Why Wontumi's Submission of no case was rejected in illegal mining case-Full Reasoning

The High Court has ruled that Bernard Antwi Boasiako and Akonta Mining must open their defence after finding that the prosecution had established a prima facie case on all the charges before the court.

In a 31-page ruling, the court presided over by H/L Audrey Kocuvie-Tay held that the prosecution’s evidence, if left unanswered, was sufficient to support the allegations against the two accused persons. 

Thereby rejecting the submission that no case had been made out and calling on both accused to elect whether to remain silent, testify on oath, or make an unsworn statement.

Possession of Mineral Right

At the core of the court’s reasoning was its finding that Akonta Mining held the mineral right in issue. The court relied on a mining lease tendered as Exhibit G, issued on July 23, 2021 for a 10-year term, which named Akonta Mining as the holder of the concession. With no objection raised to the form or content of that lease, the court said that element had been clearly established.

Dealing with the mineral right

The court then turned to whether the mineral rights had been dealt with in a manner prohibited by law. It interpreted the Minerals and Mining framework, together with the terms of the mining lease, as forbidding a licence holder from transferring, assigning, mortgaging, encumbering, or otherwise dealing with a mineral right in a way inconsistent with the lease without prior written ministerial approval. On the evidence before it, the court found there was sufficient material showing that Bernard Antwi Boasiako had permitted another person to enter the concession. 

The judge attached weight to Boasiako’s own police caution statement, in which he admitted allowing Henry Okum onto the land for reclamation purposes. The court said there was no evidence that he later objected to the activities carried out on the concession or made any serious inquiry into what was being done there. On that basis, the judge held that there was enough evidence, unless later explained away, to conclude that Boasiako, and by extension Akonta Mining, permitted mining activity on the concession.

Absence of Ministerial Approval

A major plank of the ruling was the absence of ministerial approval. The court accepted the evidence of PW4, a manager at the Minerals Commission, who testified that Akonta Mining had not obtained ministerial approval to allow the second prosecution witness or any other person to enter the concession to mine or undertake reclamation. 

That testimony was not shaken in cross-examination. PW4 further explained that under section 14 of the Minerals and Mining Act, any assignment of a mineral right requires an application, review by the Commission, and ministerial approval. According to the Commission’s records, no such application had been filed either by Henry Okum or by Akonta Mining. The court therefore held that there was enough evidence to support the allegation that the required approval had not been obtained before access to the concession was granted.

Presence of a Contravening Act

The court also found evidence of a contravening act. It reasoned that once the accused persons allowed PW1 and PW2 onto the concession to conduct mining operations and undertake reclamation without ministerial approval, their conduct amounted to a breach of section 14(1) and section 99(2)(b) of the Minerals and Mining Act. 

In addition, the court held that the reclamation activities themselves engaged section 59 of Act 703 because mine support service providers are required to be registered and licensed or granted a concession by the Minerals Commission. The evidence on record, according to the court, showed that PW1 had not registered or obtained the necessary licence or concession to provide reclamation services, yet was permitted onto Akonta Mining’s concession for that purpose.

Lack of Specific Penalty

On the issue of penalty, which the court said was relevant to counts 4, 5 and 6 concerning purposely abetting an unlicensed mining activity, the judge held that this element too had been satisfied. The court reasoned that although section 59 of Act 703 requires registration or licensing for mine support services, it does not prescribe a specific penalty for failure to comply before providing such services to a mineral right holder. That absence of a specific penalty, in the court’s view, brought the conduct within the ambit of section 99(2)(b) as amended.

Abetment of the Accused Person

The court further held that there was enough evidence of abetment. Since the accused persons had allowed or permitted PW1 and PW2 onto the concession to carry out mining and reclamation without the required licences or approvals, the judge said their conduct amounted to abetting the contravention of section 59. The ruling emphasized that by permitting PW1, who in turn engaged PW2 to carry out reclamation in Akonta Mining’s concession, the accused persons facilitated the unlawful conduct.

Presence of purpose

On the question of intent or purpose, the court again relied heavily on Boasiako’s caution statement. The judge cited evidence suggesting that machinery used for the work, including bulldozers, had been arranged with Boasiako’s knowledge and involvement. Because that testimony was not disturbed, the court held that it supported a finding of purposefulness in the way the activities were facilitated.

After reviewing the charges, the facts, the prosecution’s witness testimony, and the submissions of both defence and prosecution counsel, the court concluded that there was a rebuttable presumption that Bernard Antwi Boasiako and Akonta Mining had committed the offences charged. Put differently, the judge held that the prosecution had made out a prima facie case strong enough to require an answer.

Background

Chairman Wontumi and Akonta Mining Company Limited have been charged with six counts for allegedly allowing Henry Okum and Michael Gyedu Ayisi to carry out mining activities on the company’s concession without first securing the required approval from the sector minister. They also face allegations of aiding unlawful mining operations.