GHANA Law and Practice Contributed by: Victoria Bright and Maxwell Amihere, Addison Bright Sloane
Secretaries To qualify as a company secretary, an appointee should have obtained a professional qualifica - tion that provides them the relevant experience and knowledge to execute their duties. Such an appointee should either be enrolled to practice and be in good standing as a barrister or solici - tor in Ghana, be a member of a professional body or have the requisite academic qualifica - tions 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 Institute of Chartered Accountants Ghana or the Institute of Chartered Secretaries and Administrators qualifies to be a company sec - retary. Unless the company’s constitution pro - vides otherwise, the company secretary shall be appointed by the directors. The statutory duties of the company secretary include: • assisting the board to comply with the consti - tution of the company; • keeping the books and records; • ensuring the meeting minutes are properly recorded as required by the Act; and • preparing and issuing notices in the name of the company. 4.7 Responsibility/Accountability of Directors The directors are accountable to various stake - holders, namely, the company as an entity, the shareholders and the Registrar General. The Companies Act, 2019 (Act 992) provides that directors hold a fiduciary relationship with the company and are mandated to act in the com - pany’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 General’s Depart - ment, as they can be penalised for misrepresent - ing themselves or for providing false information. Finally, they can also be prosecuted for criminal offences they were responsible for, had knowl - edge of or were complicit in. 4.8 Consequences and Enforcement of Breach of Directors’ Duties When a director breaches their duties, the direc - tor and any other person who knowingly commit - ted 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 transaction. Finally, the company reserves the right to terminate any transaction or contract entered into between the director and the company, in breach. Where there has been a breach, the company or member of a company (ie, shareholders) can institute legal proceedings to enforce liabilities, restrain a threatened breach or by recovering property from the director. A company can do the above on the authority of the board of direc - tors, a receiver and manager or liquidator, or via an ordinary resolution of the company which has been agreed to by the members. A legal chal - lenge can also be brought in the form of a repre - sentative action by a class of shareholders with leave of court. Another legal option open to shareholders and directors is a derivative action. After seeking leave from the court, any of the above parties
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