by vintandaletheia | May 19, 2024 | Uncategorized
In today’s Friday read we will be discussing what Resolutions are.
A resolution is a proposal made and passed shareholders or directors.
The Companies Act 2019, (“Act 992”) provides us with three types of resolutions namely Special resolutions, Ordinary Resolutions and Written Resolutions. However, we will be focusing on Ordinary and Special Resolutions.
A Special resolution requires that 75% of the voting members present at the meeting agree on the decision being voted on. Act 992 provides that a special resolution is required in instances such as amending a company’s constitution, change of name of the company, increase or decrease in share capital, approval of large business transactions, amongst others.
An Ordinary resolution requires that a simple majority of the voting members present at the meeting agree to that matter being voted on. Act 992 sets out the instances where an ordinary resolution can be passed such as the removal of a director from office, , amongst others.
Both resolutions require that a meeting is held for decisions to be taken and voted on.
A resolution is important because it serves as a record of all decisions taken by the company.
Therefore, it is essential to ensure that the correct type of resolution is passed.
by vintandaletheia | May 19, 2024 | Uncategorized
Our Managing Director had an exciting interview with GHOne,a television station in Accra, and we thought we would share snippets of her interview with our readers.GHOne had interviewed a number of unemployed graduates about their search for suitable employment and discovered that there was a trend: many unemployed graduates confirmed that they registered with Private Employment Agencies (as they are called legally, but for this article, we will refer to them by their popular name, “Recruitment Agencies”) to assist them in finding suitable employment. In some cases, these unemployed graduates did not secure a job placement after paying the prescribed fees to the Recruitment Agencies, and their monies were not refunded. In other cases, the unemployed graduates were able to secure job placements but had to pay a percentage of their salaries to the Recruitment Agencies. One unemployed graduate confirmed that he had to resign from his job because the amount he retained after paying a percentage to the Recruitment Agency was very insignificant and not enough to provide for his basic needs.
Before you engage a Recruitment Agency in your search for a job, it is important to have an idea about the legal framework that governs Recruitment Agencies, which include the Labour Act, 2003 (Act 651) (“Labour Act”), the Labour Regulations, 2007 (L.I. 1833) (“Labour Regulations”), the Contracts Act, 1960 (Act 25) (“Contracts Act”) and Notices issued by the Ministry of Employment and Labour Relations. The Labour Act and Labour Regulations define a “Private Employment Agency” as “any body corporate, which acts as an intermediary for the purpose of procuring employment for a job seeker or recruiting a worker for an employer, including services consisting of employing workers with the view to making them available to third parties to work under supervision.”
Let’s look at this a bit more closely. Firstly, it is totally legal to secure employment through Recruitment Agencies. In order to operate as a Recruitment Agency, a body corporate must register as a company limited by shares at the Companies Registry and subsequently, register for a license to operate with the Ministry of Employment and Labour Relations (the “Ministry”), which is the regulator of the employment and labour sector in Ghana. A Recruitment Agency’s terms of operation are subject to the terms and conditions contained in the license granted to it by the Ministry. The Ministry has published a Notice on its website specifying the requirements and the procedure for obtaining a license from the Ministry as a Recruitment Agency. The Ministry has further provided a list of licensed Recruitment Agencies. Therefore, it is incumbent on those seeking employment, to conduct some research before registering with a Recruitment Agency.
Secondly, Recruitment Agencies may charge clients fees for their service under the law, however, they are also required to refund 50% of fees paid by clients where they are unable to secure a job for them after 3 months. It is important to note that where the arrangement between a job seeker and a Recruitment Agency ends at a job placement, the latter may not take part of the successful job seeker (now employee). The Recruitment Agency should, therefore, not be involved in salary deductions between an employer and his or her employee. However, where the relationship between the job seeker and the Recruitment Agency is that of an employer/employee relationship and the employee has agreed to a deduction from his or her salary, the employer may conform to such an agreement as this is permitted under the law. Furthermore, should a client (who is not an employee of a Recruitment Agency) accept this arrangement with a Recruitment Agency, he or she becomes subject to those contractual terms and the Contracts Act will govern that relationship.
Thirdly, there are penalties imposed on Recruitment Agencies who flout the law. They are liable to pay a fine of GHS 300.00 (twenty-five penalty units). Victims can report any illegal acts done by the Recruitment Agencies to the Ministry who has been clothed with the authority to impose this fine.Finally,It is vital to seek legal advice before engaging in such recruitment arrangements. When in doubt, please check on the Ministry’s website (http://www.melr.gov.gh)to confirm that a Recruitment Agency is licensed with them before applying with them.
by vintandaletheia | May 19, 2024 | Uncategorized
by vintandaletheia | May 19, 2024 | Uncategorized
INTRODUCTION
The legal profession is experiencing dramatic changes in the 21st Century namely, increase in commercial activities, advanced technology, climate change and environmental impact, demographic changes and emerging new rights are influencing the legal profession and shifting the parameters of the practice of law. The law, therefore, ought to be looked at again in the 21st century Africa. This two-part series paper seeks to briefly highlight what the 21st Century African lawyer needs to know, in the changing face of the legal profession. Part I focuses on ethical responsibilities and indispensable business skills that the 21st century African lawyer needs to know to remain relevant; and Part II, which will be released next week, will consider the need for innovation and the threat to the legal profession in this era, where technology seems to be taking over the legal space.
Ethical Duties
The complex nature of socio-economic change in the 21st century continues to push the boundaries of the regulatory regime governing the legal profession. This calls for a broader look at the ethical responsibilities or duties of the 21stCentury lawyer. Harvard Law School’s publication titled: “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century” identifies four main ethical duties of the lawyer in the 21st Century, they include:
1. Duties to clients and stakeholders: this is described as responsibilities to the people and organizations that the lawyer’s own institution serves such as corporate stakeholders, law firm clients, law students and the faculty of law. This duty, for instance, requires lawyers to have the best interest of their clients at heart whenever their services are needed.
2. Duties to the legal system: this is described as responsibilities to the legal system and rule of law that are the foundation of our political economy and constitutional democracy, including contributing to access to justice, strengthening the rule of law and legal institutions.
3. Duties to employer: this is described as the responsibilities to the lawyer’s employer e.g., corporations, law firms, and law schools, and to the people employed by such institutions, such as a corporation’s workforce or a law firm’s or law school’s diverse employees.
4. Duties to the broader society or the public: this is described by the above-mentioned Harvard publication as responsibilities to secure other broad public good and enhance sound private ordering complementary to the rule of law in order to create a safe, fair, and just society in which individuals and institutions operate. It is interesting to mention the Ghanaian example on the duties to the legal system and the public, as was discussed in the landmark case of Martin Kpebu (No.2) vs. Attorney-General [2015-2016] 1 SCGLR 171, where the effort of the Plaintiff, a legal practitioner, resulted in a change in the law on bail. This is what the Supreme Court speaking through Georgina Wood CJ (as she then was) said about the Plaintiff; “this case marks a watershed in the history of our criminal jurisprudence. I commend the Plaintiff, a private legal practitioner for his industry in initiating this judicial review litigation in the public interest, giving us the opportunity to examine bail law in the light of our constitutional framework”. Similar remarks were also made about another Plaintiff, also a legal practitioner, in another public interest case of Ahumah-Ocansey vs. Electoral Commission; Centre for Human Rights & Civil Liberty (CHURCIL) v. Attorney General & Electoral Commission (Consolidated) [2010] SCGLR 575 permitting prison inmates to exercise their franchise by voting in public elections and referenda.
There cannot be a discussion on ethical standards and responsibilities without the mention of the term integrity, which is identified as the drive behind the requirements of ethical standards. Integrity is defined in the above mentioned publication to mean, “ensuring robust adherence to formal rules, establishing binding ethical standards, advocating balanced public policy and fair political processes and instilling the value of honesty, candor, fairness, reliability, and trustworthiness…” These ethical requirements should be the guiding light for every 21st century lawyer.
The Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I 613), the Legal Profession Act, 1960 (Act 32) and the Ghana Bar Association Code of Ethics are examples of ethical standards and responsibilities regulating the practice in Ghana. It must, however, be added that the statutes and regulations governing the legal profession in Ghana need some form of amendments in order to be in tune with the inescapable influence of social media and other technologies that are impacting the legal profession.
Indispensable Business Skills
Business skills are critical to survival as a 21st Century African lawyer. They are key to understanding the needs of clients, the management of law firms or legal departments and other institutions. It is an obvious truth that law and business blur in many ways, therefore, understanding the tools that business executives and managers use to evaluate business, opportunities and risk are critical for the advancement of the legal profession in an era of a changing legal landscape.
According to the 2015 edition of The Practice, educating the 21st century lawyer requires integrating business skills with legal knowledge; the 21st century African lawyer should, therefore, be equipped with essential business skills that are key to the management of law firms and the practice of law.
Professor Kathryn E. Spier, of Harvard Law School, on the inclusion of business courses in law schools had this to say, “As an associate at a law firm, you are going to have to hit the ground running. If you don’t know the basic language of business, you are going to be at a disadvantage. Being at a law school that offers these courses provides a perfect opportunity to get the skills early, and that will help students later on when they are working.”
Business courses including; Accounting and Financial Reporting, Corporate Finance, Negotiation Workshop, Business Strategy for Lawyers, Analytical Methods for Lawyers, Leadership in Law Firms, and Statistical /Quantitative Analysis are now offered by leading law schools as part of their approach to equipping the 21st century lawyer.
CONCLUSION
In conclusion, law schools, faculties and law firms in Africa should be encouraged to integrate business literacy and ethical standards in the training of the 21st century African lawyer. Ethical training should, however, go beyond the sayings in the Rules of Professional Conduct take into consideration the impact of globalization on the legal profession. Law schools, faculties and law firms owe this responsibility, not only to the students, but also to the legal system, their employers and the public at large.
By: Peter Amissah
by vintandaletheia | May 19, 2024 | Uncategorized
On 30th January 2020, the new coronavirus disease: COVID-19, was declared a public health emergency of international concern by the World Health Organization and since March 2020, Ghana has recorded a number of cases of this disease.
With the swift increase of this pandemic, the Government of Ghana imposed restrictions to curb the spread of the disease. Consequently, this begs the question, do the restrictions imposed by the Government have an effect on contracts, transactions and projects? This short article seeks to answer this question.
To assist the Government in its fight against the disease, Parliament passed the Imposition of Restrictions Act, 2020 (Act 1012), which gave the President the power to impose certain restrictions by Executive Instrument (“EI”). The President has since then issued four EIs imposing various restrictions on the movement of persons, prohibition of gatherings, closure of schools and some business premises.
Although restrictions have been imposed, the EIs create exemptions for certain persons and specified services involved in the distribution and marketing of food, beverages, pharmaceuticals, medicine, paper and plastic packages; mining workers, staff of fuel stations among others.
The implementation of these restrictions imposed under the EIs curtail the continuous performance of the obligations of parties to a contract or a transaction. In contemplation of this, parties to a contract usually include a force majeure clause to cater for such unforeseen circumstances.
What is a force majeure and the implication of a force majeure clause?
Black’s Law Dictionary defines force majeure as “an event or effect that can neither be anticipated nor controlled”. Unforeseeable events include occurrences such as wars, insurrections, flood, fire, industrial action, government action and so on, which prevent a party from performing its obligations under the contract through no fault of that party. Thus, a force majeure clause regulates such events, which are unforeseeable, unavoidable and beyond the control of the contracting parties.
Before seeking to rely on a force majeure clause in a contract, the parties must have a detailed consideration of the wording of the force majeure clause, the contract as a whole, the circumstances that have arisen as well as an exploration of alternative means of performing the obligations under the contract.
When a force majeure clause is properly invoked, the contractual obligations of both parties are either suspended or terminated without any liability. Thus, both parties are effectively released either temporarily or permanently from their contractual obligations. Nevertheless, the implication for the parties may depend on consequences and remedies, which have been expressly contemplated by the contract.
As a practical step, the party seeking to rely on the force majeure clause must serve the required notices in accordance with the notice provisions stipulated in the contract.
Remedies available for force majeure include but are not limited to, extension of time to perform those contractual obligations, suspension of contractual performance, termination of the contract or recovery of sums paid before the force majeure event occurred.
Where a contract does not include an operative force majeure clause, then a party may look to the doctrine of frustration to see if the contract has been terminated for frustration.
Does the lockdown constitute as a force majeure event?
A critical point to address is whether the restrictions imposed by the Government amount to a force majeure event. A force majeure clause is a creature of contract and a party’s right to rely on such a clause depends on the contractual construction and the application of factual evidence. Some clauses opt for a wider definition making reference to any “event or circumstances beyond reasonable control”. However, this may lead to uncertainty and may require further interpretation for clarity.
Conversely, other contracts expressly list events that may constitute a force majeure event such as war, floods, fire outbreaks, pandemic, epidemic, government actions and so on. A party may trigger the force majeure clause when any of the events listed occurs.
With the rapid increase in the COVID-19 pandemic, the various restrictions imposed by the Government such as the partial lockdown may constitute a force majeure event since those restrictions were not contemplated by the parties at the time of contracting and are beyond their control. Additionally, for the partial lockdown to be considered as a force majeure event, there must be a causal link between the event and the non-performance of the contractual obligation. Thus, reference may be made to circumstances or the partial lockdown restrictions having “prevented”, “hindered” or “delayed” performance of contractual obligations and these terms require different levels of impact on performance before the party will be relieved from liability.
For example, a scheduled project by a foreign investor is unlikely to start on the agreed commencement date due to the restriction on travel to Ghana. In this instance , the foreign investor may be able to rely on the force majeure clause in the Service Level Agreement.
What happens next?
Consequently, the force majeure clause may suspend the performance of the contractual obligation of the affected party while the lockdown subsists and in some cases, it may give the right to terminate the contract.
Note that, a force majeure event such as the partial lockdown is likely to affect performance of contractual obligations like the provision of goods and services, when the performance of such obligations are physically or legally impossible and not merely because performance will be expensive or less profitable. However, it is unlikely to affect the performance obligations such as making payments for goods and services received as well as contractual obligations that do not require physical presence and can be performed remotely.
By Ewoenam Genevieve Atiase and Ewurama Osam Tawiah
