INTRODUCTION

The 1992 Constitution of Ghana granted Parliament the power to create lower courts and these include the District Court, Circuit Court, and the Judicial Committees of the Chieftaincy Institutions. The 1992 Constitution, Courts Act 1993 (Act 459) and any other relevant statute stipulate the jurisdiction of the courts in Ghana. The jurisdiction of a court refers to the power a court has to adjudicate on matters that come before it and to issue orders. The issue of jurisdiction is very fundamental and it goes to the root of every proceeding. It is therefore necessary to ensure that every court acts within its mandate and to ensure order in the judicial system.

Jurisdiction of Civil Jurisdiction of Circuit Courts:

1.The civil jurisdiction of a Circuit Court consists of the following—

1. original jurisdiction in civil matters—
2. in personal actions arising under contract or tort or for the recovery of any liquidated sum, where the amount claimed is not more than ¢100 million. Note that the Courts Regulations, 2020 (L. I. 2429) has expanded the jurisdiction of the lower courts in respect of the amount or value specified for claims. The monetary value now stands at Two Million Ghana Cedis (GH¢ 2,000,000.00).
3. in actions between landlord and tenant for the possession of land claimed under lease and refused to be delivered up;

iii. in causes and matters involving the ownership, possession, occupation of or title to land;

1. to appoint guardians of infants and to make orders for the custody of infants;
2. to grant in any action instituted in the Court, injunctions or orders to stay waste, or alienation or for the detention and preservation of any property the subject matter of that action or to restrain breaches of contract or the commission of any tort;

vi.in claims of relief by way of interpleader in respect of land or other property attached in execution of an order made by a Circuit Court;

vii.  in applications for the grant of probate or letters of administration in respect of the estate of a deceased person, and in causes and matters relating to succession to property of a deceased person, who had at the time of his death a fixed place of abode within the area of jurisdiction of the Circuit Court and the value of the estate or property in question does not exceed ¢100 million. The monetary value now stands at Two Million Ghana Cedis (GH¢ 2,000,000.00).

1. any other jurisdiction conferred by the Courts Act or any other enactment.
2. Where there is a dispute as to whether or not any amount claimed or the value of any property in any action, cause or matter is in excess of the amount or value specified for the Circuit Court in relation to that action, cause or matter, the Circuit Court in question shall call evidence as to the said amount or value and if it finds that it exceeds the amount or value specified for the Circuit Court, it shall transfer the case to the High Court.
3. Where the amount claimed or the value of any property exceeds the amount or value specified for the Circuit Court, the Circuit Court shall, notwithstanding the amount or value specified, proceed to hear the case if the parties agree that it should do so.
4. The Attorney-General may by legislative instrument amend the amount or value specified for the Circuit Court. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Criminal Jurisdiction of Circuit Courts:

A Circuit Court has original jurisdiction in all criminal matters other than treason, offences triable on indictment and offences punishable by death. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Appeals from Circuit Courts:

A person aggrieved by a judgment of a Circuit Court in any civil action may, subject to the Courts Act and Rules of Court, appeal to the Court of Appeal against the judgment.

A person aggrieved by a judgment of a Circuit Court in criminal trial may, subject to the Courts Act and Rules of Court, appeal to the High Court. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Civil Jurisdiction of District Courts:

1. A District Court shall within the area of its jurisdiction have civil jurisdiction in the following matters—
2. in personal actions arising under contract or tort for the recovery of any liquidated sum where the amount claimed does not exceed ¢50 million. This value now stands at Five Hundred Thousand Ghana Cedis (GH¢ 500,000.00) as per the Courts Regulations, 2020 (L. I. 2429).
3. to grant in any action instituted in the District Court injunctions or orders to stay waste or alienation or for the detention and preservation of any property the subject matter of that action, or restrain breaches of contracts or the commission of any tort;
4. in claims for relief by way of interpleader in respect of land or other property attached in execution of a decree made by the District Court;
5. in civil causes or matters relating to the landlord and tenant of any premises or any person interested in such premises as required or authorised by any law relating to landlord and tenant;
6. in actions relating to ownership, possession or occupation of land where the value of the land does not exceed ¢50 million. This value now stands at Five Hundred Thousand Ghana Cedis (GH¢ 500,000.00) as per the Courts Regulations, 2020 (L. I. 2429).
7. in divorce and other matrimonial causes or matters and actions for paternity and custody of children;
8. in applications for the grant of probate or letters of administration in respect of the estate of a deceased person, and in causes and matters relating to succession to property of a deceased person, who had at the time of his death a fixed place of abode within the area of jurisdiction of the District Court and the value of the estate or property in question does not exceed ¢50 million. This value now stands at Five Hundred Thousand Ghana Cedis (GH¢ 500,000.00) as per the Courts Regulations, 2020 (L. I. 2429).
9. Where there is dispute as to whether or not any amount claimed or the value of any land or property in any action, cause or matter is in excess of the amount or value specified for the District Court in relation to that action, cause or matter the District Court in question shall call evidence as to the said amount or value and if it finds that it exceeds the amount or value specified for the District Court, it shall, subject to the powers of transfer of the Chief Justice, transfer the case to a Circuit Court.
10. Where in any action, cause or matter the amount claimed or the value of any land or property exceeds the amount or value specified for the District Court, the District Court shall notwithstanding that subsection, proceed to hear the case if the parties agree that it should do so.
11. The Attorney-General may by legislative instrument amend the amount or value specified for the District Court. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Criminal Jurisdiction of District Courts:

1. In criminal matters a District Court has jurisdiction to try summarily—
2. an offence punishable by a fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years or both;
3. any other offence (except an offence punishable by death or by imprisonment for life or an offence declared by any enactment to be a first degree felony) if the Attorney-General is of the opinion that having regard to the nature of the offence, the absence of circumstances which would render the offence of a grave or serious character and all other circumstances of the case, the case is suitable to be tried summarily;
4. an attempt to commit an offence to which paragraph (a) or (b) applies;
5. abetment of or conspiracy in respect of any such offence.
6. A District Court shall in the exercise of its jurisdiction in criminal matters not impose a term of imprisonment exceeding 2 years or a fine exceeding 500 penalty units or both.
7. A District Court does not have jurisdiction to try an offence punishable by death or by imprisonment for life or an offence declared by any enactment to be a first degree felony.
8. Where under any enactment increased punishment may be imposed upon any person previously convicted of a crime, a District Court may impose the increased punishment, or twice the maximum punishment prescribed whichever is the lesser.
9. The Attorney-General may by legislative instrument amend the amount or value specified for the District Court. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Appeals from District Courts:

A person aggrieved by a judgment of a District Court in any civil or criminal action may, subject to the Courts Act and Rules of Court, appeal to the High Court against the judgment.

Jurisdiction of Juvenile Courts:

1. The Chief Justice may designate any District Court as a Juvenile Court.
2. A Juvenile Court shall be composed of the Magistrate of the District Court as the presiding person and two other persons one of whom shall be a Social Welfare Officer and the other, a person of not less than 25 years both of whom shall be appointed by the Chief Justice on the recommendation of the Director of Social Welfare.
3. A Juvenile Court has power to hear and determine any matter civil or criminal that involves a person under the age of eighteen and shall for that purpose have and exercise all the powers of a District Court. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5]

Jurisdiction under the Children’s Act:

A District Court also has jurisdiction to hear and determine any action that arises under the Children’s Act, 1998 (Act 560) and shall for the purposes of that enactment be the Family Tribunal and exercise the powers conferred on a Family Tribunal under that Act and any other enactment. [Substituted by Courts (Amendment) Act, 2002 (Act 620) s.5].

Note that the lower courts are not clothed with the power to hear contempt applications. Per article 126(2) of the 1992 Constitution, it is only the superior courts that can hear matters of contempt of court. Therefore, a matter as to contempt arises in the lower courts, such application for contempt is to be filed in the superior court.

In conclusion, the jurisdiction of these lower courts is clearly defined to ensure systematic legal practice in Ghana.

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.

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 RECUPERATION OF ASSETS EXCHANGED UNDER ILLEGAL AND UNENFORCEABLE CONTRACTS: THE GHANAIAN CONTEXT

INTRODUCTION

In Ghana’s evolving commercial and legal environment, the issue of asset recovery under illegal or unenforceable contracts is increasingly relevant. In any given business transaction, contracts form the foundation over which the deal is made. They fundamentally establish and determine the roles and expectations of the contracting parties. A contract is “a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty,” according to the American Restatement (Second) of Contracts (1981).  As further described by renowned contract law jurist C. Dowuona-Hammond, A contract is an agreement consisting of the exchange of promises which is recognized by law as giving rise to enforceable rights and obligations.[1]

However, not every contract is enforceable in a court of law. In Ghana, contracts may be deemed unenforceable due to certain deficiencies that render them void or voidable, making it difficult to recover the consideration exchanged under the contract. This article explores the Ghanaian legal context concerning illegal and or unenforceable contracts and asset recovery thereunder.

ILLEGAL AND UNENFORCEABLE CONTRACTS IN GHANA

A contract is termed illegal if it is in breach of any law, acts against public policy or is deemed wrongful. Some examples of illegal contracts are:

1. Contracts for Activities That Are Contrary to Law

A contract that requires a party to engage in an unlawful act is inherently void and unenforceable. No court will uphold an agreement that facilitates fraud, bribery, money laundering, drug trafficking, or any other criminal enterprise. It is important to note here that the contract need not necessarily be for criminal purposes. All that is required is that it is contrary to any law. Thus, for example, where a law specifically requires that a certain procedure be followed for a particular type of contract, failure to adhere to that procedure would generally render the contract unenforceable for being in breach of law.[2]

Example: A contract between two parties to smuggle goods into Ghana without paying customs duties is illegal and will not be recognized by the courts.

2. Agreements Contrary to Public Policy

Public policy serves as a fundamental pillar in contract law, ensuring that agreements do not undermine societal values or national interests. Any contract that threatens national security, disturbs public peace, promotes injustice, or results in some undesirable public policy consequence is deemed void.

Example: A contract requiring an individual to disclose classified government information to a foreign entity is against public policy and cannot be enforced.

3. Contracts That Encourage Corruption and Bribery

A number Ghanaian enactments have provisions that strictly prohibit contracts that involve bribery, kickbacks, or any form of improper influence in public or private transactions. Agreements that incentivize corrupt practices undermine the integrity of governance and economic fairness. Accordingly, such agreements will generally not be enforced by a court.

Example: A company offering payment to a public officer in exchange for securing a government contract constitutes bribery and renders the contract unenforceable.

4. Agreements That Unduly Restrict Personal Freedom

A contract must not deprive an individual of their fundamental freedoms, such as the right to leave employment, work elsewhere, or make personal life decisions. Contracts that create conditions akin to forced labor, servitude, or slavery are not only void but may also attract criminal liability.

Example: An employment contract that requires an employee to work indefinitely without fair wages or the right to resign violates labor laws and will not be upheld in court.

5. Contracts to Commit a Civil Wrong (Tortious Acts)

No one can lawfully contract to commit a tort—such as defamation, assault, or trespass—against another party. Agreements designed to harm another individual’s rights or reputation are inherently unlawful.
Example: A contract where a media company is paid to publish false and damaging statements about a competitor is unenforceable as it constitutes defamation.

6. Gambling and Betting Contracts (Unless Licensed)

Under Ghanaian law, private gambling and wagering agreements that are not regulated by the Gaming Commission are generally unenforceable. While licensed gaming institutions operate legally, informal or unregulated betting contracts hold no legal weight.
Example: A verbal agreement between two individuals over a bet on a football match cannot be enforced in court if one party refuses to pay.

7. Unreasonable Restraints on Trade (Overly Restrictive Non-Compete Clauses)

While businesses can protect their interests through non-compete clauses, overly broad restrictions that prevent a person from earning a livelihood indefinitely or across an unreasonable geographical scope are likely to be struck down.

Example: A contract that prevents a former employee from working in the same industry anywhere in Ghana for the rest of their life is excessive and unenforceable.

8. Exploitative Contracts Targeting Vulnerable Persons

Contracts that take advantage of minors, persons with mental incapacity, or illiterate individuals without appropriate safeguards are voidable at the instance of the affected party. The law provides special protection against undue influence and exploitation.

Example: A lender charging an illiterate borrower exorbitant interest rates without a witness or proper explanation of the contract terms is engaging in an unconscionable agreement that may be set aside by the court.

9. Contracts That Undermine Family and Social Morality

Agreements that promote adultery, prostitution or disrupt legally recognized marriages are against the moral fabric of society and will not be enforced by the courts.

Example: A contract where one party pays another to interfere in a marriage, such as seducing a spouse to cause a divorce, is unlawful and void.

10. Contracts Procured by Fraud, Misrepresentation, or Duress

It is a fundamental principle of contract law that contracts must be entered into freely, with full understanding and without deception. Although agreements signed under coercion, false pretenses, or material misrepresentation may or may not be deemed to be “illegal” within the strict meaning of being contrary to a law, such agreements are typically voidable and may be rescinded by the aggrieved party.  Depending on the circumstances, such an agreement may still be enforceable until the aggrieved party takes steps to set the agreement aside.

Example: A business owner who is forced to sign over property rights under threat of physical harm can challenge the validity of such an agreement in court.

LEGAL GROUNDS FOR RECOVERY OF ASSETS OBTAINED UNDER ILLEGAL AND UNENFORCEABLE CONTRACTS

1. Rescission and Restitution

If a contract is declared unenforceable due to misrepresentation, duress, or undue influence, the affected party may seek rescission (contract cancellation) and restitution (restoration of what was transferred). Section 15 of the Contracts Act, 1960 (Act 25) allows a party to rescind a contract if it was induced by misrepresentation, and Section 20 of the Contracts Act, 1960 (Act 25) provides that contracts entered into under duress or undue influence may be set aside.

Example: If a person was coerced into signing over land through threats, they can apply to the court to cancel the contract and recover their property.

2. Recovery of Property Through Court Action

If an unenforceable contract involves the transfer of tangible assets (e.g., land, vehicles, or money), the aggrieved party can file a suit for declaratory relief and recovery of possession.

Order 67 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) governs applications for the recovery of land and possession, and Section 2 of the Conveyancing Act, 1973 (NRCD 175) requires land transfers to be in writing and free from fraud.

Example: If an individual unknowingly enters an illegal land sale agreement, they can file a claim in court to reclaim ownership.

3. Unjust Enrichment Claim

Where one party benefits unfairly from an unenforceable contract, the disadvantaged party can seek unjust enrichment to recover lost assets. The principle of restitutio in integrum stipulates that parties ought to be restored to their original positions before the agreement was entered into. The law of equity in Ghana prevents a party from profiting unfairly at another’s expense. In Mensah v. The Republic (1968) GLR 516, [3]   the court emphasized that no party should unjustly enrich themselves through an unenforceable contract.

Example: If someone pays for goods under a fraudulent contract and receives nothing, they can claim reimbursement under unjust enrichment.

4. Compensation for Fraud or Misrepresentation

If an unenforceable contract was induced by deception, the injured party can sue for damages or compensation. Section 13 of the Contracts Act, 1960 (Act 25) establishes liability for fraudulent misrepresentation, and the Criminal Offences Act, 1960 (Act 29) provides for civil claims in fraud-related cases. A case law is Atuguba v. Boakye (2001) SCGLR 156 where The Supreme Court awarded damages for losses suffered due to fraudulent misrepresentation in a business contract. Example: If a person is tricked into investing in a fake company, they can sue to recover their money plus damages.

5. Criminal Proceedings for Contracts Involving Illegality

If an unenforceable contract involves criminal elements (such as bribery, fraud, or money laundering), the affected party may report the matter to law enforcement for asset recovery.

The legal basis for this is the Anti-Money Laundering Act, 2020 (Act 1044), which provides for the confiscation of proceeds from illegal contracts, and section 239 of the Criminal Offences Act, 1960 (Act 29) which criminalizes fraud and allows recovery of stolen assets. In the case of The Republic v. Boadi & Another (2012) SCGLR 235, the assets acquired through fraud were confiscated by the state. It is important to state here that where the facts are such that both parties willfully and knowingly participated in the illegality, the court may refuse to order the performance of the contract or refuse to make orders for refunds or restitution.

Example: If someone pays a bribe to secure a contract and later seeks to recover the funds, the state may prosecute the involved parties and order asset forfeiture.

6. Setting Aside Contracts Signed Under Duress or Undue In fluence

A contract signed under pressure or manipulation can be set aside, and any transferred property can be recovered. Section 20 of the Contracts Act, 1960 (Act 25) allows contracts signed under duress to be nullified.

Example: If a business owner was forced to transfer shares under threat, they can file a suit to restore ownership.

7. Challenging Unfair Terms in Contracts with Vulnerable Persons

Contracts that exploit minors, illiterate persons, or those with mental incapacities can be challenged in court. The Illiterates Protection Act, 1912 (Cap 262) requires contracts with illiterate persons to be properly explained and documented.[4]

Example: If an illiterate individual unknowingly signs away property rights, the court can intervene to reverse the transaction.

PROCEDURE FOR RECOVERY OF ASSETS EXCHANGED UNDER ILLEGAL OR UNENFORCEABLE CONRACT:

1. Seek Legal Counsel: It is crucial to consult with a legal advisor who specializes in contract law when dealing with unenforceable or illegal contracts. Given the technicalities involved in such matters, the expertise of an experienced attorney will help navigate the complexities and ensure that your legal rights are protected.
2. Documentation: Gather all relevant documentation that supports your case. This may include the original contract, proof of payments, communication logs (such as emails or text messages), and any other records that can demonstrate the transaction or mitigate your involvement in the illegal agreement. Proper documentation can strengthen your position in any dispute resolution process.
3. Explore Alternative Dispute Resolution (ADR): Before resorting to formal litigation, consider engaging in Alternative Dispute Resolution (ADR) methods such as mediation or arbitration. These alternatives are often more efficient, cost-effective, and less adversarial. ADR can provide a quicker path to resolving disputes and reaching a fair settlement without the need for prolonged court proceedings.
4. Take Legal Action: If negotiations or ADR methods do not lead to a satisfactory resolution, legal action may be necessary. In such cases, an experienced attorney will craft a strong legal argument for restitution or compensation. They will ensure that any potential legal claims, such as unjust enrichment or fraudulent misrepresentation, are properly asserted before the court.

CONCLUSION

The recovery of assets exchanged under illegal and unenforceable contracts depends on legal principles such as rescission, restitution, unjust enrichment, and fraud claims. In some cases, disputes can be resolved through negotiation or arbitration; when necessary, litigation remains a viable option.

It is always advisable to refrain from entering into contracts of this nature from the outset. Every contract you engage in must conform to the laws of the Republic of Ghana to be legally binding and enforceable. If there is any uncertainty regarding the legality or enforceability of an agreement, seeking legal counsel is imperative. A lawyer can provide the necessary guidance to ensure compliance with the law and safeguard your interests. Ultimately, exercising due diligence before committing to a contract is far more prudent than facing the complexities and legal hurdles of asset recovery.

[1] Christine Dowuona-Hammond, The Law of Contract in Ghana, (Frontiers Printing & Publishing Company 2011) 1

[2] See Banful and Another Vrs Attorney General and Another [2017] GHASC 21 (22 June 2017) where the Supreme Court held an agreement between the Governments of Ghana and the United States of America as unconstitutional for having been entered into without parliamentary approval contrary to Article 75 of the 1992 Constitution

[3] https://kuclawstudentsunion.com/wp-content/uploads/2024/09/MENSAH-v.-THE-REPUBLIC-1968-GLR-230-232.htm

[4] https://www.studocu.com/row/document/ghana-institute-of-management-and-public-administration/law/illiterates-protection-act-1912/13575211

Introduction

Evaluating the intricacies and complexities of societies requires a close examination of the cultural practices and rituals that shape the daily lives of their members, as well as the underlying belief systems that give these practices meaning. This is particularly relevant in Ghana, where enduring cultural traditions and deeply held beliefs continue to define social identity. Like many African nations, Ghana presents a unique blend of time-honoured practices alongside modern formal routines, each contributing its own significance to the social fabric. A compelling entry point for such analyses is the study of funerals and funeral rites, which traditionally serve both to escort the deceased into the afterlife and to celebrate their lives.[1]

Customary social structures in Ghana traditionally prioritise the collective over the individual. As a result, funerals, and their accompanying rites, are typically managed by the extended family of the deceased. In instances where the deceased held a leadership position, particularly in chieftaincy, the funeral process necessitates the endorsement and involvement of the relevant stool or subordinate chiefs, reflecting the person’s elevated status. Regardless of individual repute, however, the extended family usually retains primary authority over funeral arrangements, determining everything from timelines and individual roles to the selection of venues, specific rites, and the burial site.[2]

Contemporary Ghanaian funerals have evolved into elaborate, multifaceted events that reflect the tension between preserving cultural heritage and adapting to modern influences. Increasingly, however, Ghanaian society is embracing a more individualistic ethos, with nuclear families asserting greater autonomy and a growing expectation that personal directives should be respected. This evolving landscape calls for a judicial rethinking of the extended family’s overarching control over funeral decisions, urging courts to consider enforcing personal directives expressed by the deceased. Such reform would not only honour the autonomy of the individual and the nuclear family but also align Ghana’s legal framework with contemporary societal values.

Given this shift, this article argues for the recognition of advance directives as enforceable legal instruments in Ghana, asserting that such recognition would better protect the autonomy of both the nuclear family and the expressed wishes of the deceased. To contextualize the tension between customary law and modern values, Ghana’s legal framework, shaped by judicial precedents, provides critical insights. The following analysis of key cases illustrates how courts have historically navigated this balance.

Existing Jurisprudence

The present position of Ghana law is drawn out of multiple judicial decisions regarding the subject matter. Legislation is largely silent on the determination of which parties should be given primary responsibility over the conduct of the final funeral rites of a deceased individual. Thus, the determination has often been dependent on the dictates of customary law. Constitutionally, Article 11 of the 1992 Constitution[3] recognises, per Clauses 1, 2 and 3, customary law as included in the laws of Ghana. The Constitution defines customary law to be “the rules of law which by custom are applicable to particular communities in Ghana.”[4] Customary law is applicable and enforceable in a court of law to the extent that it does not conflict with the Constitution[5] or other written law.[6]

Thus, where the Constitution or statutory law fails to make provision for a particular matter, and the dispute before the courts is such that there exists a customary practice that would enable the court to resolve it, the court would often be willing to apply such customary practice. In furtherance of this point, one could consider the dictum of Twumasi JA in the case of The Republic v. The Judicial Committee of The Ga Traditional Council and Another; Ex-Parte: Nettey[7] where the learned Justice stated:

“It follows from leading cases therefore that customary law draws its nerve wire from the most ancient concepts of the rule of law, natural justice and fair trial and we must recognise that our customary law is especially tenacious of the truth and would leave no vestiges of doubt in its pursuit of the truth and it achieves this objective through the investigative process of calling witnesses and subjecting them to the rigours of cross-examination albeit in an informal manner not fettered by any technical rules of evidence as pertain in the common law practice. It is therefore in my view revulsive to customary law to say that it operates on arbitrariness and caprices.”

The learned Justice stated further:

“Contrary to what counsel may think of customary law, that it operates on no laid down principles such as cross-examination, customary law as indeed Griffith CJ said in Yirenkyi vrs. Akuffo [1905] 1 Ren p. 362 at p. 367:—“Generally consists of the performance of the reasonable in the special circumstances of the case”. Other cases have approved of and applied this famous dictum which to me is an eloquent testimony of the intrinsic wisdom in our customary law.” (Emphasis is mine)

This approach has worked fine in our pluralistic system with diverse tribes and ethnicities because, in truth, certain life processes have always been and still remain ubiquitous to all forms of human society. Organized communities universally establish customs and rituals to address pivotal aspects of life such as parentage, marriage, contracts, death, inheritance, and conflict resolution. These shared human experiences necessitate societal structures and frameworks to navigate them effectively. It is for this reason that both the Marriages Act[8] and the Children’s Act[9] both recognise customary forms of marriage and adoption respectively. This is also why the Intestate Succession Law[10] was passed, to consolidate all customary practices into a single process to be approved by courts, and to specifically abolish some of the unfair customary practices that existed prior.[11] A lot of other such matters have seen laws enacted that either incorporated existing customary practices or replaced them completely. Unfortunately, other than regarding the distribution and inheritance of deceased property, no such legislation exists for determining who is entitled to conduct the rites and affairs of a deceased person, thereby leaving it up to the courts to determine such disputes as and when they arise.

As a minor starting point, it is worth noting that, at common law, it is said that the body of a deceased person cannot constitute property capable of being inherited.[12] There is however a duty to ensure that proper arrangements are made to arrange for the proper disposal of the body.[13] In Ghana, courts that have had to deal with such subject matter have also established certain legal positions. The most notable case in this regard is inarguably the case of Neequaye and Another v. Okoe[14] which was a dispute between the nuclear and extended families of the late Dr. C.R. Neequaye regarding his final funeral rites and final resting place. His nuclear family, represented by his widow and eldest daughter, argued that they have control of his burial because, according to Ga customary law, the nuclear family held primary responsibility for funeral arrangements. They further asserted that a corpse was akin to property under customary law, and as the main inheritors of the deceased’s estate according to the Intestate Succession Law (PNDCL 111), they should inherit and thus control the corpse and burial.  Finally, they claimed the deceased had explicitly expressed wishes to be laid in state at his home and buried in a specific cemetery, desires they believed they were entitled to fulfil.

Lutterodt J (as she then was) ruled in favour of the extended family, asserting that a corpse cannot legally be classified as property within the meaning of 18 of PNDCL 111 and thus, the corpse would not be covered by the provisions of PNDCL 111. She stated thus:

“I have also gone through PNDCL 111 which deals with, succession to the self-acquired property of a deceased intestate. The Law applies to property acquired by the deceased, it not being family property or stool property. By definition under this Law a corpse does not form part of those items described as property. Certainly a corpse is not an immovable property, eg land or buildings. It is not included nor intended to be included in the definition of household chattels under section 18 of PNDCL 111.”

Regarding the wishes of the deceased, the learned Justice found proof of such wishes to be insufficient. In fact, she even considered some of the evidence to be dubious and essentially treated the plaintiffs’ claims about the deceased’s intentions as unsubstantiated allegations. The learned Justice of the High Court thus relied on Ga customary practice to hold that the extended family be the ones with the authority to make the necessary determinations. In reaching this conclusion, the learned Justice stated:

“Since there is no statute law governing these matters they will be based purely on customary law. I did not intend to rely merely on the evidence of the second defendant witness to state the law. Acting under the powers conferred on me by section 50(1), (2) and (3) of the Courts Act, 1971 (Act 372) invited the office of the Ga Mantse to help me determine these issues.

After hearing the witness, I have come to the conclusion that the position of the law as at customary law is that the wife and children are not the persons entitled to collect the body of a Ga Mashie man from the mortuary. They are also not the persons entitled to name the place of wake-keeping nor place of burial.”

She did however state additionally:

“That is not to say that the nuclear family is of no importance, far from it. We need strong nuclear families to build strong nations. But what I am saying is that at law the wife and children have no inherent right to decide on those issues. Since customary law does what is reasonable I would think they must be consulted during the arrangements. Indeed, this is the time they need the compassion and sympathetic care of all concerned. Their wishes and views must be heard and considered but I am saying that the state of the law as we have it now, be it statute law or otherwise, does not vest in the spouse and children, particularly in the spouse, the rights sought for by the plaintiffs.”  (Emphasis is mine)

The case of Neequaye v. Okoe thus effectively established a position in Ghanaian law that, until statutory change is enacted, customary law would determine who has the authority to conduct the final rites of the deceased person. This precedent was tested in the case of Chijioke I. Kalu and Others v. Mrs. Florence N. Kalu and Others[15] which concerned the application of Nigerian Igbo customary law towards the determination of who has the authority to determine the burial rites of the deceased.

In this case, the defendants, the widow and daughter of the deceased, argued for the burial of the deceased in Ghana. They alleged that this was the wish of the deceased, which was why he moved from Nigeria to Ghana. Ackaah-Boafo J. (as he then was) was also not convinced by the evidence led by the Defendant to prove such intention. Of keynote is the fact that the court considered, among other things, the chiefly status of the deceased (a status which implies deep knowledge and dedication to custom) in holding that further proof of such wishes was required. Furthermore, the learned Justice asserted that even if the deceased had indeed intended to be buried in Ghana, such an intention would not have been decisive unless explicitly stated in his will. The learned judge stated:

“[56] Assuming that I am wrong with my analysis and therefore in error; based on the law that there is no property right in a dead body and also the personal law of the parties herein that in the absence of a written Will directing that a deceased does not want his affairs to be regulated by a system of customary law, all decisions are to be made by the family, I am fortified that the said dying wish should not be sacrosanct but subject to the approval of the family…” (Emphasis is mine)

It is important to note, however, that this dictum specifically pertained to Igbo customary law as established before the High Court Justice. Nonetheless, the ruling firmly underscores that a court, in recognizing the applicability of customary law and tradition, may disregard the personal wishes of the deceased. It is also important to note on the other hand that customary law only became relevant because the deceased had not set out his burial wishes in a will. Had such a will existed, the case may have taken a different trajectory, with the court potentially giving weight to the deceased’s express directions. The absence of a written will, however, left the matter to be determined by the established customs governing the burial of an Igbo man, as proven before the court.

On the point of chieftaincy, two other cases are also worth considering: Nsiah v Ameyaw II[16] and Nii Kpakpo Amaate II v. Daniel Sackey Quarcoopome And 3 Others.[17] In the Nsiah case, The Respondent, claiming to be the Chief of Effiduase and Acting President of the Asante Mampong Traditional Council, sued the Appellant, the family head of the deceased, seeking a declaration that as chief, he must be customarily informed of the sub-chief’s death before burial and funeral rites could proceed. The Appellant argued that the deceased had never recognized the Respondent as chief, and thus, there was no obligation to inform him. Before pleadings closed, the Respondent secured an injunction preventing the burial and funeral until he was notified. In upholding the decision of the trial court, the Court of Appeal stated that while notification was not an absolute requirement for burial, once a person held a chiefly position, their burial became a matter of customary significance, distinguishing royal burials from ordinary burials. The court emphasized that customary burial rites must be observed, and where a breach of custom occurred unintentionally, purification rites would be required. Thus, this case effectively established that where the deceased person is a chief, customary procedure would require notification of the necessary customary authorities. In Amaate II, Ackaah-Boafo J. (as he then was) ruled on a conflict between a chief and a family over funeral rights. The crux of this case was an injunction application filed by the chief to prevent the family from conducting the funeral of the deceased unless and without his participation. In dismissing the application, the court, despite recognising the authority of the chief over the funeral of his sub-chief as established in the Nsiah case above, the learned judge took the view that the personal relationship and animosity that existed between the deceased and the applicant would make it unreasonable for the applicant to conduct the funeral. The learned judge stated thus:

“[43] Now, having regard to the competing claims of the parties and given the affidavit evidence and facts of the case it can be discerned from the pleadings that all was not well between the deceased late Mankralo and the Plaintiff. From the evidence the deceased is the one who allegedly “kidnapped” the Plaintiff from Bawjiase to Obom and where he was stripped half-naked. Consequently, the deceased and others were convicted by a Court of competent jurisdiction for assaulting the Plaintiff as the Complainant and the star prosecution witness. The Defendants have confirmed the bad blood that existed between the deceased and the Plaintiff whilst he was alive and therefore accuse him of using the instant action as a transparent ruse to retaliate and embarrass him even after his death. To that extent sitting as a judge I should ask myself whether or not under the colour of custom, the burial and funeral of the deceased should be organized by the Plaintiff? To my mind the answer is No. Granting the Applicant’s wish would amount to giving him the right to organize the funeral of his adversary. To my mind that would not be in accordance with good conscience and common sense.” (Emphasis is mine)

In departing from the decision in the Nsiah case, the learned Justice stated:

[45] In the opinion of the court whilst the case of NSIAH v. AMEYAW II SUPRA unequivocally states and recognizes that rites are performed for those who hold chiefly positions upon their demise, I do not understand their Lordships to say that the funeral and burial should be organized by the sitting Chief. He is to be informed by the family and he is to be allowed to perform customary rites.

These authorities seem to give credence to the expression “the family owns the body” in Ghanaian jurisprudence. However, this customary principle faces challenges in light of modern societal developments. The rise of the nuclear family, evolving socio-legal values, and Ghana’s pluralistic legal system have led to disputes over the deceased’s body between extended and nuclear families. Arguments have been put forward for a legal framework that places further importance on the nuclear family and its preferences to reflect contemporary societal dynamics.[18] Such an approach is not wholly unreasonable considering how more and more people are leaving the country to start families abroad, with some even cutting ties with their extended families altogether. This would also go a long way to prevent situations where extended family members frustrate the nuclear family with exorbitant fees and unreasonable practices.

Personal Wishes of the Deceased

The courts’ reluctance to honour unproven wishes, as in Kalu v. Kalu, underscores a systemic gap. By contrast, advance directives could resolve this ambiguity by providing clear evidence of intent.  The authorities have yet to provide a definitive pronouncement on the effect of the written wishes of the deceased on how such arrangements are to be carried out. It is submitted that if it can be demonstrated that the deceased did not wish for their affairs to be managed under customary law, or specifically by their extended family, the courts should honour such preferences.

Critically, even though a corpse is not legally inheritable, and is thus not covered by PNDCL 111 or the Wills Act, 1971 (Act 360), it is submitted that it is inherently abhorrent and against good conscience for the wishes of a person following his death to be overridden by a custom that he has explicitly refused to adhere to. Just as Section 54 of the Court Act, 1993 (Act 459)[19] specifies the personal law of the deceased as the applicable law to the devolution of the estate, so too should personal law determine the applicable rules regarding authority over the burial of the deceased.

In the view of the present author, customary law should only be applicable where the intentions of the deceased cannot be proven, with sufficient cognisance, of course, of the higher standard of proof where a person makes an allegation regarding a person who is deceased and unable to refute such allegation.[20] Thus, where a person prepares a Will or some other advance directives regarding such processes, or if the intentions of the deceased can be proven by some other means, then their wishes should be sacrosanct. This should apply regardless of chiefly status.

Conclusion

In summary, Ghanaian jurisprudence regarding burial rites navigates a complex terrain, balancing customary law, which traditionally grants authority to the extended family, with the evolving realities of modern Ghanaian society. Cases like Neequaye v. Okoe and Kalu v. Kalu underscore the judiciary’s current deference to customary practices in the absence of statutory law, even when faced with competing claims from nuclear families and the alleged wishes of the deceased. This legal stance, while rooted in the recognition of customary law within Ghana’s pluralistic system, creates a tension with contemporary values that increasingly prioritize individual autonomy and the nuclear family unit.

To reconcile these competing values, legal reform, whether by statute or judicial pronouncement, is desirable. Recognizing advance directives concerning burial rites as legally enforceable instruments would represent a crucial step forward. Such reform would not only honour the autonomy of individuals and nuclear families in deeply personal decisions but also ensure that Ghana’s legal framework evolves to reflect modern societal values. By giving legal weight to the expressed wishes of the deceased, Ghana can create a more equitable and contemporary approach to burial rites, balancing respect for cultural heritage with the fundamental rights of individuals in a changing society.

[1] Alice Boateng and Linda Anngela-Cole, ‘Socio‐Economic Transformation of Akan Funeral Rites in Ghana: The Changing Process’ (2012) 65 Omega 281 doi:10.2190/OM.65.4.c Accessible from < https://www.researchgate.net/publication/232763888_Socio-Economic_Transformation_of_Akan_Funeral_Rites_in_Ghana_The_Changing_Process> Accessed 24 February 2025

[2] Edna Agnes Boakye, ‘A Corpse Cannot Be Inherited, It Belongs to the Wider Family – Legal Practitioner’ (Citi Newsroom, 25 July 2023). Accessible from < https://citinewsroom.com/2023/07/a-corpse-cannot-be-inherited-it-belongs-to-the-wider-family-legal-practitioner/> Accessed 02 March 2025

[3] Fourth Republican Constitution of Ghana, 1992

[4] Ibid, Clause 3

[5] See for example, Article 26(2) of the 1992 Constitution which prohibits all customary practices that “dehumanise or are injurious to the physical and mental well-being of a person”

[6] See for example Section 14 of the Children’s Act, 1998 (Act 560) as amended by the Children’s (Amendment) Act, 2016 (Act 937) which outlaws forced marriages of children and marriage of children below the age of 18 years.

[7] The Republic v. The Judicial Committee of The Ga Traditional Council, Adjiy Tetteh Ex-Parte: Nettey (2000) JELR 66951 (CA)

[8] Marriages Act, 1884-1985, (CAP 127)

[9] note 6

[10] Intestate Succession Law, 1985 (PNDCL 111)

[11] Ibid, Section16A

[12] Except where the body or its parts have acquired different attributes through the application of skill such as dissection or preservation techniques (R v Kelly [1999] QB 621)

[13] See Williams v. Williams (1881) 20 Ch. 659; Rees v. Hughes [1946] K.B. 517

[14] Neequaye And Another v. Okoe [1993-94] 1 GLR 538

[15] Chijioke I. Kalu and Others v. Mrs. Florence N. Kalu and Others (2017) JELR 69826 (HC)

[16] Nsiah v Ameyaw II [1994-95] 2 GBR 583 – 592 CA

[17] Nii Kpakpo Amaate II V. Daniel Sackey Quarcoopome And 3 Others (2018) JELR 63735 (HC)

[18] Ama F Hammond and Prosper Batariwah, ‘A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana’ (2023) 10(2) Journal of Comparative Law in Africa 40.

[19] As amended

[20] See Grace Asantewaah v. Mark Amankwah Addo [2008] 1 GMJ 209 @ page 212 where it was held that “where an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be thoroughly sifted and the mind of the judge who hears it ought to be first of all, in a state of suspicion. The evidence adduced by both parties would be considered in that light”

In the digital age, cybersecurity has emerged as a critical concern for businesses of all sizes. The growing complexity of cyber threats poses significant risks to corporate data, reputation, and financial stability. This article explores the legal and ethical obligations of corporations in safeguarding sensitive information, the potential consequences of data breaches, and effective strategies for mitigating cybersecurity risks.

What is corporate liability?

Corporate liability refers to the extent a company may be held legally liable for the acts and omissions of business partners and the persons it employs. Liabilities are the obligations incurred by a company. All businesses have liabilities, whether they are debts the company has or will have. They may be legal liabilities arising from the actions of partners or employees.[1] In Salomon v Salomon & Co[2], the House of Lords held that once a company is registered, it must be treated like any other independent person with its own rights and liabilities. It can accordingly sue and be sued, hold property and transact, incur liability and generally act as though it were a natural person. It has perpetual succession and continues indefinitely notwithstanding changes to the identity of the persons who from time to time compose it.

In the cybersecurity context, corporate liability would include the obligation to protect data and digital systems. Failure to ensure adequate security can lead to legal action under data protection laws or claims of negligence if security breaches harm clients, customers, or partners.

Today, businesses have become highly dependent on technology to manage day-to-day operations. This dependence has exposed them to a growing number of cybersecurity attacks, including hacking, ransomware, phishing, and data breaches. They are faced with unprecedented risks from supply chain attacks to cloud vulnerabilities. Cyber-attacks now target organizations of all sizes, often causing financial loss, operational disruption, and reputational damage​. As businesses increasingly rely on cloud services and IoT devices, vulnerabilities multiply, making it imperative for organizations to adopt robust cybersecurity frameworks.

By taking the necessary action and steps to mitigate these cyber threats, we will protect our sensitive data, and ensure financial security.

Legal Framework Governing Corporate Liability

In Ghana, the recognition of the right to privacy regarding the processing of personal data or information stems from the constitutional guarantee of privacy under Article 18(2) of the 1992 Constitution. This provision reinforces the protection of personal information and ensures that an individual’s privacy is respected in the handling of their data.

Companies are required to implement strong cybersecurity measures and ensure that consumer data is adequately protected. Some of the most notable legal frameworks include:

Data Protection Act, 2012 (Act 843): This Act mandates that companies must process personal data fairly and lawfully while implementing appropriate security measures to protect against unauthorized or unlawful processing and accidental loss, destruction, or damage of personal data. Under Section 28 of the Act, data controllers are required to take appropriate technical and organizational measures to safeguard data security. Data processors who handle personal data on behalf of a data controller must comply with the security measures outlined under the Act. They are responsible for ensuring that the data remains confidential and that it is processed with the prior knowledge or authorization of the data controller subject to Section 29. According to Section 31, If there are reasonable grounds to believe that personal data has been accessed or acquired by an unauthorized person, the data controller or any third-party processor must notify the Data Protection Commission and the affected data subjects. The notification must be done as soon as reasonably possible and include sufficient information for the data subjects to take protective measures.[3]

Electronic Transactions Act, 2008 (Act 772): This Act regulates electronic communications and transactions, ensuring that companies engage in secure electronic transactions. Section 9 mandates that organizations must use security measures appropriate to the sensitivity of the information being handled. This includes ensuring the confidentiality, integrity, and authenticity of electronic records, which is critical for protecting clients’ data against cyber threats. Service providers are prohibited from divulging the contents of communications stored by their systems unless authorized by law. This section ensures that companies handling electronic data, particularly customer information, must protect it from unauthorized access and use subject to Section 96.[4]

Cybersecurity Act, 2020 (Act 1038): This comprehensive legislation establishes the Cybersecurity Authority, which oversees and regulates cybersecurity activities within the country. The Act imposes obligations on companies to report cybersecurity incidents and adopt cybersecurity standards. Section 35 of the Act mandates that companies develop and implement a cybersecurity policy that addresses the protection of critical information infrastructure.

Section 40, emphasizes that unauthorized access to critical information infrastructure is illegal. Companies managing critical information infrastructure must prevent unauthorized access, and failure to do so could lead to corporate liability.[5]

National Communications Authority (NCA) Regulations: The NCA issues regulations and guidelines to ensure that telecommunications and ICT service providers implement robust cybersecurity measures. These guidelines often require companies to conduct regular risk assessments, employ encryption technologies, and maintain an incident response plan.

Failure to comply with these legal requirements may result in significant penalties, including fines, imprisonment, and reputational damage. Companies must therefore stay abreast with these legal obligations and continuously enhance their cybersecurity frameworks to mitigate corporate liability in the face of evolving cyber threats.

Beyond the Breach: Quantifying the Costs of Cybersecurity Failures

If your computer systems are subjected to unauthorized access or if customer, employee, or partner data is lost, stolen, or otherwise compromised, the costs associated with response and remediation can be substantial. Your business may face the following potential expenses or be held liable for various reasons, this is however not limited:

• Negligence: If a company fails to implement reasonable cybersecurity measures, it may be found negligent. This includes failing to maintain updated security protocols, not conducting regular audits, or ignoring known vulnerabilities.
• Breach of Contract: When companies engage in contractual agreements, they often commit to safeguarding sensitive information. A data breach resulting from inadequate cybersecurity measures could result in a breach of contract claim.
• Regulatory Violations: Failing to comply with industry-specific or regional cybersecurity regulations exposes companies to fines and penalties. For instance, under the General Data Protection Regulation (GDPR), companies must notify authorities of data breaches within 72 hours, and failure to do so results in financial penalties.
• Shareholder Lawsuits: Corporations may face shareholder lawsuits for failing to disclose cybersecurity vulnerabilities or for not having proper risk management policies in place. Such claims often arise after a breach negatively impacts a company’s stock price or financial performance.
• Notification expenses: If your business stores customer data, you’re required to notify customers if a data breach has occurred or is even just suspected. This can be quite costly, especially if you have a large number of customers.

Case Study in Cybersecurity: Lessons from Notable Breaches

The case of the Electricity Company of Ghana (ECG) was seen as a serious threat to the country’s national security. Their ransomware attack resulted in a staggering loss of GH₵400 million to GH₵500 million.[6] The ransomware attack affected the ECG’s operations, leading to disruptions in power supply and other essential services. It also however had a negative impact on businesses, households, and the whole economy. The Bank of Ghana’s Fraud Report reveals a 65.5% increase in cyber email fraud losses, emphasizing the rising tide of cybercrime. Recently, the Africa Centre for Digital Transformation (ACDT) has warned of potential cyber threats to Ghana’s December 7 elections, urging stakeholders to take immediate action to safeguard the electoral process. The ACDT, in a press statement, highlighted the growing risk of cyber-attacks as digital systems become increasingly integral to Ghanaian society, including its electoral processes. The organization emphasized the national importance of addressing these attacks to ensure the integrity and security of the upcoming elections.[7]

Strategies for Mitigating Cyber Threats

Cyber security is a strategic business risk that requires board-level oversight. Corporate governance plays a vital role in ensuring that cybersecurity is integrated into a company’s risk management framework. Failure to do so can lead to significant legal, financial, and reputational damage, as demonstrated in high-profile breaches.

To combat these growing risks, corporations must adopt comprehensive cybersecurity strategies. Boards must take an active role in cybersecurity governance, ensuring that the right strategies, resources, and accountability structures are in place to protect the company’s assets and reputation. These attacks evolve rapidly, and what might be secure today could be vulnerable tomorrow. Companies should continuously monitor their systems for unusual activity and conduct regular risk assessments to stay ahead of emerging threats. Automated tools, such as Intrusion Detection Systems (IDS) and Security Information and Event Management (SIEM) platforms, can help track and analyze potential risks in real-time. Companies should implement employee training programs aimed at educating staff about potential attacks, how to recognize suspicious activity, and the importance of following security protocols this is because many successful cyberattacks, such as phishing and social engineering attacks, exploit human error.

Conclusion

The Ghanaian Cyber Security Authority (CSA) frequently emphasizes the critical importance of strong cybersecurity defenses. As cybercriminals become more sophisticated, they pose a growing threat to individuals, businesses, and government agencies alike. These attacks pose substantial risks to data privacy, financial stability, and national security. To counteract this growing menace, it is imperative for Ghanaians to adopt specific cybersecurity measures, such as implementing multi-factor authentication (MFA) and strong passwords, which can significantly reduce the vulnerability to cyberattacks.

[1] https://brinenlaw.com/corporate/what-is-corporate-liability/

[2] Salomon v A Salomon and Co Ltd [1897] AC 22

[3]Data Protection Act, 2012 (Act 843)

[4] Electronic Transactions Act, 2008 (Act 772)

[5] Cybersecurity Act, 2020 (Act 1038)

[6] https://www.ecg.com.gh/index.php/fr/media-centre/news-events/ecg-lost-nearly-gh-500-million-due-to-ransomware-attack-managing-director-confirms#:~:text=And%20we%20have%20a%20quantity,period%2C%22%20the%20ECG%20Managing%20Director

[7] https://citinewsroom.com/2024/07/ghana-faces-cyberattack-threat-ahead-of-december-elections-acdt/

BY; NICOLINN ADJOWA KWAW

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

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 3^rd 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/

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

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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.

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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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