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March 12, 2024 No Comments

UNDERSTANDING THE LAW OF DEFAMATION

 

 

 

UNDERSTANDING THE LAW OF DEFAMATION

In the wake of freedom of speech and the right to information, among other rights, and in the advent of the use of technology and social media in the dissemination of information, the issue of defamation has increased due to how viral a defamatory statement can go.

The Merriam-Webster dictionary defines defamation as the act of communicating false statements about a person that injure the reputation of that person. Harming someone’s reputation in speech with falsehoods is known as slander, and doing the same thing in writing is known as libel (which sometimes includes speech as well).

The concept of defamation is a tort and tort law is a civil wrong. It is also a body of laws that enable people to claim compensation for wrongs done against them.  The Courts have also defined defamation in various ways that throws more light on what it means to defame someone. In the case of Youssoupoff v. M.G.M Pictures[1], the definition of a defamatory material was said to be “if any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable.” In a similar manner, Lord Atkin in Sim v. Stretch[2] restated the definition of defamation as “Would the words tend to lower the plaintiff in the estimation of the right thinking members of the society generally? His definition as can be seen focuses on whether or not the reasonable, objective man would consider the words used to be lowering the reputation of the Plaintiff or not.

In addition, a definition proffered in Halsbury’s Laws of England[3] states that “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”.

Furthermore, the case of Parmiter v. Couplands[4] defined defamation to be “a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt.” … “if any man deliberately or maliciously publishes anything [in writing] concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable.”

It is trite law that a defamatory statement made in writing, or published is considered “libel”; and defamatory statement that is spoken is considered “slander”.

 

Purpose of defamation

In the case of Professor E.O. Adekolu v. The University of Development Studies[5],  the Supreme Court pronounced on the Tort of Defamation as follows; “What must be clearly understood is that, the tort of defamation is meant and designed to protect persons from false imputations which harm their reputation before the eyes of right thinking members of the public …”.

 

Elements of defamation

In order for a statement, oral or written, to constitute defamation, according to the case of Benjamin Kwasi Duffour v. Bank of Ghana & Anor[6] there must be with no exception:

  1. A statement of fact and for that statement of fact to be considered defamatory, the statement must concern a matter of fact, not simply an opinion.
  2. A published statement and this published statement need not necessarily be published in print, such as a newspaper or book. For the purposes of defamation, the statement is considered published if a third party sees, reads or hears it.
  3. An injury caused by the statement if the plaintiff’s reputation was harmed by the statement.
  4. The statement must be false. It is not enough to show that a published statement simply does injury to the plaintiff; rather, for it to be determined to be “defamatory”, it must also be shown that the statement is false.
  5. The statement is not privileged. There are some instances when a person may say something that is both untrue and injurious to another party, but that person is protected from being sued for defamation.

In a similar vein in the case of Owusu-Domena v. Amoah[7] the requisite elements of a defamation suit were outlined. The Honourable judge Benin JSC opined that, in establishing that a publication was defamatory, the plaintiff must plead and lead evidence on the following in order to succeed:

(i) that there was publication by the defendant;

(ii) that the publication concerned him, the plaintiff;

(iii) that the publication was capable of a defamatory meaning in its natural and ordinary sense;

(iv) that alternatively or in addition to (iii) above, from the facts and/or circumstances surrounding the publication, it was defamatory of him, the plaintiff; and

(v) if the defendant sought the defence of qualified privilege or fair comment, that the defendant had been actuated by malice, and malice in such matters would be said to exist if there was spite or ill will on the part of the defendant or if the court found indirect or improper motive against the defendant in publishing the words complained of.

Defamation, i.e. libel and slander, protect reputation, therefore, a defamatory statement must be published to enable the plaintiff claim that he has suffered damage to his reputation. In establishing that a publication is defamatory;

(i) it must be shown that the publication was capable of a defamatory meaning. This is described in Winfield and Jolowicz on Tort[8] as the “natural and ordinary meaning” of the words published.

(ii) it must be shown from the prevailing facts and/or circumstances that the words used are defamatory.

It is crucial that a plaintiff shows that harm has been done to his/her reputation, usually measured in economic terms. Thus in the case of McPherson v. Daniels[9], the court stated that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess”.

In defamation suits, the Plaintiff has the burden to prove that he or she has been defamed per the standard required in civil actions which is on a balance of probabilities as far as the basic elements of the Tort of Defamation are concerned. Section 11 of the Evidence Act[10] states in part;

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

The Supreme Court in the case of Klah v. Phoenix Insurance Co. Ltd[11] held that;

“Where a party makes an averment that is capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.”

Note that the standard for determining whether a defamatory meaning has been conveyed by a newspaper publication, is, as already stated above, the judgement of “right-thinking members of society”, and not persons with specialist qualifications analyzing words used by a non-expert.[12]

From the foregoing, the plaintiff must establish all the elements stated above by producing documents, description of things, reference to other facts, and instances from which the court can satisfy itself that what he/she avers is true and this gives rise to a high threshold which is at times difficult to meet.

 

Defenses

There are several defenses against an action for defamation as enumerated in the case of Benjamin Kwasi Duffour v. Bank of Ghana & Anor[13]. The truthfulness or justification of the statement made is said to be the best form of defence. This means that the statement made/expressed by the defendant is true. Therefore, the burden is on the defendant to show or establish that the statement he or she made is true. Where the statement made against the other person is true or justified, then an action for defamation is not sustainable. The truth or justification of the statement is an absolute defence to an action for defamation. If the defendant proves the substantial truth of or justifies the words complained of, then the defence of truth or justification is established. In the case of Wakley v. Cooke[14], the defendant called the plaintiff a ‘Libelous Journalist.’ He proved that the plaintiff had been found liable for Libel once. The court was of the view that these words did not mean that the plaintiff was held liable on one occasion but it meant that the Plaintiff habitually libeled people. The defence of truth accordingly failed because the defendant must justify the statement by showing that the statement was substantially accurate. Similarly, in Buachie v Samman[15], the court held that the defence of justification should fail as it was “not satisfied that a plea of justification has been established.”

It is necessary to note that the truth of a defamatory statement, if established, is a complete and an absolute defence. It does not matter how careless, ignorant, or vindictive the defendant is; the motive of the defendant in publishing the statement is entirely irrelevant.

The next defence is the defence of fair comment. Every man has the right to free speech and to comment freely, fairly and honestly on any matter of public interest. This means that it is not defamatory when the statement made is an expression of opinion and not a statement of fact. The opinion, however, must be fair and based on facts that are true, which must be honestly held and not motivated by malice. Consequently, the defence of ‘fair comment’ will be defeated if the facts on which the comment is made are not true, or the comment itself is not fair as indicated in the old English case of Merrivale v Carson[16], where the court pointed out that “Mere exaggeration or even gross exaggeration would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.” Furthermore, in Kemsley v Foot[17], the House of Lords determined that the defence should succeed, if honest and fair-minded people would draw the same conclusions about the quality of the plaintiff’s newspapers, as the defendant did. In other words, if honest and fair-minded people would share that opinion of plaintiff’s newspapers, then the comment was fair.

A Defendant who relies on the defence of fair comment must plead the particulars of this defence – Standard Engineering Co. Ltd v. New Times Corporation[18]. In the case of Benneh v. New Times Corporation and Another[19], the court held that for a successful plea of fair comment to succeed, the words complained of must be shown to be:

(i) A comment.

(ii) Fair in the sense of honest comment.

(iii) A fair comment on a matter of public interest.

The comment here refers to a statement of opinion based on facts and it does not extend to cover misstatements of fact.  The comment must be made honestly. In the case of what constitutes matters of public interest, the case of Daily Dispatch and Others v. Bonsu and Others[20], indicated  that having regard to the position the Plaintiff occupies (being Mamponghene) and being of concern to Asanteman, as well as other positions that he held, he was a huge public figure and as such, matters concerning him were of public interest. Similarly, in the case of London Artists v. Littler[21], the court pronounced on what it considered a matter of public interest; “There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the Judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

Another defence is that the statement made is absolutely privileged. It applies to statements made under certain context such as statements made during parliamentary proceedings. In this context, there can be no action for defamation even if the words were false and the intent of the maker of the statement is irrelevant.

The defence of absolute privilege has been extended to protect criminal complainants. The policy reason is to ensure that individuals are not deterred from making criminal complaints out of fear of being sued for libel if a conviction does not follow. This issue was addressed in the case of Westcott v Westcott[22], where Lord Justice Ward summarized the problem as follows; “the authorities recited above [in the judgment] have made it clear that the justification for absolute immunity from suit will depend upon the necessity for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that the person accused will subsequently involve the complainant in costly litigation. There is a countervailing public interest in play which is that no-one should have his or her reputation traduced, certainly not without affording him or her a remedy to redress the wrong. A balance has to be struck between these competing demands: is it necessary to clothe the occasion with absolute privilege in which event even the malicious complainant will escape being held to account, or is it enough to allow only the genuine complainant a defence? Put it another way: is it necessary to protect from vexatious litigation those persons making complaint of criminal activity even at the cost of sometimes granting that impunity to malicious and untruthful informants? It is not an easy balance to strike. We must be slow to extend the ambit of immunity”.

Lord Justice Ward held that the need for individuals to report crimes without fear of suit was overriding since “the police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that his/her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged”.

The court stated that it does not follow that an acquittal or a discontinued investigation/prosecution automatically means that an allegation has been fabricated. However, if credible evidence exists that an allegation has been fabricated then the police are duty-bound to investigate such a complaint[23].

In addition, there is the defence of qualified privilege. This defence allows free communication in certain relationships without the risk of an action for defamation. Consequently, where the person making the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it, then the defence of qualified privilege arises. The defence of qualified privilege is, however, not sustainable if it can be proved that the defamation was motivated by malice. Toogood v Spyring (1834)1 CM &R 193 at pg 194 the court had this to say; “unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral or in the conduct of his own affairs, in matters where his interest is concerned. … If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

Subsequently, in the case of Benjamin Duffour v Bank of Ghana and Graphic Communications Group Ltd[24] the court indicated that for the defence of qualified privilege to avail a defendant, it must be established that the publication was made either;

(a) in the defendant’s own interest;

(b) in the interest of the one who received the information;

(c) in the common interest of the maker and receiver of the information; or

(d) in the public interest.

So in Buachie v Samman[25], the defence of qualified privilege was successful because the defence did not depend upon the truth of the allegation, but upon whether or not the circumstances of publication were privileged, i.e. whether the statements were made on a privileged occasion to persons who had an interest in receiving same.

Furthermore, under common law, qualified privilege applies where there is a duty to communicate the information to an audience and that audience has a reciprocal interest in receiving that information. However, in the case of Adam v. Ward[26], the court held that qualified privilege could not be made out in relation to publications to the world at large because there was rarely a duty to publish so broadly. In that case, it was held that the media had no special duty to publish[27].

The defence of qualified privilege was aptly discussed in the case of Reynolds v. Times Newspapers Ltd[28] where the Court of Appeal reviewed and laid the foundation for the law of qualified privilege and noted that although it is impossible to clearly demarcate occasions of privilege, the defence promotes the “common convenience and welfare of society”. The Court also considered several cases in which qualified privilege had been found to apply where defendants had published to the world at large[29]. The decisions of the courts were based on the fact that the matters involved were of public importance.

In discussing the proper balance between reputation and free speech, the Court decided that the common law of qualified privilege had a three-part test:

Firstly, there must be a “legal, moral or social duty” to publish.

Secondly, the recipients must have an interest in receiving the communication.

Thirdly, the circumstances of publication must suggest that it is in the public interest to protect the communication. Public interest has been broadly defined as “everything which invites comments or which concerns a man as a subject of the realm is a matter of legitimate public interest. All matters of government, public institutions and their administration and the public acts of men are certainly matters of public interest”[30]. Public Interest has been defined in the Court of Appeal case of Reynolds v. Times Newspapers Ltd.[31]as “matters relating to the public life of the community and those who take part in it, including within the expression ‘public life’ activities such as the conduct of government and political life, elections… and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure.”

The work of a journalist is to gather, analyze and inform the public on news and events. These journalists may not be immune from defamation suits. Therefore, the case of Reynolds v Times Newspapers Ltd.,[32]  sets out an “Illustrative” and “not exhaustive” list of factors to consider when determining whether a publication was responsible or not and it is as follows:

“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

  1. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  2. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  3. The steps taken to verify the information.
  4. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  5. The urgency of the matter. News is often a perishable commodity.
  6. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  7. Whether the article contained the gist of the plaintiff’s side of the story.
  8. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  9. The circumstances of the publication, including the timing”.

Generally, the weight to be given to these and any other relevant factors will vary from case to case.

Note that malice will defeat the defence of fair comment and the defence of privilege.[33] According to Harry Street, The Law of Torts[34] ‘Malice’ means either of the following:

  1. The defendant did not believe in the truth of his statement or was “recklessly careless whether the statement be true or false”.
  2. Wrong motive, ill will, personal spite or abuse of privilege.

The plaintiff’s case may fail if he/she is unable to successfully establish that the defendant was actuated by malice as seen in the case of Buachie v Samman.

Reliefs

Under customary law, a plaintiff can seek damages, an injunction, a retraction or unqualified apology. It is important to state that at common law, Libel, is actionable per se, because damage is presumed. On account of the presumption, there need be no specific proof of damage.[35] However, the Court of Appeal in the case of Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd., relied on Owusu Domena v Amoah where it was concluded that “[H]e did not lead any evidence to prove how his reputation had been injured in the eyes of these people. It is more likely than not that the said people were naturally concerned that he had lost his job and called to sympathize with him.” This indicates that the question whether to award damages or not is at the discretion of the court, and the court would mostly like to see evidence of the injury the defamatory statement caused the Plaintiff. In the case of Kofi Coomson v Lawrence Mingle (2007), the Court of Appeal held that an award of damages in a defamation case should be aimed at compensating the plaintiff for the harm suffered and not at punishing the defendant.

 

Conclusion

Defamation is a tort that protects reputation. Therefore, for a publication to be defamatory, it must be established that the words published has a defamatory meaning to the ordinary man and those words must have negatively affected the person about whom the defamatory statement was published.

 

 

[1] [1934] 50 T.L.R 581

[2] [1936] 2 A.E.R 1237

[3] (4th Edition) (Reissue), Vol. 28, page 7, paragraph 10

[4] (1840) 6 M and W at 108, 151 E.R. 340

[5] (unreported) (J4/59/2013) dated 19th March, 2014

[6] (2019) JELR 107042 (CA) COURT OF APPEAL· H1/67/2018 · 30 MAY 2019 · GHANA

[7] [2015-2016] 1 SCGLR 790

[8] (18th Edition) at page 64, paragraphs 12-15

[9] 109 ER 448 AT 451

[10] 1975 (NRCD 323)

[11] [2012] SCGLR 1139; Also Okudzeto Ablakwa (No. 2) v. Attorney-General and Anor [2012] 2 SCGLR 845 @ 847 regarding what is expected of a person who goes to court and makes an allegation.

[12] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[13] (2019) JELR 107042 (CA) COURT OF APPEAL· H1/67/2018 · 30 MAY 2019 · GHANA

[14] (1849) 154 E.R. 1316

[15] [1982-83] PT II GLR 797

[16] (1887) 20 QBD 275 at 280

[17] [1952] A.C. 345; [1952] 1 All ER 501 (HL)

[18] [1976] 2 GLR 409

[19] [1982-83] GLR 302 @308

[20] [2010] SCGLR 452

[21] [1969] 2 QB 375 @ 379, (available on www.bailii.org)

[22] [2008] EWCA Civ 818

[23] (Hunt v AB [2009] EWCA Civ 1092 and The Ministry of Justice (sued as the Home Office) v scott [2009] EWCA Civ       1215); https://www.brettwilson.co.uk/blog/

[24] Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[25] [1982-83] PT II GLR 797

[26] [1917] All ER 15 (HL), 334

[27] Also see Braddock v. Bevins [1948] IKB 580 (CA); Blackshaw v. Lord [1984] QB 1 (CA)

[28] [1998] 3 All ER 961 at 973 (CA)

[29] Also see Cox v. Feeney [1863] 4 F&F 13

[30] Carter-Rock on Libel and Slander, Fifth Edition, at page 109

[31] [2001] 2 AC 127

[32] ([1999] UKHL 45, [1999] 4 All ER 609)

[33] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[34] (6th edition), Butterworths, London. 1976, chapter 16, pp.291

[35] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

 

BY; VIDA NARKIE ODONKOR Esq.

 

 

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

CONTACT:

NARTEY LAW FIRM

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Email:info@narteylaw.com

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September 27, 2023 No Comments

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

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

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

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

 

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

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

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

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

 

CONCLUSION

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

 

BY; PRISCILLA MBAMA YAKUBU

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

 

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

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

 

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

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

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

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September 11, 2023 No Comments

ARBITRATION AS A FORM OF DISPUTE RESOLUTION IN GHANA

ARBITRATION AS A FORM OF DISPUTE RESOLUTION IN GHANA

 

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

 

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

 

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

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

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

 

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

 

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

 

Advantages of Arbitration

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

 

Disadvantages of Arbitration

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

 

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

 

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

 

Conclusion

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

BY; VIDA NARKIE ODONKOR ESQ.

 

 

 

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

 

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

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

Email:info@narteylaw.com

Uncategorized
May 5, 2023 No Comments

THE PROCESS OF ADOPTION IN GHANA

THE PROCESS OF ADOPTION IN GHANA

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

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

INTERCOUNTRY ADOPTION

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

Which child is adoptable?

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

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

Eligibility of an Applicant

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

The process of adoption

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

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

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

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

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

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

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

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

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

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

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

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

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

Requirements

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

 

IN-COUNTRY ADOPTION

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

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

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

Requirement

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

 

CUSTOMARY ADOPTION

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

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

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

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

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

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

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

 

BY: VIDA NARKIE ODONKOR Esq.

 

 

 

______________________________________________________________________

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

CONTACT:

NARTEY LAW FIRM

TEL: +233 (0)553508582

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.

 

Uncategorized
March 24, 2022 No Comments

CREATING A WILL IN GHANA

Image by Melinda Gimpel on Unspalsh

 

Author: Barbara Ewoenam A. Kukah

Death is one of the few certainties in life. In light of this, it is understandable that people will want to make provision for how their self-acquired property should be distributed and used after their death. The law allows people to make wills to give legal backing to people’s wishes on what should happen after their death for continuity of their estate. This article provides a guide on the creation of wills in Ghana.

What Is a Will?

A will is a legal document in which a person (known as the testator), specifies how their property should be managed and distributed after their death. Some people leave instructions for their bodies, funerals and burial as well as for the care of their child(ren) in their will but the primary purpose of a will is to give instructions concerning the distribution of the testator’s property.

It is regulated by the Wills Act, 1971 (Act 360) and Order 66 of the High Court (Civil Procedure) Rules 2004 (C.I 47). Act 360 regulates the validity of a will (the manner in which it is to be made and the persons who have capacity to make a will) while Order 66 of CI 47 regulates the process of getting probate for a will.

What Should be the Contents of a Will?

“There is no doubt that each and every one has the unchallenged right to distribute his/her self-acquired property the way he/she wants subject to the provisions of section 13 (1) of Act 360 and article 22 (1) of the 1992 Constitution.” – Appau JSC, Marfoa v. Agyeiwaa (J4 42 of 2012) [2016] GHASC 84 (09 November 2016).

There are no limitations on what a person can write in their will. A person can bequeath any property in their will as long as the property lawfully belongs to them. Some properties that are commonly bequeathed in wills include land, buildings, farms, shares, cash, vehicles, royalties, jewellery, electronic equipment, books, furniture and clothing among others.

People also use their wills to give instructions concerning their burial, bodies, care of their children and general advice to their families.

A person is not accountable to anyone for how they choose to dispose of their property. In the case of Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020] GHASC 28 (22 January 2020), one of the reasons the testator’s children challenged his will was because of they felt some of the devises in the will could not have been made by their late father as they knew him well. The Supreme Court speaking through Pwamang JSC said in response “That cannot be a legal ground to challenge the validity of a Will. A testator is at liberty to give out her self acquired property in the manner she pleases without meeting the expectations of any person. As Knight Bruce said in Bird v Luckie (1850) 68 ER 373:

“No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident, and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.”

Wills can incorporate other documents. However, those documents must be in existence at the time the will is being made and must be sufficiently identified in the will.

As long as the will was made in accordance with law, a testator can bequeath their property to anyone and in any manner they please and the courts will give effect to it whether or not they agree with its contents.

When Does a Will Come Into Effect?

A will only comes into effect upon the death of the testator. Justice Azu Crabbe in his book, Law of Wills in Ghana, at page 175, paragraph three wrote:

“It is now well established that a will made by a Ghanaian becomes operative and no more, as from the date of the testator’s death. His intention expressed in the will has no legal effect, until the will is admitted to probate”.

This means that if you make a will now, you are not restricted from using the property named in the will during your lifetime. You can dispose of the property by gifting or selling it off if you so wish. This can all be done without the consent or permission of the person listed in the will as beneficiaries.

You can also make a new will or amend the original one through the use of codicils. You can even revoke the will completely because as a testator, you are not bound by a will which does not yet have legal effect.

Requirements Of A Valid Will

When a testator dies, any will made by the testator has to be submitted to the court in order for probate to be granted. Before the court grants probate, it has to satisfy itself that the will is valid and complies with the requirements of the Wills Act. Formal validity relates to the form prescribed by the law for the execution and attestation of the will while essential validity is concerned with the mental element of the testator – whether the will was voluntarily made by a willing and capable person.

Written form

The law requires that wills must be in writing. but does not specify the form the writing should take (whether handwritten or typed and printed). However, a will cannot be valid unless it is written. The only exception to this rule is when the testator is in the armed forces. Under section 6 of the Wills Act, any member of the Armed Forces who is in active service may make a will in any of the following forms:

a. written and unattested, if the material provisions and signature are in the handwriting of the testator;

b. written (whether or not in the handwriting of the testator) and attested by one witness;

c. orally before two witnesses.

Such members of the armed forces are not required to reach the statutory age of eighteen in order to make a will under the section. In addition, the will continues to remain valid even after the person leaves the Armed Forces.

Execution

After the intended will has been put in writing, section 6 of the Wills Act requires that the will be signed by the testator. In the event that the testator cannot sign the will due to sickness or some other reason, the testator must appoint someone else to sign the will for the testator. This must however be done in the presence of the testator. For testators who are blind or illiterate, someone can read and explain the document to them so that they can sign (or thumbprint) it. The person must also declare in writing that they read and explained the document to the testator who seemed to perfectly understand the contents of the document before signing.

The signature of the testator signifies an end to the will. Any other provision or direction that comes after the signature of the testator will have no legal effect.

Witnesses

Section 2 of the Wills Act makes it mandatory for a testator to sign or acknowledge his signature in the presence of two witnesses. Where someone signs on behalf of the testator, the person must sign in the presence of the testator and the witnesses. The witnesses shall then attest and sign the will in the presence of the testator. The witnesses must be adults who are capable of entering into a contract. People who are named as beneficiaries in a will cannot act as witnesses. The only time a beneficiary can act as a witness is when there are two other non-beneficiary witnesses, or when the beneficiary is the testator’s creditor and the will directs that the debt be paid to the creditor. The witnesses are not required to see or know the contents of the will. What is necessary is that they see the testator signing the will or have him acknowledge his signature.

Essential Validity

Even when a will is in writing and has been properly executed by the testator in the presence of two attesting witnesses, it will not be valid unless the testator is capable of making the will, intended to make a will, and knew and understood what he was doing when making the will. Thus while formal validity deals with the document and the form it takes, essential validity deals with the person making the will.

For a will to have essential validity in Ghana, the testator must be at least eighteen (18) years old, must have the intention of making the will (animus testandi). If the testator is insane or has any infirmity of mind which prevents the testator from understanding the nature or effect of the will it will be invalid. In the same way, if the testator signs the will as result of fraud, undue influence, or duress, it will be invalid.

The requirements for the validity of a will can be summarised by the words of Pwamang JSC in the case of Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020] as follows:

“The settled position is that, in such a case the proponents of the Will have the burden to satisfy the court that the document presented as the Will and Testament of the deceased was freely made by her and was duly attested to by two witnesses who were present at the same time. The proponents are further to satisfy the court that the testator at the time she executed the Will was corpus mentis not suffering from any impairment of mind.”

Executors

These are the people who carry out the instructions given in a will and ensure that the will is given effect. They must be at least twenty-one years old. You need at least one but many people choose to name two executors in the will. It is advisable to select trustworthy people who will be willing to act as executors.

In the case of b Adamson ((1875) LR 3 P&D 253) the court defined the duties of an executor as follows:

a. To collect in the assets of the testator (deceased);

b. To pay his funeral expenses and (just) debts; and

c. To discharge the legacies.

Even though the usual practice is to expressly name executors in a will, in some circumstances, a testator may impose on someone the duty of an executor without expressly naming the person as an executor. This is known as appointment according to the tenure of the will.

Not every person who is appointed as an executor may be willing to accept the appointment. If an executor renounces or fails to take probate, the other executor(s) may go ahead to apply for probate. In the event that there is no other executor available, any person who is interested in the estate may apply for letters of administration with will annexed.

Residual clause

Sometimes a person may go on to acquire more properties after making a will. In other instances, a testator may fail to mention and make provision for all self-acquired properties when making a will. In both cases, when the person dies and the will takes effect, some of the testator’s property will not have any devisee in the will. Such properties are said to have fallen into residue. Letters of administration will have to be applied in respect of such residual (also referred to as residuary) property because that part of the estate has fallen into intestacy.

To prevent this from happening, it is advisable to have a residual clause (also called a residuary clause). This clause acts as a safety net that makes provision for all property currently owned or to be later acquired by the testator that have not been specifically mentioned in the will.

Circumstances In Which a Will Is Not Given Full Effect

The will of a deceased person is respected as much as possible. The courts do not concern themselves with the contents of a will but rather, whether it was validly made or not. In the case of  Arthur (Deceased) Abakah and Another v. Attah-Hagan and Another [1972] 1 GLR 435, Archer JA (as he then was) said:

“What should be borne in mind is that whenever a will is granted, the court is not giving its blessing and support to all the contents of the will. The court is only expressing its satisfaction that the will has been validly executed and that the named executors are at liberty to administer the estate. The Court should be extraordinarily slow in interfering with the will of a deceased person because the will constitutes hallowed ground and no one should tread upon it. If the Court decides to interfere, it does not expunge anything from the will. If it decides to omit anything on the well-known grounds, the omission is made in the probate and not in the will itself. For instance, the court will exclude from a will any words introduced into the will by mistake without the instructions or knowledge of the testator. The court may exclude from the probate and from registration words of atrocious, offensive or libellous character and it will exclude words of a blasphemous character.”

Inasmuch as the wishes of a deceased person are respected, this may not always happen due to certain circumstances including the ones listed below.

  1. Where the testator had debt

    When a person dies leaving debt, the usual practice is to pay off the debts first and then distribute the remainder of the estate to the beneficiaries of the will. Thus happens even if the testator did not leave instructions for the payment of debts. If there is nothing left after the payment of debts, the estate is said to be insolvent. Even when beneficiaries receive property under the will after debts are paid, it may not necessarily be in the proportions or amounts stated by the testator.

  2. When the properties mentioned in the will do not belong to the testator

    A will is used to distribute property legally owned by a testator. Thus where a will purports to give property which was not owned by a testator, it will not be given full effect. This may happen when the testator attempts to give out property which the testator held in trust for another person, or held as a joint tenant with others, or where the property belonged to the testator but was disposed of by the testator before dying.

  3. Where the Testator does not make reasonable provision for a dependent

Under section 13(1) of the Wills Act, if a parent, spouse of child under the age of eighteen was dependent on a testator who dies without making reasonable provision for such a person, the person can apply to the High Court within three years of the grant of probate asking for provision to be made for the person from the deceased’s estate.

The people who can make this application are the father, mother, spouse or child under 18 years of age of the testator. The High Court will review all relevant circumstances and grant the application if the following can be proved:

a) that the Applicant is a dependant on the testator

b) that the application has been brought within three years after the granting of the probate of the will

c) that the testator failed, either during his lifetime, or by his will, to make reasonable provision for the Appellant

d) that the Appellant is suffering, or likely to suffer hardship, and

e) that having regard to all the relevant circumstances the Appellant is entitled to support out of the estate of the testator.

In such a circumstance, it can be said that the will of the testator was not given full effect, especially if the grant of the application makes some changes to what beneficiaries of the will receive.

Revoking and Destroying Wills

For testators who want to revoke their wills, there are a number of ways to do it. The will can be physically destroyed, for example, by burning or tearing it in pieces. The testator can also make another will and in it state that the previous will has been revoked. It is actually common practice to state in each will that all prior wills have been revoked, whether or not any other will actually exists.

After the Will is Executed

After execution, the will is to be deposited at the registry of the High Court. If the testator dies without depositing the will in the High Court, section 12 of the Wills Act requires that any person who has the will or who discovers the will is required to deposit it in the High Court. This must be done within fourteen days of having knowledge of the testator’s death. A failure to do so is a crime which is punishable by law. Once this is done, when probate is being applied for, the Registrar will attach the will that has been deposited for the consideration of the court.

Probate

Probate is a legal document by which the court authorises the executors of an estate to deal with the instructions stated in a deceased person’s will in the manner prescribed by law. An application for probate may be made by the executors under order 66 of C.I 47. In  Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020], Amegatcher JSC explained the process of applying for probate as follows:

“The role of the judge when a probate application comes before him is first to ensure that the Registrar has added to the application the Will deposited in court. Secondly, he is to examine the Will and satisfy himself that on the face of it all the formalities such as a testator’s signature, attestation clause, jurat clause (in the case of blind or illiterate persons) and two attesting witnesses have their signatures on the document. Thirdly, the judge is also to satisfy himself that there are no interlineations or other insertions which may arouse his suspicion. If on examining the Will deposited at the court he finds the document regular, then in the absence of any caveat or application seeking the Will to be proved in solemn form, probate must be granted by the court. In effect, if the signature of the testator was genuine and the evidence of the two attesting witnesses confirms this, then the requirements of the Wills Act, 1971, (Act 360) have been satisfied.”

When probate is granted, the executors can proceed to administer the estate according to the wishes of the deceased, thus bringing the process of preparing a will to a full circle.

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