1. Introduction

Indirect taxes play a pivotal role in Ghana’s fiscal system by providing a stable revenue stream for government operations and public services while distributing the tax burden across a broad spectrum of the population. These taxes, such as value-added tax (VAT), excise duties, and customs duties, generate significant revenue without directly impacting individual incomes, thus ensuring a more equitable distribution of tax liability. Moreover, they serve as potent tools for economic policy, facilitating the regulation of consumption patterns, incentivizing domestic production, and protecting local industries. In the context of Ghana’s evolving economic landscape, the strategic utilization of indirect taxes not only bolsters fiscal sustainability but also fosters economic growth and development.

 

1. Overview of the indirect tax landscape in Ghana

The indirect tax landscape in Ghana presents a multifaceted framework comprising various taxes aimed at generating revenue and regulating economic activities. At its core stands the Value Added Tax (VAT) system, which encompasses both standard and exempted goods and services, thereby structuring consumption patterns and revenue generation. Excise duties further contribute to this landscape by targeting specific goods such as alcohol, tobacco, and petroleum products, serving both revenue and regulatory purposes. Additionally, customs duties play a significant role in regulating international trade, ensuring compliance with tariff regulations, and protecting domestic industries. This comprehensive system of indirect taxation reflects Ghana’s efforts to balance revenue generation with economic regulation and development objectives, albeit amidst the challenges of compliance, enforcement, and periodic reforms.

• Types of Indirect Taxes in Ghana

The types of indirect taxes in Ghana are the Value Added Tax (VAT), the National Health Insurance Levy (NHIL), the Ghana Education Trust Fund Levy (GETFL), Import duties and Excise Duties. The following paragraphs will discuss the various types in detail.

 

1. Value Added Tax (VAT)

Ghana’s Value Added Tax (VAT) system, established under the Value Added Tax Act, 2013 (Act 870) and its amendments, is a consumption tax levied on the supply of goods and services and on imports, with the standard VAT rate set at 15%[1]. Additionally, there is a National Health Insurance Levy (NHIL) of 2.5% and a Ghana Education Trust Fund (GETFund) levy of 2.5%, effectively bringing the total VAT rate to 22% on taxable supplies. Certain goods and services are exempt from VAT, including basic food items, healthcare, education, financial services, and residential property leases and sales, aimed at reducing the tax burden on essential and socially important sectors[2]. Businesses with an annual turnover exceeding GHS 200,000 are required to register for VAT, file regular returns, and maintain accurate records of all transactions to ensure compliance and facilitate audits by the Ghana Revenue Authority (GRA)[3]

 

1. National Health Insurance Levy (NHIL)

The National Health Insurance Levy (NHIL) in Ghana was introduced to provide sustainable funding for the National Health Insurance Scheme (NHIS), which aims to offer equitable and accessible healthcare services to all residents[4]. Implemented as part of the Value Added Tax Act, 2013 (Act 870), the NHIL is set at a rate of 2.5% and is applied to the same taxable base as VAT, encompassing the supply of goods and services as well as imports[5]. Businesses that are liable for VAT are also required to collect and remit NHIL, ensuring that the levy is integrated into the standard VAT compliance framework. Compliance involves the registration of businesses with the Ghana Revenue Authority (GRA), accurate record-keeping of NHIL-related transactions, and the regular filing of returns and payment of the collected levy to the GRA, typically on a monthly basis[6].

 

1. Ghana Education Trust Fund Levy (GETFL)

The Ghana Education Trust Fund Levy (GETFL), established under the Ghana Education Trust Fund Act, 2000 (Act 581), is a tax set at a rate of 2.5% on the supply of goods and services, designed to support educational infrastructure and facilities. The GETFL is collected through mechanisms similar to those used for Value Added Tax (VAT), including business registration, periodic filing, and payment to the Ghana Revenue Authority. The funds generated from GETFL are allocated to the Ghana Education Trust Fund, which is mandated to utilize these resources for the development and maintenance of educational institutions, provision of scholarships, and improvement of teaching and learning materials across Ghana.[7]

 

1. Import Duties

In Ghana, import duties are governed by the Customs Act, 2015 (Act 891) and subsequent amendments, which outline the various taxes and tariffs imposed on goods entering the country. Import duties apply to a wide range of goods, including consumer products, machinery, vehicles, and raw materials, with rates varying based on the type and value of the goods. Generally, import duty rates range from 0% to 20%, depending on the classification under the Harmonized System (HS) code, with essential goods such as certain pharmaceuticals and educational materials often enjoying exemptions or lower rates to promote accessibility and development[8]. Additional levies like the Value Added Tax (VAT), National Health Insurance Levy (NHIL), and the ECOWAS Levy may also be applicable to imports.[9] However, exemptions can be granted for specific categories, such as goods for diplomatic missions, certain agricultural inputs, and items imported under special government programs to encourage industrialization and investment.[10]

1. Excise Duties

Excise duties in Ghana are levied on specific goods produced or imported into the country, primarily to generate revenue and regulate the consumption of certain products deemed harmful or luxurious[11]. The excisable goods include alcoholic beverages, tobacco products, petroleum products, and vehicles, with rates varying based on the type of product; for instance, alcoholic beverages attract rates ranging from 10% to 50%, tobacco products up to 175%, and petroleum products a specific duty per litre[12]. Compliance with excise duty regulations requires manufacturers and importers to be registered with the Ghana Revenue Authority (GRA), maintain detailed records of production and imports, and file monthly returns detailing the quantities and types of excisable goods produced or imported, along with the applicable excise duties paid[13].

 

1. Impact of Indirect Taxes

Indirect taxes play a significant role in revenue generation for the Ghanaian government, contributing substantially to the country’s overall revenue stream[14]. Over recent years, indirect taxes have shown a consistent upward trend, reflecting both economic growth and adjustments in tax policies aimed at enhancing revenue mobilization[15]. These taxes, including Value Added Tax (VAT), excise duties, and the National Health Insurance Levy (NHIL), among others, serve as crucial sources of funding for various government expenditures, including infrastructure development, social services, and public administration[16]. By diversifying revenue sources and reducing reliance on direct taxes, indirect taxes help ensure a more stable revenue base, supporting sustainable fiscal policies and enabling the government to meet its financial obligations and developmental objectives[17].

 

1. Future trends and challenges of indirect taxation in Ghana

Looking ahead, the future of indirect tax administration in Ghana presents both opportunities and challenges. Anticipated reforms may include the modernization of tax administration systems to enhance efficiency, transparency, and compliance, possibly through the adoption of digital technologies and streamlined processes[18]. However, potential challenges such as tax evasion, the informal economy, and changing consumer behaviors underscore the need for robust enforcement measures and capacity-building initiatives to strengthen compliance and revenue collection[19]. Furthermore, emerging trends such as e-commerce and digital services pose unique challenges in taxing intangible goods and cross-border transactions, necessitating international cooperation and innovative tax policies to address these complexities[20]. To adapt to these changes, stakeholders must prioritize capacity-building efforts, invest in technological infrastructure, and engage in dialogue to develop responsive tax policies that balance revenue objectives with economic growth and social welfare considerations[21].

 

1. Conclusion

In conclusion, a comprehensive understanding of indirect taxes is essential for businesses and taxpayers operating within Ghana’s fiscal system. Indirect taxes not only contribute significantly to government revenue but also play a vital role in shaping economic behavior, promoting equity, and funding essential public services. Businesses must navigate the intricacies of indirect tax regulations to ensure compliance, manage costs, and mitigate risks effectively. Moreover, taxpayers benefit from understanding how indirect taxes affect their purchasing decisions, financial planning, and overall economic well-being. Recognizing the dynamic nature of indirect tax regimes and staying abreast of legislative changes and administrative reforms are crucial for both businesses and taxpayers to adapt and thrive in the evolving fiscal landscape of Ghana. Ultimately, a collaborative effort between the government, businesses, and taxpayers is essential to ensure that indirect taxes contribute positively to sustainable economic growth, social development, and fiscal stability in Ghana.

[1] VAT (Amendment) Act, 2022 (Act 1107)

[2] VAT Exemptions Schedule, Ghana Revenue Authority

[3] Ghana Revenue Authority, VAT Registration and Compliance

[4] National Health Insurance Act, 2012 (Act 852)

[5] Value Added Tax Act, 2013 (Act 870)

[6] Ghana Revenue Authority, NHIL Compliance Guidelines

[7] Ghana Education Trust Fund Act, 2000 (Act 581).

[8] Customs Act, 2015 (Act 891)

[9] Ghana Revenue Authority (GRA), Import Duty Rates

[10] Ghana Investment Promotion Centre (GIPC), Import Duty Exemptions

[11] Excise Duty Act, 2014 (Act 878)

[12] Ghana Revenue Authority, Excise Duty Rates

[13] Ghana Revenue Authority, Excise Duty Compliance Guidelines

[14] Ghana Revenue Authority, Tax Revenue Performance Reports

[15] Ministry of Finance, Ghana Economic Outlook Reports

[16] World Bank, Ghana Public Expenditure Review

[17] International Monetary Fund (IMF), Fiscal Policy Reviews in Ghana

[18] Ministry of Finance, Ghana Revenue Mobilization Strategy

[19] World Bank, Ghana Economic Update Reports

[20] Organisation for Economic Co-operation and Development (OECD), Tax Challenges Arising from Digitalization Organisation for Economic Co-operation and Development (OECD), Tax Challenges Arising from Digitalization

[21] Ghana Revenue Authority, Strategic Plans and Policy Documents

 

 

BY; Portia Adjei-Mensah Esq.

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

 

I.    Introduction

A.  Background on Ghana’s Economy

The Ghanaian economy is often described as one of immense potential and capability. This is because, despite existing for more than six decades, the Ghanaian economy still has many areas and sectors that are devoid of great investment and diverse exposure. With an estimated population of over 30 million people,[1] rankings of 1^st and 2^nd for exports of gold[2] and cocoa respectively across the African continent, one can only wonder what would be possible if sufficient investments were made across all industries.

These possibilities however present a dual-edged sword. The dearth of investments does not only provide a lot of potential but it has also resulted in a lack of political will to effectively regulate large segments of the Ghanaian economy. Thus, the Ghanaian economy has rudimentary regimes on matters like Consumer Protection, Labour Protection, Antitrust Regulation, Environmental Protection and so on and so forth. This leaves ordinary citizens and other stakeholders at risk of exploitation. This article seeks to foray into one of the aforementioned areas to expose the gaps that exist in the regulatory regime.

B.   Importance of Competition Laws

If one randomly asked a Senior High School student what the two types of national economic structures are, most students would easily answer stating Socialism and Capitalism (or a Free Market Economy). Same student would easily say that that Socialism refers to the economic system where the state centralises control of market forces within itself and also controls the distribution of resources with minimal private involvement. Capitalism on the other hand involves minimal state involvement in the distribution and utilisation of resources. Private persons set up companies and legal entities through which they employ other private persons, provide services, and sell goods. The Ghanaian system is oft described as a mixed system since the state maintains control of some sectors of the economy, particularly those that are deemed to be essential (eg. Ghana Water Company Limited or Ghana Broadcasting Corporation).

A feature of efficient Capitalist Systems is state regulation. This is because absolute capitalism (devoid of state regulation) breeds chaos. The primary aim of corporations is the making of profit, and without regulatory oversight, corporations may resort to dubious practices, such as compromising quality assurance by cutting corners, underpaying employees, exploiting resources beyond sustainable limits, engaging in environmental pollution, and employing anti-competitive tactics to stifle potential competitors. The necessity for regulation becomes evident as a means to establish a framework that ensures ethical business conduct, protects workers’ rights, preserves environmental integrity, and promotes fair competition within the capitalist system.

In essence, state regulation acts as a critical counterbalance to the profit-centric motives of corporations, steering them towards responsible and sustainable practices. It serves as a protective mechanism, preventing the negative externalities associated with unbridled capitalism and fostering an environment where economic activities contribute positively to societal well-being.

One such form of regulation is Antitrust or Competition Law. These laws seek to ensure that there exists a level playing field amongst corporations in the market. This sort of regulation takes on many forms. It includes requiring regulatory approval for mergers and acquisitions of dominant players in certain industries, supervising joint ventures carried out by dominant companies to prevent cartel behaviour, preventing firms from bundling their services together to limit consumer choice, and the like.

C.   Statement of the Problem: Market Dominance and Abuse of Power

Antitrust laws are incredibly important to control the excesses of corporate power. Whilst the growth of a company is not wrong by itself, companies can however grow to levels that may generally negatively impact the collective good. A company with access to the primary means of entry into a market may make it harder for new players to enter the said market. Take Amazon, the multinational conglomerate, for example. Amazon primarily operates a virtual marketplace that has become so ubiquitous that essentially every seller or supplier who wishes to provide their goods to the larger market must list their products on Amazon and pay a commission to the site. What happens then when Amazon also starts listing its own products for sale?[3] The small business owner would then be competing with the conglomerate which has excess revenue to enable them undercut the seller and also has algorithms to list Amazon’s products higher in search results and possibly bury the small seller’s products.[4]

For the ordinary consumer, this really does not sound so bad. After all, they would be paying less for the same product. However, the average consumer seldom considers the long-term macroeconomic repercussions. The fewer competing sellers there are in a market, the more the existing sellers are able to control the industry. This control can be abused in various ways. A dominant market player may make government unpopular by frustrating customers. They may increase prices knowing that consumers have no viable alternatives, they may lobby lawmakers to pass rules favourable to them and detrimental to other stakeholders, they may bundle their services into other markets to takeover those markets, and suchlike.

Even outside of abusive practices, there are inherent dangers to a lack of competition in a market. The first of these dangers is a lack of innovation. Competition breeds advancements and innovations in a particular market. Take, for example, the MTN story; a lot of people readily attribute advancements in telecommunications in Ghana to MTN. These include easy access to SIM card registration, Mobile Money and 4G services. All of the foregoing  happened because the company sought to secure an edge over its competitors. Without competition, they would have no reason to try to be better. This is why markets with large numbers of suppliers (think sachet water or public transportation) often have their goods or services remaining cheap since alternatives are readily available to consumers. Relying on only one service is also dangerous since the failure of that service would grind the entire industry to a halt. In essence, a thriving marketplace with healthy competition not only sparks innovation but also ensures resilience and affordability for consumers, underscoring the necessity for vigilant regulatory measures to safeguard the vitality of competition in various industries.

II.    Literature Review

A.  Overview of Competition Laws in Ghana

Antitrust laws in Ghana are unfortunately quite fragmented. As was stated in the introductory part of this essay, there has not been sufficient political will to regulate competition effectively. Thus, what exist presently are mostly sections of laws that can be loosely interpreted as applying to antitrust scenarios. Specific legislations targeted at maximising competition are quite limited.

The 1992 Constitution of Ghana which serves as the basis for the Ghana Legal System does not have a provision dedicated explicitly to antitrust law. It does however provide some general basis for legislating such specific laws. Particularly, under Article 36, the Constitution provides thus:

• The State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Ghana and to provide adequate means of livelihood and suitable employment and public assistance to the needy.

 

• The State shall, in particular, take all necessary steps to establish a sound and healthy economy whose underlying principles shall include –
  1. affording ample opportunity for individual initiative and creativity in economic activities and fostering an enabling environment for a pronounced role of the private sector in the economy;

 

• The State shall afford equality of economic opportunity to all citizens; and, in particular, the State shall take all necessary steps so as to ensure the full integration of women into the mainstream of the economic development of Ghana.

Specific to education, also, is Clause 2 of Article 25 which states:

• Every person shall have the right, at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law.

Reading these provisions purposively may provide basis for the enforcement of Antitrust Legislation since such legislation, as has been stated above, is fundamentally targeted at ensuring that the market is free and open to all persons who wish to participate in same whilst preventing unjustified monopolies.

As has already been stated, Ghana’s regime on antitrust law is quite fragmented. This is because they exist only within certain sectors. One such law is the Protection Against Unfair Competition Act, 2001 (Act 589). This Act, although aimed at ensuring fair market practices, focuses on the use of intellectual property to restrict the business of another. Primarily, it focuses on the use of the image or likeness of the intellectual property of another business in a manner that is inconsistent with fair business practices. It also creates a civil remedy for actual or threatened breaches of the act by way of application to the court by the victim.[5] Even with regard to intellectual property, the applicability of the Act is still very limited. It focuses on scenarios where one person uses the intellectual property of another, but it does not particularly address scenarios in which the owner of the property uses the Intellectual Property to prevent others from entering the market.[6]

One would also expect the Companies Act, 2019 (Act 992) to have some degree of regulation since it is the general enactment that regulates companies in Ghana. This is not the case unfortunately. The Act does not provide any specific limitations on corporate power to prevent anti-competitive behaviour. One common antitrust tactic is the acquisition of smaller competing firms by dominant companies. It is quite unfortunate to note that the limitations that exist in the act for mergers and acquisitions do not consider the possibility of them being anticompetitive. Thus, any form of regulation regarding such processes will be sector-specific.

It is therefore left to regulators of specific industries to make attempts at regulating against anticompetitive practices. Hence, Section 54(3) of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930)[7] gives the Bank of Ghana the discretion to deny an application for approval of sale of businesses, mergers, amalgamations, or reconstructions of the institutions within the scope of the Act[8] if, in the opinion of the BoG, such a transaction would have substantial effects on competition in the sector.

Additionally, the new Insurance Act, 2021 (Act 1061) which establishes the National Insurance Commission mandates, under Section 4(e), the Commission to be guided by the need to ensure effective competition in the insurance sector in the best interest of consumers. The Act further requires the approval of the Commission for mergers or acquisitions under Sections 85 to 88. A combined reading of Section 4(e) and 88 provides strong indication that the need to promote competition would constitute basis to reject an application brought under Section 85.

An even better example is the National Petroleum Authority Act, 2005 (Act 691)[9] which establishes the National Petroleum Authority as the regulator of corporations in the Petroleum Sector, an industry that is arguably noted historically for anticompetitive practices. The Act empowers the Authority to specifically take action against cartels and monopolies under Section 43.

Another regulator, the National Communications Authority, also has the authority to review corporate activity in a manner that encourages competition in the market. The Electronic Communications Act, 2008 (Act 775)[10] stipulates in its sections a general duty on all licensees under the Act not to engage in anti-competitive practices and further stipulates, unlike the aforementioned enactments, additional specific duties that must be undertaken by companies determined to be Significant Market Players to maintain some fairness in the system. Also, unlike the other sector regulators aforementioned, it seems the NCA has been the only one to specifically enforce the rules on anticompetitive behaviour.[11] A counter to that would be the argument that the wording of Act 775 creates a specific statutory duty on the regulator to so act and it thus was not really a matter of choice.

B.   Decided Cases on Competition

Most of the case law in Ghanaian courts on competition relate to the application of the Protection Against Unfair Competition Act, 2001 (Act 589) or the tort of passing off. Cases including Prophetess Thane II v. Prophet George; [12] Interworld Products (GH) Ltd. V. Lava Limited;[13] PRG Watch Manufacturing Limited v. Joseph Attakora;[14] Fruit Basket Ltd v. I-Shop Ltd;[15] Kapman AB v. Simater Company Ltd;[16] Living Faith World Outreach Centre & Ors V. The Registrar-General & Ors[17] relate to the tort of passing off which entitles a plaintiff to a claim of damages where the plaintiff is able to successfully prove that the defendant has unduly employed the likeness of the plaintiff’s business in order to benefit from the goodwill of the defendant in the market.  As was stated earlier, this is also provided for under Act 589. Other relevant cases, including Accra Brewery Company Ltd. v. Guinness Ghana Ltd,[18] are on contracts in restraint of trade where two parties enter into an agreement limiting the right of one or both parties to purchase from or sell to third parties to the agreement. Although, passing off and trade restraints may be forms of unfair competition, they do not fall squarely within the anti-competitive measures discussed in this essay which involve a larger company taking advantage of its dominant position to unduly disadvantage its competitors.

These were the essential facts that led to the decision of the Court of Appeal in Ghana Telecom Company Ltd. Vs. Internet Ghana Ltd (Consolidated).[19] The brief facts of this case are that the parties entered into an agreement where the Appellant would support the Respondent with its technical services and equipment to enable the Respondent to provide internet service to consumers. Notably, at the time the contract was entered into, the Appellant party had not been providing retail internet services to the general public. However, not long after, the Appellant did in fact begin to provide such services even going as far as providing them for free to consumers in a bid to get consumers to choose its services over those of the Respondent. Without delving too greatly into the issues determined in the matter, it is quite clear on the face of it that the Appellant partly was abusing its dominant position since it was obviously better placed to provide such services over the Respondent who, in addition to paying hefty service charges, now had to contend with a competitor who was providing the same services for free, and this was obviously injurious to its business. It is also instructive to note the dictum of Adjei J.A. where, in dismissing the appeal and upholding the decision of the trial court in favour of the Respondent, he points out that the actions of the Appellant could not be sufficiently covered by Act 589 and that, if anything, only the omnibus ground under Section 7 could be interpreted to cover the actions of the Appellant. It is unclear if the learned Justice of the Court of Appeal intended to point out the limitations of the Act, but nevertheless, the case demonstrates the deficiency of the Act.

C.   Global Perspectives on Addressing Market Dominance

Addressing market dominance through an effective antitrust regime has become a relevant feature in economies that are at the upper end of the development scale. Such states recognise the dangers posed by unchecked corporate power. They understand that, similar to unchecked state power, the innate human desire to collect power and strength will motivate corporate power to trample on the freedoms and interests of others. Accordingly, these states have implemented regulatory regimes to ensure that corporate power is not unfettered.

The absolute trailblazer in this area of law is the European Union (EU). Arguably, antitrust regulation is even more relevant for a supranational economic structure such as the EU where market dominance in the single market poses an even greater risk for all others. This is why the Treaty on The Functioning of The European Union[20] dedicates an entire chapter[21] to encouraging competition. Thus, the Union, particularly through the European Commission,[22] takes steps to ensure the market is kept competitive. A good example of such regulatory activity is the passing of the Digital Markets Act which is meant to regulate firms within the digital space. Under this Act, a company may be characterised or designated as a “gatekeeper” with such designation being accompanied by certain duties to avoid activities that prevents competitors from participating in the market or disincentivising customers from switching to competitors. Apple, the US-based international tech giant, was recently compelled to adopt certain changes from the Union including allowing side-loading[23] and greater third-party software access to devices in the European Union.[24]

The United States of America (US)is quite obviously worthy of consideration. The US practices a dual-agency system with both the Federal Trade Commission (FTC) and the US Department of Justice (DOJ) acting as enforcers of antitrust laws in America. The FTC often takes an oversight role, assessing transactions for compliance with antitrust laws, but it may still take action against firms that have acted contrary to best practice through fines. The DOJ on the other hand often takes on prosecutorial roles and often only steps in with matters involving significant criminality like the infamous Vitamin Cartel in the 1990s.[25] The statutory regime for regulating antitrust conduct in America is three-fold. First, there is the Sherman Act of 1890 which prohibited malicious anti-competitive behaviour across state lines and was used in notable cases such as the United States v. AT&T[26] and the United States v. Microsoft.[27] The Sherman Act was then followed by the Clayton Act of 1914 which was more specific in stating the anticompetitive behaviour (such as price discrimination and mergers and acquisitions) and providing further protections for Labour Rights. The final[28] Act that provides the basis for regulation of Anticompetitive behaviour is the Federal Trade Commission Act of 1914 which established the FTC and provided further regulatory powers over corporate power.

In Africa, South Africa also stands as a pioneer in competition regulation with its proactive regime for preventing antitrust behaviour. The Competition Commission of South Africa as established by the Competition Act No. 89 of 1998 oversees corporate transactions for their effects on competition. The Act also prohibits anti-competitive conduct in both broad and narrow terms. The Act even goes further in establishing a Competition Tribunal and a Competition Appeals Court with three judges of the High Court. The Commission undertakes many activities including providing guidelines on mergers and acquisitions,[29] conducting probes into financial manipulation by banks,[30] amongst others.

III.    Analysing Gaps in Current Legislation and Proposing Reforms

A.  Weaknesses in Definitions and Thresholds

The main issue with the Ghanaian regulatory framework lies in its fragmentation, which undermines effective antitrust enforcement. Currently, only certain regulators are empowered to address antitrust behaviour, leading to significant gaps in oversight across various sectors of the economy. Moreover, even the existing sector-regimes are still very incompetent. As stated above, it is only the Electronic Transactions Act (Act 775)[31] that specifically stipulates thresholds for determining market dominance and further compels the dominant company to take specific steps to ensure fairness. This is a huge problem as an economy is obviously not only comprised of Telecommunications Companies. Given that antitrust behaviour can manifest in any industry, the absence of comprehensive statutory provisions poses a significant challenge for regulators in identifying and combating such practices. Consequently, the current regulatory landscape in Ghana lacks the requisite tools and authority to adequately tackle antitrust issues, resulting in an overly laissez-faire approach to competition enforcement.

Additionally, firms may grow so large that they are able to branch into other sectors. When this happens, a fragmented approach would mean that they would be partly under one regulator and under another (if that regulator has antitrust powers). Take Samsung in South Korea, for example, Samsung provides services in construction, the more popularly known consumer electronics, financial services, shipbuilding, and medical services. In a fragmented regulatory environment like ours, such a conglomerate would fall under the jurisdiction of multiple regulators, each with varying degrees of antitrust authority. This would lead to bureaucratic hurdles and inefficiencies as regulators attempt to share information and coordinate efforts to identify and address anticompetitive behaviour.

 

B.   Enforcement Challenges

The second limitation of the Ghanaian regime relates to the regulators themselves. This particular limitation is two-pronged. The first being a consequence of the aforementioned fragmented issue. An assessment of the competition regimes from other jurisdictions indicates that there is often a dedicated statutory body that monitors and regulates all parts of the economy for antitrust behaviour. The United Kingdom has the Competition and Markets Authority (CMA),[32] Australia has the Australian Competition and Consumer Commission (ACCC),[33] Japan has the Japan Fair Trade Commission (JFTC),[34] Nigeria has the Federal Competition and Consumer Protection Commission (FCCPC),[35] among numerous others. Some countries like the US, South Africa and some Member States of the EU even have multiple agencies tasked with combating anticompetitive behaviour. It is therefore quite disappointing that no such agency or commission exists presently in Ghana to protect anti-competitive behaviour.[36]

The second prong of the enforcement problem is a lack of political will. The creation of bodies and formulation of policies, no matter how comprehensive will be immaterial without the necessary political will to accomplish these goals. This lack of will is evident firstly by the absence of sufficient statutory backing. Furthermore, as demonstrated by the NCA-MTN fiasco, regulatory enforcement against companies particularly those that employ and/or provide services for a significant portion of the population can very easily result in public dissatisfaction. This dissatisfaction can easily turn into disdain for the government of the day thus disincentivising the state from even taking regulatory action against a company.

 

C.   Inadequate Penalties for Violations

As stated prior, the absence of strict legislation in the Ghanaian Antitrust space provides no incentives for companies to conduct themselves in a manner that encourages competition. Other regimes have laws that provide regulators with broad swathes of action that can be undertaken against companies subject, of course, to judicial review. These regulatory measures include blocking transactions and acquisitions, ordering the breakup of companies that have grown too large, requiring significant players to grant their competitors access to proprietary tools and technology, amongst others.

There is also, quite obviously, criminal prosecution for those who engage in more egregious instances of anti-competitive behaviour such as the aforementioned Vitamin Cartel. These regulatory measures serve as strong incentives to companies to play fair with each other. Companies cannot be left to conduct themselves as they please in a market; some degree of regulation is necessary.

D.  Lack of Protection for Domestic Firms

There is also the need to improve the current regime to better protect indigenous businesses. Admittedly, the Ghana Investment Promotion (GIPC) Act, 2013 (Act 865) was passed for this same purpose. It is humbly submitted that all the act does with regards to protecting indigenous businesses is to reserve certain industries for domestic businesses and impose Ghanaian participation requirements for certain industries. It should go without saying that this is woefully inadequate as a foreign firm with cashflows far greater than Ghanaian companies can still abuse the present system to the detriment of competition in the market. It is therefore further relevant to shore up our regime on competition laws.

IV.    Conclusion

As pointed out in this essay, the Ghanaian regulatory regime on Competition in the Free Market is woefully inadequate. This inadequacy manifests by way of fragmented enforcement, a dearth in political will and a lack of punishments for unethical activity. This leaves the economy and its particular industries quite vulnerable to the whims of corporate greed. It is extremely important that the regime is shored up and the necessary checks are put in place to protect against manipulation. This is especially important in light of the establishment of the AfCFTA as a means of ensuring that the resources of the Continent are primarily enjoyed by people of the Continent.

This article is by no means a first in calls for a better regulatory system. Appeals have consistently been made by experts in the field and civil society organisations for the necessary legislative action to implement a robust economy.[37] In 2019, the then Minister of Trade and Industry stated that Cabinet was considering a draft Competition Bill meant to be aligned with the provisions of the Competition Protocol of the second phase of negotiations the AfCFTA.[38] Unfortunately, such a bill has yet to result in an Act of Parliament. And with this article being written in an election year, it cannot be said that there is much to go on in the nature of hope to see such an enactment passed anytime soon. One would always hate to be a harbinger of doom and dread, but the urgency with which such regulation is required cannot possibly be overstated. Industries are ripe for the picking by corporations that have the means to take advantage of the lax nature of the regulatory system. Thus, this author can only join his voice to the many others that have called for the same thing- Regulation.

[1] Ghana Statistical Service, 2021 Population and Housing Census: General Report, Volume 3A, November 2021. Accessible from <https://statsghana.gov.gh/gssmain/fileUpload/pressrelease/2021%20PHC%20General%20Report%20Vol%203A_Population%20of%20Regions%20and%20Districts_181121.pdf>

[2] Mining.com. (2021, June 14). Top 10 gold producing countries. <https://www.mining.com/web/top-10-gold-producing-countries/>

[3] As they presently do with their Amazon Basics line of products.

[4] See Farronato, C. (n.d.). Understanding the Tradeoffs of the Amazon Antitrust Case. Harvard Business Review. https://hbr.org/2024/01/understanding-the-tradeoffs-of-the-amazon-antitrust-case#:~:text=The%20FTC’s%20complaint%20alleges%20that,abuse%20of%20a%20dominant%20position.

[5] See Section 8 of Act 589

[6] Although Section 7 provides an omnibus provision to allow applications for activities in the course of

industrial or commercial activities that are “contrary to honest practices”.

[7] Per the long title, the Act was enacted to: “amend and consolidate the laws relating to deposit-taking; to regulate institutions which carry on deposit-taking business, and to provide for related matters.”

[8] Per Section 1 of the Act, it applies to (a) banks, (b) specialised deposit-taking institutions, (c) financial holding companies, and (d) affiliates of banks, specialised deposit-taking institutions, and financial holding companies.

[9] The long title of the Act states that it was enacted to: “establish the National Petroleum Authority to regulate, oversee and monitor activities in the petroleum downstream industry; to establish a Unified Petroleum Price Fund; and to provide for related matters.”

[10] As amended by the Electronic Communications (Amendment) Act, 2019 (Act 1006)

[11] See < https://nca.org.gh/2020/09/01/high-court-dismisses-mtns-case-contesting-the-ncas-decision-to-declare-them-as-a-smp-in-ghana/>

[12] [1977] 1 GLR 467

[13] CA. 34/2003 · 16 FEB 2004 · Unreported, Court of Appeal)

[14] Suit No: MISC/22/12 · 17 OCT 2013 (Unreported)

[15] Suit No: IPR/05/14 · 30th May 2017 (Unreported)

[16] Suit No: CM/IPR/0522/18 · 29 JUN 2021 (Unreported)

[17] Suit No: J4/49/2021 · 17 MAY 2023 · (Unreported)

[18] Suit No: CS 307/99, 28^th May 1999. (Unreported)

[19] Consolidated Suit No: H1/82/2022, Appellate decision of 5th December, 2022 (Unreported)

[20] The Treaty on the Functioning of the European Union (TFEU) is one of the two main treaties that form the constitutional basis of the European Union (EU), along with the Treaty on European Union (TEU).

[21] CHAPTER I of TITLE VII of The Treaty on The Functioning of The European Union

[22] The European Commission acts as the second organ of the Executive arm of the European Commission.

[23] Sideloading refers to installing applications from web sources that are not vendor-approved. Apple approves only apps installed through its App Store which allows it to take significant commissions from developers. Side-Loading would allow developers to offer their apps on the internet thereby circumventing such fees.

[24] https://www.reuters.com/technology/apple-faces-strong-action-if-app-store-changes-fall-short-eus-breton-says-2024-01-26/

[25] See Molitor N, “The Rise and Fall of the Vitamin Cartel – Dr. Rath Health Foundation” (Dr. Rath Health Foundation, November 11, 2020) <https://www.dr-rath-foundation.org/2019/09/the-rise-and-fall-of-the-vitamin-cartel/>

[26] United States of America v. AT&T Co. 552 F. Supp. 131 (D. D.C. 1982).

[27] United States of America v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001)

[28] Other enactments do exist including the Robinson–Patman Act of 1936, Celler–Kefauver Act of 1950, the Hart–Scott–Rodino Antitrust Improvements Act of 1976 but these amended existing laws.

[29] Nazeera Mia. (2022, February 9). Africa: Competition Law – A year in Review, 2021 – Bowmans. Bowmans – Corporate and Commercial Law Firm | Corporate Lawyers | Attorneys. https://bowmanslaw.com/insights/competition/africa-competition-law-a-year-in-review-2021/

[30] MSN. (n.d.). https://www.msn.com/en-za/news/other/competition-commission-presses-ahead-to-concourt-with-currency-manipulation-case-against-banks/ar-BB1hSENn

[31] And the National Petroleum Authority Act, 2005 (Act 691) to some extent

[32] As established by the Competition Act 1998

[33] As established under the Competition and Consumer Act 2010 (CCA)

[34] As established by the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, Act No. 54 of April 14, 1947 (otherwise known as the Antimonopoly Act)

[35] As established by the Federal Competition and Consumer Protection Act, 2019

[36] Although the argument could be made that institutions like the Ghana Standards Authority, the Bank of Ghana and the Public Utilities Regulatory Commission amongst others are meant to undertake consumer protection.

[37] See for example the Ghana News Agency story of 30^th March 2023 titled “Ghana must enforce competition law without delay – Stakeholders.” <https://gna.org.gh/2023/03/ghana-must-enforce-competition-law-without-delay-stakeholders/>

[38] https://www.ghanaweb.com/GhanaHomePage/business/Competition-Law-being-considered-by-cabinet-Trade-Minister-774735

 

 

BY; Kekeli Dzeketey Esq.

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

 

 

What is Natural Justice?
This theory underscores the importance of treating an individual justly. It originated from judicial decisions rather than legislative enactments but has gained widespread acceptance. Termed “natural” due to its perceived inherent nature, Natural Justice conventionally encompasses two principles:

1. Nemo Judex in Causa Sua
2. Audi Alteram Partem

 

Nemo Judex in Causa Sua

This principle essentially advises against presiding over one’s own case and it is also referred to as the rule against bias. The presence of pre-existing notions related to political affiliations, tribal associations, physical appearances, and names can lead to partiality. The purpose of this rule is to prevent any form of bias. If a judge has a personal interest in a case, they are advised not to adjudicate it. The interests that might disqualify a judge from a case include:

1. Property interests
2. Relational interests, such as when one of the involved parties is a relative or spouse
3. Financial or pecuniary interests, for instance, when a judge has financial ties with a bank that is a party in the case.
4. Foreknowledge of facts in the case, where the judge is already acquainted with the details before the trial.

In the case of R v Gough[1], the test of determining bias was discussed. The distinction lies in the argument between the likelihood of bias and a real likelihood of bias. In the United Kingdom, the standard is to establish the likelihood of bias when determining bias.

Conversely, in Ghana, the stance is to establish a real likelihood of bias. In the case of Attorney-General v Sallah[2], the issue of a real likelihood of bias was brought up. The court opted to depart from the common law perspective, as it did not consider the unique cultural context of Ghana. Given the close-knit nature of extended families in our African context, where everyone is acquainted with each other, it is necessary to substantiate the proximity of the alleged relationship between a judge and a party. Mere accusations are insufficient in this regard.

There are exceptions to the Nemo Judex Rule, outlined as follows:

1. Statutory Duty: In cases where a statute mandates an individual to fulfill a duty, the statute takes precedence over natural justice.
2. Acquiescence/Waiver: If an individual fails to assert their rights and neglects to address perceived bias, the law may allow for the alleged bias. It is essential to promptly raise concerns when bias is observed.
3. Necessity: In situations where the judge is the only qualified individual to preside over the case, any alleged bias may not be considered valid.
4. If one obstructs the opportunity to be heard, the claim of judicial bias cannot be made.

Dr. Date-Bah JSC, in the unanimous decision of the Supreme Court in the case of Republic v High Court, Denu (Exparte Agbesi Awusi III) (No.2) Nyonyo Agboada (Sri III) Interested Party[3] stated as follows:

“Natural justice or procedural fairness demands not only that those affected by a decision should be given prior notice and an opportunity to be heard (audi alteram partem) rule, but also that there should be an entitlement to an unbiased decision maker (nemo judex in causa sua and allied ideas)”

Audi Alteram Partem

This principle essentially advocates for hearing the opposing side, emphasizing the necessity of comprehensive evidence from both parties before reaching a judgment. The underlying concept is centered around “fairness” or a fair hearing, a principle enshrined in Article 19 of the 1992 Constitution of Ghana. In the case of The Republic v. High Court, Tema; Ex Parte Yaw Godwin Dorgbadz, Monique Tetteh Dorgbadzi and Michelle Dapaah Tetteh Garfield Lee Jr. (Interested Party)[4] the learned Justice Dotse, quoting J.M Kelly from his book,[5] he referred to John 7:51 of the Bible which states as follows:

 “Does our law condemn a person before it first hears him and finds out what he is doing?”

The learned authors also referred to the case of R v Chancellor of the University of Cambridge[6], per Fortescue J … where he stated thus:-

“…even God himself did not pass sentence upon Adam, before he was called upon to make his defence “Adam” (says God) “where art thou? Hast thou eaten of the tree, whereof command thee that thou shouldst not eat.”

 

In the case of Serbeh-Yiadom v Stanbic Bank (Gh) Ltd.[7] the Supreme  Court stated as follows:

“It is a salutary and well-known principle of law that a person should be given the opportunity of being heard when he is accused of any wrongdoing before any action is taken against him”.

 

In the case of The Republic Vs. High Court, Cape Coast Ex Parte: John Bondzie Sey [University of Education Winneba-Interested Party][8], the Supreme Court in stating the effect of failure to hear a person, cited the case of Republic V. High Court, Accra Ex-Parte Salloum ( Senyo Coker (interested party)[9] where the Supreme Court stated thus:-

“Equally so, if a party is denied the right to be heard as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial.” Emphasis

 

 

 

On some occurrences, a party can be said to have waived his right to be heard.  In the case of Republic v Court of Appeal Ex Parte Eastern Alloy[10] the court stated thus:

“It is trite law that the rules of natural justice can be waived, see Bilson v Apaloo (1981) GLR 24 SC. There is no suggestion that the applicant was unaware of the hearing date of the motion, yet it absented itself without even representation by counsel. A clearer case of waiver of the right to a hearing could not be imagined.” Emphasis

Therefore, deliberately absenting oneself would constitute a waiver.

This was also discussed in the cases of Republic vrs High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell – Egala and A-G, Interested Parties)[11] and where the court stated as follows:-

“a person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have been proceeded without hearing him and then plead in aid the audi alteram partem rule”.

 

 

Audi Alteram Partem and Notice in Court Proceedings

Per the High Court Civil Procedure Rules, 2004 (C.I..47)[12] all applications should be with notice to the other parties in the suit, except otherwise provided. C.I.47[13] states further that if on hearing a motion the Court thinks that any person to whom notice has not been given ought to have or to have had notice, the Court may either dismiss the motion or adjourn the hearing so that the notice may be given upon such terms as it considers just.

The concept of notice is directly related to  the principle of audi alteram partem and the fact that every side to a story has to be heard and all parties in a suit must be afforded the opportunity to tell their side of the story. In the case of In re Kumi (Decd), Kumi v Nartey [2007-2008] 1 SCGLR 623 Sophia Adinyira JSC stated as follows:

“As said earlier, it is trite law that a person cannot be found or liable by an order or judgment unless he had been given fair notice of the trial proceeding to enable him to appear and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is, in our view, a nullity”

 

Also, in the case of Awuku-Sao v Ghana Supply Co. Ltd[14] where the court again speaking with unanimity per Adinyira JSC held as follows:-

“It is trite law and a cardinal principle of natural justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard.”

 

In conclusion, the doctrine of notice which is so closely related to the principle of audi alteram partem is so fundamental in our jurisprudence, as seen above; even to the extent that the court is willing to treat an entire judgment as a nullity if fair and reasonable notice is not given to a person to enable him appear and defend himself.

[1] [1993] ALL ER 724

[2] [1970] CC 54

[3]  [2003-2004] SCGLR 907 at 924-925

[4] Supreme Court Civil Motion No. J5/08/2023 Dated, 6^th June 2023

[5] (1964) 9 Natural Law Forum 103

[6]  [1723] 1 Str. 557, 567

[7] [2003-2005] 1 GLR 86

[8] Supreme Court Civil Motion No. J5/74/2019 Dated 12^th February 2020.

[9] [2011] 1 SCGLR 574

[10] [2007-2008]1 SCGLR  371

[11] [2010] SCGLR 374

[12] Order 19 rule 3

[13] Order 19 rule 4

[14] [2009] SCGLR 710, at 722

 

BY;   PORTIA ADJEI-MENSAH ESQ.

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

WHAT IS AN INJUNCTION?

 

An injunction is a legal order that restrains a person or entity from doing something or compels them to do something. In Ghana, injunction applications are common in civil cases, especially in land disputes. The High Court has the power to grant an injunction by an interlocutory order in any case where the court finds it just or convenient to do so, according to Order 25 of the High Court (Civil Procedure) Rules, 2004, CI 47. An injunction application can be made at any stage of a trial before a court, be it at the start of the trial or during its pendency. Additionally, an injunction it can be made ex parte or on notice. An ex parte application is made without notice to the other party, and a grant made pursuant to this application can only last for ten days unless extended by the court. An application on notice is made with notice to the other party, and it can last until the final determination of the case. As was stated by Twumasi J. in Mensah v. Moro (1981) GLR728 at 732

 

“In every litigation, there is an inevitable lapse of time between the commencement of the action and the trial, however efficient and expeditious the judicial machinery may be. A person who is causing injury to property, which is the subject matter of the action, would naturally, if not prevented, take advantage of the lapse of time to continue the injury.  It was for the purpose of averting such injury that equity assumed the power to grant interim injunctions the purpose of which was and still is to preserve the status quo ante litem … Although its purpose is laudable, yet the courts do not grant an interim injunction to an applicant just for the asking. Nor do the courts act arbitrarily. On the contrary, our courts have, over the years, evolved very articulate rules and principles for their guidance and true to the dynamic and flexible character of the common law tradition, these rules and principles have and continue to undergo a process of metamorphosis.

 

TYPES OF INJUNCTIONS

Although injunctions are typically understood as being orders to compel a party to stop a particular course of action or prevent them from taking said action in the first place, they may be used for other purposes as well. This is because there are different types of injunctions. These include the Mandatory Injuncto reversect, typically to reverse or correct a wrong act previously carried out by the same party, the Anton Piller injunction, which allows the party to whom it is granted to search property belonging to the party against whom it is granted and is typically granted with the Mareva Injunction which orders the freezing of assets to prevent the other party from dealing with them and the Quia timet Injunction which prohibits a course of action (and is often referred to as a Prohibitory Injunction) Ghanaian jurisprudence does not emphasize the different names or titles given to these types of injunctions. Thus, a judge will not say, “I hereby grant an Anton Piller injunction against the Respondent.” Instead, judges make specific orders with the directions or prohibitions to be undertaken by the parties contained in the order.

TIME PERIODS FOR AN INJUNCTION

Injunctions are also categorized based on the length of time for which they operate. Injunctions may be interim, interlocutory, or perpetual. An interim injunction lasts for a specific period, typically ten days in the Ghanaian Jurisdiction, subject to any further extensions by the granting court. An interlocutory injunction is granted during the pendency of a court matter and lasts until final judgment is given.[1] The perpetual injunction is granted without a time limit and is typically granted at the end of the matter in the final judgment.

BASIS FOR GRANTING INJUNCTIONS

Order 25 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) provides a valuable starting point for the basis of granting injunctions in Ghana. Order 25, Rule 1, provides that a judge may grant an injunction where they deem it to be “just or convenient to do so.” As stated by Twumasi J., case law has provided some guidance on the means of determining what is “just and convenient.” Very briefly, these are the establishment of a prima facie case,[2] the proof of a legal or equitable interest by the applicant,[3] the balance of hardship or convenience,[4] and the fact that damages would not sufficiently compensate the injured party should the application be refused.[5] A fundamental feature of the injunction as well is that being an equitable remedy, the rules and maxims of equity will also apply.[6]

THE EFFECT OF THE SERVICE OF A NOTICE OF THE FILING OF AN INJUNCTION ON A PARTY AGAINST WHOM IT IS FILED

The effect of the service of a notice of the filing of an injunction on the person against whom it is filed before the hearing of the matter has been frequently debated and been subjected to varying interpretations within the legal fraternity. Such debates have long existed but have come to the forefront of public discourse as a result of recent matters involving the Electoral Commission and the Ghana Police Service of the Republic of Ghana. The aforementioned parties have been subjects of two separate injunction applications in September of 2023.

On the 7^th day of September 2023, five registered political parties filed an injunction before the Supreme Court against the Electoral Commission to prohibit the Limited Voter Registration Exercise commencing on the 12^th day of September 2023.[7] Despite having been validly served with the injunction, the Electoral Commission chose to proceed with the registration as planned. On the other hand, however, is the Ghana Police Service. The Ghana Police Service, in a bid to prevent a planned demonstration by a section of the public that they deemed to be unlawful, filed an injunction a day before the scheduled date of the protest and purported to serve same on the conveners of the protest. As a result of the failure of the conveners to comply with the alleged injunction, the police proceeded to arrest the protesters and subsequently detained them in police cells for varying periods, some for over 13 hours.[8]

In the foregoing instance the matter of the effect of the service of an injunction on a party against whom it is filed has been brought to the fore of legal discourse.

On one side is the argument which posits that mere service of notice of an injunction applu7ication, should be of no effect. This argument is based on the logic that the service of a writ does not compel the defendant to comply with the reliefs on the writ. Thus, for example, the filing of a divorce petition does not allow either party to commence sexual relations with another person. That would still be adultery. Additionally, a validly served writ claiming ownership of land does not automatically mean the occupying party must vacate the premises until judgment is made. The filing of a custody petition does not oblige the Respondent to transfer custody of the child to the Petitioner. The logic of these examples is obvious- that a defendant party is not required to immediately comply with the prayers of the plaintiff until judgment is obtained.

The other side of this argument, supported by judicial authority, holds that the valid service of an injunction on the party against whom it is served is essentially effective as a stay on whatever conduct is being injuncted against. Thus, an injunction against a party building on the contested property is, by itself, a stay against further construction until the judge dismisses the injunction. The logic of this argument is drawn from the contempt principles of overreaching.

CONTEMPT

As a result of the Presidential election petitions of 2012 and 2020 before the Supreme Court, most lay people understand contempt as occurring when a person makes unsavoury comments about a judge. Others understand it as occurring when a person makes statements about a pending court case. Other types of contempt do exist, however, since contempt of court can broadly be explained to be any conduct that has the effect of bringing the administration of justice into disrepute. As was stated by Bamford-Addo JSC in Republic v. Mensa-Bonsu and others [1994 – 95] GBR 131 – 281 SC,

“Therefore, for the fair and proper administration of justice it is of the utmost importance that the sanctity and integrity of the court and its judges are preserved to enable them to perform their constitutional and judicial functions peacefully, fairly, impartially and independently free from any undue interference from any quarter. This is the reason why the courts are given power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which “scandalises” the courts, by eroding public confidence in them or by weakening and impairing their authority.”

OVERREACHING AS A FORM OF CONTEMPT

Thus, any conduct that has the effect of unduly interfering with the fair and proper administration of justice may be deemed to be contemptuous. Overreaching as a form of contempt occurs when a party to an action deliberately conducts themselves in a manner that has the effect of limiting the effect of whatever judgment is to be given or has the effect of extinguishing whatever rights would have accrued to the victorious party at the end of the judgment.

Contempt by way of overreaching, although uncommon, has received some judicial pronouncements from the courts. A case in point is the dictum of Okunor J in the case of Republic v. Jehu Appiah and Ors. Ex-parte Forson (1981) GLR 398 where, in considering an application for contempt, the judge stated:

“…the test for contempt was not confined to cases where the conduct of the respondents did prevent the court from inquiring into specific matters raised in the pleadings in the suit before it. It was still contempt even when the court could go into the matter but the end product of the exercise of that jurisdiction would be marred by some act of interference done during the pendency of the action. The expression “jurisdiction” was not confined to physical inability of the court to inquire into the matter before it; it extended to the effect of its orders or judgment on the parties litigant and beyond.” (Emphasis is mine)

Additionally, in the case of Republic v. Prof. Nii Otu Nartey Ex-Parte Peter Waka And 36 Others (2011) JELR 69876 (HC), Assuman-Adu stated thus:

“Civil contempt is that quasi-contempt consisting in failure to do something which the party was ordered by the court to do for the benefit or advantage of another party to pending proceedings; while criminal contempt is the act done in respect of the court or its process or which obstructs the administration of justice or tend to bring the court into disrespect.

So, any act or conduct that tends to interfere with the administration of justice may constitute contempt of court. Once an application is pending and parties are made aware of the pendency of the said application, any conduct on the part of the respondents that is likely to prejudice a fair hearing of the application is tantamount to contempt of court.” (Emphasis is mine)

CONTEMPT AND INJUNCTIONS

This above-discussed logic is consequently applied to injunction applications. Thus, the earlier construction would constitute contempt because the applicant for the injunction would be saddled with an unwanted edifice on their property., should the court declare title in their favour. Who then is to be liable for the expense of demolition of the structure on the land? Imagine the reverse, where the guilty party was instead threatening to demolish the property of the applicant. Still proceeding to destroy the property merely because the injunction has not been heard would most likely make the judgment moot.

The courts have additionally made specific pronouncements on this form of contempt. In finding the Respondents liable for contempt for ignoring an injunction application in the case of Republic v. Moffat and Others; Ex Parte Allotey [1971] 2 GLR 391-403, Abban J stated thus at p. 399:

“I would be laying down a very dangerous precedent if I were to hold that a party, when served with application for an order of prohibition from the High Court, can disregard or ignore the said application and treat the court with contempt, if he believes that the said application is misconceived.”

Even more compelling is the recent Supreme Court case of The Republic v. Bank of Ghana, The Governor (Bank of Ghana) And 4 Ors. Ex-Parte: Benjamin Duffour (2018) JELR 68876 (SC) where Baffoe-Bonnie JSC discussed the existence of such contempt when an action is pending before a court. In doing so, he stated:

“The respondents in their statement of case aver that not a single one of the Respondents herein have engaged in any act(s) which have the effect of bringing the administration of justice into disrepute and or scandalizing the Court. They further state that for an act to constitute contempt it has to be a willful disobedience of an order of a court. True as their contention may be, we believe the respondents miss a very important aspect of contempt of court. They fail to consider the fact that contempt of court may arise where a party knowing that a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the court.

…. When a court is seized with jurisdiction to hear a matter, nothing should be done to usurp the judicial power that has been vested in the court by the Constitution of Ghana. In effect, the state of affairs before the court was seized with the matter must be preserved until the court delivers its judgment. This is so whether or not the court has granted an order to preserve the status quo or not. A party to the proceedings will be in contempt if he engages in an act, subsequent to the filing of the case, which will have the effect of interfering with the fair trial of the case or undermine the administration of justice. The conduct must be one which has the effect of prejudging or prejudicing the case even before a judgment is given.” (Emphasis is mine)

The application of these rules does, however, raise certain concerns which are based on practicality. It is humbly submitted that the presence of these rules, as they are, leaves room for abuse of the law by parties. For example, a party who merely does not wish an event to happen or intends to stall the occurrence of an event may file and serve a frivolous injunction application just hours before the occurrence of the said event. Should the service of the notice be successful, the party against whom it is served will be in contempt if they proceed to act. This is exacerbated when one considers the holding of the court in Ex Parte Allottey that even where a party is not served with the notice but it can be shown that they knew or should have known of the pendency of same, they will still be liable for contempt of court.

Even more frustrating is the fact that the disbelief of the party on whom the injunction is served in its merit is no defense to refusing to comply with its terms. This point is better put across by F.G Korbieh JA in the case of The Republic v. Alhaji Tudjani Ex-Parte: Kasseke Akoto Dugbartey Sappor And 2 Others (2014) JELR 67921 (CA) where the learned Justice stated thus:

“…In any case it is no defence to a charge of contempt for the respondent to say that because he believed in the legitimacy of his claim to the property in dispute his actions on the property were legally justifiable. The issue of the legitimacy of any person’s claim to property that is the subject matter of litigation before a court is a matter of law for the court to decide. So (sic) matter how well founded the person thinks his belief may be, he cannot decide the issue otherwise he would be usurping the legitimate power of the court. That alone amounts to contempt of court since it interferes with the court’s duty to adjudicate the matter without interference from either party or anyone else.”

And so, even where, for example, a party reasonably believes that the injunction will be dismissed because the applicant does not have a right to the subject matter or the applicant has not conducted themselves equitably, the respondent is still estopped from proceeding.

This remains true regardless of the expenses incurred by the Respondent in preparation for the event. Thus, where the conduct to be injuncted against is a ceremony, for example, the finale of a competition, there would no doubt be extensive and time-sensitive expenses that the Respondent would have incurred. What if it is a ticketed event? Then, the Respondent would be stuck with costs already incurred and the cost of refunds, not to mention the damage to their reputation. The position of the law will still apply regardless. One might respond to this using the oft-quoted dictum of Lord Mansfield in the English case of Somerset v. Stewart (1772) 98 ER 499 that “Let Justice be done, though the heavens may fall.” But it is humbly submitted that a frivolous application to injunct the occurrence of an expensive event that is served a day or hours before the event rather occasions the greater injustice to the Respondent party.

The strict application of the rule also becomes problematic when one considers events of a public nature. This is a fairly common occurrence in public elections. One party is dissatisfied with the conditions leading up to the election or a condition on the day of the election and applies to injunct the entire election. What about an application to injunct a person from being sworn into office, as was the case in Ex Parte Allotey? As was held in the case, the injunction is binding regardless, provided it has been validly filed and served.

Even more pertinent is where the injunction application relates to the enjoyment of fundamental human rights by citizens. This is best evidenced in the recent matter involving the Ghana Police Service and the #OccupyJulorbiHouse protesters. Despite being served with the notice of intention to hold a planned peaceful demonstration pursuant to Section 1 of the Public Order Act, 1994 (Act 491) a month in advance, the police service, whether maliciously or otherwise, waited until a day before the scheduled protest to file and attempt to serve the injunction application against the protest. The right to demonstrate and protest is strongly guarded by Article 21 of the 1992 Constitution and has received judicial blessing in the classicus Supreme Court case of New Patriotic Party v. Inspector-General of Police [1993-94] 2 GLR 459—509. It is humbly submitted that these rules and principles regarding the effects of filing and serving an injunction application, as they exist, create room for undue fetters on the rights of citizens.

POSSIBLE REMEDIES

Presently, besides making orders as to payment of costs to the opposing party, there exists no real consequence on a person who maliciously files an injunction application. This is undesirable since the entire point of an injunction application is to protect the applicant from a circumstance that money cannot or will not be adequate to compensate them for the losses or damage that will be incurred or suffered.

It is accordingly humbly submitted that attempts must be made at resolving the different issues that come out of the application of the contempt rules over injunction applications. The solutions or principles to be applied must necessarily take cognisance of the peculiar nature of the problem. It should be stated that remedying the problems enumerated above will most likely go beyond judicial determinations. The Police Service issue with regard to timing of the filing of an injunction application following receipt of notice of a planned demonstration for example can best be resolved by amending the Public Order Act to be more time-sensitive regarding when an application to prevent an event from occurring may be brought.

As a starting point, a distinction should be drawn between ongoing acts and short-term events. A maliciously filed injunction is of greater consequence to the latter than the former. Thus, there should be more stringent consequences for parties who intentionally file malicious injunction processes of this kind before courts. Where it can be assessed from the circumstances by the courts that the injunction was frivolous and was filed maliciously at a time when the respondent would have no other choice than to call off the event, the innocent party or the court suo motu should be able to commence contempt proceedings against the applicant.

Additionally, administrative review of the process for hearing injunction processes relating to public interest matters should be considered. This would inevitably require a determination of what amounts to the public interest. Such an administrative procedure would best be developed by the Rules of Court Committee and imbued into the Rules of Court.

CONCLUSION

In conclusion, an injunction is an order of the court made to a party to either prohibit them or compel them to take an action with the aim of maintaining the status quo between the parties. The current position of the law is that a party who is served with a notice of an injunction is essentially estopped from engaging in the conduct against which he is injuncted. This position of the law in its application on occasion produces results that rewards parties who seek to abuse the judicial process. It is important that its application should be balanced in order to protect the sanctity of the justice system, especially from those who seek to abuse its processes for their own gain.

[1] See the dictum of Ayebi JA in Serwaa & Anor. v. Dwomoh & 4 Ors. [2015] 86 GMJ 95 at 120

[2] See Adjei Acheampong v. Donkor [1980] GLR 108

[3] See Owusu v. Owusu Ansah & Anor. [2007-2008] SCGLR 870

[4] Bonsie v. Boateng [2012] 52 GMJ 206 @ 211, C.A

[5] See Montero v. Redco [1984-86] 1 GLR 711, C.A and the Musicians Union of Ghana v. Abraham and Another [1982-83] 337-345

[6] Dede II v. Ansah and Others [1980] GLR 746-751

[7] Daniel Kenu, ‘EC begins limited voter registration today – Despite court injunction’ Graphic Online (Accra, 12 September 2023) <https://www.graphic.com.gh/news/general-news/ec-begins-limited-voter-registration-today-despite-court-injunction.html>

[8] Kent Mensah, ‘Ghana police arrest 49 as high cost of living triggers street protests’ Aljazeera (Doha, 22 September 2023) <https://www.aljazeera.com/features/2023/9/22/ghana-police-arrest-49-as-high-cost-of-living-triggers-street-protests>

 

BY; KEKELI DZEKETEY EKQ.

 

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

 

 A Pictorial representation of the ESG Framework[6]

 

Abstract

 

The term “ESG”—which stands for “environmental, social, and governance”—has evolved, especially in the investing community, to refer to the environmental, social, and governance issues that investors are taking into account when analyzing business behavior and performance and that they may take into account when making investment decisions. This article focuses on what ESG reporting entails, the various indicators, the reporting standards globally and in Ghana and the dangers involved with ESG reporting, focusing mainly on greenwashing.

 

 

Introduction

 

ESG is a general term used in capital markets and by investors to assess corporate behavior and predict future financial performance of organizations.[1] It stands for “environmental, social, and governance” ESG reporting has evolved especially in the investing community, to refer to the environmental, social, and governance issues that investors are taking into account when deciding where and when to invest.

 

In the middle of the 20th century, interest in sustainability developed as people became more aware of the threat posed by climate change and the human-induced enhanced greenhouse effect, which is primarily caused by the clearance of forests and the combustion of fossil fuels. The 2030 Agenda for Sustainable Development was adopted by the UN General Assembly in September 2015 with the intention of achieving targets in order to reach the 17 Sustainable Development Goals (SDGs).[2]

 

Sustainability encompasses the efforts made by the companies to mitigate effects of their operations on environments, ecosystems, wildlife, humans, oceans, rivers, landscapes, and the atmosphere. It involves securing the permission to utilize natural resources responsibly while fostering enduring partnerships with stakeholders, including shareholders, employees, contractors, communities, customers, and suppliers.[3]

 

A company’s primary focus should be on sustainability, which involves strategies and tactics for communicating how the business’s actions influence the environment and society. Sustainable development is defined as “development that satisfies current needs without compromising the ability of future generations to satisfy their own requirements”.[4]

 

ESG Indicators/ Measures of ESG

 

Environmental, social and governance measures or standards are used to describe the environmental, social and governance issues that typically influence investors and their decisions to invest in businesses.

 

The first indicator, environment, refers to the knowledge of factors like population expansion, climate change, and their negative effects on the environment.

 

Corporate social responsibility (CSR) as we know it, is what encompasses the social indicator of ESG. CSR is included in the category of “Social” activities. It is a response to problems like population increase and climate change as well as the effects of business operations on the communities where they are located.

 

The third factor is governance. Depending on the situation, different definitions of corporate governance exist. It primarily concerns corporate leadership, namely the function of the board of directors in setting policy and exercising control over an organization. External governance mechanisms are those that have an impact on a corporation but are out of the board of directors’ direct control, such as laws and regulations and the acts of different stakeholders. Internal governance systems are the frameworks and procedures created to guarantee board independence and responsibility through transparent reporting, risk management, and a zero-tolerance policy against bribery and corruption. They cover a board’s organizational structure, committee independence, and methods for reporting to and being held accountable by the board. Executive remuneration and benefits, bribery and corruption, shareholder rights, business ethics, board diversity, board structure, independent directors, risk management, whistleblower programmes, stakeholder communication, lobbying, and disclosure are a few examples of governance challenges. [5]

ESG Reporting Standards

 

ESG standards are sets of principles for reporting the ESGs of a company or corporation.

 

These standards and frameworks are necessary for standardized reports. Companies cannot use their own standards to report on their ESGs. However, there is no universal reporting standard or framework for ESG reporting.

 

Some common ESG reporting standards are:

1. The European Financial Reporting Advisory Group (EFRAG) standards. EFRAG was established by the European Commission and is closely tied to that body’s Corporate Sustainability Reporting Directive (CSRD), passed in 2021. The standards focus on sustainability and financial matters.
2. The IFRS Sustainability Disclosure Standards, spearheaded by the International Sustainability Standards Board (ISSB). These standards aim to streamline accounting reporting globally, increasing transparency in financial markets.
3. The Sustainability Accounting Standards Board (SASB) standards. These focus on all three pillars of ESG and are closely connected with the IFRS standards above.[7]

Ghana, does not have a standard for ESG reporting generally. However, the Ghana Stock Exchange, in their ESG disclosures, guidance manual, August 2022 used the GRI standards of reporting.

The GRI reporting standards are Global best practices for publicly disclosing a variety of economic, environmental, and social impacts are represented by the GRI Standards. Based on the Standards, sustainability reporting reveals whether an organization has made positive or negative contributions to sustainable development.[8]

The report summarized the standards of reporting as follows:

1. Accuracy: The organization shall report information that is factually correct and sufficiently detailed to enable the assessment of the organization’s impacts.
2. Balance: The organization shall report information in an unbiased way and provide a fair representation of the organization’s negative and positive impacts.
3. Clarity: The organization shall present information in a way that is accessible and understandable.
4. Comparability: The organization shall select, compile, and report information in a consistent manner, to enable the analysis of changes in the organization’s impacts over time and an analysis of these impacts relative to other organizations.
5. Completeness: The organization shall provide sufficient information to enable the assessment of the organization’s impacts during the reporting period.
6. Sustainability context: The organization shall report information about its impacts in the wider context of sustainable development.
7. Timeliness: The organization shall report information on a regular schedule and make it available in time for information users to make decisions.
8. Verifiability: The organization shall gather, record, compile, and analyse information in a way that the information can be examined to establish its quality.[9]

 

The danger of Greenwashing

 

To generate an unrealistically optimistic company image, “greenwashing” is the selective presentation of positive information without full disclosure of negative facts.[10] Due to the difficulty for stakeholders in evaluating enterprises’ environmental performance directly, greenwashing is a major empirical phenomenon in the context of organizations’ interactions with the environment. As a result, businesses increasingly rely on environmental reports, advertising, corporate websites, or eco-certification programmes to communicate their environmental quality. Growing skepticism regarding the discrepancy between what businesses say and do on environmental concerns has been fueled by increased environmental disclosure without clear meaningful improvements in environmental consequences.[11]

There is a real risk of companies engaging in greenwashing in their reports to attract investors and to create undue competitive advantage .

 

 

 

Conclusion

 

Ghana, in its quest to contribute to the SDG goals of sustainability, improve corporate social responsibility and corporate governance, needs to incorporate ESG reporting in its investment standards and also create a regulatory framework for it while taking into account and developing systems that prevent and/or minimize the very apparent risk of greenwashing by companies.

 

By: Portia Adjei-Mensah Esq.

 

 

 

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

[1] IFAC (2012). Investor Demand for Environmental, Social, and Governance Disclosures: Implications for Professional Accountants in Business. New York, International Federation of Accountants.

[2] Armstrong, A. (2020). Ethics and ESG. Australasian Accounting, Business and Finance Journal, 14(3), 6-17.

 

[3] BHP Billiton. (2014). Value Through Performance: Sustainability Report 2015.

[4] Bruntland, G. (1987). Our Common Future: The World Commission on Environment and  Development. Oxford: Oxford University Press.

 

[5] Armstrong, A. (2020). Ethics and ESG. Australasian Accounting, Business and Finance Journal, 14(3), 6-17.

 

[6] https://www.acuitykp.com/market-guide/esg-model-validation/

[7] https://www.thecorporategovernanceinstitute.com/insights/guides/whats-the-difference-between-esg-reporting-standards-and-frameworks/#:~:text=ESG%20reporting%20frameworks%20are%20more,metrics%20for%20reporting%20each%20topic.

[8] https://www.globalreporting.org/how-to-use-the-gri-standards/gri-standards-english-language/

[9] https://gse.com.gh/wp-content/uploads/2022/11/GSE-ESG-DISCLOSURES-GUIDANCE-MANUAL-1-1.pdf

[10] Lyon T. P., Maxwell J. W. (2011). Greenwash: Corporate environmental disclosure under threat of audit. Journal of Economics & Management Strategy, 20, 3-41

 

[11] Dauvergne P., Lister J. (2010). The prospects and limits of eco-consumerism: Shopping our way to less deforestation? Organization & Environment, 23, 132-154,  Bowen, F., & Aragon-Correa, J. A. (2014). Greenwashing in corporate environmentalism research and practice: The importance of what we say and do. Organization & Environment, 27(2), 107-112.

 

 

Investment and the Legislative Framework in Ghana: An overview of the Ghana Investment Promotion Centre Act.

Introduction

The Ghana Investment Promotion Centre Act, 2013 (Act 865)(hereinafter referred to as “the Act”), is one of the enactments which govern and regulate investments in Ghana. Act 865 retains a crucial role in the investment regime in Ghana for both domestic and foreign investors. This Article navigates and assesses some crucial provisions of this significant piece of legislation as a tool for modelling an investor friendly environment for both citizens and foreign nationals.

 

The Act applies to enterprises in Ghana and establishes the Ghana Investment Promotion Centre. The Ghana Investment Promotion Centre is a Government agency whose responsibilities and object include:

 

1. The encouragement and promotion of investments in Ghana
2. Making provision for  an attractive incentive framework and a transparent, predictable and facilitating environment for investments in Ghana.^[1]

 

By the Act, an enterprise means an industry, project, undertaking or business or an expansion of that industry, undertaking, project, or business or any part of that industry, undertaking, project or business.^[2]

 

Establishment of Enterprises

The Act requires that a person who intends to establish an enterprise for the purposes of the Act shall incorporate or register the enterprise in accordance with the Companies Act and other laws that are relevant to the establishment of the enterprise.^[3]

 

This requirement presupposes that to qualify as an enterprise under the Act, an ‘enterprise’ must first be incorporated as a company.^[4] A business entity like a partnership or sole proprietorship may not qualify as an enterprise under the Act. In addition to incorporation under the Companies Act, any additional law(s) applicable to the incorporated company would have to be complied with. These laws include special legislation for sectors such as banking, mining, insurance, securities etc.

 

Registration of Enterprises with the Ghana Investment Promotion Centre (the Centre)

The Act requires that an enterprise with foreign participation as permitted under the Act shall be registered with the Centre.^[5] The Act confers some benefits on enterprises. As a result, an enterprise that is registered with the Centre would become entitled to these benefits and guarantees. In furtherance of the registration process, the Act provides that the Centre shall within five working days from receipt of a completed registration form register an enterprise. However, the Centre must be satisfied that:

(i) all the relevant documents for registration are in order:

(ii) the minimum foreign equity capital requirement has been complied with; and

(iii) the fee required for registration has been paid.

 

While the Act makes it mandatory for an enterprise in which foreign participation is permitted (an enterprise with foreign participation) to register with the Centre, a wholly owned Ghanaian enterprise may or may not register with the Centre. It is also mandatory for an enterprise with foreign  participation to renew its registration with the Centre every two years.^[6] This is not the case with wholly owned Ghanaian enterprises.

 

Activities reserved for Ghanaians and Ghanaian owned enterprises

The Act reserves some investment enterprises for only Ghanaians. Accordingly, a person who is not a citizen of Ghana or an enterprise which is not only owned by a Ghanaian citizen cannot participate. These enterprises include:^[7]

 

• the sale of goods or provision of services in a market, hawking, selling of goods in a stall at any place;
• The operation of taxi or car hire service in an enterprise that has a fleet of less than twenty-five vehicles;
• The operation of a barber shop
• The operation of a beauty salon
• the printing of recharge scratch cards for the use of subscribers of telecommunication services;
• the production of exercise books and other basic stationery;
• retail of finished pharmaceutical products
• the production of sachet water;
• supply of sachet water;
• retail of sachet water; and
• all aspects of pool betting business and lotteries, except football pool.

 

The Minister designated by the president to be in charge of the Centre has been conferred with the discretion to amend the list.

 

The wording of (b) above, suggests that a non-citizen or an enterprise with foreign participation can operate a car hire service if the enterprise has a fleet of up to twenty-five vehicles or more. The Act defines a finished pharmaceutical product as used in (g) above to mean any chemical substance or product meant for the consumption of the end user.

 

 

 

 

 

Enterprises eligible for foreign participation – Section 28 of the Act

Notwithstanding that the Act reserves some enterprises for Ghanaian citizens, the Act permits foreign participation in some other enterprises subject to a minimum foreign capital requirement. As a result, a person who is not a citizen of Ghana is eligible to participate in an enterprise other than those identified above if the person meets the following requirements:

 

• invests a foreign capital of not less than two hundred thousand (USD 200,000.00) United States Dollars in the case of a joint enterprise with a partner who is a citizen. This amount could either be in cash or capital goods relevant to the investment or a combination of both cash and capital goods. The partner who is a citizen should not have less than ten per cent (10%) equity participation in the enterprise.

 

• where the enterprise is wholly owned by that person (foreign investor), the person invests a foreign capital of not less than five hundred thousand (USD 500,000.00) United States Dollars in cash or capital goods or a combination of both by way of equity capital in the enterprise.

 

To engage in a trading enterprise, a person who is not a citizen of Ghana must invest in the enterprise not less than one million (USD 1,000,000.00) United States Dollars either in cash or goods and services. The said enterprise is required to employ at least twenty skilled Ghanaians. Trading in this context includes the sale and purchase of imported goods and services: Section 28 of the Act.

 

Section 28(a) of the Act does not seem to use the word ‘partner’ in terms envisaged by the Incorporated Private Partnership Act, 1962 (Act 152). Act 152 defines a partnership as the association of two or more individuals carrying on business jointly for the purpose of making profits. It further provides that an association of members is not a partnership if it is , among others, a company, body corporate,  or unincorporated association formed under any enactment. This exception to a partnership under Act 152 suggests that an enterprise registered as a company in accordance with the Companies Act would not be a partnership in the legal sense of the word in Ghana.

 

It is worth noting that the minimum foreign capital requirement does not apply to the foreign spouse of a citizen of Ghana. The exception would however apply to these persons  provided that:

 

• the foreign spouse is or has been married to a citizen of Ghana for a minimum period of five years continuously

or

holds an indefinite resident permit before the registration of an enterprise ;

 

• The marriage has been verified to be valid; and the foreign spouse is ordinarily resident in Ghana.

 

Also, a Ghanaian citizen who loses their citizenship by reason of becoming a citizen of another country shall not be subject to the minimum capital requirement.

 

Exemption from the minimum capital requirement

The minimum capital requirement referred to above does not apply to investment categories. They include:

• investment in shares or bonds which are mandatorily convertible into shares or other securities traded on the Ghana Stock Exchange; or
• an enterprise set up solely for export trading and manufacturing.^[8]

 

Investment Guarantees

The Act guarantees a stable and enabling environment for investments to thrive. It assures a level playing ground for both foreign investors and citizens. Accordingly, a foreign investor, employer or worker is entitled to the same rights and subject to the same duties and obligations applicable to citizens of Ghana. The Centre shall not discriminate against an investor from a particular country or give special treatment to a prospective foreign investor based on that investor’s country of origin or nationality. A foreign investor shall be subject to the same laws that apply to domestic enterprises, in relation particularly to:

 

1. licences or permits that are required of enterprises for conducting specific business activities
2. maintenance of business books and records in accordance with the recognized accounting standards
3. insurance requirements applicable to similar enterprises; and
4. taxes  required to be paid by enterprises engaged in similar activity.^[9]

 

This is a prohibition against discrimination. Subject to the Constitution of the Republic of Ghana or any other law, including the Act, no enterprise shall be nationalized or expropriated by the Government of Ghana. Additionally, a person who owns, wholly or in part, the capital of an enterprise shall not be compelled by law to cede that person’s capital to another person.

 

The above provision to the effect that a person shall not be compelled by law to cede that person’s capital to another person, resonates with the constitutional right of all persons in Ghana at any given time. However, it is doubtful that the provision would operate to bar an execution of a judgment of a court of competent jurisdiction against an enterprise or partner of an enterprise (judgment debtor).

 

Section 31 (2) of the Act provides as follows:

 

“(2)The Republic shall not acquire an enterprise to which this Act applies unless the acquisition is in the national interest or for a public purpose and the acquisition is done under a law which makes provision for

 

• payment of fair and adequate compensation, and
• a right of access to the High Court for the determination of the investor’s right or interest and the amount of compensation to which that investor is entitled.”

 

The above provision in section 31 of the Act, is akin to Article 20 of the Constitution, 1992, on compulsory acquisition by the state, and does not confer a right of appeal from the High Court if a party is dissatisfied with what the High Court determines as adequate compensation for the acquisition of an enterprise.

 

The Act guarantees enterprises unconditional transferability in freely convertible currency of

 

• dividends or net profits attributable to the investment made in the enterprise;
• Payments in respect of loan servicing where a foreign loan has been obtained;
• fees and charges in respect of a technology transfer agreement registered under the Act; and
• The remittance of proceeds, net of all taxes and other obligations, in the event of sale or liquidation of the enterprise or any interest attributable to the investment in the enterprise.^[10] These guarantees  are however subject to the Foreign Exchange Act, and made and/or exercised  through an authorised dealer bank.

 

Dispute Resolution procedures

The Act makes special room for the settlement of disputes that may arise between an investor and the Government of Ghana. The Act requires that efforts shall be made to reach an amicable settlement in any dispute relating to an enterprise. Where a dispute in respect of an enterprise to which the Act applies is not settled through mutual discussions within six months, an aggrieved party has the option to submit the dispute to arbitration in any of the following ways:

 

• in accordance with the rules of procedure for arbitration of the United Nations Commission of International Trade Law; or
• in the case of a foreign investor, within the framework of any bilateral or multilateral agreement on investment protection to which the Government of Ghana and the country of which the foreign investor is a national are parties; or
• In accordance with any other national or international machinery for the settlement of investment disputes agreed to by the parties.

 

It is important to note that Ghana has signed and ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), thus making Ghana receptive to recognition and enforcement of an arbitral award given to a party in a member state anywhere in the world. This gives a foreign investor in Ghana the latitude to explore a broad spectrum of avenues to seek redress without fear of issues of recognition and/or enforcement in Ghana.

 

Technology Transfer Agreements

As part of the functions of the Ghana Investment Promotion Centre, the Centre is required by the Act to register and keep records of all technology transfer agreements.^[11]  By section 37 of the Act, an enterprise may enter into a technology transfer agreement that the enterprise considers appropriate for the enterprise. The Centre shall on registration of an agreement, monitor and ensure compliance with the terms and conditions of the agreement.

 

Technology Transfer Agreement means an agreement with an enterprise  which involves

• the assignment, sale and licensing of all forms of industrial property, except trademarks, service marks and trade names when they are not part of transfer of technology;
• the provision of technical expertise in the form of feasibility studies, plans, diagrams, models, instructions, guides, formulae, basic or detailed engineering designs, specifications and equipment for training, services involving technical advisory and managerial personnel and personnel training;
• the provision of technological knowledge necessary for the installation, operation and functioning of the plant and equipment, and turnkey projects; and
• the provision of technological knowledge necessary to acquire, install and use machinery, equipment, intermediate goods or raw materials which have been acquired by purchase, lease or other means.

 

The Act operates together with the Technology Transfer Regulations, 1992 (L.I. 1547) to regulate the application of technology transfer agreements in Ghana. The provision for technology transfer agreements under the Act and L.I. 1547, reinforces Ghana’s quest to establish an investor-friendly and flexible environment that is in constant motion with the global technological evolution. By these provisions, an enterprise established in Ghana can access or benefit from intellectual property rights (services) of persons and/or other enterprises that are not readily available in Ghana. The technology transfer regime under the Act, therefore, is a strategic tool for sustaining enterprises established in Ghana’s developing economy.

 

 

 

 

Offences

A person commits an offence under the Act if that person

 

(i) is required by the Act to register with the Centre but fails to register or renew a registration with the Center;

 

(ii) engages in an activity other than an activity for which that enterprise has been registered under the Act

 

(iii) applies any benefit conferred  by or under the Act for purposes other than the purpose for which the benefit was conferred

 

(iv) refuses or neglects to give any information which the Centre reasonably requires for the purpose of the Act

 

(v) refuses without lawful excuse to admit an officer or a designated agent into the premises of that enterprise or otherwise obstructs an officer or a designated agent of the Centre in the performance of the functions of the officer or the designated agent;

 

(vi) deliberately or negligently submits false or misleading information to the Centre

 

(vii) lets out a stall or store in a market to a foreigner; or

 

(viii) otherwise contravenes a provision of the Act.^[12]

 

Penalties

An enterprise which commits an offence under the Act is liable on summary conviction to a fine of not less than five hundred five hundred penalty units and not more than one thousand penalty units and in the case of a continuing offence to an additional fine of not less than twenty five penalty units and not more than fifty penalty units in respect of each day that the offence continues. One penalty unit is equivalent to GHS 12.00 as of February, 2023. Other penalties such as suspension of registration of an enterprise, cancellation of registration of an enterprise etc may apply in addition to those mentioned above.^[13]

 

Conclusion

The Ghana Investment Promotion Centre Act remains a significant piece of legislation that seeks to make Ghana a great destination for investors. The Act continues to hold a central place in making Ghana an investment hub in West Africa and the world at large.

 

It is respectfully submitted that, the minimum capital requirement of USD 500,000.00 for wholly owned foreign enterprises, constitutes a huge disincentive to foreign investment in Ghana. A foreign investor who is unable to start a business in Ghana with this amount may either find an alternative destination for their investment or be compelled by the circumstances to find a Ghanaian business partner. This Ghanaian business partner, in many cases,  may only exist in books. This challenge is more realistically represented by the fact that the Act does not circumscribe what would constitute a partnership with a Ghanaian enterprise. Must the Ghanaian partner be seen to actively play some role(s) in the administration of the enterprise, or mere mention in books would suffice the partnership envisaged by the Act? It is submitted that an amendment of the Act by a downward adjustment of the minimum requirement for wholly owned foreign enterprises, while still keeping the cap reasonable, would not only make Ghana more attractive to foreign investors, the temptation to ‘beat’ the system in this regard would be forestalled thereby promoting transparency among investors.

 

Some of the greatest strengths of the Act include the guarantees against interference by government with the affairs of an enterprise established in Ghana, and the clear choice of arbitration as a favourable mechanism of dispute resolution under the Act.

 

The language of the Act is not too technical, thus lending itself significantly to an ordinary reading and understanding. This notwithstanding, regulated and compliance aspects of the enterprise such as technology transfer agreements and their content, the special requirements of sectors such as mining, banking, insurance, financial and securities, the nuanced registration and renewal processes, continue to make lawyers essential actors in the success story of an enterprise under the Act.

 

 

 

 

^[1] Long Title; Section 3, Act 865.

^[2] Section 43.

^[3] Section 23.

^[4] A company in Ghana may be a company limited by shares, a company limited by guarantee, an unlimited company or an external company. An enterprise under Act 865 may not be registered as a company limited by guarantee as a result of the legislative restriction on the profit making adventures of this type of company.

^[5] Section 24 of the Act.

^[6] Section 24(3) of the Act.

^[7] Section 27 of the Act.

^[8] Section 29 of the Act

^[9] Section 30 of the Act.

^[10] Section 32

^[11] Section 4(f)

^[12] Section 40

^[13] Section 41

 

 

Author: Gideon Bilsilki Esq.

 

 

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

Disclaimer: This publication is for information purposes only and is not intended to constitute legal advice. If you require information on any matter discussed in this article, kindly reach out to the firm directly.