July 8th, 2017

(Unrepoprted, Supreme Court, Writ No. J1/19/2016, 14th June 2017)

Coram: Akuffo, Adinyira, Dotse, Yeboah, Baffoe-Bonnie, Gbadegbe, Bennin JJSC

JUDGMENT (Dotse, JSC read the unanimous judgment of the Court):

Article 187(7)(b)(i), (ii) and (iii) of the Constitution 1992, provides as follows:-

In the performance of his functions under this Constitution or any other law the Auditor-General… (b) may disallow any item of expenditure which is contrary to law and
(i) surcharge the amount of any expenditure disallowed upon the person responsible for incurring or authorizing the expenditure; or
(ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account;
(iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

Based on the above constitutional provisions referred to supra, the Plaintiffs claim the following reliefs against the Defendants before this court:

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law, so that the amount unlawfully expended is recovered from the person who was responsible for, or authorised, the expenditure disallowed.

(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account, so that that amount is recovered from the person by whom the amount should have been brought into account.

(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person, so that the value of the loss or deficiency is recovered from that person (whether or not a public servant).

(4) That the failure, refusal or neglect by the Auditor-General to ever issue any disallowances and surcharges in respect of (i) unlawful items of expenditure, (ii) amounts not brought into account, and (iii) losses and deficiencies incurred through negligence and misconduct, as set out in successive Reports of the Auditor-General issued since the coming into force of the Constitution, are violations by the Auditor-General of his/her obligations under the Constitution and

(5) That the Auditor-General be ordered to issue disallowances and surcharges to and in respect of all persons and entities found in successive Reports of the Auditor-General to have been responsible for or to have authorised unlawful items of expenditure, not bringing sums into account, or having caused loss or deficiency through negligence or misconduct, in accordance with Article 187(7)(b) of the Constitution.


The facts relied upon by the Plaintiffs who are a pressure and advocacy group, incorporated under the laws of Ghana can briefly be summarised as follows:-

That the Auditor-General pursuant to article 187(2) of the Constitution, has been given the constitutional responsibility to audit and issue a report therein in respect of the public accounts of Ghana and of all public offices which in this instance includes the courts, the central and local government administrations, of the Universities and public institutions of like nature, of any public corporation or other body or organisations established by an Act of Parliament.

The Plaintiffs further draw attention to article 187(5) of the Constitution which enjoins the Auditor-General to carry out the audit of the public accounts within 6 months of the preceding financial year and submit a report, and “shall in that report draw attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament.”

In this respect, the Plaintiffs referred to sections 20(1) and (2) of the Audit Service Act, 2000 (Act 584) and section 2 thereof in particular which provides and states in material particulars what this report to Parliament by the Auditor-General is required to draw attention to in cases in which he has observed the following:-

(a) an officer or employee of Government has willfully or negligently omitted to collect or receive any public money due to the Government;
(b) any public money was not duly accounted for and paid into the Consolidated Fund or other designated public account;
(c) an appropriation was exceeded or was applied for a purpose or in a manner not authorized by law;
(d) an expenditure was not authorized or properly vouched for or certified;
(e) there has been a deficiency through fraud, default or mistake of any person;
(f) applicable internal control and management measures are inefficient or ineffective;
(g) the use or custody of property, money, stamps, securities, equipment, stores, trust money, trust property or other assets has accrued in a manner detrimental to the state;
(h) resources have not been used with due regard to economy, efficiency and effectiveness in relation to the results attained;
(i) in the public interest, the matter should be brought to the notice of Parliament.

It has to be noted that, the above provisions of the Audit Service Act, have taken their authority from Article 187(7)(b) of the Constitution already referred to supra, which empowers the Auditor-General to disallow any item of expenditure which is contrary to law, and having done so to:

(i) surcharge the amount of any expenditure so disallowed upon the person responsible for incurring or authorizing the expenditure, or
(ii) direct that, any sum which has not been duly brought into account, be brought into account upon the person by whom the sum ought to have been brought into account, or
(iii) direct that the amount of any loss or deficiency, be brought upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

In other words, the person by whose conduct of negligence or misconduct the loss or deficiency occurred must be held liable.

The Plaintiffs further asseverate that since the inception of the 4th Republican Constitution on 7th January 1993, the Auditor-General has failed, neglected and or refused to carry out his mandate in fulfillment of the constitutional obligations referred to supra, which would have entitled him to retrieve the amounts, losses and or deficiencies from the offending persons for the benefit of the good people of the Republic of Ghana. This conduct of the Auditor-General according to the Plaintiffs is a violation of his constitutional mandate and obligations under Article 187(7)(b) of the Constitution.

In pursuance of their resolve to ensure that the Auditor-General complies with the above constitutional obligations referred to supra, the Plaintiffs on 12th November 2014 addressed a letter exhibited to these proceedings as Exhibit OG3 entitled “Request for the Exercise of Auditor-General’s Powers of Disallowance and Surcharge, and Notice of Action.”

In that letter, the Plaintiffs state in part as follows:-

We have studied the Auditor-General’s Audit Reports to Parliament for the eleven (11) years between the year ended 31st December 2002 and the year ended 31st December 2012. In that period, the Auditor-General has identified a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless, and quite without explanation, although the Auditor-General is known to have made “recommendations”, OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General or any of his offices.

The Plaintiffs then requested the Auditor-General to either comply with the constitutional obligations therein stated or face a legal challenge after the expiration of 30 days from the date of the letter.

The Auditor-General responded to the said letter on 9th December, 2014 and attached written comments therein, and this is marked as Exhibit OG4 in these proceedings.

We deem it appropriate at this stage to quote in extenso the relevant portions of this Exhibit OG4 as follows:-

14. On the matter of procedural precedence under the laws of Ghana, there is an issue of timing of the exercise of discretionary power given to the Auditor-General under Article 187(7)(b) of the Constitution. Article 187(5) of the Constitution requires the Auditor-General to send this report on all irregularities (disallowance items included) to Parliament for consideration. Under section 23 of the Audit Service Act, the reports of the Auditor-General become public documents as soon as they have been presented to the Speaker to be laid before Parliament.
15. The question is, should the Auditor-General exercise his discretionary power of surcharge and start to disclose his findings through the courts for public consumption before submitting his report to Parliament or after submission to Parliament.

It would appear that, the Auditor-General clearly perceives this power of disallowance and surcharge granted him under Article 187(7)(b) of the Constitution as discretionary and this therefore meant he is not bound to apply or enforce those provisions.

In conclusion, the Auditor-General reiterated the fact that his office has since July 2013 collaborated with the office of the Attorney-General through the formation of a joint committee to enquire into cases cited in the Auditor-General’s reports spanning 2006-2011.

According to the Auditor-General as per the response in OG4 which we again refer to in extenso, “the mandate of the Committee was to review all cases in the Auditor-General’s report covering this period for further action. The result of the Committee’s work after several sittings since 2013 indicate that about 85% of the cases in the Auditor-General’s Report for the period covered, only required administrative actions by the institutions concerned because they derive from non-compliance with applicable laws, policies and procedure”

Feeling dissatisfied with the above explanations, the Plaintiffs instituted the instant action against the Attorney-General who is the nominal Defendant for and on behalf of the Auditor-General.

We must commend legal counsel for the Parties for well prepared statements of case in which they argued inter alia the following:-

(1) Whether the original jurisdiction of the court was properly invoked
(2) The powers and constitutional obligations of the Auditor-General of disallowance and surcharge under article 187 (7) of the Constitution.
(3) The Auditor-General’s narrow interpretation of his obligations under the said articles referred to supra which the Plaintiff’s consider as wrong, and
(4) The closing arguments of the Plaintiffs and Defendants in their statement of case.


The Plaintiffs concluded their arguments in the statement of case as follows:-

Your Lordships, we have attempted in these submissions to answer the further issues set out joint (sic) by the parties. We will have humbly contended that the Auditor-General does not fully meet his obligations under Article 187(7)(b) when he conducts audits and prepares reports that show financial irregularities. Those constitutional obligations to disallow and surcharge are only discharged when, upon discovering financial irregularities, the Auditor-General takes (sic) follows the deliberate statutory steps to disallow them and then surcharge the persons responsible for causing them with any amounts lost to the State. We have also respectfully argued that the Auditor-General’s obligations do not even terminate when he issues a certificate of the Disallowances and Surcharges. The law has created a bifurcated enforcement responsibility, first on the public entity with respect to which the irregularity occurred to receive payment within 60 days. When the amount surcharged is not paid, the head of that public entity has to institute civil action to recover same. However, if the person surcharged files an appeal against the Disallowance and Surcharge, the Auditor-General is made the statutory respondent to that appeal. However, even this bifurcated enforcement responsibility cannot commence or arise unless and until the Auditor-General has first performed his Disallowance and Surcharge obligations.


The Defendants on their part contended through learned Solicitor-General, Mrs. Helen Ziwu that the Auditor-General has not failed to carry out the constitutional mandate he bears by virtue of Article 187(7)(b) of the Constitution as is contended by the Plaintiffs. The Defendants further argued that the powers of discharge and disallowance vested in the Auditor-General are set out in section 17 of the Audit Service Act, 2000 (Act 584). We therefore deem it appropriate at this stage to set out in detail the provisions of this section 17 of Act 584.

17. Disallowance and surcharge by Auditor-General
(1) The Auditor-General shall specify to the appropriate head of department or institution the amount due from a person on whom a surcharge or disallowance has been made and the reasons for the surcharge or disallowance.
(2) A sum of money specified by the Auditor-General to be due from a person shall be paid by that person to the department or institution within sixty days after it has been so specified.
(3) A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court not later than the expiration of sixty days prescribed in subsection (2).
(4) In accordance with article 187(10), the Rules of Court Committee may, by constitutional instrument, make Rules of Court for the purposes of subsection (3) of this section.
(5) A sum of money which is lawfully due under this section is recoverable, on civil proceedings taken by the head of department in a Court as a civil debt and where the person surcharged is in receipt of remuneration from the Government or an institution, the remuneration shall be attached to the extent of the sum lawfully due.

In other words the roadmap which the Auditor-General is expected to follow whenever he exercises his powers of surcharge or disallowance pursuant to Article 187(7)(b) and section 17 of Act 584 supra are the following:-

(i) The Auditor-General shall indicate to the appropriate head of department or institution the amount due from the person on whom the surcharge or disallowance has been raised and the reasons for it.
(ii) The sum of money indicated by the Auditor-General to be due from a person shall be paid by that person to the department or institution within 60 days after it has been indicated
(iii) An aggrieved person has 60 days from the date of the indication in subsection 2 supra to appeal against the discharge or surcharge made by the Auditor-General.
(iv) The Rules of Court Committee have been mandated under Article 187(10) of the Constitution to make Rules of Court for the actualization of subsection 3 of section 17 of Act 584.
(v) Any sum of money due under this section 17 is recoverable, by civil proceedings taken by the head of department in a court as a civil debt and where the person surcharged is on Government payroll, his salary or entitlements shall be attached to the extent of the sums lawfully due.

The above road map indicates quite clearly that the powers of the Auditor-General in respect of this Surcharge and Disallowance are really extensive and are intended to ensure that any monies that are lost through any of the processes mentioned in Article 187(7)(b)(i), (ii) and (iii) are recovered to the state.


The Defendants summarised their closing arguments very briefly as follows and we wish to quote them accordingly thus:

My Lords, we respectfully submit, in conclusion that the Auditor General’s obligations end when he carries out his statutory mandate as set out in section 17(1) of Act 584 and section 84 of Act 921 and in this regard, it is respectfully contended on behalf of the Defendants that the Auditor-General has from the inception of the 1992 Constitution carried out his statutory mandate of disallowance and surcharge.


The Defendants raised a jurisdictional point against the Plaintiffs writ thus:

The Plaintiff has not made out a proper case which will require this honourable court to make any declarations within the meaning of Article 2(1)(b) of the 1992 Constitution, and it is respectfully urged on this court to dismiss this action.


At the close of pleadings, the following issues were set down in the joint memorandum of issues agreed upon by the parties:

(1) Whether or not the Auditor-General fully discharges his constitutional obligation simply by auditing and pointing out financial irregularities in the accounts of a public entity.
(2) Whether or not the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised are complied with by the public entity or official directly affected by the Auditor-General’s exercise of his power of disallowance and discharge.

After the setting down of the above issues, this court by an order dated 31st January 2017 requested the parties and/or their counsel to file legal arguments in respect of the said two issues.

We observe that the parties have complied with the said orders.

On the 7th of March 2017 this court again directed that further arguments of law be filed by the parties and or counsel in respect of the issue of whether the Plaintiffs have properly invoked this court’s jurisdiction.

We observe that, this order has been complied with only by learned Counsel for the Plaintiffs, Thaddeus Sory. We will therefore proceed to deal with these issues, and since jurisdiction is primary, we will deal with that first.


It is to be noted that Articles 2(1)(a) and (b) and 130 of the Constitution deals with the original jurisdiction of the Supreme Court. Thus the Plaintiffs action in the instant case must be measured in terms of the said provisions of the Constitution.

Out of abundance of caution, these provisions provide as follows:-

2. (1) A person who alleges that
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

In their closing arguments, learned counsel for the Defendants submitted that the Plaintiffs have not made a proper case to require this court exercise it’s jurisdiction in their favour, and urged the Court to dismiss the action.

Predictably, the Plaintiffs anticipated this type of jurisdictional objection and stated as follows in their original statement of case:-

From the facts so far recounted, the Plaintiff’s case falls squarely within the first ambit of the court’s original jurisdiction as classified by the court in the Edusei Case [1998-99] SCGLR 753 at pages 771-772.

What then are the principles in Edusei (No. 2) v Attorney-General referred to supra?

In that case, it was noted by Kpegah JSC that “in determining the scope or extent of this court’s original jurisdiction,” we must read together articles 2 (1) and 130 (1) of the Constitution. And in reading the two articles together, “the courts exclusive original jurisdiction can be said to be in respect of the following situations:
(1) enforcement of all provisions of the Constitution, except those provisions contained in Chapter 5 dealing with Fundamental Human Rights, or
(2) the interpretation of any provision of the Constitution; or
(3) an issue whether an enactment is inconsistent with any provision of the Constitution.”

The Plaintiffs have also filed a response in compliance with this court’s order dated 7th March 2017, on this jurisdictional issue.

The facts of the instant case, which have been extensively stated, fall into categories (i) and (ii) supra. This is because the Plaintiff’s are indeed asking this court to interprete Article 187(7)(b) of the Constitution in a certain direction such that when enforced it will have the desired results that they wish. But the Defendants contend otherwise. Meaning there are rival contentions.

In clear terms, the Plaintiffs are indeed requesting of this court to interprete the mandate given to the Auditor-General in the discharge of his constitutional duties or obligations. Thus, if this court accedes to that request and interpretation, then it will have to follow it with enforcement which will then lead to the Auditor-General issuing a disallowance and surcharge in all the three scenarios mentioned in Articles 187(7)(b)(i), (ii) and (iii) respectively of the Constitution.

We also observe that, the Plaintiffs, anchored their reliefs basically on the constitutional provisions and where necessary provided flesh by reference to the Audit Service Act, 2000 (Act 584) and Public Financial Management Act, 2016 (Act 921). The Defendants on the other hand have relied basically on the said statutory provisions and argued that this court has no jurisdiction.

We have on our part, considered in detail, the facts of this case which admit of no controversies whatsoever.

We have also considered the law and a plethora of decided cases on the subject, such as the following:-

(1) Republic v Special Tribunal, Ex-parte Akosah [1980] GLR 592 which is the locus classicus on the subject-matter
(2) National Media Commission v Attorney-General [2000] SCGLR 1
(3) Aduamoa II v Twum [2000] SCGLR 165
(4) Tuffuor v Attorney-General [1980] GLR 637 SC
(5) Bimpong Buta v General Legal Council [2003-2004] SCGLR 1200
(6) Republic v High Court (Fast Track Division) Ex-parte CHRAJ, (Richard Anane: Interested party) [2007-2008] SCGLR 213
(7) Osei Boateng v National Media Commission [2012] 2 SCGLR 1038, just to mention a few.

We deem it necessary to refer to the observation by our respected Sister, Adinyira JSC in the case of Okudzeto Ablakwa & Another v Attorney-General & Obetsebi Lamptey [2011] 2 SCGLR 986 wherein she stated as follows:-

Article 2(1) of the 1992 Constitution imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provision of the Constitution. This includes the duty to ensure that no public officer conduct himself in such a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that gives reality to enforcing the constitution by compelling its observance and ensuring probity, accountability and good governance.

The matter was recently put to rest by the unanimous decision of the Supreme Court in the unreported judgment of the Court in Emmanuel Noble Kor v Attorney-General and Another, Suit No. JI/16/2015 dated 10th March 2016 in which it was made explicitly clear as follows:-

It will be seen that article 2 of the Constitution is headed ‘Enforcement of the Constitution’ and the ensuing provisions are meant to attain the enforcement of the Constitution. There is therefore express authority in the Constitution itself for the view that the enforcement jurisdiction of this court is a conspicuously independent item of jurisdiction of this court. Indeed, though it will be erroneous to say that a declaratory action cannot be brought within article 2 towards the enforcement of an ambiguous provision of the Constitution, it appears that while the enforcement purpose of that article is clear on the face of its provisions, its interpretative purpose is comparatively latent.

Based on the above decisions and the principles of law decided therein, we have no doubts whatsoever in our minds that the plaintiffs have properly invoked the original jurisdiction of this court, and this court must therefore give them a hearing in line with the principles of law stated therein.

The objection on grounds of jurisdiction is thus dismissed.

This then requires us to consider the two issues set out in the memorandum of issues.


The Constitutional and Statutory mandate of the Auditor-General in respect of the public accounts of Ghana as defined in article 187(2) of the Constitution are well stated not only in the Constitution, but also in the Audit Service Act, 2000 (Act 584) and the Public Financial Management Act, 2016 (Act 921) respectively.

For example, the constitutional obligations of the Auditor-General include the following:-

(1) to audit and report on the public accounts of Ghana and of all public offices. – Article 187(2)
(2) to within six months after the end of the financial year prepare a report of his audit and lay same before Parliament drawing attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament reference. – Article 187(5).
(3) to audit any public office upon the request of the President acting with the advice of the council of State reference. – Article 187(8).
(4) to exercise his Disallowance and Surcharge obligations in respect of irregularities he discovers in the performance of his functions under the Constitution or any other law. – Article 187(7)(b).

It is to be noted that, these constitutional obligations even though exist separately, some can only be triggered by the performance of others. For example the Auditor-General must conduct an audit into the public accounts of Ghana before he can prepare a report to Parliament. Similarly, there must also be an audit by the Auditor-General into the public accounts before there can be any Disallowance and or Surcharge.

However, it is possible for the Auditor-General to perform the audit into the public accounts of Ghana, prepare a report and lay same before Parliament without any irregularities detected. But it is not automatic that there must be a Disallowance and Surcharge arising from every such report. These are only triggered when the report discloses irregularities in the public accounts audited.

Thus, the constitutional obligation in Article 187(7) on the Auditor-General to exercise his mandate of Disallowance and Surcharge in the manner stated are only invoked against those persons responsible for incurring the liabilities which have led to the occurrence of the events listed in Articles 187(7)(b)(i), (ii) and (iii) supra of the constitution.

Furthermore, if we consider the statutory interventions in Acts 584 and 921, then it becomes very clear that the Auditor-General’s constitutional mandate in auditing the public accounts of Ghana far exceeds the task of auditing and pointing out the irregularities in the accounts of a public entity.

When one considers in detail, the effect of section 20(2) of Act 584 referred to, elsewhere in this rendition, then it becomes crystal clear that the Auditor-General, quite apart from conducting an audit into the public accounts of Ghana and preparing a report for Parliament and drawing attention to irregularities, and the matters stated therein, must definitely trigger his powers of Disallowance and Surcharge obligations, whenever these irregularities exist.

We are therefore of the considered view that the statement by the learned Counsel for the Defendants that, section 17 of Act 584 only mandates the Auditor-General to issue management letters as indicated in exhibits AG1 to AG4 is untenable.

This is because, a careful reading of section 17 of Act 584 referred to supra, gives very clear indications that the provisions therein stated are to be procedural steps that the Auditor-General is mandated to pursue in his quest to fulfill the Discharge and Surcharge obligations imposed upon him under the Constitution.

What is worthy of note is that, the 4th Republican Constitution has been anchored on the principles of Freedom, Justice, Probity and Accountability and the recognition that the powers of government spring from the sovereign will of the people based on the concept of universal adult suffrage and rooted on the principle of Rule of Law, the protection and preservation of fundamental human rights among others as stated in the preamble to the Constitution.

When we juxtapose these principles against the powers of the Auditor-General in Article 187(7)(b) and Acts 584 and 921 respectively, it becomes very clear that adequate measures have been put in place to afford any person against whom the Attorney-General has exercised his powers of surcharge and disallowance to avail himself of the due processes in the High Court to vindicate himself, whilst at the same time ensuring that the public accounts of the state are duly protected.

That fundamental right in section 17(3)p of Act 584 which enables an aggrieved person against whom a Disallowance and Surcharge had been made by the Auditor-General to within 60 days appeal to the High Court is in itself a recognition of the fact that, failure by an aggrieved person to take those steps can lead to the disallowance and surcharge being enforced without more. This enforcement can lead to the attainment of the principles of probity and accountability enshrined in the Constitution.

We are further emboldened by the views we have expressed in this judgment when we refer to the views of the then Auditor-General in Exhibit OG2, attached to these proceedings which are the proposals of the Auditor-General for amendment of the Constitutional provisions of the office of the Auditor-General.

For example on page 16 of the proposals, under the heading Issues and Comments are the following:-

The provisions of Article 187(7)(a) & (b) should be maintained and enforced.

The independence of the Auditor-General from the direction or control of any person or authority is a key requirement under INTOSAI’s Auditing standards. The office of the Auditor-General has received adverse comments from Development Partners who have invested in the national budget and also from Parliament for not actively introducing measures to implement the provisions on surcharge and disallowance.

From the above, it is clear that the Auditor-General has recognized the need to maintain and enforce the provisions in Article 187(7)(a) & (b) supra and also implement and enforce the provisions on surcharge and disallowance.

There is also a tacit recognition by the Auditor-General that the provisions on disallowance and surcharge must be maintained. The problem if any is the erroneous impression in the mind of the then Auditor-General that the said powers are discretionary in nature and that perhaps that he needed more legislation to carry out this disallowance and surcharge mandate. If this be it, then it is untenable.

The memorandum to the Interpretation Act, 2009 (Act 792) states in part as follows:-

In essence the Constitution must be construed or interpreted in a manner
(a) that promotes the rule of law and the values of good governance,
(b) that advances human rights and fundamental freedoms
that permits the creative development of the provisions of the Constitution and the Laws of Ghana, and
(c) that avoids technicalities which defeat the purpose of the Constitution and of the ordinary law of the land.

The Chambers, 21st Century Dictionary, Revised Edition, defines “disallow” on page 379 as follows:-

verb – to formally refuse to allow or accept something (2) to judge something to be invalid – disallowance – noun.

The same dictionary on page 142 defines “surcharge” as follows:-

an extra charge, often as a penalty for late payment of a bill.

When we consider the meanings ascribed to these words in the context in which they have been used in article 187(7)(b) of the Constitution then there seems to be no doubt whatsoever that, what the words actually mean is that, the Auditor-General will formally refuse to accept or allow any item of expenditure that is contrary to law etc.

Having refused to accept or allow the expenditure as being contrary to law, the Auditor-General now proceeds to impose an extra charge as penalty for the retrieval of the amount or expenditure that he has refused to allow or accept, because it was contrary to law.

Furthermore, Article 34(1) which deals with the Directive Principles of State Policy provide thus:-

The Directive Principles of State Policy contained in this chapter, shall guide all citizens, Parliament, the President, the Judiciary the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking or implementing any policy decisions, for the establishment of a just and free society.

The above provisions are a clear injunction on the Judiciary to bear the above in mind when interpreting the Constitution. There is thus no room for us as a Judiciary to be pedantic in dealing with issues of constitutional interpretation. This is especially so when in Article 37(1) of the Constitution, (which also includes the provisions on the Directive Principles of State Policy). It is directed that, “the state shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in chapter 5 of this Constitution.”

All constitutional interpretations must therefore bear the above provisions in mind. This is especially so when we consider provisions requiring compliance with upholding of the tenets of probity and accountability vis-à-vis the work of the Auditor-General in protecting the public purse for the public good.

On the basis of the above, the nature of the Constitution as the basic law of the land and therefore requiring pride of place has been recognized in Article 11(1) of the Constitution.

At this stage, it is useful to refer and remind ourselves of the fact that the Constitution itself in Article 11(1)(a) has given pride of place to the Constitution as the Grundnorm, that is to say it is at the apex, of the laws of Ghana. This therefore means that the constitutional provisions in Article 187(7)(b) take precedence over any other laws, and must therefore be regarded in that position.

In our opinion therefore, the mandate of the Auditor-General in exercising his constitutional obligations in Article 187(7) of the Constitution does not end simply by the performance of same and issuing a report on the irregularities in the accounts of a public entity, but goes beyond it to include the powers of Disallowance and Surcharge which we will consider next.


We have been persuaded by the submissions of both learned counsel for the parties herein that, apart from the constitutional provisions in Article 187(7)(b) supra, which is applicable to the circumstances of this case, the other relevant statutes are sections 17(1) of Act 584 supra and sections 85(1) and 88(1) respectively of the Public Financial Management Act, 2016 (Act 921) which provides as follows:-

85. (1) A Principal Spending Officer shall, on an annual basis, submit the following to the Minister and Auditor-General:
(a) a report on the status of implementation of recommendations made by the Auditor-General in respect of that covered entity; and
(b) a report on the status of implementation of recommendations made by Parliament in respect of that covered entity.
(2) The Attorney-General shall, on an annual basis, submit a report on the status of any action commenced on behalf of the Government to the Minister, Auditor-General and Parliament following findings of the Auditor-General and recommendations of the Public Accounts Committee of Parliament.

88. (1) An Audit Committee shall ensure that the head of a covered entity, to which the Audit Committee relates,
(a) pursues the implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management Letter; and
(iv) the report of an internal monitoring unit in the covered entity concerned particularly, in relation to financial matters raised; and
(b) prepares an annual statement showing the status of implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management letter;
(iv) the report on financial matters raised in an internal monitoring unit of a covered entity; and
(v) any other related directive of Parliament.
(2) An annual statement required under subsection (1) (b) shall
(a) indicate the remedial action taken or proposed to be taken to avoid or minimise the recurrence of an undesirable feature in the accounts and operations of a covered entity;
(b) indicate the period for the completion of the remedial action; and
(c) be endorsed by the relevant sector Minister and forwarded to the Minister, Parliament, Office of the President and the Auditor-General within six months after the end of each financial year.

A perusal of the Constitutional provisions in Article 187(7)(b) and statutory provisions referred to supra, makes it quite clear that the bifurcated or two-pronged enforcement regime argument put up by the Plaintiffs in their statement of case is not only borne out by the relevant provisions referred to supra, but also prudent, designed to the encouragement of probity and accountability in the management of public accounts.

In the first procedure, the public entity against whom the irregularity has been made is required to take steps to collect or retrieve the amount from the person who incurred the liability and has been surcharged.

The second stage is where the person surcharged does not pay the amount and the provisions in section 17 of Act 584 supra are triggered.

As already stated supra, section 17(1) of Act 584 stipulates that it is to the head of the public entity that the Auditor-General shall specify the requirement to collect any amount due from the person on whom a surcharge or disallowance has been made and the reasons therein contained.

As stated supra, the roadmap that is envisaged by the section 17(1) provision of Act 584 has been indicated. This roadmap has recently been given a further boost by the enactment of the High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C. I. 102) which are Rules of procedure enacted by the Rules of Court Committee to further amend the High Court (Civil Procedure) Rules, 2004 (C. I. 47) by the insertion after Order 54 of the following new Order on “Disallowance and Surcharge Appeals).” The enactment of C. I. 102 makes it quite certain that the powers of the Auditor-General under Article 187(7) of the Constitution are to retrieve from persons who have caused loss of public funds in their management of same which is contrary to law. The law speaks for itself and there can be no turning back on this.

However, where the person surcharged files an appeal, Order 54A rule 2(7) and (8) of C. I. 47 constitutes the Auditor-General into the respondent to the appeal, as follows:-

For the purposes of the appeal, the Auditor-General is the respondent.

This makes it quite apparent that, following the Auditor-General’s exercise of the Disallowance and Surcharge, the bifurcated approach is triggered. It should also be noted that, there can be no such bifurcated approach to retrieve the sums of money so specified unless and until there has been a disallowance and surcharge.

Furthermore, section 88(1) and (2) of Act 921 puts the matter beyond doubt by stipulating the various steps that the head of the entity covered is expected to take in order to ensure the implementation of the Auditor-General’s recommendations as contained in his management reports and final report on financial matters.

Section 85(1)(a) and (b) on the other hand directs the Principal spending officer to submit on an annual basis, the following:-

(1) A report on the status of the implementation of the Auditor-General’s report.
(2) A report on the status of the implementation of the report of the Auditor-General made by Parliament in respect of the entity covered.

In our considered opinion, in interpreting the constitutional provisions referred to in Article 187(7)(b)(i), (ii) and (iii) supra, we also have a duty to look at all the subordinate legislations which have been enacted to practicalise the harmonious effect of the constitutional provisions. These include the following:-

(1) Audit Service Act, 2000 (Act 584)
(2) Audit Service Regulations, 2011 (C.I. 70)
(3) Public Financial Management Act, 2016 (Act 921)
(4) High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C.I. 102)

Perusal of the relevant sections of Act 584 and 921 supra, and the overriding philosophical underpinnings of the 4th Republican Constitution in its preamble, make it quite clear that the said constitutional provision on the powers of Disallowance and Surcharge of the Attorney-General must be enforced.

We reckon the fact that, the stipulations in articles 187(2), (3), (4), (5) and (6) of the Constitution has the operative word “shall”, and this is mandatory.

However, when it comes to the vexed issue of the Disallowance and Surcharge, provisions as used in Article 187(7)(b) the operative word is “may”.

Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions therein specified will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.

It is to be noted that, the general rules for construction or interpretation that we have become so familiar with were formulated by Judges and crystalised into rules and principles of interpretation.

See for example the mischief rule which was enunciated in Heydon’s case [1584] 3 Co. Rep 7a76 E.R. 637, the Literal Rule which was propounded in the Sussex Peerage case [1844] 11 Co. & E 85, 8 E.R. 1034, the Golden Rule enunciated in the Grey v Pearson [1857] 6. H.L.C 61, 10 E.R. 1216.

The courts in the commonwealth then moved to the now in vogue Purposive Approach. Judges in Ghana and elsewhere in the Commonwealth, have where it is considered appropriate abandoned the strict constructionist view of interpretation in favour of the purposive approach to interpretation which per Atuguba JSC in his opinion in Re Presidential Election Petition, Akufo-Addo & 2 others (No. 4) v Mahama & 2 Others (No. 4) 2013 SCGLR (Special Edition) 73 at page 111 where he stated that

the purposive approach has been enthroned in the Supreme Court as the dominant rule for the construction of the Constitution.

See also the Supreme Court case of Agyei Twum v Attorney-General & Akwetey [2005-2006] SCGLR 732 at 757 where the court adopted the purposive approach to interpretation of the Constitution.

See also Ransford France No. 3 v Electoral Commission & Attorney-General [2012] 1 SCGLR 705 at 718 where the court rejected a literal interpretation that was urged upon it in favour of a purposive approach claiming that a literal interpretation would lead to grave injustice.

It is in this respect that we feel the entire provisions of Articles 187 to 189 on the Auditor-General and the Audit Service must be read as a whole. If that is done, then the intended effect of the work of the Auditor-General which is to ensure that public funds or accounts are handled by safe hands, and that whenever losses of any kind contemplated in Article 187(7)(b) occur, those responsible are identified and duly punished. This must be measured against the background of the fact that the practicalisation of the work of the Auditor-General will ensure that there is probity and accountability in the management of state funds. This will no doubt prevent the wanton dissipation of state resources that are meant for specific projects and activities under the Government’s fiscal policies.

This therefore means that there should be no loss to the state or public in the management of state resources.

At this moment, we think judicial notice can be taken of the fact that corruption, abuse of position and embezzlement of public funds among others has become the bane of our governance structures. Reference is made to the various Auditor-General’s Reports attached to these proceedings. It is our opinion that, notice must be taken of the rampant carelessness that is often times employed by those in charge of public funds in most entities.

We believe that the time has come when it is necessary to strengthen the relevant constitutional bodies set up under the Constitution such as the Auditor-General to protect the public purse from persons who intend to embark upon personal economic recovery programmes with the public funds.

We are also of the view that, the Auditor-General is expected to name the persons who commit irregularities etc, under Article 187(7)(b) and section 17 of Act 584 respectively, recover the amounts from them and thereafter those persons be made to face appropriate punishment. That should be the way forward.

We therefore have a duty to ensure that the reports of the Auditor-General into the public accounts of Ghana wherein findings are made in respect of persons who act in authorizing expenditure contrary to law, or have withheld sums of money from the public account or by whose negligence or misconduct losses or deficiencies to public funds has resulted, must be treated in accordance with the Constitution and laws of Ghana, and have an immediate impact.

“To be or not to be, that is the question,” reference Shakespeare in Hamlet, Prince of Denmark.

Should this court hold and rule that, because the word “may” has been used in Article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of surcharge and disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?

We have been privileged to have been given access to the training materials used by the Auditor-General on March 23rd 2006 in a presentation by the then Auditor-General Mr. Edward Dua Agyemang, at a seminar on public accounts management, among others, on the topic “Public Expenditure Monitoring and Tracking – The Role of the Auditor-General” attached to these proceedings as Exhibit OG1.

We find these materials quite appropriate, and revealing. Since they also conflict with the stance of the Defendants in these proceedings, we deem it appropriate to refer to some of them as per Exhibit OG1.

Powers of surcharge and approval of systems

In the course of monitoring public expenditure, the Auditor-General has been given a unique power of surcharge by the Constitution and the Audit Service Act. Article 187(7)(b) of the Constitution requires that the Auditor-General may disallow any item of expenditure, which is contrary to law and surcharge.

Any person against whom a surcharge has been raised by the Auditor-General has the power of appeal against the surcharge in the High Court.

So far this power has not been invoked against public officials because they are given the opportunity to rectify financial lapses resulting in delayed accountability.

However, because of the escalation in cash irregularities by 99.5% in 2004 involving presented payments vouchers and unacquitted payments, the Auditor-General will invoke his powers of surcharge against responsible officers for such serious compliance violations in 2006. This robust sanction will hasten and deepen accountability in the country.

The combined effect of the above is that, as at March 2006, the office of the Auditor-General recognized the fact that the way to protect the public funds of Ghana, and prevent looting of the public purse, avoid corruption and dictatorship is to practicalise the constitutional provisions on the powers of surcharge and disallowance, granted the Auditor-General under the Constitution 1992.

However, this resolve to exercise this power from 2006 has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

We do not substitute the views of the Auditor-General in those presentations for our constitutional mandate in interpreting and enforcing the constitutional provisions in Article 187(7)(b) as we are required to do. We have only done the references in order to let it be known that, this was the thinking of the Auditor-General in 2006 on these vexed issues.

We also wish to refer to the locus classicus case of Tuffour v Attorney-General [1980] GLR 637. Even though the facts of this case are well known, suffice it to be stated briefly as follows:-

The Plaintiff therein, filed a writ against the Speaker and Attorney General under Section 3 of the first Schedule to the Constitution 1979 for a declaration as follows:-

(1) On the coming into force of the Constitution the Hon. Mr. Justice Apaloo was deemed to have been appointed as Chief Justice and also as President and member of the Supreme Court.
(2) The application of the procedure in article 127(1) to him and his purported vetting and rejection by Parliament were in contravention of the Constitution.
(3) That Justice Apaloo remained Chief Justice and President of the Supreme Court.

Sowah JSC (as he then was) in delivering the judgment of the court, made some pronounced and notable statements regarding the nature of a written constitution such as this 4th Republican Constitution and how it also mirrors the history of the people of Ghana. Out of abundance of caution, we wish to refer to the relevant portions of that judgment.

This has been done with a view to illustrating how Constitutional provisions can be interpreted to achieve the special architecture designed to ensure a proper equilibrium in the governance structure aimed at probity, accountability and transparency. Without these values, all is vanity in our quest for a control mechanism of our public funds or accounts. He states:-

A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.

The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect. Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):

‘For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing ? If the whole were hearing, where were the smelling…? But now are they many members, yet but one body.’

And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.

When we put all the learning in the above quotation together, the “may” in Article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of Article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same.

We reckon that, it is in the pursuance of these noble objectives that the Rules of Court Committee has enacted C. I. 70 and also C.I. 102 both referred to supra.

The rationale for the above is to give teeth to the constitutional and statutory mandate of the Auditor-General’s powers on Disallowance and Surcharge to bite.

In their respective submissions, learned counsel have variously referred to and relied on Audit observations and management letters.

In essence, whilst the Defendants concede that the Auditor-General has this constitutional power or mandate of surcharge and disallowance, they argue that, the duty of the Auditor-General ends with the submission of his report. They contend further that, action on the Auditor-General’s reports are to be implemented by other statutory bodies. These are the Audit Committee’s established under the Public Financial Management Act, 2016 (Act 921), section 85 (1) of which deals with the report and recommendations of the Auditor-General by the principal spending officer of that entity in relation to his dealings with the Auditor-General and Parliament respectively.

On the other hand, sections 86 to 88 of Act 921 deals with the Establishment of Audit Committees by various entities, the composition of the membership of such committee’s and the functions of the said Audit Committees respectively.

Section 88(1) of Act 921 has already been referred to supra. The crux of the provisions therein contained indicate that, in all cases;
(1) The Audit Committees are to pursue the implementation of any recommendation contained inter alia, in the Auditor-Generals report, as decided upon by Parliament, and the Auditor-General’s management letter and
(2) To prepare an annual statement showing the status of implementation of any recommendation contained in the Auditor-General’s report on
(a) Parliament’s decision on the Auditor-General’s report and
(b) Auditor-General’s management letter, among others.

What is to be noted is that, all the above requirements and procedures are statutory, based on Acts 584 and 921 respectively as well as the Audit Service Regulations, 2011 respectively. However, the Auditor-General’s powers of surcharge and disallowance are constitutional and therefore have to be on a higher pedestal and given pride of place.

When we consider the combined effect of Regulations 34, 35, and 57 respectively of the Audit Service Regulations, 2011 (C I. 70), which deals with Audit observations and reporting, consequences of not responding to an audit observation and issue of management letters after completion of an audit assignment respectively, it becomes very clear that these roles and functions are different in scope and magnitude from the Auditor-General’s report envisaged and stipulated in Articles 187(2) and (5) respectively of the constitution.

Whilst management letters are issued by Branch and sectoral heads within two weeks of an audit assignment, containing their findings, recommendations and conclusions of their assignment to the management of the entity and copied to the officials and the organisations, that of the Auditor-General is wider in scope as it is submitted to Parliament and has far reaching effects and consequences as is stipulated in Articles 187(7)(b) of the Constitution.

Audit observations per Regulation 34(1) of C.I. 70 on the other hand are formal audit observations issued at an audit location in the course of the audit. In this respect, the audit team is enjoined under Regulation 34(2)(a) & (b) of C.I. 70 to take steps to discuss with the audited organization the findings and recommendations arising from the audit and also obtain written responses from the audited organization. Thus these activities occur at a lower level and earlier stage of the process which culminated in the Auditor-General’s report submitted to Parliament.

It is thus therefore quite clear that Audit observations, and Management letters are different in context, scope and magnitude from the Auditor-Generals’ report as stipulated in Article 187 referred to supra.

From the above discussions, it is quite apparent that the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised by him under Article 187(7)(b) of the Constitution are complied with by the public entity or officials directly affected by the exercise of his powers of surcharge and disallowance.


In the premises, it is our considered view that using the principles of interpretation so eloquently and powerfully explained in the decision in the case of Tuffour v Attorney-General, supra and the purposive approach to interpretation generally, this court will interprete Article 187(7)(b) as having a mandatory effect in so far as the Auditor-General’s report is final.

In the premises, the Plaintiffs succeed in their claims against the Defendants in respect of reliefs 1, 2, and 3 as follows:-

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law.
(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account.
(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person.

Reliefs 4 and 5 are granted in their entirety against the Defendants.


As a sequel to our judgment just delivered, we further direct that, henceforth, the Auditor-General shall take steps to recover the amount unlawfully expended from the person or persons who incurred and or authorised the disallowed expenditure.

Secondly, the Auditor-General shall also take steps to recover the amount from the person or persons by whom the amount ought to have been brought into account.

Thirdly, the Auditor-General shall also take steps to recover the value of the loss or deficiency from the person or persons by whose negligence or misconduct the losses or deficiencies were incurred, (whether or not the person is a public servant).

Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General supra to ensure compliance including in some cases criminal prosecutions.

We have had to issue out the above consequential orders even though we are happily aware that the current Auditor-General Mr. Daniel Yao Domelevo has taken steps to train his staff under C. I. 102 to prepare them adequately for the hearings in respect of the surcharge and disallowance appeals anticipated under article 187 (7) of the Constitution.


Quoting again from the presentation by the then Auditor-General, Mr. Edward Dua Agyemang, attached to these proceedings by the Plaintiffs as exhibit OG1, which we have already referred to supra, the Auditor-General concluded that presentation as follows:-

Let me conclude by saying that whenever people get a choice between privacy and accountability, they tend to choose privacy for themselves and accountability for everyone else. But accountability and good governance are inextricably interrelated with each other. Take away accountability from good governance and you will be left with dictatorship and corruption.

For accountability to thrive there is the need to have effective monitoring and tracking of public expenditure by the Auditor-General. The success in this endeavor depends on strong political will to adequately resource the Auditor-General to be able to hire and maintain properly trained staff and professionals; acquire the needed equipment and other resources.

The growing interest of the public in the work of the Auditor-General has demonstrated the important contribution the Auditor-General makes in helping our nation spend wisely through expenditure surveillance. The Auditor-General provides assurances to the people of Ghana through Parliament that public money is spent properly and that there is accountability.

From the above, what is apparent is that, there is an urgent need to adequately resource not only the office of the Auditor-General, but also that of the other constitutional bodies like the Judiciary, CHRAJ and Attorney-General, just to mention a few, who are the front runners in our fight against corruption. This will ensure that the impact of these constitutional bodies in our quest to ensure probity and accountability thereby enhancing proper management and control of public funds is put on a higher pedestal.

We believe that as a nation, we have reached a critical stage in our governance systems where we must not shy away from spending wisely in order to superintend the public purse. This is the only sure way to ensure that the good governance principles enshrined in the Constitution such as Article 187(7)(b) are not lost.

There is an old adage which states as follows “penny wise, pound foolish”. We therefore must adequately fund these constitutional bodies including the Auditor-General to ensure maximum protection of the public funds.

Save as is stated supra, the Plaintiffs succeed substantially on their claims against the Defendants.









March 2nd, 2016

By Ace Anan Ankomah & Susan-Barbara Adjorkor Kumapley

Parliament intends to pass the Interception of Postal Packets & Telecommunications Bill (“Bill”) into law. The conception of this Bill is just another evidence of the fact that several democracies are struggling to maintain a delicate balance between the prevention of crime on the one hand, and the protection of the privacy of correspondence and communications on the other. Although every government would desire to have unfettered access to private communications, the concept of Rule of Law demands that they pit that desire against the fundamental right of the individual to privacy.

We agree that it is important to have a law that regulates the interception of private correspondence or communication, which balances the right to privacy against the need for interception of communications. This Bill is significant to the extent that for the first time, at least, there is an attempt to consolidate Ghana’s laws on interception. As at now, one has to look at about six statutes to ascertain the nature and scope of the power to intercept. To that extent, and that extent alone, the Bill is welcome.

Our Constitution demands this balance between respecting the right to privacy and lawful interception. In the preamble, “We The People” solemnly declare and affirm our commitment to the “Rule of Law,” which simply means that we agree to restrict the arbitrary exercise of power by subordinating it to well-defined and established laws. Article 18(2) specifically prohibits interference with the privacy of “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 wellbeing 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” [Emphases ours.] Thus the right to privacy, like most other human rights, is not absolute but is subject to constitutionally circumscribed limits, and only those.

Our Article 18(2) is not novel. It is a near-verbatim reproduction of Article 8(2) of the European Convention on Human Rights, which provides that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” [Emphases ours.]

In the 1984 case of Malone v. The United Kingdom, the European Court on Human Rights applied Article 8(2) of the European Convention in examining the lawfulness of the tapping of Mr. Malone’s telephone calls. It found that although the tapping had been ordered following a warrant issued by the Home Secretary on suspicion that Mr. Malone was involved in some criminal activity, and such warrant had been issued in accordance with UK law, the law in question did not contain adequate safeguards. The Court held that the phrase “in accordance with law” looked not only to having law but the quality of the law: it must be compatible with the rule of law, and must contain protection against arbitrary interferences. The Court held that it was contrary to the rule of law if the discretion granted was expressed in terms of an unfettered power. Consequently the law must indicate, with sufficient clarity, the scope and manner of exercise of the discretion, “having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” Interference, the court held, could only be regarded as “necessary in a democratic society” if the particular system of secret surveillance adopted contained adequate guarantees against abuse.

Soon after this decision, the UK passed the 1985 Interception of Communications Act, and in 2000, passed the Regulation of Investigatory Powers Act in response to rapid changes in telecommunications. In 2009, the UK also passed into law, a 2006 EC Directive whereby communications service providers were required to retain communications data for a year; but the European Court of Justice declared the 2006 Directive invalid in April 2014. In response to the resulting uncertainty, the UK introduced the 2014 Data Retention and Investigatory Powers Act. A 2012 draft Communications Data Bill did not survive pre-legislative scrutiny and criticism. Derisorily called the “Snooper’s Charter,” it was opposed by the Liberal Democrats and was not taken forward in the 2012-13 session.

What is apparent is that even European democracies are still struggling to attain a balance between interception and the right to privacy. Also, we know that governments push to have fewer restrictions to interception, but the courts have stepped in to protect and uphold the right to privacy. The reasoning of the Court in Malone v. The United Kingdom remains pristine and unassailable. And for Ghana, one thing stands clear: any law that gives to any public authority even a shred of unfettered discretion to intercept for any period, should not stand the Article 18(2) test.

Currently, in Ghana, interception is prohibited and criminal unless permitted expressly by law. However, interception is permitted under various provisions of the Security and Intelligence Agencies Act, EOCO Act, Narcotics Control Act, Electronic Communications Act (ECA), the Mutual Legal Assistance Act, and to some extent, the Electronic Transactions Act. All of these Acts are unanimous: there should be no interception without a court order/warrant. Additionally, and under the ECA, the President may authorise or demand interceptions but only through the deliberate process of issuing an Executive Instrument (EI). And, the phone companies may intercept, but for strictly specified industry purposes, which do not include disclosure to third persons. All of these circumstances, in our view, are apt, and fit into the constitutional exceptions to the right to privacy by providing necessary safeguards against abuse, namely, (i) securing a court order/warrant, (ii) passing an EI or (iii) complying with strict legislative controls.

It might be recalled that when the government proposed to install some mechanism to ostensibly monitor incoming international phone traffic and generate revenue, the government was compelled by a public outcry to pass an amendment to the ECA that ensured that the equipment installed “shall not have the capability to actively or passively record, monitor or tap into the content of any incoming or outgoing electronic communication traffic, including voice, video and data existing discretely or on a converged platform whether local or international.” That was right and in sync with Article 18(2).

Thus the Bill is significant in four main ways:

1. It changes the current position where a court order/warrant is required before interception, so that in cases of “urgency” the National Security Coordinator may orally authorize interception and has 48 hours to go to court (See clause 4(3) and (4));

2. It repeals the power of the President to order interception through EI’s;

3. There appears to be an indirect amendment of the other laws that have interception provisions so that now, a public officer who wants an interception warrant even from a Justice of the High Court has to first apply to the National Security Coordinator for an authorisation to obtain the warrant, and may get that for 48 hours before applying to the court (See clause 5(1)); and

4. Telecommunication network operators will now have an obligation to ensure that their networks have interception capability (see clauses 14 and 15), and are required to bear the cost of that capability (see clause 17).

The relevant questions then are as follows: what is broken with the existing legal situation that needs to be fixed by the new Bill? Is there a problem with seeking a court order/warrant before interfering with our right to privacy? Why is the requirement that the President needs an EI to authorise interceptions being removed? These questions, to us, have not been answered and cannot be answered. Simply put, it appears that the main aim of this Bill is to overreach the requirements for a court order/warrant or an EI, as the case may be, by giving the National Security Coordinator the power to authorise interception for 48 hours without any of these fetters.

What this means is that the National Security Coordinator, a person appointed by the President and who reports to the President, can intercept your correspondence/communication, listen to your phone calls, and read your letters and text messages, for 48 hours without any independent checks and balances, or guarantees against abuse; and he can simply avoid going to court by terminating the interception before the 48 hours is over. Then he can, arguably, resume the interception for another 48-hour cycle. There is no one to check to see what he is going to use that for because the Bill removes the legislative check captured in the EI requirement, and defers (potentially indefinitely) the judicial check in seeking a court order/warrant.

It is our considered view that this effectively unchecked and definitely arbitrary use of executive power, whether or not backed by law, is dangerous and should not be countenanced. No public official should have or be trusted with unfettered access to private communication, even for a minute.

Parliament should look at the existing acts, particularly the EOCO, Mutual Legal Assistance, and Security and Intelligence Agencies Acts, and the conditions for interception that Parliament itself has enacted in those laws, and what the interceptor has to show to the court to obtain the order/warrant. Further, these laws properly provide for an arbiter (especially because the person to be monitored will not – and should not – know what is happening), the judge, who will vet the grounds to see that they have sufficient bases, and if satisfied, grant the order/warrant on whichever terms that the judge would deem proper, including time limits. This should be retained.

The law as it exists, in our view, is adequate and has the key quality (the role or intervention of the judge), which makes it compatible with the rule of law and an allowable qualification to the right to privacy. There is nothing wrong with maintaining this quality and we are yet to hear any arguments that state that our judges are not competent to vet any attempt to intercept, before it happens. Relegating the role of the judge to a lower status that could be easily circumvented by simply never showing up in court is wrong and clearly unconstitutional.

It is hoped that the sponsors of this Bill will bear these matters in mind and take steps to amend it so as to reinstate the primary, critical and ab initio role of the courts. If they do not, we hope that our parliamentarians will be brave enough to amend it or vote it down. If Parliament fails and passes it in its current state, then we have to hope for a constitutional challenge before the Supreme Court. Hopefully, the apex court will not fail the people of Ghana.

Some have asked, “Why bother, when you have nothing to hide?” Our response is to quote the famous saying attributed to Benjamin Franklin, one of America’s founding fathers and whose head adorns the $100 bill: “Justice will not be served until those who are unaffected [by injustice] are as outraged as those who are.”

Why Ghana, unlike the UK and US, does not need a Right to Information Act

February 19th, 2016

The U.K. does not have a written constitution. The right to information is therefore guaranteed by and in statutes passed by Parliament such as the Freedom of Information Act, 2000.

In the US, its Supreme Court has held in Houchins v. KQED, 438 U.S. 1 (1978) that neither the First nor the Fourteenth amendments “mandates a right of access to government information or sources of information within the government’s control,” nor do they grant the media a right of access that is greater than the public’s right of access, and that although there were Supreme Court cases that upheld First Amendment rights to communicate information, those cases did not construe the First Amendment as providing a right to obtain information from the government.

And as recently as 2013, the Supreme Court stated in McBurney v. Young, 133 S.Ct.1709, 1718 (2013) that it “has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOI[Act] laws.”

But Ghana beats a different path and sings a different (more melodious) tune. Article 21(1)(f) of the Constitution provides specifically as follows: “All persons shall have the right to… information, subject to such qualifications and laws as are necessary in a democratic society.”

In the recent case of In Re Presidential Election Petition; Akufo-Addo & 2 Others v. Mahama & 2 Others (No. 3) [2013] SCGLR (Special Edition) 61, the Supreme Court, speaking by Sophia Adinyira JSC stated emphatically that all persons have a right to information, from which is inferred a right to be given access to public documents. Her Ladyship stated specifically as follows: “This Court affirms the right of all persons to information, as expressed in Article 21(1)(f) of the Constitution, 1992. This right to information implies a right to access public documents.”

In the more recent case of Justice Paul Uuter Dery v. Tiger Eye PI & 2 Ors. [4/2/2016] Writ No. J1/29/2016, the court was called upon to comment on the right of the people to information, vis-à-vis the constitutional right of a judge to the confidentiality of proceedings to remove him from office under Article 146(8) of the Constitution. The Supreme Court, speaking by Bennin JSC, held that although the confidentiality provisions operated as a “constitutional injunction” on the right of the public to information, it only applied from when a removal petition is submitted to the President to when the work of the investigation committee was concluded. Thereafter, the right of the people to information must be upheld and respected. His Lordship explained as follows: “Once the Committee’s work is concluded and it has submitted its report, the constitutional injunction no longer applies… The public is not completely denied the right to know, but not before a prima facie case has been made by the Chief Justice or the committee has completed its work and submitted its report, whichever of these terminates the proceedings. The rights of the people were merely postponed for a time…”

In the earlier case of New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354, Francois JSC described an attempt by a public body (in that case, a media agency, but the principle applies to all public bodies) to withhold information from the public as “reprehensible” and a “wilful violation of the Constitution.” He said: “It would seem therefore that where a media created as a public agency, to secure for the citizens of this country information, rather withholds it, contrary to the abjuration in Articles 163 and 21(1)(f) of the Constitution, 1992, it is wilfully violating the Constitution.”

It is therefore clear that all the ink, time and money that has been spent by government and NGOs on the so-called Right to Information Bill has been a waste of time, energy and resources and probably a subtle effort by the governors to deny the governed a constitutionally guaranteed right to information under the guise of passing a Bill to that effect. Surely, if the governor had good intentions to pass this Bill (superfluous as it may be), it would not take nearly a quarter of a century, since the Constitution was passed, to enact the Act.

This is my view:

Absent any strict constitutionally or legally permitted limitation, qualification or derogation, the right of the citizen to public information is absolute and must be respected.


October 13th, 2015

*By Ace A Ankomah (First published in the Daily Graphic Newspaper in March 2014)


It is a contempt of Parliament
(a) for a person to endeavour, by means of bribery, fraud or the infliction or threatened infliction of violence, restraint or spiritual or temporal injury, to influence a Member [of Parliament] in the performance of functions…
(c) for a Member to accept, or procure for personal gain or for any other person, a benefit in return for undertaking to perform any of the functions of the Member in a particular manner or by reason of anything done or omitted to be done by the Member in the performance of functions.
Parliament Act, 1965 (Act 300), section 27(2)

By far the most topical and potentially explosive issue in Ghana today is the news report, carried on the front page and page 3 of the Daily Graphic of 10th March 2014, that the former Minority Leader, former Majority Leader and former minister of state, Alban S. K. Bagbin, MP, had stated that MPs receive bribes. The statement, captured in an audio recording and its transcript, is widely available on the internet and on social media.

This article examines what Mr. Bagbin is recorded to have said, recounts a bit of social attitudes to gifts, reviews the law on corruption and extortion, and shows that corrupting an MP also amounts to Contempt of Parliament. At the end, I will make some suggestions or proposals aimed at strengthening the existing laws on corruption.

What Did Mr. Bagbin Say?
From the recording, a questioner first informed Mr. Bagbin of “a perception that MPs take bribe before a bill is even passed, especially when the bill is under the certificate of urgency.” The questioner then asked a specific question: “Do MPs take money?”

Mr. Bagbin’s response was a clear, unambiguous and unequivocal “Yes.” Having made that candid admission he then took his audience on an excursion that is worth following. He said that bribery of MPs occurs in two ways. First, according to him, MPs are bribed to canvass certain positions in Parliament. He said “there is some evidence that some MPs take bribe, and they come to the floor and try to articulate the views of their sponsors.” He then sought to distinguish between “bribery” and “lobbying,” stating that Ghana has not developed rules to govern lobbying, “and so we think that lobbying is taking money to go and give to some MPs and writing pieces for them to articulate on the floor. That is bribery.” He was emphatic!

Second, Mr. Bagbin revealed that MPs are also bribed by governments to vote for unpopular government policies. He pulled no punches and minced no words: “at least there are some members who take bribe. And sometimes some governments, both sides, they are coming with some policies to the House that are very, very controversial; that even their members disagree with them. And they have had to influence the members through this bribery.” He then gave the example of the allegation by former NPP MP, P. C. Appiah-Ofori that certain MPs were bribed with US$5,000 to pass the Ghana Telecom privatisation deal. He then gave another, and rather curious, example where he and “a team… were called to be given the full details” of the Merchant Bank transaction. He said they were given all the relevant information and “all the story.” Then he says “we were fed; food and that kind of thing. Ok? We were given T&T.” [“T&T” is an acronym for ‘Telecommunications and Transportation’ expenses, but is now generally accepted as monies distributed to cover the perceived cost of travel and ‘fuel’.] Although Mr. Bagbin denied receiving dollars, he said that “that team came to the House and led the caucus to try and debate it.”

Having stated this, Mr. Bagbin then meandered into what some might consider a red herring, a deliberate deviation. But I don’t think so. I think that Mr. Bagbin, by a subtle and obviously studied use of euphemisms, tells us that MPs are susceptible to bribery simply because they are not paid sufficiently well and thus do not have the resources to do what is expected or required of them. His chosen euphemism for that was “No Releases,” and his exact words were: “we want to do a lot of work, but No Releases.” He then tells us of four effects of the “No Releases” phenomenon.

First, “No Releases” means that MPs do not have office spaces in Parliament and that even if rooms ordinarily reserved for Committee meetings are available, MPs cannot afford to provide even “water.” By the use of another euphemism, “water,” Mr. Bagbin tells us that if an MP holds a meeting, he/she is expected to provide something edible and/or drinkable for the persons who will attend the meeting. “You can’t even buy that”, he is heard to complain.

Second, “No Releases” means that MPs are unable to meet the constant pressure from their constituents to attend (and presumably finance) funerals and festivals, and pay for vacation classes (obviously for students.) He said “the man is being pressurised from his constituency… they expect you to give them money to motivate them. They don’t say pay them, but they say ‘motivate us.’” This drew laughter from the audience.

Third, the MPs Common Fund is inadequate, and as is typical of the “No Releases” phenomenon, even that has not been paid since the first quarter of 2013. He said “now you think the MP can use common fund to do all this? No, he won’t get that.”

Fourth, “No Releases” means that MPs are not equipped with the personal capacity or tools for their work. He says “you need to have these resources to be able to get the MPs together, to be able to build their capacities to do what you want them to do.” He then elaborates this dearth of “capacity building” because of “No releases” argument, further by giving two instances, where he required the intervention of either outside help and the use of his personal resources in “capacity building.”

In the first instance, he stated that he had to educate himself on matters that were not within his area of learning. He stated that even “as a lawyer,” he had to equip himself for the work that he was required to do in Parliament, particularly in areas of the law that were not taught to him in school, such as intellectual property. MPs, according to him, are compelled to rely and depend on external help. He said “and so when you take us through your subject area, you improve our capacity, then we can handle the policy or the business in Parliament better.” What I understand Mr. Bagbin to be saying is that the phenomenon of “No Releases” compels MPs to rely on their personal resources and resources provided by others, to be equipped for their work. This obviously exposes MPs to bribery.

In the second instance, and almost as a corollary to the first instance, Mr. Bagbin stated he also needed to be equipped to contend with a “very strong” opposition NPP. In a back-handed compliment to the opposition NPP, particularly its presidential candidate, Nana Akufo-Addo, Mr. Bagbin said that as chairman of the Legal Committee of Parliament between 1997 and 2000, he had to contend with and debate Nana Akufo-Addo, who was the “ranking member” of that committee. He said “you know the NPP is mostly lawyers because of their value-system, aristocrats.” To do this, Mr. Bagbin had to do a lot of reading. “I took time to read. That is how I built my capacity to be able to lead that committee. If not, the other side were very strong, ok?” Mr. Bagbin’s “reading” could not have come for free; he must have incurred expenses to purchase the materials that he read, the acquisition of which must have been difficult because of “No Releases.”

These statements raise a very fundamental issue as to what is bribery and what is not. Can the “food”, “T&T”, ‘per diems’ funded by organisations, and even cash donations made or provided to MPs amount to bribery? When is a thing a bribe and when is it just a gift? We now turn to a discussion of these matters.

Social Perspectives
It is important to consider these questions also from a societal perspective. There is no denial that by some pervading customary or traditional practices, persons in authority receive gifts from others, and also give generously to people who come their way. This practice has transcended into modern day Ghana. For example, when the policeman at the barrier or checkpoint stops your vehicle, smiles at and salutes you, and calls you “Honourable,” he does so in expectation of a gift. You are riding in a car. He is contending with either the hot sun or the cold night. He has done nothing for you and you have done nothing wrong. But on the sheer account of him being in a position of authority, he expects you to make a “dash”. The obviously practised forlorn and disappointed look on his face, if you prepare to drive away without a tip, can compel you to look for a five-cedi note for him. Actually, you may sometimes even feel guilty if you don’t find some money for them. By the same token, if he had stopped your vehicle because you have violated some traffic regulation, then the expectation of a “gift” is even heightened.

In his new book on the ancient town of Anomabo, titled Where the Negroes Are Masters: An African Port in the Era of the Slave Trade, and published by the Harvard University Press, Randy J. Sparks, refers to near-comical records allegedly compiled by the British occupants of the Anomabo Fort in the 18th Century, and which showed that they had to routinely make officially sanctioned “dashes” to members of the ruling “Corrantee” family under numerous, different circumstances.

The fort’s account books reveal the quantities of goods that went into the town every month as payments to Corrantee’s family and to the townspeople for a range of goods and services. Dashes or gifts went to Corrantee’s three wives and to his sons George Banishee and Quasah. Dashes might be given on almost any imaginable occasion, or for no apparent reason at all. The British dashed George Banishee because he was paying a visit to Cape Coast and to allow him to entertain a visiting “Mulatto Relation.” Both William Ansah and Quasah received gifts for building new houses. Corrantee received gifts “on coming home from Brafo Town & his wife who attended him on going.” Corrantee received a gallon of rum because he was “Complaining of its being a Cold Day,” a half gallon of rum because he wanted to “wash himself,” and more rum and brandy for the New Yam harvest festival. From November to December 1755, for example, Corrantee received nineteen gallons of rum in dashes. The entire town received rum for the New Yam Festival, “a great day with them.” They dashed George Banishee’s wife because she was “with child & Longing for it.” The pynins of the Upper Town and those of the Lower Town were also paid.

During the negotiations with the Asante in 1768, the British made payments to pynins from other towns who came to Annamaboe to discuss those issues, and to the “principal men among soldiers” in the town “to induce them to settle the Ashante Business.” They gave dashes to the “Townspeople for clearing the paths above the Town (as usual),” and to “a Mulattoe for making a New Flagg” for the fort. Dashes went to Corrantee’s Chicko (or Chickee, a messenger identified as his “public cryer”) and to his “Wenches.” In July and August 1768, for example, the fort made sixty-four payments to Corrantee’s “favorite wives.”

As almost hilarious, and probably patronising, as these “records” may be or read, they speak to the matters that we grapple with today, that persons in authority expect gifts from others. What is worse, we “the others” do expect to give such gifts, and are sometimes embarrassed when the gifts are turned down.

The issue of giving gifts to persons of authority engaged the mind of the ancient writer and third King of Israel, Solomon, who is recorded in Proverbs 18:16 of the New International Version of the Bible as saying that “a gift opens the way and ushers the giver into the presence of the great.” And in Proverbs 17:8, the same writer stated that “a bribe is seen as a charm by the one who gives it; they think success will come at every turn.” Indeed on account of there being many versions of the Holy Writ, the words “gift” and “bribe” are sometimes used as if they are synonyms of each other. But whether or not Solomon said these things with his tongue stuck firmly in his cheek, what he is recorded to have written, are facts. Gifts or bribes do indeed open doors, make room and probably bring “success.”

The modern day MP occupies a very important societal position, which involves wide-ranging interaction with various persons at different levels of society. As stated above, it is a known (and even accepted) fact that in the course of such interactions, many “gifts” and “donations” are made to and by MPs (and indeed all persons in authority). But where then, do we draw the line between what is a “gift” and what is a “bribe”? The answer, I respectfully submit, lies within the laws of the land, and it is to a discussion of this that I now turn.

Corruption and Extortion
Article 35(8) of the Constitution imposes a duty on the state to work to eliminate corruption. It simply says that “the State shall take steps to eradicate corrupt practices…” Under section 42 of the Interpretation Act, 2009 (Act 792), the word “shall” is construed “as imperative and mandatory.” In other words, Ghana has an obligation to take steps to eliminate corruption. The constitutional provision does not define “corrupt practices” or “corruption.” However, there is some definition and explanation under the Criminal Offences Act, 1960 (Act 29), section 239 of which makes it an offence for a public officer to commit Corruption or Extortion; and a person who corrupts another in respect of that other person’s duty as a public officer, is also guilty of the offence of corruption.

Under the combined effect of section 3(1) of the Criminal Offences Act and article 295 of the Constitution, the term “public officer” is to be construed by referring to the constitutional definition of the term “public office”. It “includes a person holding an office by election or appointment under an enactment or under powers conferred by an enactment.” A “public office” includes “an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by Parliament and an office in a public corporation established entirely out of public funds or monies provided by Parliament.”

There is therefore no doubt that a Member of Parliament is a public officer.

According to section 240 of the Criminal Offences Act, a public officer commits the offence of Corruption where in respect of his/her duties of a public office, the following occur:
• directly or indirectly agrees or offers to permit his/her conduct as a public officer to be influenced,
• by gift, promise or prospect of a “valuable consideration”,
• to be received by him/her or by any other person, from any other person.

A person is guilty of Corrupting a public officer where he/she:
• endeavours, directly or indirectly, to influence the conduct of the public officer in respect of the duties of office,
• by gift, promise or prospect of a “valuable consideration”,
• to be received by the public officer or any other person, from any other person.

From the above, the offence of Corruption is only committed when there has been an attempt or effort to influence the conduct of the recipient of a gift, as a public officer, and in respect of his/her duties as such. It is therefore not sufficient to simply show that an MP has received a gift. It must be shown that the gift was part of an endeavour to manipulate his/her conduct as an MP.

Further, what the MP received must be a gift or some assurance, hope or expectation of “valuable consideration.” This refers to some right, interest, profit or benefit accruing to him/her and at the same time some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other person. By law, this needs not be translated into cedis and pesewas, but it is sufficient if it consists of performance or promise of performance, which the promissor treats and considers of value to him.

The law is also careful to distinguish between what one may call “pre-paid bribes” and “post-paid bribes”. Thus an MP would be held to have received a “pre-paid” bribe even where the payment is made to him/her in the hope, anticipation, belief, prospect or probability of his/her election. It is immaterial that the person is not yet an MP as at the time of the making of it, if the endeavour, agreement or offer is made in the expectation that he/she will or may become an MP. It is also immaterial, whether the act to be done by a person in consideration or in pursuance of the gift, promise, prospect, agreement or offer is criminal or wrongful otherwise than by reason of any other law. This covers a corrupt agreement for lawful consideration. But it is critical to note that if you make a payment to a candidate in an election, as part of an agreement or endeavour to influence his/her conduct if elected, both you and the candidate are guilty of the offence of corruption, even if the candidate loses the election!

With respect to what may be called ‘post-paid’ bribes, the offence is committed where after an MP does an act, he/she secretly accepts or agrees or offers to secretly accept for personal gain or for any other person, valuable consideration on account of the act. Here, the law presumes that until the contrary is shown, the MP acted corruptly before doing the act. In like manner, the offence is also committed where after an MP does an act, any other person secretly agrees or offers to give or to procure for the MP or any other person, valuable consideration on account of that act. Here too, the presumption is also that the person so agreeing or offering, corrupted the MP before the doing of the act.

Thus in the case of Republic v. Hagan [1968] GLR 607, the court held that for the purpose of committing the offence of accepting a bribe to influence a public officer, whatever public office is held by the accused is irrelevant, for no question of the colour of the offender’s office arises. His position would be the same whether he holds public office or not. The accused must have acted under pretence or under colour of having influenced or being able to influence. One acts “under colour” if he represents or misrepresents that he has influenced or is in a position to influence. Such a representation or misrepresentation may even be made through an intermediary.

It is also important to consider the related offence of Extortion. It is committed by a public officer who, under colour of office, demands or obtains (whether for public purposes or private gain or for any other person) money or valuable consideration which he/she knows is not lawfully authorised. There are 3 decided cases that explain this principle very well.

First, in Motayo v. COP (1950) 13 WACA 114, the court was emphatic that “to constitute an offence under that section there must… not only be a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite for himself; it suffices if he conveys the impression to his victim, whether directly or by implication, that by virtue of his employment he is entitled to demand it.”

Second, in Republic v. Hagan (supra.), the court distinguished between bribery and extortion, and held that where a public officer demands or obtains a bribe, this did not ipso facto amount to extortion, merely because the recipient happens to hold a public office. The demand or obtaining must have some reference to the particular public office held by the accused, and there should be an act or conduct which amounts to the representation or misrepresentation of the duties of his office.

And third, in Appiah v. The Republic [1989-88] 2 GLR 377, it was held that the offence of extortion as defined is in the alternative, “demand” or “obtain.” The demand might be either directly or indirectly made. If indirect, proof of the demand might well nigh be impossible without other enabling statutory provisions. “Obtaining” lends itself to readier proof and readier defences. It is the suspicious end result that flows from a representation that must be explained and is capable of explanation if an innocent one existed. Accordingly, a posture of an ability to deliver under colour of office, whether positively or impliedly, might amount to a constructive representation if the other limb of the offence, namely “obtaining” is proved. Consequently, provided there is representation, demand or obtaining, the offence is committed even when the payment secures no returns.

Thus the offence of Extortion is committed, for instance, where MPs, as members of a committee of Parliament, adopt a posture that delays or frustrates the consideration and approval of a budget or agreement in such a way that compels a person to send “brown envelopes” to them. Once the benefit is obtained, the demand for it would be implied by law, and the offence of extortion would have been committed.

Contempt of Parliament
The general position under article 122 of the Constitution and section 26 of the Parliament Act, 1965 (Act 300) is that acts that impede or tend to impede Parliament in the performance of its functions, or affront its dignity, amount to Contempt of Parliament.

The Parliament Act then sets out specific acts that would amount to Contempt of Parliament. Under section 27, a person commits Contempt of Parliament if he/she endeavours to influence an MP’s official functions by means of bribery, among others. An MP commits Contempt of Parliament where he/she accepts, or procures for personal gain or for any other person, a benefit in return for undertaking to perform any of the functions of an MP in a particular manner, or by reason of anything done or omitted to be done by the MP in the performance of functions.

In other words bribing an MP and an MP accepting a bribe are acts considered as contemptuous of Parliament because they obstruct, hinder or hamper Parliament in the performance of its functions, and are also an affront on the dignity of Parliament. A person who engages in them is guilty of Contempt of Parliament.

An MP who is found guilty of Contempt of Parliament may be reprimanded, suspended or even expelled from Parliament, depending on the gravity of the matter. A non-MP in Contempt of Parliament may be excluded from coming within the precincts of Parliament for a period not exceeding 9 months, reprimanded or subjected to criminal prosecution that may lead to a fine not exceeding 250 penalty units (i.e. GH¢3,000) and/or a term of imprisonment for one year. It is important to note that while the severest sanction that may be meted out to an MP for being in Contempt of Parliament is his/her expulsion from Parliament, the punishment of criminal prosecution with the prospect of imprisonment is reserved for non-MPs!

Recommendations & Concluding Comments
I hear politicians and social actors speak of the “perception” of corruption. But I think that anyone who still thinks that corruption is just a “perception” thing, probably just arrived on earth from Mars. Corruption is real, and we call it a “perception” simply because either we are too cowardly to speak to it frontally and expose those involved it in, or we are guilty of it ourselves. That is why Mr. Bagbin’s statements have serious legal implications and consequences that cannot be trivialized, laughed at or wished away. If it is true that our lawmakers are themselves lawbreakers, then there is an urgent need to tackle this situation headlong, and take the constitutionally mandated steps to eradicate such corrupt practices in Parliament. We may never succeed in completely eliminating corruption, and on that I tend to agree, in part, with the reported statement of President John Kufuor, that “corruption has been with us from Adam.” But what he failed or neglected to add is that his declared “zero tolerance for corruption” also meant that we have to continue the fight against it, and that even if all we succeed in doing is making corruption less attractive and potentially more painful than it has been, we would have some success to fall on and refer to. Win the battles. Chalk up small victories. Take steps towards eliminating corruption, even if we never achieve full elimination.

An MP who takes money to promote a bill or other process (or forbear to do same) in Parliament is guilty of the offence of corruption. If Appiah-Ofori’s allegation is true, then all the MPs who took money to vote on the Ghana Telecom privatisation are guilty of the offence of corruption. Even Mr. Bagbin’s curious Merchant Bank example is problematic. An MP who is fed, given “T&T” and/or “per diem” commits the offence if the food and monies were given to him/her as part of a deal to influence his/her actions (or inactions) in Parliament. It is curious that Mr. Bagbin did not reveal how much money was distributed as “T&T” to the members of “the team” who attended the meeting. However, the current Minority Leader, Osei-Kyei Mensah-Bonsu, stated on Oman FM, on the morning of 10th March 2014 when the news broke, that the alleged “T&T” was only given to the members of one political party, and that the amount was GH¢5,000. If true, that could raise red flags especially if the meeting was held in Accra. So that what is described as “just T&T” could trigger criminal prosecution if the amount of it is so out of tune with how much an MP is reasonably expected to have spent to attend the meeting or seminar, and if the other elements of the offence exist.

Whatever the figure was, Mr. Bagbin stated that “that team came to the House and led the caucus to try and debate it.” If it is proved that the position of members of the team in subsequently “leading the caucus to debate the matter,” was influenced by the food that they were fed with and money that they received as “T&T,” then they would be guilty of the offence of corruption. In both of this instance and the Appiah-Ofori’s alleged instance, the MPs involved would also be guilty of the offence of extortion if they actually demanded those items, directly or indirectly. This is because all of those acts done after the alleged receipt of food and money, were things that Parliamentarians are required to do by law, such as advocating positions, making speeches and voting. To the extent that any of those acts was or were thus influenced, offences would have been committed. That is why a full public inquiry into the allegations would be welcome. The people of Ghana deserve to know where the truth lies in this matter.

I would also like to make the following points and recommendations in conclusion.

First, Mr. Bagbin says that there are no rules governing lobbying in Ghana. I respectfully disagree. Lobbying an MP by simply seeking to influence or convince him/her to take a position on a matter is no offence. But an offence is committed if that lobbying involves any gift, or the promise or prospect of some valuable consideration. The scope of Ghana’s anti-bribery and corruption law, rustic though it may appear, is so wide that what might be accepted in other countries as mere “lobbying” would constitute an offence here. If we want to change it, then we should introduce formal legislation on lobbying MPs, for instance by amending the Parliament Act, to provide for the maximum value of gifts that MPs are allowed to receive, the circumstances under which such gifts may be received and strict declaration of and accounting for them.

Second, the offences of corruption and extortion should no longer be classified as “misdemeanours” under our law. (Extortion may however be tried as a second degree felony if it is accompanied by threats.) The Criminal and Other Offences (Procedure) Act makes special provision that punishment for corruption and extortion may be imprisonment for up to 25 years. However, their technical categorization as “misdemeanors,” is still problematic, as misdemeanours are the lowest category of offences under our criminal law. There is no reason why corruption and extortion should be classified any lower than say, stealing, which is a second degree felony.

Third, I would also advocate specific provisions in legislation, which would empower a court that convicts a person of Corruption or Extortion to order that person to forfeit the benefit received to the state. There is already precedent in what I consider the most ignored, but probably the most potent, anti-corruption statute in Ghana, the Government Contracts (Protection) Act, 1979 (AFRCD 58). That statute provides that a contractor who wrongly receives payment under a government contract may be ordered by the court to refund those monies to the government. And upon conviction for corruption under those circumstances, the court, in addition to imposing a sentence of between five and fifteen years imprisonment on both the contractor and the government official who certified the contract, may impose fines of up to three times the amount of money improperly paid, on those persons. It is time to dig up and dust up that statute, breathe life into it, give it teeth, and incorporate some of its provisions into our general law on bribery and corruption.

Fourth, it would appear from the law that the offences of Corruption and Extortion are only committed if they involve the official acts of public officers. That would mean private acts of corruption and extortion are not offences. In effect, and for instance, while a headteacher of a public school may go to jail for engaging in a corrupt act, the headteacher of a private school may only lose his/her job for engaging in the same act with no prospect of prosecution, let alone jail time. It is time to review the law so that the offences cover both public and private acts of corruption and extortion. In this, there is no shame in borrowing from the provisions of the recent UK Bribery Act, which extends to private acts of corruption. Indeed, it might be time to consider a stand-alone Bribery and Corruption Act, to deal specifically with this canker, because currently, our laws on Corruption are scattered in nearly 10 separate pieces of legislation.

Fifth, simplify government processes. Long, drawn-out procedures for getting anything done by government, is a prime and fertile ground for corruption. It is unacceptable, nay, criminal, for it to take five years to register title to land, and that system compels anxious land owners to pay monies just to speed the process up. Persons who travel to and drive in the US, obey the speed limits not because they suddenly become angels, but because they know that if they are caught, they cannot simply dish out a twenty dollar bill to the arresting officer and then go scot free. If you are caught, you are given a ticket that imposes a fine. You are required to pay within a specified time or you are liable to be arrested. It beats my mind why we cannot do this in Ghana. Today, if you are caught speeding by the now notorious speeding gun used by the police between Cape Coast and Takoradi, and you know that you would have to travel to court in Takoradi from Accra, for about 5 adjournments (each spread over two weeks) before you are declared “not guilty” or fined, your ‘angelic self’ is likely to take a back seat if you know that a single mauve note will send you along your merry way with no record of your arrest, let alone a speeding ticket.

Sixth, as crime and criminals get more and more sophisticated with time, it is to be expected that persons engaged in acts of Corruption and Extortion are also getting more sophisticated. That is why institutions such as the CID of the Ghana Police Service, the Economic and Organised Crime Office (EOCO) and the Commission for Human Rights and Administrative Justice (CHRAJ) require more empowerment and resources to carry out their respective mandates properly and in tune with the changing times.

Seventh, there is the need to engage in continuous public education and discourse on Bribery and Corruption. The logic that “exposure” kills Corruption is pretty unassailable. And in this regard, our religious bodies can play a key and leading role, because we all need to be reminded, constantly, of the cost of Corruption to both the totality of our beings and the nation as a whole. I am pretty certain that Charles Wesley will forgive me if I adopt and adapt the words of his hymn I Want A Principle Within, that we need a “sensibility of corruption, a pain to feel it near.”

In conclusion, let me state that I do not think that Mr. Alban Bagbin was lying, even if he was card-stacking at some point in his delivery. He is too experienced a man and professional to have spoken amiss. Yet he stands at a critical crossroad, and what he says or does in the coming days will either give a booster shot to the fight against corruption or simply send us back. He can tell it all and let the chips fall where they may, or he can simply backtrack to save his skin. But for now, I believe that when the history of the fight against corruption in Ghana comes to be written, it will record the day when a political insider stood up and gave voice to the hitherto loud whispers that “some MPs take bribe.” What happened thereafter is something that we all have to wait to see.


June 16th, 2015


(Presentation delivered to the 1st Eagles Conference for Men, held/organised by Joyful Way Incorporated on 30th May 2015)

Thank you for inviting me to speak at this maiden Eagles Conference, organised by the group that I absolutely love with all that I am and have within me, Joyful Way, the last standing epitome of true music evangelism.

It is certainly by your design that my wife spoke, last year, at the maiden Arete Conference that you organised for young women. I understand that it was pretty no-holds-barred, take-no-prisoner session. I haven’t summoned sufficient courage to listen to the recording, and I will NOT encourage you to do that! Trust me, I know what I am talking about.

Today, I am privileged to be speaking after two truly great men. First, is the current President of Joyful Way, Michael Charway, who spoke on “How A Young Man Can Keep His Way Pure,” and then my own friend and brother Albert Ocran who I have known for 40 out of my 47 years on earth, who spoke to you on “How To Cultivate Multiple Income Streams.” You could not have chosen better men to speak on these topics, as the messages they delivered, I know, reflect their very lives. The messenger is the best message. I can only hope and pray that at the end of my presentation, I would be considered worthy of being associated with the path that these men have so skillfully blazed here to day.

My presentation is in two parts. The first part is the introduction to the topic. The second part is a list, just a list of 6 things I which I had known (better) some 17 years ago, when I turned 30.


What is it about the age 30, and why is it significant? Isn’t age just a number? Or is it because the number looks and sounds nice?

Since this Conference is organised by a Christian organisation, this presentation is anchored and rooted in your source

Let’s go the the Good Book, Book of Books, the Ancient Script, penned by human hands, yet inspired by the Spirit of the life-creating, life-changing and life-sustaining Force called “God”. I have found in that book, 6 significant things that happened to 6 significant people at the age 30.

1. Joseph was 30 when he was appointed to put in place in Egypt, an economic policy that would mark that country as a world giant and ultimately a super power. (Gen 41:46). In 30 years, God has raised him from being a spoilt son of a rich man, a sissy and dreamer, thrust into management as a teen with no experience and not even the ability to interpret his own dreams, God rescued him
* from Papa’s loving and overbearing Protection,
* from the Pit of dashed hope and Despair,
* from Potiphar’s House of Temptation and Seduction,
* from Prison, living on others’ dreams, a place Unjust and Unfair,
* to the Palace and Power and Position.

2. In ancient Israel, Priests were officially commissioned into service at the age of 30 (Num 4:3). Thus although they had been born in the tribe of Levi and were destined to become priest, they required 3 decades of training to assume that high office for 2 decades. They had to retire at 50. Note however that that age was subsequently reduced to 25 (Num 4:24-25) and to to 20 in the time of David (I Ch 23:24-27, 2 Ch 31:17), but the retirement age appears to have been kept at 50.

3. David became King at age 30, and he ruled for 40 years (2 Sam 5:4). Doing the math, he could was 18- 20 when he killed Goliath. That is confirmed by Num 1:18-45 where the age of being “numbered” for military service was 20.

4. Ezekiel received his prophetic and unmatched vision-seeing ministry when he was 30 (Ez 1:1). He remembered the actual date of his 30th year (4 months and 5 days) and exactly where he was (by river Chebar) when “the heavens were opened and I saw visions of God.”

5. The Lord Christ Himself started his work at age 30. Lk 3:23 – “And Jesus himself began to be about thirty years of age, being (as was supposed) the son of Joseph, which was the son of Heli.” God HIMSELF, needed 3 decades of preparation for what was effectively 3 years of ministry!!

6. John the Baptist must have started his work at age 30. How do we know? He was only 6 months older than the Lord Christ. Luke 1:26 says that 6 months after angel Gabriel returned to heaven from the “divine impregnation” mission effected on the old and barren Elisabeth in Judaea, the same angel was sent on another of such missions, this time to a city of Galilee called Nazareth and this time to a virgin! In v.36, Gabriel confidently informs Mary that her cousin Elisabeth is 6 months pregnant already, and that she is about to go through the same miraculous procedure, and that with God, nothing was impossible. And in fact, it was only upon this testimony that Mary believed and said “Behold I am the handmaid of the Lord, be it unto me according to thy word.”

30 is therefore significant as the age of maturity. Life may “begin” at 40, but we step into maturity 10 years before beginning life. In other words, we mature before we live.

Our topic today is therefore asking about what we should have known before maturity, before becoming of age. In other words, what should I have known when I was still YOUTH?

The 6 ‘Paulian’ Standards

Paul says to a young Timothy “Let no man DESPISE thy youth; BUT be thou an EXAMPLE of the believer, in WORD, in CONVERSATION, in CHARITY, in SPIRIT, in FAITH, in PURITY.” (1 TIM 4:12)

“LET NO MAN” means do not allow any person, do not give grounds, room, reason, justification or basis.

To “LET” means to allow, permit, give permission to, give leave to, authorize, sanction, grant, grant the right to, warrant, license, empower, enable or entitle. Used with the negative adverb,”no,” gives it an opposite meaning, force and effect: “Do Not!”

It means that you are the only person who can allow the time of your youth to be despised by men. In other words, the time of your youth will be judged, weighed at some point in your life. Did it build you up for anything? In other words, even when you are no longer youth, the things you do will let others judge the kind of youth you were or upbringing you received.

You have heard it said, “ofri fie,” (he/she comes from a home); or “onyaa nteteɛ pa,” (he/she is of a good upbringing); or “ye tetee no, y’an nyɛn no sɛ akokɔ” (he/she was carefully raised, not simply kept like a chicken); or “na opanin nni ne fie?” (was there no elder person in his/her house/family?)

It may be true that you should not consider, too seriously, what others think about you. But Paul something different here. He says that what others think about you (especially during your time as youth), may be influenced by who you are, what you do and what you have become. In short, WHAT FOUNDATION DID YOU RECEIVE AS YOUTH? In other words, WHAT SHOULD I HAVE KNOWN AND DONE WHEN I WAS STILL YOUTH, I.E. BEFORE I BECAME AN ADULT?

Speaking of Foundations, the Lord Christ told the parable of Foundations. According to Matthew the Jewish Zealot, the story was very simple, and indeed simplistic. The wiseman built on a rock and the foolish man build it sand. When the tempests came, the building of the wise prevailed, while that of the foolish was torn down “and great was the fall.” (Mt 7:24-27)

Luke, the Doctor and intellectual tells the same parable, with a deeper insight. He says that the first man did not simply find a rock and build a house on it. Luke says the man “digged deep and laid the foundation on a rock.” The other man “without foundation, built an house upon the earth.” (Lk 6:47-49)

I side with the intellectual version or recount. Building a solid foundation for your future involves DIGGING DEEP to find A ROCK, and then LAYING THE FOUNDATION UPON THAT ROCK. Digging deep requires hard work, sacrifice, pain and endurance, and DEFERRED GRATIFICATION. You will see your friends just settle on any patch of earth, but you want more, you want better. You are unwilling unable and unprepared to compromise on your foundation. You are prepared to pay the price, take the pain today, deny yourself of today’s pleasure in the knowledge that when you finally HIT THAT ROCK, only God can stop you. Even the sky will not be your limit.

And so in Lam 3:27, the weeping prophet takes a break from his ‘jeremiad’ and affirms that “It is GOOD for a man that he bear the yoke in his youth.” That is where and when you pay the price, in your YOUTH.

Wise Solomon tells us in Eccl 12:1 that you should remember the Creator “in the days of your youth.” Because “evil days and years” will come, those last days when you have no pleasure in even continuing to live.

Thus any “man” will only have the ability to DESPISE your youth, if you LET him do so. The NIV says “look down on you.” NLT says “think less of you.” Another version says “thing slightingly of you.”

DESPISE itself means to “feel contempt or a deep repugnance for.”

It is synonymous with detest, hate, loathe, abhor, regard with contempt, feel contempt for, shrink from, be repelled by, not be able to bear/stand/stomach, find intolerable, deplore, dislike.

Your youth therefore provides the foundation of what you will be or become in adulthood. If you don’t build the right foundation, you allow or permit others to be repelled by what you become, because you did not get or attain the proper foundation.

BUT: Paul uses this conjunction in its natural meaning, used to introduce a phrase or clause contrasting with what has already been mentioned. It is synonymous with “yet,” nevertheless,” “nonetheless,” “however,” “despite that,” and “in spite of that.” eg “he stumbled but didn’t fall.”

Thus Paul is saying that the opposite or contrast to your youth being despised, is you attaining the 6 standards that he lays down or sets up after the use of the ‘disjunctive conjunction’ BUT. In other words, if you do not attain these standards YOU will LET others despise your youth.

And so my father’s people the Borbor Mfanste would call you “aambobra sansanyi,” a simile that compares the one with no achievement with the duiker bird.

The song “sansa aboa, mennyi beebi a mowu ma da” speaks of the wondering, restless soul of the homeless, jobless, lazy loafer of a duiker, whose only pleasure is feeding and feasting on hapless little chicks; hence the song “sansa akroma, ne na ewu o, ɔkyeke nkokɔ mba, ɔse ɔnkɛyɛ edwuma. w’akyinkyin, ekyinkin, ekyinkyin…”

Thus you are the only person who can invite despising towards your youth. NO ONE CAN LOOK DOWN ON SOMETHING THAT IS GREATER THAN HIM.

Back to Paul and his sometimes somewhat cryptic writing style, after setting up the PRE-TEXT in just 3 words, he then identifies 6 critical areas where youth must excel, so as not to attract societal opprobrium. But before then, the provides the CONTEXT, saying that you just must not be show them, you must be an EXAMPLE. A mere pass mark in a thing isn’t an example.

An example is “a thing characteristic of its kind or illustrating a general rule.” It is “a person or thing regarded in terms of their fitness to be imitated.” And so here, Paul’s context speaks to, not mere participants, but to that person who can truly and properly be regarded as a specimen, exemplification, representative case, a case in point, an illustration, a precedent, guide, model, pattern, blueprint, template, paradigm, the ideal, THE STANDARD.

This is what informs my personal mantras: If others sit, STAMD. If others stand, STAND OUT. If others stand out, be OUTSTANDING. If others are outstanding, be THE STANDARD.

And so in which areas of life are you to be THE STANDARD that Paul speaks about?

In word, in what you say. If ‘the Word WAS God’, then the message and the messenger are one! You must be what you say.

– The way you live
– Way of life
– Manner of life
– Conversation
– Behaviour
– Deportment/Comportment

– Love. A verb. A doing word. It is when it is done that it becomes a noun.
Are you a hateful and spiteful person, or are you a loving and considerate person?

This attribute appears in only the King James Version. It could refer to how yielded you are to the Holy Spirit in all of your life and conduct. But it could also mean the manner and disposition in which you do all things, i.e. your human spirit.

Actually faithfulness. Are you dependable? Are you loyal? Do you have constancy, trueness, true-heartednes, dedication, and commitment? Can I bet my life on you? Or are you the one that we can bet and count on to fail.

– Chastity (Here, I borrow from the wise words of superior court judges when they write a concurring opinion. In a situation like this, they would have said something like this: :”I have had the privilege of seeing and reading aforehand, the erudite opinion and presentation of your President, Michael Charway. I completely and wholeheartedly concur with what he has had to say, and I have nothing useful to add.”)

But the key thing about these STANDARDS is that there must be a balance. A false balance is an abomination, the Script says. You must be an EXAMPLE in each of these 6 areas, in your youth. If you fail at any in your youth, you weaken your foundation for adulthood, and you invite others to despise your youth, either in the time of your youth or even when you are an adult.

Thus at the end of considering these, may I suggest to you that these are not 6 separate and distinct standards, but altogether, they form ONE STANDARD. There may be 6 components of the whole, but we are required to be an “EXAMPLE”, one example or all 6, rolled into one. If we slack or fall short in even one, we have failed in all. Then we invite the despising that Paul spoke to Timothy about.

May the Lord forbid that your children will one day curse the day that you were born.

The ‘Youthful’ Christ

But we serve a Christ who retains his youth. When God the Father invites God the Son in Ps 110:1 to sit at His right hand “until I make thine enemies thy footstool”, the Father assures the son in v.3 that “Thy people shall be willing in the day of thy power in the beauties of holiness from the womb of the morning: THOU HAST THE DEW OF THY YOUTH.”

That is what must have inspired the songwriter to write “let the Dew of Heaven bring us a refreshing….”

Youthfulness is supposed as be as fresh and as nourishing as the dew, pure and beautiful, born from the womb of morning. That is why the same Psalmist penned that “Weeping may endure for a night, but joy comes in the morning.” And surely, this is what inspired me to write in my song “Me Twɛn Yehowa” that “Nti sɛ nusuo bɛsoɛ me anadwo a, Nanso ade kyeɛ ne anigye n’ɛnam…”

Alas, the Dew of Heaven is a person, the Lord Christ. He, who has retained the dew of his Youth, assures us in Ps. 103 that if we live a life that blesses the Lord, he will (1) forgive iniquities, (2) heal diseases, (3) redeem from destruction, (5) crown with lovingkindness and tender mercies, and (5) satisfy our mouths with good things. The sum total of these blessings is that “so that your youth is renewed like that of the eagle”.

No one knows how long eagles live. But some eagles in captivity have been known to live for over 100 years. This is because every year, eagles go through a natural process called “moulting” when they cast off old feathers and receive new ones, which come with renewed strength and energy to soar and reach heights that no other creature can reach with natural strength.

May our youth be renewed each morning by the Dew of Heaven. May the weepings of the ‘night’ disappear when morning breaks. May we gather the strength to tap into the Dew of Heaven so that we remain fresh each day. May we moult like the eagle so that we can soar the heights. May our feet become like hinds’ feet so that we can capture our heights.

My List of Six

And so all of that I have said before, is my introduction to the list of six (6) things that I wish I knew [more about] before turning 30, and I simply want to invite you, in the light of what we have shared before to think and meditate on these, as I come to a close.

1. Me
2. Life
3. Work
4. Friendship
5. Marriage
6. Wisdom

Pr. 30:24-28 Roll Cal of The Little but Exceedingly Wise
* Ants: weak – prepare meat in the summer
* Rock Badgers: feeble – but has homes in the rocks
* Locusts: no king – but go forth in formations that can make any army jealous
* Spiders: can be held in the hands – but the spider and its web can found in the palace

Sapientia et Doctrina Stabilitas: “Wisdom and Knowledge Shall be the Stability of Thy Times” – Isaiah 33:6 and the motto of the second university that I attended, Queen’s University. Wisdom alone isn’t enough. Knowledge alone isn’t enough. It is wisdom PLUS knowledge that provide stability in all times.

In sum, I wish I knew THEN, what I know NOW, especially that “You will have to keep your mouth open for a very long time, before a roasted partridge flies into it.”


December 2nd, 2014


 If a case should arise of injury to a company, for which no adequate remedy remained, … claims of justice would be found superior to any difficulties arising out of technical rules. However, it must not be without reasons of a very urgent character that established rules of law and practice are to be departed from, rules which are founded on general principles of justice and convenience.[1]


I. Introduction

It is recorded that the first person to call a group of persons by the name “persona ficta”, was Sinbald Fieschi who in 1243 became Pope Innocent IV. The earliest development in the establishment of rules on incorporated persons was through associations in which the property of the church was vested and through which its activities were exercised. The church was at the time a large property owner, which property it owned in a corporate capacity. These entities needed to be embodied in some tangible form so as to live and flourish, and Pope Innocent IV’s theory of the personae fictae provided them with the reality they required.

This became the accepted theory of canon law and inevitably affected the common law. Soon, the ‘artificial persons’ were frequently encountered in the common law courts and the theory was applied to other groups such as universities and their colleges, boroughs and indeed to any corporate body or group to which the conception could be profitably applied.

Section 24 of Ghana’s Companies Code, 1963 (Act 179) (the “Code”) gives primary recognition to the effect of incorporation, providing that upon incorporation a company has “all the powers of a natural person of full capacity.” The natural person is known to the law, which makes rules to govern him. However, not all legal rules applicable to natural men are applicable to companies, for the simple reason that the latter is an artificial person. “A corporate body can only act by agents”, proclaimed Lord Cranworth L.C., a 19th Century English Judge.[2] Usually, the natural persons by whom companies act and by whom the business of the company is carried on or superintended are called “directors”. According to section 179 of the Code directors are persons who are tasked with the primary responsibility to “direct” and “administer” the business of companies.

While the Code leaves the members of a company free to determine how and by whom the business of the company should be ‘directed’ and ‘administered’, it regulates the procedure by which a company’s directors may be removed. Section 185 of the Code provides that a simple majority of votes of the company in general meeting is all that is required to remove a director of the company. However, that section provides safeguards to ensure the observance of the audi alteram partem principle, so that the affected director cannot be removed without him being afforded the full opportunity to defend himself. But, can the members of a company remove a director without recourse to the provisions of section 185?

The Code further provides, under section 7, that the rules of equity and common law are applicable to Ghana’s company law, subject to their being consistent with the provisions of the Code. Also, section 216 provides as follows:

The rights, duties and liabilities of officers and agents of companies shall continue to be governed by the rules of the common law and equity relating to principal and agent and master and servant save in so far as such rules are inconsistent with the express provisions of this Code.

The renowned Professor L.C.B. Gower, who drafted Ghana’s Companies Code, justifies the incorporation of the rules of common law and equity into Ghana’s company law on the ground that no statute could hope to be completely all embracing. According to him, section 7 therefore aims at making it clear that the courts could “fill the gaps on the basis of the existing legal doctrines”.[3] In respect of section 216, Professor Gower argues that although the Code contains provisions that deal expressly with rules peculiar to directors and officers of companies, it does not attempt to codify the whole law of principal and agent or master and servant in its relation to companies. Thus, “the normal rules continue to prevail except in so far as they are expressly modified”.[4] But, can a company remove a director, particularly by way of a summary dismissal[5], relying on the rules of common law or the principles of equity instead of the procedure provided under section 185 of the Code?

The Code also forbids the appointment of persons as directors on grounds of incompetence. Section 182 specifically bars five classes of persons from being appointed as directors of companies, and provides that the Regulations of a company may also contain provisions declaring other classes of persons as incompetent to hold directorships in the company. Under what instances can the court be called upon to remove such “incompetent” persons as directors?

Further, the Code provides under section 218 (2) that where a case of “oppression”[6] or “unfair prejudice”[7] has been made out, the High Court (the “Court”)[8] may make any orders as it thinks fit, “with a view to bringing to an end or remedying the matters complained of”. Does this include the power to remove a director?

In this work I will seek to examine the rules in the Code on the removal of the directors of companies from that office, address the questions posed above, and contend as follows:

  • the procedure under section 185 of the Code for the removal of directors by the company in general meeting is mandatory;
  • the Court may, subject to the Court of Appeal’s caveat in the exercise of such powers carefully and judiciously[9], remove a director from office on the following grounds:
  • lack of competence under section 182 (1),
  • enforcement of any provisions in the Regulations under sections 182 (4) and 184 (2),
  • failure to secure share qualification where that is required under section 183,
  • disqualification of a sitting director under section 186,
  • in the exercise of the Court’s broad powers under section 218 (2), and
  • enforcement of any contractual agreements for the removal of a director; and
  • the rules of common law and equity are redundant in respect to the removal of directors from office as directors by the shareholders, and it is only where a matter has arisen that is not covered by the Code, which is unlikely, that the recourse may be had to the rules of common law and equity.


II. Separation of Powers between Directors and Shareholders

Before tackling the rules on the removal of directors, it is important to discuss the status of directors within the corporate structure and the dichotomy of the power arrangements between them (as the managers of the company) and the members (as the investors in the company).

As noted above, under section 179 of the Code, a director is any person who is appointed to direct and administer the business of a company, irrespective of whatever name that person is called. That section also makes so-called ‘de facto’ directors[10], or ‘shadow’ directors[11] subject to the same duties and liabilities as if they have been duly appointed as directors.

Under section 137 of the Code, a company acts primarily through either its members in general meeting or its directors. The Code expects the Regulations of a company to lay down rules on the separation of powers between the members and the directors. Except as provided in the Regulations, the directors manage the business of the company and exercise all powers that are not, under the Code or the Regulations, required to be exercised by the members in general meeting. It is my contention that by this provision, the directors of a company constitute the supreme and original authority in matters of its business management. They are the chief administrators, and the Code delegates to them the power and duty to manage and superintend the business of the company, subject to the provisions of the Regulations. When acting within the scope of this authority, the directors are not bound to obey the instructions or directions of the members in general meeting.[12]

I fully endorse the opinion expressed in the New York Court of Appeals, that:

all powers directly conferred by statute, or impliedly granted, of necessity, must be exercised by the directors who are constituted by law as the agency for the doing of corporate acts. … Within the chartered authority they have the fullest power to regulate the concerns of the [company], according to their best judgment…[13]

 I also find instructive, the following parallel view of the English Court of Appeal:

If powers of management are vested in the directors, they, and they alone, can exercise these powers. The only way in which the general body of the shareholders can control the exercise of the powers vested by the articles in the directors is by altering the articles, or … by refusing to re-elect the directors of whose actions they disapprove. They cannot themselves usurp the powers which by the [Regulations] are vested in the directors any more than the directors can usurp the powers vested by the articles in the general body of the shareholders.[14]

 An Ohio court has supported this position by stating that:

 The individual directors are in no sense the personal representatives of the [shareholders] by whose suffrage they hold office. However much they might be influenced by the wisdom and wishes of the [shareholders], it remains their duty to exercise their own judgment in all final corporate action. If the action of the board of directors does not express the will and wish of the majority of the majority of the shares of stock, the majority has its remedy by retiring the [directors] …[15]

Commenting on section 303 of the 1985 English Companies Act (which section is in pari materia with our section 185), Palmer says that:

 While the shareholders have no power, apart from that given them by statute or articles (which, in practice, does not amount to much) to intervene in the management of the company’s affairs, this section was designed to enable them to control the directors by removing them. In English company law, the balance of power is normally with the directors who by the articles are usually authorised to exercise the general powers of the company, and interference with the managerial activities of the directors is not encouraged by statute or articles. But this section enables the shareholders to assert themselves against the directors, if need be, and makes it clear that the ultimate control is in the hands of the proprietors of the company.[16]

 It is my opinion, in the light of the above, that subject to the terms under which they are appointed, directors are not servants to obey directions and orders given to them by the shareholders. If the shareholders of a company disapprove of the actions of the directors, they can, in the words of Palmer, “assert themselves against the directors” by the exercise their power of “ultimate control” over the affairs of the company, i.e. remove the directors under section 185 of the Code.[17] Indeed, according to Hayfron-Benjamin J., as he then was, “[t]his section seems to vest in the general meeting of the shareholders the absolute right of determining who should manage the affairs of the company despite any agreement to the contrary.”[18]

I must point out, however, that the Code recognises that directors may represent specific shareholders. A director in such a position may willingly obey directions given by the appointing shareholder or may be removed by that shareholder, based on the terms upon which he was appointed as director. Further, in Ghana, it is common practice to find that the shareholders and directors are the same people. In such cases, the problems associated with the separation of powers between the directors and shareholders are not likely to arise.

It is to a discussion of the rules governing the removal of directors by the company in general meeting that I now turn.


III. Procedure for Removing Directors

Under section 185 (1), a director may be removed from office by an ordinary resolution of the members at a general meeting, notwithstanding any provision to the contrary in the Regulations or any agreement. If the members desire to remove a director, that action can only take place at a general meeting, and so under section 174, a director cannot be removed by written resolution.[19]

The company must circulate notices of the proposed resolution to all the members and the directors concerned, at least 35 days before the meeting, at the same time and in the same manner as the company gives notices for meetings. Where it is “not practicable” to give the 35-day notice, the company may give 21 days’ notice before the meeting. The Code does not define the phrase “not practicable”. I however endorse the definition of the synonymous word “impracticable” (as used under section 162 of the Code) to mean “incapable of being done”.[20]

The proviso to section 185 (2) provides that if a meeting is called after the notice, but prior to the date fixed for the meeting, that notice shall be deemed to have been properly given, and thus the matters contained therein can be discussed and acted upon at that meeting. This prevents attempts by the directors to pre-empt or forestall the meeting called after the notice for the intended removal of the director, by convening a meeting immediately the notice is received.

The director affected shall be heard on the resolution at the meeting and if he so desires, he can send a written statement to the company for circulation to all persons entitled to notice. This gives the affected director an opportunity to make representations to the members before he is removed from office. However, the company need not circulate the statement if:

(i)   the statement is received less that 7 days before the meeting, or

(ii)  the court makes an order, on an application by the company or any aggrieved person, that the statement is too long or contains defamatory matters.

Whether or not the affected director’s statement is circulated, he has a right, at the meeting, either to be heard orally or (in the absence of the court order) to read a written statement.

The courts in Ghana have had the opportunity to pronounce on the removal of directors, and it is to a discussion of these cases that I now turn.


IV. Re West Coast Dyeing Industry Ltd.; Adams & Another v. Tandoh[21] (the “Adams Case”)


In the Adams Case, Adams (the “Appellant”) was the managing director of Solid Construction Co. Ltd. (“SCC”), a subsidiary of West Coast Group of Companies (“WCGC”), and a director of all the other subsidiaries. Tandoh (the “Respondent”) was the executive chairman of the board of directors and the majority shareholder of WCGC. At an extraordinary general meeting of WCGC, the shareholders passed a resolution summarily dismissing the Appellant as the managing director of SCC and from his directorships in the other companies. The relevant portion of the minutes in question reads as follows:

Removal of Mr. O S Adams as Director:

The shareholders resolved, in view of the very serious and fraudulent nature of Mr. O S Adams’ actions against the company… that Mr. Adams be removed as a director of Solid Construction Co Ltd. and the other companies within the West Coast Group.

 The Appellant brought an action under the Code on the ground, inter alia, that the summary dismissal was unlawful because section 185 of the Code had not been complied with. The Respondent argued that the Appellant was guilty of certain fraudulent practices and embezzlement of large funds belonging to SCC, and that it was as a result of these matters that the Appellant was summarily dismissed.

At the trial, there was evidence that the Appellant had been endorsing cheques drawn in favour of SCC and then cashing them for his personal use. The trial judge found that the Appellant was guilty of a criminal offence and fraudulent breach of his duties as a director towards WCGC. The court held that the summary dismissal of the Appellant, in the circumstances of the case, was justified under section 216 of the Code.

The matter went on appeal before the Court of Appeal. In the leading judgment, Abban J.A., as he then was, held that the Appellant, as the managing director of SCC and a director of the other three companies, was an officer of the companies. Accordingly, his relationship with those companies continued to be governed by the common law rules of master and servant, irrespective of section 185 of the code. The learned judge also held that the provisions of section 185 are not in conflict with the common law rules. The company was therefore under no obligation to resort to the procedure under section 185 before the Appellant could be dismissed from his office as a director or as a managing director. The company, in the view of the learned judge, could choose either to adopt the procedure under section 185 or proceed in accordance with the principles of common law and equity as provided by section 216, depending on the circumstances of each case.

His Lordship relied on a statement attributed to Professor Gower, as follows:

It is, however, of considerable importance in the case of other officials of the company and of directors who hold some other office such as that of managing director. So far as their offices are concerned it is clear that, notwithstanding that they may hold long‑term agreements, they can be dismissed immediately if guilty of misconduct. Any breach of their fiduciary duties clearly suffices.[22]

His Lordship also relied on the decision in the case of Boston Deep Sea Fishing and Ice Co v. Ansell.[23] In that case, the defendant, who was the managing director of the plaintiff‑company, contracted on behalf of the company for the construction of certain fishing‑smacks. Without making a disclosure to the company, he took a commission from the shipbuilders. The defendant was also a shareholder in other companies, which paid bonuses to shareholders who, as owners of fishing‑smacks brought business to those companies. The defendant employed these companies for the plaintiff’s smacks but received the bonuses for himself. It was held that the receipt of the commission from the shipbuilding company was a good ground for the dismissal of the defendant from office and that he had to account to the plaintiff‑company for the bonuses received from the ice and fish carrying companies. In the course of his judgment, Bowen L.J. said:

 There can be no question that an agent employed by a principal or master to do business with another, who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence, or whether it be given to him on any other ground at all.[24]

 Abban J. A., as he then was, also relied on the dictum of Lord Esher M.R. in Pearce v. Foster[25] thus:

But the question is, whether the breach of duty is a good ground for dismissal. I have never hitherto had any doubt that that is the true proposition of law … Innumerable circumstances have actually occurred which fall within that proposition, and innumerable other circumstances which never have yet occurred, will occur, which also will fall within the proposition. But if a servant is guilty of such a crime outside his service as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master; and if the servant’s conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.[26]

 His Lordship further referred to the statement by Lopes L.J. in the same case thus:

 If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing servant.[27]

In the Adams Case, the Court of Appeal concluded that the Appellant, as found by the learned trial judge, had not only breached his fiduciary obligation towards the company as required by section 203 of the Code, but had also committed acts of serious fraud and criminal misconduct in his dealings with the company. The Appellant, in the view of the court, was guilty of immoral and untrustworthy conduct, and that it would have been highly prejudicial to the interests of the company to keep him. Prompt and swift action was therefore required to safeguard the interests of the companies, and immediate summary dismissal was the right answer and that was justified under the common law.


Applying Rules of Common Law and Equity

I respectfully disagree with the decision of Court of Appeal, in respect of the applicability or otherwise of section 185 in such matters. It is my view that notwithstanding any existing rules of common law and equity the power of the company in general meeting to remove a director cannot be lawfully exercised without recourse to section 185.

My contention is that both sections 7 and 216 of the Code state clearly that the rules of common law and equity are applicable only to the extent that they are not “inconsistent with” the provisions of the Code. The Code is silent on how the ‘inconsistency’ is to be determined; but the dictionary definition of the word “inconsistent” is “contrary, the one to the other, so that both cannot stand by the acceptance or establishment of the one implies the abrogation or abandonment of the other”.[28]

There is no question about the mandatory and binding nature of the provisions of the Code. Where such provisions differ or depart from existing rules of common law or equity, latter rules are, in my opinion, rendered redundant in Ghana. Accordingly, the rules of common law and equity, under sections 7 and 216, apply only where the Code is silent on a particular matter. As long as different provisions have expressly been made under the Code on a matter, the rules of common law and equity are redundant.

For instance, there are other provisions in the Code, such as the rules on pre-incorporation contracts,[29] ultra vires transactions[30] and the variation of class rights,[31] which differ from the rules under common law and equity. It is my opinion that a court faced with a decision on any of the above matters cannot ignore the express provisions of the Code, and then apply the pre-existing rules of common law and equity, relying on section 7 of the Code. Those rules of common law and equity are equally redundant.

The same applies to the provisions of section 185 of the Code. I contend that even if common law and equity allow the company in general meeting to summarily dismiss of officers of a company, section 185 is clear that in respect of directors qua directors, the company in general meeting must follow the laid down procedure. To the extent that the section 185 differs from any procedure for the dismissal of a company’s officers under common law and equity, there is an inconsistency; and to the extent of that inconsistency, section 185 must prevail over the rules of common law and equity.

The shareholders in the Adams Case could not rely on rules of common law and equity to effect the removal of a director. They were bound to follow the mandatory procedure under section 185. It is therefore my respectful opinion that the Court of Appeal and the High Court erred upholding the error of the shareholders in that case.


Shareholders’ Resolution

My contention here is that in the absence of provisions in the Regulations or a service agreement that expressly vests power in the company in general meeting to remove a director by any other means, the members are bound to follow the section 185 procedures. It is only where such other provisions exist in the Regulations or relevant service agreement, that the company in general meeting has an option whether to follow the section 185 procedures, on the one hand, or some other provisions of the Regulations or service agreement, on the other hand.

Section 185 (1) of the Code provides as follows:

Subject to the provisions of section 300 of this Code and to the following subsections, a company may by ordinary resolution at any general meeting remove from office all or any of the directors notwithstanding anything in its Regulations or in any agreement with any director. [Emphasis added].

 Under section 27 of the Interpretation Act, 1960 (CA 5) the word “may” is generally to be interpreted as “permissive and empowering, and therefore discretionary”, unless where a contrary intention appears in the enactment in question. What this means that the use of the word “may” in a statute only has that general meaning, if it accords with the context of the entire enactment in question. In Sasu v. Amua-Sekyi[32] the general interpretation of the word “may” as “permissive and empowering and therefore discretionary” was held to be a “prima facie presumption,” which could be contradicted; in other words that interpretation is a rebuttable presumption – an inference of law which holds good only to the extent that it is not invalidated by proof or a stronger presumption.[33]

It is my opinion that the very wording of section 185 (1) lends itself to the conclusion that the use of the word “may” was intended by the framers of the Code not to vest in the company a discretion as to procedure, but a discretion as to whether or not to remove a director. What the subsection therefore does is to permit or empower the members in general meeting, or vest in them the discretion, to remove a director (in accordance with the section 185 procedure), in spite of any provision in the Regulations or any agreement with the affected director. However, when the members in general meeting seek to exercise that power, they are bound to proceed in accordance with the section 185 procedures.

I must further point out that section 185 (1) is expressly made “subject to the provisions of section 300[34] and to the [other] subsections” of section 185. The effect of these words is to subsume section 185 (1) to those other subsections.[35] Section 185 (1), therefore, cannot be interpreted on its own without a reference to the whole of section 185, as well as the entire Code. As I have already noted there is in the Code, clear indications that the word “may”, as used in section 185 (1), is not intended to be “permissive” in respect of the procedure, but only empowers the company in general meeting to remove a director notwithstanding any provisions to the contrary in the Regulations or service agreement.

From a close reading of section 185 (2) “a resolution to remove any director shall not be moved at any general meeting”, [Emphasis added] unless (i) the required notices have been given, and (ii) section 185 as a whole has been followed. According to the Interpretation Decree, the word “shall” in any enactment is construed as imperative. The wording of section 185 (1) and (2) therefore have the effect of subjecting the power given by section 185 (1) to the company in general meeting to remove a director, to the section 185 procedures. Therefore whilst section 185 (1) empowers or permits the company in general meeting, or vests in that body the discretion, to remove a director by an ordinary resolution, that power, permission or discretion cannot be exercised to pass that resolution unless the section 185 procedures have been complied with.

From the facts of the Adams Case, the shareholders passed a resolution removing the Appellant as director. Under section 185 (2), such a resolution “shall not be moved”, and should not have been passed at that meeting, without the company complying with the requirements of the entire section 185.

Section 153 of the Code further supports the view that the procedure under section 185 is mandatory where the company in general meeting is seeking to remove a director. Under that section, where a notice of an annual general meeting contains a statement that the purpose of the meeting is to transact “the ordinary business” of an annual general meeting, that notice shall be deemed to be a sufficient specification that the business is to declare dividends, consider directors’ and auditors’ reports and accounts, elect directors, fix the remuneration of auditors, and “if the requirements of [section] … 185 are duly complied with, the removal… of directors.” Section 153 therefore buttresses the point that the company in general meeting unless the section 185 procedures have been followed cannot remove a director.

Section 272 of the Code provides more support for this position by providing that the removal of directors of private companies shall be regulated by the company’s Regulations, subject to section 180 to 185 of the Code, and that absent any contrary provisions in the Regulations, “each of the existing directors shall continue to hold office until he vacates office under section 184 of this Code, or is removed under section 185” [Emphasis Added]. This section shows further that there is no room under the Code for the summary removal of a director under section 216.

The summary removal of the director by way of a shareholders’ resolution in the Adams Case could have been justifiable under section 272 if there were provisions for same in the Regulations or any service agreement with the affected director. Then the company could have had Abban J.A.’s “option” of either following the section 185 procedures or summarily removing the director. The company in the Adams Case could also have relied on ‘deemed termination’ provisions in its Regulations, i.e. where a director is deemed to have been removed from office upon the happening of a certain event. Such provisions would have been valid and could have been applied under section 272 without section 185 necessarily coming into play. However, there was no evidence that any such provisions existed or were applied. The bare facts of the case show that Adams was removed on the authority of a shareholders’ resolution, which the shareholders are entitled to pass under section 185 “notwithstanding anything in [the company’s] Regulations or in any agreement with any director.” But in deciding to remove the director on the authority of a shareholders’ resolution, the shareholders were bound by section 272; and they indeed triggered the provisions of section 185, which meant that that resolution could “not be moved” unless the requirements under that section had been followed. My respectful opinion is that the court erred upholding this mistake of the shareholders.


Misreading of Professor Gower

I further humbly submit that Abban J.A., as he then was, may have been misled in arriving at that conclusion by misreading a statement made by Professor Gower. In arriving at his decision, Abban J.A., as he then was, felt fortified by the following statement made by Professor Gower:

It is, however, of considerable importance in the case of other officials of the company and of directors who hold some other office such as that of managing director. So far as their offices are concerned it is clear that, notwithstanding that they may hold long‑term agreements, they can be dismissed immediately if guilty of misconduct. Any breach of their fiduciary duties clearly suffices.[36] [Emphasis Added]

 With due respect to His Lordship he misread this statement and then applied it completely out of context, which, unfortunately, led to a flawed decision. A careful reading of the statement in question reveals that although Professor Gower stated that “other officials of the company” could be summarily dismissed on grounds of misconduct, he clearly qualified the application of such a procedure to directors by saying that it only applied to “directors who hold some other office in the company” i.e. executive directors.[37] Thus all Professor Gower says in that statement is that an executive director (such as a managing director) may be summarily dismissed from his executive position if he is found guilty of misconduct.

Indeed, in the immediately preceding sentences, the learned Professor had clearly argued that this right of a master to dismiss a servant summarily, has no application to a director as such, who may only be

 dismissed from his directorship by ordinary resolution subject to compliance with the provisions of section 184. The provisions of this section are mandatory and clearly cannot be dispensed with because it is alleged that the director has been guilty of misconduct.[38] [Emphasis Added]

 It was after taking this definite and categorical position that Professor Gower made the statement that the Court of Appeal quoted and relied on. The learned Professor therefore made a clear distinction between directorships per se and the holding of other offices in the company by a director, such as the office of a managing director. He argued that so far as those other offices are concerned, directors could be dismissed immediately if guilty of misconduct. Thus, even in the view of the learned Professor, summary dismissal may only be carried out in respect of the executive positions that such directors may hold, and not in respect of the office of a director. Accordingly, although a company may summarily dismiss a director as managing director or some other executive position, he cannot be summarily removed as director without recourse to the provisions of section 185, which provisions, in Professor Gower’s own words, are “mandatory”.


Power to Dismiss a Managing Director

It is important as this point to clarify the issue of the dismissal of managing directors of companies. Schedule 1, Subject 4 of the Code defines the term “Managing Director” to mean, “a director to whom has been delegated some of the powers of the board of directors to direct and administer the business of the company.” [Emphasis Added]. It is my opinion that generally, the company in general meeting has no power to dismiss a managing director as a manager; that power belongs to the directors.

On the basis of section 137 of the Code, directors exercise, not only the powers expressly vested in them under the Code and the company’s Regulations, but also all powers that are not, under the Code or the Regulations, required to be exercised by the company in general meeting. This is especially the case in respect of matters relating to the company’s business management. The Code does not give shareholders the power to remove the managing director from that office, but in section 193, expressly vests in the directors, the power to appoint and remove a managing director, subject to any provisions to the contrary in the Regulations. The directors, as part of the power to appoint a managing director, confer on the appointee any of their powers on such terms as they deem fit. Subject to the terms of any service agreement, it is the directors who may revoke (summarily or otherwise) the powers granted to the managing director. Indeed under section 12 (1) of the Interpretation Act, it is the person who, under an enactment, has the power to appoint to an office, who has the power to remove the appointee.

Shareholders have no such direct power, and a shareholders’ resolution purporting to remove a managing director as manager, in my opinion, will be either a nullity,[39] or, at best, only a recommendation to the directors under section 137 (4). It is my view that there are, however, four instances in which the shareholders may effect the removal of a managing director. These are where:

(i)   the Regulations expressly vest such a power in the shareholders,

(ii)  the directors are disqualified from acting,[40]

(iii) there is a deadlock on the board,[41] or

(iv) the shareholders remove the managing director as a director.

Except in any of the above instances, shareholders do not have the power to remove a managing director from that office. For the shareholders in the Adams Case, option (iv) above would have been the proper procedure to adopt (subject to compliance with section 185), because under section 193 (b) of the Code, the appointment as managing director would terminate automatically if the appointee ceases to be a director.


Separate Existence of Parent and Subsidiary Companies

There is yet another intriguing point worth noting, which arises from the Adams Case and raises further questions about the procedure followed by the shareholders in that case. The resolution in question was passed by the shareholders of WCGC who purported to remove the Appellant “as a director of Solid Construction Co. Ltd. and the other companies within the West Coast Group.” There was no evidence that “the other companies in the West Coast Group” also passed respective resolutions to the same effect or had authorised WCGC to perform any such functions in the name of the subsidiaries. It would therefore appear that the shareholders of the parent company, WCGC, took it upon themselves to remove the Appellant as a director of the subsidiary companies at a general meeting of WCGC’s shareholders.

It is my respectful view this step was also flawed. Section 24 of the Code provides that upon incorporation, a company has all the powers of a natural person of full capacity. A company becomes a legal entity, which is separate and distinct from the legal personality of its members. It has its own rights and duties, and it is recognised by law as an entity in its own right.[42] Accordingly, a parent company cannot unilaterally purport to act on behalf of its subsidiaries, unless an express power is given to it to act as such.

All the shareholders of WCGC in general meeting had power to do was to remove the Appellant as a director of WCGC. They had no power to pass a resolution removing him as a director in the subsidiary companies, even if the same persons were the shareholders of all the companies in the group. On this ground as well, the Court of Appeal erred in not striking down that removal from office as being illegal and improper.


Applying the rule in Foss v. Harbottle?

It is arguable that the Court of Appeal could still have upheld the actions of the company in the Adams Case, not on the basis that compliance with section 185 was neither required nor mandatory, but by applying the so-called rule in Foss v. Harbottle[43] to the effect that the courts will not interfere in the internal management of a company because “whilst the court may be declaring the acts complained of to be void… the governing body of proprietors may defeat the decree by lawfully resolving upon the confirmation of the very acts which are the subject of the suit.”[44]

Mellish L.J. expounded this rule in MacDougall v. Gardiner[45] thus:

 If the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called and then ultimately the majority gets its wishes.[46]

 This rule has also been upheld in Ghana, in the case of Pinamang v. Abrokwa[47], per Lamptey J. A., as he then was, thus:

… the rule in Foss v. Harbottle … must be observed by the trial court and it must not inquire into matters of internal management or, at the instance of a shareholder, interfere with transactions which though prima facie irregular and detrimental to the company, are capable of being rectified by an ordinary resolution of the company in a general meeting.[48]

 In Bentley-Stevens v. Jones[49] the plaintiff had been removed from his directorship by an ordinary resolution passed at an allegedly irregularly convened general meeting. The court refused his application for an injunction, holding that the irregularities were inevitably curable. Indeed, even where a company has been previously restrained on the ground that a director has been improperly removed from office, the court will discharge the injunction and decline to assist the affected director any further by injunction, if, after the grant of the injunction, the shareholders, by resolution declare that they do not wish the particular director to act any longer.[50]

In the Adams case, the Court of Appeal, in my opinion, should have held that the procedure adopted by the shareholders was irregular. Then the Court, on the authority of Foss v. Harbottle, could arguably have rejected Adams’ application on the ground that it was an invitation to the court to regulate the internal matters of the company, and that since his removal was something that the majority was entitled to do (even though it had been done irregularly), the majority would still have its way by simply calling a meeting to regularise the irregularity. Such a holding, in my view, would have been a more acceptable application of the principles of company law as enshrined in the Code and the rules of common law and equity under section 7.

However, the difficulty with this position is that section 217 of the Code contains clear exceptions to the rule in Foss v. Harbottle, as the section seeks to prevent illegality, acts ultra vires the company, infringement of the company’s Regulations and acts that are based on improperly passed resolutions, i.e. resolutions that are not in accordance with this Code and the company’s Regulations. However, this should have presented no difficulty in the Adams Case because it is only members of the company who can only bring an application under section 217; and the court had found that Adams was not a member. He was therefore not competent to make an application under section 217.

In sum, it is my opinion that the decision in the Adams Case on the removal of directors by companies was wrong in law. The company should have complied with the section 185 procedures. It did not. What the Court could arguably have done to uphold the decision of the company was to apply the rule in Foss v. Harbottle to regularise the irregularly passed resolution of the company. It was, respectfully, wrong in law for the Court of Appeal to hold that a company could choose to ignore section 185 in removing a director, in favour of the rules of common law and equity.



  1. Other Grounds for the Removal of Directors

A director who has validly been appointed by the company, but who is subsequently affected by sections 182 and 186 of the Code can be removed from office. Under the combined effect of those sections the following classes of persons are statutorily barred from being appointed as directors:

  • infants,[51]
  • bodies corporate,[52]
  • persons certified as being of unsound mind by any competent court in or outside Ghana,
  • adjudicated bankrupts,
  • persons who have been involved in either offences involving fraud, dishonesty, breach of duties in relation to bodies corporate, or offences in connection with the promotion, formation or management of bodies corporate, and
  • persons classified as incompetent by the Regulations of the relevant Company.

It is my view that although the court may be called upon to declare as void the purported appointment of any such person as a director, this would not amount to the removal of a director per se since the purported appointment itself was void ab initio. What is of particular relevance for the purpose of this discussion is how to remove from office a person who may have been validly appointed as a director but who subsequently falls foul of the above ‘competency’ rules. This obviously has no application to (i) and (ii) above.

Section 184 (1) of the Code provides that the office of director “shall be vacated” if the director becomes ‘incompetent’ to act as director by virtue of the provisions in section 182. It is unclear whether this provision should be read as that the office ‘shall be deemed to have been vacated’ or that ‘the affected director shall vacate’ the office. I would opt for the latter interpretation so that an affected director would be expected by law to vacate that office voluntarily, and of his own accord cease to direct or administer the affairs of the company. However, if he fails to do so, the company may remove him by resorting to the section 185 procedures or applying to the court for the enforcement of the terms of the resolution passed.


Certified Lunatics

If a person who has been duly appointed as director of a company subsequently suffers from mental illness and is certified by court of competent jurisdiction to be of unsound mind, does not, or cannot, voluntarily vacate the office as is required under section 184 (1), the company, in my view, would have the option of either removing him by recourse to the section 185 procedures or applying to the court for the enforcement of the terms of the resolution passed.


Adjudicated Bankrupts

The disqualification of “adjudicated bankrupts” raises very interesting questions vis-à-vis the fact that this provision was inserted with the obvious expectation that the Insolvency Act, 1962 (Act 153) would be brought into force.[53] That has never happened, for some inexplicable reason. In what circumstances, would the courts remove an adjudicated bankrupt as directors? The Supreme Court had to grapple with this question in the case of Republic v. High Court, Accra; Ex Parte Ploetner[54] where it was urged on the court that only persons adjudicated bankrupts in Ghana and not foreign bankrupts are contemplated by section 182 (1) (e) of the Code. The argument was made, further, that the section 182 (1) (e) of the Code is a dormant legislative provision since Ghana does not have insolvency legislation, and that was that until such legislation was passed in Ghana there could be no bankrupts in Ghana and no question of either restraining bankrupts or removing them as directors would arise.

In the lead judgment of Taylor JSC, the court rejected this argument as being “clearly non sequitur” and “unacceptable” on two grounds. First, although the judiciary has not had bankruptcy jurisdiction reposed in it, a number of cases dealt with by the courts in the decade following the establishment of the Supreme Court in 1876 demonstrated clearly that bankruptcy as a status with its incidents was recognised by Ghana law. The argument therefore ignored the fact that the status of a bankrupt is not unknown to Ghana’s legal system notwithstanding the absence of legislation vesting jurisdiction in bankruptcy in the courts.

Second, section 182 (1) (e) has to be read together with section 186 (1) (b) which gave the High Court jurisdiction inter alia, when “a person is adjudicated bankrupt whether in Ghana or elsewhere” to suo motu restrain him from acting as director without the leave of the court. In the view of the court, the combined effect of these two provisions gave jurisdiction to the court in appropriate circumstances to restrain persons adjudged bankrupt whether in Ghana or outside the jurisdiction of the courts from managing companies in Ghana as directors. Accordingly a person who is adjudged bankrupt outside Ghana is incompetent to act as director of a company in Ghana without the leave of the court. In the instant case, the court held that had the proceedings been regular and had admissible evidence been adduced whether by affidavit or otherwise to establish that Mr. Ploetner was adjudged bankrupt in Germany, he would have been disqualified as a director of the company although no court in Ghana had so adjudged him bankrupt. In the view of the court, a contrary view of this matter would have “the pernicious effect of unleashing foreign bankrupts on Ghana.”

It is my view, from the foregoing, that a duly appointed director who is subsequently adjudged to be bankrupt may be removed in any of three ways:

(i)   by the shareholders resorting to the section 185 procedures,

(ii)  by the court under section 186, on the application of the Registrar, the Official Trustee, the trustee in bankruptcy or the liquidator of the company, or

(iii) by the court on its own motion in respect of any proceedings before it. The director may nevertheless seek and obtain the leave of the court to continue as a director.[55]

I note that neither company nor the shareholders has/have the capacity to make an application to the court for the removal of an adjudicated bankrupt under section 186. Such a company may have to, first, notify the Registrar of Companies to make the relevant application in court. However, in my view, the company is not limited to this option. I would suggest that a company faced with such a situation should require the affected director to voluntarily vacate his office under section 184 (1) or remove him from office in accordance with section 185. If he refuses to comply with the terms of the resolution, then the company may apply to the court for the enforcement of the terms of the resolution passed.


Fraudulent Persons

Section 186 (1) provides for the disqualification of directors who are guilty of certain offences or misconduct. Under section 186 (1) (a), a disqualification order may be made as a result of a conviction on indictment of any office involving fraud or dishonesty (not necessarily one relating to a company). Any court (whether inside or outside Ghana) may make the conviction that forms the basis of a disqualification order. However, only High Court in Ghana can make the actual disqualification order, and if the person is convicted by the High Court, the court, in making the conviction, can also make the disqualification order.[56] By virtue of section 186 (1) (b) the disqualification order may also be made in respect of misconduct in relation to bodies corporate, and this can be invoked whether or not there has been a conviction.

The court in the Adams Case, on its own motion, invoked the provisions of section 186 of the Code and made a disqualification order against the Appellant, restraining him from having anything to do with the management of any company incorporated in Ghana, for four years, except with the leave of the court. The court took the opportunity to explain that the object of section 186 is to safeguard the interests of persons who invest in or give credit to companies, and to ensure that the assets and investments were managed only by honest persons as directors and not by frauds or persons with criminal propensity. Thus, irrespective of the type of proceedings before the court, the court had the discretion to resort to section 186, and in a fitting case, make an order on its own motion preventing criminals and fraudulent persons from managing companies.

The court further established that section 186 (1) (c) does not require conclusive proof of a criminal offence, and the person concerned need not be convicted of the offence. All that is required is that it should appear to the court that the conduct of the person or the matters complained of amounted to a criminal offence and like the breach of duty or fraud, the crime should have been committed in relation to a body corporate.

I agree with this aspect of the decision in the Adams Case, which, in my view, was a flawless application of section 186 of the Code by the Court. I would however repeat that in a proper case, and particularly because the company does not have capacity to initiate such proceedings on its own, the company may require such a director to voluntarily vacate his office under section 184 (1) or remove him via the section 185 procedures, and where necessary, obtain a court order upholding the relevant resolution.


Failure of obtain share qualification

Section 183 provides that a director who is required by the Regulations to hold a specified share qualification must obtain that within two (2) months of his appointment or other shorter period fixed in the Regulations. The office of a defaulting director “shall be vacated” and the director shall be incapable of being re-appointed unless he obtains the qualification. Similarly, if the company amends its Regulations so as to introduce or increase directors’ share qualification, every existing director will have two (2) months within which to obtain his qualification and shall vacate his office if he fails to meet the qualification.

I would repeat my view that the law expects such a director to vacate that office voluntarily under section 184 (1). If he fails to do so, the company may remove him by resorting to the section 185 procedures and/or apply to the court for the enforcement of the provisions of the Regulations and the Code.


Removal under the Regulations

Section 184 (2) of the Code provides that the Regulations of a company may lawfully provide additional grounds for the termination of office of directors. Accordingly, the Regulations may empower the directors to remove some of their number.[57] Regulations may also contain provisions for the ‘deemed termination’ of office where other directors request a director’s resignation,[58] retirement of directors by rotation, or the directorship being contingent on the nomination of a particular shareholder or the director holding some other office. The removal of a director under any of such provisions in the company’s Regulations is legal, valid and enforceable under section 184, and accordingly does not require the application of the section 185 procedures.


VI. Pinamang v. Abrokwa (the “Pinamang Case”)

Yet another provision of the Code with a bearing on the removal of directors is section 218. Under section 218, a member or debentureholder of a company, or the Registrar may apply to the court for an order that (i) the affairs of the company or the powers of the directors are being exercised in a manner that is oppressive to a member or debentureholder, or in disregard of his proper interest as a member, shareholder, officer or debentureholder, or (ii) some act of the company has been done or threatened, or some resolution passed or proposed that unfairly discriminates against or is unfairly prejudicial to a member or debentureholder.

If the Court makes a finding of oppressive or unfairly prejudicial conduct, section 218 (2) gives it a very wide discretion to make any orders as it thinks fit, “with a view to bringing to an end to or remedying the matters complained of”. However, is it within the ambit of this provision for a court could remove a director on the grounds that that would bring to and end or remedy the matters complained of?

The Pinamang Case provided an opportunity for the Court of Appeal to pronounce on this issue. The applicants brought an action under section 218, claiming that as shareholders, the defendant was conducting the affairs of the company in a manner oppressive of them and in disregard of their interests. One of the consequential reliefs sought by the applicants was formulated as follows:

 an order that the current chairman of the board of directors of the company be removed from the board.

 The Court of Appeal unanimously rejected the application. In the words of Lamptey, J. A., as he then was:

 The first observation I wish to make is that Act 179 specifically provided for the procedure and the mode for the removal of a director of a limited liability company under section 185. Prima facie, to remove a director of a company from the office of a director, the procedure spelt out under section 185 of Act 179 must be followed by the company. It seems to me that the applicants must satisfy the court that resort to section 218 of Act 179 had become necessary as a final and last resort. In other words, the affidavits of the applicants must on the face of it show that the applicants resorted to section 185 without avail and without success. That as a last resort, the almighty power of the court must of necessity be called in aid of the applicants. There was no evidence to show that the applicants had unsuccessfully attempted to remove the named director chairman pursuant to section 185 of Act 179. It is only after this unsuccessful exercise pursuant to section 185 of Act 179 that resort to section 218 of Act 179 could be justified. The lower court, in my opinion, had no jurisdiction to hear and determine the relief sought under head (b) of the reliefs. The complaint made under head (b) is not one envisaged by section 218 of Act 179 and should have been refused and dismissed in limine by the learned trial judge.

 The effect of this statement is that once the Code had made specific provision for the procedure for the removal of a director under section 185, it is the view of the court that prima facie, that procedure spelt must be followed by the company, to remove a director of a company from the office of a director. The applicant had to satisfy the court that resort to section 218 had become required only as a final and last resort, having resorted to section 185 without success. Thus until an applicant has exhausted the section 185 procedures, the court would have no jurisdiction to hear and determine the relief sought.



The decision of the Court of Appeal in the Pinamang Case would appear to contradict the earlier decision of the High Court in Vambaris v. Altuna,[59] where the court considered whether it could make an order setting aside the improper appointment of a director on an application made under section 218. In that case, two foreign businessmen, Vambaris and Altuna, had sought professional advice from two lawyers, Kuma and Okudjeto, leading to the formation of a company, with the businessmen and Kuma as shareholders and directors, and Okudjeto as a paid Secretary-Solicitor. Subsequently, Kuma suggested that Okudjeto be made a director, which was done. Vambaris later applied to the court under section 218 of the Code, complaining, inter alia, that the manner in which Okudjeto was made a director was oppressive.

Hayfron-Benjamin J., as he then was, held that by virtue of the relationship between solicitors and clients being a fiduciary one, it imposed special obligations on the solicitor. In his dealings with his client, a solicitor was to exercise the utmost good faith, and transactions between him and his client should not be upheld unless it could be established that they were effected by the exercise of the client’s will without influence on the part of the solicitor. Since Okudjeto’s appointment was on the advice of a solicitor who was also a director of the company, the advice could not be independent legal advice given without influence. In the circumstances His Lordship held that the appointment was improper and constituted oppressive conduct. His Lordship then stated as follows:


The only question remaining is whether this court can make an order setting aside an improper appointment as a director … on an application made under section 218 of the Companies Code … The section gives the court wide judicial discretion to make such order as it thinks fit with a view to bringing to an end the matters complained of. Pennycuick J. in In re Jermyn Street Turkish Baths Ltd. [1970] 1 W.L.R. 1194 at p. 1208 said the judicial discretion given in a similar section under the English Companies Act, 1948 (11 & 12 Geo. 6, c. 38), is unlimited. Our Code definitely gives power to the court to direct or prohibit any act or cancel or vary any transaction or resolution: see section 218 (2).[60]


The court further held that being the solicitor to the parties and to the company, Mr. Okudjeto should not have become a director in the circumstances since it was his own senior partner in law practice who suggested him for the directorship. Consequently, the court ordered Mr. Okudjeto to file an account of all sums he has received as a director of the company, and sums found to have been obtained by him as a result of his directorship was to be paid by him to the company.

It would appear that the effect of this decision by the High Court was that the court, under section 218, could remove a person as a director if his appointment is found to be improper and oppressive. I however think that from a close reading of the case, taking into consideration the consequential orders made by the court, the holding of the court was, rather, that Mr. Okudjeto’s appointment was improper and should not have been made in the first place. So that Mr. Okudjeto was, technically, not being removed from office. The legal validity of the appointment itself was being disputed; and it has been established that provisions such as section 185 do not apply where the appointment of a person as a director is itself being disputed.[61] What the court did in Vambaris v. Altuna was to set aside the ‘appointment’ to the extent possible, by for instance, ordering Mr. Okudjeto to account for and refund any financial gain that he may have made. That, respectfully, is different from a situation where the director who has been duly and properly appointed under section 179 is being removed from office.

It is in respect of the latter position that the Court of Appeal in Pinamang has set important boundaries on the power of the court to remove directors, within and outside the scope of its powers under section 218, and from which I have drawn the following significant conclusions:

  • primarily, the court has the power to remove a director from office but will exercise this “almighty power of the court” with extreme caution; and
  • recourse to the section 185 procedures is mandatory in seeking to remove a director from office, and is a condition precedent to any application to remove a duly appointed director.

The latter conclusion also directly contradicts the decision of the same court (albeit differently constituted) in the Adams Case. It is interesting to note that although the Court of Appeal in the Pinamang Case made reference to the Adams Case, the court did not comment on the application of section 185 in the Adams Case and the views of Abban J. A., as he then was, in that case that the procedure under section 185 was not mandatory. Rather, what the Court did was to subtly express a different view that section 185 “must be followed” by the company if it seeks to remove a director from the office. I cannot argue that Abban J.A.’s views on section 185 in the Adams Case have been overruled in the Pinamang Case. However it is my view that the decision in the Pinamang Case is a proper and obviously a more cautious application of section 185, which ought to be followed by our courts, and not the decision in Adams Case, which in my view, is flawed for all the reasons already stated.

I concede that in provisions such as section 218 the Court is called upon to exercise its discretionary powers, and must consider each case on its own merits. Nevertheless, the Court of Appeal’s caveat in Pinamang is a welcome guide, and it is desirable that any court that is faced with an application that has the effect of seeking the removal of a director, must exercise its discretion with much caution, especially where the applicant has not complied with section 185. Directors, to all intents and purposes, hold office at the pleasure of the majority of the shareholders. If the majority is unwilling to remove a person as a director, the Court ought to be very circumspect in overturning its wishes. As was also stated in the Pinamang Case, the Court ought to ensure that the application is being made with the genuine object of obtaining the relief claimed and not for exerting pressure in order to achieve the collateral purpose of removing a director.

In as much as I agree with this decision of the Court of Appeal in the Pinamang Case, it is my contention that the court’s pronouncement on the mandatory nature of the section 185 procedures should be limited to what it was intended to be, i.e. to govern the removal of directors by the company in general meeting. My concern is that section 185 is not a condition precedent to each and every removal of a director from office. As has been pointed out above, the Regulations and service agreements with directors may contain provisions, which would effectively remove a director from office, although these do not preclude a recourse to section 185 by the company in general meeting. If an application were made to the court for the enforcement of any such provision in the relevant service agreement or Regulations, which would also mean effectively removing the affected director, recourse to section 185 would not be a condition precedent.

Further, a court may also enforce section 183 of the Code, and remove a director who fails to obtain share qualification (where that is required), notwithstanding the fact that the shareholders may not have taken steps to remove the director through the section 185 procedures.

It is arguable, although largely unforeseeable and remote, that a court may even order the removal of a director on grounds of equity, where a wrong has been committed that calls for his removal, and which is not covered by any of the provisions of the Code. This is because “equity will not suffer a wrong to be without a remedy”, and the scope of this maxim is that no wrong should be allowed to go un-redressed if it is capable of being remedied by courts of justice. The effect of such orders by the Court would be to remove a director from office. It is my view that an applicant in such matters will not have to show that he has exhausted the section 185 procedures before making an application to enforce these provisions of the Code.

However, it is important that the courts do not encourage persons who may seek the removal of directors, but are unwilling to comply with the democratic procedure in section 185. Applications by such persons to the court must be rejected as an abuse of the powers of the court.


VII. Conclusions

It is not my intention to insist on a strict doctrinaire application of technical rules even in the face of obvious injustice. If a director commits a wrong to a company, there are adequate provisions in the Code to remedy the situation. The rules on the removal of directors in accordance with the provisions of the Code have obvious foundations in general principles of justice and convenience. It should therefore be for only very urgent and vital reasons that the Court must depart from the established rules under the Code, because, after all “equity follows the law”; so that where a statute is direct and governs the case with all its circumstances or the particular point, a court of equity is bound to follow it. It is only where there is some important matter disregarded by the statute that equity would interfere.[62] It is my respectful opinion that there was nothing in the Adams Case both to support a departure from the rules under the Code and to ground a reliance on equity.

Thus, on the application of section 185, the Adams Case was wrongly decided. As noted, the procedure laid down by the Code for the removal of directors by shareholders was not shown in that case to be inadequate to deal with the matter facing the company. It appears from the case that all the shareholders were in agreement that the offending director should be removed. There was therefore no justification for the company avoiding section 185, which maintains a balance between the right of the majority to remove a director and affording the director an opportunity to be heard in his defence, even if he fails to take advantage of that opportunity.

In conclusion, if a company in general meeting seeks to remove a director from that office, it must follow the procedure under section 185 of the Code. It cannot effect the removal by way of a summary dismissal, in a purported reliance on the rules common law and equity, under section 216, and completely disregard section 185. The rules of common law and equity are applicable under section 216 only to fill the gaps, where the Code is silent on a matter. Thus, it is only in situations that are not covered by the Code, that the court may rely on the rules of equity and do that which it considers to be just and equitable under the circumstances, including the removal of the director.

Further, and in respect of the power of the Court to remove directors, I would recommend that the power of the Court to remove a director, where such a power exists, should be exercised with much caution. Admittedly, equity frees the Court from the fetters of strictly applying technical legal considerations and confers on the Court power to do what appears to be ‘just and equitable’. Where a statute vests a matter within the discretion of the court, it calls into play the good sense and judgment of the court. However, in exercising that discretion, the court would have to be guided by law. The discretion, therefore, means sound discretion guided by law, not vague, arbitrary and fanciful action.[63] The individual judge cannot just disregard existing rules and do whatever he happens to think fair.

It would be appropriate to end this discussion with the statement of Warner J. in Re J.E. Cade & Son Ltd. [1992] B.C.L.C. 213 at 217 that a court may have a very wide discretion, “but it does not sit under a palm tree.”

 The ‘just and equitable’ provision does not … entitle one party to disregard the obligation he assumes by entering a company, nor the court to dispense him from it. It does, as equity always does, enable the court to subject the exercise of legal rights to equitable considerations; considerations … which may make it unjust, or inequitable to insist on legal rights, or to exercise them in a particular way.[64]

  • Senior Lecturer, Ghana School of Law, Accra; Partner, Bentsi-Enchill, Letsa & Ankomah, Legal Practitioners, Accra; Former Lecturer, University of Ghana, Legon. This was originally presented as a paper at the Ghana Bar Association Continuing Legal Education programme on 22nd April 2004. I am very grateful to my friends and colleagues, Kojo Bentsi-Enchill, Janet Kabiru, Hannah Opoku and Kwakyewaa Cantamantu-Koomson, for reading over and commenting on the original script. I am responsible for any errors in this work.

[1] Foss v. Harbottle (1843) 67 E.R. 189, 2 Hare 461.

[2] Aberdeen Rail Co. v. Blaikie Brothers [1843-60] All E.R. 249 at 252.

[3] Final Report of the Commission of Enquiry into the Working and Administration of the present Company Law of Ghana (“Gower’s Report”), p. 25.

[4] id., p. 159.

[5] A person is summarily removed from an office, where he is removed “without ceremony or delay”. See Black’s Law Dictionary, (4th ed.) (West Publishing Co., St Paul Minn., 1951), p. 1604.

[6] This term is defined as “burdensome, harsh and wrongful”; see Re H.R. Harmer Ltd. [1958] 3 All E.R. 689 and per Fred Apaloo, J.A., as he then was, delivering the judgment of the Court of Appeal in the case of Mahama v. Soli [1977] 1 G.L.R. 215.

[7] See Re A Company [1983] 2 All E. R. 36 and O’Neill v. Phillips [1999] 2 All E.R. 961.

[8] The High Court has the jurisdiction to deal with matters arising under the Code. See Schedule 1, clause 2 of the Code and Dolphyne (No. 3) v. Speedline Stevedoring Co., Ltd. [1996-97] SCGLR 514 at 519, per Hayfron-Benjamin, J.S.C.

[9] Pinamang v. Abrokwa [1991] 2 G.L.R. 384, per Lamptey J.A., as he then was.

[10] These are persons who have not been duly appointed as directors but who hold themselves out or knowingly allow themselves to be held out as directors. See Commodore v. Fruit Supply (Ghana) Limited [1977] 1 G.L.R. 241, per Lassey, Jiagge and Kingsley-Nyinah JJ.A.

[11] These are persons who have not been duly appointed as directors but on whose instructions or directions the duly appointed directors are accustomed to act. See Australian Securities Commission v. AS Nominees Ltd (1995) 133 A.L.R. 1 at 52-53.

[12] See Automatic Self-Cleansing Filter Syndicate Co. v. Cuninghame [1906] 2 Ch. 34, and Quin & Axtens v. Salmon [1909] 1 Ch. 311.

[13] Beveridge v. New York El. R. CO., 112 N.Y. 1, 19 N.E. 489.

[14] Per Greer, L.J. in Shaw & Sons (Salford) Ltd. v. Shaw [1935] 2 K.B. 113 at 134.

[15] Lamb v. Lehmann 110 Ohio St. 59, 143 N.E. 276.

[16] Palmer’s Company Law, Vol. 2 (Sweet & Maxwell, London), paragraph 8.302, at p. 8030.

[17] Gower, Principles of Modern Company Law (5th ed.) (Sweet & Maxwell, London, 1992), p. 153.

[18] Okudjeto v. Irani Brothers [1974] 1 G.L.R. 374 at 385.

[19] This is a resolution in writing, and signed by all the members entitled to exercise so-called ‘section 31 powers’, i.e. the power to attend, speak and vote at a general meeting. This mode of passing resolutions appears to have evolved from the so-called ‘doctrine of unanimous consent’ which provides that if all the members who could have attended and voted on any resolution in some way indicate their consent to the proposal, all procedural requirements under the statute would be deemed to have been complied with. A written resolution, however, cannot be used to remove a director or an auditor, since the absence of a meeting will deny the affected party the full opportunity of being heard, in breach of the procedures set out under sections 185 and 135 respectively.

[20] Per Richard Apaloo J. in Adryx Mining and Metals Limited v. Ashanti Goldfields Company Limited (Unreported, Suit No. Misc. 32/2000, 9th February 2000).

[21] [1984‑86] 2 G.L.R. 561.

[22] Gower, Principles of Modern Company Law (3rd ed.) (Stevens & Sons, London, 1969), p. 557.

[23] (1888) 39 Ch.D. 339.

[24] id., pp. 363-364.

[25] (1886) 17 Q.B.D. 536.

[26] id., pp. 539-540.

[27] id., p. 542.

[28] Black’s Law Dictionary (supra. note 5), at p. 907.

[29] Compare section 13 of the Code with e.g. Kelner v. Baxter [1866] LR 2 CP 174 and Newborne v. Sensolid [1954] 1 Q.B. 45.

[30] Compare sections 24 and 25 of the Code with e.g. Re Jon Beaufort (London) Ltd. [1953] Ch. 131 and Ashbury Railway Carriage and Iron Co. v. Riche 33 L.T. 450.

[31] Compare section 47 of the Code with e.g. Greenhalgh v. Ardenne Cinemas Ltd. [1946] 1 All E.R. 512, White v. Bristol [1953] Ch. 65, and Re Mackenzie & Co. [1916] 2 Ch. 450.

[32] [1987-88] 2 G.L.R. 307 at 310.

[33] Black’s Law Dictionary (supra. note 5), at p. 1349.

[34] Section 300 generally provides the procedure for the cumulative voting of directors of a public company, and makes provision to prevent a simple majority from removing directors appointed by the minority. Section 185 (1) is inapplicable in such a case.

[35] See Adryx Metal and Mining Limited v. Ashanti Goldfields Limited, (supra. note 20.)

[36] Gower, Principles of Modern Company Law (supra. note 22), at p. 557.

[37] Section 192 of the Code provides the legal basis for the appointment of so-called ‘Executive Directors’, i.e. directors who are appointed to executive posts in the company.

[38] id. Section 184 of the 1948 English Companies Act, re-enacted as section 303 of the 1985 English Companies Act, is the equivalent of section 185 of the Code.

[39] See Scott v. Scott [1943] 1 All E.R. 582.

[40] See Foster v. Foster [1916] 1 Ch. 532 and Irvine v. Union Bank of Australia (1877) 2 App. Cas. 366.

[41] See Barron v. Potter [1914] 1 Ch. 895.

[42] See the discussion and application of this principle in the cases of Salomon v. Salomon & Co. [1897] A.C. 22, Lee v. Lee’s Air Farming Ltd. [1960] 3 All E.R. 420, Owusu v. R. N. Thorne Ltd. [1966] G.L.R. 90 (per Boison J.) and Barclays Bank v. Lartey [1978] G.L.R. 282 (per Edward Wiredu J., as he then was).

[43] supra., note 1.

[44] id., at pp. 203-204.

[45] (1875) 1 Ch.D. 13.

[46] id., at 25.

[47] supra., note 9.

[48] id., at 388.

[49] [1974] 1 W.L.R. 638.

[50] See the cases of Bainbridge v. Smith (1889) 41 Ch.D. 462 at 456, and Read v. Astoria [1952] Ch. 637.

[51] Under Clause 4 of Schedule 1 to the Code, the term infant applies “any natural person under the age of twenty-one years or such other age as may from time to time be declared by any enactment to be full age for legal purposes.” According to Professor Gower, he found “general agreement for the view that it was objectionable that infants should act as directors” of companies in Ghana (See Gower’s Report, p. 130. See also section 32 of the Interpretation Act and section 1 of the Children’s Act, 1998 (Act 560), which support the view that “on the whole, the age of majority [in Ghana] differs from statute to statute, depending on the purpose for which it is stipulated.” See Dowuona-Hammond, C., “Towards a Uniform Age of Majority in Ghana: Rethinking the Contractual Capacity of Minors”, (1996-99) XX University of Ghana Law Journal 62 at 64.

[52] Professor Gower argues that this is because corporate bodies cannot be entrusted with any tasks involving personal duties of good faith and discretion. (See Gower’s Report, p. 131) Thus, while it is usual for directors to be appointed by bodies corporate with interest in or control over a company, technically, such persons serve in their personal capacities. However, on account of the statutory liability imposed on ‘shadow directors’ under section 179 (2) (b) of the Code, it may not be possible for such corporate bodies to escape liability by hiding behind their appointees to the Board, especially on the basis of the level of influence and control that that corporate body exercises over its appointees to the Board.

[53] Gower’s Report, p. 131.

[54] [1984-86] 2 G.L.R. 107.

[55] See Re Barings plc & Others (No. 3); Secretary of State for Trade and Industry v. Baker & Others [1999] 1 All E.R. 1017, where the applicant who had been disqualified from acting as a director for a period of four (4) years, applied for leave to continue as director of three companies, under section 17 of the English Company Directors Disqualification Act of 1986. In granting the application, the court held that when considering whether or not to grant leave under the Act, a court has to balance the importance of protecting the public from the conduct that led to the disqualification order in the first place, with the need that the applicant should be able to act as a director of a particular company. The court should, in particular, pay attention to the nature of the matters that led to the disqualification order and ask itself whether, if leave were granted, a situation might arise in which there would be a recurrence of those matters.

[56] Gower’s Report, p. 134.

[57] In Bersel Manufacturing Co. Ltd. v. Berry [1968] 2 All E.R. 552, the English House of Lords upheld a provision in the articles of association of a company that its permanent life directors “shall have power to terminate forthwith the directorship of any of the ordinary directors by notice in writing.”

[58] See Samuel Tak Lee v. Chou Wen Hsien [1984] 1 W.L.R. 1202.

[59] [1973] 2 G.L.R. 41.

[60] id., pp. 46-47.

[61] See Currie v. Cowdenbeath Football Club Ltd. [1992] B.C.L.C. 1029

[62] Story on Equity (3rd Ed., 1920), p. 34.

[63] See Achiampong v. Achiampong [1982-83] G. L. R. 1072.

[64] Per Lord Wilberforce in Re Westbourne Galleries Ltd. [1973] A.C. 360 at 379.

20 YEARS ON… (I would do the same thing all over again)

July 12th, 2014

May I reminisce?

11th July 1994 was a Monday. I was still 26, bright-eyed, and a tad confused about life and its twists and turns. At 10:00am, it was definitely a nervous me who was ushered into the room where I was to defend my masters thesis with a long title: THE DESIGN AND OPERATION OF TAX INCENTIVES FOR FOREIGN DIRECT INVESTMENT IN LESS DEVELOPED COUNTRIES.

You see, for the preceding 11 months I had been a student at the Faculty of Law, Queens University, Kingston, Ontario, Canada studying and writing, in an attempt to acquire a Master of Laws degree in International Taxation Law. The course itself was not stressful. Earlier in February, I had indicated to my supervisor, the late Professor Alec Easson (an extremely pleasant Englishman, Oxford and LSE grad), that I thought that I was ready to defend the thesis. He patiently explained to me that my course had a three-semester residency requirement, and that although he agreed that I was ready, I simply had to wait. I absolutely admired and adored Alec. He was the first law teacher to tell me “Ace, my name is Alec, not Prof Easson.” Another time, he said to me, when I was busily regurgitating law, “Ace, I am not really interested in how much law you know. I am more interested in what you think about the law you know.” Alec shaped my life and thinking in more ways than he ever knew, and I quietly mourned him when he died in January 2007.

Thus between March and July, I just had fun. I worked for Alec as his Research Assistant to make some extra money. And then I watched loads of TV. I also spent time discovering the more interesting aspects of Canadian life with my key buddies, Tanzanian lawyer Hamudi Majamba (now Professor of Law at the University of Dar es Salaam) and Barbadian engineer Robert Bascom. And there was fun-loving Camerounian lawyer Nicoline Ambe (who still looks like she is 16), and Ghanaian MBA Aba Cato Andah, who was my movie-watching mate (yeah, Tuesdays were cheap nights). Ah, there was that Christmas 9-hour drive from Kingston to Philadelphia with American human rights lawyer Alan Clark (He has never stopped reminding me we got lost at some point because I couldn’t read, and then I left my passport in his car!!) But easily my ‘classleader’ was Andrea Timoll, whose thesis was on deconstructing Antigone and had coined the word “phallologocentrism.” And the encouragement of Prof Rosemary Ofei-Aboagye King. I wrote, arranged old Joyful Way songs, and did sequencing and pre-production of the songs that ended up on Joyful Way’s 1994 Osabarima album. And I did a lot of “church”, helping to organise a gospel music concert at my church. Incidentally, I am struggling to contact the church now. It seems to have disappeared. Yes, it was months of fun. But I digress.

When I entered the room, the law professors were there, some seated, and others grabbing a cup of coffee. Of course, Prof Easson was there. I also remember that Prof Venkata Raman (whose Foreign Investment/NAFTA course I had audited in the First Semester) was seated. I think the Dean of the Faculty, Prof Don Carter, was also there. And then there was the external examiner, Prof Vern Krishna, International Taxation expert from the University of Ottawa. and the then Executive Director of the National Committee on Accreditation of the Federation of Law Societies of Canada

I was directed to sit in a chair at the head of the table, my heart beating, but at the same time confident. For the next two hours, I thoroughly enjoyed the banter, question and answer, a unique opportunity to joust with my betters, my superiors and established academics in my area of study. At the end of it I was asked to leave the room for the panel to confer. When I was called back, Prof Krishna announced that I had passed, and that all I had to do was to fix some typos and formatting.

As was the tradition, the panel took me to lunch in some flashy restaurant in downtown Kingston. I was seated next to Prof Krishna. In the course of lunch he asked what my next plans were, and I said that although I had gained admission to do further grad work in Michigan, I was going back home to Ghana. He could not believe it. He calmly advised that I stay and apply to University of Ottawa to do the doctorate programme in international taxation law. He added that he would also recommend me for accreditation so that I could write the Bar exam and qualify to practice in Canada. He turned to Prof Easson and said to him, “this gentleman should not be going back to Ghana.”

Excited? Yes! Flattered? Yes! Tempting? Yes! I could simply melt into Canada, say bye-bye to Ghana. New life. New prospects.

But what did I do? That evening, I went through my thesis to fix the typos and formatting issues. I spent the next day, 12th July 1994 doing nothing but thinking. I made some hard decisions. I called my family in Philly to tell them what I was going to do. That night, I partied (like I had never done) with my flatmates who had organised a party for me. The next morning, I caught a Greyhound bus to Lester Pearson Airport in Toronto. It was from the airport that I called my cousins in Toronto to tell them that I was returning to Ghana. I boarded the Air India flight to London. I got to London the next day, 13th July 1994, spent the night with my sister at Maida Vale and was on the Ghana Airways flight back home to Ghana, touching down at Kotoka in the evening of 14th July 1994.

Why? Because the night of 12th July 1994 was a turning point in my life. I had the degree that I went to Canada to get. I thought long and hard. Did I really want a doctorate in law, so that I would become “Dr. Ankomah” by when I am 30? But was that what I wanted to do with my life? To the disappointment of my profs and some family members, I concluded that I did not want to spend the next 4 years of my life studying one area of the law just to add some more alphabets before and after my name. That was all a doctorate meant to me. Canada was a great country, but it was clearly not for me. North America was not for me. It was there that I discovered that I was black. I wasn’t ever going to get used to being checked out when I enter a shop, because being black meant that I was a potential shoplifter. I wanted to live and work in a country where most of the people I meet, would look like me!

I was only 26 years old. But I wanted to make some money, I mean real MONEY. I had spent a year as a scholarship student in Canada, and I didn’t want to spend more years like that. 20 years on, I am pretty certain that I would take the same decision if I was faced with it today.

So I arrived in Accra within 2 days of defending my thesis, got married, resumed work at my law firm, babies came along (yes, 3 of them in 5 years), Associate, Lecturer, Senior Associate, Senior Lecturer, Partner, Managing Partner…

[And now for the tired cliche] “The rest,” as they say, “is history.”

A Stroll in the Park on Republic Day! – REJOINDER

July 5th, 2014

[Edited version published in the July 7 2014 edition of the Daily Graphic newspaper at page 42]

The Editor

Daily Graphic newspaper


Dear Sir:

I read with some amusement, the Opinion of my friend and senior Mfantsipim old boy, Colin Essamuah in his Abura Epistle column, and titled ‘A Stroll in the Park on Republic Day!’ I could not help but notice that although the Opinion was published in the July 4 2014 edition of the Daily Graphic, the page on which the Opinion is published bore the date “June 4”! The printer’s devil has a cruel sense of humour!

I participated in, and was very vocal at, what Mr. Essamuah derisorily called “A Stroll in the Park,” a particularly remarkable description of an event that involved braving a heavy rainfall, facing police blockades and risking arrests.

Middle Class?
Who cares? Tags don’t matter, and Mr. Essamuah knows that more than I do. I recall (faintly) that many years ago when his membership of the New Patriotic Party was challenged on the fatuous ground that he didn’t have a party card, he famously and rightly retorted that the NPP was not the Communist Party for which a party card was a be-all-and-end-all, or words to that effect. I am a Ghanaian. That is all that matters. Until July 1 2014, I had never participated in any demonstration. But that morning, I looked at my circumstances and that of the country, and concluded that the 4-year wait to “speak” only through a vote, is cowardice. The constitutionally guaranteed democratic space permits us to continuously give flesh and voice to what we think and feel about how this country is ruled.

Just like Mr. Essamuah, I had public secondary and university education in Ghana. That meant that both he and I, enjoyed government subsidies funded by the sacrifices of the Ghanaians, many of whom, and whose children, did not have the same opportunities. We owe to them what we have become, at least in part. I don’t know which class I belong to; I don’t care. The privilege of education imposes a duty upon me to fully occupy my democratic space when I see or feel that things are going off beam.

Have Things Gone Off Beam?
Of course they have. Mr. Essamuah doesn’t deny that. He only wants us to remain incurable optimists. But Electricity. Water. Fuel. Roads. Education. Basic needs. The lack of them. Under my ‘social contract’ with the government, I work (or starve), pay taxes and obey the law (or go to jail). The government has to provide all of the above, and more. But name it, and the government is unable to provide it; yet it gets antsy and the kittens when we demand that it should fulfil its side of the bargain?

Yes, for me, one other immediate cause was BRAZIL! Mr. Essamuah is right and wrong. It was not the elimination of the Black Stars (I didn’t think that they would get far anyway), but the embarrassment caused by that “money-on-plane” saga. This is against the background of our government and central bank restricting access to our legitimately acquired foreign currency in the banks. Fair, that’s the law. We live with it. Then our government (with our central bank’s approval or connivance), turns around, puts millions of foreign currency on our presidential jet and flies it into Brazil to live TV coverage and soap-opera rivaling ‘bling,’ exposing us to worldwide derision. A twitter handle purporting to be that of Steven Gerrard, England and Liverpool captain, cryptically said: “Pride and passion with commitment can’t be bought with a private jet carrying $3m.” And as if to prove him right, within days, we, who showed such sickening opulence in Brazil, announced that we are going to borrow foreign money to provide basic needs, such as sanitary pads to school girls. Mr. Essamuah might not see anything wrong with this picture. That is his democratic right. I see everything wrong with it; my democratic right.

And so I am tickled when Mr. Essamuah calls our views “preaching hopelessness.” Optimism is good. Baseless optimism is unwise. If the situation is pretty much hopeless, we must say it. It is the government’s duty to fix it!

Private Schools?
Mr. Essamuah has a problem with people whose children are in private schools, claiming that “most of the protesters” pay “fees in dollars and are ready to ship them out to foreign schools to become taxpaying citizens of other countries, as they look down upon our public schools.” That is intriguing. Mr. Essamuah, from which statistical bases did you arrive at or settle on your word “most”? What was your sample space and margin of error? And, by the way, it is illegal to pay fees in dollars in Ghana. If you know anyone who is still doing that, call the Bank of Ghana! But what takes the biscuit is your claim that the ability to send one’s children to foreign schools means one cannot love Ghana. Mr. Essamuah, can we ask the President which schools HIS children attend in Ghana and elsewhere? And, you and I, at some point, lived and studied in other countries. What does your conclusion say about you?

Mr. Essamuah massages the refusal of the demonstrators to allow his good friend and one-time political ally, Asamoah Boateng to address them, and concludes that an unnamed “main rival” in the NPP was linked to this. That is funny. Obviously, Mr. Essamuah was not there. The chant was “no politician!” Need I say more?

The 1/7/14 #OccupyFlagStaffHouse demonstration was spontaneous. Unlike political parties, no one was bused there or paid money or given T-Shirts to appear. People got up from their homes, found their own way there, made their point, and went back home. Some government actors have desperately and laboriously sought to diminish what happened in many ways. But they have failed. The more they speak and write, the more they give traction to #OccupyFlagStaffHouse, and the more it becomes obvious that those “few” people drove a strong point home. The political establishment (howsoever constituted) has been forced to take notice. Even if the petition found its way into the nearest trash bin or shredder at the Flagstaff House, government has been put on notice that it doesn’t take a crowd to force a change. Sometimes all it takes is a few good men and women and children, prepared to take a “Stroll in the Park,” brave the elements and show no fear for fully-attired riot police!

Thanks, Mr. Essamuah for your “June 4 Opinion.” It reminds me of the statement ascribed to the murdered Thomas-a-Becket in T. S. Eliot’s “Murder in the Cathedral,” that:

We do not know very much of the future
Except that from generation to generation
The same things happen again and again.
Men learn little from others’ experience.
But in the life of one man, never
The same time returns. Sever
The cord, shed the scale. Only
The fool, fixed in his folly, may think
He can turn the wheel on which he turns.

In Tunisia, it took just one man!


Yours faithfully,

Ace Anan Ankomah


June 5th, 2014

Speech Delivered at the 2014 Graduation of the American International School, Moevenpick Ambassador Hotel, Accra on 5th June 2014

Madam Senior Administrator, The Principals, Teachers and Staff of the American International School, Parents and Guardians, Graduands, Students, Ladies and Gentlemen:

I do not remember anything that any Guest Speaker said at any of my graduations. And so, graduands, I will not hold it against you if you don’t remember anything that I will say today. But it is a privilege to have been invited to be the Guest Speaker at this august graduation event, and I am grateful to the American International School for this honour.

My topic for the graduating class, today, is “TIMES CHANGE, AND TIME CHANGES.”

TIME is that indefinite continued progress of existence and events in the past, present, and future regarded as a whole. CHANGE is said to occur when the form, nature, content, future course, etc., of something/one thing becomes different from what it is or from what it would be if left alone.

In 1986, when I graduated from Secondary School, we had no mobile phones. Indeed telephones were not that common and I do not recall having a telephone conversation from school, with my parents at any time during the 7 years that I spent at Mfantsipim. There was no email, SMS, WhatsApp, Facebook and Twitter, Google or Yahoo search. If you needed anything from home while in boarding school, you wrote letters to your parents, which took about 2 weeks to move between Cape Coast and Accra. Thus by the time your parents read that you were unwell (and it was mostly from malaria), you would have recovered already. If you wrote a love letter to a girl in the nearby girls’ schools, you would either post it (and that would take a week or so to arrive, by which time all your words would have become stale) or hand-deliver it yourself to her when you visited on Saturday or Sunday. If you were as shy as I was, you would ask her not to read it until you had left!!

But what happened? TIME went past and in the course of that TIME, CHANGE happened. I am no longer that skinny, gangly, bright-eyed boy who wanted so badly to become a lawyer. Today, I am a lawyer – I have achieved that dream and attained that vision. Today, I have children of my own, 3 of them, one of whom is about enter her sophomore year in college, this fall. I have grey hair. TIMES CHANGED, and the TIME CHANGED me. The world around me changed. I had to CHANGE to meet and suit the CHANGING TIMES. I would be an irrelevant, fossilized dinosaur, the object and subject of interest of archaeologists, extinct, but awaiting the magic of a Jurassic Park resuscitation, if I remained stuck in the world of 1986, when we are in 2014. There are many human dinosaurs around. Don’t become one.

Yours today, is a fast moving digital age. It is often said that CHANGE IS THE ONLY CONSTANT. That change can be frightening and daunting if we do not recognise that each passing second, minute, hour, day, week, month, year, etc provides us with an opportunity. Thus, the CHALLENGE OF CHANGE, is at the same time, and in and of itself the OPPORTUNITY OF CHANGE. It is important to see those opportunities and take advantage of the new possibilities they bring.

Today, each Graduand is witnessing a change. When we leave this room, you will not be a high school student anymore. You will be a high school graduate. What has changed? Just your designation or description? I think not. You whole life has changed. You are at the cusp, the edge of a new beginning, a new journey, where there is no end or destination until you die. The journey of life, is itself the destination. You only fail when you stop undertaking the journey.

And so tonight, you must celebrate the fact that one season is past, and another season is born. So party, dance, rejoice. But as you celebrate the end of one stage of your life, you mark the beginning of another stage of the same life. When you leave this room, when you wake up tomorrow morning, it will be the beginning of the rest of your life. CHANGE has happened. CHANGE is happening. Are you ready for it?

Allow me to suggest 7 things that you need to do, if you are going to remain relevant in this fast-changing world. And I will borrow substantively from the thoughts of Kathryn D. Leary, writer, marketing and public relations consultant and former President & CEO of the Leary Group Inc.

1. TAKE STOCK. Spend some time thinking about your life to date. Search your soul. Make an honest assessment of your strengths and weaknesses, joys and disappointments, mistakes and successes. What have your brought to the world and what else would you like to do, accomplish or experience? Stay open to all possibilities and allow time to really ponder about yourself.

2. IDENTIFY POSSIBLE GOALS & OPTIONS. Once you have taken stock, start identifying new interests and possible goals for the next phase of your life. Your life from childhood to date definitely has a store or wealth of assets, from your experiences and the skills and learning that you have acquired along the way. Don’t be stuck in a groove. Think outside the box. How are you going to use these assets to create satisfying and enriching life?

3. ASSESS YOUR OPTIONS. When you have identified you new goals and options, begin your research to explore the viability of each option. The Internet, which hitherto has been your means of pointless chatter and endless gossip, and visiting of websites that you cannot admit you have visited, should become a new tool, a source of information on your areas of interest. What is the current climate for pursuing these goals? It is at this stage that you must identify and talk with people who are doing what you are interested in pursuing so that you can assess if this is something you would really enjoy doing. Learn as much about your options as possible and evaluate whether your skills and temperament are suitable. How viable are the options? Will they make your money? Would they make you creative, or give you freedom?

4. COMMIT TO YOUR GOAL AND GET TO WORK ON YOUR GAME PLAN. After the assessment, choose the goal you desire most and claim it mentally. Affirm your ability to make it happen, based on your commitment, intelligence, wealth of experience and skills. Create a roadmap of what you need to do to pursue this particular goal. What is competitive environment for the dream job, business or new life direction? What are the strengths and weaknesses for this goal? What are you going to do to shore up your identified weaknesses? Special training or courses? Reading books and online research? Be sure to know what you don’t know, then go learn it. Discover everything there is to discover as you get ready to execute your plan.

5. BUILD YOUR CREDENTIALS. When you have completed the commitment and working-on-game-plan phase, it is time to get to work. It is school time all over again. Take the courses you have identified, to attain and improve your arsenal of credentials. This is the time that you build your CV, through HARD WORK. Your CV should not be a mere collection of words and alphabets, but a testimony of your hard work. Use your vacation times to intern or volunteer in the field to gain experience. These will give you opportunities to experiment with your new direction, develop your craft and gain exposure.

6. BRAND YOUR NEW SELF. In the course of all of this, you must seek to become unique. There are millions of artists, musicians, lawyers, doctors, engineers, teachers, computer scientists etc. What would you be bringing that would make a mark or dent in this world? Identify what is distinctive about yourself and the unique approach you will bring to the field you have chosen. Use this information to create your identity or brand yourself. Work hard for distinctions because they will count in your branding. Don’t just pass exams. Pass with distinction. Create a personal slogan or tagline that captures your uniqueness and use it everywhere. In my senior year, mine was “failure has no breeding grounds where hard work, discipline and dedication lie.”

7. LET THE WORLD KNOW YOU’VE ARRIVED! At every stage when you have achieved something (e.g. a graduation) you must make a statement. Use every opportunity you can to create a message about the new you. Be creative, be daring and be heard!

My law firm is proud to have been associated with the founding and growth of this school in Ghana, and glad to have seen what was then, but a dream, at the beginning, bear fruit and continue to bear fruit. The best testimony of the greatness of that dream and vision, is and will be the quality of the students that it produces and the effect and impact that they in turn have on society.

As I come to a close, permit me to share with you, my personal mantra: “If others sit, stand. If other stand, stand out. If others stand out, be outstanding. And when others are outstanding, be the standard.”

Yours is a Christian mission school. Some, including your parents, have paid a price and made sacrifices to ensure that you are where you are today. You must respect that. I also cannot end this speech without referring to the Alpha and Omega, the Beginning and the End, the Source and Finish, best captured on an occasion as this in the words of the hymnists Nicholas Brady and Nahum Tate as follows:

“Through all the changing scenes of life,
In trouble and in joy,
The praises of my God shall still
My heart and tongue employ.

Fear Him, ye saints, and you will then
Have nothing else to fear;
Make you His service your delight,
Your wants shall be His care.”

But I would also leave you with the endearing words of the late music legend, Michael Jackson, who famously sang:

“I’m Starting With The Man [and Woman] In The Mirror
I’m Asking Him To Change His [and Her] Ways
And No Message Could Have Been Any Clearer
If You Wanna Make The World A Better Place
Take A Look At Yourself, And Then Make A Change”

Dear Graduands, I salute and congratulate you on a successful completion of your course of study. Go out and be that change that you want to see.

Thank you, and God bless you.


May 24th, 2014

When I used to teach Company Law, I would often tell the students that there is one answer to almost every legal question: “IT DEPENDS.” I however stopped saying that when one student answered an exam question by quoting my flippant “IT DEPENDS.”

But in this situation, that answer applies, and I want to take you through the law that regulates the businesses that companies are authorised or not authorised to engage in.

The common law has evolved doctrine called “The Ultra Vires Doctrine.” Generally, it applies to acts beyond the scope of one’s defined powers. The term has a broad application and includes not only acts expressly prohibited but acts that are foreign to or in excess of powers granted, although not expressly prohibited. The term applies to either when an entity/person has no power to do an act, or where the entity/person has the power but exercises it irregularly.

Section 16(2) of the Companies Act mandatorily requires that the regulations of a company must state the nature of the business or objects which the company is formed to carry on. Normally referred to as “authorised object or businesses,” at common law the powers of a company is dependent on and governed by the objects/businesses as defined in the objects/businesses clause.

Section 25 of the Companies Act is emphatic that a company shall not carry on any business not authorised by the Regulations. This is a prohibition of ultra vires objects/businesses, and it is necessary to protect members and creditors, and to limit the nature of the business activities that the company can undertake to those that are expressly stated in its Regulations. By this enactment of the ultra vires doctrine, a contract made by a company beyond the scope of its objects/businesses and corporate powers is unlawful.

To that extent, it is, at least on the face of it, ultra vires for a company that is incorporated to engage in information technology, to be engaged in the import of motorbikes for another person.

However, that is not the full story. This is because section 24 of the Companies Act provides that in furtherance of its authorised objects/businesses prescribed in the Regulations, a company has all the powers of a natural person of full capacity. When sections 16 and 25 are read together with section 24, they mean that in addition to the company having power to engage in its authorised businesses, it may do such other things that are reasonably incidental or conducive to the carrying on of its business and/or attainment of its objects, except where they are expressly excluded in the Regulations.

Thus in determining whether a company has acted ultra vires its powers, the two-fold test is:

(1) Is the act an expressly authorised object or business?
(2) If not, is it reasonably incidental?

If the answers to both questions are in the negative, then the act is ultra vires.

However, section 25(3) states an act of the company is not invalid, merely because the act is ultra vires. Thus in Ghana, ultra vires acts, although wrong, are binding on the company, and the company cannot seek to escape its obligations under a contract simply because the contract is ultra vires. By this provision, Ghana law seeks to maintain whatever protection to members that the strict ultra vires rule offers, as well as prevent hardship to third parties.

This is further buttressed by proviso (b) to section 139, which states that a company cannot escape liability for acts undertaken concerning an unauthorised business, if in fact that business in being carried on by the company. Without this provision, the protection afforded to third parties under section 25 would be useless if having escaped the peril of the company’s incapacity, a third party is caught because the specific business to be undertaken by the company under the contract, is not mentioned in the company’s authorised businesses.

Section 139 is a codification of the so-called Rule in Turquand’s Case (Royal British Bank v. Turquand (1856) 6 E & B 327) which is to the effect that for business cannot be carried on if everybody who had dealings with a company had meticulously to examine its internal machinery in order to ensure that the officials with whom he dealt had actual authority.

Further, under section 141, the mere fact of the registration of any particulars or documents (e.g. the Regulations and the authorised businesses clause in it) with the Registrar of Companies, does not constitute notice to the whole world. Thus no one is under a legal obligation to ascertain whether a company has power under its Regulations to undertake a certain business before entering into a transaction with the company.

Section 142 provides that any person dealing with a company is entitled to assume, unless the contrary is known (actual notice) or ought to have been known (constructive notice), that the Regulations (including the provision on authorised businesses) have been complied with.

In Boohene Foods Ltd. v. National Savings and Credit Bank [1992] 1 GLR 175, the court recognised that it was a well-established presumption in the common law that an outsider dealing with a company was entitled to presume that its internal regulations had been complied with. Section 142, according to the court, has given that presumption a statutory backing. However, that presumption was rebutted by proof of express or constructive notice.

The question therefore, is whether a third party with actual or constructive notice that a company is not authorised to enter into a stated business, can come under the statutory protection of third parties. This question is answered, in part, in the case of Chellaram & Sons (Ghana) Ltd. v. Halabi [1963] 1 GLR 214, where the Supreme Court upheld an important exception to the rule, that a person who deals with a company and who has notice of an irregularity in its internal management in connection with the subject-matter of his dealings cannot take shelter behind the rule.

However, what the law does not say is that a person who enters into a transaction with a company with full knowledge that the transaction is ultra vires the company, can decide to abrogate or resile from the contract on that ground. The contract is valid and binding.

But that is not the full story. The authorised businesses of a company relate directly to the capacity of that company to undertake a stated venture. Thus a procurement entity or procurement authority (appointed by law to protect the public purse) that is required by law to investigate the capacity of a company, must definitely ask to see a company’s regulations and see what it says about the company’s authorised businesses. That is a clear indication of whether the company is able to deliver on the contract. If the company has put in a bid for a business outside its authorised business, that should put the procurement entity and procurement authority on notice with respect to the company’s track record in that line of business, or lack of it.

It would appear then that the only statutory remedy to preventing ultra vires transactions is an Injunction under section 25(4)&(5) of the Companies Act. An injunction is a judicial process requiring a person to whom it is directed to do or refrain from doing a particular thing, i.e. a court order commanding or preventing an action. Under the Act, any member or holder of a debenture secured by a floating charge over property (or his trustee) may apply to the court for an injunction prohibiting any ultra vires act. If the contract is yet to be made or performed, the court has the discretion to set aside and prohibit the making or performance of the contract. It may however award the company or the other party to the contract compensation for any loss or damage sustained by reason of the order of the court. However, compensation cannot be awarded in respect of loss of profits anticipated to be derived from the performance of the contract.

An applicant seeking an injunction to prevent a company acting outside it capacity, will have to bear the following in mind:

(i) It becomes the task of the court to determine, on a true construction of the objects clause, whether the proposed activity would be ultra vires;
(ii) If the act sought to be prohibited has already been performed, the remedy will not be granted;
(iii) Injunction is a discretionary remedy and will be granted only where the court thinks it equitable so to do; and
(iv) All parties to the ultra vires act should be made parties to the action because an injunction, if granted, will only be binding on parties to the action.

In conclusion, it is a wrong for a company that is incorporated as an IT company to engage in the importation of motorbikes, unless it can be shown that the importation of the motorbikes is reasonably incidental to its IT business. However, even though it is wrong, the law protects the other party who entered into the transaction, so that the company cannot escape liability simply because the transaction was ultra vires. And, the only people who can stop the transaction, are members or creditors of the company, but then only by way of an injunction.

So, you see, IT DEPENDS!