Question Tag: Legal Remedies

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  • 20 Marks

BCL – May 2016 – L1 – Q6 – Employment Law

Evaluate the justification for terminating an employee’s appointment, potential legal redress, and the difference between dismissal and termination.

Kojo Mensah was employed by A&B Co. Ltd as a Waste Management technician. Before his employment, Kojo Mensah presented a certificate to evidence the fact that he was very qualified for the job as a Waste Management technician. One and a half years into his employment, Kojo Mensah’s subordinates petitioned the Management of A&B Co. Ltd that Kojo Mensah was not exhibiting a high sense of professionalism in his position as a Waste Management technician, as several complaints were coming from the clients of A&B Co Ltd to the effect that the services being rendered by the Company were unsatisfactory, adding that Kojo Mensah, as the Officer in charge of that unit, could not supervise the operations of the said unit. It later came to light after the company conducted further due diligence on Kojo Mensah’s academic and professional background, that the certificate he submitted for his employment was a forged one. Prior to the submission of the Petition against him, Kojo Mensah had on several occasions been queried by Management for abandoning his duty post and also getting very drunk during working hours. Without giving Kojo Mensah an opportunity to respond to the petition, the Management of A&B Co. Ltd did not dismiss Kojo Mensah but terminated his appointment from the Company on these grounds.

a) Explain whether A&B Co. Ltd was justified in terminating the appointment of Kojo Mensah.

(10 marks)

b) Explain whether Kojo Mensah has any chance of success in seeking redress. (5 marks)

c) Differentiate between dismissal of one’s appointment and termination of one’s appointment. (5 marks)

a)

  • There is a contractual relationship between Kojo Mensah and A&B Co. Ltd.
  • The scenario indicates gross misconduct on the part of Kojo Mensah, including submitting a forged certificate, abandoning his duty post, and getting drunk during working hours.
  • Given these actions, the company was justified in terminating Kojo Mensah’s appointment on disciplinary grounds for gross misconduct.

(10 marks)

b)

  • Kojo Mensah may seek redress in court on the grounds that the company did not give him a hearing before terminating his appointment.
  • The lack of a hearing violates the principles of natural justice, which require that an employee be given the opportunity to respond to allegations before disciplinary action is taken.
  • Kojo Mensah has a chance of success in court, where he could sue for damages for wrongful termination, but he cannot sue for reinstatement due to the non-servitude nature of employment contracts.

(5 marks)

c)
Dismissal:

  • No benefits are payable.
  • No notice or salary in lieu of notice is required.
  • Dismissal necessarily implies disciplinary action.

Termination:

  • The employee is entitled to accrued benefits.
  • Termination requires notice or salary in lieu of notice.
  • Termination may be either disciplinary or non-disciplinary.

(3 marks for each category for a total of 5 marks)

  • 20 Marks

BCL – May 2020 – L2 – Q4 – Tort

Discuss the types of nuisance, conditions for constituting nuisance, and the legal position and remedies available to a person affected by nuisance.

Asantewaa lives in a quiet residential area. Next door, Kwickbuild Ltd, is carrying out extensive building works to a dilapidated old house. The builders who are working from dawn to dusk, seven (7) days a week, used a crane which passes over Asantewaa’s house. Asantewaa and her family are annoyed by the dust, dirt, and noise caused by the building works.

Required:

a) Identify the types of tort of nuisance.
(4 marks)

b) What TWO (2) conditions must be present for a conduct to constitute nuisance?
(6 marks)

c) Advise Asantewaa as to her legal position.
(6 marks)

d) State TWO (2) legal remedies available to her.
(4 marks)

Asantewaa lives in a quiet residential area. Next door, Kwickbuild Ltd, is carrying out extensive building works to a dilapidated old house. The builders who are working from dawn to dusk, seven (7) days a week, used a crane which passes over Asantewaa’s house. Asantewaa and her family are annoyed by the dust, dirt, and noise caused by the building works.

Required:

a) Identify the types of tort of nuisance.
(4 marks)

b) What TWO (2) conditions must be present for a conduct to constitute nuisance?
(6 marks)

c) Advise Asantewaa as to her legal position.
(6 marks)

d) State TWO (2) legal remedies available to her.
(4 marks)

Answer:

a) Types of Tort of Nuisance:

  • Public Nuisance: Public nuisance is an act or omission that causes discomfort or inconvenience to a class of people. It is generally considered a crime. However, individuals who are particularly affected by the nuisance may bring an action in court.
  • Private Nuisance: Private nuisance consists of an unreasonable interference with a person’s use or enjoyment of their land. This could involve physical damage or interference causing loss of enjoyment or discomfort.

(4 marks)

b) Conditions for Conduct to Constitute Nuisance:

  • Indirect Interference: The act must involve indirect interference with the use or enjoyment of land. Examples include smoke, smells, noise, or other disruptions that affect the enjoyment of the property.
  • Unreasonable Conduct: The interference must be unreasonable, causing either physical damage to the land or significant discomfort or loss of enjoyment to the property owner. The act must go beyond what is considered normal use of property.

(6 marks)

c) Legal Position of Asantewaa:

  • The case of Asantewaa is one of private nuisance, and she has a cause of action against Kwickbuild Ltd. The continuous dust, dirt, and noise from dawn to dusk, seven days a week, constitute an unreasonable interference with the use and enjoyment of her property.
  • The interference is significant and persistent, making it unreasonable for Asantewaa and her family to endure such conditions without relief.

(6 marks)

d) Legal Remedies Available:

  • Compensation: Asantewaa can sue Kwickbuild Ltd for compensation due to the nuisance caused by the building works.
  • Injunction: Asantewaa can seek an injunction from the court to prevent the continuation of the nuisance.

(4 marks)

  • 15 Marks

BCL – Mar 2024 – L1 – Q3b – Company Law

Analyze the chances of success for shareholders' action against the company under the Companies Act, 2019 (Act 992) and explain the organs through which a company acts.

Kofi Ameyaw and Salia Sule, shareholders of Bubra Ltd, commenced an action in court against the company alleging that properties of the company had been misapplied and wasted, and that certain mortgages were improperly secured as guarantee with the company’s properties. In their action, they also alleged that the company gave negligent advice which had resulted in their suffering economic loss which was personal and individual to them. Kofi Ameyaw and Salia Sule are seeking an order of the court for the company to account for the appointment of a Receiver.

Required:

i) Explain the chances of Kofi Ameyaw and Salia Sule in their court action, in the light of the provisions of the Companies Act, 2019 (Act 992). (9 marks)

ii) Explain FOUR (4) entities or organs through which a company can act pursuant to provisions of the Companies Act, 2019 (Act 992). (6 marks)

i) Chances of Success in Court Action:

Section 219 of the Companies Act, 2019 (Act 992) provides a remedy against oppression. A member or debenture holder of a company may apply to the court for an order under this section on the ground that:

  • The affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders or in disregard of the proper interests of those members, shareholders, officers, or debenture holders of the company; or
  • An act of the company has been done or is threatened, or a resolution of the members, debenture holders, or a class of them has been passed or is proposed, which unfairly discriminates against, or is otherwise unfairly prejudicial to, one or more of the members or debenture holders.

The issue is whether Kofi Ameyaw and Salia Sule can proceed as minority members on oppression. Section 219 of Act 992 is applicable to the scenario.

The complaint of Kofi Ameyaw and Salia Sule is that the properties of the company had been misapplied and wasted, and that mortgages were improperly secured as guarantees with the company’s properties. Furthermore, they claim that the company gave negligent advice which resulted in personal economic loss.

The two are likely to succeed pursuant to section 219, which provision gives the two members the right to action even though they may be in the minority.

(9 marks)

ii) Four Entities or Organs Through Which a Company Acts:

According to section 144 (1) of the Companies Act, 2019 (Act 992), a company shall act through the following entities or organs:

  • Board of Directors: The Board is the heart of the company. It decides on policy initiatives, ensures the declaration of dividends, and generally oversees the management of the company.
  • Managing Director: The Managing Director is responsible for running the company. He spearheads the implementation of the Board’s policy decisions and has the power to bind the company and take various decisions on its behalf.
  • Annual General Meeting (AGM): The AGM is a gathering of shareholders where they approve or disapprove the actions and business of the company, such as the declaration of dividends, election of directors, and approval of auditors’ reports.
  • Shareholders/Members: Shareholders are the owners of the company. Through their participation in meetings and other corporate actions, they influence the company’s operations.

(4 points @ 1.5 marks each = 6 marks)

  • 3 Marks

BCL – Mar 2024 – L1 – Q2c – Contract Law

Assess the accuracy of the statement regarding third-party rights in the context of contract law.

“A third party who, without notice of any fraud or deficiency, obtains a contractual benefit is entitled to keep it.”

Required:

Briefly explain the accuracy or otherwise of the statement above. (3 marks)

The accuracy or otherwise of the statement depends on the contractual setting. This occurs in unilateral mistake where a fraudulent person assumes the name of a person of repute. A contract is then concluded. The fraud then passes on the item of sale to a third party who purchases it in good faith. If there is no intention to avoid the contract, the third party benefits from the contract.

However, the scenario is different where the original owner intends to deal with the named person and the said person only, and attempts are made to avoid the contract with the fraudulent person. In that case, no title passes to the third party. The cases of Ingram vs Little, Phillips vs Brooks, and Cundy vs Lindsay explain the statement.

(3 marks)

  • 9 Marks

BCL – Mar 2024 – L1 – Q2b – Contract Law, Sale of goods/hire purchase

Evaluate whether Tinda Oil Ltd. can succeed in a court action against Azigipaa Ltd. based on the provisions of the Sale of Goods Act.

Azigipaa Ltd invited tenders for the purchase of a tanker, said to be lying off the Island Bebre, together with the oil it was said to contain. Tinda Oil Ltd submitted a tender for which Azigipaa Ltd accepted. Tinda Oil Ltd went through considerable trouble and expense to modify a ship that the company owned for salvage work, and also brought equipment and engaged a crew. There was no tanker anywhere near the Island as described by Azigipaa Ltd. Tinda Oil Ltd has decided to take action in court against Azigipaa Ltd.

Required:

i) In light of the provisions of the Sale of Goods Act, is Tinda Oil Ltd likely to succeed in its action? (5 marks)

ii) List TWO (2) fundamental obligations of a seller under the provisions of the Sale of Goods Act 1962, Act 137.

(4 marks)

i) Likelihood of Tinda Oil Ltd succeeding:

The question to begin with is whether or not the tanker falls under the definition of goods under the contract for the sale of goods.

Goods as defined under section 81 of the Sale of Goods Act, 1962 ACT 137 include movable property and growing crops or plants and any other things attached to or forming part of the land which are agreed to be severed before sale by or under the contract of sale.

The next question is whether the tanker lying off the island Bebre is specific or unascertained goods.

Section 5(1) of the Sale of Goods Act, 1962 ACT 137 provides that the goods which form the subject of the contract of sale may either be specific goods identified and agreed upon before or at the time when the contract is made or unascertained goods not being so identified and agreed upon.

Section 9 of the Sale of Goods Act, 1962 (Act 137) provides that in a contract for the sale of specific goods there is an implied condition on the part of the seller that the goods are in existence at the time when the contract is made.

The scenario relates to the case of McRae vs Commonwealth Disposal Commission, treated under common mistake. In that case, the court awarded damages to the plaintiff on the ground that the commission had implicitly warranted the existence of the tanker. The case, however, had found attraction to the sale of goods that although the view was expressed that it well may be to regard the contract for the sale of non-existing goods (tanker) as void.

As regards the application of the scenario to Act 137, the tanker which is non-existent neither falls under the category of unascertained goods which had not been identified.

The goods were non-existent, and therefore Tinda Oil Ltd succeeds in its action.

(5 marks)

ii) Fundamental obligations of a seller:

Section 8 of the Sale of Goods Act, ACT 137 provides that:

  • In the sale of specific goods, the fundamental obligation of the seller is to deliver those goods to the buyer.
  • In a sale of unascertained goods, the fundamental obligation of the seller is to deliver to the buyer goods substantially corresponding to the description or sample by which they were sold.
  • A provision in a contract of sale which is inconsistent with or repugnant to the fundamental obligation of the seller is void to the extent of the inconsistency or repugnance.

(Any 2 points @ 2 marks each = 4 marks)

  • 2 Marks

BCL – May 2019 – L1 – Q3a – Contract Law

Distinguish between legal and equitable remedies in contract law.

a) Distinguish between a legal and equitable remedies in contract law. (2 marks)

  • Remedy is the relief a Court may grant upon finding that a wrong has been committed.
  • Legal remedies refer to the right to be awarded monetary damages, while equitable remedies refer to the right to some relief from the Court other than damages.
  • 10 Marks

BCL – Nov 2019 – L1 – Q4 – Contract Law

Analysis of whether a breach of contract constitutes a breach of condition or warranty, and the justification for awarding damages.

Kojo Atua, a businessman, who had a contract to supply timber logs to Okofoh Timber Co. Ltd, hired a tractor from Mary Arthur, at a rate of GH¢1,000.00 a day to enable him to haul the timber logs from his timber concession in Okofoh. Under the agreement, Kojo Atua paid a deposit of GH¢10,000.00. It is the case of Kojo Atua that Mary Arthur assured him that her tractor was in good condition and could haul at least 30 logs a day.

Kojo Atua, however, found the tractor to be defective almost from the beginning, with the tractor hauling a maximum of seven (7) logs a day, and a total of 60 logs during a period of a little over one month. Kojo Atua brought an action for damages for breach of contract. The Court awarded Kojo Atua special damages of GH¢20,000.00 on the basis of total failure of consideration.

Required:

i) Explain whether in the circumstance of the case, there was either a breach of condition of the contract or a breach of warranty. (10 marks)

ii) Explain in THREE (3) ways whether the court was justified in the award of GH¢20,000.00 to Kojo Atua for the failure of consideration. (10 marks)

i) Breach of Condition vs. Breach of Warranty:

  • Classification of Contract Terms: The terms of a contract are classified as conditions, warranties, or innominate terms. Parties will usually designate which classification a contract term falls under. Breach of a condition of a contract can constitute a breach of the contract as a whole, allowing the non-breaching party to sue for damages as well as seek rescission of the contract. (3 marks)
  • Implied Warranty: An owner who lets out a chattel on hire must take reasonable care to ensure that it is in a condition reasonably fit for the purpose for which the bailee was to use it. The owner would impliedly warrant the suitability of the chattel for that purpose and is liable to the bailee for breach of the warranty. (3 marks)
  • Application to the Case: In the instant case, there was indeed a breach of implied warranty, and it would not have resulted in the repudiation of the contract. Therefore, Kojo Atua rightly sued for damages. (4 marks)

ii) Justification for the Award of GH¢20,000.00:

  • Consideration of Part Performance: The issue arising in the question is whether the Court rightly awarded the special damages of GH¢20,000.00 to Kojo Atua for failure of consideration. A claim for money had and received is not maintainable if the contract had been partly performed and some benefit has been derived from the part performance. (2 marks)
  • Evidence of Part Performance: In the present case, the evidence clearly showed that although the tractor was defective and operated at a rate substantially below the declared capacity, it did some work, having hauled a total of 60 logs. (2 marks)
  • Error in Award: The Court erred in law in basing the award of the special damages on a total failure of consideration. There was part performance, and for which reason one cannot say that consideration had failed.      (6 marks)

(Total: 20 marks)

  • 10 Marks

BCL – Nov 2019 – L1 – Q2d – Company directors and other officers

Options available to a minority shareholder and potential court reliefs in a company merger scenario.

Kwame Akoto holds 15% share in Sikem Investment Ltd, a brokerage firm, which by the regulations of the company, entitled him to appoint a director. To avoid the strict and high standards of banking, the Regulations of Sikem Investment prohibits banking and savings and loan schemes. Kwame Akoto received a letter from Mr. Pinkrah, Managing Director and 55% shareholder, that the company has merged with Sikaman Group owned 100% by Mr. Pinkrah. The merged company will upgrade into a full bank within the next three months. The shares of Kwame Akoto and all minority shareholders with Sikem Investment Ltd will be converted into a loan at 10% per annum interest with principal repayment schedule over the next five years. Mr. Pinkrah took all decisions alone without consulting the seven members on the board. All attempts to hold a board meeting to discuss the issues have been thwarted by Mr. Pinkrah.

Required:

i) State THREE (3) options open to Kwame Akoto in the circumstance of this case. (6 marks)

ii) State FOUR (4) likely reliefs the court may grant. (4 marks)

i) Options available to Kwame Akoto:

  • Court Order: Kwame Akoto can seek a court order as a member, or through his appointed director.
  • Petition to the Registrar: He can file a petition to the Registrar to hold an Annual General Meeting (AGM). With 15% shareholding, he can request an Extraordinary General Meeting (EGM) under Section 271 of Act 179.
  • Challenge of Ultra Vires Actions: Kwame Akoto can challenge the actions of the Managing Director (MD) as ultra vires, depending on the allocation of powers among members at general meetings. The MD cannot decide on mergers, class rights, share conversions, business objects, etc., without the Board of Directors (BOD) or members at general meetings.

(3 points @ 2 marks each = 6 marks)

ii) Likely reliefs the court may grant:

  • Lift the corporate veil: The court may lift the veil to hold Mr. Pinkrah liable for any fraud.
  • Civil and criminal liabilities: Imposing civil and criminal liabilities for any breach of fiduciary duties.
  • Injunction: The court may secure an injunction against illegal or irregular activities under Sections 217 and 218.
  • Cancel or vary the merger: The court may cancel or vary the merger and other transactions or resolutions.
  • Protect shareholder rights: The court may maintain the rights of Kwame Akoto and other affected members.
  • Purchase of shares: The court may provide for the purchase of the shares of affected members.
  • Appointment of an inspector: The court may appoint an inspector or order the Registrar to investigate the operations/affairs of the company.

(4 points @ 1 mark each = 4 marks)

  • 5 Marks

BCL – July 2023 – L1 – Q3a – Human Rights

Identify remedies that a High Court may issue in respect of a breach of fundamental human rights.

Where a person is convinced that there is a breach of his/her fundamental human rights, the Constitution of the Republic of Ghana, 1992 allows that person to apply to the High Court of Ghana for a remedy.

Required:

State FOUR (4) remedies that a High Court may issue in respect of the breach of fundamental human rights. (5 marks)

The writs/directions/orders are:

  • Habeas corpus
  • Certiorari
  • Mandamus
  • Prohibition
  • Quo warranto

(Any 4 points @ 1.25 marks each = 5 marks)

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