) 30 Ch D 231; 55 ULJ Ch 568; 53 LT 271, CA.

(3) Patterson, Re (1928) 62 OLR 255, CA.

(4) Aschkar v Karam [1972] 1 GLR 1, CA.

APPEAL by first defendant against judgment of High Court upholding the plaintiff’s action for an order compelling the defendants jointly and severally to implement the plaintiff’s decision directing the defendants to renew the prospecting licence of a mining company. The facts are fully set out in the judgment of Benin JA.

Stanley AmarteUifilo for appellant.

Ofosu-Quartey for respondent.

Benin JA. Delivered the first judgment of the court at the invitation of Sapong JA. We upheld an appeal brought by the first defendant-respondent-appellant (hereinafter called the first defendant) against the plaintiff-applicant-brespondent (hereinafter called the plaintiff). The cross-appeal by the plaintiff has also been upheld, but we reserved the reasons for both decisions for today which we now proceed to deliver.

By an originating motion on notice filed on 15 March 1996, the plaintiff prayed for an order of the High Court “compelling the defendants herein jointly and severally to implement the decision” of the plaintiff dated 9 March 1995. The decision which was sought to be implemented was one made in favour of a mining company called Tropical Minerals Co Ltd (hereinafter referred to simply as “the company”). The said company had petitioned the plaintiff to inquire into the circumstances that led to the wrong recommendation by the Minerals Commission to the Minister of Mines and Energy leading to the cancellation of the prospecting licence of the company.

The plaintiff’s conclusion was that the cancellation of the company’s licence was invalid for failure to comply with the provisions of section 67 (2) of Minerals and Mining Law, 1986 (PNDCL 153) and so it should be renewed. Section 67 (2) of PNDCL 153 porovides that:

[p.894] of [1997-1998] 2 GLR 890

“2. The Secretary shall before suspending or cancelling any mineral right give notice to the holder in such manner as shall be prescribed and shall in such notice require the holder to remedy any breach of the condition of his mineral right and where such breach cannot be remedied to show cause to the satisfaction of the Secretary why the mineral right should not be suspended or cancelled.”

The Secretary is now the Minister of Mines. It was the company’ s contention that the concession which they were granted at Manso Nkwanta in the Ashanti Region in 1981, and for which they obtained a prospecting licence in 1986, was taken away from them by the minister without the requisite inquiry as by law prescribed and upon ill-advice given by the Minerals Commission the first defendant herein.

Before the High Court, the first defendant challenged the ruling of the plaintiff on several grounds of which the important ones for our present consideration are:

“(1) That contrary to section 14 (1) the Commission for Human Rights and Administrative Justice Act, 1993 (Act 456), the applicant did not give the minister an oppor tunity to comment on any of the allegations contained in the complaint.

(2) The first defendant who was invited to comment did so but was not invited to any hearing to give evidence in support of its case or to examine the company on the facts which were in dispute.

(3) That in the circumstances the decision of the plaintiff was made without due process of law and was thus a nullity justifying a refusal to comply with it ..:”

The minister, per the Attorney-General, also challenged the plaintiff’s ruling before the High Court on grounds, inter alia, that section 14 (1) of Act 456 was not complied with in that the minister was not given an opportunity to comment on any of the allegations contained in the complaint.

Section 14 (1) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) provides that:

“Where the Commission decides to conduct an investiga tion under this Act, it shall give the authority or person concerned and to any other person who is alleged in the

[p.895] of [1997-1998] 2 GLR 890 complaint to have taken or authorised the act or omission complained of, an opportunity to comment on any allegations contained in the complaint and the representative of the authority or person concerned shall submit his comments within such time as the Commission may specify.”

I think this provision does no more than restate the basic and fundamental legal principle known by the Latin maxim audi alteram partem. Every student of the law knows that failure to comply with this principle renders any decision taken null and void ab initio. It is even said that God, in the Garden of Eden, gave Adam and Eve the chance to defend themselves on the charge of eating of the forbidden fruit before condemning them. And the provision itself is mandatory in its plain language such that the plaintiff’s assumption of jurisdiction to investigate any complaint is dependent upon satisfactory proof of compliance with notice to the defendant named in the complaint, and also to any person or authority who is said to have taken or authorised the act complained of, hence the use of the conjunction “and” to draw a distinction between the named defendant in the complaint or petition and any “authority or person concerned.”

The plaintiff’s response to this charge by the first defendant and the minister of non-compliance with sectioin 14 (1) of Act 456 is contained in paragraphs (6)–(8) of a supplementary affidavit filed with the High Court on 16 May 1996, and they read:

“(6) The first defendant-respondent is the principal and in fact the main institution that dealt with the petitioner. The minister was nominal and relied on the first defendant-respondent in respect of dealings in minerals with the petitioner.

(7) In the course of the applicant’s investigations the defendant-respondents undertook to answer for themselves and on behalf of the minister.

(8)

(8) Counsel will seek leave to refer to the letter attached as exhibit CHRAJ A received from the first respondent in the course of the investigations.”

On this issue, the trial judge delivered himself as follows:

“From the papers filed it is abundantly clear that the first defendant-respondent during the investigation by the plaintiff- applicant acted for itself, i.e. the Minerals Commission, and the

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Minister of Mines. Exhibit CHRAJ A attached to the su- pplementary affidavit filed on 16 May 1996 by the plaintiff-applicant clearly showed that the first defendant-respondent acted for the Minister of Mines. Therefore the allegation by the defendant-respondents that the minister was not given a hearing during the investigations by the plaintiff-applicant and thereby breached the rule of natural justice is not acceptable by this court . . . In fact the complaint was not against the Minister of Mines but it was against the first defendant-respondent, Minerals Commission. That it was the first defendant-respondent which recommended wrongly to the minister to cancel the licence of the petitioner. Exhibit CHRAJ A came from the Minerals Commission, the first defendant-respondent when the plaintif-applicant was investigating the complaint by the petitioner.”

Can the trial court’s decision be supported in the light of exhibit CHRAJ A? I think it is necessary to reproduce the said exhibit addressed by the first defendant to the plaintiff verbatim:

“RE: PETITION A GAINST THE CANCELLATION OF THE OPERAT1)ING MINING LICENCE OF TROPICAL MINERALS CO LTD We refer to a letter dated 26 October 1994 which was addressed to you and copied to us, among others, relating to the above subject and comment as follows: Tropical Minerals Company Limited (mInc) was granted a prospecting licence on the 24 June 1986 to prospect for gold in the Manso Nkwanta area for a period of three (3) years. Two subsequent renewals were granted to the company by the Minister of Energy and Mines in 1991 and 1992 respectively. Section 42 of the Minerals and Mining Law, 1986 (PNDCL 153) and clause 9 of the prospecting licence requires the holder of a prospecting licence to furnish at least once every four months records of his prospecting operation.

Ever since the grant of the prospecting licence to the company, the commission has had to constantly warn the company of the consequences of its consistent failure to submit its reports (copies of our letters ref PL6/4 (118) dated 14 November 1991, ref MC 20 Vol 7 dated 13 February 1992, to the effect are hereby attached). Our final warning letter was

[p.897] of [1997-1998] 2 GLR 890 sent to the company on the 18 October 1993 (a copy of which is hereby attached) asking them to submit outstanding returns or reports for the period November 1992 to September 1993 within 21 days from the date of the letter. The letter also was clear as to the consequences of non-compliance with our demand. This the company failed to comply with.

A recommendation was therefore made by us to the minister in accordance with section 67 of PNDCL 153 for the cancellation of the company’s licence. It was only after the recommendation to the minister and subsequent cancellation of their licence that the company submitted its returns for the following quarters:

(1) October–December, 1992–—4th quarter (2) January–March, 1993–—lst quarter (3) April–June, 1993–—2nd quarter (4) July–September, 1993–—3ird quarter (5) October–December, 1993–—4th quarter

These illustrate clearly that as far back as 1992, 1993 and the first quarter of 1994, the company failed to submit its returns. Upon reading the supposed status reports, we realized they were in fact not technical reports as required by law but rather description of visits of various consulting groups to the company’s concessions (a copy of the report is hereby attached).

Indeed our own visits to the area not only confirmed our suspicion that the company was not carrying out any meaningful exploration work but that the company had actually employed about fifty (50) people on the concession area who were literally engaged in “galamsey” activities, an act which is contrary to section 19 of the Minerals and Mining Law.

A letter from the Kumasi Traditional Council dated 10 January 1994 (a copy of which is attached) addressed to the managing director of the Tropical Minerals Company Ltd and copied to us, among others, supports our above findings. The company has had its licence renewed on two previous occasions and is a*ware that as a matter of policy and practice indentures are issued to companies whose licences have been renewed; the minister’s letter to that effect is conclusive evidence of the renewal.

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From the above, it stands clear that the company during the licence period did not carry out any meaningful exploration work on its concession and it would be a mismanagement of the country’s resources to permit the company to continue to encumber the licensed area when it is clear from their poor performance that they could not fulfil their obligations under the licence.

We therefore say that the commission is not in breach of any rule of natural justice or administrative procedure.”

From the above presentation, it is very clear the first defendant was merely giving the background information or reasons upon which they relied to advise the minister. By virtue of section 2 (2) (g) of the Minerals Commission Act, 1993 (Act 450), the Minerals Commission is enjoined to advise the minister on matters relating to minerals. And in respect of revocation of a minerals licence too, section 14 (2) of PNDCL 153 says the minister is to exercise this power on the advice of the Minerals Commission. My understanding of this is that the Minerals Commission should be able as a matter of duty, to gather sufficient, satisfactory and convincing materials to enable it advise the minister properly. So exhibit CHRAJ A was only restating the materials upon which the first defendant gave its advice on the revocation of the company’ s licence. This exhibit on the face of it was not even copied to the minister. The first defendant did not purport to hold any power of attorney to represent the minister in this matter. Nor did the first defendant ever hold itself out as speaking for and on behalf of the minister. There is nothing on the record to show the least inclination on the part of the minister that he was relying on whatever the appellant had said. Indeed he was not even notified of the pendency of the petition and so could not have even appointed anybody to represent him. The Commission for Human Rights and Administrative Justice (CHRAJ) itself, i.e. the plaintiff, in its ruling dated 9 March 1994 said that “in the course of its investigations, the commission invited comments from the respondents, the Minerals COommission and on 7 December 1994 the commission received the respondent’s comments dated 29 November 1994”, a clear admission that the minister was never invited for his comments as required by law. And by the various mineral legislations too, nowhere is it stated that the Minerals

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Commission acts for the minister or can act for the minister without the latter’s knowledge and consent or authorisation.

The trial judge failed to appreciate the advisory role assigned by law to the first defendant and to understand exhibit CHRAJ A in the light of this role. That led him to the rather erroneous conclusion that by this exhibit the first defendant was acting or speaking for the minister.

Another point which led the trial judge to that erroneous conclusion was the fact that he decided the petition was against the first defendant only. If so, why was the minister also a party before him? Did he find out why the minister was brought before that court if he was not a party to the matter before the plaintiff? By the clear provisions of section 14 (1) of Act 456 any authority or person concerned with a complaint or petition is to be notified for his comments. It must be noted that “an advice” means nothing more than an opinion or recommendation regarding a decision or course of conduct or action. Thus the minister is not bound by the advice of the Minerals Commission, the decision to grant or revoke a licence is entirely his to take under section 14 (2) of PNDCL 153 which states that:

“2 The Secretary shall on behalf of the Republic have power to negotiate, grant, revoke, suspend or renew any mineral right under this Law subject to a power of disallowance exercisable by the Council within thirty days of such grant, revocation, suspension, renewals. The powers of the Secretary under this subsection shall be exercised on the advice of the Minerals Commission.”

(The emphasis is mine.) This provision means the minister shall always seek advice from the first defendant before he takes a decision on whether to, inter alia, grant or revoke a licence. The decision is his. The fact that the appellant’s advice is not final, conclusive or binding on the minister is underscored by the fact that the minister’s decision can be dismissed by the government. Indeed, in an enactment, where a person is to seek the advice of somebody before taking a decision, that advice is not binding or conclusive unless the enactment clearly says so.

In my opinion, since it was the minister, and not the first defendant, who took the decision to revoke the company’s licence, albeit on the first defendant’s advice, any action to restore the licence must primarily be aimed or directed at the minister and not

[p.900] of [1997-1998] 2 GLR 890 the first defendant. The minister is not prohibited from conducting his own private inquiries in addition to the first defendant’s advice before deciding on any licence. Thus, the minister is a person concerned within the meaning of section 14 (1) of Act 456 in an action to restore a licence which he has revoked. He alone is responsible for any decision taken to revoke a licence and indeed he alone took the decision complained of and was thus the rightful person to be sued. It is absurd to sue the advisor asking him to give “proper” advice when the person advised has his decision still intact. Also, if the minister was not a party, then the plaintiff’s conclusion that the minister’s notice of cancellation was invalid would be illegal for it was not an issue before it, the only issue would then be that “the advice of the Minerals Commission was wrong” and no more.

Be that as it may, it is my firm opinion that the minister as a concerned person who also took the decision was entitled to be notified but he was not. In other words, as the person who has the ultimate statutory responsibility to revoke a licence and who did in fact revoke the company’s licence, the Minister of Mines is a person concerned within the meaning of section 14 (2) of Act 456 who must thus be notified in any petition or complaint relating to a revocation of a mining licence. Failure to notify him renders any decision taken which has the effect of restoring the revoked licence null and void. The subtle attempt to compel the minister to restore the licence by ordering the first defendant to advise him to do so is clearly wrong since the advice is not conclusive and/or binding on the minister. The plaintiff’s decision is thus invalid and this is a clear case of mistrial so the trial judge’s decision to enforce that decision is wrong. The additional ground of appeal filed on 16 December 1997 as well as ground (iii) of the original grounds of appeal which were taken together were allowed for these reasons.

Next is ground (i) which provides that the learned trial judge erred in law by holding that by virtue of section 9 of Act 456 the Commissioner on Human Rights and Administrative Justice could properly institute an action by originating summons under Order 54A of the High Court (Civil Procedure) Rules, 1954 (LN 1 40A) to enforce recommendations made by the commissioner under the said Act 456. The part of the decision complained of reads as follows:

[p.901] of [1997-1998] 2 GLR 890 “Section 9 of . . . Act 456 states as follows: ‘For the purpose of performing his functions under the Constitution, this Act and any other law, the commissioner may bring an action before any court in Ghana and may seek any remedy which may be available from that court.’ By this section the commissioner has the legal right to bring an action by a writ or in such other manner as may be prescribed by rules of court. [The conimmission has the legal right to bring an action by a writ or in such other manner as may be prescribed by rules of court]. The commission has the right under Order 54 A to bring this action by originating summons as originating summons, has advantages because there are no pleadings, no witnesses and evidence is given by affidavit.”

If the learned trial judge’s statement was merely expressing an opinion as to whether the commission could come to the court by the process of originating summons, that would not have caused this furore whereby both parties are dissatisfied with his decision, for it would surely have passed for an obiter Dictum. But the dissatisfaction stemmed from the fact that the trial judge concluded that the applicant came to the High Court by an originating summons. He said so at least twice in the judgment, so his reference to Order 54A of LN 140A quoted above must be understood in the sense that he was emphatic that the application before him was an originating summons. But this is clearly not borne out by the record; hence the appeal and cross-appeal by both parties on this same point.

I think the error came about as a result of the trial judge’s apparent confusion about the two originating processes, viz originating motion on notiQce and originating summons which he took to be one and the same. Both lawyers disagree with the learned trial judge and I think both lawyers are right, both on the facts and in law. On the facts the applicant went to the High Court by an originating motion on notice and not by an originating summons. In law too, they are not the same. I do not consider it necessary to go into their differences in this discussion. I think it is appropriate only to interpret all references in the judgment to originating summons to read originating motion on notice since the very first sentence in the judgment acknowledged that the application to the High Court was by originating motion on notice. No injustice will be caused to either party. Whatever error the trial

[p.902] of [1997-1998] 2 GLR 890 court made was not the result of this confusion between these two originating processes. Thus while the cross-appeal was allowed, the appellant’s ground of appeal is rejected.

The next ground of appeal argued was this:

“Having regard to the provisions of section 18 (2) of Act 456, which requires the Commissioner for Human Rights and Administrative Justice to bring an action before any court and seek such remedy as may be appropriate for the enforcement of the recommendations of the commission, the learned trial judge erred in law by permitting the commissioner to institute this action by way of an originating motion on notice which is not the proper procedure for enforcing the recommendations made by the commissioner.”

From the arguments presented, it appears that the main authority relied upon by the plaintiff in applying by the process of originating motion on notice is the High Court decision in People ‘’s Popular Party v The Attorney-General [1971] 1 GLR 138 at 145, which decided that when a statute provides for an application to the court without specifying the form in which it is to be made and the normal rules of court do not expressly provide for any special procedure, such an application may be made by an originating motion. Counsel for the plaintiff went to great lengths in making references to some recent High Court pronouncements all of which followed the reasoning in the People ‘’s Popular Party case (supra) in applications brought by the plaintiff in other cases where they sought to enforce their decisions.

Section 18 (2) of Act 456 provides that:

“If within three months after the report is made no action is taken which seems to the Commission to be adequate and appropriate, the Commissioner, may after considering the comments, if any, made by or on behalf of the department, authority or person against whom the complaint was made, bring an action before any court and seek such remedy as may be appropriate for the enforcement of the recommendations of the Commission.,”

Order 1, r 1 of 140A defines “Action” to mean “a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include criminal proceeding by the Crown” The “Crown” now refers to the Republic of Ghana. We

[p.903] of [1997-1998] 2 GLR 890 have had to have recourse to other sources for the meaning of “action” since Act 456 itself is silent on what it means. “Action” is a generic term, so if it is used in an enactment it must be construed according to its true legal meaning unless it is very clear from the plain language of the enactment that it is intended to bear a more restricted or narrow meaning in the light of the context in which it is used: In Hailsbury ‘’s Laws (3rd ed), Vol 1, para 1 it is defined to be:

“a proceeding by which one party seeks in a court of justice to enforce some right against, or restrain the commission of some wrong by, another party. More concisely it may be said to be ‘the legal demand of a right, ‘or the mode of pursuing a right to judgment.’ (a) It implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a court having power to enforce such a right.”

In this wide definition given it, it has been held in Re Fawsitt, Galland v Burton (1885) 30 ChD 231, CA at 233, per Cotton, ULJ that an originating summons is to be treated as a civil proceeding commenced otherwise than by writ. And in the Canadian case of Re Patterson (1928) 62 OLR 255, CA it was held that an originating notice is an action for the interpretation of the existing rules of court; these rules had a provision similar to Order 1, r 1 of LN 140A on the meaning of “action.” Thus nobody can begrudge the plaintiff if it resorts to an originating motion on notice in coming to the High Court. But section 18 (2) of Act 456 enjoins the plaintiff in coming to court to ensure that it seeks “such remedy as may be appropriate for the enforcement of the recommendations of the Commission.” In my view what it means is that the plaintiff should always select the form of originating process if it can be described as an “action” that will enable it to secure the particular remedy or order it needs from a court; it need, not always be by way of an originating motion on notice. I think it is the remedy sought which is the determining consideration for the form of action to be selected by the plaintiff.

Counsel for the, first defendant “submitted that in order to determine whether the action is to be commenced by a writ or in another manner prescribed by the rules, one must first examine the recommendation of CHRAJ sought to be enforced, and ascertain whether the rules of court have a procedure other than the writ,

[p.904] of [1997-1998] 2 GLR 890 which is appropriate for the enforcement of that recommendation that it is only if no such procedure is found, that resort can be had to the originating motion on notice.” It was counsel’s view that since the recommendation sought to be enforced is one that seeks to compel a public officer to do an act, “the prerogative writ of mandamus is the form of action employed to compel a public officer to do an act. Accordingly, the remedy which is appropriate for the enforcement of the recommendations made by the CHRAJ in this case, is an order of mandamus.” He cited in support the case of Aschkar v Karam [1972] 1 GLR 1, CA which states the principle that where a right is given and a specific procedure is prescribed by law for obtaining a remedy, it is that procedure alone that should be followed. It is counsel’s view that the appropriate remedy is an order of mandamus and as the rules of court make provision for seeking this order, recourse to the present originating process is a nullity and so is the judgment founded on it.

First, what remedy was sought from the High Court? This can be gathered. from the motion paper itself whereby the plaintiff sought an “order compelling the defendants herein jointly and severally to implement the decision of the plaintiff dated 9 March 1995 … That the petitioners’ licence should be renewed in the name of Tropical Minerals Co Ltd.” I think an action seeking such a remedy may even be begun by a writ, but generally that is a longer procedure. But that will be no good reason to argue that the process adopted is wrong. Where there is more than one originating process open to a party to seek redress in court, he may choose any one of them for that purpose with a proviso that he will be estopped from resorting to the other after judgment has been obtained in the earlier action. Thus the fact that they could apply by way of mandamus did not prevent the plaintiff from coming by the present process which is also effective to secure the same remedy. Be that as it may, there is no rule of law or procedure that if you seek an order compelling a public officer to do an act you must by all means come by way of the prerogative writ of mandamus. An ordinary writ would suffice. If it is to enforce an award for instance, a motion on notice would do. The only exception is where a specific process or procedure has been prescribed by a legislative provision in which case only that process or procedure must be followed or applied.

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But in this case the first defendant is also saying that both the first defendant and the second defendants had disputed the facts as found by the plaintiff. It is not in doubt that the minister was not invited by the applicant at all to take part in the proceedings. The various affidavits and exhibits, especially exhibit CHRAJ A support this view. Thus, when this. matter came to the attention of the High Court and they disputed some of the facts, the trial court should have investigated same. Thus the trial court was bound to consider the facts as presented by the defendants before it in the same way a court evaluates evidence before coming to a conclusion. It appears that this was not done. This court has the right to make its own inferences and evaluation of the available evidence. But is it necessary to do so? I think not. This is because the facts are not before the court since the minister’s version was not before the plaintiff which might have led them to a different conclusion if it were available to them. And also because of the principle that a court should not make futile orders.

I have already held that the proper person was not before the applicant; the proper person was not notified for his comments; that proper person being the Minister of Mines is the rightful person empowered by law to revoke a mining licence so any order made without an opporifitunity of hearing him is null and void. If the plaintiff’s recommendation and the High Court’s order against the minister is null and void then of course his advisor cannot be compelled to do anything. For the effect is that the revocation still stands so why only set aside the advice that led to it, it will be a futile decision.

Thus, whilst we allow the appeal and cross-appeal, the High court’s decision as well as the plaintiff’s recommendation are to be set aside and a fresh hearing is to be conducted by the plaintiff after the Minister of Mines has been duly notified. under the provisions of section 14 (1) of Act 456.

Sapong JA. I agree.

Essilfie-Bondzie JA. I also agree Appeal and cross-appeal allowed.

SA