Understanding Bail Under Ghanaian Law: A Focus on the “Likelihood” Factors in Bail Applications

  1. Introduction: The Concept and Purpose of Bail

In criminal law, bail refers to the temporary release of a person who has been arrested or charged with a criminal offence, on the condition that the person will return to the police or court whenever required. In simple terms, bail is a legal promise by an accused person to appear before the authorities, sometimes backed by money or by other persons who guarantee that promise.

When bail is granted, the accused person usually enters into a bond (also called a recognisance). A bond is a formal written promise to appear before the court or the police. In some cases, the bond is supported by sureties. Sureties are persons who guarantee that the accused will appear as required and who may be liable to pay money if the accused absconds. Bail may therefore be granted with sureties, without sureties, or on self-recognisance, where the accused alone gives the undertaking.

The concept of bail is grounded primarily in the constitutional presumption of innocence under Article 19(2)(c) of the 1992 Constitution of Ghana, which provides that every person charged with a criminal offence shall be presumed innocent until proved guilty. Bail therefore serves as a mechanism to prevent unnecessary detention whilst ensuring that the accused remains available for justice to take its course. This rationale extends, in appropriate cases, even to persons who have been convicted but whose guilt is not yet conclusive, such as where an appeal is pending.

As Taylor J (as he then was) affirmed in Okoe v The Republic [1976] 1 GLR 80, adopting the classical statement of Coleridge J in R v Scaife (1841) 5 JP 406, bail ‘is not a question as to the guilt or innocence of the person’ but a mechanism ‘to ensure the certainty of [the accused’s] appearing to take their trial.’ His Lordship further endorsed the principle, first stated by Lord Russell of Killowen CJ in R v Rose [1895–1899] All ER Rep 350 and affirmed through section 96(4) of Act 30, that bail ‘is not to be withheld as a punishment,’ but as a procedural tool to balance personal liberty with the interests of justice.

Under Ghanaian law, the grant or refusal of bail by a court is discretionary and is guided by several statutory and judicially recognised factors. This article focuses on two of such factors, namely: the likelihood that the accused may interfere with investigations or witnesses, and the likelihood that the accused may commit further offences whilst on bail. These are the two factors I find worth commenting on in this article, given some observations I have made in our courts.

  1. Types and Stages of Bail Under Ghanaian Law

Before delving into the factors used by the courts, it is helpful to briefly consider the main types and stages of bail under Ghanaian law, as the principles governing bail operate across these stages, subject to some nuances.

(a)  Police Enquiry Bail is granted by the police to a suspect during investigations, usually before the person is formally charged and brought before a court. Its purpose is to allow investigations to continue without unnecessarily detaining the suspect.

(b)  Pre-Trial Bail is granted by a court to an accused person who has been charged but not yet convicted. Its primary purpose is to secure the accused’s attendance at trial and to safeguard constitutional rights, including the right to be tried within a reasonable time.

(c)  Bail Pending Appeal is granted after conviction whilst an appeal is pending. Although the accused has been found guilty at first instance, bail may be granted to prevent the hardship of serving a sentence that may ultimately be overturned on appeal.

 

  1. Statutory Factors Under Section 96 of Act 30

Section 96(5) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides that a court shall refuse to grant bail if it is satisfied that the defendant:

(a)  may not appear to stand trial;

(b)  may interfere with any witness or evidence, or in any way hamper police investigations;

(c)  may commit a further offence when on bail; or

(d)  is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed whilst on bail.

 

Of these, the two factors that I find worth commenting on in this article, given some observations I have made in our courts, are: the likelihood of interference with investigations or witnesses, and the likelihood of committing further offences whilst on bail.

  1. The Problem of “Likelihood” in Bail Rulings

In many contemporary bail hearings, these two “likelihood” factors have become common grounds for refusal. From my observations as a practitioner, particularly in the lower courts, it is increasingly common for the prosecution to allege that an accused person is “likely to interfere with investigations” or “likely to commit further offences” without providing any concrete or credible evidence in support of such assertions. Regrettably, some courts have accepted these claims without insisting on substantiation, resulting in refusals of bail grounded more in speculation than in proof.

This approach runs counter to the constitutional presumption of innocence and to the reasoning in the seminal decision of Okoe v The Republic, where Justice Taylor cautioned against the speculative and punitive deployment of the bail jurisdiction. The authority of Okoe has been affirmed in subsequent decisions, notably in Martin Kpebu v The Republic (No 2), underscoring its enduring relevance in Ghanaian bail jurisprudence.

  1. The Likelihood of Interfering with Investigations

Section 96(5)(b) allows a court to refuse bail if satisfied that the accused “may interfere with any witness or evidence, or in any way hamper police investigations.” The provision is intended to protect the integrity of the investigative process. However, its broad wording has sometimes been used as a general reason to oppose bail, even where investigations are largely complete or where no evidence supports the allegation.

In Okoe v The Republic, Justice Taylor criticised this ground as suffering from the same defect as the likelihood of further offences. He held that claims of “likelihood” must be supported by cogent and compelling evidence, not mere allegations. His Lordship stated:

‘Evidence tending to establish the future, not the present or past conduct of a person, must of necessity be so cogent and compelling as to leave no room for doubt. Mere allegations without proof as we have been subjected to in our courts in the past would not do.’

Where the prosecution fails to identify any ongoing investigations, potential witnesses, or specific acts of interference that could justify detention, it would not be proper for bail to be refused on this ground. Guided by the precedent in focus, the prosecution bears the burden of demonstrating, through credible and concrete facts, that the accused’s release would realistically jeopardise investigations. For example, if an accused charged with fraud is denied bail on the ground of likely interference, yet the docket is already with the Attorney-General for advice and all statements have been taken, the refusal would be unjustified unless the prosecution can show specific attempts to contact witnesses, tamper with documents, or obstruct enquiries. Justice Taylor further cautioned courts to resist undue pressure from the police and to require concrete evidence before accepting such claims.

  1. The Likelihood of Committing Further Offences

Section 96(5)(c) requires a court to refuse bail if satisfied that the accused “may commit a further offence when on bail.” Although intended to protect the public, this ground has often been invoked speculatively and without evidence.

In Okoe v The Republic, the prosecution opposed bail partly on the basis that the accused was “likely to commit further offences,” citing a previous conviction and general concerns about land-related violence. Justice Taylor rejected these arguments as “misconceived,” noting the absence of specific facts showing an immediate risk of further violence. He observed that there was no evidence of ongoing threats to the disputed land or any indication that the accused would confront trespassers violently. His Lordship, endorsing the reasoning of Jackson J in Williamson v United States 184 F 2d 280 (2d Cir 1950), that it would be unconscionable to jail persons for “anticipated but as yet uncommitted crimes,” held that speculative fears of future offending cannot justify pre-trial detention.

The decision establishes that “likelihood” under this provision must be grounded in concrete, current facts indicating a genuine probability of reoffending — not past conduct, public sentiment, or prosecutorial apprehension.

  1. The Judicial Duty to Address Contested Likelihoods

When these “likelihood” factors are raised and contested in bail proceedings, the court is, in my view, under a duty to address them directly, explicitly, and with reasons in its ruling. Bail is a discretionary judicial power, but discretion must be exercised judicially and judiciously, and not arbitrarily. Where the prosecution alleges that an accused person is likely to interfere with investigations or commit further offences, and the defence contests those assertions, a failure by the court to evaluate and pronounce upon those issues renders the decision unreasoned and vulnerable to appellate intervention. A ruling that merely recites the statutory grounds without analysing whether the evidential threshold has been met falls short of the standards of reasoned adjudication required in a constitutional democracy.

Justice Taylor adopted a model approach by carefully examining each alleged ground for refusing bail and rejecting those that were unsupported by evidence. His Lordship did not treat the statutory grounds as automatic or self-executing. Rather, he insisted that the court must be satisfied, on the basis of cogent material, that the alleged risks were real and not speculative. This methodical engagement with the bail factors exemplifies the proper judicial approach and underscores the obligation of courts to justify any curtailment of personal liberty with clear and rational reasons.

Okoe v The Republic remains a landmark and enduring authority on the philosophy of bail. Justice Taylor’s reasoning transcends the facts of the case and articulates a principled framework for bail jurisprudence in Ghana. He warned against the use of bail refusal as a covert punitive measure, emphasising that pre-trial detention must not be used to punish or stigmatise an accused person. This warning resonates with section 96(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which expressly prohibits the withholding of bail merely as a form of punishment. Bail, as Justice Taylor underscored, serves a limited procedural function: to secure the attendance of the accused and the proper administration of justice, not to prevent crime or to impose pre-trial sanctions.

  1. Conclusion

The grant or refusal of bail is a judicial discretion that must be exercised judicially and not arbitrarily. The factors under section 96 are not intended to support refusals based on unsubstantiated fears. The “likelihood” of interference or reoffending must be supported by evidence, not speculation. As Justice Taylor affirmed, endorsing Jackson J’s warning in Williamson v United States, courts must not incarcerate citizens for “anticipated but as yet uncommitted crimes.” His reasoning continues to serve as a vital reminder that bail protects liberty, and the judiciary must safeguard this principle against unsubstantiated claims in contemporary bail applications.

 

References

Cases

Martin Kpebu v The Republic (No 2) [2016] DLSC 11086, accessible at <www.dennislawgh.com>

Okoe v The Republic [1976] 1 GLR 80 (HC)

R v Rose [1895–1899] All ER Rep 350 (CCR)

R v Scaife (1841) 5 JP 406

Williamson v United States 184 F 2d 280 (2d Cir 1950)

 

Legislation

Constitution of the Republic of Ghana 1992, arts 14(4), 19(2)(c)

Criminal and Other Offences (Procedure) Act 1960 (Act 30), s 96 (as amended by NRCD 309)

 

By Fred Seth Thomas Mireku Jnr,

Kusi-Appiah and Associates

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Understanding the Special Privilege of “Without Prejudice” in Ghanaian Law

Introduction

Privilege, in legal terms, refers to a special right, exemption, or immunity granted to a person or class of persons, enabling them to lawfully do or refrain from doing something that would otherwise expose them to liability. Legal privilege seeks to protect certain communications and relationships from compulsory disclosure in court, thereby promoting fairness, candour, and effective dispute resolution.

Various forms of privilege exist under Ghanaian law. These include the privilege against self-incrimination, lawyer-client privilege, religious privilege, the right not to disclose an informant’s identity, marital communication privilege, and the compromise privilege—commonly known as the “without prejudice” privilege.

This article focuses on the without prejudice privilege, an essential tool in dispute resolution that facilitates open and honest settlement negotiations by insulating such discussions from later use in litigation. This legal protection plays a critical role in fostering out-of-court settlements and reducing the burden on the judicial system.

What is Without Prejudice Privilege?

The “without prejudice” privilege protects statements, admissions, or offers made in the context of settlement negotiations from being used as evidence in court. This shield encourages parties to engage in frank discussions without fear that concessions or proposals will later be used against them.

Under Evidence Act, 1975 (NRCD 323), this privilege applies across various proceedings—judicial, administrative, legislative, or informal. Its core purpose is to promote resolution over confrontation by allowing parties to explore compromise freely and sincerely.

Section 105 of the Evidence Act 1975 codifies the compromise privilege within Ghana’s legal framework. This provision permits a person to prevent the disclosure of any communication made during negotiations for compromise or settlement, provided that the communication was intended to be confidential. Notably, the privilege is considered joint in nature. This means both parties to the negotiation possess the right to invoke it, and neither party may waive the privilege without the express or implied consent of the other.

 

Conditions for Without Prejudice Privilege

For the privilege to apply, certain essential conditions must be met:

  1. Existence of Imminent or Threatened Litigation
    There must be an actual or anticipated dispute that may culminate in a legal action if the parties do not settle.
  2. Intention to Promote Settlement or Reconciliation
    The communication must form part of a genuine effort to resolve the dispute or foster reconciliation.
  3. Mutual Understanding Between Parties
    Both parties must understand that the communication is made “without prejudice” and is intended to be privileged—used solely for the purpose of settlement and not admissible in court, even if it contains admissions of liability.

 

The Position of the Courts

 The Ghanaian courts have upheld this principle where the conditions are clearly satisfied. In Dikyi & Others v Ameen Sangari Industries Limited [1992] 2 GLR 380, the court held that for the privilege to apply, both parties must mutually understand that discussions are to be treated as “without prejudice.” The term must not be used tactically or one-sidedly. It must reflect a shared intent to negotiate in good faith without sacrificing legal rights prematurely.

Further, the courts have long recognised the necessity of protecting genuine settlement discussions. In La Roche v Armstrong [1922] 1 KB 485, Lush J emphasised that if without prejudice protection did not exist, parties would hesitate to enter into candid negotiations, fearing any concession might later be used against them. The privilege is therefore indispensable to promoting dispute resolution and judicial efficiency.

 

Limitations and Misconceptions

Despite its clear importance, the without prejudice privilege is frequently misunderstood and misapplied. A common misconception is that merely marking a document or email as “Without Prejudice” is enough to guarantee that it will be privileged. However, courts may look beyond such labelling and assess the substance and context of the communication.

As held in South Shropshire District Council v Amos [1987] 1 All ER 340, a communication labelled “without prejudice” may still be admissible in court if it lacks the requisite intention to settle or is made outside the context of a genuine dispute. Conversely, even where a communication is not labelled, it may still attract privilege if it meets the legal criteria.

 

Illustrative Scenario:

Imagine a dispute between a landlord and tenant over unpaid rent. The landlord sends a letter proposing a payment plan and labels it “without prejudice.” However, the tenant had not yet contested the debt or shown any intention to litigate. Later, the landlord tries to rely on the tenant’s silence as proof of liability.

In this instance, the court may find that the privilege does not apply, because there was no genuine dispute at the time the letter was written, and the letter was not truly part of settlement negotiations. The label “without prejudice” is not a magic wand—it cannot manufacture privilege where the legal foundation is missing. As discussed in Law of Evidence in Ghana (Opoku-Agyemang, 2015, p. 479), such circumstances render the communication admissible, as they do not serve the policy rationale underlying the privilege.

 

Key Takeaways on Limitations:

  • The privilege only protects communications made in the course of genuine negotiations.
  • It cannot be used to shield threats, misconduct, or admissions made outside genuine settlement negotiations.
  • Both parties must have a shared understanding of the privileged nature of the discussion.
  • Communications made for ulterior motives—such as extracting admissions—may be excluded from protection.

 

Conclusion

The “without prejudice” privilege is a vital feature of Ghanaian evidence law, grounded in the principle that open and sincere settlement negotiations should be protected from later use in litigation. Properly understood and applied, it encourages parties to explore settlement without fear that their words will be turned against them. However, the privilege has its boundaries. Legal practitioners and parties must understand not just when it applies, but also when it does not.

For legal professionals, understanding the true scope and limitations of without prejudice privilege ensures better advice to clients and helps preserve the integrity of settlement processes. For parties in dispute, it provides a safe legal space to talk, compromise, and potentially resolve matters before the courtroom becomes inevitable.

 

By Fred Seth Thomas Mireku Jnr

Associate, Kusi-Appiah and Associates

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Understanding Copyright Law in Ghana: Protection, Eligibility, and Defences

Q1: What is Copyright?

A1: Copyright is a legal protection granted to the creators of original works. This protection allows authors, artists, and other creators to control the use of their works, ensuring they can reproduce, distribute, perform, display, or license their creations. Copyright helps to encourage creativity and innovation by providing creators with the incentive of exclusive rights to benefit financially from their work.

Q2: What works are eligible for copyright protection in Ghana?

A2: In Ghana, the following works are eligible for copyright protection:

  • Literary works
  • Artistic works
  • Musical works
  • Sound recordings
  • Audio-visual works
  • Choreographic works
  • Derivative works
  • Computer software or programs

Q3: What criteria must a work meet for copyright protection in Ghana?

A3: For a work to be eligible for copyright protection in Ghana, it must meet the following criteria:

  1. Originality: The work must be original in character, meaning it must be the product of the independent effort of the author.
  1. Fixation: The work must be fixed in any definite medium of expression.

 

  1. Nationality or Publication: The work must either be:
  • Created by a Ghanaian citizen or resident,
  • First published in Ghana or published in Ghana within 30 days of its first publication outside the country, or
  • Protected under an international treaty that Ghana is part of.

Q4: What is sampling and interpolation in music?

A4:

  • Sampling: This involves taking a segment of an existing sound recording and incorporating it into a new song. The sample can be anything from a drum beat to a vocal riff. The owner of the master recording has the right to sue for unauthorized sampling.
  • Interpolation: This process involves re-recording or recreating a specific part of an existing song, such as a melody, hook, or lyrics, and using it in a new track. Unlike sampling, interpolation does not use the original sound recording but reproduces the desired elements. The writer or composer has the right to sue for unauthorized interpolation.

Q5: What are the defences against copyright claims?

A5:

  • Fair Use: This allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  • Substantial Similarity Test: This assesses whether the accused work is substantially similar to the original. If the similarities are not substantial, there may be no infringement.
  • Originality: Copyright protection only applies to original works. If the defendant can demonstrate that the plaintiff’s work is not original, or that the defendant’s work was independently created without copying, this can serve as a defence.

 

Sources:

Copyright Act, 2005 (Act 690)

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)

Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018)

 

 

 

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MMRA NO SE SEN: Legal Implications of Aiding and Abetment of Crime

In a recent appearance on UTV’s “Mmra no se sen,” the Head of our firm, Edwin Kusi-Appiah Esq., shed light on the intricacies of abetment of crime in Ghana.

In this informative segment, Edwin Kusi-Appiah Esq. explains the concept of abetment, its types, and the consequences of aiding or encouraging criminal activity.

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Acquiring Shares In a Company; The Practical Approach

Every Company at a point will require growth. Depending on the size of the company, investments may be required in the form of either equity (shares) or debt (loans). If the investment is acquired in the form of debt, then a financial institution may be resorted to on terms and conditions to be agreed between the institution and the company.

Some companies also prefer raising funds through equity by selling off their shares in other companies or issuing out new shares to other entities. Depending on the regulation of the company, where an existing shareholder decides to sell off its shares in an existing company, it must first offer the shares to other members of the company on terms and conditions before offering them to third parties if the members refuse the offer.

For this article, consideration will be given to all the requirements needed by either individuals or cooperate entities that are considering the acquisition of shares in other companies from existing shareholders.

Approved Resolution by the Selling Entity

 

Where the selling entity is a cooperate body, it must support the sale of its shares with a board of directors’ resolution approving the sale of shares. The directors are the governing minds and decision-makers of the company and the sale of shares (interest) in a company, being a material decision, must be supported with their approval.

The board resolution will usually approve the share transfer, resolve to issue a new share certificate to the buyer, cancels the certificate of the seller and amend the register of members of the company effective from the date of the transfer of the shares.

A special resolution will, however, be required where the company is issuing out new shares out of its authorized shares to third parties.

Approved Resolution by the Purchasing Entity

 

Likewise, the purchasing entity, if a corporate body, will require a board of directors’ resolution approving the purchase of shares from the selling entity. These resolutions must name the authorized signatory approved by the board to execute all documents necessary for the completion of the transaction.

Execution of Share Purchase Agreement

 

Both the selling and purchasing entity must execute a Share Purchase Agreement (“SPA”) detailing the terms and conditions of the contract. The SPA will indicate the number of shares being transacted and the consideration (monies) payable by the purchasing entity. It further defines the mode and agreed payment terms between the parties. It must be noted that only the authorized signatory must sign the SPA and it has to be stamped with the official stamp or seal of both the selling and purchasing entities.

Stamping of the Share Purchase Agreement

 

Following the execution of the SPA by both parties, the document must be stamped at the Lands Valuation Department of the Lands Commission. The SPA is a chargeable instrument and it is required to be assessed and stamped under the assessment. The amount chargeable is usually meagre and further to this, during the registration at the Registrar Generals Department (“RGD”) only stamped SPA’s will be accepted.

  • Issuance of Share Certificate

 

Any Company shall within two (2) months after issuing out shares to an entity or individual must issue out a Share Certificate evidencing the transaction. The Share Certificate must be certified by one director and the secretary with an official company seal or stamp on the certificate. The certificate usually indicating the number and class of shares, amount of money paid or which remains payable and the name and address of the shareholder.

The Share Certificate is necessary as it is official evidence of ownership of the shares by the shareholder. Statements made in a share certificate under the common seal of the company or as certified by two directors and the Company Secretary of the company are prima facie evidence of the title to the shares of the person named in the certificate as the registered holder and of the amounts of money paid and payable on the certificate

Registration of Interest (Shares) at the Registrar Generals Department (RGD)

 

After the successful execution of the SPA and the issuance of the share certificate, the purchaser of the shares must take steps to register its interest at the RGD. The documents required to be presented are the approved resolutions from both the seller and the purchaser, the stamped SPA between the parties and the share certificate issued to the purchaser of the shares.

After the successful registration of interest at the RGD, the RGD will amend the profile of the company to reflect the new shareholding structure. The company must also take steps to amend its register of members and cancel the share certificate of the seller.

Again, the company must ensure that the changes to its shareholding structure are reflected during the filing of its annual returns at the RGD.

The acquisition of shares is relevant and must be done with all the necessary due diligence required for any business transaction.

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Employment Contracts in the Labour Market

As the operations of a company expand, it will be necessary to employ people to support the work under various arrangements. It is always advisable to spell out the terms and conditions into a contractual agreement. Once this is done, it defines the scope of work and the respective obligations of each other.

In Ghana, where the period of employment exceeds six months, it is a requirement that such a contract be reduced into writing by the parties.

This article examines the requisite terms and conditions that must be included in general employment contracts. It may, however, vary from institutions depending on the nature of business and scope of work for such institutions.

  • Contracting Parties

 

The representative of the company signing all employment agreements must have the requisite capacity and authority to sign for and on behalf of the company. Practically, the Chief Executive Officer (CEO), the Managing Director (MD), or the Human Resource Manager or their nominated persons sign for and on behalf of the company.

  • Period/Term of Employment

 

The employment contract must have a date of commencement. However, depending on the scope of work of the employee, the period of employment may have a specific timeline or otherwise. Where the period of employment is specific, it terminates automatically at the end of the period unless the same is renewed by the parties.

Practically, most companies limit the term to six months (probationary period) with the option to confirm after the probationary period on condition that they are satisfied with the employee.

  • Scope of Work/Duties of Parties

 

The contract of employment must define the obligations and duties of both the employer and employee. It usually indicates the expectations of the employer, the place of work, designation of the employer, job title, hours of work, and any other obligations expected from the employee by the employer.

The scope of work usually contains statements that require the employee to abide by all company policies and procedures and a commitment to diligently work for the company during the period of employment.

The scope of work is critical as it is used as the basis for an employee to determine the employee’s capabilities.

  • Salary/Financial Commitments

 

The contract of employment must clearly state the gross (without any deductions) and net (after all taxes and deductions) which the employee will be entitled based on the arrangements.

Where there are other benefits and allowances which may include health insurance, accommodation, transportation, travel allowances among other things, the same must be included in the agreement. Practically, most contracts of employment include clauses that have an effect that all expenses incurred by the employee in the course of the employment shall be reimbursed subject to the production of a receipt.

  • Annual Leave/ Holiday entitlement

 

The contract of employment must indicate the number of annual leave days the employee is entitled. Legally, the minimum number of days in a calendar year should not be less than fifteen (15) days. It is worthy to note that during the period of leave days, the employee will still be paid the salary.

Employers must note that the annual leave must not be interrupted. That notwithstanding, if for any emergency reason the employee is required back to come back to work, the employee can be recalled on condition that the leave will be taken at a later date.

Practically, to assist management to properly plan leave days and ensure no interruption of work, most employment contracts include clauses that notice of any intended annual leave should be given between two weeks and one month before the due date.

  • Confidentiality Clause

 

The contract of employment must include a confidentiality clause restricting the employee from disclosing any corporate information to third parties without consent. The information may relate to trade secrets, corporate information, finance, technical data, and know-how among other things.

This clause is important and a breach is likely to warrant termination in most companies.

  • Termination Clause

 

The termination clause in a contract of employment is necessary as it defines the procedures to be taken by both the employer and employee should any of them decide to withdraw from the contract. Legally, termination can be by mutual agreement between the employer and employee, by the worker on grounds of ill-treatment or sexual harassment, where the employee is found on medical examination to be unfit for employment.

The law requires notices of termination to be included per the under listed details;

  • Where the contract of employment is more than three years, one-month notice or one month pay in lieu of notice
  • Where the contract of employment is less than three years, two weeks’ notice or two weeks’ pay in lieu of notice
  • In case of weekly contract, seven days’ notice.

 

Practically, most contracts of employment go a step further to include the obligations of parties after any termination. This may include the return of all company assets, records, correspondence within a specific period, undergoing medical exit examination among other things.

  • Other Clauses

 

The contract of employment must include a clause on disciplinary and grievance procedures, address to which all notices are to be sent to both the employer and employee, whether the company has the right to assign its obligations in the contract among other things.

In conclusion, it is necessary to reduce the agreed terms and conditions between the employer and employee into writing. This helps all parties to know their obligations and limitations in the course of their dealings with each other.

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BOARD MEETINGS :Guidelines for Secretaries

After the successful incorporation of a company, the law requires certain meetings to be held by the company as a going concern. Among such meetings are the Annual General Meetings (“AGM”) and the Board of Directors Meetings (“Board Meetings”).

Concerning the time interval for having an AGM, it should not be more than fifteen (“15”) months from when the last AGM was held. However, where a company holds the first annual general meeting within eighteen (18) months of incorporation, the company is not required to hold the annual general meeting in the year of incorporation or the following year.

Legally, Board Meetings should be held at least once every six months, but most companies prefer to have a quarterly Board Meeting. For this article, consideration shall be given to Board Meetings specifically the preparation stage, attendance and after the BOARD MEETING.

  • Before the BOARD MEETINGS

 

Agenda for the Meetings
The agenda for the BOARD MEETING confirms the purpose of the meeting. It generally indicates the venue, time, attendees (board members and invitees) for the meeting. More importantly, it set outs the topics to be discussed during the BOARD MEETING.

Arrangement and Distribution of BOARD MEETING Packs

All BOARD MEETING packs (presentations) by the various departments are usually sent to all attendees before the meeting date. Depending on the size of the company, the presentations are usually from finance, business development, organization development, legal and compliance, operations and maintenance among other things.

The essence of sending the BOARD MEETING packs before the meeting is to allow all members and attendees to have enough time to review the updates and have foreknowledge of all issues that may be discussed at the meeting.

Board Minutes of Previous Meeting
Minutes of the previous BOARD MEETING should be carefully reviewed to ensure that it captures all the issues discussed at the meeting. In modern times, most board members prefer the minutes of the meeting to be sent electronically before the meeting.

Before sending board minutes to the board of directors, it is always prudent to first share drafts with each department heads to review and amend with all the necessary changes. The departmental head review is always critical as they are in a better position to confirm the content and do an initial approval before the minutes are sent.

This is to enable the board members to review the minutes before the next Board Meeting. Almost all Board meetings have action items that are to be completed by various department heads before the next Board Meeting. The Secretary is to follow up with the department heads and ensure that all items have been completed.

The minutes must be sent electronically to all the board members before the day of the meeting.

  • During the conduct of the BOARD MEETING

 

Early Arrangements
Before the start of the meeting, all board packs (presentations), minutes of meetings, agenda and note pads must be properly arranged in order of the presentation on the desk of each board member.

This is critical as it sets the stage for ensuring that every board member has the required documentation needed for the meeting

Quorum
Following the declaration of a quorum by the chairperson, the meeting will be deemed to start. The quorum of meetings is usually dependent on the regulations of the company and the number of board members required for the attendance of the meeting.

. Generally, the quorum is necessary for the transaction of business of the directors and a committee of directors may be fixed by the directors, and unless so fixed shall be two, or, in the case of a one-person committee, one;

Review and Approval of Previous BOARD MEETING

The minutes of the previous Board Meeting are reviewed by all the board members before approval. The board chairman usually makes inquiries on the action items from the previous Board Meeting as to whether or not the same has been fulfilled.

The company secretary has to take notes on observations made during the review and make the necessary corrections.

Recording Proceedings of the Meeting
The best way to capture all the proceedings of the meeting is to get a recorder if allowed, which will capture all the presentations during the meeting.

It is not necessary to transcribe all presentations as they are presented. To get a good minute from the presentations, it is always prudent to summarize most of the explanations given by the various department heads during the board presentation.

The secretary must concentrate more on the board resolutions concluded at each presentation and take note of such items. Further to this, action items required to be performed by the department heads for the next BOARD MEETING must also be recorded. This will serve as a guideline in the preparation of the minutes.

Again, it is necessary to be more attentive to details as most of the things to be captured in the minutes will be said orally and will not be found on the presentation.

  • After the BOARD MEETING

 

The best time to complete all the minutes of the meeting is within the first week after the BOARD MEETING. This time is preferable as all the happenings at the BOARD MEETING will still be lingering in the mind of the secretary.

In summary, the essence of BOARD MEETING helps the board to plan, track, measure and evaluate the progress of the company.

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Establishing a company in Ghana: Guidelines for incorporation of a limited liability company

There are many misconceptions about the business terrain in Ghana. The most evident one has to do with company formation.

It is not without doubt that most corporate institutions prefer contracts with corporate entities than individuals. Corporate entities give the contracting party the comfort of dealing with an institution which is a going concern and not an individual whose demise is likely to affect the operation of the terms of the contract.

This article highlights the basic requirements and knowledge for individuals who desire to form companies with ease need.

Name and Nature of Business

The first step in registering a company is to get a name for the company, the name must be unique, not misleading or undesirable (in the opinion of the Registrar) nor have been used by any other person before the registration. A search can be conducted at the Registrar Generals Department (RGD) to confirm whether the said name has already been taken.

Upon confirming the name, the applicant must be clear on the nature of the business. The nature of business simply means the purpose for which the company is created whether the business is created for services, manufacturing, transport among other things. There should be certainty and precision on the principal activities. The nature of the business can always be amended to include more so just be brief on the reasons why you intend to create the business.

Tax Identification Number (TIN) for Directors, Shareholders, and Company Secretary

All officers of the proposed company must have a Tax Identification Number(“TIN”). If an officer does not have a TIN, the TIN application takes between 3 to 5 working days to obtain at the Ghana Revenue Authority (“GRA”). The applicant must provide his/her name, occupation, Photo ID, mother’s maiden name, residential and postal address (digital/postal address) and contact details of the applicant

Appointment of Directors

Legally, you can include as many directors as you want upon incorporation. The only proviso is that it should not be less than two individuals.

Each of the directors must provide their residential address, business occupation, postal, electronic mail address as well as contact details of the directors must be provided. as well as indicate whether they are Ghanaian nationals or foreign entities (proof of which will be required).

Appointment of Company Secretary

Currently, a person must either be a chartered accountant, or a lawyer licensed to practice as a lawyer before they can serve as secretaries to countries. Among other things, the duties of the secretary will include compliance with the company’s constitution, filing of statutory forms as well as register.

A corporate entity can also be a company secretary by the requirements of the company law

Registered and or Principal Place of Business

An applicant must indicate the address of the house or building he intends to carry out business. The street, district, city, and region preferably the digital address must be provided. If the applicant has other places of business, it must be included as well. The postal address must be included as well as the telephone details of all the proposed contacts of the company.

Shareholders or Members of the Company

This is a critical issue all applicants must consider in the process of registering a company, the shareholders are the owners of the company. They make the decisions for and on behalf of the company. There can be one shareholder or several shareholders. The company as a whole must be specific on the total number of shares the company intends to subscribe (Authorised Shares) to and how many shares each applicant wants to subscribe it intends to subscribe to (“Issued Shares”).

Share Capital

The Applicant must also take into consideration the share capital it intends to invest in the company. It usually includes total consideration (cash) the applicant intends to obtain from the sale of shares as well as the total consideration received for every issue of shares otherwise than for cash. It, however, depends whether the applicant intends to go into the service industry or trading industry

Service Industry:

For Ghanaian companies, the applicant is required to pay a stamp duty fee of 0.5% of the share capital to the RGD. However, if the entity is wholly owned by a foreign entity minimum $500,000.00 If the entity is jointly owned between a Ghanaian and foreigner, the stated capital shall be $ 200,00.00 but the Ghanaian applicant must have 10% equity participation

Trading Industry:

importers, dealers in general goods and retail trading, manufactures will require a minimum of $ 1,000,000.00 (Cedi Equivalent) in equity. Where there is Ghanaian participation the person must have 10% in equity participation. The applicants will be required to pay 0.5% as stamp duty on the stated capital at the time of incorporation

Registration with Ghana Investment Promotion Centre (GIPC)

Where the company is wholly or partially owned by a foreign entity, it will be required to produce evidence of registration with the GIPC. This is necessary to regulate the capital investments made by the entity in the country.

Business Registration Certificates

Upon successful incorporation, the applicant will be presented with the under listed information

? Certificate of Incorporation and Certificate of Commencement of Business

? Company Regulations

? Form 3 and 4

Company formation has become relevant in our evolving world and it is incumbent on any person who intends to enter into long term businesses to incorporate one.

Onesimos Barimah Osei

Legal and Compliance Manager

Genser Energy Ghana Limited

Onesimos.osei@genserghana.com

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Corporate Compliance; The Cardinal Guide To Foreign Investment In The Power Industry In Ghana

Every company at a juncture require growth. This progressive development will require investments to either revamp or increase the company’s annual turnover. Most foreign entities prior to investing in local businesses will require some legal due diligence (“Legal DD”) to be conducted on the company in order to be convinced that their investment will yield suitable returns.

The Legal DD on any company always covers various areas which includes but not limited to a critical assessment of the Corporate Information of the entity, regulatory compliance with the Companies Act of Ghana 1963, Act 179 (“Companies Act”), Local Assembly Laws, Foreign Exchange Act, 2006 (Act 723), Energy Commission Act of Ghana, 1997, (Act 541), Environmental Protection Agency Act of Ghana, 1994 (Act 490) and Regulations, Fire Regulations of Ghana, 2002 L.I 1652, National Petroleum Act, 2005 (Act 691), Ghana Investment Protection Law and Factories and Inspectorate.

The Legal DD report also acknowledges all reviews of material business contracts executed between the company and other third parties, any earlier financial arrangements entered into by the company and any security that encumbers the company’s current assets. It further acknowledges insurance undertaken by the entity on its assets. It also covers the company’s fiscal compliance with tax regulators beside a review of the company’s employees’ profile.

Further to this, the Legal DD report will also consider whether there are any pending material litigations that are likely to affect the governing structure and operations of the company.

  • Corporate Information.
  • Incorporation Information

 

The review will require the production of the Certificate of Incorporation, Commencement of Business as well as the Regulations of the Company. This is necessary to verify when the company was incorporated, registered address and its approved nature of business.

The Company must also provide evidence that it has commenced and completed the re-registration process with the Companies Registry and has acquired a new Tax Identification Number (“TIN”) and corporate registration number.

  • Changes Effected

 

Any change of the corporate name, nature of business, directors, shareholders and secretary must be indicated by showing evidence of such changes filed at the Registrar Generals Department (RGD).

The report will require that all special resolutions passed, approving the said changes are filed at the RGD. Further to this, the schedule of shareholders from the inception of the company showing the names, number of shares, percentage of holdings and nationality of the shareholders will be required.

  • Corporate Governance

 

The review will further concentrate on the governance structure of the company. With respect to this, the names and profile of all the current directors of the company will be required. The report will further require production of the number and terms of reference of the committees of the board of directors. If there are any new directors appointed, their offer of appointment and acceptance letters will be required for review.

The name and profile of the auditors of the company will also be required and a copy of the ordinary resolution of directors in respect of the appointment of the auditors. The written consent of the auditors will also be required for review by the foreign entity.

  • Equity and Shareholding

 

The company will also be required to provide its schedule of subsidiaries and affiliates if any. This will include details of the incorporation dates, authorized business and shareholding of the company in the various subsidiaries or affiliate companies.

Further to this, a detailed equity holdings and investments of the company in other entities will also be critically assessed by the foreign entity.

  • Financial and Capital Structure

 

The company will be required to provide copies of all the audited financial statement since incorporation of the company for review. On capital history of the company, forms 6, 7 and 8 filed with the Companies Registry and the evidence of payment of capital duty in respect of each issue of shares and increment in stated capital will be required if any.

  • Compliance with Companies Act
  • Filing of Annual Returns

 

The Company will be required to provide evidence of filing of its annual returns at the office of the Companies Registry.

  • Minutes of Meetings

 

The company will be required to confirm that it has in accordance with the Companies Act been holding shareholders, annual general meetings as well as board of directors meeting. Evidence of that will be required to be produced by furnishing the entity with certified copies of its shareholders, board meetings and annual general meetings.

  • Register of Members, Directors and Secretary

 

The Company will be required to confirm that it keeps and maintain register of members, directors and secretary. A certified extract of the said registers will be required. The details of the register should include all appointments and removals with supporting documents evidencing dates of such notices. Copies of form 17 filed at the Registrar Generals Department would be required.

Again, a confirmation that the company keeps and maintain a register of directors’ holdings. Further evidence of directors written consent to their respective appointments will be required for review.

  • Compliance with Local Assembly Bye Laws
  • Business Operating Permit and Business Operating Levy

 

The Company will be required to obtain the business registration certificate by the relevant district assemblies within the operating area. This permit is however subject to annual renewal by the relevant assembly.

Further to this, the Company will be required to pay its annual operating levy to the relevant assemblies in the respective district where its operations are based.

  • Compliance with the Foreign Exchange Act

 

If the Company wants to make and receive payments in United States Dollars, it needs to provide evidence to the effect that it has applied for and obtained such approval form the Bank of Ghana to price and make payments in foreign exchange.

  • Compliance with Energy Commission Act

 

The company will be required to obtain an embedded electricity generation license from the Energy Commission purposely meant to locate, construct and operate thermal plants within the country.

  • Compliance with the Mining Act.

 

The company will need to furnish the foreign entity with evidence of registration with the Minerals Commission to provide services to a mining company. It further needs to provide evidence of having a valid a mining service operating.

  • Compliance with the EPA Laws.

 

The Company needs to confirm that it has registered with the EPA as well as has a valid environmental permit issued by the EPA. Again, the Company will be required to show evidence that it duly submits its annual environmental report to the EPA in accordance with the EPA Act.

  • Compliance with Ghana National Fire Service

 

The copy of the fire certificate issued for the companies’ operations by the Ghana National Fires Service with respect to its facilities. This is renewed annually and the company must take steps to renew the certificate. The essence of this certification is to ensure that the company is fire prepared for any eventuality that may occur in the course of its operations.

  • Compliance with the Ghana Investment Promotion Centre (GIPC)

 

Where the company is wholly or partially owned by a foreign entity, it will be required to produce evidence of registration with the GIPC. This is necessary to regulate the capital investments made by the entity in the country.

  • Compliance with the Factories and Inspectorate

 

The company will also be required among other things to register and obtain annual permit from the factories and inspectorate department.

  • Adherence to Insurance Requirements

 

The company will be required to obtain and maintain various insurance policies which includes but not limited to an Asset and Machinery, Workmen Compensation, marine cargo insurance, premises and removal bonds among other things.

The report will require a confirmation from the insurers or brokers that the company has paid all its premium with respect to its insurance policies an undertaken that all the various insurance policies undertaken are adequate for the operations of the company.

In conclusion, the essence of the report is basically to provide comfort to the prospective lender and give them an assurance that the entity is a going concern and is compliant with all regulatory and statutory requirements.

Onesimos Barimah Osei
Legal and Compliance Manager
Genser Energy Ghana Limited
Onesimos.osei@genserghana.com

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