Author: William Nartey

 

 A Pictorial representation of the ESG Framework[6]

 

Abstract

 

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

 

 

Introduction

 

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

 

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

 

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

 

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

 

ESG Indicators/ Measures of ESG

 

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

 

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

 

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

 

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

ESG Reporting Standards

 

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

 

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

 

Some common ESG reporting standards are:

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

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

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

The report summarized the standards of reporting as follows:

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

 

The danger of Greenwashing

 

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

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

 

 

 

Conclusion

 

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

 

By: Portia Adjei-Mensah Esq.

 

 

 

 

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

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

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

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

 

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

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

 

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

 

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

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

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

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

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

 

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

 

 

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

Introduction

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

 

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

 

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

 

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

 

Establishment of Enterprises

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

 

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

 

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

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

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

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

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

 

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

 

Activities reserved for Ghanaians and Ghanaian owned enterprises

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

 

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

 

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

 

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

 

 

 

 

 

Enterprises eligible for foreign participation – Section 28 of the Act

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

 

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

 

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

 

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

 

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

 

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

 

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

or

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

 

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

 

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

 

Exemption from the minimum capital requirement

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

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

 

Investment Guarantees

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Act guarantees enterprises unconditional transferability in freely convertible currency of

 

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

 

Dispute Resolution procedures

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

 

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

 

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

 

Technology Transfer Agreements

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

 

Technology Transfer Agreement means an agreement with an enterprise  which involves

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

 

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

 

 

 

 

Offences

A person commits an offence under the Act if that person

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Penalties

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

 

Conclusion

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

 

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

 

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

 

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

 

 

 

 

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

^[2] Section 43.

^[3] Section 23.

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

^[5] Section 24 of the Act.

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

^[7] Section 27 of the Act.

^[8] Section 29 of the Act

^[9] Section 30 of the Act.

^[10] Section 32

^[11] Section 4(f)

^[12] Section 40

^[13] Section 41

 

 

Author: Gideon Bilsilki Esq.

 

 

 

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

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

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

 

 

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.

 

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 devolves 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 …

2. (1) The personal representatives shall be the representative of the deceased in regard to his movable and immovable property…
3. (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.

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.

.

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.

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.

 

 

Marriage is a beautiful thing but comes with uncertainties. Divorce is a reality when parties to a marriage are unable to work out their differences and /or conflicts, often after trying. During divorce proceedings one thing that is paramount among other things is who gets what and of what quantum when the divorce is finalized. Where the couple are able to agree on who gets what share of the properties acquired during the subsistence of the marriage, the court may adopt those terms of settlement between the parties. However, where the parties are unable to agree, the court would based on set principles and laws, determine the division of property among them.

The laws on spousal property have evolved over the years. From spouses having to prove substantial contribution towards the acquisition of marital property as in the case of Mensah v Mensah (1998-1999) to the presumption that properties acquired during the subsistence of the marriage should be shared on the principle of equality is equity.

Generally, properties acquired jointly during the subsistence of the marriage are shared equitably. It is trite law that no two cases are the same and therefore each case must be determined on its own merits and peculiarities.

In Boafo v Boafo [2005 -2006] SCGLR 705, the Supreme Court held that the principle of equitable sharing of property jointly acquired by a married couple would ordinarily entail the equality principle, unless one spouse could prove separate proprietorship or agreement or a different proportion of ownership. The court stated that the provision in Article 22(3) (b) of the 1992 Constitution and Section 20(1) of Matrimonial Causes Act 1971 (Act 367) only made provision for the equitable distribution of property jointly acquired without laying down the proportions in which such property might be distributed. The reason for that omission was the question of what was “equitable”, in essence, what was just, reasonable and accorded commonsense and fair play, was a pure question of fact, dependent purely on the particular circumstances of each case. The proportions would therefore, be fixed in accordance with the equities of any given case. How would this be arrived at when a spouse has no evidence to back his or her claim?

In Mensah v Mensah [2012]1 SCGLR 391, it was held that once the property was acquired during the subsistence of the marriage, the respondent by operation of law had an interest in it. In this case it was established that both parties at the beginning of their marriage did not have money/properties. The parties worked together to acquire the properties even though the respondent could not quantify her contribution in monetary terms. It is worthy of note that the principle that properties acquired during the subsistence of the marriage is joint property is not applicable generally. Again, the sharing of spousal property is no longer dependent upon the substantial contribution principle but rather property acquired during marriage is presumed to be joint property. Here again, the properties acquired are presumed to be jointly acquired which can be rebutted with evidence.

In Quartson v Quartson [2012]2 SCGLR 1077 and in Arthur v Arthur (No. 1) [2013 – 2014] SCGLR 543, the court affirmed the principle in the Mensah v Mensah’s case holding in the Quartson case that in partitioning properties acquired during marriage, the court must consider the equities of the particular case. While in Arthur’s case, it held that properties acquired during the subsistence of the marriage is presumed to be jointly acquired property. This presumption is however rebuttable in instances where a spouse acquires the property through a gift or succession or loan facility which has not been repaid as stated in the case of Peter Adjei v Margaret Adjei supreme court. J4/06/2021. 21 Apr, 2021. Even though it can be argued that the chores performed by the other spouse in the marriage provided a conducive atmosphere for the repayment of the loan, that is the principle laid down now.

In the case of Fynn v Fynn [2013 – 2014] 1 SCGLR 727, the court held that there are situations where within the marriage, parties may acquire property in their individual capacity and this position is buttressed by Article 18 of the 1992 Constitution of Ghana which says that “(1) Every person has the right to own property either alone or in association with others. (2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”. This decision affirms the principle held in the Arthur v Arthur’s case in that once a spouse can rebut the presumption that properties acquired during the subsistence of the marriage is jointly acquired then a spouse can acquire individual properties during the subsistence of marriage.

 

Legal basis for the distribution of jointly acquired properties during the subsistence of the marriage upon divorce.

The distribution of jointly acquired property has been greatly influenced by the 1992 Constitution of Ghana particularly Articles 22(2) and (3) which deals with property rights of spouses, Article 35 (5) which deals with protection of rights by courts and Section 20 of the Matrimonial Causes Act, 1971 [Act367]. The general principle that can be gleaned from the various decisions of the courts and the text of the Constitution is that any property that is acquired during the subsistence of the marriage, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between the couple on the principle of equality is equity. This principle applies to all the forms of marriages, be it Customary, Ordinance or Mohammedan marriage. This presumption is however rebuttable as stated earlier.

Therefore, as seen in the Arthur case, if a spouse can show by way of evidence that he or she single handedly acquired the property even during the subsistence of the marriage, then the presumption of jointly acquired property fails as seen in the Fynn case. Meaning it is only the property that has been shown by way of evidence, that both parties contributed towards their acquisition, be it direct or indirect, pecuniary or substantial contribution, which will be recognized as jointly acquired property to be shared on an equality is equity basis.

In the case of Mensah v Mensah [1998-1999] SCGLR 350 it was held that “property jointly acquired during marriage would become joint property of the couple and such property should be shared equally on divorce because the ordinary incidents of commerce had no application in marital relationship between husband and wife who had jointly acquired property during marriage”. The court also found that the couple had no properties at the start of their marriage and therefore both parties contributed substantially towards the acquisition of the matrimonial properties. In this instance the property jointly acquired during the subsistence of the marriage includes properties that were acquired by gift or inheritance. However, the Arthur v Arthur case introduced the presumptive ownership principle that properties acquired during marriage are jointly acquired by the couple unless rebutted.

Therefore, in the cases of Quartson v Quartson, Arthur v Arthur and Fynn v Fynn, a spouse no longer has to prove a direct or indirect, pecuniary or substantial contribution towards the acquisition of properties during the subsistence of the marriage to be entitled to a share of those properties. But where there is evidence that proves a spouse’s contribution, that evidence needs to be adduced to quantify his or her share of the properties on equity bases. This position was arrived at because chores such as cooking, cleaning, washing, nurturing, etc. that wives typically perform in the home creates an enabling environment for the acquisition of the properties. It is worth noting that not all wives perform their chores dutifully and where it is proven that a wife did not perform her chores dutifully, then she does not stand to benefit from the properties acquired during the subsistence of the marriage as seen in the case of Rimmer v Rimmer [1952] 1 QB 63 at Pg 73 and the Fynn v Fynn case.

Again, in the Fynn v Fynn case the court opined that a spouse can acquire a personal property during the subsistence of the marriage. Hence applying article 18(1) of the 1992 constitution which says that “Every person has the right to own property either alone or in association with others”. In a similar manner, the Arthur v Arthur case made it clear that a property acquired by gift or inheritance does not form part of jointly acquired property during the subsistence of the marriage as the other spouse did nothing or contributed nothing towards the acquisition of that property.

From the foregoing it is important that a spouse is minded regarding retaining records or evidence of their contribution towards the acquisition of properties during the subsistence of the marriage. This is because if a spouse can prove that he personally acquired a property during the subsistence of a marriage then the other spouse is unlikely to have a legitimate claimed interest in the said property especially where that spouse cannot show by evidence any contribution to the union except where that spouse can show the performance of household chores.

Section 20 of the Matrimonial Causes Act, 1971, Act 367 provides that: (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. (2) Payments and conveyances under this section may be ordered to be made in gross or by instalments. Meaning that a spouse is entitled to either one of the provisions stated in this section.

 

The court defined marital property in Arthur v Arthur (No. 1) [2013 – 2014] 1 SCGLR 543 at pg. 560 as “we are bound to follow this holding of the Supreme Court in Mensah v Mensah. Marital property is thus to be understood as property acquired by the spouses during marriage, irrespective of whether the other spouse has made a contribution to its acquisition.” At pg. 565 the court further said “it should also be emphasized that, in the light of the decision of the Supreme Court in Mensah v Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage”. If this is the case, then why should a spouse be entitled to only one house upon the death of his or her spouse intestate? This is a question that needs to be answered through legislation.

In conclusion, the principles that would be considered when the court is determining who gets what and of what quantum during a divorce are firstly, that the properties acquired during the subsistence of marriage are presumed to be jointly acquired which shall be shared equitably between the couple upon divorce. This presumption can be rebutted and if proven, a spouse’s claim to an interest in marital property may be defeated. Secondly, property that is acquired during the subsistence of the marriage through gifts or inheritance or an unliquidated loan facility is classified as personally acquired properties of the acquiring spouse. Thirdly, a spouse can acquire personal property during the subsistence of the marriage. To conclusively establish the applicability of the foregoing principles to a matter before the courts a party must adduce sufficient evidence as explained in this article.

 Author:  Vida Narkie Odonkor

 

 

 

 

 

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.

 

INTRODUCTION

Twitter’s bird (Larry T Bird) , Nike’s Swoosh, McDonald’s M,

What do these have in common? If you guessed that they are all trademarks, you guessed correctly.

“Trademark” is a common word that is used in both common and legal parlance. In this article, we explain trademarks from a legal point of view, with a particular focus on Ghana’s laws.

Trademark is a word, name, symbol, or device used to indicate the source, quality and ownership of a product or service. A trademark is used in marketing as a recognizable sign, design or expression which identifies products or services of a particular source from those of others. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher or on the product itself. In this article, the words “trademark” and “trade mark” being the American and British spellings will be used interchangeably.

Ghana’s Trade Marks Act, 2004 (Act 664) defines “trademark” in section 1 as any sign or combination of signs capable of distinguishing the goods or services of one undertaking from the goods or services of other undertakings including words such as personal names, letters, numerals and figurative elements.

 

WHY ARE TRADEMARKS LEGALLY PROTECTED?

Creating a trademark to identify products from a particular source takes a lot of hard work and creativity. Thus, where a person by the ingenuity of his adverts or the quality of his product induces consumer responsiveness to a particular name, symbol, form of packaging, etc, and has thereby created a thing (property) of value; the creator of that property is entitled to protection against third parties who seek to deprive him of his property.

 

RIGHTS CONFERRED FOR TRADEMARK REGISTRATION IN GHANA

Act 664 provides certain rights to holders of trademarks in Ghana. Section 9 gives trademark holders the following rights and protections:

1. No one apart from the trademark owner can use the trademark in respect of any good or service without the owner’s consent. Using a trademark in such a manner without the owner’s consent constitutes infringement.
2. The registered owner may institute court action against any person who infringes a registered trade mark by using the mark without permission or performs acts which make infringement likely to occur.
3. Where others use a sign that is similar or identical to a registered trademark is used for identical or similar goods and services, it is presumed that this will lead to the likelihood of confusion among the public.
4. The registered owner can legally prevent others from using similar signs for similar products which could lead to confusion and an application to register that trademark may be rejected.
5. The above-mentioned rights do not extend to acts in respect of articles which have been put on the market in any country by or with the consent of the registered owner.
6. A person who infringes the right of a registered owner of a trade mark by knowingly using a trade mark for goods or services without the consent of the registered owner commits an offences and is liable on summary conviction to a fine not exceeding 250 penalty units or a term of imprisonment not exceeding one year or to both.

 

REGISTERING A TRADEMARK IN GHANA

The first step in registering a trademark in Ghana is to conduct a search at the Registrar-General’s Department before applying for registration. Although this step is optional, it is important to ensure that no identical trademark has been registered or is pending registration.

Trademark Form No. 2 is used for the application of Trademark. An applicant is required to attach four (4) representations of the trade mark with a prescribed fee of $ 200.00 or its Cedi equivalent. Applicants whose principal places of business are located outside Ghana are required to apply through a legal entity in Ghana.

Each application shall be for registration in respect of goods in one class only of Schedule 1 to the Trademark Regulations.

Every application to register a trademark shall be accompanied by three additional representations of the mark, which shall correspond exactly with the representation on the application. If the mark is to be registered in more than one class, then two additional representations for each class after the first shall be supplied.

 

REVIEW/EXAMINATION OF TRADEMARK FORM No. 2 BY THE TRADEMARKS OFFICE

The Registrar examines whether the Trademark application is in conformity with the requirements of Section 1, Subsection (1) and (2) of Section 4, and Section 5 of the Trademarks Act, 2004, Act 664. If the Registrar objects to the application, he shall inform the applicant of his objections in writing, and unless within two months the applicant applies for a hearing or makes a considered reply in writing to those objections, he shall be deemed to have withdrawn his application.

 

GROUNDS FOR REFUSAL OF REGISTRATION

Section 5 of Act 664 allows the Registrar to refuse the registration of a trademark on the following grounds:

1. It is a trade name;
2. it is incapable of distinguishing the goods or services of one enterprise from the goods or services of another enterprise;
3. it is contrary to public order or morality.
4. It is likely to mislead the public or trade circles with particular reference to the geographical origin of the goods or services, their nature or characteristics.
5. It is identical to or is an imitation of or contains as an element, an armorial bearing, flag, emblem, name, abbreviation or initials of the name, official sign or hallmark adopted by a State, intergovernmental organization or organization created by an international convention unless authorized by the competent authority of that State or organization.
6. It is identical to or confusingly similar to or constitutes a translation of a trade mark or trade name which is well known in the country for identical or similar goods or services of another enterprise, or the trade mark is well known and registered in the country for goods or services which are not identical or similar to those under application but the use of the trade mark will indicate a connection between those goods or services and the owner of the well-known trade mark and the interests of the owner of the well-known trade mark are likely to be damaged by the use of the trade mark.
7. It is identical to a trademark of another owner already on the register or identical to a trade mark the subject of an application with an earlier filing or priority date for the same goods or services or closely related goods or services or if it resembles that trade mark so closely that it is likely to deceive or cause confusion.

 

PUBLICATION AND OPPOSITION OF TRADEMARK

All Trademark applications accepted by the Registrar are published in the Industrial Trademarks Bulletin (Journal) for a period of two (2) months. Within this period any interested party/person may file for a notice of opposition to the registration in a prescribed manner.

CERTIFICATION OF TRADEMARK

In the event where there is no opposition to the approved Trademarks, the proprietor of a Trademark will request for the issuance of his trade mark certificate.

A certificate of Registration of Trademark is then issued to the applicant and the registered trademark is valid for a period of ten (10) years from the filing date of the application.

 

RENEWAL OF TRADEMARKS AND OTHER INFORMATION

Renewal of trademarks are made every ten (10) years.

• NB: Non-use for five (5) years following registration makes the registration vulnerable to cancellation.
• SCHEDULE OF TRADEMARK FEES
• TRADEMARK SEARCH: $ 110.00
• TRADE MARK APPLICATION: $ 200.00
• CERTIFICATION OF TRADE MARK: $ 200.00

 

 

 

 

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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.