Question Tag: Qualifications

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  • 15 Marks

BCL – Mar 2023 – L1 – Q3b – Company Directors and Other Officers

Identify the qualifications, fiduciary duties, and types of a Company Secretary.

A Company Secretary is an officer of the company responsible for the recording of proceedings of both Board and General Meetings. The Company Secretary embodies the institutional memories of the organization and brings directions in the governance of the company. The Company Secretary may be an individual, a partnership, or a company.

Required:
i) Identify THREE (3) characteristics that qualify a person to be appointed as Company Secretary under the Companies Act, 2019 (Act 992).
(6 marks)

ii) State THREE (3) fiduciary duties required of a Company Secretary.
(6 marks)

iii) Explain TWO (2) types of Company Secretary.
(3 marks)

i) Characteristics that Qualify a Person to be Appointed as Company Secretary:

The directors shall not appoint a person as a Company Secretary unless that person:

  • Has obtained a professional qualification or a tertiary level qualification that enables that person to have the requisite knowledge and experience to perform the functions of a Company Secretary.
  • Has held office, before the appointment, as a Company Secretary trainee or has been articled under the supervision of a qualified Company Secretary for a period of at least three years.
  • Is a member in good standing of:
    • The Institute of Chartered Secretaries and Administrators, or
    • The Institute of Chartered Accountants, Ghana,
  • Having been enrolled to practice, is in good standing as a barrister or solicitor in the Republic, or
  • By virtue of an academic qualification, or as a member of a professional body, appears to the directors as capable of performing the functions of secretary of the company.

(Any 3 points @ 2 marks each = 6 marks)

ii) Fiduciary Duties of a Company Secretary:

  • Confidentiality: The Company Secretary cannot, with the insights it has gained from a company, disclose corporate matters, including corporate secrets, to outsiders.
  • Diligence: The Company Secretary must carry out his, her, or its duties conscientiously and timeously – in a word, with diligence. Any tardiness on the part of the Company Secretary is bound to adversely affect the governance of the company, such as with respect to Board and General Meetings, filings with the Registrar of Companies, and other compliance matters, as well as the quality of its management.
  • Faithfulness: Faithfulness includes avoiding a conflict of interest or making a secret profit. A Company Secretary must not place himself, herself, or itself in a position where he, she, or it is more interested in his, her, or its welfare than in that of the company. For example, one cannot, as a Company Secretary, set up a rival business or make a private deal that should properly go to the company.

(Any 3 points @ 2 marks each = 6 marks)

iii) Types of Company Secretary:

  • Member Secretary: In this category, the secretary is part of the board and a member of the board meeting who is also responsible for recording the deliberations of the meeting. Records of the members present will include the secretary, but where he/she is a non-member secretary, the record will indicate that the secretary is under ‘In attendance’.
  • Non-member Secretary: The argument in favor of this category is that one cannot effectively fully participate in deliberations and then fully or fairly record proceedings.
  • Professional Secretary: This involves the practice that touches on company administration and secretarial services. Legal and paralegal services will be delivered by lawyers, chartered accountants, chartered secretaries, and most commonly solicitor secretaries.
  • Executive Secretary: An organization may employ a secretary as part of its full-time staff, and his or her schedule will include executive responsibilities such as serving as secretary to the board, acting as chief administrative officer, and/or being the Registrar of the organization. Examples of such positions can be found in Public Universities, Ghana Energy Commission, Law Reform Commission, etc.

(Any 2 points @ 1.5 marks each = 3 marks)

  • 10 Marks

Nov 2018 – L2 – Q2b – Public Procurement

State and explain five qualifications of tenderers under the Public Procurement Act 2003.

Section 22 of the Public Procurement Act 2003, as amended by Act 914 of 2016, requires tenderers to possess certain qualifications.

Required:
State and explain FIVE (5) qualifications of Tenderers under the Public Procurement Act 2003.

Qualifications of Tenderers under the Public Procurement Act 2003 include:

  • Professional and Technical Qualifications: A tenderer must possess the necessary professional and technical qualifications and competence required to perform the procurement contract. This ensures that the tenderer has the expertise needed to deliver the goods, works, or services as specified.
  • Adequate Financial Resources: A tenderer must have adequate financial resources to perform the contract. This qualification ensures that the tenderer is financially stable and capable of sustaining the project through to completion without financial difficulties.
  • Necessary Equipment and Physical Facilities: The tenderer must have the necessary equipment and other physical facilities required to execute the procurement contract. This ensures that the tenderer is well-equipped to carry out the work efficiently and effectively.
  • Managerial Capability, Reliability, and Experience: The tenderer must demonstrate managerial capability, reliability, and experience in the procurement object. This qualification ensures that the tenderer has the organizational capacity and track record to manage the project successfully.
  • Legal Capacity: The tenderer must have the legal capacity to enter into the contract. This means that the tenderer must be legally recognized, solvent, not in receivership, not bankrupt, or in the process of being wound up, and must not have its business activities suspended or be the subject of legal proceedings that would materially affect its capacity to enter into the contract.
  • Compliance with Tax and Social Security Obligations: The tenderer must fulfill its obligations to pay taxes and social security contributions. This ensures that the tenderer is in good standing with the government and adheres to all legal and regulatory requirements.
  • Ethical and Environmental Requirements: The tenderer must meet any ethical and environmental requirements associated with the procurement. This ensures that the tenderer operates within ethical standards and complies with environmental regulations relevant to the contract.
  • be solvent, not be in receivership, bankrupt or in the process of being wound up, not
    have its business activities suspended and not be the subject of legal proceedings that
    would materially affect its capacity to enter into a contract.

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