Claims by Frimpong-Boateng against Gabby Otchere-Darko untrue and slanted, says witness

Philip Edem Kutsienyo, the plaintiff’s first witness in the defamation suit filed by the senior partner and co-founder of Africa Legal Associates, Gabby Asare Otchere-Darko (plaintiff), against the former minister of environment, science, technology and innovation Professor Kwabena Frimpong-Boateng (the defendant) over what Otchere-Darko says are defamatory words the professor wrote against his person, has been testifying in court.

Kutsienyo stated in open court, during cross-examination on 28 February 2024 by Agbesi Dzakpasu, the lawyer for the defendant, that the defendant in his leaked report and subsequent media interviews put a slant on the telephone conversation he had with Otchere-Darko when he called him to inquire about the challenges Otchere-Darko’s client Heritage Imperial Mining Company Ltd was having in carrying out prospecting activities on its concession in the Apamprama Forest, and further indicated in his witness statement that Professor Frimpong-Boateng’s claims are untrue.

Witness statement

“On 10/12/2019, ALA agreed to offer its services to Heritage, and ALA was accordingly engaged, inter alia, as external Solicitors for Heritage. Indeed, in my very first meeting with the client, I was informed that a supposed task force of the IMCIM [the Inter-Ministerial Committee on Illegal Mining], on or around 07/12/2018, raided the concession of Heritage and made away with several equipment and some cash.

“I advised that, as a matter of urgency, we ought to issue a writ and apply for an order for the preservation of the equipment and an interlocutory injunction against further trespass and invasions by the IMCIM. I was then informed that Heritage had already instructed a lawyer in Kumasi to take care of that.

“Some time in December 2019, Heritage furnished me with a copy of an order of interlocutory injunction granted by the Land Division of the High Court, Kumasi. On 14/02/2020, the client called me to inform me that it had come to their attention that soldiers of the Vanguard Group had been dispatched to raid its mining concession soon after they remobilized to return to the site, despite the subsistence of an order of interlocutory injunction,” said Philip Edem Kutsienyo in his witness statement admitted into evidence by the court.

“Officers of Heritage were in serious apprehension as they had then recently leased new equipment and machinery after the first raid in order to return to the concession to continue with Heritage’s legitimate prospecting activities. I escalated the matter to the attention of the plaintiff in view of the urgency.

“The plaintiff, after apprising himself with the facts, placed a call to the defendant in my presence to ascertain the basis of the raid, which we considered unlawful, and explained the legal position of our client to the defendant in the hope of resolving the matter lawfully.

“Plaintiff notified Defendant that there was a subsisting order for interlocutory injunction in favour of Heritage and the fact that Heritage had at the time, a valid prospecting licence, a valid mineral exploration operating permit, a valid Environmental Protection Agency permit, and a valid forest entry permit,” the witness additionally noted.

“I also heard Plaintiff enquire from Defendant if the prospecting equipment were different from those used in actual mining. From what I observed the discussion between them ended inconclusively and that was it. Plaintiff never asked, demanded nor ordered Defendant to stop or halt any intended action against Heritage. Plaintiff in no way, shape or form interfered with the work of Defendant. The plaintiff merely undertook his legitimate job as a lawyer as all lawyers are enjoined to do by our calling.

“I was completely shocked at the attributions made by Defendant against Plaintiff in his report dated 19/03/2021 which was all over the internet and social media as well as Defendant’s Statement dated 23/04/2023, both of which are the subject of the instant case. The attributions are untrue.

“Defendant’s attributions about Plaintiff, which have gone viral, have generated and continue to feed several insults against Plaintiff, especially on the internet, including being derisively called ‘Galamsey Lawyer’. Defendant’s statement that the telephone call from Plaintiff to him that day interfered with an ongoing IMCIM operation on the said day against Heritage is false.

“Plaintiff’s telephone conversation with Defendant involved no such attack on any IMCIM personnel by any soldier(s) purportedly protecting Heritage’s site as alleged or at all. Similarly, there was also no reference to an attack nor was there any such attack on any journalist(s) purportedly covering any such swoop by the IMCIM against Heritage on the said day at all. The telephone conversation between Plaintiff and Defendant also did not involve any illegal Chinese miners,” Kutsienyo’s witness statement further reads.

Cross-examination

During cross-examination, Lawyer Dzakpasu asked the witness: “Your testimony is that you were present when the Plaintiff called the Defendant. Is that correct?

Answer: “Yes, my lord.”

Question: “Was the call on speakerphone?”

Answer: “Yes, my lord.”

Question: “What did the defendant tell Plaintiff?”

Answer: “My lord, as far as I can recollect, Plaintiff introduced the fact that his lawyer or his firm represents Imperial Mining Co Ltd, and the clients have come with a report or complaint that the clients had picked up intelligence that members of the Vanguard who were working for the Inter-Ministerial Committee (IMCIM) were on their way to the client’s concession to attack it then. The Defendant said yes, Heritage is engaged in illegal mining.

“And then I believe that the Plaintiff stated that he has seen their documents and they have a prospecting mining lease, and then I think at this point the Defendant jumped in to say that yes, they have a prospecting lease but then they are carrying out actual mining. They are using excavators to destroy the forest among other things.

“I believe that at the mention of excavators the plaintiff then asked if the equipment for prospecting is different from actual mining. From that point, I heard the defendant go on and on about how the clients were destroying the forest and that is how the call ended.

“It was inconclusive. I recollect that Plaintiff also mentioned at the earlier part where Plaintiff mentioned the prospecting licence that the client had obtained an injunction against the state, so really it was mere conversation.”

Question: “Do you recall that the plaintiff, who is your boss, repeated this narration in an interview with Citi TV and Citi FM?”

Answer: “Yes, my lord. I have seen it online.”

Question: “And it was after this that the Defendant issued a press release. Is that correct?”

Answer: “Yes, my lord. I recollect that after the Plaintiff’s interview, Defendant issued a press release.”

Question: “The narration by Plaintiff on Citi TV is what is captured in the report authored by Defendant as chairman of the Inter-Ministerial Committee (IMCIM). Is that correct?”

Answer: “My lord, I believe that Defendant put a slant on the event that took place on the day of the call. It was not a mere narration as counsel puts it. The client of the firm, as of date, has not been found guilty of carrying out illegal mining within the Apamprama Forest.

“The plaintiff, as a lawyer, as a course of duty, enjoined to make the necessary intervention on behalf of his client just as any lawyer would do. And so if someone put a slant on that to mean that a lawyer is defending a person who is engaging in illegal mining or interfering in the work of the committee, that would be most unfortunate and unfair to the lawyer and it would not constitute an accurate narration of the event of the day.

“Defendant in another paragraph goes as far as to say that he expected persons such as Plaintiff, knowing the agenda of the president, to support the president’s fight against illegal mining.”

Question: “What is factual is that Plaintiff disputed Defendant’s assertion that your client was using a prospecting licence to do mining. Is that correct?”

Answer: “That is not correct. The Plaintiff’s response to that was simply to ask if there is a different equipment for prospecting as opposed to actual mining. Plaintiff never disputed or agreed to the Defendant’s assertion that the client was mining under the cover of a prospecting licence.”

The cross-examination of Philip Edem Kutsienyo continued on 4 March 2024. The case has been adjourned to Monday 22 April 2024 for the lawyers of the defendant to continue with their cross-examination of the first plaintiff witness.

Background

In his suit, Gabby Asare Otchere-Darko has asked the court to award him GHC10 million by way of general damages, including aggravated and/or exemplary damages.

He is also demanding an apology and a retraction of the words written by Professor Frimpong-Boateng (the defendant) about his person.

Otchere-Darko further prays the court to restrain Professor Frimpong-Boateng, his servants, agents or assigns through a perpetual injunction from repeating similar or other defamatory words against him.

Alleged defamatory words

Professor Frimpong-Boateng, in a leaked report dated 19 March 2021 and addressed to Akosua Osei-Opare, the Chief of Staff in the Office of the President, made several allegations against present and past government officials as well as private persons, accusing them of being responsible for the inability of the Inter-Ministerial Committee on Illegal Mining (IMCIM) to fight illegal mining in Ghana between January 2017 and January 2021.

In his supposed report, Professor Frimpong Boateng wrote the follow statements concerning Gabby Asare Otchere-Darko: “What saddened me most was when Gabby Asare-Darko called to defend a company that was actively destroying the environment, especially the forests and River Offin in the Apaprama [sic] and Kobro Forests.

“We were ready to dislodge Imperial Heritage from Kobro forest when Gabby Asare Otchere-Darko called to inform me that he was the lawyer for Heritage Imperial Limited, a company that was destroying the Kobro and Apaprama Forest Reserves and in the process had also polluted and diverted the course of the River Offin, as can be seen in the satellite images below. I informed the President about the behaviour of Gabby Asare Otchere-Darko and he promised to deal with it.

“I was expecting people such as Gabby Asare Otchere-Darko, Captain Kodah, and others like them, who knew the president better and certainly had his interest and success at heart, to support the fight against illegal mining,” the report said.

“I was thus horrified to receive a telephone call from Otchere-Darko telling me he was the legal advisor to Donald Entsuah and his Imperial Heritage Mining Company and that the company should be allowed to work in the Kobro and Apaprama Forest Reserves.”

Plaintiff’s contention

Lawyers for Otchere-Darko, in their statement of claim dated 28 April 2023 and signed by Bright Okyere-Adjekum, contend that the “defendant from his report sought to sensationalise the telephone conversation with the plaintiff as Plaintiff never sought to direct or instruct Defendant on his dealings with Heritage”.

“Defendant placed a slant on his telephone conversation with the plaintiff only to justify his self-acclaimed position that he was the last man standing in the fight against galamsey and thereby enhance his reputation at the plaintiff’s expense.

“Defendant’s false statements about the plaintiff, which have gone viral, have generated and continue to feed several insults against the plaintiff, especially on the internet, including the plaintiff being derisively called ‘Galamsey Lawyer’.

“Plaintiff’s conversation with Defendant did not involve any illegal Chinese miners. The defendant is deliberately and maliciously confusing issues, events and dates,” the statement of claim read.

“By the records available to the plaintiff, the only Chinese nationals with work permits engaged by Heritage as its subcontractors who were arrested were discharged by a court of competent jurisdiction in July 2019. This was even before Heritage engaged ALA as its lawyers and the plaintiff had nothing to do with that at all.

“Notwithstanding the fact that the plaintiff has made it clear that the allegations made against him by the defendant are false, the defendant has not offered the plaintiff any apology or retraction.

“Instead, he has made more damning false allegations against the plaintiff. It is to be inferred that the defendant has cynically failed to do so because he is indifferent to the truth, deliberate about causing reputational damage to the plaintiff, has a total disregard for the plaintiff’s reputation, and only seeks to court huge publicity at the plaintiff’s expense.

“Plaintiff contends that unless restrained by the court, the defendant will continue to publish or cause to be published same or similar defamatory words concerning the plaintiff,” Otchere-Darko’s lawyers said in their statement of claim.

Reporting by Wilberforce Asare in Accra

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