Certainly, you would recall we told you last year, around May, about a crucial court case between a large-scale miner, Earl International Group (Ghana) Gold Limited, and a small-scale miner, Yenyeya Mining Group, at the Court of Appeal in Tamale, Northern Region.
These two parties are based in Talensi, a disadvantaged district in Upper East Region, where gold abounds but many individuals and households struggle to meet their basic needs, and they used to be intimate business partners.
But why are they at war in court today? And how did they end up in Tamale, still fighting?
Justice Charles Wilson Adjei had issued a ruling at the High Court ‘1’ in Bolgatanga, capital of Upper East Region, on Wednesday, 20 September 2023, in favour of Yenyeya Mining Group.
Unsatisfied with that ruling, Chinese-owned Earl International Group (Ghana) Gold Limited, formerly Shaanxi Mining Ghana Limited, went to Tamale, on Thursday, 11 November 2023, seeking to overturn it.
But that appeal was pronounced dead on arrival because the appellant (the Chinese company) did not follow due process in filing it.
On Tuesday, 21 May 2024, all three justices of the court of appeal—Justice Georgina Mensah-Datsa, Justice Eric Baah and Justice Patrick Kwamina Baiden— struck it out accordingly. The justices also awarded a cost of Gh¢5,000 ($322.37) against the company.
Still determined to overturn that high court ruling, the company filed the appeal afresh, following due process this time around.
Reasons for the appeal
The company’s lawyer, Joseph Awakpaksa, stated three reasons for which the ruling should be quashed.
He said the ruling was not supported by any credible evidence.
Secondly, the high court judge, according to him, made a mistake by recognising the respondent (Yenyeya Mining Group) as having the legal right to sue or be sued while it was not duly registered as a business entity.
And finally, he stated that the judge also got it wrong by discussing the merits of the case in his ruling— in other words, the judge, according to him, talked about some important facts of the case in a manner that could affect or influence his judgement.
The court of appeal invited the two parties through a hearing notice dated Tuesday, 16 July 2024. After hearing from Awakpaksa and the counsel for Yenyeya Mining Group, Juliet Dale Agboh, the court of appeal passed judgment on Thursday, 27 February 2025. That was just last week.
Nobody knew the minds of the three justices before the judgment was virtually read from Kumasi, capital of the Ashanti region. Charles Taleog Ndanbon, the managing director of Yenyeya Mining Group, was anxious before the judgment day. So were the officials of the Chinese company.
The trio— Justice Georgina Mensah-Datsa, Justice Patrick Kwamina Baiden and Justice Richard Mac Kogyapwah— unanimously dismissed the appeal.
It is important to tell you why the appeal was dismissed. But let us first look into the reason Yenyeya Mining Group took the Chinese company to the high court in Bolgatanga. Then, we will return to the court of appeal shortly to tell you why the appeal was thrown out.
From agreement to disagreement
Ndanbon, a native of Nabdam District in the Upper East region, travelled to China in 2008 in search for a company to offer his firm, Yenyeya Mining Group, technical support services on his 25-acre goldfield at Gban, a suburb of Talensi.
His efforts led the Chinese government to set up a company from Shaanxi, a province in Northwestern China, to invest and operate in Ghana under the name Shaanxi Mining Ghana Limited.
After Shaanxi arrived in Talensi in 2008, one Alhaji Awudu Nab, a native of Gban and a friend to Ndanbon, entered into a similar agreement with the company.
Just like Ndanbon, Nab, who is now deceased, had his own 25-acre concession at Gban, named Pubortaaba Mining Group. So, Shaanxi was engaged as a technical support service provider to the two small-scale miners on 50 acres of gold-bearing land combined.
About ten years later, the Chinese company and its chief executive officer (CEO), Wei Xing, acquired a licence from Ghana’s Minerals Commission to run a large-scale mining business in Talensi. They excluded the two local hosts, Yenyeya and Pubortaaba, from the large-scale business plan.
The Chinese company also acquired an area of 16.02km² (about 4,000 standard soccer fields put together) for the large-scale mining operations.
That swathe of land captures the concessions of Yenyeya and Pubortaaba as well as the concessions of several other indigenous small-scale mining groups, many of whom had been licensed by the Minerals Commission to operate.
The development drew protests from Ndanbon and Nab, who said the company and the CEO had breached the agreement executed on Wednesday, 24 September 2008. That agreement was titled “Contract Mining and Management Agreement.”
Agreement reviewed after protests
The protests prompted the parties to revise the agreement on Saturday, 30 September 2017, at the Talensi District Assembly.
The revised contract, also referred to an addendum by the parties, made it clear that the two small-scale miners would continue to own their concessions although the concessions were within the 16.02km² acquired by the foreign company.
It was also part of the reviewed agreement that the two small-scale mining groups would be entitled to some percentages from the proceeds of the company’s large-scale operations.
But subsequently, Yenyeya and Pubortaaba received a memo from Xing, dated 19th February 2018, informing them that a sister company named Shaanxi Mining Mineral Processing Company Limited had obtained a prospecting licence and that the sister company had been renamed Earl International Group (Ghana) Gold Limited.
The memo further stated that the company now owned all the assets and infrastructure that previously belonged to Yenyeya and Shaanxi.
The CEO concluded by saying the company would soon launch its large-scale mining operations in the district.
The note unsettled Ndanbon because nowhere in the agreement was it stated that his assets should be taken over by the Chinese firm.
Nine days later, he and Nab forwarded a joint reply letter to Xing, telling him they would not agree to any new terms apart from the conditions all parties endorsed in 2017 at the district assembly.
Ndanbon further sought to resolve the dispute with the company and the CEO, but his efforts yielded no results.
Later, he publicly complained that he tried to enter the company’s yard but the security officers forbade him at the gate, telling him the CEO had instructed them to no longer let him in.
Legal action at high court
Ndanbon spent several sleepless nights lying on his back, waggling his feet angrily and gazing upwards in silence at the ceiling from his bed.
He was not really looking at the ceiling. He was looking back on his investment trip to China in regret: when he met Shaanxi; when Shaanxi had not heard or dreamt about any place called Talensi; when he led Shaanxi to Gban; when the parties signed the agreement in Africa; and how his Asian guest had turned into a landlord overnight, taken over his abode and served him with an eviction notice.
On Thursday, 18 May 2023, Ndanbon headed to the High Court ‘1’ in Bolgatanga with venom and sued the Chinese company for breach of contract. He added the CEO to the suit as the second defendant.
Basically, Ndanbon’s action was to challenge the invasion of his concession and to compel Earl International Group (Ghana) Gold Limited to stick to the agreement Yenyeya Mining Group signed with Shaanxi Mining Ghana Limited.
He asked that the court place a temporary injunction on the company, preventing it from operating on his concession until the court reached its final decision on the case. And he sought an order appointing an independent expert to audit the operations of the Chinese company on his concession from September, 2021, till date.
The Chinese company responded to the suit through its lawyer (Awakpaksa) on Friday, 9 June 2023. The lawyer argued that Yenyeya Mining Group had no capacity to take that legal action because it entered into an agreement with Shaanxi Mining Ghana Limited and not Earl International Group (Ghana) Gold Limited.
The lawyer also claimed Yenyeya Mining Group was not legally registered and, on that basis, could not sue nor be sued. And he further requested that the high court dismiss the case for the reasons mentioned in the company’s response.
The high court ruling
Justice Wilson did not grant Yenyeya Mining Group the interim injunction it sought against the Chinese company.
But his ruling on the capacity issue raised by the foreign company favoured the small-scale miner.
He made it clear in that ruling that the transformation of the Chinese company from a technical support service provider into a large-scale mining company could not affect the agreement signed and approved by the parties in the past.
The judge stressed that when Shaanxi Mining Ghana Limited transferred all its assets and interests to Earl International Group (Ghana) Gold Limited, it also transferred all its liabilities to its successor all together. The liabilities included the agreement it executed with Yenyeya Mining Group in 2008.
The judge described the application filed by Earl International Group (Ghana) Gold Limited— asking the court to reject Yenyeya Mining Group’s writ of summons and statement of claim— as “an academic exercise” and dismissed the application.
We told you earlier that the judge also awarded a cost of Gh¢5,000 against the company. After awarding that cost, he concluded by ordering the company to file its defence in ten days.
But the company did not file its defence as directed. It instead applied for a stay of execution— to freeze the high court order— and, then, filed an appeal in Tamale against the ruling.
Why appeal was dismissed
Let us return now to the court of appeal, where this report began, to know why the action initiated by the Chinese company failed.
There was one emphasis the three justices laid in their judgment. They stressed that, since the action before them was an interlocutory appeal, they had cautioned themselves to desist from expressing an opinion or make a pronouncement on the merits or important facts of the case.
They said doing so could tend to prejudge the matter or influence the respective cases of the parties involved. An interlocutory appeal is an appeal issued or made during the course of litigation or when the main case, from which the appeal has emerged, is still in progress.
The first ground of appeal the justices dealt with was the claim made by the counsel for the Chinese company that the ruling issued by the high court was not supported by any credible evidence.
The justices said they had carefully studied the ruling with the evidence made available before the high court and came to the conclusion that the ruling was supported by credible evidence.
“As a result, this ground of appeal fails and is dismissed,” they stated.
Hearing the justices’ pronouncement on the first ground of appeal, the Yenyeya side felt at ease, like a football team taking an early lead in a crucial, tense match.
Then, the justices moved on to the second ground of appeal. The second ground of appeal was the claim that the high court judge erred in law by recognising Yenyeya Mining Group as having the legal right to sue or be sued while it had not been duly registered as a business entity.
In clearer terms, the counsel for the Chinese company argued that although Yenyeya Mining Group may have a mining licence, it had not registered its name with the Registrar-General’s Department, and until that was done it had no capacity or legal right to take anyone to court.
The counsel for Yenyeya Mining Group had countered that claim. She submitted that the group was duly registered with the Minerals Commission and granted its first licence in 2007. She added that the licence was renewed in 2015 and the group had applied for further renewal, pending approval.
She maintained that the Yenyeya Mining Group had the capacity to sue based on the fact that it was duly registered with the Minerals Commission and based on the binding contract it executed with the Chinese company in 2008.
Why appeal was dismissed (cont’d)
In their verdict on the just-argued ground of appeal, the justices said the peculiar facts and circumstances of the case demanded that oral evidence be taken (at the high court) to clarify the issue of Yenyeya Mining Group’s capacity to sue.
They maintained that it was only after such evidence had been presented and assessed the court could determine whether or not Yenyeya Mining Group had the capacity to sue the Chinese company. The justices did not say anything further on this to avoid going into the merits of the case since they were dealing with an interlocutory appeal.
“Based on our analysis,” they further declared, “this ground of appeal fails and is dismissed.”
That declaration boosted the hopes of the respondent’s side, with just one more to go. But the feeling was in reverse order on the appellants’ side.
The third and last ground of appeal was the claim that the high court judge also got it wrong in law in his ruling by veering into the merits of the case.
The lawyer for the Chinese company said the judge was only expected to determine whether or not Yenyeya Mining Group was a legal entity but he (the high court judge) went beyond that by stating that Yenyeya had the right to sue the company since Earl had taken over Shaanxi’s assets and liabilities.
He also stated that challenging Yenyeya’s capacity was not “an academic exercise” and wondered why the high court dismissed the application without stating whether Yenyeya was a legal entity or not. Yenyeya’s lawyer did not make any submission on this ground of appeal.
Passing their verdict on this, the justices said the ruling from the high court showed that the judge dealt with the issue of capacity raised by Earl International Group (Ghana) Gold Limited and took a decision on the interlocutory injunction application filed by Yenyeya Mining Group.
They noted that it was when he was taking decisions on the applications from the two sides he discussed what the Chinese company described as the “merits” of the case.
They said, since it was an interlocutory appeal, they had decided not to comment on the reasons that informed the high court’s ruling.
They remarked that any further comment might influence the determination of the matter at the high court.
“We have considered this ground of appeal and it fails,” they said.
“The appeal is dismissed. We order that the suit should take its normal course.”
The court of appeal did not award any costs against the Chinese company. It said the decision was due to “the peculiar circumstances” of the case.
But it was all joy for Yenyeya Mining Group. While the group jubilated deep into the warm night, the opponents were concerned about how to file their defence in 10 days for the full trial in Bolgatanga.
They will not face Justice Wilson again. He no longer presides over that court.
They will appear before a new judge— Justice Charles Gyemfi.
Source: Edward Adeti/Media Without Borders/mwbonline.org/Ghana
