What is Human Trafficking?

Section 1(1) of the Human Trafficking Act, 2005 (Act 694) defines human trafficking as the recruitment,
transportation, transfer, harboring, trading, or receipt of persons within and across national borders by
the use of threats, force, or other forms of coercion, abduction, fraud, deception, the abuse of power or
exploitation of vulnerability or giving or receiving payments and benefits to achieve consent. The Act
also describes exploitation to include at the minimum, induced prostitution and other forms of sexual
exploitation, forced labor or services, salary or practices similar to slavery, servitude, or the removal of
organs.

United Nations Office on Drugs and Crimes also defines human trafficking as the recruitment,
transportation, transfer, harboring, or receipt of people through force, fraud, or deception, intending to
exploit them for profit. Men, women, and children of all ages and from all backgrounds can become
victims of this crime, which occurs in every region of the world. The traffickers often use violence or
fraudulent employment agencies and fake promises of education and job opportunities to trick and
coerce their victims. It exists in almost every industry, including domestic work, agriculture, mining,
fishing, factory work, and commercial sex work. Victims of human trafficking can also be forced into
marriage and armed conflict. It is often described as a modern form of slavery.

Human Trafficking includes the practices of forced labor, debt bondage, domestic servitude, forced
marriage, sex trafficking, child sex trafficking, and the recruitment and use of child soldiers, among
others.

Elements of Human Trafficking

The United Nations Office on Drugs and Crime (UNODC) as the secretariat of the Conference of the
Parties to the United Nations Convention against Transnational Organized Crime and its protocols,
defines three basic elements of trafficking: first, the process; second, the means; and third, the purpose.
UNODC explains that “the crime of trafficking be defined through a combination of the three constituent
elements and not the individual components, though in some cases three individual elements will
constitute criminal offenses independently.

The crime of human trafficking consists of three core elements:

1. Act/Process: This involves the recruitment, transportation, transfer, harboring, or receipt of

persons. Traffickers engage in these actions to exploit their victims.

2. Means: The means refer to how trafficking is carried out. It includes threats, use of force,
coercion, abduction, fraud, deception, abuse of power or vulnerability, and even providing
payments or benefits to those controlling the victims.

3. Purpose: The purpose behind human trafficking is exploitation. This can take various forms such
as sexual exploitation, forced labor, slavery, or the removal of organs.
Types of Human Trafficking

1. Forced Labour: Trafficking for forced labor is less frequently discovered and reported than
trafficking for sexual exploitation. It is difficult to distinguish victims trafficked for forced labor
from migrant laborers. These victims often work in hidden locations, such as agricultural fields in
rural areas, mining camps, factories, and private houses in the case of domestic servitude. As a
consequence, the trafficking victims of forced labor are less likely to be identified than the
trafficking victims of sexual exploitation. Along with women and girls, both adult men and boys
are also the victims of trafficking for forced labor but the trafficking cases of men are extremely
underreported. Victims of forced labor trafficking are often recruited with a promise of work,
generally through personal contacts and also through job advertisements on newspapers,
television, billboards, and the Internet. Some victims enter the country legally on work visas
while others enter illegally. The IOM (International Organization for Migration) reported in the
case of labor trafficking of men in Belarus and Ukraine that recruitment generally mimicked legal
migration. These male victims often made what they thought were legally binding agreements
with reliable companies, employment agencies, and recruiters. Confusion between trafficking in
persons and smuggling of migrants prevents victims from receiving protection and support as
their fundamental right.

2. Sexual exploitation: While trafficking for forced labor is recently gaining more recognition in its
severity, trafficking for sexual exploitation is still the most common form of human trafficking.
This primarily impacts women and children. There are several identified common patterns for
recruiting victims into sex trafficking, which include but are not limited to

a) a promise of a good job in another country;

b) a false marriage proposal turned into a bondage situation;

c) being sold into the sex industry by parents, husbands or boyfriends, and

d) being kidnapped by traffickers. Recruiters are often very familiar to the victims, such as neighbors,
friends, friends of a friend, boyfriend, acquaintance, and family friend.

3. Trafficking in Children: Global estimates indicate that 30 to 50% of all trafficking victims are
children under 18 years of age. Not only are children often sexually exploited in the sex industry
and targeted for child pornography and pedophiles, but children are also trafficked to work on
untangling fishing nets, sewing goods in sweatshops, picking cocoa, and begging. Traffickers may
lure children and/or their parents into leaving home with the promise of a better life. On some
occasions, desperate parents will sell their children to a trafficker so that they have fewer
mouths to feed. Forced conscription of children into armed conflict is another form of trafficking
that enslaves children in war zones and removes their freedom. The Coalition to Stop the Use of
Child Soldiers estimates that there are still tens of thousands of children who are used as
combatants and/or sexually exploited in armed forces and groups in 19 countries and territories
worldwide.
Relevant Laws for the Moot Compromis

The Human Trafficking Act, 2005 (Act 694):

Section 1 of Act 694:

(1) human trafficking means the recruitment, transportation, transfer, harboring, trading,
or receipt of persons within and across national borders by
(a) the use of threats, force, or other forms of coercion, abduction, fraud,
deception, the abuse of power, or exploitation of vulnerability or
(b) giving or receiving payments and benefits to achieve consent.
(2) Exploitation shall include at the minimum, induced prostitution and other forms of
sexual exploitation, forced labor or services, salary or practices similar to slavery,
servitude, or the removal of organs.

(4)Where children are trafficked, the consent of the child, parents, or guardian of the
child cannot be used as a defense in prosecution under this Act, regardless of whether
or not there is evidence of abuse of power, fraud, or deception on the part of the
trafficker or whether or not the vulnerability of the child was taken advantage of.

Section 2 of Act 694:

(1) A person shall not traffic another person within the meaning of section 1 or act as an
intermediary for the trafficking of a person.
(2) A person who contravenes subsection (1) commits an offense and is liable on a summary
conviction to imprisonment for not less than five years.
(3) For the purposes of this section, an intermediary is someone who participates in or is concerned
with any aspect of trafficking under this Act who may or may not be known to the family of the
trafficked person.
(4) To be concerned with an aspect of trafficking in this Act means

(a) To send, to take, consent to the taking to or to receive at any place any person
for the purposes of trafficking, or
(b) To enter into an agreement whether written or oral, to subject any party to the
agreement or subject any other person to trafficking.

Section 3 of Act 694:

(1) A person who provides another person for the purposes of trafficking commits an offence
even where the person is a parent.
(2) A person who contravenes subsection (1) commits an offence and is liable on summary
conviction to a term of imprisonment of not less than five years.
 Section 4 of Act 694:

A person who uses a trafficked person commits an offense and is liable on summary conviction
to a term of imprisonment of not less than five years.

Section 5 of Act 694:

Means of conveyance in trafficking include use of public transport and other forms of transport
such as conveyance by land, water or air.

Section 19 of Act 694:

(1) A person convicted of the offence of trafficking shall be ordered by the court to pay
compensation to the victim of trafficking.
(2) A person who causes injury to a person in pursuit of trafficking shall be ordered by the court
to pay compensation to the injured person.
(3) The payment of compensation shall be in addition to any other punishment.

The 1992 Constitution

Article 16:

(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour

Companies Act, 2019 (Act 992)

Section 18 of Act 992:

(1) Subject to this Act and to any other enactment, a company shall have

(a) full capacity to carry on or undertake any business or activity, do any act, or enter into any
transaction; and

(b) full rights, powers and privileges for the purposes of paragraph (a).

Section 144 of Act 992:

(1) A company shall act through the members of the company in general meeting or the board of
directors or through officers or agents, appointed by, or under authority derived from the members in
general meeting or the board of directors.
(2) Subject to this Act, the respective powers of the members in general meeting and the board of
directors may be determined by the constitution of a company.

(3) Except as otherwise provided in the constitution of a company, the business of the company shall be
managed by the board of directors who may exercise the powers of the company that are not by this
Act or the constitution required to be exercised by the members in general meeting.

Section 147 of Act 992:

(1) An act of the members in general meeting, of the board of directors, or of a managing director while
carrying on in the usual way the business of the company, is the act of the company; and accordingly,
the company is criminally and civilly liable for that act to the same extent as if the company were a
natural person.

(2) For the purposes of subsection (1),

(a) the company does not incur civil liability to a person if that person had actual knowledge at the time
of the transaction in question that the general meeting, board of directors, or managing director, did not
have the power to act in the matter or had acted in an irregular manner or if, having regard to the
position with, or relationship to, the company, that person ought to have known of the absence of the
power or of the irregularity; or

(b) if in fact a business is being carried on by the company, the company shall not escape liability for acts
undertaken in connection with that business merely because, the business in question was not among
the businesses authorised by the constitution of the company.

Section 148 of Act 992:

1) Except as provided in section 147, the acts of an officer or agent of a company are not acts of the
company, unless,

(a) the company, acting through the members in general meeting, the board of directors, or managing
director, has expressly or impliedly authorised that officer or agent to act in the matter; or

(b) the company, acting under paragraph (a) has represented to the officer or agent as having the
authority of the company to act in the matter, in which event the company is civilly liable to a person
who has entered into the transaction in reliance on that representation, unless that person had actual
knowledge that the officer or agent did not have the authority, or unless, having regard to the position
with, or relationship to, the company, that person ought to have known of the absence of authority.

(2) The authority of an officer or agent of the company may be conferred before action is taken by that
officer or agent or by subsequent ratification.

(3) The knowledge of action by that officer or agent and acquiescence in that action by

(a) the members for the time being entitled to attend general meetings of the company, (b) the
directors for the time being, or
(c) the managing director for the time being, is equivalent to ratification by the members in general
meeting, by the board of directors, or by the managing director.

(4) This section does not derogate from the vicarious liability of a company for the acts of the employees
while acting within the scope of their employment.

Cases and Explanation

Incorporation:

In Dupaul Wood Treatment Ltd v Asare [2005-2006] SCGLR 667 Sophia Akuffo, JSC said: “By virtue of
section 14 of the Code [now Act], a company comes into existence when its Regulations are delivered
to the Registrar of Companies and he enters same into the register. It is the act of registration that
incorporates the company, such incorporation being evidenced by the Registrar’s certificate of
incorporation.”

Found in section 14 of Act 992

(1) Where the Registrar is satisfied that the application for incorporation of a company complies with
this Act, the Registrar shall, after payment of the prescribed fee, certify under the seal of the Registrar
that the company is incorporated and in the case of a limited liability company, that the liability of the
members is limited.

(2) From the date of incorporation, the company becomes a body corporate by the name contained in
the application for incorporation and, subject to section 13, is capable of performing the functions of an
incorporated company.

Act 992 confers full legal capacity on the company to pursue any business or object subject to
restrictions imposed in the Act or any other enactment as stated in section 18 of Act 992. The full
capacity here refers to the powers of a natural person of full capacity. The company can therefore do
everything a natural person of full capacity can do so far as the particular activity is capable of being
undertaken by an artificial person.

Consequences of Incorporation:

1. Separate legal entity:

Upon incorporation, a company acquires a legal status and personality of its own, separate and
distinct from its members and officers. It has a separate legal existence in its own right. As a
legal person, it has legal rights and obligations attributed to it. It can act as an independent legal
person by its name, the same way that natural beings do. The law ascribes an artificial legal
personality to the company which is distinct from its member and its officers. The company can
sue and be sued in its own name. The rights and liabilities of the corporation belongs to it alone
and as a general rule cannot be enforced by or against its directors, agents or its members
personally. As an artificial legal person, the rights and liabilities of the corporation belong to it
alone and as a general rule cannot be enforced by or against its directors, agents or members
personally. A company may also be prosecuted for a criminal offence.
 This was espoused in the locus classicus, Salomon v Salomon.

Facts: Salomon transferred his business of boot making, initially run as a sole proprietorship, to a
company (Salomon Ltd.), incorporated with members comprising of himself and his family. The price for
such transfer was paid to Salomon by way of shares, and debentures having a floating charge (security
against debt) on the assets of the company. Later, when the company’s business failed and it went into
liquidation, Salomon’s right of recovery (secured through floating charge) against the debentures stood
prior to the claims of unsecured creditors, who would, thus, have recovered nothing from the
liquidation proceeds.

To avoid such alleged unjust exclusion, the liquidator, on behalf of the unsecured creditors, alleged that
the company was sham, was essentially an agent of Salomon, and therefore, Salomon being the
principal, was personally liable for its debt. In other words, the liquidator sought to overlook the
separate personality of Salomon Ltd., distinct from its member Salomon, so as to make Salomon
personally liable for the company’s debt as if he continued to conduct the business as a sole trader.

Issues: Whether Salomon & Co. Ltd. indeed existed as a company?

 Whether the company, an artificial invention of the law, had actually been properly constituted

under any circumstances.

 Whether Salomon was accountable for the business’s debts?

Holding: On appeal, the House of Lords unanimously reversed the findings of the lower courts. Lord
Halsbury LC said that so long as the statutory formalities for forming and registering an incorporated
company had been complied with (and they had) then the motive of those forming a company was
irrelevant to the question of its existence as a legal person separate from its members. It makes no
difference to this rule that one member owns the beneficial interest in all or substantially all of the
company’s shares. The company exists at law and is a being entirely separate from those who own its
shares or run its business. As the company was duly incorporated, it is an independent person with its
rights and liabilities appropriate to itself, and that “the motives of those who took part in the promotion
of the company are absolutely irrelevant in discussing what those rights and liabilities are”.

It was further expatiated in Morkor v Kuma (East Coast Fisheries).

Facts: The appellant was a director, shareholder and the chief executive of East Coast Fisheries, the first
defendant company, and the respondent was an agent of Sea Food of Faroe Island (FSF). On 22 May
1990 the respondent on behalf of FSF entered into a sale agreement with the company for the supply of
400 metric tons of frozen fish valued at $180,000. The appellant and SQ, another director, witnessed the
execution of the contract by the company. In accordance with the agreement, the company paid a
deposit to the respondent and SQ guaranteed the payment of the balance by the company by 30
September 1990. When the company failed to pay the balance of the purchase price on the due date,
the respondent sued the company, the appellant and one other jointly for the sum of $188,035 plus
interest. The defendant/appellant appealed to the Supreme Court against her being sued jointly and
severally with the company of which he is the chief executive, main shareholder, and director.

Holding: Sophia Akuffo JSC gave the Ghanaian position affirming Salomon v Salomon as applicable in
Ghana, “Save as otherwise restricted by its Regulations, a company, after its registration, has all the
powers of a natural person of full capacity to pursue its authorized business. In this capacity, a company
is a corporate being, which, within the bounds of the Companies Act, 1963 (Act 179) and Regulations of
the company May do everything that a natural person might do. In its own name it can sue and be sued
and it can owe and be owed legal liabilities. A company is, thus, a legal entity with a capacity separate,
independent, and distinct from the persons constituting it or employed by it. From the time the House
of Lords clarified this cardinal principle more than a century ago in the celebrated case of Salomon v
Salomon & Co [1897] AC 22, it has, subject to certain exceptions, remained the same in all common law
countries and is the foundation on which our Companies Act is grounded”.

Other cases are Macaura v Northern Assurance Co and Lee v Lee’s Air Farming Ltd.

2. Perpetual Succession:

The company enjoys perpetual succession or continuity of legal existence. This means that, on
incorporation, the company continues to exist in law even when its members or officers die or
cease to be associated with it. However, according to section 41 of the Companies Act, 2019
(Act 992), if at any time a company ceases to have a member and it carries on business without
at least one member, every person who is a director of the company during the time that it so
carries on business is jointly and severally liable for the payment of all the debts and liabilities of
the company incurred during that period. As a matter of law, the non-existence of a member or
an officer of a company does not affect the continuous legal existence of the company as an
entity, if that non-existence reduces the number of members or directors of the company below
the statutory minimum number, the company cannot carry on business.

3. Capacity to sue and be sued:

A company, as a legal being, can sue in its name and be sued in its name. A company is sued
when it breaches its legal obligations, these obligations may result from a contract, tort or
statute. A company can also sue for the purpose of acts of the company simply because the
person being sued is a member or an officer of the company. In the same vein, it will be legally
wrong for a member of a company or its officer to sue another person in his or her name rather
the name of the company simply because he or she is a member of the company or its officer. It
is however, important to note that because a company is not a real being, and for that reason
cannot act by itself, it is natural beings that act for it. When these persons act for the company,
it is the company that acts. Any liability or obligations incurred by them while acting for the
company is attributable to the company. Likewise, any right acquired by them while acting for
the company is for the company.
 This is exemplified in the case of Owusu v R.N. Thorne Ltd.

Facts: the plaintiff-applicant sued the first defendant, a limited liability company and the second
defendant, its agent. By an ex parte application he obtained an absconding warrant against one
R.N. Thorne who, together with his wife were the only directors of the first defendant company,
on the grounds that they had closed the company offices and sold their property and that R.N.
Thorne was going on leave and was not likely to return to Ghana. He therefore prayed for an
order that R.N. Thorne be ordered to furnish personal bail for appearance under Order 35, r. 2

Holding: The court held that the company existed apart from the directors and members. R.N.
Thorne was not sued personally and he was therefore not a defendant within the meaning of
Order 35, r. 2 for the court to go into the question of security.

Justice Mensa Boison dismissing the application stated that: “What the court has to determine
in this motion is whether R. N. Thorne personally or the company is the first defendant in this
case. The theory of legal personality of corporations has its own practical problems but it is clear
that a limited company or corporation has legal existence apart from the directors and
members, and it is in a few recognised exceptions that the law lifts the "corporate veil," as it has
been put, and looks to the directors and members personally…… It may well be and
undoubtedly is true that R. N. Thorne and his wife are the only directors of the company but the
company exists apart from the directors and the members. To hold that the directors are
personally the first defendant in this case will be defeating the doctrine of the separate
existence of a limited liability company. The action is not against R. N. Thorne personally.”

Lifting the Veil of Incorporation

Criminal and Other Offenses Act, 1960 (Act 29)

Kidnapping: section 89, elements, cases

Labour laws

children’s act
Consent – cases

Summary of facts

 Mr. Rickus, a politician and owner of Rickus Welfare Company, was accused of human
trafficking, kidnapping, and engaging children in exploitative labor.
 The company was accused of using a job offer scheme to lure victims into forced labor and sex
slavery.
 Mr. Rickus was found guilty by the High Court and sentenced to 10 years in prison.
 He appealed the decision arguing that the company is a separate legal entity and the victims
willingly came to work for him.
 The Attorney-General also appealed arguing that the sentence should include compensation for
the victims.

Issues:
Issue of jurisdiction: The institution of criminal proceedings in the high court is invalid. With regard
to fundamental human rights, the high court has jurisdiction. However, on first instance of criminal
offences, the high court does not have jurisdiction.