In case you missed it- Having read the 59-paged judgment in full, here is a summary in simple terms:
Before delving into the merits of the case, the judge first dealt with an application by Chairman Wontumi’s lawyers asking the High Court to suspend delivery of the judgment and refer certain constitutional questions to the Supreme Court. They argued that the provisions of the Minerals and Mining Act under which Wontumi had been charged were vague and overly broad. The judge, however, refused the request, holding that there was no genuine constitutional issue requiring interpretation by the Supreme Court. According to the court, the law clearly defines the prohibited conduct and the applicable punishment. Any disagreement with Parliament’s legislative choices, the judge said, was a matter for an appeal and not a basis to halt the trial.
With that issue out of the way, the court proceeded to determine whether the prosecution had proved its case beyond reasonable doubt.
Under Section 14(1) and Section 99(2)(b) of the Minerals and Mining Act, 2006 (Act 703), as amended by the Minerals and Mining (Amendment) Act, 2019 (Act 995), it is an offence for the holder of a mining concession to transfer, assign or otherwise deal with that concession in favour of another person without first obtaining the prior written approval of the Minister for Lands and Natural Resources.
Chairman Wontumi denied ever granting Henry Okum (PW2) and Michael Gyadu Ayisi (PW1)permission to mine on Akonta Mining Company’s concession. His case was that he only permitted PW2 to undertake land reclamation by planting coconut seedlings on degraded portions of the concession and never authorised any mining activity.
The difficulty for the court, however, was that there was no written agreement or independent witness to establish exactly what arrangement had been reached between the parties. Faced with the absence of direct evidence, the judge relied on circumstantial evidence to determine what was most likely to have occurred.
In assessing the competing versions, the court found PW2’s account more probable than Wontumi’s. PW2 consistently maintained that he had been permitted to mine the unmined portions of the concession and use part of the proceeds from those mining activities to reclaim the already degraded sections.
Wontumi, on the other hand, testified that PW2 was expected to recover the cost of the reclamation from the future proceeds of mature coconut trees that would eventually be harvested. The judge found that explanation implausible and rejected it as an afterthought. The court reasoned that no reasonable person would undertake an expensive land reclamation exercise, without any payment, on the mere expectation of recovering the cost several years later after coconut trees had matured. The judge also found it difficult to accept that Wontumi would entrust such a costly exercise to someone he claimed was only a reclamation contractor without providing any funding or even monitoring the progress of the work.
The court also found it significant that PW2 was a licensed small-scale miner and not a land reclamation specialist. In the judge’s view, there was no convincing explanation why Wontumi would select a miner to undertake reclamation works if the intention was genuinely limited to restoring degraded land.
Throughout the trial, PW1 and PW2 consistently testified that they dealt directly with Wontumi himself and not with Akonta Mining Company Limited as a separate corporate entity. They maintained that every material decision relating to the concession came from him personally.
A major issue the court had to determine was whether Akonta Mining Company should be treated separately from Chairman Wontumi. Ordinarily, a company has a legal personality distinct from its shareholders and directors. However, after reviewing the evidence, the judge held that this was one of the exceptional cases where it was proper to pierce the corporate veil.
The court found that Wontumi was the controlling mind behind Akonta Mining, that there was no functioning board of directors, little or no evidence of proper corporate governance, and that virtually every important decision concerning the concession was taken by him personally. In those circumstances, the judge held that Wontumi and Akonta Mining could not realistically be separated for purposes of criminal responsibility.
Another important argument raised by Wontumi’s lawyers was that even if there had been an assignment of the mining rights, it was never reduced into writing. They contended that without a written instrument there could be no valid assignment under the law, and therefore no criminal liability.
The court rejected that submission. The judge observed from the evidence that Wontumi habitually conducted the affairs of Akonta Mining informally and without documentation. In fact, the court described the absence of documentation as a recurring feature of his dealings. The judge therefore held that Wontumi could not rely on his own failure to document transactions as a shield against criminal liability. In the court’s view, accepting that argument would enable persons to evade the law simply by deliberately avoiding written records.
Having weighed the totality of the evidence, the court concluded that Wontumi’s explanation that PW2 was engaged solely for land reclamation did not raise any reasonable doubt. Instead, the court found that he had permitted and facilitated PW1 and PW2 to undertake mining activities on Akonta Mining’s concession without first obtaining the mandatory written approval of the Minister for Lands and Natural Resources. In doing so, he unlawfully dealt with the mineral rights granted exclusively to Akonta Mining and also purposely facilitated an unlicensed mining operation contrary to the Minerals and Mining Act.
In sentencing, the judge acknowledged that Wontumi was a first-time offender. However, the court also considered the alarming prevalence of illegal mining in Ghana and stressed the need for a sentence that would send a strong message of deterrence to others engaged in similar conduct.
Consequently, the court sentenced Wontumi to 20 years’ imprisonment with hard labour on Counts One and Four, while imposing statutory fines on the remaining counts. The custodial sentences are to run concurrently, meaning he will serve both at the same time rather than consecutively.
Finally, the court ordered that all gold, money, equipment and every other item seized during the anti-galamsey operation on Akonta Mining’s concession be forfeited to the Republic. The judge further directed that the Minister for Lands and Natural Resources should deal with the forfeited property in accordance with the provisions of the Minerals and Mining Act.
By: Evans Osei-Bonsu
Broadcast Journalist – Angel Broadcasting Network.
(BL Candidate- Ghana School of Law).
