Sources of law

- Refers to places from which the law can be ascertained

- Sources of law in Ghana are as follows:
o The constitution
o Legislation
o Common law
o Equity
o Customary law
o Subsidiary Legislation
o Textbooks
The Constitution
- The chief legal document and political document
- The most important source of law in Ghana
- The first and most important reference point
- Provisions are supreme to any other law
- Sets the parameters for the development of other laws.
Legislation (Statue Law)
- Also referred to as Act of Parliament
- Rules which are formally enacted by Parliaments we have had so far,
- Decrees of various military governments,
- Laws of the PNDC,
- Ordinance of colonial governments; as far as any such enactment is
not repealed.
Common Law
- the rules of law that have come into existence as a result of the
decisions of Judges in cases that go before the court for adjudication as
opposed to written rules of laws known as legislation.
- the rules which we have inherited from the common law courts in
England and which our Judges have then adapted or modified to suit
our needs and circumstances;
- the rules of customary law including those determined by the Superior
Court of Judicature.

Customary Law
- rules of laws which by custom are applicable to particular communities
in Ghana.
Subsidiary Legislation (Delegated Legislation)
 - any kind of legislation not coming directly from the legislature;
- but is made by person, body or agency under the powers conferred by
the legislature or the Constitution.
Equity
- a set of legal principles designed to correct laws
- when these laws would apply unfairly in certain circumstances.
Maxims of equity
- equity will not suffer a wrong to be without a remedy
- equity follows the law
- he who seeks equity must do equity
- he who comes to equity must come with clean hands
- delays defeat equity
- equality is equity
- equity imputes an intention to fulfil an obligation
- equity looks on that as done which ought to be done
- equity looks for the intent not the form
- where the equities are equal, the first in time prevails
- where the equities are equal, the law prevails
- equity act in personam
Equitable remedies
- Quantum meruit: payment for the benefits from the labour or material
f another person
- Specific performance: a court order to a party in breach of contract to
carry out his contractual obligation
- Injunction: a court order to a person not to do something (i.e. not to
breach a contract)
- Rectification: the correction of errors in instruments or documents by
the court
- Rescission: the right of a party to a contract to set aside the
agreement if that party wishes to do so
 Negligence
Negligence is a breach of a legal duty to take care which results in damages,
undesired by the defendant to the claimant.
Elements of negligence
1. Duty of care
2. Breach of that duty
3. Damages or injury suffered
Case in point: Donoghue v. Stevenson (1932)
Neighbour principles
A neighbour is one who is closely and directly affected by the defendants
conduct.
Defense to negligence
1. Contributory negligence
2. Volenti non fit injuria
3. Exclusion clauses
 Vicarious liability
- Liability owed to third parties as a result of the negligence of
employers servant (employee) in the course of the employment
duties.
- Dependent on the type of relationship
(a) Contract for service contractor
(b)Contract of service employee
Case in point: Zaglou v Kumasi Brewery Ltd
Guardian Royal Exchange Assurance v Appiah (1984)
Antwi and Arthur v Raman and Other (1992)
 Vitiating factors
- Factors which affect the genuineness of consent of parties to a contract
Types of vitiating factors
- Duress
- Undue influence
- Misrepresentation
- Illegality
- Mistake
Duress
- Instances in which a party is induced to enter into a contract
- By force or the threat of force
- Here, the party forced cannot be said to have given his consent freely
- Effect on contract: voidable
Case in point: Barton v Armstrong

Undue influence
- Instances where indirect pressure is applied to force a party to enter
into a contract.
- Involves abuse of professional or confidential relationships.
- Effect on contract: voidable
Case in point: Williams v Bayley

Void contracts
- A contract which has no legal effect as an agreement
- This means the court will take no notice of such agreement
- And will treat them as if they have never existed in the first place
Voidable contracts
- A contract which can be made void by one of the parties
- If that party chooses not to be bound by the contract in question
Unenforceable contracts
- A contract which is perfectly valid in all other respect
- But lacks some technical requirements and as a result,
- The court will not give effect to it by enforcing it.
 Product liability
- A manufacturers, sellers or lessors liability to consumers, users and
bystanders
- For physical harm or property damage
- That is caused by the goods.
Claimant can sue based on:
- Negligence
- Misrepresentation
- Breach of warranty
- Strict tort liability
Case in point: NANA TABIRI GYANSAH III v ACCRA BREWERY
 Contracts and Negotiations
A contract is defined as:
- an agreement between persons or group of persons or entities
- for the performance of an obligation
- in return for some compensation or reward and
- a breach will entitle the injured party to a remedy at law
Specialty contract
- these are contract that the law stipulates that it must be in writing,
signed, witnessed and delivered.
- Examples include:
(a) Transfer of an interest in land (Conveyancing Decree, 1973 (NRCD,
17) 3 years or more
(b) Contract of Guarantee (Customary Law, (Act 24)
(c) Contract of employment (Labour Act, 2003 (Act 651) 6 months or
more
(d)Agreement between citizen and non-citizen over concession
(Concessions Act, 1939 (Cap 136)
Essential elements of contract terms
1. Certainty
2. Not vague
3. Incomplete
Existence of a contract
There must be:
- Offer
- Acceptance
- Consideration
- Legal relation was intended
Matters that may affect contract negotiation & business
- Customs
- Religion, Myths and Perception
- Experience and Expertise
- Gestures, Behaviours & Attitudes
- Political, Environmental & Investment Climate
- Prevailing Trade Customs

Matters that may affect contract negotiation & business in Ghana

 - Local multi-cultural & tribal/Ethnic diversity
- Language barrier
- National laws-local content & restriction on foreign investment in
certain economic activities
- Industry specific laws capital requirement & permits
- Municipal and district assembly regulation
- Conflict of law cross border transactions these may influence the
choice of governing laws and forum for dispute resolution
- Different business environment depending on region or district /
locality
Local content provisions
- These are laws giving preferences to indigenous Ghanaian companies
participating in petroleum activities
- At least:
(a) 5% equity participation in petroleum licenses
(b)10% equity participation in goods and services
- Laws include:
(a) Exploration & Production Act, 1984 (PNDCL 84)
(b)The Petroleum Regulation 2013, (L.I. 2204)
Indigenous Ghanaian companies
- incorporated in Ghana
- at least 51% Ghanaian equity ownership; and
- at least 80% of Ghanaian in senior management position.
Entering into a contract: process and procedures
General procedures
- identify the object & parties
- follow procedure laid down
- conduct a pre-due diligence
- negotiate and execute the contract
- conduct a post transaction due diligence
Government transaction: ensuring best interest
- value for money must be paramount
- risk allocation
- end user affordability
- local content & technology or skills transfer to locals
- safeguarding public interest and stakeholder right
- environmental, climate and social safeguards
- accountability
- pre-feasibility study
- conduct legal, operational, and financial due diligence
Article 181 Contracts: Government contract requiring Parliamentary
Approval
Government contract is any contract entered into by the Government, any
statutory corporation, or any other agency of the Government.
- Government agreement to grant loan out of public fund or account
requires approval by resolution
- Raising of loans approval by an Act of Parliament
- Government & International business or Economic transaction (PPP)
approval by resolution & act of Parliament
Government contract & negotiation: The Team
Generally, no specific requirement on composition. However, some laws may
require key persons based on the nature of the transaction. If it concerns the
state:
- Representatives of Government contracting entity
- The Ministry of Finance
- The Attorney Generals Department
- Any person with relevant expertise
- Transaction advisor
Prudent steps before & during negotiations
Letter of intent
Provides business persons with a vital bridge between mere
discussions and binding contract. The purpose is to facilitate the
start of a contract or project between the parties involved by
identifying key business and contractual understanding that will
form the basis of the substantive contract.
Expression of interest
Memorandum of understanding

Confidentiality & Non- disclosure Agreement

An agreement entered into by the Disclosing party and the
Receiving party to prevent the unauthorized disclosure of
Confidential Information of Disclosing party which may be disclosed
to Receiving party for the purpose of pursuing or negotiating a
contract between the parties.

Non competitive Agreement

Non circumvention Agreement
A non-circumvent agreement is used to protect the ideas and
opportunities under a business contract. It generally provides that
each party shall use the other party's information only for the
purpose of pursuing a business relationship between the parties.

Stability Agreement
Agreement to undertake legal due diligence
Factors affecting cross-border business transaction in Ghana
- Protracted litigation
- Unfamiliar and conservative legislation
- Sudden and unexpected changes in national or local laws and
regulation or government
- Working under different governmental laws and limitations
- Challenges of customs clearances
- Corruption and terrorism
Health, Safety and Environmental Liabilities
Organisations Legal Responsibilities
- duty to prevent contamination of the workplace
- duty to provide separate, sufficient, suitable and adequate toilet and
washing facilities for males and females
- duty to prevent accidents and injury to health by minimizing the
causes of hazards
- duty to provide necessary information, instructions, training and
supervision to ensure health and safety to work
- duty to report occupational accidents and diseases
- duty to provide prescribed information and protective measures to
persons not in their employment but who may be affected or exposed
to risk to their health and safety.

Workers duties and rights

- duty to use safety appliances
- duty to report exposure to imminent hazards
Case in point: Kumi v State Gold Mining Corp & Another (1978)
 Moshie v State Gold Mining Corp

Environmental & Health Hazards

An organization has a duty to protect the environment and prevent health
hazards
EPA functions
- control environmental pollution by issuing environmental permits and
pollution abatement notices
- control the volumes, intensity and quality of noise in the environment
- issue and serve enforcement notices, on persons responsible for an
undertaking which poses serious threat to the environment or public
health.