#conqueringthelawtogether ( Divine Salu)

NATURAL RESOURCES LAW CASE BRIEFS

1. Adjaye and Others v Attorney General and Others

Facts of the case:

The plaintiffs are ordinary citizens of Ghana. The government of Ghana at the time of the suit purported to transfer
25% out of the 55% shares she had in Ashanti Gold field to the Lonhro.  The plaintiffs contended that the
government has been holding the shares in trust for the people of Ghana. They further contend that the decision to
sell 25% of the shares to Lonhro constitutes a grave breach of trust which will injure the interests of the
beneficiaries who are the people of Ghana including the plaintiffs.
 
Procedure:
The plaintiffs issued a writ of summons as follows:
A declaration that the decision by the Government of the Republic of Ghana which holds 55% shares in Ashanti
Goldfields Corporation in Trust for all the citizens of Ghana by its decision to sell 25% of its shares in the Ashanti
Goldfields Corporation to Lonhro constitutes a breach of trust.

Issue:
Whether or not there is an enforceable trust relationship between the plaintiffs and the government by virtue of the
acquisition of shares in Ashanti Goldfields Corporation by the government?
Holding:
The court in dismissing the suit held that the decision by government to sell shares was not a breach of trust since
there is no equitable trust relationship between the government and the people of Ghana.  The Court referred to the
case of Tito v Waddell and others and held that the use of the word “trust” did not create a true trust enforceable
by the courts (a trust in the lower sense) but might create a “trust in the higher sense” which is no more
than governmental obligation not enforceable in the Courts. Therefore, if a trust relates to governmental
obligations relating to duties and functions of government, that trust relationship would be unenforceable.
 
Reasons:
A plaintiff cannot base his claim simply on the existence of trust relationship. He must show further that it is
enforceable. It has been made clear that if the trust amounts to mere governmental obligation relating to duties and
functions of government, that trust relationship would be unenforceable.  Thus although there is no doubt that a
form of trust relationship exists between the government and the people of Ghana, that relationship is not
enforceable in our courts. It is “true” in the higher sense which is no more than governmental obligation which is
not justiciable
 
2. Tito v Waddell (No 2) [1977] Ch 106

Facts:
In the year 1900, phosphate was discovered on an island known as Banaba and its inhabitants were called
Banabans. In the same year, the island became a British Settlement. In 1900 and 1901, the Crown granted to a
British Company exclusive licenses to occupy the island and mine the phosphate. In 1902, those were superseded
by the third and last license, granted to a subsidiary of the company for a term of 99 years from January 1902 and
providing for certain payments to be made to the Crown.  From 1907, onwards the payments were to be a royalty
of 6d per ton on all phosphates exported and in 1909 that royalty was made payable to the Government of the
Gilbert and Ellice Islands Protectorate by which the island was administered. In 1916, the protectorate became the
G and E Islands colony and Ocean Island became part of it. English law was applicable to the island apart from
any relevant customary law. The colony had a resident commissioner who administered it under the High
commissioner for the Western Pacific.

Procedure:
The plaintiffs were a Banaban Landowner and the Council of leaders, a Banaban Body that had been incorporated
by a Fiji Ordinance which provided for all royalties accruing to the Banaban community to be paid into a fund
under the Council’s control. The plaintiffs claimed that the rates of royalty payable under the 1931 and 1947
transactions had been less than the proper rates, and that in relation to those transactions the Crown had been
subject to a trust or fiduciary duty for the benefits of the plaintiffs or their predecessors. The Crown was therefore
liable to the plaintiffs to make up the amounts actually paid by way of royalty to the amounts that ought to have
been paid.

Holding:
1. The use of the term “trust” in relation to the Crown did not necessarily create a true trust, enforceable by
the courts ( a trust in the lower sense) but might create a trust in the higher sense” or governmental
obligation, not enforceable  in the courts, that it was a question of construction whether in all the
circumstances a true trust had been created, one material factor being whether the person is required to hold
in trust was described in his personal or in his official capacity; and that as there was nothing in the
Ordinances or in the various instruments or other documents which sufficed to show that the Crown had
undertaken any enforceable trust or fiduciary obligation such as was alleged, none had been created.
 
2. That neither the statutory duty under the Ordinance of 1928 to fix a royalty and hold it in trust nor any
statutory duties imposed by the Ordinance of 1937 sufficed to impose on the Crown any enforceable
statutory obligation of a fiduciary nature; and that the principle that he Crown was one and indivisible did
not make the Government of the United Kingdom liable for any equitable obligation of the Government of
the Gillbert and Ellice Islands Colony.
 
Reason:
The use of the phrase such as “in trust for” even in a formal document such as a Royal Warrant does not
necessarily create a trust enforceable by the courts.  The phrase “trust in the higher sense” as used by Lord
Selborne is used to express governmental obligation. The Banaban Fund was a fund which was subject not to any
trust but to a trust “in the higher sense” or a governmental obligation to use it for the general benefit of the
Banaban community. More so, there is nothing to show that the Crown deliberately chose to act as a trustee.  The
transaction did not place the Crown in a fiduciary relationship towards the Banabans.

 
3. The Republic v High Court, General Jurisdiction (6) Accra; Ex Parte Attorney General (Exton
Cubic; interested party) [2019]
 
Facts: Exton Cubic limited (interested party) on the 26th of October 2016, applied for Mining Leases in respect of
three areas in the Ashanti region. The three leases constituted
approximately 79% of the nation’s known bauxite resources. The Mining Leases were offered to Exton Cubic by
the Minerals Commission, who then proceeded to pay for and commence proceedings towards the acquisition of
the leases. It was contended that the processes filed in this application where contrary to section 12 and 13 of
the Minerals andMining Act, Act 703, Minerals and Mining Regulations, 2012, LI 2176 and Article 268 of the
1992 Constitution. It was on these grounds that the Minister in a letter revoked the three leases. In a ruling by the
High Court, the Minister’s letter revoking the Mining Leases was held to be unlawful and thus quashed by an order
of certiorari. The instant case is thus an application to quash the ruling of the court in respect of the ruling by His
Lordship Ackaah-Boafo, J by an order of certiorari.
Issues:
(a) Whether or not the High Court in the application before it did enforce a non-existent right?
(b) Whether or not there had been an error of law patent on the face of the record in the proceedings so as to render
the entire judgement void.
Holding: It was held that the interested party had no mining right that was enforceable. The High Court was right
on its ruling in this regard; however, it was wrong for it to havepurported to protect the very non-existent right, and
thus committed an error of law patent on the record which was very fundamental in quashing the letter by the
Ministerrevoking the three leases. The ruling of 8th February 2018 by the High Court was therefore quashed.
Ratio: Per the provision of Article 257(6) of the 1992 Constitution, every mineral found in Ghana is for the
Republic as a whole and held in trust by the President for the people of Ghana, whose representatives are in
Parliament. Thus, the provision of Article 268, which requires that mining leases be subject to Parliamentary
ratification is premise on the wisdom of article 257(6), and seeks to provide the people of Ghana, who are
the owners of the minerals found in Ghana, with a voice through their representatives in Parliament on any
contract or undertaking that involved the grant of any such mineral. The Minister for Land and Natural Resources,
acting on behalf of the President, thus also acts as a trustee of the mineral and whose acts are thus subject to article
268.Without Parliament ratification therefore, any mineral lease granted by the Executive arm of Government
would be invalid. This requirement is also repeated in the Minerals and Mining Act, Act 703. The lease
agreement also bore a semblance of the above requirement, and at the time of the case there had been no evidence
that a certified copy of the Mining Lease Agreement had been submitted to the Minister to be laid in Parliament – a
clear violation.

4. X-tra Gold Mining Ltd v Attorney- General (2016)

Facts: The facts refer to a law that was passed by the Parliament of Ghana in 2009 in relation to the Fees and
Charges (Miscellaneous Provisions) Act, 2009 (Act 793). Under the Act, the plaintiff was charged rent for five
mining leases calculated under the revised annual ground rent payable by holders of mineral rights/mining
concessions granted over stool lands by the Government. The plaintiff refused to pay the amounts claimed on the
grounds that the Minister of Finance did not have the authority to amend the legislation.
Issues
The parties agreed on six issues for the court’s determination. The first two were expressed in the alternative. The
issues will be discussed seriatim.
Issue 1. Whether or not the Office of the Administrator of Stool Lands has authority and power under Article
267(2) of the 1992 Constitution to prescribe annual ground rent payable by holders of mineral rights granted over
stool lands by the Minister for Lands and Natural Resources pursuant to the Minerals and Mining Act, 2006 (Act
703).
Issue 2. Whether or not the Administrator of Stool Lands, being a head of department, can participate in the
mandatory review exercise under Regulation 20 of the FinancialAdministration Regulations, 2004 (L. I.
1802) and, if so, whether such participation amounts to prescribing annual ground rent payable by mineral right
holders and contravenes Article 267(2) of the 1992 Constitution.
Issue 3. Whether or not the grant of power and authority by Parliament to the Minister for Finance under sections
2(1) and (2) of the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793) to amend the Schedule to
the Act is inconsistent with or in contravention of articles 1(2), 11(2), 93(2) and 267(3) of the 1992
Constitution and section 23 of the Minerals and Mining Act, 2006 (Act 793).

Issue 4. Whether or not all the three Fees and Charges Instruments made by the Minister for Finance pursuant to
authority conferred under Act 793, namely L.I. 2191 of 2012, L.I. 2206 of 2013 and L.I. 2216 of 2014, are
inconsistent with and in contravention of Articles 1(2), 11(1), 93(2) and 267(3) of the 1992 Constitution as well
as section 23 of the Minerals and Mining Act, 2006 (Act 703).
Issue 5. Whether or not the power conferred on the Minister for Lands and Natural Resources under section 110(1)
of the Minerals and Mining Act, 2006 (Act 703) has been transferred to the Minister of Finance under the Fees and
Charges (Miscellaneous Provisions) Act, 2009 (Act 793).
Issue 6. Whether or not the failure or omission by the Minister for Lands and Natural Resources to exercise the
discretionary power and authority conferred upon him under sections 23 and 110(1) of the Minerals and Mining
Act, 2006 (Act 703) to prescribe annual ground rent payable by holders of mineral rights granted by Government
over stool lands is conduct which violates Articles 23 and 296(c) of the 1992 Constitution.
Holdings

1. The court in its analysis held that the facts did not support the assertion by the plaintiff that the

Administrator had in fact exceeded his statutory functions in fixing the rates payable by holders of mineral
rights created over stool lands. The Administrator’s actual role per the facts of the case was to write to
demand payments in accordance with the rates determined by the Minister of Finance.

2. Participation of the Administrator of Stool lands in recommending a downward adjustment of the

2012 ratewas a function of his advisory role to the Minister of Finance. As such, the Administrator did not
act in contravention of Article 267(2) of the Constitution by participating in the fee-fixing review process.

3. The court held that a Schedule formed part of an Act, as it was an “…extension of the section which
induces it…” and thus integral. An Act of Parliament may not be amended by a subordinate legislation.
This is not an invariable rule when it comes to the Schedule to an Act. It is possible for the parent Act to
entrust the responsibility of revising the forms or fixing the fees to a body or person outside Parliament.
Whether a Schedule to an Act may be amended by subsidiary legislation depends on the subject of the
legislation and whether the power to amend has been expressly given by Parliament not being inconsistent
with the legislative function conferred upon it by article 93(2) of the 1992 Constitution. 

4. The Minister responsible for Finance is to amend the Schedule when it fixes the fees and charges in
respect of the various enactments listed in the first column of the Schedule through its delegated power of
passing subsidiary legislation. The Minister has no power under Act 793 to add to the list. Hence his
inclusion of the Office of the Administrator of Stool Lands Act, (Act 481) was a clear breach of Article
93(2) of the Constitution.  

5. The court held that there has been no such transfer of power. A transfer of the power conferred on the
Minister of Mines under section 110(1) of Act 703 could only be accomplished through an amendment,
 express or implied. As such, there is nothing in Act 793 which is indicative of a re-enactment of section
110(1) of Act 703.

6. The Minister was empowered in terms of the Act and thus ordered to fix the fees and charges under the
Act. The minister of Lands was incorrectly cited.
 
5. JOHN NEBUGRE V AND ATTORNEY GENERAL [2016] & ORS (AKER ASA
& CHEMU POWER COMPANY LTD
 
Facts: The Government of Ghana entered into a petroleum exploration agreement with Aker ASA, a Norwegian
oil company and Chemu Power, a local company in accordance with Article 286 (1) of the 1992 constitution. The
agreement involved payment of USD29M by GNPC to AKER for the provision of seismic data operation. The
agreement was subjected to ratification by Parliament in line with Articles 269 and 268 (1) 1992 constitution.
GNPC however, advised the Minister to terminate the agreement as it was inconsistent with the requirements of
PNDCL 84 1984. As such, the government took steps to terminate without recourse to Parliament. The Plaintiff
contends that the termination procedure was unlawful as it precluded Parliament and therefore must be declared as
null and void.
 
Issues: 1. Whether or not the agreement between Government of Ghana and AKER ASA contravenes PNDCL 84?
2. Whether or not by Parliament ratification termination ought to have been done by parliament’s approval?
3. Whether or not Parliament’s payment of USD29M to Aker upon termination was lawful after same government
declared agreement as illegal?
Holdings:
1. The agreement between Government of Ghana and AKER ASA was in contravention of section 23 (15) PNDCL
2. The principle of Parliamentary ratification prior to the execution of an agreement (ratification) does not apply in
the case of termination
3. The USD29M being neither compensation not penalty was made outside the contract and not as a result of it. 
Ratio: AKER ASA needed a local subsidiary as a co-signatory in their agreement per the Company Code, 1963
(Act 179) which requires that an agreement of this nature must be entered into with a company with local presence
in Ghana. At the time of the execution of the agreement on 24th October 2008, AKER ASA had no such
representation in the country. Aker Ghana, the subsidiary of AKER ASA was incorporated on the 29th October
2008.
Parliament’s ratification and subsequent agreement between Government of Ghana and AKER ASA was
inconsistent with the requirements of PNDCL 23(13) PNDCL 84 as they failed to ensure the presence of a local
subsidiary in place according to the law. The contract once ratified becomes an executive act from which
Parliament thereafter is precluded from interference. Issues of variation and termination amount to unilateral
decision of executive to alter or curtail. The USD29M was paid as consideration to obtain seismic data and will
affect justice

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