Category: Blog

Darfoor Law Firm is proud to announce that the firm is now affiliated with The Danton Group. TDG is a public policy, governmental relations, and transactional advisory firm with a particular focus on the growing Sub-Saharan Africa region.

TDG brings together a diverse collection of professionals with deep roots in law and progressive public policy. The mission is to identify opportunities and solve problems for clients in the corporate, nonprofit, foundation and government sectors.

DLF believes that this new affiliation will open up the new emerging markets, particularly the gateways of Ghana and Nigeria, to their existing and future corporate clients, as well as wealthy investors. In both the public and private sector, TDG is resourced with the experience, local knowledge, and local resources without having to sacrifice integrity to cut through the usual red tape. “I believe this affiliation with The Danton Group, especially given the quality and experience of their Board of Advisors, will enhance the business offerings available to our corporate clients who can capitalize on the strong demand for services and goods in ICT, tourism, real estate, and agriculture; especially in the gateway markets of Ghana, Nigeria, and Kenya” stated DLF managing partner Kweku Darfoor.

The Board of Advisors of The Danton Group is composed of professionals with decades of expertise in ICT, Real Estate Financing & Development, Cross-Border Transactions, African Policy, & Law.

As I begin to write this post, I first want to take a second to remember the victims’ that perished and extend my condolences to their grieving family members. Secondly, this accident was completely avoidable if the proper road planning, safety measures, and maintenance had been rendered.

Writing this from the confines of my office in Fort Lauderdale, Florida in the USA, I may have a different perspective than many that reside in Ghana. I drove to my office this morning on roads that may be considered very well maintained by some in Ghana. However, I know that our average roads don’t compare to the average roads that I have seen in parts of Europe. All things aside, Ghana’s road network is certainly in desperate need of an overhaul for the safety of our nation, to attract the type of investors Ghana craves, and overall to allow for efficiency in the transporting of goods, labour, and people. Ghana has many models it could follow to achieve this aim, primarily the American interstate highway system which was influenced by the German Autobahn system. (As an aside, isn’t it amazing that the German autobahn has no speed limits on majority of their road network, but fatalities are much lower than other places that have limitations on speed?) The George-Bush “Highway” that was constructed in Ghana some years ago is more reminiscent of an inter-city road normally seen in other parts of the more developed world. Why do Ghana’s political class need to be spurred by their constituents before acting in the best interests of the State? This issue is a national defense issue, a public health issue, a security issue, and a safety issue. Funds needed for this type of project can readily be obtained from various lending sources (PPP has gained fashion in Ghana lately). However, consoling the victims after the wake of this tragedy, and pacifying the families with small gratuity is not in the spirit of having the people’s best interest at heart.

The evolution of Ghana’s nascent democracy hinges on the development of infrastructural services that benefit all; not merely an increase of GDP that doesn’t seem to be evident in the basic human services that are inherent rights of its people.

I task the bold lawyers in Ghana to make this case a precedent-setting case by pursuing damages for the victims’ families against the responsible parties. The publicly owned bus company, the manufacturers of the bus and/or truck, the truck company ownership, and all parties that may have had some form of responsibility in this devasting accident. Though I am not familiar with Ghanaian laws regarding negligence and tort, the acclaimed lawyers in Ghana should be able to decipher the legal issues and possible claims.

Let us not sit back and continue to provide illegitimate reasons why things can not change; rather let us analyze the continuing impact of these fatalities on countless victims’ whom may have had the course of their life altered with the loss of a provider.

What is Odometer Fraud, Salvage Fraud, Undisclosed Flood or Hurricane Damage?

Odometer Fraud occurs when the dealer or the dealer’s representative (salesman) gives misinterpretations about the motor vehicle’s actual mileage information; for example, a car with 75,000 miles being set and sold at 25,000 miles. Salvage Fraud is when a car is being sold after it has been declared a total loss due to such things like a car collision or anything of a serious matter. Undisclosed flood or Hurricane Damage is similar to Salvage Fraud; moreover, selling a car after total loss due to hurricane or flood damage. All of these types of automobile fraud, including, but not limited to, hiding and misinterpreting an automobile’s actual condition and the real value violate the federal statute of Motor Vehicle Information and Cost Savings Act (MVICSA). They also violate the State of Florida FDUTPA (Florida Deceptive and Unfair Trade Practices Act), and can ultimately result in revocation, installments payments withholding, and ultimately a lawsuit regardless of the seller’s position in knowing the fraud facts upon the vehicle.

Automobile Fraud

Undisclosed wreck damage to used Cars is very similar to salvage fraud. However, it does not abide by the state salvage law. Undisclosed Wreck Damage to used vehicles usually occurs in the form of cars that are not a total loss but have been damaged enough. Undisclosed damage to new cars is typically damage that  occurs during delivery from the manufacturer or at the dealership. These cars are then, for the most part, repaired and ready for sale. Both of these undisclosed damages to used and new cars can result in common law fraud, as well as revocation, withholding of payments, claim for damages, and more; regardless of seller’s knowledge. If you think you have been the victim of dealer fraud through undisclosed damage of your used or new car, call experienced automobile fraud attorney Kweku Darfoor at (754) 800-5657. Let me fight for you against the unscrupulous car dealers in Florida.  

Introduction

In its recent decision in the case of Felix Klomega v The Attorney General and others, the Supreme Court in Ghana has provided much needed guidance to the international community when looking to contract with the Ghanaian government or government entities.

The facts

The claimant, a citizen and tax payer of Ghana, brought proceedings in the Supreme Court challenging the constitutional validity of a concession agreement and an associated shareholders agreement for the design, construction and, thereafter, operation of the container terminal at the port of Tema, Ghana for 20 years.

The concession was granted to Meridian Port Services Limited (MPS) by the Ghana Ports and Harbours Authority (GPHA).

MPS is a Ghanaian company, being a joint venture between Meridian Port Holdings Limited (MPH) and the GPHA, with MPH being the majority shareholder.

MPH is an English company, being a joint venture between leading container terminal operators APM Terminals and Bolloré Africa Logistics.

The GPHA is a statutory corporation established under the Ghana Ports and Harbours Authority Act, 1986 (PNDCL 160).

The GPHA, MPS and MPH were named as defendants in the proceedings, along with the Attorney General of Ghana.

The issues in the case

The claimant relied on article 181(5) of the 1992 Constitution of Ghana (the Constitution), which requires any “international business or economic transaction” to which the government is a party be authorised by parliament.

The claimant’s contention was that the expression “government” included a state entity such as the GPHA and that, as a result, the concession and shareholders’ agreements should be declared null and void for want of parliamentary authorisation.

The defendants’ principal arguments were that the GPHA could not be included within the definition of government because (i) it had been set up as a separate legal entity from central government under PNDCL 160; (ii) its operations were commercial in nature and did not, therefore, require parliamentary approval; and (iii) it is a government agency as distinct from an organ of government.

If, contrary to the position of the GPHA, MPS and MPH, the GPHA was deemed to be within the definition of government, the court was asked to determine whether the concession agreement and the shareholders’ agreement were, in any event, “international business or economic transactions” for the purposes of article 181(5) of the Constitution.

The Supreme Court’s decision

On 19 July 2013, the nine Justices of the Supreme Court delivered a unanimous decision dismissing the claimant’s action.

In doing so, the court only decided the principal issue as to whether the GPHA came within the meaning of government, and held that:

The cumulative points made by the defendants above amount to an irresistible case that in the context of article 181(5) and the facts of this case, the 2nd defendant [the GPHA] is not to be regarded as coming within the meaning of “Government”.

The Supreme Court went on to hold that:

“…to subject statutory corporations…” with commercial functions to the Parliamentary approval process prescribed in article 181(5) would probably increase the weight of Parliament’s responsibilities in this regard to an unsustainable level. Accordingly, it is reasonable to infer that the framers of the 1992 Constitution did not intend such a result.

In the court’s view, government should mean, ordinarily, the central government and not operationally autonomous agencies of government, and interpreting that word purposively it should exclude the operations of the GPHA.

The Supreme Court did, however, state that its decision did not lay down an absolute rule. For instance, article 181(5) may still apply on the particular facts of a case if central government was found to have made a particular statutory corporation its alter ego.

As to the “international” nature of the concession and shareholders agreements, the court stated that:

Although these other issues raised by the parties are tantalizingly interesting, we will refrain from commenting on them or deciding them, since that is not necessary for the determination of this case.

Concluding remarks

This is the fifth time the Supreme Court has been asked to interpret article 181(5) of the Constitution.

In the light of this significant body of law, in this last case the court stated that it has laid the foundation for determining the provision’s meaning with some predictability.

So, in the future, if there is an issue as to whether article 181(5) applies or not, parties must ask the High Court to decide the point rather requesting an interpretation from the Supreme Court. This would include dealing with issues such as whether a contract is with the “government” and, if so, whether it is an “international business or economic transaction” such that parliamentary approval is required.

When contracting with the Ghanaian government or government entities, it is vital that contracting entities give due consideration and take legal advice as to the possible application of article 181(5). A failure to do so could have significant ramifications.

If the conclusion is that a party is going to be contracting with the “government” and the contract in question is an “international business or economic transaction”, parliamentary approval will be required. If so, this requirement will need to be factored into the timeline leading to contract closing.

The EB-5 visa for Immigrant Investors is a U.S. visa created by the Immigration Act 1990. This visa provides a means to obtain a green card for foreigners who invest money in the U.S. The first stipulation to obtaining the visa requires an individual to invest $1,000,000 (or at least $500,000 in a “Targeted Employment Area” – high unemployment or rural area), which creates or preserves at least 10 jobs for U.S. workers, with the exclusion of the investor and their immediate family.

Currently, a new Pilot Program allows for investments to be made directly in a job-generating commercial enterprise (new, or existing – “Troubled Business”), or a “Regional Center” – a 3rd party-managed investment vehicle (private or public). The responsibility of creating the requisite jobs will fall on the 3rd party. Contact a knowledgeable U.S. immigration lawyer to guide you through the creation of a regional center.

So how does it work for the foreign investor and their family? If the investor’s petition is approved, the investor and their dependents will be granted conditional permanent residence which shall be valid for two years. Accordingly, within the 90 day period before the conditional permanent residence expires, the investor must submit evidence documenting that the full required investment has been made and that 10 jobs have been maintained, or 10 jobs have been created or will be created within a reasonable time period.

The EB-5 visa has traditionally been underutilized by foreign investors. However, the popularity of the immigrant investor visa has been steadily picking up in the last few years, after a few tweaks by the U.S. government. To gain additional information, contact a U.S. immigration lawyer.

There are a few things you must decide when you start your business. One of the first few decisions will be the entity structure of your organization. You must decide whether it will be a sole proprietorship, partnership, corporation, or limited liability company (LLC). (If you need a brief explanation of the main business types, see http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/choose-your-business-stru)

The business structure which is right for your business depends on the type of business you operate, number of owners, and its financial position. No one choice is perfect for every business: Business owners must choose the structure that best meets their goals. This article introduces several of the most important factors to consider, including:

• the potential risks and liabilities of your business
• the formalities and expenses involved in establishing and maintaining the various business structures
• your income tax situation
• your investment needs.

Risks and Liabilities

The best ownership structure for your business is largely dependent on the type of services or products it will offer. If your business will engage in inherent risky business activities— for example, trading stocks or repairing roofs — you’ll most likely want to form a business structure that separates your personal liability from the business’ liability (“limited liability”), which shields your personal assets from business debts and claims. A corporation or a limited liability company (LLC) is likely the best structure for your business.

Again, to learn more about the advantages and disadvantages of each type of business structure, please refer to http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/choose-your-business-stru

Formalities and Expenses

The simplest structures to set up are undoubtedly sole proprietorships and partnerships — you don’t have to file any special forms or pay any fees to start your business. Additionally, there are not any special operating rules that must be adhered to.

On the other hand, LLCs and corporations are almost always more expensive to create and more difficult to maintain. To form an LLC or corporation, you must file a document with the state and pay a fee, which can range (typically $40 to $800); depending on the state your business is formed. Keep in mind that, owners of corporations and LLCs must elect officers (usually, a president, vice president, and secretary) that manage the company’s affairs. They are also tasked with keeping important business records and other formalities.

If your business is beginning on a shoestring, it may be economically better to form the simplest type of business — a sole proprietorship (for one-owner businesses) or a partnership (for businesses with more than one owner). However, if your business will take on any form of risks that could expose you to potential lawsuits, the limited personal liability provided by an LLC or a corporation may be worth the cost and paperwork required to create and operate one.

Income Taxes

Owners of sole proprietorships, partnerships, and LLCs all pay taxes on business profits in the same way. The IRS refers to these three business types as “pass-through” tax entities, which means that all of the profits and losses pass through the business to the owners, who report their share of the profits (or deduct their share of the losses) on their personal tax returns. Therefore, sole proprietors, partners, and LLC owners can expect roughly the same amount of tax complexity, paperwork, and costs.

Owners of these unincorporated businesses must pay income taxes on ALL net profits of the business. This is regardless of how much they actually take out of the business for the given year. Consider that even if all of the profits are kept in the business checking account to meet upcoming business expenses, the owners must report their share of these profits as income on their individual tax returns.

Contrast this to the owners of a corporation that do not report their shares of corporate profits on their personal tax returns. These owners pay taxes only on profits they actually receive (salaries, bonuses, and dividends).

Keep in mind that the corporation itself pays taxes, at special corporate tax rates, on any profits that are left in the company from year to year (called “retained earnings”). Furthermore, corporations also have to pay taxes on dividends paid out to shareholders. However, small corporations rarely pay dividends so they are largely unaffected by this tax burden.

This separate level of taxation makes it quite a bit more complex to filing and paying taxes for corporations, but it can be a benefit to many businesses. For instance, owners of a corporation don’t have to pay personal income taxes on profits they don’t actually receive. How does this happen? For example, take a corporation that earned up to $75,000 in one year; because corporations enjoy a lower tax rate than most individuals for the first $50,000 to $75,000 of corporate income, a corporation and its owners may actually have a lower combined tax bill than the owners of an unincorporated business that earns the same amount of profit. This is just one of the benefits of the corporate entity. It is recommended that you contact your Ft. Lauderdale small business attorney to discuss your business entity and formation when are you setting up your business.

Investment Needs

The corporate structure is the only business structure that allows a business to sell ownership shares in the company through its stock offerings. This added advantage to corporations allows them to attract investment capital and to hire and retain key employees by enticing them with employee stock options.

However, for businesses that don’t need to issue stock options and will never “go public,” forming a corporation may not be worth the added expense. If it’s solely for limited liability, an LLC provides the same protection as a corporation, but the simplicity and flexibility of LLCs offer a clear advantage over corporations. For more help on choosing between a corporation and an LLC, read http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/choose-your-business-stru. For assistance in setting up your business entity, contact a trusted Margate business attorney at Darfoor Law Firm, P.A.

Observation One

Most countries, outside of the United States, are “civil code”jurisdictions. What does this mean in effect? One point to note is that from a legal perspective, civil code jurisdictions function quite differently in both form and substance from common law countries such as the U.S. and the United Kingdom.

In countries that use civil code, extensive civil and commercial codes (laws) scrutinize a wide variety of business-related transactions. For example, the existence of civil codes limits the ability of private parties to freely contract among themselves in all aspects of commercial transactions. In an Americn context, this would be hard to imagine as parties spent countless amount of time arranging contracts to benefit their bottom line. For instance, sssues such as the termination of a distributor or agency relationship are detailed at length in the appropriate commercial code, thus making for shorter contracts in countries that rely on civil code.

As a standard rule of practice, before signing a contract covering activities which will be carried out in a civil code country, establish which specific civil or commercial codes are applicable.

PRACTICE TIP: Also, the specific country where a contract is executed may be significant if one of the parties is from a civil code jurisdiction.

Observation Two

In many countries outsideof the U.S., government involvement is a significant factor in commercial transactions, even where contracts appear to be solely between private parties. Before executing documents such as agency agreements, establish whether the involvement or approval of a government authority is required. Do not rely on statements by the other party that there is “nothing to worry about”. For example, in some countries royalty rates on a technology license must be approved in advance by the government even if the contracting parties have freely negotiated the rate. Failure to comply can make the contract unenforceable.

Observation Three

Do not make the mistake of assuming the American approach to contracts and business conduct will work in foreign markets. Be sensitive to restrictive local laws favoring nationals and their interests. In the area of dispute resolution, arbitration as opposed to the use of courts is normally preferred. This will often be the case whether the contract specifically provides for arbitration or not.