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The Supreme Court in Adisa Boya v Zenabu Mohammed & Mujeeb[i] held that writing is not a sine qua non to a customary grant in land transactions. Thus, a conveyance [indenture] only adds to a customary grant and its absence does not detract from a prior grant made under customary law. Consequently, where a party is able to establish prior possession of the land by virtue of a customary grant, a subsequent conveyance to another party will be invalid.
The facts of this case revolved around a disputed property the parties were laying claim to. The plaintiff contended that he obtained his grant in 1990s and perfected it with a leasehold document from the Topre Stool of Ayigya. The defendants, on the other hand, argued that they acquired title to the land through their late father who got his grant in 1970. The Defendants were able to show that their father entered the land, erected a house on the land and was on the land when the plaintiff started moulding blocks on a nearby property. The plaintiff, on the other hand, claimed the defendants had encroached on the land and consequently made a complaint against the 1stdefendant who was convicted by the District Court in Kumasi for the offence of obstruction.
The trial court entered judgment for the plaintiff as lawful owner of the land primarily based on a conveyance executed by the plaintiff. The trial court discounted the fact that the defendant had been in physical possession of the land prior to the grant of the land to the plaintiff. Dissatisfied with the decision, the defendants appealed to the Court of Appeal which entered judgment for them. On appeal to the Supreme Court by the plaintiff, the court affirmed the decision of the Court of Appeal.
The Court was of the view that the “defendants were actually in physical possession of the land, and such possession ought to have put the plaintiff who went to inspect the land [on notice] that the grant that he was seeking was encumbered”. The court relied on its previous decision in Amuzu v Oklikah which held that registration of a conveyance did not abolish the equitable doctrines of notice and fraud and also did not confer on a registered instrument a state-guaranteed title[ii].
Thus, the grant to the plaintiff by the stool was null and void. This is because, at the time the stool granted the land to the plaintiff, the stool had long divested itself of any interest it once hand in the land in favour of the father of the defendants.
In establishing prior possession of the land, the court placed importance on the evidence adduced by the defendants. These included an allocation letter to the defendants from the stool, and the payment of property rates which previous to those paid by the plaintiff in respect of the land.
[ii]Thus, a later executed conveyance can only obtain priority over an earlier one if the later was obtained without fraud and without notice of the earlier unregistered instrument. Thus registration did not create an absolute title. – See Amuzu v Oklikah [1998-99] SCGLR 112
It has been said that only a fool never changes his mind. However, in our criminal jurisprudence, setting certain actions in motion without completing them may constitute an offence regardless of the change of mind. These offences are referred to as inchoate offences. This means that a full-blown offence does not need to have been committed at all to make a person criminally culpable.
All that matters with these inchoate offences is that the law finds a guilty act (actus reus) and a guilty mind (mens rea), both of which are elements required to establish that an act amounts to a crime. Ghana’s criminal law provides for four inchoate offences, namely, preparation, abetment, attempt and conspiracy.
According to section 19 of the Criminal Offences Act, 1960 (Act 29), a person who prepares or supplies, or has in his or another person’s possession, custody, or control, anything or means for use by himself or another person in committing a criminal offence commits a criminal offence. The substantive offence should however be one by which life is likely to be endangered, or a forgery, or a felony. Deciding not to carry out the substantive offence for which preparation was made does not negate the fact that the offence of preparation has already been committed.
Abetment of a crime may be direct or indirect and may be by a personal act or presence or otherwise.One may instigate, command, counsel, procure, solicit, or in any other manner purposely aid, facilitate, encourage, or promote the commission of a criminal offence by any other person, whether known or unknown, certain, or uncertain. It does not matter that the abetted crime does not happen or is not completed.
Attempting to commit an offence is also in itself an offence.It does not matter why the commission of the substantive criminal offence failed. In R v Shivpuri, it was held that an appellant who had attempted to import harmless drugs believing it to be a prohibited drug was still guilty of an attempt to commit crime.
Conspiracy to commit crime means two or more persons agreeing to act together or acting together, with a common purpose to commit a crime.There may be conspiracy whether or not there was previous concert or deliberations. It has been held that it does not matter whether the co-conspirators were personally acquainted with each other or not; it is enough that they were linked by a common purpose to commit a crime.
The interesting nature of inchoate offences is that, they are committed before or at the moment the substantive offence is committed, hence a defence of a countermand, or a change of mind, will not avail an accused person. The illustration in Act 29 on attempt for example is as follows:
“A buys poison and brings it into B’s room, intending there to mix it with B’s drink. A has not attempted to poison B. But if A begins to mix it with B’s drink, though A afterwards desists and throws away the mixture, A commits of an attempt.”
In the illustration above, abandoning the venture to poison B after mixing it with B’s drink does not take away A’s culpability for attempting to poison B. It must also be noted that although just buying the poison with the intention to mix it with B’s drink does not amount to the offence of attempt, A may still be culpable for the offence of preparation if it is intended that the poison kills B.
In Boahene & Another v The Republic, the court stated that a defence of countermand may only avail with respect to an offence to be committed in future and that the offence of conspiracy is committed the moment two or more people agree together or act together to commit a crime; one of the conspirators may recant and withdraw from the perpetration of the substantive offence, but he cannot undo the act of his previous agreement.
This however does not mean that other defences are not available to accused persons. For the offences of attempt and abetment, for example, any defence available in respect of the substantive offence is also open to the accused person.
A person convicted for the offences of attempt or preparation is liable to be punished as if the criminal offence had been completed. Other than a few modifications with respect to capital punishments, the offences of conspiracy and abetment, when the substantive offence is committed, is punishable the same as that substantive offence.
Since merely harbouring a criminal thought does not in itself amount to a crime, perhaps the best way to avoid committing inchoate offences is to clear your mind of such thoughts before doing anything else about them.
Under the criminal justice system, a crime is regarded as an offence against the state and not the victim.The state steps into the shoes of the victim and prosecutes the offender. In the end, the state focuses on punishing the offender to either pay a fine to the state or commit the offender to a prison term. There is very little or no attention to the needs of the victim, hence leaving the victim unsatisfied, impoverished and bitter.
In view of this challenge, there are other alternative methods of settling criminal disputes outside the traditional criminal justice system. One of such methods is the victim-offender mediation. Victim offender mediation aims at restoring damaged or broken relationships between an offender and a victim by providing both parties an opportunity to meet face to face to address their differences through mediation. This is also called transformative justice or restorative justice. It enables parties to settle their disputes without going through the rigorous court trial process.
The legal basis for the use of victim-offender mediation method of settling criminal disputes stems from Section 73 of the Courts Act 459 which provides that the criminal jurisdiction may promote reconciliation of offences that are not a felony or aggravated in degree. Section 64(1) of Alternative Dispute Resolution Act, 2010 (Act 798) states that the court may at any time refer a matter to mediation for a settlement of all or part of a matter which has been brought before it. It can be gleaned from these provisions that the absolute discretion lies with the court and not the parties. The parties may only urge on the court to settle their differences through reconciliation. It is also important to note that the court would not permit offences in the categories of felonies or aggravated offences to be settled using victim-offender mediation.
The jurisprudence behind victim-offender mediation stems from the belief that it accords with the concept of individualism that pervades in modern society. The key concern is that the criminal justice system should be centred on the victim rather than the State since the offender may end up living in the same community as the victim; and also the the need to consider the feeling of the victim with the intention of restoring and transforming both parties to continuously live social peace and harmony. The mediation process proceeds on the assumptions that the feelings or the pain of the victim as well as the harm caused has been recognized, that the crime violated the basic rights of the individual, a breach of social values and the laws of the state.
The proponents of victim-offender mediation in the settlement of criminal cases hold the view that the current criminal justice system is unable to satisfy the financial and emotional needs of an accused person. Also, not all offences must be disposed of or go through the conventional stressful, expensive, and time-consuming trial method. Sometimes imprisonment or fines may not be the appropriate punishment for offenders and may only end up increasing congestion in the prisons.
As part of the process, the parties must have equal access to the selection of judges, venue and other procedural rules. During the mediation, the parties are allowed to narrate in full their side of the story and state the effect of their actions on the other party. The parties are then asked how they intend to treat the other party in the future. Dialogue is encouraged between the parties with a focus on the future. The sanctions meted out ,in the end, is mostly compensatory, to restore the victim. Apologies and atonement are considered.
Victim-offender mediation offers many advantages to the parties, their immediate community and state. It offers an avenue to deal with less serious criminal matters. It gives the parties some level of privacy and attends fully to the victim’s needs. It helps decongest prisons, it prevents retaliation by reintegrating offenders into the community. Offenders assume active responsibility for their actions.
A few weeks ago, I saw eleven facts on traffic rules which sought to educate users of the road, particularly drivers. This was virally shared on social media platforms and had no source. In this article I will attempt to correct the position of the law as it applies in Ghana with particular reference to the Road Traffic Act, 2004 (Act 684), Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and Road Traffic Regulations 2013 (L.I. 2180).
No traffic officer is allowed to get and keep your license, they are only allowed to get your details off it. You are not required to have a category (professional driving permit) if you are driving a vehicle for private use.
This is false. A police officer in uniform and not below the rank of an Inspector, may where necessary, retain your driver’s licence for the period that that licence is required and is mandated to issue an official receipt for the retention of the license.
In addition, driver’s license in Ghana is categorized into six classes subject to restrictions which are specific to the holder of each class or as the Diver and Vehicle Licensing Authority (DVLA) may specify. Thus, a holder of a particular class of license can only possess another class after passing the relevant and appropriate test conducted by the DVLA. For example, if you possess a Class B licence, you cannot drive a bus.
If you do not have your licence on you, no police officer is allowed to charge you on the spot. You should be given time to produce it (according to the law its 21 days).
This is false. A person can only drive a vehicle if the person has a Learners Licence or Drivers Licence. A driver is required to carry the original licence whilst driving. On the request by a police officer in uniform or an authorised officer of the DVLA, the driver is required to produce the driver’s licence that authorises that person to drive the motor vehicle for inspection. If you do not have the licence on you, the police officer may request that you produce it within twenty-four hours at a police station or to another police officer as may be directed by the officer.
When stopped for speeding, there is an allowance of up to 8kms above the speed limit. You should not be charged for over speeding.
This false. Unless otherwise indicated by the Ghana Highway Authority, a person driving a motor vehicle must not exceed the maximum permissible speed limit. Fifty kilometres per hour is fifty kilometres per hour. There is no allowance. The law imposes another responsibility on drivers to drive a motor vehicle at speed lower than what is indicated on the road “if the actual and potential hazards relating to the environmental conditions then existing require the motor vehicle to be driven at a lesser speed”. For example, you are required to slow down at zebra crossings and traffic intersections. It is an offence to breach the speed limits.
You are within your rights to ask for the calibration certificate of the radar gun used to capture your speed.
This is False. Traffic offences are usually strict liability offences. For a crime to be committed, there must be two elements present: i.e. the prohibited mental state of the act and a prohibited act or omission, the physical element. However, in strict liability offences, you do not need the requisite mental state to prove the occurrence of a crime. For example. It is an offence to have sexual intercourse with a minor. Thus, if a person has sex with a minor, although the minor consented to the act, the person is liable although there was consent. That is strict liability.
Thus, if you exceed the maximum speed limits, you are liable. The police have a duty to inform you of the nature of the offence you have committed, the charges they will prefer against you. In addition, they are to provide before trial, all documents (which will include the calibration certificate) they intend to rely on at trial. If you have any dispute regarding the calibration of the radar gun, you can do so in court as part of your defence.
You are within your rights to ask for a police officer’s man number, which should be worn on the uniform.
True. It is an offence for a police officer when on “duty to endeavour at anytime to disguise or conceal his or her identification number, name or rank”. Consequently, it will be within reasonable limits for road user to request the name and identification number of the police officer if the number has been disguised, concealed or is not being worn.
If you feel a check point has illegally been mounted, drive to the nearest police station and handle your issues from there.
True. This is because it is only an offence to interfere directly or indirectly with a barrier if that person does not have reasonable excuse and it is obvious to a reasonable person that such interference is not dangerous. For instance, once your safety is concerned and you drive to the nearest police station you would have satisfied the requirements of the law.
They have no right to jump in your car.
True. To the extent that your car is not being used for the commission of a crime or is harbouring any proceed of crime, the car as a property is protected from any form of interference as it is reasonably necessary for public safety, the protection of health or morals, the prevention of disorder or crime or for the protection of the rights or freedoms of others.
Every traffic officer is required to greet you politely; they are a service not a force.
True. To the extent that the police is a service and not a force, one would expect that they would exercise some modicum of decorum when dealing with the motorist. Police officers are required to be of “good conduct”, with a good “attitude towards work and a sense of responsibility”. These criteria are taken into account during the promotion of a police officer. Hence, being polite and courteous to the public may go a long way to advance the career of a police officer.
No traffic officer is allowed to cause undue delay to a motorist.
True. The police cannot hold you beyond a period or time necessary for them to conduct their checks and examinations. To the extent that a motorist is in violation of a traffic law, a police officer may inspect, impound or stop the use of a vehicle which may result in undue delay to a motorist.
It is within the law to record a video or capture photos of your encounter with a traffic police officer.
True. However, such recording must be done taking into account the rules on privacy which every individual is guaranteed under the 1992 constitution. The overriding point is that any secret recording can only be justified in law if it is 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.
You have up to 48 hours to report to the Anti-Corruption Bureau of any misconduct (eg receiving or demanding a bribe) by a traffic officer. Be sure you have evidence such as a video or photos.
False. There is no limitation on reporting crime in Ghana. Every citizen has duty to to co-operate with lawful enforcement agencies in the maintenance of law and order in Ghana. The Police Intelligence and Professional Standards remains an important institution in fighting the bad nuts within the police service.
The Supreme Court by majority decision has held that an insured party is entitled to determine the value of his insured car and that the value although not being the actual value of the car will not render void the insurance contract. This is because the value determined by the insured party will not be considered as a misrepresentation on the part of the insured party.
In Kwame Asamoah v SIC Insurancethe plaintiff initiated proceedings at the High Court against the defendant for recovery of GH¢116,200.00 being the insured/claim/replacement cost for his Chevrolet vehicle which was stolen under a comprehensive insurance policy with the defendant. The plaintiff had insured the vehicle for GH¢116,000 at an agreed premium of GH¢5,759. The defendant company sought to repudiate its liability on several grounds. For purposes of this article, the defendant contended that, the plaintiff had inflated the value of the vehicle far in excess of the value declared at the port of taking delivery of the vehicle because of which he paid a lower custom duty thereby perpetrating fraud on the state which required an annulment of the insurance contract.
The High Court entered judgment for the plaintiff and on appeal to the Court of Appeal by the defendant company, the Court of Appeal held that the plaintiff had an insurable interest in the property but ruled that the defendant was entitled to avoid the contract for non-disclosure of some material facts and also for behaviour that bordered on fraud and forgery of official documents. The plaintiff appealed to the Supreme Court and the main issue for determination was whether the value of a car under an insurance contract was a material term which if not accurately disclosed could void an insurance contract.
In the court’s lead judgment written by Baffoe-Bonnie JSC, he defined an insurance contract as a “contract whereby one person, called the Insurer, undertakes, in return for the agreed consideration, called the premium , to pay to another person, called the Assured, a sum of money or its equivalent, on the happening of a specified event”. The court was of the view that the “duty payable on a vehicle is not based on values declared by the importer but rather on values decided by the state”. Consequently, the sum assured under an insurance contract is the value placed on the property by both the insurer and the assured. The assured sum may be influenced by factors such as the cost of the vehicle, shipping cost, registration and licensing, parts replacement cost, reconditioning and upgrade cost as well as profit margin if the vehicle is for sale. “In any event customs duty paid on the vehicle was based on the assessment done by the [Customs Excise and Preventive Service] relative to what they assessed to be the value of the vehicle at the time the vehicle was being cleared from the port. It had nothing to do with the value placed on the property by the assured, and for which the insurance company computed and asked the assured to pay a premium”.
The Court stated that when a party decides to take up a comprehensive insurance contract for a vehicle, “he has in mind the value that he wants in the case of the occurrence of the event. It is for the insurer to decide whether or not to assume the risk and at what premium. Premiums are fixed based on sum assured and the nature of the risk being undertaken. A higher assured sum definitely commands a higher premium”.
Under most insurance contracts, the insurance company is entitled to avoid the contract on grounds of fraud or misrepresentation of material facts. The test of materiality has been laid out as “everything is material which will guide a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions.” The questions raised by the court determining the issue of materiality on the case was:
Is the fact of the value given and the custom duty paid thereon, relevant to the comprehensive insurance?
Would its disclosure or non-disclosure have affected the insurance company’s preparedness to enter into the agreement on the same terms and conditions?
The court answered both questions in the negative. The court explained that material factors for purposes of insurance contract of this nature will include for example whether “the vehicle had been previously involved in a serious accident; or if the vehicle was originally left wheel drive and same has been converted to right wheel; or if the vehicle has undergone massive body or engine repairs, etc”. These disclosures are essential as they are likely to increase the risk the insurance company is undertaking. His lordship was of the view that the “non-disclosure would not lead to annulment of the contract if the event that triggers the claim is unrelated to the undisclosed facts, as in this case, where the claim is for the snatching of the vehicle by armed robbers”.
The Court concluded that in accordance with the classical definition of an insurance contract, the defendant company undertook, in return for the agreed consideration of the amount of GHC5,759.00, to pay the plaintiff an amount of GH¢116,000 on the happening of certain events including armed robbery. Once, the plaintiff had paid his premium and event for which the policy was taken has occurred, it was time for the defendant company to honour its promise.
PS: Insurers have an option to accept or decline a risk. When in doubt of the value of the vehicle, queries and probes should be made at the underwriting stage and not when a claim is being made.
The Supreme Court of India, late last year, in M/s Caravel Shipping Services Private Limited v M/s Premier Sea Foods Exim Private Limitedheld that an unsigned arbitration agreement is valid and good in law. In the view of the Indian Supreme Court, all that was required under the law is that the arbitration agreement is in writing. The court stressed that there was no requirement that the agreement must be signed especially when there is evidence that the parties relied on the unsigned document.
The facts of the case are straight forward. A dispute arose out of a Bill of Lading (BOL) containing an arbitration clause. The problem, however, was that the BOL was not signed. The Plaintiff/Respondent filed a suit relying on the BOL. The Defendant/Appellant on the back of the suit commenced by the Plaintiff/Respondent brought an application for, stay of proceedings on the ground that the BOL contained an arbitration clause. The stay application was dismissed by the court. Aggrieved by the decision, the Defendant/Appellant filed an appeal which was further dismissed. The Defendant/Appellant did not relent and appealed the Supreme Court.
The Defendant/Appellant argued that the courts below erred in dismissing their application to stay proceedings because the parties had a valid arbitration agreement. The Defendant/Appellant further pointed out that the arbitration clause was in writing and formed part of the contract.
The Plaintiff/Respondent, seeking to make as much as it can from the unsigned document, argued that the Indian Arbitration Act required an arbitration agreement to be signed by the parties; and that since the BOL was not signed by the Respondent, it was not bound by the arbitration clause contained in that document.
The Court rejected the Plaintiff/Respondent’s argument that the arbitration agreement/clause was invalid simply because it was not signed. The court noted that the Respondent had, at the very least, relied on the unsigned BOL as part of the cause of action in the suit filed by it. Essentially, the court noted that the Respondent could not cherry pick and decide, based on its convenience, when it was bound by an agreement and when it was not bound by the agreement.
The reliance on Indian case law is fairly common in Ghana. This is partly because both countries share a common law heritage and in some instances similarly worded legislation. This case, therefore, provides Ghanaian arbitration practitioners with some insights on the validity or otherwise of an unsigned arbitration clause or agreement. Section 2 of Ghana’s Alternative Dispute Resolution Act, 2010 (Act 798) simply requires that an arbitration agreement must be in writing. It does not go any further to insist that the arbitration clauses and agreements must be signed. It would, therefore, seem that an unsigned arbitration agreement will be valid in law so long as there is evidence of reliance on the agreement.
Consider a scenario where you discover a gold nugget while digging your land for planting. Section 111 of the Minerals and Mining Act, 2006 (Act 703) defines “mineral” as a substance in solid or liquid form that occurs naturally in or on the earth, or on or under the seabed, formed by or subject to geological process including industrial minerals but does not include petroleum or water. In our scenario therefore, the gold nugget you found is a mineral. Do you, therefore, own the mineral you found on your land?
Ownership in ordinary language refers to having the power of use and enjoyment of a thing which belongs to a person. There are different kinds of natural resource ownership regimes in the world. There are open access resources that are owned by all, like the air we breathe. There are also natural resources that are subject to international regulations because they do not fall within a particular state or territory. An example of such a natural resource is the sea which is governed by the United Nations Convention on the Law of the Sea which spells out the rights and responsibilities of nations with respect to their use of the world’s oceans.
In some systems, mineral rights are privately owned. An example is the United States of America where the owner of land is also the owner of any resource attached to his land. In other countries, some selected minerals in their natural state are placed under state ownership, requiring the official grant of mineral licences to be able to deal with them in any way. All other minerals are owned by the land-owner where the mineral is found or discovered. In the UK, for instance, with the exception of oil, gas, coal, gold and silver, the state does not own mineral rights.
In Ghana, the situation is different. Natural resources are owned by the state. Article 257(6) of the 1992 Constitution states that every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of, and in trust for the people of Ghana. This means that the owner of any land in Ghana is not the owner of any mineral in its natural state which she may find.
The law further provides that despite a right or title which a person may have in a land, upon or under which minerals are situated, a person shall not conduct activities on or over land in Ghana for the search, reconnaissance, prospecting, exploration or mining for a mineral unless the person has been granted a mineral right in accordance with this Act.
Thus, regardless of the fact that you own the land on which the gold in its natural state was found, a mineral right must be granted to you to deal with it in any way. To make matters a bit more complex for individuals, qualifications for mineral rights are limited to bodies incorporated under the Companies Code 1963 (Act 179), under the Incorporated Private Partnerships Act 1962 (Act 152) or under an enactment in force.
In conclusion, the land is yours but the gold is ours (the people of Ghana).
Article 88(3) of the 1992 Constitution gives power to the Attorney General to initiate and conduct all prosecutions on behalf of the state. In the conduct of this duty, the Attorney General is given certain powers. Two of such powers are the power of nolle prosequi and withdrawal. This piece looks at how these two concepts operate in the Ghanaian criminal justice system.
Nolle prosequi, a latin term meaning; ‘I do not want to continue the prosecution’, is an indication given by the Attorney General that the Republic of Ghana is no longer interested in proceeding with the matter under trial. The power to enter a nolle prosequi is provided for under section 54 of the Criminal Procedure Code, 1960 (Act 30). The Attorney General enters a nolle prosequi by indicating in open court or by informing the court in writing.Previously, the Attorney General may delegate this power and any person exercising this delegated power must have an express authorization from the Attorney General.However, in Republic v Dr. Adu Tutu Gyamfi, the Court of Appeal pointed out that a nolle prosequi may be entered in the absence of an express authorization from the Attorney-General.
Nolle prosequi can be entered at any time during the trial or before judgment or verdict is given. A nolle prosequi entered by the Attorney General is not subject to any judicial enquiry or review,unless it offends the use of discretionary powers.Upon the entry of a nolle prosequi, the accused person is discharged. However, this does not prevent the Attorney General from instituting subsequent proceedings against him in respect of the same facts. It is important to stress that an acquittal on a criminal charge does not absolve one from civil liabilities. This means even if an accused in a criminal case is discharged and acquitted, the victim can successfully mount a civil action against the accused and succeed. In between the period of his discharge and the institution of fresh proceedings, the accused person may bring an action against the prosecution for malicious prosecution,which is grounded in the law of torts.
Withdrawal, as the name suggests, is an indication from the prosecution to withdraw the proceedings from a court. Just like nolle prosequi it can be entered at any time during the trial in relation to all the counts or some of the counts. A withdrawal operates as a discharge when entered in the course of a trial but before the prosecution closes it case. A discharge means that the accused person can be rearrested on the same facts. But unlike nolle prosequi when the prosecution withdraws after it has closed its case, it operates as an acquittal in respect of that count. An acquittal operates as a bar to subsequent proceedings against the accused person.
Even though no law mandates the Attorney General to give reasons to the court when a nolle prosequi is entered or a case is withdrawn, we may infer that (from case law especially) that there is a duty on the part of the state to give reasons for its action. When an action is instituted in a wrong forum, the prosecution may take steps to rectify the error by entering a nolle prosequi and proceed to file the case in the appropriate court.A nolle prosequi or withdrawal may be entered when there is substantial procedural error which is detrimental to the cause of justice.Thirdly it is may be entered in respect of some or all of the charges when there is no substantial evidence to support the case of the prosecution in satisfying the elements of that offence or when there is no law under which the accused can be properly charge.
Political undertones cannot be ruled out as one of the reasons why the prosecution may enter a nolle prosequi or withdraw a case. This may largely be associated with the fact that the Attorney General is appointed by the government of the day.
Even though nothing mandates the prosecution to give reasons for withdrawing from a case or for entering a nolle prosequi, it is important that the Attorney General exercises this discretion judiciously. This is more so in matters of immense public interest. charged may help build the confidence of people in the government of the day and the criminal justice system. The courts, on the other hand, may help justice delivery by reviewing cases where they think the discretion has been abused.
The High Court, Kumasi presided over by Justice Angelina Mensah-Homiah denied a construction company, Star of the Sea Construction (“Company”) the right to recover a sum of GH¢41,000 from Samuel Mensah Abroampah (“Defendant”) who had promise to secure a contract for the Company.
The Plaintiff Company allegedly entered into an agreement with the Defendant, for the award of a six (6) classroom block contract valued at GH¢370,000. The Defendant, who was to bring the contract from the Regional Minister, requested the Company to pay GH¢45,000 to enable him to secure the contract. The money was allegedly paid in two tranches to the Defendant by cheque. The contract was never awarded. The Company lodged a complaint with the police, whereupon the Defendant refunded an amount of GH¢4,000, leaving a balance of Gh¢41,000.
The Defendant in his Statement of Defence gave insight into how the Company decided to part with the money to him in order to secure the contract. He alleged that before the Company issued the cheques in his name, there was a meeting with the PRO of then Regional Minister at the time, the Company’s representative, a brother of the Company’s representative and he the Defendant. The PRO explained that the contract was coming from the Regional Minister, which same was agreed by the representatives of the Company. The Defendant argued that the agreement he had with the Company was illegal and consequently unenforceable. The Company however, denied the Regional Minister’s involvement and the assertion that the cheques were issued in the name of the Defendant for the benefit of the Minister.
The main issue for consideration was whether the Company could recover the money paid to Defendant under an illegal contract. By analogy, can a drug dealer sue for the recovery of his drug if it turns out that the purchaser bought the drugs with counterfeit notes.
The trial judge concluded that the act of the Company violated Section 92 of the Public Procurement Act, 2003 (Act 663) (as amended) which criminalises the act of “directly or indirectly influencing in any manner or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of procurement contract”.
This was because, the contract for the award of the contract needed to undergo “restrictive tender” and all other the procurement process for a valid contract to be awarded to the Company. Thus, the act of paying the money to Defendant violated section 92 of the Act. The judge held: “It is unimaginable to think that the Plaintiff paid this huge sum and expected to be given the contract in issue on a silver platter without going through the due process. Whatever agreement that the parties entered into which culminated in the payment of the sum of GH¢45,000.00 to the Defendant was not only contrary to the Provisions of Act 663 but also an act of corruption. It was an inducement so to speak for the award of the contract in issue.”
The judge further held that: “Even if the procedure under Act 663 for the award of contracts had been followed, the illegality of the payment of GH¢45,000 to as it were directly or indirectly influence the decision making process still remains”.
Under common law, where a contract is illegal at the time of formation, or it is formed in anticipation that it will be legally performed, the courts will not enforce the contract or provide any other remedy arising out of the illegal contract.
In addition, the learned trial judge further held the corrupt act of the Company and its officers also infringed on the provisions of Sections 239(2) and 241 Criminal Offences Act, 1960 (Act 29) – Offences relating to the corruption of public officer. Section 93 of Act 663, requires that entities and participants in the procurement process abide by the provisions of Article 284 of the 1992 Constitution (i.e. conflict of interest rules) and Act 29.
Again, the position of the law is that a plaintiff will be unable to pursue legal remedy if his cause of action arises in connection with his own illegal act; or “where both parties, contracting on an equal footing, are aware of the illegal nature of the contract, whether it be on its face illegal or whether the common intention to carry out the contract in an illegal manner, neither party can recover anything paid or transferred thereunder”.
Thus, the learned trial judge held that the Company failed to establish that it was an “innocent agent or unwilling party in the whole transaction… the Company was therefore “ in pari delicto”[in equal fault] with the Defendant. Consequently, the action of the Company to recover money paid with the intent of securing a government contract failed.
This decision must be contrasted with the case of the City and Country Waste Limited v Accra Metropolitan Assembly where the plaintiff was able to recover the value of services rendered to the defendant under a contract which violated the Section 67(1) of Accra Metropolitan Assembly’s Standing Orders and Sections 39, 87 and 88 of the Local Government Act, 1993 where the Supreme Court held that the plaintiff was not in pari delictowith the defendant. Consequently, the defendant would be justly enriched if the illegal contract was not enforced.
Star of the Sea Construction v Samuel Mensah Abroampah, unreported. Suit No. RPC/2/13. Judgment delivered on 10thApril 2014.
The law sometimes works in mysterious ways. And its principles are sometimes clearly out of date and out of touch with current realities. One of such principles is the presumption of advancement. The presumption of advancement means that the law presumes that the transfer of property to a recipient or the purchase of property in the recipient’s name without any consideration was by way of a gift. The beneficial interest in the transferred property moves to the recipient who holds same for herself and not in trust for the transferor. Without such a presumption, the law deems it that the recipient only holds the properties in trust for the transferor or purchaser regardless of the legal title being in the recipient’s name.
Presumption of advancement operates in two ways; transfers from a husband to a lawful wife and transfers from a parent to a child. In Ussher vs. Darko, a married man purchased a piece of land in the name of his mistress with whom he had six children. He built on the land and let it out to tenants who paid rent to him directly. The mistress who had legal title to the property relied on the conveyance in her name and attempted to sell it to the plaintiff. In a claim for title by the plaintiff, it was held that although the mistress had legal title, she held the property as a bare trustee, i.e. on a resulting trust for the purchaser of the said property which is the married man. The court further held that the presumption of advancement operated in favour of a lawful wife. As the mistress was not the lawful wife of the purchaser, the presumption did not arise in her favour.
Presumption of advancement is also rebuttable by evidence of a contrary intention. In Kwatreng v. Amassah, the court held that the presumption of advancement was rebutted where despite a conveyance made by a father to his daughter, he continued to exercise control and enjoyment of the said property. She was presumed to be holding the property in trust for her father.
Presumption of advancement does not operate in favour of a husband where a wife transfers property to him or purchases property in his name. In the case of Reindorf alias Sacker v. Reindorf, a wife purchased properties in the joint names of herself and her husband with money provided by her alone. It was held that without the wife intending to make a gift to the husband of the properties, the husband was presumed to be holding the properties in trust for the wife. The court went further to state that no advancement can be presumed in the case. In the view of the court, there must be evidence, direct or circumstantial that a gift was intended by the wife to the husband. Also, in Harrison v. Gray Jnr, a widow purchased property in the name of a man who had promised to marry her. In an action by her for a declaration of title to the property, the court decided that the doctrine of advancement had no application since it was restricted in such cases to situations where the husband acquired property in the name of the wife. It was held that the matter was a straightforward case of disputed ownership and on the facts the plaintiff was the owner, the defendant holding the legal title on a resulting trust for her. Again, in Quist v. George, the point was reiterated that no presumption of advancement arises when a wife transfers or puts property in the name of her husband.
It is submitted that this aspect of the presumption of advancement is in breach of the constitutional right to equality. Article 17 of the 1992 Constitution of Ghana provides that all persons shall be equal before the law and no person shall be discriminated against on grounds of gender, social or economic status. To “discriminate”, according to the constitution, means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender (among others), whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.
It is my humble opinion that the presumption of advancement provides an unfair advantage to only wives in whose favour it may arise. Another advantage by extension is that there is no onus of proof on wives when the presumption arises. This is because the onus of proof shifts from the person in whose favour a presumption arises; in situations where the presumption of advancement arises in a party’s favour, there is no burden on the favoured to prove that it should remain in their favour; the burden shifts to the one who disputes that the transfer/purchase was not a gift. In the case of Ramia v. Ramia, the court stated that when the circumstances give rise to a presumption, the onus shifts to the party disputing the presumption to show an actual intention to the contrary. The fact of it being rebuttable is not enough to override this unfair advantage. Both spouses should have access to this presumption or neither should.
The justification for this one-sided advantage can be traced to a historical social obligation that husbands must provide for their wives and not the other way round.InRamia v. Ramia, Francois J.A. stated in his judgement as follows:
‘It was seriously urged that the doctrine of advancement as between husband and wife has been eroded by a number of authoritative decisions of the English courts. In those cases the presumption is said “largely (to have) lost (its) force under present conditions” see Pettitt v. Pettitt  A.C. 777, H.L. In that case sympathy was also expressed at pp. 793, 811 and 824, H.L. for the view that unjust consequences might follow the application of presumptions which were developed in a social climate which has little in common with the widely accepted view that marriage is really a partnership of equals. True, the importance of the doctrine of advancement has been whittled down to levels bordering on obsolescence because of the changing evolution in the status of women. The modern English lady has shed the disabilities of her Victorian ancestress, and the postulates of equality require the same treatment for either spouse. But though in-roads have been made in the doctrine, it has not been totally eroded and its application is by cold legal reasoning on particular facts rather than by any emotional route.’
Beyond the issue of inequality, the presumption of advancement can be used to advance illegalities. One may transfer or purchase property in a child or wife’s name to elude legal confiscation of personal properties, to avoid the attachment of his property in satisfaction of a judgement debt or to avoid paying creditors. Presumption of advancement should be subjected to careful legislative scrutiny with considerations of modern social trends, human rights and economic development.
Georgina Andrews, ‘The Presumption of Advancement: Equity, Equality and Human Rights’ Conveyancer and Property Lawyer 2007 at 343 as cited in the January 2010 Northern Ireland Assembly Briefing Note 03/10