• July 6, 2020

    POWERS OF ATTORNEY- WHAT DOES GHANA LAW SAY?

    by Barbara Ewoenam Afua Kukah Esq[1] 1. Introduction If you’ve ever had to sign legal or financial documents on behalf of a relative or friend or make medical decisions concerning the health of an incapacitated person, likely, you did so as the lawful attorney of that person. The only legal means of acting as a lawful representative of another is if you have been issued with a Power of Attorney.  This article aims to shed light on provisions of the law relating to Powers of Attorney. Emphasis will be placed on the provisions of the Powers of Attorney Act 1998, Act 549 (hereinafter referred to as “Act 549”) which is the enabling act for the regulation of for powers of attorney in Ghana; case law  and the common law. 2. What is a Power of Attorney? A Power of Attorney (PoA) is a document which authorizes a person referred to as a “Donee or Attorney” to act on behalf of another person referred to as the “Donor or Principal”. The person who gives the authority is called the Donor or the Principal while the recipient is called the Donee or Attorney. The terms “Donor” and “Principal” will be used interchangeably in this article, as will the terms “Donee” and “Attorney”. Act 549 does not define a PoA. However, other authorities do this. In the case of Hussey v. Edah, the Supreme Court per Hayfron-Benjamin JSC defines a PoA as “a formal document by which one person, usually called the principal or donor, divests to another, usually called the attorney or donee, authority to represent him or act in his stead or for certain purposes spelt out in the document.”[2] The eminent authors B.J Da Rocha and C.K Lodoh defined a PoA as  “a document by which one person gives to another person authority to act on his behalf and in his name.”[3] They further stated, “the practical purpose of a power of attorney is not only to invest the attorney with power to act for the principal, but also to provide him with a document defining the extent of his authority, which he can produce as evidence to third parties with whom he is to deal. The law authorizes such third parties to inspect this document.[4]” Thus, a PoA serves three main functions. First, it creates the relationship between the Donor and the Donee. Secondly, it sets out the scope of the Donee’s authority and finally serves as proof to third parties that the Donee indeed can contract on behalf of the Donor. Act 549 thus requires that a PoA be a written document that must be executed in the manner prescribed by the Act which shall be examined further in this article.   3. What a Power of Attorney is not Having looked the definition of a PoA, it will be helpful to understand what it is not. First, a PoA is not a contract. The term “contract” is used to refer to an agreement, consisting of exchange of promises, which is recognized by law as giving rise to enforceable rights and obligations.[5] Sir Frederick Pollock also defines a […]

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  • June 19, 2020

    THE DIGITAL AGENDA: LEGAL REFORMS TO ACCOMMODATE FINTECH IN GHANA (PART III)

    PART 3: GRIEVANCE PROCEDURES, FOREIGN PARTICIPATION AND LICENSING REQUIREMENTS GRIEVANCE PROCEDURES UNDER THE PAYMENT SYSTEMS AND SERVICE ACT 2019 As indicated in the previous post, the Bank of Ghana has the power to reject an application for authorisation or a license. When this happens, the unsuccessful applicant is not barred from future application, he may continue to apply in so far as the defects which caused the rejection have been cured. The Act does not place any time limit on when the defect should be cured, thereby giving the applicant as much time as he needs to set his affairs in order. The Act also balances the powers of the Bank of Ghana, by subjecting the said powers to the principle of “audi alteram partem”, which means both sides must be heard. Under the Payment Systems and Services Act, where a license or authorisation is to be suspended or revoked, it cannot be done in an arbitrary manner without giving the holder of the license or authorisation notice of the intended action nor an opportunity to be heard.[1] The notice however, is time-bound and as such the holder of the license or authorisation is required to act swiftly. Aside from the above, there are no other direct grievance procedures under the Act, neither does the Payment Systems and Services Act expressly or impliedly forbids aggrieved persons from making an appeal to the High Court. This is unlike the provisions of the Banks and Specialised Deposit-Taking Institutions Act 2016 (Act 930)[2] which limits actions in connection with but not limited to, appointment of official administrators, liquidation, suspension in the payment of dividends to shareholders and issuance of licenses to operate as a bank or specialised deposit-taking institution, to arbitration alone. However, under the Bank of Ghana Act 2002 (Act 612), the Bank of Ghana is a corporate entity that that can sue and be sued in its name. Section 1 of the Bank of Ghana Act 2002 (Act 612 reads), “The Bank of Ghana in existence immediately before the commencement of this Act shall, subject to this Act, continue to be in existence as a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name” It stands to reason then, that an aggrieved person may seek redress in court against the Bank of Ghana as there are no known fetters or limitations on the right to seek court redress.   PENALTIES UNDER THE PAYMENT SYSTEMS AND SERVICES ACT 2019 The Act makes it an offence for a non-banking entity to carry on business as a payment service provider without first acquiring a license under Section 9. The sanction for unauthorised business under the Act is a fine[3] or imprisonment or both. Any individual charged with said offence is liable on summary conviction to a fine of a minimum of 2000 penalty units[4] and a maximum of 4,000 penalty units[5], or a term of imprisonment of not less than 4 years and not more than 7 years; or to both the fine and imprisonment. The body corporate shall on conviction  immediately cease business […]

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  • June 5, 2020

    THE DIGITAL AGENDA: LEGAL REFORMS TO ACCOMMODATE FINTECH IN GHANA (PART II)

    Adwoa E. Paintsil*   PART 2: THE OVERVIEW OF THE PAYMENT SERVICE ACT   THE PAYMENT SYSTEMS AND SERVICES ACT 2019 (ACT 987) The Payment Systems and Services Act 2019 (Act 987), which repeals the previous Payment Systems Act passed in 2003 (Act 662), was assented to by the President of Ghana on 13th May 2019. It is aimed at providing an enabling regulatory environment for digital payments. Its purpose is to: (1) amend and consolidate laws and guidelines relating to the connection of payers and recipients of money by payment instruments or electronic money (“Payment Service”), and (2) regulate institutions which issue electronic money and provide Payment Service.   The Payment Systems Act applies to banks, specialised deposit-taking institutions, Payment Service Providers, Dedicated Electronic Money Issuers, and their affiliates and/or agents.[1]   Under the Act, the Bank of Ghana has overall supervisory and regulatory authority[2] in all matters relating to payment, settlement and clearing systems. This power gives the Bank of Ghana the mandate, inter alia, for the issuance of electronic money, payment instruments, payment service providers and electronic money businesses[3]; to ensure that financial services are extended beyond traditional branch-based channels to the domain of every day transactions[4]; to ensure that electronic money is only provided by authorized financial institutions regulated by the Banks and Specialised Deposit Taking Institutions Act 2016 (Act 930) and duly licensed non-bank entities which are engaged solely in the business of electronic money and activities related or incidental to the business of electronic money[5]; to ensure that customers of electronic money issuers benefit from adequate transparency, fair treatment and effective recourse mechanism[6]; for the formulation, monitoring and review of policies on payment systems in Ghana[7] for the authorization of banks and specialized deposit-taking institutions to conduct business under the Payment Systems and Services Act 2019[8]; for the licensing of non-bank financial institutions under the Payment Systems and Services Act 2019[9]; for the approval of foreign entities in the country who wish to establish representative offices[10] for any other payment system or product, the Bank of Ghana may determine.[11]   In furtherance of the mandate of the Bank of Ghana under the Payment Systems and Services Act 2019, the Bank of Ghana is to establish a Payment Systems Advisory Committee[12] to advise the Bank of Ghana on, the regulation and oversight of payment systems under the Act the operational and technical stands on the payment systems in place all other incidental or related matters affecting payment systems and services, and settlements and clearing of payments. The Payment Systems Advisory Committee is to include[13] a representative from the National Information Technology Agency[14]; the Governor of the Bank of Ghana; a representative from the Ministry of Finance; and relevant stakeholders to be determined by the Bank of Ghana. These powers of the Bank of Ghana, are supplemented by the power to release notices, and guidelines for the implementation of the Act. These powers, nonetheless, do not give the Bank of Ghana the authority to pass subsidiary legislation. Hence, for matters which require legislation, the Minster for Finance, is the proper authority to pass the legislation.[15]   […]

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