
Corporate
Banking & Finance
Public corporations under the Constitution
In Mahama Ayariga v the Attorney General & Others,[1] the Supreme Court clarified the classification of public corporations and the procedure for their creation. The Court identified two categories of public corporations, namely public corporations that form part of the public services of Ghana (‘public service corporations’,) and public corporations set up as commercial ventures.
This distinction is important because of the procedure for their creation. The Court explained that while public corporations in general may be established through (i) an Act of Parliament,(ii) funds provided by Parliament, or (iii) other public funds, this range of options is limited when it comes to public service corporations. Such entities can only be created by an Act of Parliament. In contrast, public corporations created for commercial purposes (i.e., designed to operate as profit-making entities) may be lawfully established through any of the three methods. The executive may thus create or acquire commercial entities simply through incorporation or share acquisition, without the procedural rigidity required for public service corporations.
This decision provides essential legal clarity and enhances the government's ability to strategically use corporate structures to meet developmental goals and policy objectives, while preserving constitutional safeguards over the core institutions of public administration.
Bank of Ghana’s regulatory powers – Issuance of directives
The Bank of Ghana plays a central role in regulating, supervising and directing the banking industry to maintain financial stability and soundness. As part of this mandate, it has the authority to issue directives to guide actions taken by stakeholders in the banking industry. The Supreme Court has affirmed the enforceability of these directives.[2]
In the Republic v Bank of Ghana ex parte George Smith Graham[3], the High Court clarified clarified the procedure for the issuance of directives by the Bank of Ghana. The Court held that the Bank of Ghana may issue directives without giving notice of a proposed directive to the public if the Bank of Ghana determines that compliance with the notice requirement (i) is impracticable under the circumstances, (ii) will not be in the public or depositors’ interest, or (iii) will have financial stability implications and jeopardise the stability of the financial system. Although this decision is currently the subject of an appeal, it remains valid and represents the current state of the law on the procedure for issuance of directives by the Bank of Ghana.
The Court’s decision reinforces the importance of swift regulatory intervention to address potential threats to the financial system. The Bank of Ghana is thus positioned to respond proactively to potential and emerging financial risks to protect the resilience and integrity of Ghana’s banking industry.
Company
Service of court documents on companies
Traditionally, as established in cases like Barclays Bank v Ghana Cable,[4] a company is validly served with a court document if the document is brought to the attention of an officer of the company such as a director or company secretary. The Court of Appeal, in George MacCarthy & Another v Asanka Gold Ghana Ltd,[5] expanded valid service on companies to include service on secretaries or front desk receptionists, provided there is evidence that the document reached the company's attention. The Court, in interpreting the provisions in the Companies Act, 2019 (Act 992) on service of a company, stated that a company would be deemed to be validly served with a court document if (i) it is left with a responsible person at the company’s registered address or office, and (ii) the person who received the document was in the position to bring the document to the attention of the company.[6]
The decision represents a pragmatic approach that curbs efforts by companies to evade service, without undermining the core objective of ensuring parties are properly notified of court proceedings.
The role of consent in directors’ resignation
In Angela List v BCM Ghana & Others,[7] the High Court also clarified the procedure for directors’ resignation in companies. The court indicated that a director may resign by giving the company written notice of the resignation, and that resignation is not subject to the approval or rejection of the company. The company may, however, consent to a director withdrawing their resignation, and that consent may be express or implied through the conduct of the company’s officers.
A director’s resignation is thus a unilateral right that does not require company approval. However, withdrawing that resignation is not solely within the director’s control because it requires the company’s consent. Companies must be mindful of their actions following a director’s resignation, as implied consent could inadvertently reinstate such a director.
Tax
Developments in tax litigation
Following the 2021-2022 national economic crisis, the Ghana Revenue Authority (‘GRA’) adopted an aggressive tax collection approach to raise Government revenue. This involved conducting extensive tax audits and assessments, some of which, became the subject of litigation. The courts seized this opportunity to clarify and expand on key principles guiding companies’ tax liabilities in the country.
For instance, the Court clarified the legal effect of tax avoidance arrangements in Blue Sky Products (Ghana) Ltd v Commissioner of the Ghana Revenue Authority.[8] The Court said that where the relevant tax legislation provides tax relief or exemptions, companies that structure tax avoidance arrangements to benefit from such provisions are generally not considered to be engaging in abusive tax practices and such arrangements are likely be recognised by the courts. However, if a tax avoidance arrangement is primarily designed to evade a legitimate tax liability imposed by law, then the courts would consider it legitimate and would not give effect to that arrangement.
Also in Perseus Mining (GH) Ltd v the Commissioner-General,[9] the Court of Appeal clarified (i) the nature of forward sales contracts and how such arrangements apply in the gold industry for tax purposes and (ii) the nature of derivative instruments as applied in the mining industry for purposes of tax. The Court explained that forward sales contracts for the purchase of gold are derivative financial instruments that are entered into between parties to agree to a future sale of gold at an agreed price. Such instruments are connected to the business of the parties to the transaction, especially in the extractives industry and as such, income gained from those transactions form part of the business income of the company, for the tax purposes, and not the investment income of the company, as defined in section 6 of the Income Tax Act, 2015 (Act 896). Thus, any loss incurred by the gold seller arising from such a derivative instrument could be set off from that seller’s taxable business income before a tax assessment. This decision clarifies the law that guides characterisation of derivative transactions for the purpose of tax liability.
An appeal against this decision in Perseus Mining was dismissed. In dismissing the appeal, the Supreme Court also provided important clarification regarding the procedure for contesting tax decisions.[10] A taxpayer may appeal a tax decision by the GRA to the High Court as of right, without the need for prior leave of the courts. Similarly, a further appeal to the Court of Appeal may be pursued without seeking leave. However, the Supreme Court, in its ruling, emphasised that if a party wishes to appeal the decision of the Court of Appeal, that party must first obtain special leave from the Supreme Court itself.[11]The Court’s decision confirms that while initial appeals to the High Court and Court of Appeal are as of right, a further challenge beyond the Court of Appeal is subject to a higher threshold and requires the prior grant of special leave to appeal. Indeed, in Maersk Drillship IV Singapore Pte Ltd v the Commissioner-General,[12] the Supreme Court granted the Appellant special leave to appeal the judgment of the Court of Appeal, as it was an appeal to contest a tax decision.
Also, in Maersk Drillship IV Singapore Pte Ltd v the Commissioner-General,[13] the Court of Appeal explained the effect of stabilisation clauses on the tax liabilities of investors. These clauses were included in investor-state agreements to restrict the host state’s ability to apply new laws to the contractual relationship, ensuring certainty and predictability by preserving the legal and economic conditions that govern the agreement. In Maersk Drillship, the Court explained that these clauses create a tailored legal regime that govern the relationship between the investor and the state. Accordingly, any tax imposed on the investor must follow the agreed legal regime set out in the agreement, not new or amended tax legislation.
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The Supreme Court recently held that Ghana must enforce stabilisation provisions in petroleum agreements and respect the legal regime created by the parties to govern their relations.[14] This decision set aside previous decisions of the High Court and Court of Appeal on the issue.
Establishment and operationalisation of the Independent Tax Appeals Board
The Revenue Administration (Amendment) Act, 2020 (Act 1029) established the Independent Tax Appeals Board (‘ITAB’) to review appeals against decisions made by the Commissioner-General of the GRA objections to tax assesments. The ITAB was inaugurated on 20 January 2023 and is presently administratively functional. It is expected to become fully operational after its regulations are finalised and enacted. The ITAB’s full operationalisation will provide an additional avenue for challenging tax assessments and decisions, thereby enhancing the dispute resolution framework.
Labour
Fair, unfair or constructive? The changing dynamics of employment dismissal
In 2023, the Supreme Court[15] and Court of Appeal[16] affirmed that employers are not required to give reasons for terminating an employee's contract. The Supreme Court has expanded this rule in General Transport, Petroleum & Chemical Workers’ Union of Trades Union Congress v Halliburton International Incorporated Ghana Branch,[17] explaining that the employer’s right to terminate without providing any reason is qualified by the Labour Act, 2003 (Act 651). Thus, an employee’s dismissal may be deemed to be unfair even if the employer gave notice of dismissal (or paid a salary in lieu of notice) and complied with the relevant provisions in the employment contract, collective bargaining agreement and/or Act 651, if the dismissed employee proves in court that the primary reason for the termination is unfair;[18] the employee bears the burden to prove the unfairness of the termination.
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The Court also addressed the issue of constructive dismissal, explaining that that an employee may be deemed constructively dismissed if the employer’s actions or inactions create toxic work conditions that make it practically impossible for the employee to continue in the employment, and force the employee to terminate the employment. In this case also, the employee has to prove that the termination was due to work conditions created by the employer.
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The distinction between an employee and an independent contractor
The Supreme Court, in Abban & 9 Others v Takoradi Flour Mills Co. Ltd[19], clarified the legal framework for determining whether an individual is an employee or an independent contractor. The Court emphasised that labels used by employers are not conclusive in determining whether an employment relationship exists. Instead, the key indicators are the degree of control the employer exercises over the individual’s work and the level of integration of that individual’s work into the core operations of the business. Other relevant factors include the nature of the work, the existence of an employment contract (whether written, oral, or implied), and the source and structure of the individual’s remuneration. These considerations collectively determine the individual’s legal status as an employee, which in turn dictates the rights and obligations owed by the employer under the law. This decision offers clarity on the classification of individuals as employees and their protections and entitlements under the law and serves as a valuable guide for structuring compliant employment relationships.
Family Law
The ‘Mozambique Rule’ and Distribution of Jointly Acquired Property
The ‘Mozambique Rule,’ derived from British South African Co v Companhia De Mozambique,[20] states that generally, domestic courts do not have jurisdiction to determine claims for declaration of title, possession and damages for trespass in respect of immovable property (such as land) located outside the country. This rule is subject to exceptions including claims based on contracts between the relevant parties on the property, fraud or equitable rights of a party which is the subject of the domestic court’s jurisdiction.
In Gilbert Anyetei v Sussana Anyetei,[21] the Supreme Court held that in distributing properties between divorcing spouses, the courts may consider properties located outside the jurisdiction. The Court explained that claims made by spouses in respect of properties located outside the jurisdiction may be validly considered and distributed as part of spousal properties during a divorce because the claims made in respect of such property are based on marriage contracts and so, fall within the exceptions to the general rule. The Court has thus clarified the scope of properties that may be considered for distribution in matrimonial disputes, to ensure the equitable distribution of those disputes.
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Intellectual Property
Copyright infringements
The recent rapid growth of Ghana's creative industry has brought copyright enforcement and intellectual property rights into sharper focus. While the law provides a foundation for protecting intellectual property, challenges persist regarding unauthorised use, ownership disputes and the adequacy of enforcement mechanisms. In response to these challenges, Ghanaian courts have played a significant role in offering much-needed clarity on contentious issues in this industry.
In Rex Owusu Marfo v Joy Industries,[22] the Court of Appeal explained that to prove copyright infringement, the owner of the right must prove:
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authorship of the relevant work and ownership of a right in that work;
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reproduction of the work by the alleged infringer without the owner’s consent; and
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use of the reproduced work in a manner prohibited by the Copyright Act, 2005 (Act 690).
On the facts of the case, the Appellant denied copying the Respondent’s song, although it admitted similarities between the respective tunes and melodies. The Court explained that it does not accord with propriety for a person to copy a tune of another’s song, use slightly different lyrics and then claim that there has not been any violation of that other person’s work. According to the Court, to constitute reproduction, there must be sufficient objective similarity and causal connection between the two works. The test therefore is whether the challenged work comes so near to the original as to suggest that original to the mind of every person seeing or hearing it.
The authorship principle was expanded on in Fred Awindaogo v Martin Kpebu & Another.[23] The High Court held that authorship is vested in individuals who create an original work or make a substantial and original contribution to its development. In cases of joint authorship, the co-authors hold the ownership rights in the work, may derive benefits from the exercise of those rights and are entitled to protection from the unauthorised exploitation or infringement of the right under Act 690.
Regarding damages for infringement, the Court of Appeal in Rex Omar explained that once copyright infringement is established, damages are awarded as a matter of course, eliminating the need for the right holder(s) to prove actual financial loss. The quantum of damages is assessed based on the Court’s consideration of how flagrant the infringement was, any economic gain or advantage derived by the infringer from the unauthorised use of the work and a reasonable estimation of the earnings that right holder(s) would have received if the infringing party sought proper authorisation.
These decisions have reinforced the importance of obtaining proper authorisation for the use of copyrighted material and the measure of damages for authors whose rights are infringed. As litigation in this area grows, the courts continue to refine the application of copyright law, setting important precedents that enhance legal certainty and strengthen protections for creatives.
Legal requirements to prove the tort of passing off
The Protection Against Unfair Competition Act, 2000 (Act 589) codifies the tort of passing off, which seeks to prevent businesses from unduly benefitting from the reputation or goodwill of another business’s brand and to remedy any damage caused to a business’s reputation or goodwill by the actions of another business.
In Nutrifoods Ghana Ltd v Twellium Industries Ltd,[24] the High Court highlighted the quality of evidence required to prove that a company’s actions have led or are likely to lead to the dilution of another company’s goodwill or reputation. A key takeaway from the decision is the reaffirmation of the strict burden of proof required in passing off claims. To succeed, a claimant must demonstrate:
1.Goodwill or Reputation – That the product has an established market presence and is recognisable to consumers;
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2.Misrepresentation by the defendant – That the defendant’s product presentation is likely to cause confusion; and
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3.Likelihood of Damage – That the misrepresentation has or could harm the plaintiff’s goodwill and/or reputation.
This decision signals a strict approach to intellectual property enforcement, particularly in commercial disputes where product branding and market identity are contested. Businesses seeking to protect their intellectual property rights, including rights attached to trademarks and patents, must not only secure formal registration but also proactively gather evidence of consumer recognition and potential confusion. The judgment suggests that courts are inclined to promote competition in the market and require cogent proof of product similarity and confusion on the market caused by those similarities, to find that there has been intellectual property infringement.
[1] [Writ J1/20/2022; 19 June 2024]
[2] Association of Finance Houses v Bank of Ghana & Another [Writ J1/04/2021; 28 July 2021]
[3][Suit HR/061/2024; 10 July 2024]
[3] [1998-99] SCGLR 1
[4] [Civil Appeal No H1/157/2021; 13 January 2022]
[5] This decision was recently applied in Tullow Ghana Limited v Springfield [Suit No CM/MISC/0043/2023; 11 December 2023]
[6] [Suit No CM/MISC/0034/2022; 24 October 2024]
[7] [Suit No H1/42/2024; 25 January 2024]
[8] [Suit H1/42/2024; 25 January 2024]
[9] [Suit H1/137/2022; 1 June 2023]
[10] [Civil Motions J8/34/2024 & J8/112/2024; 11 March 2025]
[11] Article 131(2) of the 1992 Constitution
[12] [Civil Motion J8/11/2024; 30 January 2024]
[13] [Suit H1/67/2023; 19 October 2023]
[14] Maersk Drillship IV Singapore Pte Ltd v the Commissioner-General [Civil Appeal J4/59/2024; 2 April 2025]
[15] National Labour Commission v Barclays Bank of Ghana Ltd [Civil Appeal J4/50/2020; 15 November 2023]
[16] Israel Agbeti & Another v Ericsson AB Ghana Branch [Suit H1/190/2022; 18 May 2023]
[17] [Civil Appeal J4/19/2023; 27 March 2024]
[18] The grounds for unfair dismissal are listed at section 63 of Act 651
[19] [Civil Appeal J4/75/2021; 17 May 2023]
[20] [1893] AC 602
[21] [Civil Appeal J4/67/201; 2 March 2023]
[22] [Suit H1/34/2020; 17 June 2021]
[23] [Suit GJ/429/2020; 4 April 2023]
[24] [Suit GJ/0103/2023; 18 December 2023]