Corporate Governance And The Lifting Of The Corporate Veil: Lessons From The Akonta Mining Case

Corporate criminal trials rarely double as company law lectures, but the case of The Republic v Bernard Antwi Boasiako & 2 Others, involving Akonta Mining Company Limited, has done exactly that. Beyond the specific mining offences at issue, the proceedings have put a spotlight on a question every business owner in Ghana should be asking: does incorporating a company truly protect its owners from personal liability, no matter how the company is actually run?

As the evidence in this trial shows, the answer is far less certain than many assume. This article examines the principles of corporate governance, the role of company directors, and the doctrine of lifting the corporate veil, together with its effects.

Corporate Governance

Corporate governance refers to the systems, principles and processes that define how a company is directed and controlled, ensuring accountability, fairness, and transparency in its relationships with stakeholders. It is, at its simplest, about how a company is run and who is involved in its decision-making. According to the G20/OECD Principles of Corporate Governance (2023), corporate governance involves a set of relationships between a company’s management, board, shareholders and stakeholders.

Corporate governance concerns are typically associated with the ‘corporate form’ of business organisation — that is, incorporated companies. Under the corporate form, a company is viewed and treated by the law as an “artificial person,” possessing a separate legal personality with an identity, assets, and obligations that are legally distinct from those of its owners or shareholders.

The corporate form gives rise to corporate governance concerns because of two kinds of risk normally associated with it:

1. The risk that a controlling shareholder will manage and control the company and its assets as though the business were a sole proprietorship, thereby disregarding the interests of minority shareholders, creditors, or the company itself; and
2. The risk of management, including directors, using the company’s assets and opportunities to benefit themselves rather than the company and its shareholders.

Because the corporate form is capable of being abused by both management and controlling shareholders, businesses that adopt it are subject to substantially more extensive and stringent legal regulation than unincorporated businesses.

What Was Going On?

When the Republic put Bernard Antwi Boasiako and two others in the dock over the affairs of Akonta Mining Company Limited, the case did more than test the specific charges under the Minerals and Mining Act. It offered a rare, close-up look at how weak corporate governance can strip a company owner of the legal shield that incorporation is supposed to provide.

At the heart of the matter was a deceptively simple question: who, in truth, held the mineral rights in the concession at the centre of the dispute? On paper, the answer seemed straightforward. Exhibit G — the mining lease granted by the Minister on 23 July 2021 — named Akonta Mining, the third accused, as the licensed holder. But the first accused, though not personally named on the lease, was charged alongside the company precisely because of the role the prosecution said he actually played: not a passive shareholder, but the company’s “owner and controlling director.”

That framing forced the court to revisit one of the oldest and most consequential doctrines in company law.

The Separate Legal Entity Doctrine — and Its Limits

Company law begins from a foundational premise: once registered, a company becomes its own legal person, distinct from the people who own or run it. It can sue and be sued, own property, and incur debts in its own name. This is the doctrine of separate legal entity, traced to the landmark English case of Salomon v Salomon & Co (1897), and affirmed in Ghanaian jurisprudence in Morkor v Kuma (No. 1) [1990–2000] 1 GLR 721. In that case, the Supreme Court, per Akuffo JSC, described a registered company as a corporate being with powers akin to those of a natural person, capable of pursuing its business independently of the individuals who constitute or manage it.

On this logic, Akonta Mining Company Limited — not its shareholder — should bear responsibility for its own conduct. That is the everyday protection incorporation offers to entrepreneurs: personal assets and personal liberty are, in principle, insulated from the company’s obligations.

But courts have long recognised that this separation is not absolute. Where the corporate form is used merely as a façade, or where the “company” is, in practice, indistinguishable from the individual controlling it, the courts may look behind the corporate veil to attribute liability directly to that individual. Halsbury’s Laws of England captures the principle plainly: courts will, in appropriate cases, treat a company as identical with the person who truly controls it, in order to do justice in the litigation before them. The Ghanaian Supreme Court echoed this in Morkor v Kuma, holding that whether the veil should be lifted depends entirely on the particular facts of each case — there is no fixed formula, only a fact-sensitive inquiry.

Piercing/Lifting the Veil of Incorporation

Broadly speaking, there are two routes by which the corporate veil may be lifted: judicial provisions, arising under the common law, and statutory provisions. The statutory route may in turn be considered under two headings: lifting the veil under the Companies Act, 2019 (Act 992), and lifting the veil under other statutes.

Judicial Provisions: By Common Law

In Morkor v Kuma (East Coast Fisheries Case) [1998–1999] SCGLR 620, Akuffo JSC reviewed the leading cases on lifting the veil. The case concerned whether the corporate veil should be lifted so as to make the CEO of a company personally liable. In setting out the grounds on which a court, at common law, would lift the veil, her Ladyship asked whether there was “any other proven factor driving the case, such as fraud, improper business conduct, deliberate attempts at evasion of legal obligations, or other devices or wilful misdeeds on the part of the appellant, which would have justified lifting the veil in order to reach the appellant for redress.”

On the authorities, the courts will lift the corporate veil where any of the following circumstances arise:

1. the court is satisfied that the company is the alter ego of a particular person;
2. there is improper business conduct (Jones v Lipman [1962] 1 All ER 442, [1962] 1 WLR 832);
3. there are wilful misdeeds;
4. it is necessary to avoid fraud;
5. there is a scheme to evade contractual obligations (Gilford Motor Co Ltd v Horne [1933] 1 Ch 935);
6. a party negotiates an agreement on their own behalf while purporting to act for the company;
7. a party secures an immediate personal benefit from a corporate transaction;
8. it is necessary to avoid trading with the enemy (Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307 (HL)); or
9. it is necessary to treat a group of associated companies as one entity rather than several (H.N. Food Products Ltd v Tower Hamlets London Borough Council [1976] 3 All ER 462 (CA)).

In Prest v Petrodel Resources Ltd [2013] UKSC 34, Lord Sumption famously clarified that the corporate veil can be pierced only in highly exceptional circumstances, and established two distinct principles:

1. The Concealment Principle: applies where an individual uses a company to conceal their real identity or assets. Here, the court does not pierce the veil; it merely looks behind it to discover the true facts (for example, the existence of a trust).
2. The Evasion Principle: applies where an individual is already subject to an existing legal obligation or restriction and deliberately abuses a corporate structure to evade or frustrate that obligation. Only in these rare cases of evasion can a court genuinely pierce the corporate veil so as to strip the company of its separate legal personality.

Lifting the Veil under the Companies Act, 2019 (Act 992)

The Companies Act, 2019 (Act 992) permits the veil of incorporation to be lifted in the following circumstances:

1. Companies ceasing to have members: under section 41 of Act 992, if at any time a company ceases to have a member and carries on business without at least one member, every person who is a director of the company during the period it so carries on business is jointly and severally liable for all debts and liabilities incurred during that period.
2. Reduction in the number of directors: section 171(1) requires every company to have at least two directors, one of whom must be ordinarily resident in Ghana. Under section 171(2), if the number of directors falls below two in contravention of subsection (1) and the company continues to carry on business for more than four weeks thereafter, the company, its directors, and any member in default are each liable to pay the Registrar an administrative penalty of twenty-five penalty units for every day the default continues.
3. Failure to publish the company’s name: section 125(1).
4. Use of an improper seal: section 125(3).
5. Misdescription of the company: section 125(4).
6. Trading for profit by a company limited by guarantee: section 8(1).

Lifting the Veil under Other Legislation

Fraudulent trading: section 117 of the Corporate Insolvency and Restructuring Act, 2020 (Act 1015) provides that if, in the course of the official winding up of a company, it appears that its business has been carried on with intent to defraud creditors of the company or of any other person, or for any fraudulent purpose, the court may, on the application of the liquidator or of any creditor, member or contributory, declare that any person who was knowingly a party to the carrying on of the business in that manner shall be personally responsible, without limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.

This list is not exhaustive.

Effects of Lifting the Veil

When the veil is lifted, the company’s separate legal status is disregarded and certain consequences follow, including:

1. civil liability for individuals — shareholders, directors, officers, and others;
2. penal liability for individuals, by way of fine;
3. tax liability being ascribed to others; and/or
4. the nullification or disregard of transactions apparently entered into by the company.

A Company Adrift: The Corporate Governance Failures at Akonta Mining Ltd.

It was against this backdrop that the trial court examined how Akonta Mining was actually being run. The picture that emerged was of a company that existed on paper but had ceased, in practical terms, to be governed as one.

Under section 171 of the Companies Act, 2019 (Act 992), every company must maintain at least two directors, one of whom must be ordinarily resident in Ghana. The requirement is not a bureaucratic formality; it exists so that a company’s affairs are not thrown into disarray if a sole director dies or disappears. The law backs this up with teeth: a company that operates for more than four weeks with fewer than two directors exposes the company itself, its directors, and any complicit members to daily administrative penalties, and directors who knowingly allow this state of affairs to continue become personally liable — jointly and severally — for the company’s debts incurred during that period.

Under section 126, a company must, at least once in every year, deliver to the Registrar for registration an annual return stating the position of the company as at the date of its annual general meeting. Where a company defaults in complying with this requirement, the company and every officer of the company in default is liable to pay the Registrar an administrative penalty of twenty-five penalty units for each day the default continues.

What Happened a the trial?

Testimony at the trial suggested that Akonta Mining had fallen well short of this standard. The first accused, Bernard Antwi Boasiako, told the court that his co-shareholder and fellow director had left the jurisdiction around 2021 or 2022 and had not been heard from since. Under cross-examination by the Deputy Attorney-General, he could not even recall when the company had last filed annual returns with the Registrar of Companies.

The court drew a direct line from this testimony to the substance of the case. If the second director had effectively vanished from the company’s affairs since 2021 or 2022, and the disputed conduct occurred in 2024 and 2025, then the first accused alone was the company’s controlling mind during the relevant period — notwithstanding that Exhibit G had been issued in the company’s name. The absence of a functioning board, the court found, was not a mere technical lapse; it was evidence of who was really steering the company.

The Court also found that this is a proper case where the Akonta Mining’s corporate veil should be lifted. Thus, in its dealings with Prosecution Witness 2, there was no real difference between Bernard Antwi Boasiako and Akonta Mining itself.

Indeed, Akonta Mining never had any proper corporate governance structures in place. There is no evidence that Akonta Mining had a functioning management board or executive officers in place to function as a company. All decisions and dealings with PW2 were made by the first accused, Bernard Antwi Boasiako, alone, and were informal and never put in writing.

Thus, the Court found that Bernard Antwi Boasiako was the true and de facto mineral rights holder in the concession in question.

A striking detail that emerged after judgment was the allegation that the first accused’s household name is in fact Kwame Antwi — raising the possibility that the second accused and second director, referred to throughout the proceedings as Kwame Antwi, was in truth Bernard Antwi Boasiako himself, using another name.

If that allegation is true, it would then mean that Akonta Mining was structured in a manner that does not conform to the requirements for incorporation under the Companies Act, 2019 (Act 992), since the company would in fact have had only one director and no other known officers — in effect, a sole proprietorship disguised as a company.

Compounding this, witnesses — including the first accused Bernard Antwi Boasiako himself — acknowledged that his dealings with the prosecution’s second witness had largely gone undocumented. Remarkably, the defence sought to turn this very lack of paperwork into a shield, arguing that undocumented dealings could not ground the charges against the accused. The court was unpersuaded that an absence of records could double as an absence of responsibility.

The Broader Lesson

The Akonta Mining case is a pointed reminder that the protections of incorporation are not unconditional. They are extended to companies that are actually run as companies — with functioning boards, proper minutes, timely statutory filings, and documented dealings. Where a company becomes, in substance, the alter ego of one individual who disregards these basic obligations, the courts will not hesitate to look past the corporate certificate and hold that individual to account.

For company directors and mining concession holders in particular — an industry where regulatory scrutiny is intense and the stakes of non-compliance are high — the case underscores a simple commercial reality: good corporate governance is not just good practice. It is often the last line of legal defence.

ABOUT THE AUTHOR 

Justice Nathan Kwabena Mensah (Mawubi@Law)
(BL Candidate, Ghana School of Law)
justicenathan.gh@gmail.com