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AUDI ALTERAM PARTEM AND NOTICE IN GHANAIAN LAW

 

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, 6th 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 12th 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

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INJUNCTIONS AND THE BALANCE OF FAIRNESS

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 7th 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 12th 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

 

Uncategorized

ESG REPORTING IN GHANA

 

 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 Journal14(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 Journal14(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 & Environment27(2), 107-112.

 

 

Uncategorized

A GAME CHANGING AFRICAN FINANCIAL SYSTEM- THE PAN-AFRICAN PAYMENT AND SETTLEMENTS SYSTEM (PAPSS)

The African Continental Free Trade Agreement (AfCFTA) is a multinational free trade agreement that was established in 2018, signed in March 2018, and went into force on 30 May 2019, with trade beginning on 1 January 2021. It was signed by 54 of the 55 African Union member countries. Since the World Trade Organization (WTO) was founded, the free-trade zone has grown to be the world’s largest in terms of the number of member countries. The AfCFTA aspires to create a single common market, lower tariffs among members, and cover policy areas such as trade facilitation and services, as well as regulatory measures like sanitary standards and technological trade obstacles. The concept of AfCFTA might be a new development but the idea of free trade has existed over the years as goods are exchanged across all regions of the continent.

The Pan-African Payment and Settlements System (PAPSS) is a centralized cross border financial system introduced by the African Export – Import Bank (Afreximbank) to aid with payments within the continent. This payment system is designed and structured to make transactions faster, reduce costs in respect to cross border transactions and decrease liquidity requirements of central and commercial banks. PAPSS would simplify cross-border transactions, reduce reliance on third-party currencies, and increase intra-African commerce from 15% to 35% during a five-year period as stated by Nigeria’s Central Bank’s governor. He noted that it will improve the framework for the region’s prospective monetary union and allow firms to flourish and create wealth.

Before the introduction of PAPSS, cross border transactions were primarily made through the Society for Worldwide Interbank Financial Telecommunication (SWIFT) platform. SWIFT is a system managed by the G-10 central banks that allows banks all over the world to communicate messages and execute cross border transactions.  According to the African Development Bank, 48% of settlement processes (the transfer of payments from a payer to a receiver via a central system) within Africa involve banks from outside the continent. This raises transaction costs and reduces the productivity of African enterprises. For example, if an entrepreneur in Ethiopia wishes to order a product from a supplier in Ghana, he or she must first obtain US dollars and then use a system that first routes the payment to the US before routing it back to the supplier’s financial institution in Ghana. The SWIFT system costs Africa over $5 billion per year and takes 2 to 14 days to complete the transaction.[1]

 

Over 80% of cross border and intercontinental transactions sent from Africa to anywhere within Africa and outside the continent are handled in the United States but have beneficiaries in other parts of the world. The Asia-Pacific and Europe (non-Eurozone) regions account for 52% of where payments are eventually transferred, while Africa accounts for only 17%. This demonstrates the role of US dollar clearing banks in intermediation. The reliance on third-party currencies such as the US dollar, British pound, and euro destabilizes Africa’s foreign exchange market and causes problems in the manufacturing sector.[2]

Users can also pre-fund their accounts before transactions are initiated. This pre-funding solution is offered to direct participants (mostly banks) who are obliged by their central banks to establish a real-time gross settlement (RTGS) account. In order to initiate transactions, indirect participants who do not have an RTGS account would require the assistance of a direct participant to fund or defund their PAPSS clearing accounts.

PAPSS payment systems settles all participating central banks within 24 hours of the initiation of the transaction which means that a bank gets credits and debits simultaneously and settled within 24 hours. PAPSS is also set to deliver harmonization across the continent through its comprehensive legal, regulatory and operational framework compromising standardized rules, formats and governance arrangements, harmonized Know-Your-Customer and Anti-Money Laundering procedures, payment confirmation and settlement finality. A precondition for participation in PAPSS is compliance with its set rules and standards.

GCB Bank Plc, one of Ghana’s leading banks, announced on 3rd March, 2023 that it had completed the first Pan-African Payment and Settlement System (PAPSS) client transaction in Ghana. A Ghanaian-incorporated firm initiated a supplier payment from GCB in Ghana Cedis to a beneficiary in Nigeria, who received the payment in Naira immediately.[3]

 

CONCLUSION

The commencement of the PAPSS financial system will help Africa become an open market for movement of goods through time and cost-effective transactions. PAPSS is an efficient payment system that will be relied on to make international and regional trades in local currencies without converting to another currency as the conversion will be done by the system internally. PAPSS will significantly reduce the time used to complete financial transactions. Resolving payment and settlement bottlenecks will help African currencies keep value while the region moves forward with the AfCFTA, a crucial economic union initiative. In conclusion, PAPSS is a game changing initiative in improving cross-border trade in Africa and this will generate a significant capital for Africa and Africans.

 

BY; PRISCILLA MBAMA YAKUBU

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.

 

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

 

[1] https://www.premiumtimesng.com/opinion/532098-papss-a-crucial-payment-system-for-the-african-market.html?tztc=1

[2] https://www.premiumtimesng.com/opinion/532098-papss-a-crucial-payment-system-for-the-african-market.html?tztc=1

[3] https://papss.com/media/gcb-completes-first-papss-client-transaction-in-ghana/

Uncategorized

ARBITRATION AS A FORM OF DISPUTE RESOLUTION IN GHANA

ARBITRATION AS A FORM OF DISPUTE RESOLUTION IN GHANA

 

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for an alternate dispute resolution (ADR) procedure instead of going to court or litigating. Arbitration is gaining roots in the settlement of commercial, investment and business-related disputes. Multi-national companies among other corporate entities use arbitration as compared to litigation.

 

In Ghana, the Alternative Dispute Resolution Act 2010 (Act 798) governs domestic arbitration proceedings. It offers rules and procedure by which the parties to the arbitration and the arbitrator should determine disputes.

 

An important aspect of arbitration that should be considered when invoking the process is the enforcement of awards. Parties must be sure that the final award determined at the conclusion of the arbitration by the Arbitrator is capable of being enforced in the home country where the party seeks to enforce such an award if it is an international dispute. While domestic arbitration refers to resolving dispute between parties in the same country, international arbitration resolves disputes between parties of different countries. Act 798 does not regulate foreign arbitral proceedings; however, it provides the framework for the enforcement of foreign arbitral awards in Ghana. The Act recognizes and enforces arbitral awards from countries that are parties to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention) or any other international convention on arbitration ratified by Ghana’s Parliament. It is important to note that an arbitral award must be enforced within six (6) years of it being made and an action to enforce an award, where the arbitration agreement is under seal must be done within twelve (12) years as per the Limitation Act 1972 (NRCD 54).

Whilst arbitration is encouraged within Ghana’s legal system, it should be noted that not all matters can be referred to arbitration. Matters involving the environment, public or national interest, and matters that border on the enforcement and interpretation of the constitution among others cannot be referred to arbitration. Matters involving the foregoing are submitted to courts of competent jurisdiction provided for under law for determination.

There are institutions that regulate and/or supervise the administration of arbitral matters. In Ghana, they include the Ghana Arbitration Centre, the Ghana ADR Hub, the Ghana Association of Certified Mediators and Arbitrators and the Marian Conflict Resolution Centre.

 

Parties to an arbitration are at liberty to agree on the number, qualification and procedure for the appointment of an arbitrator. The parties are able to also agree on the circumstances under which an arbitrator’s appointment can be terminated. Where the parties are unable to settle on the number of arbitrators, Act 798 provides for three (3) arbitrators. Again, where the procedure for appointing an arbitrator is not settled as between the parties each party, in the arbitration which requires the appointment of three arbitrators, shall appoint one arbitrator and the two appointed arbitrators, shall appoint the third arbitrator who shall be the chairperson.

 

An arbitrator must be independent and impartial. Where there is anything that is likely to raise reasonable doubt as to the independence and impartiality of an arbitrator, the said arbitrator must disclose such in writing. Where parties to a contract which provides for arbitration in the event of a dispute and a party to the said contract initiates and/or commences an action in court without resorting to arbitration first, the other party can apply to the court to have the proceedings stayed for the action to be referred to arbitration. However, if the other party files a defence to the action started in court then that party waves the right to arbitrate the action. The arbitration process is confidential and all parties to the arbitration must uphold confidentiality.

 

Advantages of Arbitration

  1. The proceeding of arbitration is private
  2. The parties have a choice to choose who their arbitrator unlike in litigation where parties do not choose the judge who presides over the case
  3. The parties rely on experts in the adjudication of the matter.
  4. The matter may be heard within a short period of time hence there is speed in adjudicating the matter.
  5. The decisions of the arbitration are final.
  6. The forum for the adjudication of the matter is mostly neutral.
  7. The procedure in the adjudication of the matter is informal.
  8. Cost is relative. It may be high or low depending on the matter.
  9. The arbitrator decides or determines the dispute in accordance with the law chosen by the parties.

 

Disadvantages of Arbitration

  1. Parties are responsible for the cost associated with venue and fees of the tribunal.
  2. The tribunal has limited power in making interim orders.
  3. The assistance of the court is need in the enforcement of awards.

 

According to Act 798, arbitral awards are final and binding on the parties but they can be set aside under limited circumstances such as where it is proven that the parties failed to follow the agreed procedure or that the dispute cannot be settled by way of arbitration among others. Any party who wishes to set aside an arbitral award must bring an application within three months from when the award was granted.

 

The enforcement of an arbitral award is effected through the court system if the losing party fails to honour the award rendered. The enforcement process generally follows the same manner as any judgment of the court. The process to enforce an arbitral award starts in the High Court by filing an application seeking the leave of the court to enforce the award.

 

Conclusion

Arbitration is a popular method of dispute resolution and will remain so for the foreseeable future. Being a private and informal procedure, it offers the parties flexibility and a means of resolving disputes in privacy, in a time efficient and less costly manner among other considerations.

BY; VIDA NARKIE ODONKOR ESQ.

 

 

 

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.

 

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

Uncategorized

THE PROCESS OF ADOPTION IN GHANA

THE PROCESS OF ADOPTION IN GHANA

Family is the basic unit of life. However, there are quiet a significant number of people/children who do not have a family due to tragic experiences. Children who are orphans and without any known relatives or with known relatives who are not ready to accept responsibility for them or have families but such families are not capable of giving them care and are ready to give such children up for adoption. These children are given up for adoption to other relatives who are interested in caring for them  or given to the state through the Department of Social Welfare who subsequently give them up for adoption to enable such children have a normal family to grow up in.

Adoption is a social, emotional and legal process that enables a child who may not be raised by his/her birth parents become a legal member of another family. Adoption transfers parental responsibilities for the child to the adoptive parent. The adoptive child then cuts ties with his birth parent and becomes a full member of the adoptive parent’s family. There are two types of adoption. In-country adoption and intercountry adoption.

INTERCOUNTRY ADOPTION

Intercountry Adoption is where the adoptive parent does not reside in the country where the child is being adopted from. Upon adoption, the adopted child moves to the adoptive parents’ country and live with them permanently. There are two forms of intercountry adoption. Relative and non-relative adoption. Relative adoption is where the applicant and the intended adoptive child have affiliation through blood, adoption or marriage. Non-relative adoption is where the applicant has no affiliation with the intended adoptive child.

Which child is adoptable?

The adoptability of a child is determined by the Technical Committee of the Central Authority based on certain information on the said child. An adoptable child is:

  1. A child who has been abandoned or relinquished to the state by his/her parents, family or relatives and is in need of a permanent family.
  2. A child who cannot be kept in or reunited with his/her family.
  3. A child who is under a care order
  4. A child for whom relevant consent for adoption has been obtained.
  5. A child who has been declared adoptable by the Technical Committee of the Central Adoption Authority and his/her name and particulars have been entered into the Adoption Register.

Eligibility of an Applicant

A prospective adoptive parent at the time of adoption must be 25 years old but not more than 50 years of age and at least 21 years older than the intended adoptive child in the case of a non-relative adoption. In the case of a relative adoption, the prospective adoptive parents must be 21 years old but not more than 65 years old. Where the prospective adoptive parents do not meet the age requirements and exceptional circumstances can be shown to necessitate the adoption, Ghana’s Central Adoption Authority may consider the application. Mostly, intercountry adoption is permitted for only heterosexual married couples. The adoption can be done by the couple jointly or individually  with the consent of the other spouse. Individuals resident in Ghana may adopt but a single male can adopt only in respect of his own son. The applicant must be medically fit, must not have been convicted of child related offences, must have a sustainable means of income, adheres to basic child rights, must have high moral character and integrity, must be capable of providing love, care and support for the child, must be eligible to adopt a child under the laws of his country/state of residence and must be in a country/state which is a party to the 1993 Hague Convention or a  state that has signed a bilateral agreement with Ghana.

The process of adoption

The applicant’s eligibility and suitability to adopt is determined and approved by the Central Authority of the country of residence of the applicant. In Ghana, the Technical Committee of the Central Adoption Authority (CAA) determines and approves the eligibility and suitability of the applicant to adopt in Ghana.

The applicant goes under training in adoption related topics to enable the applicant understand and appreciate the process of adoption and care giving to the prospective adopted child.

A home study would be conducted by the Central Authority or an accredited adoption agency and a home study report prepared on the applicant. This report is based on background study and the circumstances of the applicant. This home study and the report are done in the country of residence of the applicant. The report is compiled to enable the Technical Committee of the CAA determine the eligibility of the applicant. An approval and the home study report is then sent to the CAA here in Ghana. The CAA will then evaluate the home study report and if approved, the applicant become eligible to adopt. The home study can take from three to six months depending on how quickly the adoption agency and the applicant work. It is worth noting that the applicant must be approved and suitable to adopt a child in his/her country of residence. Once the eligibility is approved, the applicant can obtain and complete application forms.

It is the Technical Committee of the Central Authority that matches an eligible applicant to an adoptable child. Once this is done, the Central Authority issues a Placement Proposal through the Central Authority or Accredited Adoption Agency in the country of residence of the applicant which may be accepted or rejected. If it is accepted, an arrangement would be made for the applicant to meet the child.

In intercountry adoption, the countries/states involved must agree to the adoption. Therefore, the Central Authority of the country of resident of the applicant and the Central Adoption Authority in Ghana must agree that the adoption should proceed considering the application and matched applicant with an intercountry adoptable child.

The adoption agency or the applicant is required to obtain approval from the Immigration Authority of the country of residence of the applicant that the adopted child would obtain permanent residency or depending on the status of the applicant, a grant of citizenship or a lawful resident status.

Prior to the completion of the adoption process, there is a need for the child to live with the applicant which would be supervised for a period of 3 months. This process is known as pre-adoption placement. The director of Social Welfare issues the Placement Authority for the entrustment of the child to the prospective adoptive parents. The Department of Social Welfare in the Region where the child resides supervises the pre-adoption placement of the child. It is required that for one month the applicant must physically live with the child after which a post placement report is prepared.

The applicant applies to the High Court within the region where the child resides for an Adoption Order and submits a copy of the said order to the CAA.

After the issuance of the adoption order, the applicant applies for post adoptive birth certificate for the child and submits a copy to the CAA.

The applicant applies for travel documents for the child and informs the Department of Social Welfare of his/her intention to take the adopted child out of the jurisdiction. The director then issues a Travel Clearance Certificate for the child to be taken out of the jurisdiction.

The CAA issues a Certificate of Conformity to the applicant without which the adoption would not be recognized as Hague Adoption by the country of residence of the applicant.

The Central Authority or Accredited Agency monitors the adoptive parent and submits reports on their performance to the Authority every 6 months in the first two years and annually for the subsequent three years.

Authorized fees for the adoption process are payable in bankers’ draft to the Department of Social Welfare, Head Office Accra.

Requirements

  1. Home Study Report
  2. Letter of Approval from Central Authority of Receiving State
  3. Evidence of Marriage if applicable
  4. Birth Certificate(s)
  5. Medical / Health Certificate (Form 9)
  6. Police Clearance Report
  7. Evidence of employment / income
  8. Copy of National Identification
  9. Spousal Consent (Form 12), if applicable
  10. Two References Letters
  11. Evidence of Training as prospective adoptive parent
  12. Audio-Visual Recording or Pictures of Applicant, Applicants Home and Family
  13. Completed Statement Form from two Guardian ad Litem
  14. In case of relative adoption, proof of fifth level of relationship with child.

 

IN-COUNTRY ADOPTION

In-country adoption refers to the process of adopting a child within Ghana and living permanently with the child in Ghana. The process for in-country adoption is commenced at the Regional Office of the Department of Social Welfare. There are two types of in-country adoption which are:

  1. Relative adoption which is the process where the applicant and the child have filiation through blood, adoption or marriage.
  2. Non relative adoption which refers to the process where the applicant and the child do not have filiation.

This process is similar to the intercountry adoption process, the applicant’s eligibility and suitability to adopt is determined and approved by the Technical Committee of the Central Adoption Authority (CAA) in terms of age, gender etc. The applicant must obtain police clearance and undergo medical screening to ensure that the child is going into good hands and one capable of taking care of the child. A home study would be conducted and a report is made based on background study and the circumstances of the applicant and the child or children to be adopted. It is the Technical Committee of the Central Adoption Authority that matches an eligible applicant to an adoptable child. When an adoptable child is matched with the applicant, arrangement is then made for the applicant to meet the child. The applicant under goes training in adoption related topics to enable the applicant understand and appreciate the process of adoption and care giving to the prospective adopted child. The adoptable child is allowed to live with the applicant under supervision for a period of three (3) months. This process is known as pre-adoption placement. The director of Social Welfare issues the Placement Authority for the entrustment of the child to the prospective adoptive parents. The Department of Social Welfare in the Region where the child resides supervises the pre-adoption placement of the child. It is required that for one month the applicant must physically live with the child after which a post placement report is prepared. The applicant applies to the High Court within the region where the child resides for an Adoption Order and submits a copy of the order to the CAA. After the issuance of the adoption order, the applicant applies for post adoptive birth certificate for the child and submits a copy to the CAA. This completes the adoption process however the adopted child and adoptive parent would be monitored for a period of five (5) years after the adoption has been finalized.

Requirement

  1. Evidence of Marriage, if applicable
  2. Birth Certificate
  3. Medical / Health Certificate
  4. Police Clearance Report
  5. Evidence of employment / income
  6. Two reference letters
  7. Copy of National Identification
  8. Spousal Consent if applicable with consent of spouse
  9. Statement of Commitment from two guardian ad litem
  10. In case of relative adoption, proof of relationship with the child
  11. Photographs and audio recordings of the family and home of the applicant

 

CUSTOMARY ADOPTION

It must be noted that children are day in and day out adopted culturally within the country and the courts have addressed the essential requirements that need to be met before a cultural adoption becomes effective and legally binding on the parties. In Plange v. Plange (1977) 1 GLR 312, the Court of Appeal held that the essential requirements for a valid customary adoption were the expression of the adopter’s intention to adopt the infant before witnesses and the consent of the child’s natural parents and family to the proposed adoption – such consent, to be objectively ascertained or inferred from either their express words or conduct. Consequently, the consent of the adopter’s own family and the previous joint meeting of the families of the child and the adopter were unnecessary. The said case goes on to state that the legal effect of customary adoption is: a) That the adopted child acquires the status of a child of the marriage and enjoy the same bundle of rights including rights of inheritance, duties, privileges and obligations as the natural child and; b) The rights and liabilities of the natural parents of the adoptee become permanently extinguished and devolve on the adopting parents.

Also in the case of Tanor and Another v. Akosua Koko (1974) 1 GLR 451 the Court of Appeal set out the essential requirements for the adoption of an infant into a family in accordance with customary law as follows: “the consent of the child’s parents and the expression of the adopter’s intention to adopt the infant before witnesses.”

On the essentials of customary adoption, Sarbah wrote in 1896 that: “To make adoption valid, it must be done publicly, and the person who wishes to adopt must not only get the consent of the family and parents whose child is to be adopted, but he must clearly state before witnesses his desire and intention.” See Sarbah, Fanti Customary Laws (3rd ed.), p.34. This implies that the consent of the family of the adopter is not essential requirement for adoption.

There are other cases that affirm that adoption is known to customary law such as cases include but not limited to Poh v. Konamba (1957) 3 W.A.L.R. 74; Tanor v. Akosua Koko [1974] 1 GLR 451’; Plange v. Plange (1968) CC 88; as well as Saakyi Mami v. Dede Paulina [2005-2006] SCGLR 1116.

It is worth noting that customary adoption today is not recognized in respect of intercountry adoption because the adoption of the child must be recognized by the countries involved and the adoptive parent must prove that indeed the child has been adopted as between Ghana and the country where the child is being sent to.

Again, non relative adoption can only be done through the Department of Social Welfare and in respect of children under the care of the Department of Social Welfare.

In conclusion, though the process of adoption of a child is lengthy and cumbersome, it offers a great opportunity for couples, singles and families who intend to have children through other means to have children they can call their own and also offers children the opportunity to be raised within responsible and loving homes which is critical to the wellness and development of a child.

 

BY: VIDA NARKIE ODONKOR 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

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

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.

 

 

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PATENT REGISTRATION IN GHANA

PATENT REGISTRATION IN GHANA

In an ever increasingly competitive global market, new and unique innovations are being rolled out and/or developed almost daily. The value of these innovations lies within their protection as intellectual property.

 

Intellectual property according to World Intellectual Property Organization (WIPO) refers to creation of the mind such as inventions, designs, literary and artistic works and images used in commerce. [[1]] Intellectual property can be an income generating corporate asset. By protecting a company’s intellectual property, the company is vested with rights to exploit or commercialize the intellectual property to generate revenue. [[2]] Intellectual properties are protected by law to create an environment where innovations and creativity are able to flourish. Examples of the Intellectual property that are protected are Copyrights, Patents and Trademarks.

 

A Patent refers to an exclusive right granted over an invention. The invention can be a process, product or anything that provides a new way of doing something generally. Patents provide the owner of the patented product exclusive rights to the invention. This means the owner has the right to stop anyone from commercially exploiting the patented product. Patents are territorial which means they exist and are guided within the jurisdiction of the country it was registered.

Patents are important because they protect inventions and innovations from infringement.  In the Massachusetts Circuit Court ruling in the patent case of Davoll et al. v. Brown, Justice Charles L. Woodbury wrote that “only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man’s own…as the wheat he cultivates, or the flocks he rears in his Judgement on the Violation of Patent right case against the Plaintiff (William C. Davoll and others, 1845).  [[3]] His statement highlights the importance of patents in our society.

 

The purpose of this article is to explain the procedures involved in getting a Patent registered in Ghana in accordance with Patent Act 2003, (Act 657).

 

APPLICATION FOR REGISTRATION OF PATENT

A patent registration is first filed at the Registrar General’s department specifically the Ghana Patent Registry along with the following formal documents;

  1. A request containing a petition for the grant of the patent, a description of the inventio with title included and the description should be clear that a person with ordinary skill in the art can carry out the invention and drawings of invention in some cases
  2. The particulars of the inventor or the applicant of the patent.
  3. One or more claims defining the matter or reason or purpose for which the patent is sought
  4. An abstract providing detailed technical information on the invention

 

Although it is not a legal requirement, a prior art search is a key preliminary step to filing a patent as similar patents are likely to invalidate the patent.

Application fees must be paid, and applications must be submitted in triplicate. A single invention or a collection of innovations that together comprise a single creative notion must be the subject of the application.

Upon receiving a patent application, the Registrar will perform a preliminary examination to determine whether the application contains a petition for the award of a patent, the title of the invention, and the specifics of the inventor or applicant. Thereafter, a filing date will be assigned. The application’s filing date is the day it was received after meeting the aforementioned prerequisites. The Registrar will then review the application to check for formal conformity. The invention’s patentability is evaluated as a last stage through a substantive review. An invention is Patentable when it is statutory, novel, useful, and non-obvious.

Following the substantive examination which looks at the invention’s novelty, inventive step, ability to be used in industry, exclusion from patentability, as well as other factors like the ability to reproduce the invention as disclosed in the application, the clarity of the claims, and whether any amendments go beyond the disclosure of the application as originally filed. by or on behalf of the Registrar, a decision to grant or deny a patent is made. According to the legislation, a decision on a patent application must be made no later than two (2) years following the start of the application’s inspection. In reality, it requires more time than two (2) years. Up until the point at which a decision must be made about the application, the applicant may withdraw or modify the application.

 

The Registrar will then publish the grant of a patent in the Commercial and Industrial Bulletin and issue a certificate for the grant of patent to the applicant. The patent applicant has a responsibility of renewing the patent annually by paying the annual fees which will be paid in advance beginning a year after the filing. A patent is valid for 20 years commencing from the filing date after which the Patent becomes public domain which means its free for public use.

 

An agent may submit a patent application on the inventor’s behalf. If the applicant is not the inventor, a statement defending the applicant’s eligibility for the patent must be included with the request. There is a necessity for representation by a legal practitioner who resides in and practices in Ghana where the applicant or inventor does not typically reside in Ghana or has its regular place of business outside Ghana.

 

All non-English documentation submitted to the Registrar must be accompanied by English translations that have been validated to the Registrar’s satisfaction.

 

PATENT PROTECTION EXCLUSIONS

According to Section 2 of Act 657 the following are some inventions that are excluded from Patent protection even if they fall within the meaning of Section 1 of the Act.

(a) discoveries, scientific theories and mathematical methods;

(b) schemes, rules or methods for doing business, performing purely mental acts or playing games;

(c) methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body; this provision shall not apply to products for use in any of those methods.

(d) inventions, the prevention within the country of the commercial exploitation of which is necessary to protect public order or morality, which includes: (i) the protection of human, animal or plant life or health; or (ii) the avoidance of serious prejudice to the environment; if the exclusion is not made because the exploitation is prohibited,

(e) plants and animals other than micro-organisms;

(f) biological processes for the protection of plants or animals other than non-biological and micro-biological processes; and

(g) plant varieties. [[4]]

 

CONCLUSION

There are several advantages to owning a patent.  Some of these include;

  1. I) using it as a bargaining tactic to gain a tactical or competitive edge when dealing with competitors; and
  2. ii) enhancing a business’s reputation for technical expertise or ability. These benefits could contribute to an improvement in a company’s market value or reputation.

 

It is highly recommended that businesses that develop functional inventions must secure them through the registration of their patents.

 

 

 

[1] https://www.wipo.int/about-ip/en/#:~:text=Intellectual%20property%20(IP)%20refers%20to,and%20images%20used%20in%20commerce.

[2] https://www.mondaq.com/patent/697640/patent-protection-in-ghana

[3] 1 Woodb.& M.53, 3 West.L.J.151,7 F. Cas.197, No.3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414

[4] https://www.aripo.org/wp-content/uploads/2018/12/PatentAct2003.pdf

 

 

 

 

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.

 

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VESTING ASSENT

A Vesting Assent is a legal document which transfers the ownership of normally immovable property of a Deceased person to the beneficiaries. Osborn concise law dictionary 8th edition– defines vesting assent as the instrument whereby a person’s representative, after the death of a tenant for life or statutory owner vests settled land in a person entitled as tenant for life or statutory owner. The Administrator(s) or Executor(s) of the Estate of the Deceased are the persons to execute this Vesting Assent. The Administrator(s) or Executor(s) if they are beneficiaries of the Estate can vest the property in themselves. Administration of Estates Act, 1961, Act 63 governs/regulates the administration of estates in Ghana.

In the case of OPANIN YAW OKYERE V. OPANIN APPENTENG AND AKUA ADOMAA SUPREME COURT· CIVIL APPEAL NO. J4/17/2008 · 23 NOV 2011· The Honourable Court indicated that Section 1(1) of the Administration of Estates Act, 1961, Act 63 states that the movable and immovable property of deceased person shall devolve on his personal representatives with effect from his/her death. When a person dies testate or intestate, his/her estate dissolves on the executor or personal representative until vesting assent is executed for and issued to the beneficiaries or devisees; the beneficiaries and devisees have no title or locus standi over the estate until the vesting assent has been duly executed. This means that the beneficiaries do not have capacity to deal with the estate even though they are beneficiaries. Capacity goes to the root of every case and where the capacity of a party is challenged especially that of the Plaintiff, the court must first resolve that issue because a person without capacity cannot be given a hearing even though he may have an iron cast case. Capacity to institute an action is a precondition to the institute of an action in court – Yorkwa v Duah [1993/3] GBR 278.

The court in the Yorkwa case expatiated on the issues affecting vesting assent. The court indicated that if the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him/her a vesting assent, then what does such a person do in a situation where the estate is being mismanaged? It answered this question by stating that at equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted. The plaintiff in such an action will be acting on the basis of his/her expectant interest in the estate, not in his/her capacity as a title holder under a will or grant at customary or statutory law.

The court then outlined the development of the law with regard to the vesting of property of a deceased over the years. At common law prior to the enactment of the Land Transfer Act, 1897 of England, the real estate of a deceased did not vest in his personal representative, but passed immediately to his/her heir or devisee, as the case may be. There was thus no need for probate or letters of administration. An executor or an administrator would not have any rights over the devised property, since it was already vested in the devisee. This position was changed by the Land Transfer Act, 1897, which, however, never applied in Ghana. Under that Act, in relation to deaths occurring after 1897, all the property of a deceased became vested in his or her personal representative. The personal representative had full powers of management and could therefore sell the property vested in him or her in order to pay debts owed by the estate. To transfer title to a devisee, a personal representative had to execute a conveyance or an assent. An assent did not need to be in writing. Any conduct of the personal representative which showed that he had assented to the gift was sufficient. This led to the unsatisfactory situation where to establish the title of a devisee, he or she might have to prove facts showing the personal representative’s assent. This mischief was cured by the provision in the Administration of Estates Act, 1925 that no assent made after 1925 could pass a legal estate in land unless it was in writing and signed by the personal representative. This had the effect of making provision for a proper paper title for the interests of devisees. This provision made it clear that a devisee’s title was based on the assent and not on the will. The Administration of Estates Act, 1961 of Ghana adopted the tenets of the 1925 Act of England and  the current Ghanaian law is no longer the common law position as it was prior to the enactment of the Administration of Estates Act, 1961.

The relevant sections of the Act 63, ie sections 1 (1), 2 (1) and 96 (1) are as follows:

“1. (1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death …

  1. (1) The personal representatives shall be the representative of the deceased in regard to his movable and immovable property…
  2. (1) A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto…”

It is therefore imperative that before administering the estate or carrying out the intentions of a testator, the will must first be read and admitted to probate and where the deceased died intestate, letters of administration obtained. Thereafter, a beneficiary of any real estate under the will or under the intestacy must have a vesting assent executed in his/her favour by the executors to whom probate has been granted or the grantees of the Letters of administration. Even after the vesting assent had been executed, it would still not have any legal efficacy until after it had been registered under the then Land Registry Act, 1962 (Act 122) now the Land Act, 2020 (Act 1036).

In conclusion, in the absence of the vesting assent executed in favour of the beneficiary or devisee and registration of same, any purported sale of the real estate by the beneficiary or the devisee will be of no legal consequence and the purchaser thereof will have no valid title since that beneficiary would not have the requisite capacity to grant an interest in the property.

Author: Vida N. Odonkor 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.

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THE LAW OF AGENCY IN GHANA.

THE LAW OF AGENCY IN GHANA.

The principal-agency relationship is one of the fundamental pillars of modern commerce. Individuals and organizations (small and large) manage some of their activities through agency relations where the actions carried out by the agents on behalf of the individual or organization, become binding on the individual or organization.

Agency is a fiduciary relationship which exists between two persons when one, called the

Agent is considered in law to represent the other, called principal.  The nature of this relationship is such that the agent is able to affect the principal’s legal positions in respect of strangers to the relationship by the making of contracts, including the disposition of property.

 

In simple terms, an agency relationship consists of the principal and the agent where the principal gives the agent legal permission to act on the principal’s behalf.

An example of agency relationship is a real estate agency relationship between the real estate agent and a land owner, where the land owner gives the agent legal permission to sell the land owner’s property to clients. Another example would be an agent for an artist in the music industry, where the agent is given the authority to enter into contracts and make important advertisement deals on behalf of the artist. Also, an agency relationship exists between a lawyer and his client.

The three main legislations governing commercial relations in Ghana are the “Contract Act of 1960 (Act 25)”, the “Companies Act of 2019(Act 992)” and the Sale of Goods Act of 1962 (Act 137). Apart from the Real Estate Agency Act,2020 which deals with agency relationship in the real estate industry, the laws in Ghana relating to commerce do not provide for a specific discipline of the agency institution.  Nonetheless, case law and the general principles on the subject at common law, provide a guide for a better understanding of the agency relationship. For example, in the case of the State v Asantehene’s Divisional Court Exparte Kusade [1963] GLR 238, Korsah CJ (as he then was) explained the agency relationship as follows:

“where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent, and knows that other person is about to act on that other person’s behalf, then unless he interposes, he will, in general be estopped from disputing the agency, though in fact no agency really existed.”

Certain characteristics run through the various definitions. These are;

  1. Agency may come into being through a contract which may be express, implied or presumed by law,
  2. An agent acts with the principal’s authority,
  3. The agent must consent to acting on behalf of the principal,
  4. Agent affects the principal’s legal relationship with a third party.

 

THE AUTHORITY OF THE AGENT

The agent is a person who has power to act on behalf of another person, the principal, and to affect the principal’s legal position. The relationship between the Principal and a  third Party depends on the scope of the Agent’s power. The agency relationship between the Principal and the Agent is based on consent between the Principal and the Agent. The Principal is bound to the Third Party by acts which he has authorized or appears to have authorized the Agent to do. Between the Agent and the Third Party, the Agent may incur personal liability if he claims authority he doesn’t have. The law recognizes the Agent as having power to bind the Principal in four situations:

  1. Where the Principal gives prior consent to the Agent’s action, the Agent has actual authority.
  2. Where the Agent acts without prior authority of the Principal, but the Principal gives retrospective consent by ratification
  3. Where the Agent acts without the consent of the principal, but the law deems the principal to have consented –Agent of necessity
  4. Where the Agent acts without the Principal’s consent but the Principal is estopped from denying the Agent’s authority: the Agent is said to have apparent authority.

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Let’s now discuss the types of authority or permission an agent may be given in an agency agreement or relationship.

  1. Actual Authority: where the Principal gives his prior consent to the actions of the Agent. Actual authority is therefore based on the agreement between the principal and the Agent. Actual authority need not be in writing. All that is needed is consent which does not necessarily need to be reduced into writing. In a commercial context, such an agreement may be reduced into a formal contract between the principal and the agent. In this case, the Agent is entitled to be paid for his services and would be liable for breach of contract if he fails to perform his contractual duties. There is nothing against the Agent acting for free; all that is required is an agreement between the Principal and the Agent. As a general rule, there is no need for formalities in the appointment of an agent. The agreement between the Principal and the Agent can be express or implied. Actual authority may be express actual authority or implied actual authority.
  2. Apparent Authority: The Principal may be bound by acts done by the Agent without the Principal’s consent or even in breach of the Principal’s express prohibition if his words or actions give the impression that he had authorized the acts done by the Agent. Apparent authority is therefore the authority which a person appears to have to act on another’s behalf.

The position of the law on actual and apparent authority was explained by Diplock J in Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd as follows:

“an actual authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. To this agreement the Third party is a stranger; he may be totally ignorant of the existence of any authority on the part of the agent. Nevertheless, if the agent does enter into a contract pursuant to the actual authority it does create contractual rights and liabilities between the principal and third party. An apparent authority on the other hand, is a legal relationship between the principal and the third party created by a representation made by the principal to the third party, intended to be in fact acted on by the third party, that the agent has authority …To the relationship so created the agent is a stranger.”

  1. Agency of Necessity: A person who acts in an emergency to preserve the property or interest of another may be treated as an agent of necessity. As in cases of apparent authority, an agency of necessity can arise even where there was no existing relationship between Principal and Agent. In this situation, the actions of the agent will be deemed to be authorized even though no actual authority was given. Like cases of apparent authority, agency of necessity can arise in spite of the fact that there is lack of authority from the Principal. Unlike cases of apparent authority, agency of necessity can give the Agent rights against Principal where there is already an existing agency relationship between Principal and Agent, an agency of necessity may also be explained on the basis of implied authority.

 

DUTIES OF THE AGENT

Duty to carry out his responsibility; Obey; Duty of Care and Skill; Duty not to make a covert profit; Duty to Account; and Duty not to delegate his assignment. The agent also has a duty to avoid conflicts of interest.

DUTY OF THE PRINCIPAL

Subject to the terms of the agreement, the principal must pay the agent for the Agent’s services. An agreed-upon amount or a commission may be due to the agent. In the absence of such an arrangement, the compensation will be determined by the situation.

 

REMEDIES AVAILABLE TO THE PRINCIPAL AND AGENT WHEN THE CONTRACT OF AGENCY IS BREACHED

Agent’s Remedy

Action: Where the agent has finished his work and the principal has refused to pay the remuneration, the agent shall bring an action to recover the money.

Set Off: Where the principal brings an action against the agent for breach of duty and recovery of any amount due him, the agent may reply by setting off against such claim any amount due him Where the principal has not discharged any of his duties by way of remuneration or indemnity, the agent may exercise the right of lien (detention) over goods belonging to the principal which is in the Agent’s possession. He may keep them till the principal has satisfied any claims of the Agent.

Principal’s Remedy

Dismissal: The principal has the right to dismiss the agent when he misconducts himself in the performance of his duties. Some acts that might call for dismissal are fraud, negligence, deceit and among others. Prosecutions Where the Agent’s misconduct takes the form of a criminal offence, the principal beside his remedy in damages can also bring the appropriate criminal proceedings against the agent to seek redress.

OTHER REMEDIES

Termination:

By the act of the parties; Since the principal and the agent agreed to create the agency relationship, either of them may also withdraw from the said agreement. This is done by giving notices. The agent may do this by giving a notice of renunciation or the principal giving a notice to the Agent. Third parties must also be notified not to deal with the agent as the agent will no longer have authority to act on the principal’s behalf.

Death, insanity or bankruptcy; The death, insanity or bankruptcy of either the principal or the agent may also terminate the relationship. Where the principal is also a company, winding up or dissolution will also terminate the agency. See Gordon V. Essien [1992] 1 G.L.R. 232

Frustration:

When the property which is the subject matter of the agency is destroyed or in any way ceases to exist, the agency will come to an end.

Closure of business; When the principal has ceased to carry on the business in respect of which the agent was employed.

Execution; If the agent was appointed for a fixed term or to carry out a particular work, the execution of that work or the given time being due terminates the relationship between the parties.

 

Conclusion

From the above, it is in the interest of both parties i.e, the agent and principal to clearly and expressly spell out the terms of their agency agreement. This should include terms on whether it is an exclusive or nonexclusive agency; the duration of the agency, limitations of the agent’s authority, renumeration of the agent, that the agents’ acts bind the principal so long as they are in good faith, that the agency agreement constitutes the entire agreement between the parties and that no oral agreement can change the agreement and lastly how to terminate the agency

 

 

 

 

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.

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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.

 

 

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