Contracting with the Ghanaian Government or Government Entities

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.

Legal Structures for Small Business Owners 

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.

3 Observations About International Business Transactions

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.

Darfoor Law Firm Attorney Named to the 2021 Florida Super Lawyers Rising Stars List

We are pleased to announce that Kweku Darfoor, managing shareholder at Darfoor Law Firm, P.A., has been selected to the 2021 Florida Super Lawyers Rising Stars list. This is an exclusive list, recognizing no more than two and a half percent of attorneys in the state. Super Lawyers, part of Thomson Reuters, is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

• Peer nominations

• Independent research by Super Lawyers

• Evaluations from a highly credentialed panel of attorneys

The objective of Super Lawyers is to create a credible, comprehensive, and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Florida Super Lawyers Digital Magazine. Please join us in congratulating Kweku Darfoor on his selection.

Meet Kweku Darfoor of Darfoor Law Firm in Fort Lauderdale

Today we’d like to introduce you to a young and dynamic lawyer Kweku Darfoor.

Kweku, let’s start with your story. We’d love to hear how you got started and how the journey has been so far.
I always wanted to study law, but I never knew I’d practice as a lawyer. However, my story can’t begin without mentioning my parents. It was during the beginning of the period of military rule in our home country Ghana that they decided to venture to America. At the time, my father was the high commissioner (ambassador equivalent) from Ghana to Sierra Leone. However, instead of choosing to live in constant uncertainty under that regime, he immigrated to this country in the early ’80s with my mother and older sister. My younger sister and I joined them in 1987. My entire journey parallels the risk my parents decided to take in the ’80s by leaving a prestigious career to chase the American dream. I’d like to say my sisters and I were the beneficiaries of the great sacrifices that my parents made. While they never were able to give me much financially, they instilled in me some core traits that I’ve carried with me till this day. Notably a tenacious work ethic, trustworthiness, and empathy. I credit my mother with the latter.

Even though I faced some dire circumstances along the way to eventually starting my own law firm after passing the Florida bar and getting admitted to the bar, these core traits never left me. In fact, I know those circumstances helped shaped the resiliency that I possess today. You’re probably wondering what kind of dire circumstances I could have faced. Well, in my first year of college, I almost died after being rushed to the emergency room for alcohol poisoning. I had to get my stomach pumped. Later in college, a violent and brutal assault left me clinically depressed which caused me to seek professional help. After sitting out a semester, I transferred to a school near my parents home called Florida Atlantic University. At FAU, I rediscovered a lot of the things that I’d lost that made me who I was before. My confidence and self-esteem started to soar in this environment as I became involved in many organizations and even re-established the NAACP chapter at FAU along with a few other students. I went on to receive a bachelors in economics from FAU in 2005.

At FAU, I had some amazing professors that took a personal interest in my success. I also formed some bonds with some special people that remain very close to me today. After FAU, I started a string of sales roles including e-commerce, finance/annuity, private mortgage notes, and recruiting and earned my Masters in International Business (MIBA) from Nova Southeastern University in 2008. Another thing happened in 2008; the economy was in the midst of the worst recession in decades and I lost my job. I decided the time had come for me to go to law school. So in 2008, I started my first year of law school at Florida A&M University College of Law. I studied very hard there and placed well enough in my class, which allowed me to transfer to Florida State University College of Law for my final two years of law school.

Darfoor Law Firm was established in 2014 out of the kitchen of one of my best friends home. It’s what you call a true bootstrap business! So, while working a document review gig in Miami during the day, I started working on cases for my firm at night. Initially, only one or two cases would trickle in at a time so I spent most of my time marketing and advertising. After nearly nine months of juggling running my firm and working document review, I made the tough decision to solely focus on building my firm. The reason I say tough is that I went from getting a consistent check every two weeks to a situation of no guarantee of income. It sounded crazy then, but it’s also the best decision I’ve made. To make it even more challenging, my now ex-wife had just relocated from Ghana to join me in South Florida and she wasn’t working either. Imagine that!

My firm practices in two primary areas, notably personal injury, including catastrophic injuries, premises liability, vehicular accidents, and wrongful death and business litigation. Together with my co-counsel, including attorneys Benjamin Crump, Daryl Parks, and Skinner Louis, I currently represent the family of Corey Jones in the civil case against the city of Palm Beach Gardens and Nouman Raja (ex-cop recently convicted of Corey’s killing and sentenced to 25 years in prison). You can never really prepare yourself for having this magnitude of a case this early in your career which gains national and international attention. This pivotal case will forever have a profound effect on me because Corey also happened to be a friend of mine. Corey, his brother C.J., his cousins and I played football together in high school in Palm Beach County. We continue to fight to obtain full justice for his family.

Outside of running the law firm, I enjoy staying engaged in the community by serving on the board of directors of Florida Atlantic University Alumni Association, serving on the board of directors of Urban Philanthropies, and serving on the board of directors of Corey Jones Scholarship Foundation. My firm also annually sponsors a team for the Zo’s Hoop Law Madness Tournament benefiting the Overtown Youth Center in Miami.

My main office is located in downtown Ft. Lauderdale but I handle cases statewide.

Overall, has it been relatively smooth? If not, what were some of the struggles along the way?
Definitely not been a smooth road. I spoke earlier about two separate incidents involving a violent attack I experienced and almost dying from alcohol poisoning. I didn’t speak on the fact that I nearly flunked out of college my first two years. After the violent attack, I suffered severe PTSD and was clinically depressed. I also had many unfortunate encounters with law enforcement in my teens and early-mid twenties. As recent as the time of starting my law firm in 2014, I was sleeping on an air mattress in my friend’s house and didn’t have a car. It’s not been easy along the way, but I also knew what doesn’t break me makes me stronger. With God, nothing is insurmountable.

Darfoor Law Firm – what should we know? What do you guys do best? What sets you apart from the competition?
My firm focuses on catastrophic personal injury cases and business litigation. I’ve always been known as a fierce competitor and that serves me very well as a litigator. I’ve never met a challenge I didn’t like. I’m most proud that my small firm can go into any arena against lawyers from the largest firms with endless resources and still be able to get great results for my clients. I think that also delves into what sets me apart; the understanding that I can always figure out a way to solve a complex situation given enough time because my brain never stops thinking. Professionally, I think about and plan for stuff five years out as if it’s happening next month. However, I’m the most spontaneous person socially.

Has luck played a meaningful role in your life and business?
I don’t leave much to chance (luck). I believe luck is what happens to you when preparation meets opportunity.

Source: http://voyagemia.com/interview/meet-kweku-darfoor-darfoor-law-firm-fort-lauderdale/

Zo hosts basketball tournament to benefit Overtown Youth Center

The Overtown Youth Center recently raised funds for local youth and their families during the fourth annual Zo’s Hoop Law 3-on-3 Charity Basketball Tournament on Mar. 31.

The event benefits the Overtown Youth Center, a nonprofit organization that seeks to inspire and empower the lives of at-promise youth by connecting them to positive role models, enhancing their educational experience and exposing them to life-changing opportunities.

Twenty five teams comprised of 150 players from the legal field competed to earn a trophy and bragging rights as this year’s Zo’s Hoop Law Champions. The event took place at The Overtown Youth Center with more than 250 participants in attendance and included double elimination games, kid-friendly activities, lunch and a silent auction.

The team representing Darfoor Law Firm showed its talents on a different type of court and emerged as the 2018 Zo’s Hoop Law Champions.

Special guests included Miami Mayor Francis Suarez who took to the net with the City of Miami team to show his support, WSVN-7 Sports Anchor Donovan Campbell who was emcee for the day, and WPLG-10 News anchor Calvin Hughes who hit the court with a community team. “They have a 100 percent graduation rate for the kids that come through this program,” Suarez said. “Being out here, sweating it out and having fun, it’s nice to sort of take it easy and have a good time.”

The event was presented with the support of several sponsors including; Stroock & Stroock & Lavan LLP, Synergy Foundation, Ver Ploeg & Lumpkin PA, and the Mourning Foundation.

“I can’t be more pleased,” said event host and Miami Heat legend Alonzo Mourning. “It just lets me know that there are people in the community, especially our legal community, who care about what we’re trying to get accomplished here.”

SOURCE: http://communitynewspapers.com/brickell/zo-hosts-basketball-tournament-to-benefit-overtown-youth-center/

Annual fundraising 3-on-3 tournament benefits Overtown Youth Center

WPLG-10 News Anchor Calvin Hughes played hard.

About that everyone agrees.

So did Miami Mayor Francis Suarez.

But the team representing Darfoor Law Firm showed their talents on a different type of court and emerged as the 2018 Zo’s Hoop-Law Madness Charity Basketball Tournament champions.

It was a huge victory since Darfoor unseated the defending champions, team players from Eaton & Wolk PL, Harke Clasby & Bushman LLP, Rasco, Klock Perez & Neito and Vasallo Law.

This collective of local attorneys had won the first three Zo’s Hoop Madness.

WSVN-7 Sports Anchor Donovan Campbell was master of ceremonies for the game of 25 teams, about 150 players on March 31 at the Overtown Youth Center.

The 3-on-3 tournament is an idea of board member Candy Sicle, who proposed four years ago to create a fundraiser that would stand out from the traditional “black-tie-attire” gala, while still benefiting the organization.

The idea also sparked from the popular March Madness basketball games.

Sicle thought it would be a great idea to have employees of law firms in the community play in order to expose them to the organizations that provide supportive and preventive services to many of the youth they sometimes see or represent in court.

“This is also an opportunity for the youth we serve to see those in the legal field in a different light,” Yance Torres said in a statement.

Teams make a suggested donation of at least $1,500.

“The event has grown over the years, and now attracts over 25 law firms to battle on the court (pun intended), many of them return year after year to compete against their colleagues while supporting the life-changing work happening at the Overtown Youth Center.”

Even though the game is purely for entertainment and bragging rights, there is structure and game rules. The single-elimination games happen throughout the day, leaving only two firms to fight for the golden ball, which is a golden basketball trophy that is presented to the champions.

Second and third place finishers are recognized and awards are also presented to sponsors.

Miami Heat legend Alonzo Mourning kicked off the morning portion of the day by briefly talking about Overtown Youth Center’s mission and the importance of this event.

Mourning then took photos with each participating team.

“It just lets me know that there are people in the community, especially our legal community, who care about what we’re trying to get accomplished here,” he said.

The event has raised $50,000 and $75,000 respectively, to directly benefit the in-school, after-school and summer components that serve the children at the Overtown Youth Center.

These include preventive, interventional and support services to keep youth engaged in school that include STEM learning, mentoring, career and college exposure, job placement and more.

SOURCE: http://www.miamitimesonline.com/lifestyles/annual-fundraising–on–tournament-benefits-overtown-youth-center/article_e765682a-3e8e-11e8-8bae-47527b5542ce.html