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Introduction
Before parties or entities enter into a credit agreement or transaction of any nature, such parties or entities would want to satisfy themselves that there would be something they can fall on in the event that a party defaults or is unable to perform their obligations. Hence, most credit transactions or agreements are characterized by the use of securities to secure the agreement.
The Black’s Law Dictionary defines “security as a collateral given or pledged to guarantee the fulfilment of an obligations, especially the assurance that a creditor will be repaid, usually with interest, any money or credit extended to a debtor”
The provision of security seems to be one of the conditions precedent that a borrower would be required to fulfil before being granted a credit facility by most creditors in Ghana and may be in the form of a mortgage over a property, execution of personal guarantees, assignment of interests in properties, both real and otherwise, liens, etc. Under the Borrowers and Lenders Act, these are regarded as charges required to be registered in accordance with the Act.
A charge is an encumbrance, lien or claim and Section 38 of Act 773 defines it as a charge, mortgage, security, interest, lien, pledge, assignment by way of security, covenant, restriction, reservation, lease, trust, order, decree, judgment, title defect (including retention of title claim), or any other encumbrance of any nature other than liens arising by operation of law.’
Although the Borrowers and Lenders Act does not categorically define what a collateral is, deductions may be made from the ordinary definition of a collateral that it is also an encumbrance on a property which is used as a security for the credit agreement.
Why must I register a Charge
Registration of a charge at the collateral registry is a matter of necessity and is mandated by law. Indeed Section 25 of Act 773provides as follows:1) A borrower or a person interested in a charge shall register a certified copy of a charge or collateral created by the borrower in favour of a lender with the Collateral Registry within twenty-eight days after the date of the creation of the collateral or charge2) Where a charge is created by a company, the requirement to register charges with the Collateral Registry under this section shall be in addition to the requirement under section 107 of the Companies Act 1963 (Act 179) to register charges with the Registrar of Companies3) A charge which is not registered in accordance with subsection (1) is of no effect as security for a borrower’s obligations from repayment of the money secured and the money secured shall immediately become payable despite any provision to the contrary in any contract.
Who must register a charge at the collateral registry?
Even though the Act seeks to put the burden of registration on the borrower, it appears from the tenor of the provision above that any other person who is interested the charge, to wit the Lender, in whose favour the charge is even created as security for the obligations of the borrower in the first place, may also take up the challenge of registering the charges.
Where the charge created is by a company, then in addition to registering at the Collateral Registry, the Companies Act also requires that the said charge would be registered with the Registrar of Companies. Under the Companies Act, section 110 provides that the registration of the charge ought to be done within forty-five (45) days after the date of its creation. The courts have on some occasions granted leave to companies to register their charges out of time. This is however not automatic, but on a case by case basis depending on the circumstances. So, in the case of Ghana Timber Board v Ashanti Curl & Lumber Products, it was posited that the courts may grant an extension of time within which a charge is to be registered where it is satisfied that the applicant’s failure to register was due to circumstances outside of its control.
Under the Borrowers and Lenders Act, section 25(3) indicates that a charge which is not registered in accordance with the Act is of no effect as security for a borrower’s obligation for repayment of the money secured and the money secured shall immediately become payable despite any provision to the contrary in any contract. The decision of the court of appeal in the case of ESM Company Limited vrs Eximguaranty Company Limited and Another and In the matter of Best Point Savings & Loans Co. Ltd, shows the extent to which non-registration of charges could have consequences especially for the lender.
Where do I register a charge?
Section 26 of Act 773 suggests that the registration section does not affect the provision of other enactment related to the registration of charges. It may be surmised from the text that parties required to register charges under other enactments are not absolved or relieved of that obligation merely because the charges have been registered at the Collateral Registry.
An example of a charge which is required to be registered under other enactments are charges affecting interest in land. For instances if a mortgage property is used as security for a credit transaction, being a charge affecting land, such would also have to satisfy the registration requirements under the various enactments.
Per the Mortgages Act, the Land Registry Act, 1962 and the Land Title Registration Act a mortgage as well as an instrument affecting land, apart from a judge’s certificate and a will ought to be in writing in order to have effect. This implies that whether that instrument has been registered as a charge at the collateral registry or not, it will still be of no effect, hence unenforceable.
A similar issue came up for determination in the case of Martin Alamisi Amidu vs. The Attorney General, Waterville Holdings (BVI) Ltd, Alfred Agbesi Woyome and UT Bank Ltd (In Receivership) as Claimant.
The learned justice Benin JSC, sitting as a single Judge stated that a mortgage which is used as a charge and which affects land ought to be registered at the Collateral Registry as well as the Land Title Registry to avoid being ineffectual.
It is trite that non-registration of any deed affecting land renders the said instrument or deed ineffective. A party cannot therefore be heard saying that registration at the collateral registry is as good as registration at the land registry. Each registration regime must be complied with before the charge can be enforceable at law. Compliance with one enactment does not absolve a party of compliance with any other enactment.
How are securities enforced under the Borrowers and Lenders Act?
It is commonplace in our jurisprudence that obtaining judgment for the recovery of money does not take much effort. The real tussle is how to enforce such a judgment, especially where the debt is an unsecured debt.
By section 32 of Act 773, the lender is obliged to give written notice of default to the borrower and request the latter to pay the amount due within thirty days where there is an incidence of default on the part of the borrower.
Section 7 of Act 773 provides that the Bank of Ghana may by Notice make rules for the effective implementation of the Act 773.
Hence in furtherance of the enforcement provisions of Act 773 which includes section 32 of the Act, Rule 17 of BOG Notice No. BG/2012/08 dated 1st June, 2012 provides as follows:1) “The lender shall register a notice of default and indicate the date when default actually occurred and the date when the borrower received a notice pursuant to section 32 of Act 773.2) The lender shall register a removal of the notice of default if the borrower cured default within thirty (30) days after receipt of notice of default.”
The above places an extra obligation on the lender to register any notice of default given to the borrower notifying him of the default.
It is only when there is failure on the part of the borrower to make good the debt after the thirty-day notice, after the lender has fulfilled all the requirements stated above that the lender would be entitled to enforce the rights provided by the Act.
If the borrower defrays the debt within thirty (30) days after receipt of the notice of default, the lender is obliged to remove the said notice and such removal ought to be registered at the collateral registry as espoused by Rule 17 above.
Where the borrower pays the debt for which the charge was created in whole or in part or where the property which was charged as security for the credit facility is released in whole or in part, the borrower may apply to the Registrar at the Collateral Registry to enter a memorandum of release of debt in the register upon satisfactorily proving to the Registrar that the debt has indeed been defrayed. The Registrar upon receiving such application and registering the satisfaction of debt shall furnish the borrower with a copy of the memorandum of satisfaction of debt. Rule 18 of the BOG Notice provides the steps in registering the satisfaction of debt.
What are the rights of a lender upon default of the borrower?
A borrower who has been given the requisite thirty-day notice of his or her default is expected to remedy that default without further delay. If the borrower refuses or fails to remedy that default timeously, the Act affords a lender some rights which may be asserted over the borrower.
So, section 33 of Act 773 provides as follows:
“Where a borrower fails to pay an amount secured by a charge under this Act, the lender may a) Sue the borrower on any covenant to perform under the credit agreement, or b) Realize the security in the property charged on notice to the person in possession of the property.”
This implies that a lender in such a situation may either bring an action in court to enforce his rights against the borrower or abandon any thought of instituting a court action and rather realize the security in the property charged on notice to the person in possession of the property. Realization of security without court order as contemplated section 33(b) of Act 773ought to be done in accordance with the Rule 20 of the BOG Notice.
Rule 20 provides as follows:1) “The lender that intends to realize a charge registered at the Collateral Registry without a court order shall register a notice of that intention thirty (30) days after the day of receipt of the notice of default of the borrower. 2) The Registrar shall certify the realization process by issuing a certificate to that effect. 3) All realization of charges shall be made in compliance with the Auction Sales Act, 1989 (P.N.D.C.L 230) and other applicable laws.”
From the provision stipulated above, it would be realized that until the intention of the lender to realize security in the properties charged is registered, the lender cannot go ahead to realize the said charges. Therefore, another burden is placed on the lender to obtain a Registrar’s Certificate which indicates the intention to realize the security before any such realization would be deemed valid.
Per rule 20 referred to supra, all realization of charges must comply with the Auctions Sales Act and section 11(1) provides as follows:1) “Subject to subsection (2), an auctioneer shall, at the request of the owner of a property, undertake the sale of the property and shall sell the property within the time that the owner requires, or as soon as is possible, having regard to the sale or any other property with which the auctioneer is entrusted. 2) The auctioneer is not bound to sell the property sooner than seven days after the undertaking to sell the property.”
Usually, in every auction, notice is supposed to be given. Not less than seven (7) days’ notice and not less than twenty-one (21) days’ notice is required for perishable and not perishable properties such as land respectively.
Thus, section 15 provides as follows:1) “A sale by auction of land shall not take place unless the auctioneer has given at least twenty-one days’ public notice of the sale at the major town of the district in which the land is situated, and at the place of the intended sale. 2) The notice shall be in writing and shall state the name and place of residence of the vendor and, where necessary, by the beating of drum and gong-gong or any other method intelligible to the public as the District Chief Executive of the district where the sale is to take place may direct.”
The above implies that every sale done to realize the security in a charge ought to be done in accordance with PNDCL 230.
The law advises on how proceeds after realization is to be disbursed. So, in Rule 21 of the BOG Notice cited supra, it is stipulated that 1) “A lender who has sold collateral shall, before applying the net proceeds of the sale towards the satisfaction of the debt or other obligation secured by the charge of the lender, apply the net proceeds of the sale towards the reasonable costs and expenses of the sale incurred by the lender, and to the extent provided for in a credit agreement, reasonable legal expenses2) The lender shall pay the following persons the amount of any surplus in the following order:a) Any persons who have a subordinate charge in the order of their priorityb) Any other person who has given the lender notice that that person claims an interest in the collateral; and c) The borrower3) The lender may pay the surplus into court if there is a question as to whom or in which order is entitled to receive distribution.”
A lender who is able to realize the security is enjoined by law to disburse the surplus after defraying the debt owned by the borrower in the manner prescribed by law. This implies that realization of a charge does not entitle a lender to appropriate all the money realized, even if the realization far exceeds what is owed. The excess money has to be distributed as directed by law or paid into court for the disbursement to be done.
Apart from the right of realization, another right available to a lender under the Borrowers and Lenders Act is provided for in section 34 of Act 773 which states that:1) “In the exercise of right of possession of property that is subject to a charge to secure a borrower’s obligations under a credit agreement, a lender is not obliged to initiate proceedings in court to enforce the right of possession. 2) Where a lender is unable to enforce a right of possession in a peaceable manner, the lender may use the services of the police to evict the borrower or other person in possession pursuant to warrant issued by a court 3) A person who a) fails without reasonable excuse, to vacate premises being foreclosed by a lender under subsection (1) when duly requested to do so, or b) obstructs a lender in the lawful exercise of power conferred on the lender by this section,
commits an offence and is liable on summary conviction to a fine of not more than five hundred penalty units or to a term of imprisonment of not more than six months or to both; and in the case of a continuing offence, to a further fine not exceeding fifty penalty units in respect of any day on which the offence continues.”
With this right, a lender after following all the required procedure is not obliged to initiate any proceedings in court to possess the property which has been used as a charge. This right came under scrutiny under the case of Bond Savings and Loans vs. George Kwame Manful.
In that case, the Court of Appeal stated that the issuance of demand notice to a defaulting party or a borrower was enough notice such that in seeking to possess the property charged no other notice is required. Her Ladyship Justice Avril Johnson J.A. (as she then was) intimated that Order 19 of C.I. 47 which requires that every application be brought on notice could not purport to override a Primary Legislation such as the Borrowers and Lenders Act which did not require any notice to the borrower for warrant to possess. She stated as follows:
“It is clear from the above that the Act does not insist on an application for such a warrant being brought on notice. …….. In the first place, the subject matter of the application for a warrant did not arise form pending proceedings before the Courts. It was an originating process. Secondly, the provisions of CI 47 cannot override the provisions of Act 773 which is an Act of Parliament notwithstanding the fact that the application although brought pursuant to the Act was granted by the High Court whose proceedings are governed by the provisions of CI 47. It is not the place of the Courts to think for Parliament by importing provisions into Act because we hold the opinion that such importation will result in a fairer outcome.”
Upon careful perusal of the reasoning given by the learned Justice, it seems that the court’s position is that once the requisite notice in writing contemplated under section 32 is given, a lender seeking to possess or enforce any of the rights given it by Act 773 need not give any further notice.
Conclusion
In order to ensure that credit facilities given out to borrowers can be recovered without any tussle, it would be necessary for lenders to ensure that securities used as charges over the said facilities are registered under the requisite regimes in accordance with the law.
Introduction
Are you a trader? Are you facing issues of unfair competition, especially from foreign competitors? Are you aware that there is an avenue to lay bare all your grievances and get them solved, or at least remedied? Well, that and many more, are the reasons the Ghana International Trade Commission was set up.
Trade is simply defined by the Black’s Law Dictionary as the business of buying and selling or bartering goods or services. As simple and easy as it may sound, trade is arguably one of the main stalwarts of every economy.
According to a report published by Trading Economics, trade percentage of GDP in Ghana was reported at 71.68% in 2018. According to them the information was sourced from the World Bank’s collection of development indicators, compiled from officially recognized sources. Again, the African Development Bank in its 2019 Ghana Economic Outlook published on its website that Ghana’s economy continued to expand in 2019, with real GDP growth estimated at 7.1%. The report further indicated that high growth momentum since 2017 had put Ghana among Africa’s 10 fastest-growing economies. Improvements in the macroeconomic environment were accompanied by expansion in domestic demand due to increased private consumption. The report also stated that with the African Continental Free Trade Agreement, Ghana’s industry would ccapture growing raw materials from the region, increase manufacturing, and trade in processed and light manufactured products. The importance of trade to an economy requires therefore that there is an independent body to regulate such trade activities. In the ensuing discussion, the objects and functions of the Ghana International Trade Commission(GITCP) would be showcased.
The objects and functions of the Ghana International Trade Commission
Increase in trade, may in no doubt result in an increase in the malpractices associated with trade, which includes unnecessarymonopolization as well as unhealthy competitions. Other types of malpractices may be attributable to trademark and patent issues as well as restraint of trade. It may also include issues regarding passing off, interference with contractual relations, conspiracy, intimidation, causing loss by unlawful means as well as injurious falsehood, which may give rise to an action in tort.
Section 2 of the Ghana International Trade Commission Act, 2016 (Act 926) highlights the objects of the GITC. These objects are to oversee the compliance of Ghana with international trade rules and regulations, ensure fairness, efficiency, transparency and objectivity in the application of measures affecting international trade and the use of world trade measures, ensure fair competition for persons engaged in domestic production and international trade and to protect the domestic market from the impact of unfair trade practices in the course of international trade. The Act provides that, in furtherance of the objects as have been mentioned, the Commission shall be guided by the treaty provisions of the World Trade Organization and general principles of international trade law.
In order to achieve the objects as set out in the Act, certain functions have been outlined and for the purposes of this piece, one of the functions of the Commission is to enquire into and determine complaints brought before the Commission in relation to safeguard measures, the subsidization of imported products by foreign governments, the dumping of imported products into the domestic market, tariff adjustments and any other measure which affects fair trade determined by the Minister. One other important role of the Commission is to settle disputes between importers and the Customs Division of the Ghana Revenue Authority in respect of the classification and valuation of products that are imported.
Again, in furtherance of its objects, the Commission may impose special import measures such as safeguard measures, anti-dumping duties, countervailing duties and tariff adjustment measures
What constitutes unfair trade practices?
Unfair trade practice is an equitable business practice; especially, the act or an instance of a competitor’s repeating of words in a way that conveys a misrepresentation that materially injures the person who first used the words, by appropriating credit of some kind earned by the first user.
Unfair trade practice is also defined by the Merriam-Webster Dictionary as any of various deceptive, fraudulent, or otherwise injurious (as to a consumer) practices or acts that are declared unlawful by statute or recognized as actionable at common law.
In Ghana, Act 926 also defines unfair trade practice as a business practice that distorts trade and gives an unfair advantage to an enterprise in the market place. Unfair trading practices may include but not limited to trademark and patent issues as well as restraint of trade. It may also include issues regarding passing off, interference with contractual relations, conspiracy, intimidation, causing loss by unlawful means as well as injurious falsehood, which together make up economic torts.
What role does the GITC play in eliminating unfair trade practices and ensuring fair competition?
In ensuring the elimination of unfair trade practices, Act 926 mandates the GITC to make recommendations to the Minister in charge of trade for the imposition of safeguard measures, and tariff adjustments. It appears from the provisions of the Act, particularly section 22 that the GITC is also empowered in its own right, to impose certain special import measures, mainly anti-dumping duties and countervailing duties, apart from the recommendations it may make to the minister.
The imposition of anti-dumping or countervailing duties as envisaged under section 22 of the Act 926, may be triggered on receipt of a written complaint filed by a domestic producer or his representative, that produces products that are similar or directly competitive with the products that are subject of the complaint. However, it is important to state that there are situations in which the imposition of these duties are ignited by the GITC’s own initiative where it has sufficient evidence to justify the said imposition.
Ordinarily, the Minister in charge of trade may impose a safeguard measure or tariff adjustment measure on the recommendation of the GITC, where the GITC receives a written complaint filed by a domestic producer or his representative, that produces products that are similar or directly competitive with the products that are the subject of the complaint, or on its own initiative has sufficient evidence to justify the imposition of those measures.
Before making a recommendation to the Minister for the imposition of special import measures, or exercising its power under the GITC Act to impose anti-dumping or countervailing duties, the Commission is obliged by law to first carry out an investigation and in the conduct of such investigation, full opportunity ought to be afforded all the interested parties to defend their interests.
In furtherance of the power to make special import impositions, the GITC has the power to suspend or terminate an investigation initiated for the purpose of imposing a special import measure, impose provisional measures, including anti-dumping and countervailing duties and reviewing its own findings and determination relating to the special import measure. These special import measures would be discussed at length in the next few paragraphs.
Recommendation for the imposition of safeguard measures
Safeguard measures would be imposed where products are imported into the country in increased quantities in absolute or relative terms to domestic production, and where conditions exist as to cause serious injury or threaten to cause serious injury to a domestic producer of like or directly competitive products.
These measures would be imposed on an imported product regardless of its source and despite the fact that Ghana may have ratified a free trade agreement or economic partnership agreement with a country with a substantial supply interest in the product under investigation.
Despite the power of the Minister to make such impositions, he may impose a provisional safeguard measure in the form of a tariff increase for a period of not more than two hundred days, if he is convinced that a delay in the imposition of a safeguard measure will result in irreparable damage to a domestic producer or the domestic industry and such imposition will be in the public interest.
As has already been indicated, it is expedient for the Commission to conduct investigations before making a recommendation and for the purposes of carrying out the said investigation, the Commission has to notify interested parties by publishing a notice of the investigation in the Gazette and conducting a public hearing to provide the interested parties the opportunity to register their views and present evidence on the imposition of the safeguard measures. On the conclusion of the investigation, the Commission would then publish a report of its findings and reasoned conclusions reached on issues of fact and law in the Gazette. The duration for the imposition shall be determined by the required to prevent or remedy serious injury and facilitate the adjustment of a domestic producer or domestic industry which may have been affected by the importation of the product. The period however ought not to exceed a period of ten years from the date of the imposition. The Minister in charge of trade, on the recommendation of the Commission is obliged to notify the Committee of Safeguards of the World Trade Organisation on the various of investigations relating to serious injury or a threat of serious.
Imposition of countervailing and anti-dumping duties.
Where there is a subsidization allegation, material injury caused and a causal link between the product that is subsidized and material injury, the GITC may upon the complaint of a domestic producer or industry or on its own initiative, after religiously conducting investigations in accordance with the law, impose a counter vailing duty upon satisfaction that the allegation has been substantially proved. The purpose of such an imposition of countervailing duty is to counteract the subsidisation which is the cause of the material injury.
Similarly, where the GITC determines that a product has been dumped because the price of the product is less than its normal value in the exporting country and as such is causing material injury to a domestic producer or industry producing like or directly competitive product or is likely to retard the establishment of a domestic industry. The circumstances in which the dumping would cause injury ought to be reasonably foreseeable and imminent before the Commission can impose such duty upon satisfying the investigation requirements under the law.
It is important to note that the duration of both a countervailing duty and an anti-dumping duty ought not to exceed a period of five years.
Powers of the commission to entertain tariff petitions
The law mandates the Commission to investigate and make a determination regarding petitions that are brought by domestic producers or review before them for the review of tariffs that affects the production and competitiveness of goods in relation to the said producer or industry. The Commission can also entertain a petition for the grant of a customs duty rebate or drawback so as to enhance its competitiveness. Such petitions ought to relate only to products that imported and are either like or directly competitive or substitutable to the products produced by the applicant; or that are used by the applicant as inputs for the production of other products. After going through the necessary and required processes, and after evaluating the petition, the Commission may approve or reject the petition and provide a report which sets out the basis for such a decision and the petitioner shall be informed of the decision within a period not exceeding fourteen working days.
Power of the commission to settle disputes regarding valuations by the Customs Division of the of the Ghana Revenue authority
The GITC is ordained by the law to settle disputes which may arise as a result of a valuation by the Customs Division of the Ghana Revenue Authority.
Such power to settle disputes may be invoked by an importer or a representative of an importer of goods which is the subject matter of a valuation, by lodging a written complaint with the GITC. Such a complaint would usually be deemed as an initial appeal against the final determination of a dutiable value of the goods in question. The Commissioner-General who wishes to contest the claimed contained in the complaint of the importer shall file a response within fourteen working days of receipt of the complaint.
Such settlement is required to take the form of a mediation, arbitration or a hearing before the Commission and in making a determination, the Commission is obliged to consider the laws in force.
Before making a final determination, the Commission is at liberty to make some interim orders regarding the clearance of the goods, posting of a bond by the importer, placement of products in a bonded warehouse pending the determination of the value of the products; the production of documents regarding the importation of the products and any other interim order.
Having heard the complaint, the Commission is enjoined by law to make a decision within fourteen working days of receipt of the complaint lodged and for the purpose of correcting an obvious error or omission, vary or rescind its decision on its own initiative or an application by the importer or his authorised representative or the Commissioner-General. The notice of the decision of the Commission shall be published in the Gazette.
Furthermore, where a person is dissatisfied with a decision of the Commission, that person may apply for a judicial review of the final decision, recommendation, order or ruling of the Commission in accordance with the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Such an application has to be made within six months of the date of the decision, determination, recommendation, order or ruling.
Where a person affected by the decision of the Commission does not comply with such decision, the Commission may make an application to the High Court for an order to compel a person to comply with the decision.
Conclusion
All the activities of the Commission as have been highlighted above are conducted for the purpose of ensuring a healthy competition among traders while curtailing unfair trade practices in the country. This would enhance trading in the country and eventually boost the economy.
Introduction
If you have ever wondered whether there is any limit to the fundamental human rights which have been sacredly bestowed on you by the Constitution, then the answer is yes. The question remains as to the extent of the limit on persons’ right to protection of privacy as enshrined by the Supreme law of the State. It is true that one of the main tenets of the Rule of Law is to ensure that the fundamental human rights of individuals are upheld.
Article 18(2) of the Constitution provides as follows:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”
In Ghana, a lot of effort has been made, and indeed still being made to ensure that as much as practicable the fundamental human rights of people are being revered. One area that has garnered a lot of attention in the area of the protection of theprivacy of citizens is the issue of data protection.
Data protection is regulated by a number of legislations, with the key legislation being the Data Protection Act, 2012, Act 843. Other Legislations which are also important and applicable include the Electronic Communications Act, 2008 (Act 775), the Electronic Communications Regulations, 2011 (LI 1991), the Credit Reporting Act, 2007 (Act 726), the Public Health Act, 2012 (Act 851), the Children’s Act, 1998 (Act 560).
What is data?
Section 96 of Act 843 defines data as information which is processed by means of equipment operating automatically in response to instructions given for that purpose, is recorded with the intention that it should be processed by means of such equipment, is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or does not fall within paragraph (a), (b) or (c) but forms part of an accessible record.
Data processing and use
In processing data, the person in charge shall take into account the privacy of the individual by applying the principles of accountability, lawfulness of processing, specification of purpose, compatibility of further processing with purpose of collection, quality of information, openness, data security safeguards, and data subject participation.
While adhering to the above, it is imperative also for the person processing personal data to ensure that he does so lawfully, reasonably and without any infringements on the privacy rights of the owner of the data, who may be referred to as the data subject. Indeed, there would be no need to process personal data unless the purpose for which it is to be processed, is essential, pertinent and not excessive.
Any person, whether natural or legal who deals with the processing of personal data is required to do so only with the prior consent of the data subject, unless the purpose for which the personal data is processed is necessary for the purpose of a contract to which the data subject is a party, or the processing is authorized or required by law, or the processing of the personal data is done to protect a legitimate interest of the data subject, is necessary for the performance of a statutory duty, is to pursue the legitimate interest of the data controller or a third party to whom the data is supplied. Related to the fact that prior consent is required is the fact that the law empowers the data subject to object to the processing of his or her personal data and where such an objection is exercised, the person who processes the data shall stop the processing with immediate effect.
Registration of entities or persons who intend to use data
In order to ensure that the people or entity making use of the data do so within the ambits of the law, the law has put in place the Data Protection Commission which is responsible for regulating data protection in Ghana.
Hence, any entity which requires the use of data of any data subject must prior to making use of such data register with the Data Protection Commission as a Data Controller.
Before collecting personal data of any data subject, the data controller must ensure that the data subject is aware of the nature of the data being collected, the name and address of the person responsible for the collection, the purpose for which the data is required for collection, whether or not the supply of the data by the data subject is discretionary or mandatory, the consequences of failure to provide the data, the authorised requirement for the collection of the information or the requirement by law for its collection, the recipients of the data, the nature or category of the data and the existence of the right of access to and the right to request rectification of the data collected before the collection.
The data controller may dispense with the need for awareness of the data subject in certain situations where necessary. For instance, in order to avoid the compromise of the law enforcement power of a public body responsible for the prevention, detection, investigation, prosecution or punishment of an offence, there may be no need to inform the data subject whose personal data is being collected.
Another instance where the need to inform a person whose personal data is being collected for a purpose may be dispensed with, is where the data collected would be used for the enforcement of law which concerns revenue collection or imposes a pecuniary penalty.
Where data would be used for historical, statistical, research, protection of national security and to avoid prejudice of a lawful purpose, the data controller may dispense with the need to give information about the data collection to the data subject.
Data Controller’s Responsibility to ensure security of data collected and the steps to be taken in the event of breach of security of data collected
A data controller is enjoined by law to take all the necessary steps to secure the integrity of personal data in the possession or control of a person through the adoption of appropriate, reasonable, technical and organizational measures so as to prevent the loss of, damage to, or unauthorized destruction, as well as unlawful access to or unauthorized processing of personal data.
In order to ensure the security referred to supra, there is the need for the data controller to take reasonable measures to identify foreseeable internal and external risks to personal data under that person’s possession or control while establishing and maintaining appropriate safeguards against the identified risks.
The data controller, in addition to the above would have to regularly verify that the safeguards are effectively implemented and continually updated in response to new risks or deficiencies.
Another way of ensuring the security of personal data collected and in the control or possession of a data controller is for the data controller to observe generally accepted information security practices and procedure and specific industry or professional rules and regulations.
When all necessary steps have been taken by the data controller in ensuring security of the data collected, but there are reasonable grounds to believe that the personal data of a data subject has been accessed or acquired by an unauthorisedperson, the data controller or a third party who processes data under the authority of the data controller is required to notify the Data Protection Commission as well as the data subject of the unauthorised access or acquisition.
Every person, pursuant to the right to privacy, has the right to prevent processing of his or her personal data. Section 39 of Act 843 provides as follows:
The rights of persons whose personal data is collected and processed for certain purposes1) “An individual shall at any time by notice in writing to a data controller require the data controller to cease or not begin processing for a specified purpose or in a specified manner, personal data which causes or is likely to cause or in specified manner, personal data which causes or is likely to cause unwarranted damage or distress to the individual. 2) A data controller shall within twenty-one days after receipt of a notice inform the individual in writing a) That the data controller has complied or intends to comply with the notice of the data subject, or b) Of the reasons for non-compliance. 3) Where the Commission is satisfied that the complainant is justified, the Commission may order the data controller to comply
It would be realised from the provisions above that on one hand the Act affords the data subject the right to refuse the processing of his or her data. On the other hand, the same Acts places a limit on the said right. This is because the Data Protection Commission would only order the data controller to comply with a data subject’s request not to process his or her data where the commission is satisfied that the complainant, being the data subject is justified in his request.
Another right bestowed on a data subject is the right to prevent processing of personal data for direct marketing. Indeed, the Act forbids any data controller from processing personal data for direct marketing without the prior written consent of the data subject. By section 40 of Act 843, the data subject is entitled at any time by notice in writing to a data controller to require the data controller not to process personal data of that data subject for the purposes of direct marketing. If the controller fails to comply, the data subject would then have the right to make a complaint to the Data Protection Commission, and upon being satisfied, may order that the data controller comply with the notice.
Furthermore, by section 41 of Act 843, an individual is entitled at any time by notice in writing to a data controller to require the data controller to ensure that any decision taken by or on behalf of the data controller which significantly affects that individual is not based solely on the processing by automatic means of personal data in respect of which that individual is the data subject.
Again, a data subject is entitled at any time by notice in writing to require a data controller to rectify, block, erase or destroy exempt manual data which is inaccurate or incomplete, or to cease to hold exempt manual data in a manner which is incompatible with the legitimate purposes pursued by the data controller. The notice by the data subject is required to indicate the reasons for the belief that the data is inaccurate or incomplete or held in a manner which is incompatible with the legitimate purpose pursued by the data controller.
If the data controller upon receipt of such notice refuses to comply with the data subject’s request, the data subject may make a complaint to the Commission which shall appropriately direct the data controller to comply with the notice if it is satisfied enough about the complaint.
In addition to all the rights of a data subject stated above, an individual who suffers damage or distress through the non-compliance of the Data Protection Law by any data controller would be entitled to some compensation from the data controller.
Limits to the right of protection of privacy of an individual by the exemption of certain data controllers from the requirement of the law.
The processing of personal data is exempt from the provisions of the Data Protection Act in some circumstances. In fact, the Data Protection Act names a list of categories which are exempt from the provisions of Act 843. These include the processing of personal data for reasons of national security, crime and taxation, health, education and social work, regulatory activities, journalism, literature and art, research, history and statistics, disclosure required or made in connection with a legal proceeding, domestic purposes as well as confidential references given by data controller. Other categories include the armed forces, judicial appointments and honours, public service or ministerial appointments, examination marks, examination scripts and professional privilege.
In respect of national security for instance, section 60 of Act 843 provides that subject to article 18(2) of the Constitution which has been cited supra, a certificate signed by the Minister is prima facie evidence of exemption from the provisions of the Act. Purposes which would qualify as that of national security would include public order, public safety, public morality, national security or public interest.
Recently, there had been a lot of concerns raised about government’s initiative to have access to personal data of citizens in ensuring rapid contract tracing of persons who may or may have come into contact with infected Covid-19 Patients. Such purpose may well fit into the exemption of processing of personal data from the provisions of the Act for the purposes of public safety.
Conclusion
It will be noticed that although the right of persons to the protection of their privacy is one that is enshrined in the constitution, the constitution allows for such rights to be limited for the national good. Therefore, although the law makes serious strides in ensuring the protection of individuals’ privacy rights through the protection of data, the same law allows for such rights to be stifled where the circumstances so requires and it will be in the interest of the public good.
Introduction
The Covid-19 pandemic has really exposed loopholes that exists in various sectors of life and the insurance industry together with their stakeholders, have not been left out of the show. I have heard and read about failed attempts by various companies and businesses who have taken strides in making claims for losses from business interruptions from their insurers and I shudder at the thought. Why? Because, upon investigations and reading, it appears that most of these businesses signed up for policies that they did not even understand. Thus, my inspiration to write this piece.
Why Property Insurance for Commercial Properties?
It is undisputed that many people equate property insurance to fire insurance. A lot of people tend to think that when one enters into an insurance contract over their property (especially commercial properties), it is intended to protect that person from liabilities or losses that may be incurred from the property being damaged by fire, or as many people are aware, the cost of replacing a property that has been damaged by fire. Admonishment
However, property insurance comes in different types and is intended to cover much more than is anticipated by many people. In Ghana for instance, it is statutorily mandatory for commercial property owners, as well as occupiers to take out an insurance policy over their commercial properties as well as commercial properties under construction. This is stipulated in the Insurance Act and section 183 of the Act makes it an offence for a person to construct or cause to be constructed a commercial property without an insurance cover. It provides that a person shall not construct or cause to be constructed a commercial building without insuring with a registered insurer the liability in respect of construction risks caused by negligence or the negligence of servants, agents or consultants which may result in bodily injury or loss of life to or damage to property of any workman on the site or of any member of the public. Section 184 of the same Act also states that every commercial building shall be insured with an insurer against the hazards of collapse, fire, earthquake, storm and flood, and an insurance policy issued for it. The insurance policy issued shall cover the legal liabilities of an owner or occupier of premises in respect of loss of or damage to property, bodily injury or death suffered by any user of the premises and third parties.
Variants of the Property Insurance
It is recognised, that damage to or loss of commercial property may have a cascading effect on the businesses of the occupants and users of such properties. Hence, in taking out policies for the property, some products are designed to take care of losses incurred as a result of business interruption due to damage to property.
In Halsbury’s Laws of England, it is stated that consequential loss insurance was devised for the purpose of giving protection to the assured against losses which, though consequent upon the loss of his property by a peril insured against, such as fire, are not recoverable under an ordinary form of policy. Commonly the losses contemplated are losses which flow from the interruption of the assured’s business by reason of a fire or other insured peril which destroys or damages the premises on which the business is carried on. In such a case, therefore, a claim under a consequential loss policy necessarily assumes that the premises have been so destroyed or damaged. This form of insurance has, however, been extended to profit earning chattels, such as motor lorries, which can be effectively put out of commission by many causes other than fire, and to goods and merchandise which may be destroyed elsewhere than on the assured’s premises
The wise Insurer, the Desperate Insured and the Claim
Indeed, Insurance companies in their rapid response to the statutory mandate placed on commercial property owners as well as occupiers, have designed various products which may be accessed by property owners in complying with the insurance laws. Some of these products are packaged differently and designed to meet the insurance needs of their clients. Some of the interesting products that I have come across in Ghana include Machinery Loss of Profits or Business Interruption Insurance, Loss of Profits Insurance, Consequential Loss Insurance, etc.
Usually, for claims to be recoverable under this type of Insurance, there ought to have been an accepted property damage claim. This implies that in most cases, if the insured is unable to prove property damage caused by fire and other insured perils, they would be unlikely to succeed in their claims. Such as is the problem being faced by most businesses in their attempt to make claims for loss of profits from the insurance companies.
The Severe Acute Respiratory Syndrome (SARS) outbreak in 2003 ignited the alertness and ‘wisdom’ of most insurance companies in the world. Following the success of the Mandarin Oriental International Ltd case resulting in a $16 million pay-out by its insurers to cover for business interruption losses due to SARS, policies were revised to ensure that some perils were kept outside the fence. Thus, a lot of the policies in existence now have express and unequivocal exclusionary clauses to ensure that they absolve themselves of certain unprecedented events such as the Covid-19 pandemic. As a result of this, many businesses are on the verge of a crunch by reason of the Covid-19, with no possible indemnity from any source.
Some experts have intimated that an argument could be made that the presence of the virus in the property may be deemed as damage to the property. That argument as at yet has not availed even a handful of companies in the claims against insurance companies. Unfortunately, many businesses are realising belatedly that their policies cannot bail them out of their crunches.
My subtle admonishment: Negotiate the terms of your insurance policy in your next endeavour
Thankfully, given that an insurance, for that matter a property insurance is a type of contract whereby one party (the insurer) undertakes for a consideration to pay money or provide a corresponding benefit to or for the benefit of the other party (the assured) upon the happening of an event which is uncertain, businesses are encouraged to negotiate the terms of their policies and ensure that the products they are signing on to tailored to suit their situations.
It is extremely important for business owners to engage their lawyers and to seek legal advice right from the onset, as to the effect of the policy they intend to purchase. Lawyers would usually have a knack for identifying such exclusionary clauses which are aimed at eventually providing very little solutions for the insured in the event of loss being incurred as a result of damage. It is therefore important that the terms of the policy are understood and agreed upon by the parties being executed.
Conclusion
Many businesses are at crossroads and are confused as to the road to take as a result of the effects of the Covid-19. Unfortunately for these businesses, they have now awoken to the harsh reality that their insurance policy can do very little to save them from the fiery pit of collapse. It is possible though that the narratives may change when legal actions are thrown from all directions against insurance companies.
Perhaps, insurance companies can step up the game and provide better products for their clients, while businesses and business owners also enhance their vigilance when purchasing the products.
A news item on CNN recently caught my attention. It tells a story of a woman who was fortunate enough to pour her heart out to her mother, moments before her mother passed away in the hospital from Covid-19. The sad truth about this virus is that, those who die from it, die alone, away from family and loved ones. While I read the story, I was reminded of the response I usually get from people whenever I try to advise them of the need to make Wills with respect to their estate. Well, as is very common, one stated that it was not yet his time to die. Unfortunately, that is the mentality of many, when it comes to making Wills.
At the time of writing this piece, there had been over 42,000 confirmed deaths arising from the Covid-19. I wonder how many of the deceased persons knew for sure, that they would die at that very moment, and even if they did know, the question is, how many of them had made preparations for their deaths in terms of their souls, families as well as their property?
Christians, Muslims as well as Non-believers may disagree on many things, one thing which is for sure, and on which there is agreement is that, nobody knows when death will come pounding at their doors. This is why it is extremely important to make preparations while we still have the strength, energy and a sound mind to do so, especially for the people who are left behind and who will mostly be affected by our departure. One way of ensuring that there is security and peace, even after our departure is by making Wills. The good thing about making Wills is that, a Will may be altered as many times as a person wishes and at any point in time, the Will may be revoked by the testator, as long as there is the intention to do so. This article is a brief exposition on the law governing testacy and intestacy.
A person may die either testate or intestate. A person dies testate if the person died leaving a valid will behind but a person dies intestate if the person dies without leaving a will behind, or a court of competent jurisdiction declares a will left behind as being invalid or void ab initio. In Ghana, there are laws that regulates the distribution of estates which fall under intestacy and those that fall under testacy.
According to the 9th edition of the Black’s Law Dictionary at page 1735, a Will is the legal expression of an individual’s wishes about the disposition of his or her property after death; especially, a document by which a person directs his or estate to be distributed upon death. By this, a will may be defined as the testamentary disposition of an individual’s estate after death.
In Ghana, any person of the age of eighteen (18) years or above is capable of making a will. The Wills Act, 1971 (Act 371) provides that a will is not valid unless it is in writing and signed by the testator or by any other person at the direction of the testator.
Where the will is signed by the testator himself, it shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time but where the will is signed by some other person at the direction of the testator, it shall be made by that person in the presence of the testator and two or more witnesses present at the same time. As long as the witnesses attest and sign the will in the presence of the testator, a form of attestation will not be necessary. The requirements of a Will have been given judicial blessings in the case of In re Okine (Decd.); Dodoo and Another v Okine and Others [2003-2005] 1 GLR 630.
The requirements for a valid will may be dispensed with in some exceptional circumstances. One of such exceptional circumstances is where a member of the Armed Forces in active service wishes to make a will. Section 6 of Act 360 provides as follows:
“Despite a provision of this Act to the Contrary, a member of the Armed Forces of whatever age may, while engaged on active service, make a will in written and unattested form, if the material provisions and the signature are in the handwriting of the testator, or in written form, whether or not in the handwriting of the testator, and attested by one witness, or orally before two witnesses.”
It would be realized here that while on active service a member of the Armed Forces may even make a will orally, but such a will must necessarily be made before two witnesses.
It is a fact that apart from Armed Forces Wills, there is no other type of will or class of people who are absolved from the requirement of writing when it comes to the making of a valid will. This implies that any other Will made orally, or which does not comply with Section 2 of Act 360 may be deemed invalid.
Once a Will is made, it ought to be deposited at the High Court until such a time when it would be read.
The Constitution entitles a spouse and a child to a provision from the estate of a person. This implies that in making a will, a testator ought to consider those provisions. Where the Will of a testator does not make any provision for a child for instance, that child may upon an application to the court request that provision is made for him or her from the estate of the deceased. The court would then consider certain factors such as the age of the child, as well as other important factors.
Apart from the formal Wills as contemplated by Act 360, it is recognized that Ghana is premised largely on customary law and indeed Article 11 of the Constitution acknowledges customary law as one of the sources of laws in Ghana. Therefore, customary Wills are still recognized by law and would be given effect, especially if it does not conflict with a written formal Will.
In the case of In re Armah (Decd.); Awotwi v Abadoo [1977] 2 GLR 375, the Court of Appeal defined a samansiw as a peculiar form of nuncupative will which was almost always made in contemplation of imminent death and could aptly be described as an “emergency will”. It stated that due to its emergency nature, no hard and fast rules should be laid down as to what forms the exercise of the right should take. The Court went further to intimate that it was desirable, that if practicable, the death bed declaration should be made in the presence of more than one person, but a samansiw should not fail simply because the declaration was not made in the presence of a plurality of persons. Provided the declarant was able to speak and was of sound disposing mind, a death bed declaration made by him in the presence of one or more credible witnesses should be held valid.
Apart from the In re Armah case on samansiw, the law on Customary Will, especially regarding the essentials needed for it to be valid, has undoubtedly gone through various stages. The case of Ankomah v City Investment Co. Ltd [2012] 2 SCGLR 1123 summarises the various stages. The honourable court stated as follows:
“In Summey v Yohuno 1960 GLR 68, these were the essentials: 1) the disposition must be made in the presence of witnesses; 2) One such witness must be the customary successor of the testator; 3) There must be acceptance of the gift indicated by giving and receiving drinks. Thereafter, there is a long line of settled cases each of which modified the essentials, namely, Mahama Hausa v Baaku Hausa [1972] 2GLR 469 which dispensed with presence of an inheritable member of the donor’s family. In Prempeh v Agyepong [1993-94] 1GLR 225, there was further modification these terms: “Customary law is constantly changing especially in the area of nuncupative wills. The social and economic demands of the day have forced the pace. The ancient requirement regarding the kinship quality and plurality of witnesses, and the giving of aseda (thanks) to seal a legacy, have all suffered change. The courts in recent times have rejected or pruned very thinly these requirements, taking care not to throw away the baby with bath water, to use the celebrated expression. Thus the pristine foundations of Sarbah, Rattray and Ollenu have had to yield to three simple rules, namely self-acquired ownership in the testator, his sanity at the time of the declaration and attestation by credible, disinterested witnesses, two at least in normal circumstances, but one permissible in extreme exigencies. After the modification of the principles referred to above, these three essentials emerged: 1) The property must be self-acquired; 2) The testator must be sound in mind; 3) The declaration must be attested to by 2 credible disinterested witnesses.”
The above well scripted proposition by the Supreme Court on the development of the law on the essentials required for a Customary Will to be valid sums it up. It may be surmised from the proposition that unlike in the past, an oral Customary Will need not be declared on the deathbed. So long as the three requirements exist, such an oral Will would be deemed valid unless invalidated by some other means.
If a person fails to make a will which details how his or her estate is to be applied, that is, if a person dies intestate, the Intestate Succession Law, 1985 (PNDCL 111) directs how such an estate would be treated.
In distributing the estate in accordance with PNDCL 111, the law considers the child of the deceased, the spouse of the deceased, the parents of the deceased, as well as customary law of the deceased.
This implies that whether or not there was any intention to distribute the estate as such by the deceased, the law make such presumptions and distribute it as such.
According to PNDCL 111, where the intestate is survived by a spouse or by a child or both a spouse and a child, the spouse or the child or both of them, is or are entitled absolutely to the household chattels of the intestate.
Where the estate includes only one house, the surviving spouse or the child or both of them is or are entitled to that house and where it devolves to both the spouse and the child, they shall hold it as tenants in common, but where the estate includes more than one house, the surviving spouse or child or both of them, shall determine which of those houses shall devolve to the spouse or the child or both of them and where it devolves to both the spouse and the child they shall hold the house as tenants in common.
It is important to state here that according to the law, where there is disagreement as to which of the houses devolves to the surviving spouse or child, or to both of them, the surviving spouse or child has, or both of them have, the exclusive right to choose any one of those houses but if the surviving spouse or child or both of them is or are unwilling or unable to make the choice the High Court shall, on application made to it by the administrator of the estate, determine which of those houses shall devolve to the surviving spouse or child or to both of them.
Apart from the existence of a house, which distribution has been taken care of already above, the law gives guidelines as to the sharing of the residue of the estate, if any.
Where the intestate is survived by a spouse and by a child, three-sixteenth of the residue of the estate would go to the surviving spouse, nine-sixteenth to the surviving child, one-eighth to the surviving parent and one-eighth in accordance with customary law. Where there is no surviving parent one-fourth of the residue of the estate shall devolve in accordance with customary law.
Furthermore, in the event that the intestate is survived by a spouse and not by a child, half of the residue would devolve on the surviving spouse, a quarter on the surviving parent and the last quarter in accordance with customary law. However, if there is no surviving parent, half of the residue would be distributed in accordance with customary law.
Another possible scenario given is that where the intestate is survived by a child and not by a spouse the surviving child would be entitled to three-quarters of the residue and of the remaining one-quarter, one-eighth would devolve on the surviving parent and one-eighth shall devolve in accordance with customary law. Just like in the previous cases, where there is no surviving parent the whole of the one-fourth shall devolve in accordance with customary law.
Where the intestate is survived by a parent and not by a child or spouse, three-fourths of the estate shall devolve to the surviving parent and the remaining one-fourth shall devolve in accordance with customary law. If the intestate is not survived by a spouse, a child or a parent the estate shall devolve in accordance with customary law.
Where the rules of succession under customary law applicable to a portion of the estate provide that the family of the intestate is entitled to a share in the estate, then that family would be the family to which the intestate belonged for the purposes of succession in accordance with the customary law of the community of which the intestate was a member.
It is important to note that in the case of an intestate who, being a member of two customary law communities belonged to two families for the purposes of succession, that family shall be the two families, but in the case of an intestate who is not a member of a family, that family is the family with which the intestate was identified at the time of death.
Undeniably, the law recognizes that there may be situations where customary law may not be applicable. For instance, if it is shown that the intestate did not belong to any customary law. In such a case, that portion of the residue shall devolve in equal shares to those beneficiaries otherwise entitled to share the residue under the law. Again, if those other beneficiaries otherwise entitled to share the residue are non-existent, the estate shall fall into escheat. This implies that the estate would devolve on the Republic of Ghana.
The above shows clearly the benefits of making a will and dying testate, and the consequences of not making a will and dying intestate. It is always important for a person to make preparations while they are in the position to do so. After all, we all came into the world with nothing and will definitely leave with nothing. However, we have the choice to determine how the things we acquired can be treated.
Introduction
Ghana has over the years performed poorly on the World Information and Communication Technology rankings prepared by the World Economic Forum in respect of technological advancement. In 2011, Ghana ranked 99th out of the 138 Economies whose data were used.
Even the most technologically advanced countries in Africa seem to be lingering at the bottom yearly with absolutely no or very little advancement over the years. A 2017 study by the International Telecommunications Union through the ICT Development Index (IDI) revealed that Ghana, which was ranking 116th on the overall IDI list was ranking 7th on the African Continent alone in terms of ICT development with a value of 4.05 from the previous year’s 3.88. These statistics show that even though the value or the rate of ICT Development had increased in Ghana, its ranking had dropped from the previous year’s 113th to 116th. The statistics given above is very clear and sends one message across; that Ghana is not technologically well equipped enough to engage in certain activities or to provide certain expertise.
It is therefore not very surprising that Ghana is taking appropriate measures to ensure that entities or enterprises in Ghana who may require technical know-how for their activities or some technology for their production or services do so in accordance with law.
What is a Technology Transfer Agreement?
According to section 43 of the Act 865, a technology transfer agreement refers to an agreement with an enterprise which has a duration of not less than eighteen months and which involves
Why is there a need to enter into a Technology Transfer Agreement?
Usually, due to lack of technical expertise, many indigenous enterprises seek the required expertise from foreign and external companies which may be in the position to provide them with such. For that reason, many agreements regarding the provision of these technical expertise are entered into by parties involved. It is therefore expedient that when such agreements are entered into, they are registered with the GIPC.
The GIPC Act does not forbid enterprises from entering into such technology transfer agreements. However, in order to ensure that local enterprises get the needed technology or technical expertise they so require to facilitate their businesses, as well as to ensure that they are not over-exploited by the foreign or external companies they enter into agreements with, the GIPC requires that the agreements are registered with the Centre.
Section 37(1) of the Ghana Investment Promotion Centre Act states that an enterprise may enter into a technology transfer agreement that the enterprise considers appropriate for the enterprise and that agreement entered into under ought to be registered with the Centre.
The GIPC is mandated to keep a record of technology transfer agreements and this mandate is given by the GIPC Act.
Whenever the GIPC receives a Technology Transfer Agreement (TTA), for the purpose of registration, it shall review the agreement and ensure that the agreement is in line with the law regulating the formation of the agreement. This implies that no clause in the agreement ought to be onerous or in clear contradiction of the law. If the GIPC should encounter anything or any clause like that, they ought not to register the agreement.
It is important to register a TTA with the GIPC because among other things, and subject to the Foreign Exchange Act, 2006 (Act 723) an enterprise is assured of total transferability in easily exchangeable currency under a TTA registered with the Centre.
Furthermore, because transfer of payment is freely allowed, such payment would usually be treated as an expense. Corporate tax is usually applied on gross profit, i.e. after the deduction of expenses. Therefore, the amount that would go into tax would be less. This is in one way or the other results in a higher net profit after tax.
Repulsive Clauses in Technology Transfer Agreement
The LI 1547 identifies certain clauses which when found by the GIPC to be present in a TTA, would be inapplicable and unenforceable.
First and foremost, an agreement which purports to transfer technology which is freely and easily available in Ghana would not be enforceable. If it is realized even before the registration is done, then such an agreement would not qualify for registration in the first place.
Secondly, any clause in a TT agreement which restricts the volume of production or the sale of the transferee’s products in the transferee’s country, completely prohibits the exportation of the transferee’s products or the right to export to specific geographical areas other than to areas where the transferor has previously granted exclusive rights to third parties, or requires the transferee to export exclusively through the transferor or on unfavorable terms, requires the transferor’s prior permission before any export transaction is made, or requires the transferee to pay an additional royalty on export sales would be.
Apart from the clauses referred to above, the GIPC is mandated by law to ensure that TTT Agreements which contain clauses which oblige the transferee to acquire its inputs including equipment, tools, parts, raw materials or intermediate products exclusively from the transferor or any other person or a specific source are not registered since such clauses are unenforceable. However, if the inputs which the transferee is obliged to procure from the transferor are not commercially available elsewhere or such inputs are special to the technology supplied or are required to meet the specifications of products to be produced either under licence or trademark, then such clauses may be allowed in the agreement.
Again, any clause found in a TTA which obliges a transferee to employ personnel to be appointed by the transferor but whose remunerations shall be provided by the transferee would be inapplicable and unenforceable, unless in the opinion of the GIPC such an obligation is would be requisite, considering the work to be performed by the personnel in respect of the transferred technology. The GIPC would also consider if the remuneration being paid for it matches favourably with what prevails in the international market for similar services to be performed by the personnel and in any such case the provision of the services is supported by a properly drawn-up Management or Technical Services Agreement.
Furthermore, unless the parties are agreed or mutually consent to it, any provision in the agreement which requires the obligatory transfer by the transferee of improvements or innovations introduced or developed, or patents acquired by the transferee in respect of the licensed technology to the transferor may be permissible, but it must be noted that such transfer would not cover patents.
In addition to the clauses or provisions which have been stated above already, no TTA must contain the following:
Duration of the Agreement
The effective date of A technology transfer agreement is the date of the registration of that agreement. This means that the date on which the registration of the agreement was done is the date on which the agreement will take effect or come into existence. The lifespan of a TTA is supposed to be not less than eighteen (18) months and not more than ten (10) years, but may be renewed with the approval of the Centre and the regulator of the relevant sector, where it is considered desirable by the parties for subsequent terms each not exceeding five years. This is provided for by Regulation 9 of the LI 1547.
Duties of the parties under a TTA
One of the main duties of a transferor under a TTA is to provide adequate training for the transferee and its personnel in the effective utilization of licensed technology. The agreement itself ought to have attached to it a detailed training schedule which would be used as a guide and be complied with by the transferor in the provision of the said training. This duty ought to be enshrined in the TTA before it can be enforceable.
Again, the TTA is required to indicate that taxes due on royalties shall be borne by the transferor.
The transferor has a duty to give a full description of the technology and to supply all necessary documentation and information in English Language so as to be understood by the transferee.
Moreover, the transferor has a basic duty to guarantee the efficient performance of the technology and the continuous availability of essential spare parts during the tenure of the agreement and the transferor shall inform the transferee of improvements and innovations relating to the technology and shall supply them on terms mutually acceptable to the parties.
One very major duty of the transferee is to keep the licensed know-how confidential and use it only for its own production during and after the expiration of the agreement and without the consent of the transferor and on terms acceptable to both parties, the transferee cannot sub-license the licensed know-how under the agreement to any other person.
Matters relating to payments under the TTA
The Technology Transfer Agreement Regulations, 1992 (LI 1547) provides the quantum of amount that would be required of the transferee as well as the transferor, where the need arises.
Process performance warranties would be required to be provided in agreements covering large projects which involve considerable technical complexity not explained to the transferee to the time of negotiations or before the transferee makes front-end payments.
Offences
Section 40 of the GIPC Act provides for the various offences that may or can be committed under the Act. According to Section 40(a), a person commits an offence if that person is required by the Act to register with the Centre but fails to register or renew a registration with the Centre. This implies that failure to register a technology transfer agreement constitutes an offence since it is an agreement required by the Act to be registered.
The punishment for committing an offence under section 40 is that the enterprise which is found culpable would be liable on summary conviction to a fine of not less than five hundred penalty units and not more than thousand penalty units and in the case of a continuing offence to an additional fine of not less than twenty-five (25) penalty units and not more than fifty penalty units in respect of each day that the offence continues.
The Centre may in addition to the conviction referred to above, in consultation with the appropriate agency suspend the registration of an enterprise, cancel the registration of an enterprise, order the payment or part-payment to the appropriate agency of fees, taxes, duties and other changes in respect of which benefits were granted to the enterprise, revoke some or all of the incentives granted to the enterprise, advise the Bank of Ghana to suspend any remittance including transfer of capital, profits and dividends from or by that enterprise and take any other action that the Board considers appropriate.
Conclusion
Enterprises are entreated to register their Technology Transfer Agreements with the GIPC so that the Centre can help considerably protect both local and foreign enterprises from exploitation from the entities they enter into these agreements with.
A 2019 World Bank Report revealed that Ghana’s economy grew significantly in 2019 as the first quarter gross domestic product (GDP) growth was estimated at 6.7%, compared with 5.4% in the same period of the previous year. Non-oil growth was also strong at 6.0%. The relatively high quarterly growth was driven by a strong recovery in the services sector which grew by 7.2% compared with 1.2% in 2018.These kinds of reports are those that tickle investors to want to invest in a particular country. Over the years, Ghana has been described as possessing an investment-friendly environment and as such most investors find it more comfortable to invest in the country than in other African Countries. One of the factors that have usually been attributed to this assertion is the fact that Ghana is a relatively politically stable country and has enjoyed democratic rule for almost three (3) decades.
Before a foreign company or a foreigner can get off to a flying start in any kind of business in Ghana, it is expedient for that entity to apprise themselves of the legal regime for the type of business that entity so wishes to engage in. The procedures for setting up a business in Ghana are regulated mainly by the Companies Act, the Ghana Investment Promotion Centre Act, the Revenue. According to Section 1 of the Ghana Investment Promotion Centre Act (GIPC), 2013 (Act 865), the Act is applicable to enterprises in Ghana. The Act sets up the Ghana Investment Promotion Centre better known as GIPC and the main objects of the Centre is to create an enhanced, transparent and responsive environment for investment and the development of the Ghanaian economy through investment and encourage, promote and facilitate investment in the country.
What is an enterprise and what is the procedure for registering an enterprise with the Ghana Investment Promotion Centre?
The Ghana Investment Promotion Centre Act was promulgated in 2013 to apply to all enterprises in Ghana. An enterprise according to the Act is an industry, project, undertaking or business or an expansion of that industry, undertaking, project or business or any part of that industry, undertaking, project or business. If a person wishes to set up an enterprise for the purpose of investing in the country, that person would be required to incorporate or register that company in accordance with the Companies Act and other laws such as the Income Tax Act, 2015 (Act 896) and its various amendments as well as the Value Added Tax, 2013 (Act 870) depending on the type of enterprise that the person is desirous of setting up.
Any person of the age of eighteen years and above may apply for the incorporation of a company under the Companies Act, 2019 (Act 992). In applying for the incorporation of a company, an applicant is obliged to comply with the prescribed form. In addition to the application, the applicant is required under section 13 of Act 992 to include a number of items which is mandatory depending on the type of proposed company. Once an applicant has satisfied all the requirement under section 13, the company would be issued with a certificate of incorporation and becomes a body corporate by the name contained in the application for incorporation and, subject to section 13, is capable of performing the functions of an incorporated company from the date of incorporation.
This procedure of formation of companies is applicable to only Ghanaian companies. With regards to external companies however, the procedure is different as it does not require incorporation but only registration of the company. An external company is defined by section 329 of Act 992 as a body corporate formed outside the Republic which, at or subsequently to, the commencement of Act 179 has an established place of business in Ghana. An established place of business means a branch, management, share, transfer, or registration office, factory, mine, or any other fixed place of business, but does not include an agency unless the agent has, and habitually exercises, a general authority to negotiate and conclude contracts on behalf of the body corporate or maintains a stock of merchandise belonging to that body corporate from which the agent regularly fills orders on behalf of the body corporate.
It must be noted here that the GIPC is not meant for only foreign companies or external companies. A wholly owned Ghanaian enterprise may after incorporation register with the Centre and once registered, that company would be entitled to an array of benefits and incentives.
By law, an external company which establishes a place of business in the country has a maximum of one month from the date of the establishment within which to deliver the required documents to the Registrar for registration. The documents required for registration includes a copy of the certificate of incorporation and where applicable, a copy of the constitution, charter, statutes, regulations, memorandum and articles, or any other instrument constituting or defining the constitution of the company in a language acceptable to the Registrar.
Another required document for registration is a statement duly notarized in the jurisdiction of origin of the company giving the name, nature of business or business or other main objects of the company, if any, the present forename and surname and a former forename or surname, and the address and business occupation of one person or more persons, in Act 992 as a local manager, authorized to manage the business of the company in the Republic, the number and nominal value of the authorized and issued shares, the amount paid up on the shares and the amount remaining payable on the shares distinguishing between the amounts paid and payable in case the amounts paid and payable otherwise than in cash where the company has shares, the address of the registered or principal office or website in the country of incorporation, the address of the principal place of business in Ghana including an electronic mail address, digital address, the post office box number and the telephone contact and the name and address in Ghana of a person, in this Act referred to as a process agent, authorized by the company to accept service of process and other documents on behalf of the company.
In addition to the above, the applicant shall furnish the registrar with a statement duly notarized in the jurisdiction of origin of the company giving certain particulars regarding the beneficial owners of the company. These particulars include the full name and any former or alternate name, the date and place of birth, the telephone number, the nationality and national identity number or passport number or any other appropriate identification, the residential and postal address, the nature of the interest including the details of any legal, financial, security, debenture or informal arrangement giving rise to the beneficial ownership and a confirmation as to whether the beneficial owner is a politically exposed person.
Finally, the applicant would have to deposit the particulars, and copies, of the charges on the property of the company that required to be delivered for registration in accordance with section 337 of Act 992, or, if there are no charges, a statement in the prescribed form to that effect. Once an applicant has complied with all the necessary pre-requisites, the Registrar would then register the documents in the register of external companies and publish the particulars relating to the external company in the Companies Bulletin.
Where the enterprise sought to be registered with the GIPC is a special enterprise which has its own special regulations as in the case of Banks and Specialized Deposit Taking Institutions, the applicant would be mandated to comply with the Industry regulations. So, the Banks and Specialized Deposit-taking Institutions Act, 2016 (Act 930) provides that a person shall not accept a deposit from the general public or carry on a deposit-taking business in or from within the country without a licence issued in accordance with this Act and a person who seeks to carry on a deposit-taking business shall apply in writing to the Bank of Ghana for a licence. This means that in addition to the general requirement in respect of incorporation of companies, an applicant would have to ensure compliance with the requisite regulations regarding the peculiar industry in which he would want to be a player.
An enterprise in which foreign participation is permitted under the GIPC Act is obliged to be registered with the Centre after its incorporation or registration and before commencement of operations and such an enterprise would have to complete a registration form which is prescribed by the GIPC Act. After completing the form, the Centre shall within five working days from the date receipt of a completed registration form register the enterprise if the Centre is satisfied that all the relevant documents for registration are in order, the minimum foreign equity capital requirement has been complied with and the fees required for registration has been paid. Once registered, the enterprise is required by law to renew its registration with the Centre every two years.
Benefits of registering with the GIPC
The incentives and benefits that would be available to an enterprise registered with the Centre is immense. There are various tax incentives that are applicable to an enterprise under the Income Tax Act, 2015 (Act 896) (these would be dealt with extensively in subsequent articles)
Moreover, an enterprise whose plant, machinery, equipment or parts of the plant, machinery or equipment are not zero-rated under the Customs Harmonized Commodity and Tariff Code Schedule to the Customs, Excise and Preventive Service Management Act may submit an application for exemption from import duties and related charges on the plant, machinery or equipment or the parts of the plant, machinery or equipment to the Centre for onward submission to the Minister responsible for finance.
The Centre shall before submitting a request for exemption to the Minister responsible for Finance, determine whether the request will facilitate changes to technology and promote the specialized use of machinery, equipment or other items necessary for the establishment and operation of the enterprise.
For the purpose of promoting identified strategic or major investments, the Board may in consultation with appropriate government agencies and with the approval of the President specify priority areas of investment and their applicable benefits and incentives and negotiate specific incentive packages for strategic investments in addition to the incentives available to any enterprise under the tax, customs and other laws referred to in the Act.
Again, the Board shall publish in the Gazette and on its website the criteria for determining what constitutes strategic investments and shall designate an investment that satisfies the criteria, as strategic investment and the details of special incentives awarded through negotiation under the Act.
As a foreign investor or business seeking to invest in Ghana, certain activities have been excluded from the activities that can be engaged in as stipulated by the requirements of the law. A person who is not a citizen or an enterprise which is not wholly owned by a citizen is prohibited from investing or participating in certain activities. These activities are reserved for citizens and includes the sale of goods or provision of services in a market, petty trading or hawking or selling of goods in a stall at any place. Secondly, the operation of a taxi or car hire service in an enterprise that a fleet of less than twenty-five (25) vehicles. the operation of a beauty salon or a barber shop can only be engaged in by wholly-owned Ghanaian company. Another area of investment which has been left for the citizens of Ghana are the printing of recharge scratch cards for the use of subscribers of telecommunication services, the production of exercise books and other basic stationery. The retail of finished pharmaceutical products. A non-citizen is also barred from the production, supply and retail of sachet water; and all aspects of pool betting business and lotteries, except football pool.
Despite the above, the law makes room for non-citizens to participate in an enterprise other than those enterprises reserved for just citizens. Where a non-citizen wishes to participate in a joint enterprise with a partner who is a citizen, the person may invest a minimum amount of US$200,000.00 but where the enterprise is wholly owned by that person, the one who is participating may invest a minimum amount of US$5000,000.00.With respect to trading, a non-citizen may engage in it only if that person invests a minimum amount of US$1,000,000.00 in cash or goods and services relevant to the investments and such an enterprise must ensure that at least twenty skilled Ghanaians are employed by the enterprise.
It should be noted that the minimum capital requirement specified under the GIPC Act is inapplicable to portfolio investments or enterprises set up solely for export trading and manufacturing, that is export of goods or produce that originate from Ghana.
What are some of the assurances by the Centre upon registration of an enterprise?
Pursuant to the constitutional provision against discrimination, foreign investors, workers or employers are entitled to the same rights and subject to the same duties and obligations that citizens are entitled to and liable for. For that reason, it is incumbent on the GIPC or any of its agents or officials not to discriminate against an investor from a particular country nor give any investor some special treatment. The same laws apply to both local and foreign investors equally.
One other assurance for a foreign investor is that subject to the Constitution and any other laws, an enterprise shall not be nationalized or expropriated by Government, and a person who owns, whether wholly or in part, the capital of an enterprise shall not be compelled by law to give up that person’s capital to another person.
An enterprise shall not be acquired by the Republic unless the acquisition is in the national interest or for a public purpose and the acquisition is done under a law which makes provision for payment of fair and adequate compensation and a right of access to the High Court for the determination of the investor’s interest or right and the amount of compensation to which the investor is entitled.
Conclusion
Investors are looking to invest in an environment where they can contribute to development and still be able to maximise profit as well. Therefore, the existence of friendly laws and regulatory institutions like the GIPC is important to attract them.
It is commonplace to find many events and performances being organized in Ghana during Christmas. Some musicians also choose the festive season to release their new works. It is also during this time that a lot of stage plays and comedies are shown in theatres. The question is whether or not authors of works such as plays, poems, music and performers such as actors, dancers, etc. are aware of some of their basic rights in respect of their works and performances. A lot of times, after these festive activities, the media is littered with pieces of news regarding brawls between event organizers and performers, as well as authors, sometimes over copyright issues as well as over very minor issues which could have been forestalled had the parties involved known of the implications of their actions beforehand.
An author has been defined by the Act as a person who creates a work, and in the case of cinematographic work or sound recording means the person by whom the arrangements for the making of the work or recording is undertaken. In this definition it is realized that an author is defined to include any person who develops work recognized under the act as eligible for copyright and protection under the Copyright Act of Ghana.
An author, co-author or joint author of work such as literary work, artistic work, musical work, sound recording, audiovisual work, choreographic work, derivative work and computer software or programme is entitled to the copyright and the protection afforded to that work under the Copyright Act of Ghana . It must be noted that copyright does not extend to ideas, concepts, procedures, methods or other things of a similar nature. Before the works stated above would be eligible for copyright, the work ought to be original in character in that it must be the product of the independent effort of the author . Furthermore, it must have been fixed in a definite medium of expression now known or later to be developed with the result that the work can directly or with the aid of a machine or device be perceived, reproduced or otherwise communicated. Again, for a particular work to be eligible for copyright, it must have been created by a citizen or a person who is ordinarily resident in the Ghana and first published in Ghana. However, if the work is one which was first published outside Ghana, then within 30 days after publication outside Ghana it must be subsequently published within the country. Finally, if work would be eligible for copyright under the Act, it has to be work in respect of which Ghana has an obligation under an international treaty to grant protection.
The artistic quality, the purpose of the author in creating a particular work or the manner or form of expression of the work does not in any way affect its eligibility for copyright.
Rights of the author of a protected copyright work
By law, the author of a protected copyright work has the exclusive economic rights in respect of the work, to do or authorise the reproduction of the work in any manner or form, the translation, adaptation, arrangement or any other transformation of the work, the public performance, broadcasting or communication of the work to the public, the distribution to the public of originals or copies of the work by way of first sales or any other first transfer of ownership and the commercial rental to the public of originals or copies of the work.
In addition to the economic rights stated above, the law affords the author of protected copyright work the sole moral right to claim authorship of the work and in particular to demand that the name or pseudonym of the author be mentioned when any of the acts in respect of his or her economic rights are done in relation to the work, and to object to and seek relief in connection with a distortion, mutilation or any other modification of the work where that act would be, or is prejudicial to the reputation of the author or where the work is discredited by the act.
It is very important to note that, where a person has been employed to create any of the work listed as being eligible for copyright protection, the economic rights of the work as identified above would vest in the employer, in the absence of a contract to the contrary. This implies that the terms of the contract, if any, would prevail over any other arrangements. It may be surmised from the above that the employee who authored the work, in the course of his employment would have to insist on a contract to the effect that he would want the economic rights thereof to vest in him, if he so wishes.
The owner of copyright has the right to transfer his or her economic rights as stipulated under the Copyright Act to another person either in whole or in part. The law would usually not permit an owner of a copyright to transfer his or her moral rights under the Copyright Act to another person. However, if there is any contract requiring that to be done then it shall be limited in scope to the use provided for in that contract.
Since copyright work may be deemed as property, it can be the subject matter of a testamentary disposition, such that one may transfer his or her right to another person through a will. Moreover, ownership of copyright may also be transferred to another person by assignment or by operation of law. All these may be made or granted in respect of an existing work or future work.
For a transfer of a copyright by assignment to have effect, it ought to be in writing and signed by the owner of the copyright or by the person authorised by the owner of the copyright for that purpose.
In the case of a joint authorship of a work, an assignment or a license for the work shall be subject to the authorization of the joint authors.
Duration of copyright
In the case of individuals , the economic rights of an author are protected during the life of the author and seventy (70) years after the death of the author unless the contrary is stated in the Copyright Act and where the work is jointly authored, the economic rights of the authors are protected during the life of the last surviving author and seventy years after the death of that author.
Where the copyright in a work is owned by a public corporation or other body corporate, the term of protection shall be seventy years from the date on which the work was made or first published, whichever date is later.
For work published anonymously or under a pseudonym, the economic rights of the author are protected until seventy years after the date on which the work was made, first made available to the public or first published, whichever date is the latest. It must be noted however that if the identity of the author is known or no longer in doubt before the expiration of that period, the rights of the author shall be protected during the life of the author and seventy years after the death of the author.
In the case of an audiovisual work, the economic rights of the author are protected until the expiration of seventy years from the date of the making of the work, or where the work is made available to the public during that period with the consent of the author, until the expiration of seventy years from the date on which the work was made, first made available to the public, or first published, whichever date is the later.
In the case of a sound recording, the rights of the author referred to in section 5 are protected from the publication of the sound recording until the expiration of seventy years after the year of publication or, if the sound recording has not been published from the fixation of the sound recording, until the expiration of seventy years after the year of fixation.
The moral rights of authors under the Act exist in perpetuity and these rights are enforceable by the author, during the lifetime of the author, and after the author’s death, by the author’s successors whether or not the economic rights vested in the author are still vested in the author or the successor in title of the author.
Performance and the protection of the rights of performers
The Copyright Act also protects the rights of performers against other persons in respect of their performance. A performance according to Act 690 is the presentation of work by such actions as dancing, playing, reciting, singing, delivering, declaiming or projecting to listeners or spectators. This implies that stage dramas which involves acting, cultural performances, choral Programmes and live band musical programmes, poetry and spoken word, painting or drawing on stages to spectators or viewers would all qualify as performance provided that they constitute original work by the performer. A performer therefore would mean the actor, dancer, musician, singer and other persons who act, sing, deliver, declaim, play in or otherwise perform literary or artistic works or expression of folklore.
Without the authorization of a performer, a person shall not broadcast or communicate a performance of the performer directly or indirectly to the public except where the broadcast or communication to the public is made from a previously authorised fixation or where the transmission is one that has been authorised by the broadcasting organisation which transmits the first performance.
Without the authorization of a performer, a person is also prohibited from arranging the fixation of a performance not previously fixed on a physical medium, exercising the right of reproduction of the fixation in any manner or form, providing the first public distribution of the original or a copy of the performance of the purpose of direct or indirect commercial advantage irrespective of the ownership of the original or copy rented or making available to the public a fixed performance by wire or wireless means, in a way that members of the public may access it from a place and at a time individually chosen by them . A cursory read of the act seems to suggest that people who, for instance, take videos of performances and without authorization of the performer post them on various social media platforms so as to make them available to the general public are in a way infringing on the rights of performers under the Copyright Acts.
A performer has the exclusive right to authorise or prohibit the re-broadcasting, rental and distribution of a fixation of the performance, the fixation of the performance, the reproduction of a fixation of the performance or the communication to the public of the performance. The exclusive right of a performer to authorise or prohibit the above acts may however be limited where the performance has been lawfully fixed on audiovisual or audio recording media which may be broadcast without the consent of the performer, if the recordings have been published subject to the payment of equitable remuneration to the performer.
It is expedient for performers to note that where the performance by the performer was given under a contract of employment or service, the extent and conditions under which the employer of the performer may use the performance or authorise others to use it shall be determined by reference to the nature of the contract of employment or service unless agreed otherwise.
In the case of a group participating in choral, orchestral, or stage performance, the consent of the elected representative of that group shall constitute ample authorization for the activities of a person which may be authorised or prohibited by the performer.
Fixation as used severally above means the embodiment of sounds, images, or images and sounds or of representations made from them from which the sounds, images or images and sounds can be perceived, reproduced or communicated through a device.
Duration of protection of Performers’ rights
The rights of a performer in respect of the performance are protected for a period of seventy years starting rom the end of the calendar year in which the performance was fixed on a physical medium or in the absence of such a fixation, from the end of the calendar year in which the performance took place.
The performer subject to the economic rights of an author of a protected work and any existing contract of employment or service between an employer and a performer, a performer has the right to enter into a contract with a person on the terms and conditions, that the performer considers appropriate for the use of the performance by another person.
In addition to the rights as stated above, a performer has a moral right to require to be identified with the performer’s live oral performances and performances fixed in phonograms and to object to a distortion, mutilation, or any other modification of a personal performance which would be prejudicial to the reputation of the performer. These moral rights are independent of his or her economic rights and may be exercised even after the transfer of the economic rights
Registration of works
The Copyright Act by section 65 establishes a Copyright Office which is headed by the Copyright Administrator appointed by the President in accordance with the advice of the Legal Services Board given in consultation with the Public Services Commission.
The Administrator is enjoined by law to open and maintain registers in which shall be registered associations of authors, works and productions and a publisher of work within Ghana may submit the work for registration by the Copyright Administrator after its publication and may deposit two copies of the best edition at the Copyright Office.
The purpose of registration is to maintain a record of work, publicize the rights of the owners and to give evidence of the ownership and authentication of intellectual property. note ought to be taken of the fact that copyright protection of a work is not dependent on the registration of the work.
In spite of this fact, it is always advisable to register because an individual whose name is indicated as the author on a work is presumed to be the author of the work in the absence of a proof to the contrary. This implies that in case any legal issue arises as to the ownership of the right to some work, the registration would serve as prima facie evidence as to ownership or authorship unless it is proved otherwise.
Offences in relation to copyright and the rights of performers under the Copyright Act
Where a person performs an act which infringes upon a copyright or related rights protected under the Copyright Act without any license or authorisation from the person whose rights are protected or the agent of the person whose rights are protected under the Act, and the person knows or has reasonable grounds to know that his or her action induces, facilitates or conceals an infringement of such rights, the person commits an offence and will be liable on summary conviction to a fine of not more than one thousand penalty units and not less than five hundred penalty units or to a term of imprisonment of not more than 3 years or to both.
If the offence is a continuing one, the person convicted shall be liable to pay a further fine not less than 25 penalty units and not more than 100 penalty units for each day during which the offence continues.
The Act makes provision for the payment of compensation in addition to any punishment imposed by the Court in respect of an offence under the Act. The court is therefore empowered at its discretion to order that the sums of money arising out of the offence be paid to the person entitled to those sums and that the reproductions, duplication, extract, imitation and any other material involved in the infringement, and the implement or device used in the infringement be forfeited and disposed of as the court may direct having regard to the circumstances relating to the infringement.
Civil remedies
Apart from the fact that criminal charges may pressed an offender under the Act, a person whose rights are in imminent danger of being infringed or are being infringed upon may institute civil proceedings in the High Court for an injunction to prevent the infringement or prohibit the continuation of the infringement, or for the recovery of damages for the infringement.
In a previous article we had a discussion on how to start an employment relationship right. Like all other contracts, parties are at liberty to terminate their contract of employment at anytime in accordance with law.
According to the 2015 Statistical Report of the Ministry of Employment and Labour Relations the National Labour Commission (NLC), mandated by the Labour Act, 2003 (Act 651) to settle industrial disputes, received complaints in the areas of unfair termination, summary dismissal, unpaid salaries, medicals, retirement/end-of-service benefits, redundancy/lay off/severance pay, workmen’s compensation and others (maternity protection & poor conditions of service). The number of complaints received increased from 560 in 2014 to 654 in 2015. Unfair termination and summary dismissal complaints specifically increased by 61 and 15 respectively in 2015. This is a wake-up call to increase awareness of how to sever employment relationships without any qualms or disputes.
Chitty on Contracts, Chapter 39 paragraph 150[i], states that aside any relevant statutes or law, any issue regarding the duration of the contract of employment, the notice of termination, etc will depend on the intention of the parties either made known in the express or implied terms of their contract or to be inferred from all the surrounding circumstances.
It may be surmised from the proposition above that the intention of the parties will always prevail in a contract of employment. So, in the case of Kobi v Ghana Manganese Co. Ltd[ii] Atuguba JSC intimated that a contract of service is not a contract of servitude. That being so even if the contract of employment is silent on the question whether it is terminable the common law implies a right to terminate the same by either side upon reasonable notice to the other.
The Labour Act[iii] by section 17 stipulates that a contract of employment may be terminated at any time by either party giving to the other party a month’s notice or salary in lieu of notice in the case of a contract of three years or more and in the case of a contract of less than three years, two weeks’ notice or two weeks’ salary in lieu of notice. Where the contract is weekly the law requires that the party seeing to terminate the contract gives to the other party seven days’ notice.
It must be noted that notice may not be required in all cases. This is because section 17(2) of the Labour Act provides that where the contract of employment is one determinable at will by either party, it may be terminated at the close of any day without notice. A contract of employment would be deemed to be determinable at will if remuneration is at a rate other than monthly or weekly.
It is stated in Chitty on Contract[iv] that if a contract of employment makes no express or specifically implied provision for its duration or termination by notice, there is likely to be implied at common law a presumption that the contract is for an indefinite period and terminable by a reasonable notice given by either party.
By Section 15 of the Labour Act, a contract of employment may be terminated by mutual agreement between the employer and the worker, by the worker on grounds of ill-treatment or sexual harassment, by the employer on the death of the employee before the expiration of the period of employment, by the employer if the employee is found on medical examination to be unfit for employment, by the employer because of the inability of the employee to carry out his or her work due to sickness or accident, the incompetence of the employee or the proven misconduct of the employee.
Regardless of these factors provided by the law as being valid reasons for the termination of employment, it has been held in some cases that a party may terminate a contract of employment without assigning any reasons for the termination. This was espoused in the Supreme Court decision of Korbieh & Others v Tema Oil Refinery; Boateng and Others v Tema Oil Refinery (Consolidated) [2003-2005] 1GLR 485 in which case it was held that in an action for breach of contract of employment the employer was not liable for not doing what he was not bound to do. Accordingly, since article 4(vii) did not require the respondent to give any reasons for termination of theemployment of the appellant under that article the termination of the appellant under that article the termination of the appellant’s contract of employment was not wrongful.
As is the norm, most of the time employees terminate their contract of employment (i.e. resign from their employment) without ascribing any reasons for their decisions. However, it seems to be the practice of most employees to run to the National Labour Commission to complain about unfair termination when their contract of employment is terminated without any reasons.
When a contract of employment is terminated in accordance with Section 15 of the Labour Act, the employer is required to pay to the employee any remuneration earned by the worker before the termination, any deferred pay due to the employee before the termination, any compensation due to the worker in respect of sickness o accident and in the case of foreign contract, the expenses and necessaries for the journey and repatriation expenses in respect of the worker and accompanying members of his or her family in addition to any or all of the outstanding payments.
All remuneration due the employee by the employer ought to be made before or on the expiration of the notice but if no notice is required then the payments of the outstanding remuneration may be made not later than the next working day.
It is important to note that where there is a collective agreement and there are express provisions regarding the terms and conditions of termination, the provisions of the labour act would not apply unless the terms and conditions as stipulated in the collective agreement are less beneficial to the employee.
As much as possible, the termination of a contract of employment must be fair and according to Section 62 the termination of a contract of employment is fair if the contract is terminated on the grounds that the worker is incompetent, has been proved to have misconducted him or herself, has been made redundant or due to some legal restrictions imposed on the worker preventing him or her from performing the work for which he or she is employed.
The law forbids employers from terminating the employment of the worker unfairly. So, the Labour Act provides that a worker’s employment is terminated unfairly if the only reason for the termination is that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union. In addition to the above, if the employee’s contract is terminated for the reason that that employee seeks office as, or is acting or has acted in the capacity of a worker’s representative or that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of the labour act or any other enactments, that termination would be regarded as unfair.
Again, the termination of the employment by the employer would be deemed unfair if the termination is as a result of the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status and in the case of a woman worker due to the pregnancy of the worker or the absence of the worker from during maternity leave. In the case of The Commissioner, CHRAJ & 2 Others v. Ghana National Fire Service & Attorney-General[v] in which case the court made a declaration that Regulation 33(6) of the Conditions of Services of Ghana National Service, which required employees of the GNFS who were women to avoid being pregnant until three years after their employment to avoid dismissal, was discriminatory and in effect unjustifiable, illegitimate and illegal. The court consequently ordered the reinstatement of two employees who had been dismissed as a result of becoming pregnant within the first three years of their employment, payment of all arrears of their salaries and emoluments that had accrued to them during the period of dismissal as well as compensation for the trauma and inconvenience of the wrongful dismissal.
Where the contract of employment of a worker is terminated because of that worker’s disability, temporal ailment or injury it would be considered unfair.
Termination of an employment is unfair if the only reason for terminating the employment of a worker is that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his or her employment. That is why the employer is obliged to engage in retraining of its workers as when the need arises.
If with or without notice, an employee’s contract of employment is terminated because of ill-treatment of the worker by the employer or because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place it would be considered unfair.
Furthermore, a termination may be unfair if the employer fails to prove that the reason for the termination is fair or the termination was made in accordance with a fair procedure or the Labour Act.
Section 64 of the Labour Act prescribes some remedies for unfair termination. According to the Labour Act, a worker who claims that his or her employment has been unfairly terminated by his or her employer may present a complaint to the Labour Commission and if upon investigation the Commission finds that the termination of that employee was indeed unfair it may order the employer to re-instate the worker from the date of the termination of employment, order the employer to re-employ the worker either in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination or order the employer to pay compensation to the worker.
The most significant feature of termination of employment is the issue of notice as has been discussed extensively above so that if notice or alternatively the salary in lieu of the notice which is required is not duly given it would be deemed as unfair.
However, it must be noted that there are times when the contract of employment may be severed without giving any notice to the party involved. This usually occurs when there has been a gross misconduct or some other offence such as stealing etc. on the part of the employee which has been proved or established upon thorough investigation and the offender being afforded the opportunity to defend his case. In such a case there may not be any need for notice and the employee may be summarily dismissed in accordance with the contract of employment as well as the labour act. However, in order to avoid unnecessary culpability in unfair termination issues i humbly opine that employers always err on the side of caution and make available the notice period no matter the circumstance.
There is a vast difference between unfair termination which is extensively regulated by the Labour Act and Wrongful termination or dismissal which is a product of common law. This was also espoused in the recent case of Charles Afran & Ors v SG-SSB Limited[vi] in which case the learned Justice Kotey JSC stated as follows:
“unfair termination, as distinct from the common law concept of “wrongful dismissal”, is therefore a creature of statute, currently the Labour Act, 2003 (Act 651)……………..We hold that the trial court erred when it failed to consider whether the Plaintiff’s employment had been wrongfully terminated under the terms of his contract of employment. This was required of the trial high court as an initial first step. This failure was a grievous error.”
From the above quotation of the learned Justice, it appears that termination of a contract of employment ought to be in accordance with the contract of employment or in accordance with the labour act. A termination which contravenes the contract of employment which embodies the intentions of the parties constitutes a wrongful termination and that which sins against the Labour Act, especially the provisions on fair and unfair termination constitutes unfair termination.
[i] Chitty on Contracts (Thirtieth Ed., Vol. 2) page 1108
[ii] [2007] 13 MLRG
[iii] 2003 (Act 651)
[iv] Chitty on Contracts (Thirtieth Ed., Vol. 2) page 1109
[v] Suit No. HR 0063/2017 delivered on 23 April, 2018 (unreported)
[vi] Civil Appeal No. J4/71/2018 (Judgment delivered on 21 March 2019)
Introduction
Out of the total labour force or population in Ghana about 6.7 percent are unemployed. This was revealed in a 2018 survey conducted by Statista[1]. This undoubtedly implies that about 93.3 percent of the labour population are employed either in the formal or informal sectors. Out of the 93.3 percent who are employed about 52. 48 percent are employed in the informal sector comprising mainly agriculture and industry while the formal sector which comprises mainly of services accounts for the remaining 47.52 percent of the total Ghanaians employed.
The statistics above indicates that about 93.3 percent are in an employment relationship and as such it is expedient that these employees know or are aware of their rights and responsibilities as conferred by statute. In this article an overview of these rights and responsibilities of the parties to an employment contract would be discussed.
What are the rights and duties of employers and employees in Ghana?
The rights and duties of employers as well as employees have been stipulated in the Labour Act[2]. Section 8 of the Act provides that:
“Subject to this Act and any other enactment the rights of an employer include the right to
These rights summed up, would mean that an employer has a right to decide whether or not to employ a particular person. This implies that there is no obligation on that employer to employ anybody unless he or she decides to exercise that right. Once employed that employer reserves the right to promote or terminate the contract of employment of any worker without recourse to any other person as well as to determine what type of disciplinary measures to exert on his workers as far as it does not breach any fundamental human rights of any person.
Whatever operations are carried out in the outfit of the employ remains in the purview of that employer may decide to modify or cease to be in operations provided it is within the ambits of the law.
Just as an employer has rights so does he or she have certain responsibilities imposed on him or her. Section 9 of Act 651[3] imposes on the employer such duties as to provide work and appropriate raw materials machinery equipment and tools pay the agreed remuneration at the agreed time without any deduction except those permitted by law or agreed between the parties ensure that the worker is free from risk of personal injury or damage to his or her health during and in the course of the worker’s employment. Other duties that are required of the employer are for the employer to develop the human resources by way of training and retraining of the workers, providing and ensuring the operation of an adequate procedure for discipline of the workers, furnish the worker with a copy of the worker’s contract of employment keeping open the channels of communication with workers and protecting the interest of the workers.
These are basic duties that an employer is supposed to carry out without prejudice to any other enactment or collective agreement.
Similarly, Sections 10 and 11 of Act 651 spells out the rights and responsibilities of a worker towards an employer. By section 10, a worker has a right to work under suitable, safe and healthy conditions, receive equal pay for equal work without distinction of any kind, have rest, leisure and reasonable limitation of working hours and period of holidays with pay, as well as remuneration for public holidays, form or join a trade union, be trained and retrained for the development of his or her skills and receive information relevant to his or her work.
The worker, by section 11, is obliged to work conscientiously in the lawfully chosen occupation, report for work regularly and punctually, enhance productivity, exercise due care in the execution of assigned work, obey lawful instructions, reading the organization and execution of his or her work, take all reasonable care for the safety and health of fellow workers, protect the interests of the employer and take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.
Apart from these rights and duties of workers and employers listed above, there are certain issues that ought to be catered for by both the employer and the worker in ensuring that the employment relationship is a healthy one. These issues may include but not limited to annual leave, hours of work and overtime payment, holidays and vacations, remuneration as well as issues regarding discrimination.
The Labour Act[4] stipulates that an employee in any undertaking, except a person employed in an undertaking in which only members of the family of the employer are employed, is entitled to working leave of not less than fifteen (15) working days, with full pay in any calendar year of continuous service. It must be noted that annual leave is not to be fettered by public holidays as well as weekends or absence of duty due to confinement.
According to Odartey Lamptey in his book “Labour Law”, annual leave is beneficial both to the employer and to the employee. According to him the employee is able to rest and this in effect enhances or helps to maintain the health of the worker. Similarly, it is beneficial to the worker because according to the author, studies show that it is during this period that most corruptive practices are uncovered.
Under very normal circumstances, an employer is not supposed to interrupt with the annual leave of a worker except in very urgent situations. In such instances, the worker shall still be entitled to the remainder of the leave and would be capable of taking the leave anytime thereafter. In addition, the employer would also be obliged to settle the worker for any losses (reasonable) on account of the interruption. No agreement can be made to limit an employee’s entitlement to annual leave as is espoused in the labour law. Any such agreement would be deemed void and will not be given effect to.
Another issue that ought not to be compromised, is the issue of hours of work and overtime payment. The working hours and period of work by the worker are supposed to be agreed on by the parties and same scripted in the contract of employment. What would be agreed on need not fall outside the remits of the law. Section 33 of the Labour Law[5] states that the hours of a worker shall be a maximum of eight hours a day or forty hours a week, except in cases expressly provided for in the Act. The law also provides for situations in which the number of hours may be shortened or lengthened. In all these there must be consensus between the parties to the contract of employment.
One of the most “prized-possessions” of an employee is his or her remuneration. As a result, most would pull out all the stops to protect it. The law also creates certain avenues such as proscribing certain deductions as a way of protecting the remuneration of employees. It is expedient therefore, to prescribe the remuneration payable in the contract of employment so that it can be easily enforceable.
The law enjoins an employer not to do anything that may result in the discrimination of an employee in terms of remuneration, the type of work done, etc. this is also premised on fundamental human right of a person not to be discriminated against on rounds of ender, race, colour, ethnic origin, religion, creed or social or economic status as enshrined in the 1992 Constitution.[6]
The Black’s Law Dictionary[7] defines discrimination as the differential treatment, especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.
The law has made serious strides in an attempt to forestall or curb discrimination in employment relationships. Section 14 of the Labour Act[8] for instance provides that:
“An employer shall not in respect of any person seeking employment, or of persons already in his employment discriminate against the person on rounds of ender, race, colour, ethnic origin, religion, creed, social or economic status, disability or politics.”
It would be observed that this provision mirrors the tenets of the Constitution as set out in Article 17. This issue was discussed extensively in the case of Ghana Commercial Bank Limited v. The Commissioner Commission for Human Rights and Administrative Justice (CHRAJ).[9] In this case an employee’s appointment was terminated for granting a loan in excess of the ceiling provided by the appellant bank for its managers. From the record, the appellant had not denied the fact that heavier amounts far in excess of the ceiling were granted by other managers, but the appointment of those other managers had not been terminated. The Court opined that the action of the appellant bank was discriminatory.
This issue of discrimination reared its head again in the very recent case of The Commissioner, CHRAJ & 2 Others v. Ghana National Fire Service & Attorney-General[10] in which case the court made a declaration that Regulation 33(6) of the Conditions of Services of Ghana National Service, which required employees of the GNFS who were women to avoid being pregnant until three years after their employment to avoid dismissal, is discriminatory and in effect unjustifiable, illegitimate and illegal. The court consequently ordered the reinstatement of two employees who had been dismissed as a result of becoming pregnant within the first three years of their employment, payment of all arrears of their salaries and emoluments that had accrued to them during the period of dismissal as well as compensation for the trauma and inconvenience of the wrongful dismissal.
These decisions show the extent to which the court reveres the sanctity of the fundamental human rights of persons.
Conclusion
The rights and duties espoused in the Labour Act are not exhaustive. parties are at liberty to decided which rights they are entitled to as well as their obligations. However, these must be done within the confines of the law. It is very expedient to spell out these rights and duties to guide the parties in their employment relationship in order to prevent the arousal of disputes between the them.
Points to note
[1] Unemployment Rate in Ghana 2018; Published by H. Plecher,
[2] 2003 (Act 651)
[3] Labour Act, 2003(Act 651)
[4] Section 32
[5] 2003 (Act 651)
[6] Article 17
[7] 9th edition (page 535)
[8] ibid
[9] Civil Appeal No. 11/2002, 29th January, 2003 (unreported)
[10] Suit No. HR 0063/2017 delivered on 23 April, 2018 (unreported)
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