GHANA Law and Practice Contributed by: Victoria Bright and Justice Oteng, Addison Bright Sloane
3.7 Responsibility/Accountability of Directors The directors are accountable to various stakeholders, namely, the company as an entity, the shareholders and the Registrar General. The Companies Act, 2019 (Act 992) provides that directors hold a fiduciary rela - tionship with the company and are mandated to act in the company’s best interest. They must also consider the impact of their actions on the shareholders, the employees of the company, the community at large and the environment. When appointed by a special class of members, employees or creditors, directors may “give special but not exclusive consideration” to their interests as well (Section 190). Directors are also accountable to the Registrar of Companies, as they can be penal - ised for misrepresenting themselves or for providing false information. Directors can also be prosecuted for criminal offences they were responsible for, had When a director breaches their duties, the director and any other person who knowingly committed the breach must compensate the company for any loss the company suffers as a result. The director shall also disclose any profits made from the wrongful transac - tion. Finally, the company reserves the right to termi - nate any transaction or contract entered into between the director and the company, in breach. Where there has been a breach, the company or mem - ber of a company (ie, shareholders) can institute legal proceedings to enforce liabilities, restrain a threatened breach or recover property from the director. A com - pany can do the above on the authority of the board of directors, a receiver and manager or liquidator, or via an ordinary resolution of the company which has been agreed to by the members. A legal challenge can also be brought in the form of a representative action by a class of shareholders with leave of court. knowledge of or were complicit in. 3.8 Breach of Directors’ Duties Another legal option open to shareholders and direc - tors is a derivative action. After seeking leave from the court, any of the above parties can bring a derivative action in the name of the company against any party (including another director of the company). Wilfully
need to maintain independence as provided in Section 192 of Act 992. The Act further states that such con - tracts cannot be avoided, nor shall a director be made to account for profit from it, merely due to the director being in a fiduciary relationship with the company. The board may appoint one among them to any other office in the company, including that of managing director, save the office of auditor. The directors can also revoke that appointment. Secretaries The company secretary is an officer of the company and, unless the company’s constitution provides oth - erwise, is appointed by the directors. The directors also set the terms, remuneration and conditions ser - vice of the secretary. The secretary can be removed by the board of directors as they deem fit. To qualify as a company secretary, an appointee should have obtained a professional qualification that provides them with the relevant experience and knowledge to execute their duties. Such an appointee should either be enrolled to practice and be in good stand - ing as a barrister or solicitor in Ghana, be a member of a professional body or have the requisite academic qualifications necessary for the role. Alternatively, they should have held office prior to the appointment, as a company secretary trainee, or have worked under the supervision of a qualified company secretary for at least three years. Moreover, an appointee in good standing of the Insti - tute of Chartered Accountants Ghana or the Institute of Chartered Secretaries and Administrators qualifies to be a company secretary. The statutory duties of the company secretary include: • assisting the board to comply with the constitution of the company; • keeping the books and records; • ensuring the meeting minutes are properly record - ed as required by the Act; and • preparing and issuing notices in the name of the company.
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