Sources of
Commercial Law for Commercial Lawyers in Ghana
1.
Introduction
Commercial law is
a branch of law that governs the rights, relations, and conduct of businesses,
merchants, and individuals engaged in commerce, trade, and transactions. It
encompasses a wide range of legal principles that regulate commercial
activities such as contracts, sales of goods, secured transactions,
intellectual property, and business organizations. In Ghana, commercial law is
derived from a variety of sources, both statutory and non-statutory. A
commercial lawyer must be well-versed in these sources to effectively navigate
the legal landscape of business and trade in Ghana. This includes understanding
both the written laws and customary practices that influence commercial
transactions and dispute resolution.
The sources of
commercial law in Ghana can be broadly categorized into legislation, common law, customary
law, international
treaties, and judicial
precedents. Each of these
sources contributes to the formation and development of commercial law,
providing a framework within which commercial activities are conducted.
2.
Statutory Law
Statutory law is
the most significant source of commercial law in Ghana. It consists of laws
enacted by the Parliament of Ghana and regulations issued by relevant statutory
bodies. These laws provide clear guidelines on various aspects of commercial
practice, including contracts, business organization, finance, and dispute
resolution. Key statutes governing commercial law in Ghana include:
a) The
Companies Act, 2019 (Act 992)
The Companies
Act, 2019 (Act 992) governs the formation, operation, and dissolution of companies in
Ghana. It outlines the structure of business organizations, including the
different types of business entities, such as limited liability companies,
partnerships, and sole proprietorships. The Act regulates corporate governance,
duties of directors, shareholder rights, and the registration process with the Registrar
General’s Department. Commercial lawyers rely on the Companies Act when advising clients on
company formation, compliance, and corporate governance issues.
b) The
Contract Act, 1960 (Act 25)
The Contract
Act, 1960 (Act 25) is one of the most important pieces of legislation in commercial law.
It provides the legal framework for the formation and enforcement of contracts
in Ghana. This Act outlines the requirements for contract formation, including
offer, acceptance, consideration, capacity, and consent. Commercial lawyers use
this Act to draft contracts, advise clients on their legal rights and
obligations, and handle breach of contract disputes. The Contract Act also
provides remedies in cases of breach, such as damages, specific performance, or
rescission of the contract.
c) The
Sale of Goods Act, 1962 (Act 137)
The Sale of
Goods Act, 1962 (Act 137) regulates transactions involving the sale of goods in
Ghana. It outlines the rights and obligations of buyers and sellers, the terms
of sale, and conditions for the transfer of ownership and risk. This Act is
central to commercial transactions involving the purchase and sale of goods,
and commercial lawyers frequently rely on it when advising clients on sale
contracts, disputes, and warranties.
d) The
Alternative Dispute Resolution Act, 2010 (Act 798)
The Alternative
Dispute Resolution Act, 2010 (Act 798) provides a framework for resolving disputes outside of the
formal court system. It encourages the use of methods such as mediation,
arbitration, and conciliation to resolve commercial disputes efficiently. This
Act is crucial for commercial lawyers who represent clients in matters where
arbitration or mediation may be preferable to litigation. Commercial lawyers
may also act as arbitrators or mediators themselves.
e) The
Banking and Specialized Deposit-Taking Institutions Act, 2016 (Act 930)
The Banking
and Specialized Deposit-Taking Institutions Act, 2016 (Act 930) governs the
regulation of banks and financial institutions in Ghana. It establishes the
rules and guidelines for the operation, licensing, and supervision of banks.
Commercial lawyers specializing in banking law use this Act to advise clients
on banking transactions, regulatory compliance, and financial services.
f) The
Trade Marks Act, 2004 (Act 664)
The Trade
Marks Act, 2004 (Act 664) governs the registration, use, and protection of
trademarks in Ghana. Commercial lawyers frequently deal with this Act when
advising businesses on how to protect their intellectual property, register
trademarks, and address issues of trademark infringement.
3. Common
Law
Common law refers
to the body of law developed through judicial decisions and legal precedents
rather than through legislative statutes. In Ghana, the common law plays a
significant role in shaping commercial law, especially in areas where there is
no specific statutory provision. Common law principles evolve from case law,
and the decisions made by judges in previous cases are binding on future cases
with similar issues.
a)
Judicial Precedents and Case Law
In Ghana, the
judicial system follows the doctrine of stare decisis, meaning that courts are generally required to follow
precedents set by higher courts. Commercial lawyers in Ghana often rely on
previous court decisions to interpret the application of laws in
business-related disputes. For example, in the absence of specific legislation,
commercial lawyers may look to past decisions on issues like contract
interpretation, breach of contract, or dispute resolution.
b) Equity
Equity, which
originated in English common law, is also a source of commercial law in Ghana.
Equity provides remedies that are more flexible than those offered by the
strict rules of law. In commercial disputes, equity allows courts to grant
remedies such as injunctions, specific performance, and equitable damages.
Commercial lawyers rely on equitable principles to obtain just results,
particularly in cases where a strict application of statutory law may not
provide an adequate remedy.
4.
Customary Law
Customary law
plays an important role in Ghanaian commercial law, particularly in relation to
business practices and transactions in rural areas or among certain ethnic
groups. Customary law consists of the traditional rules, norms, and practices
that have been developed over time within local communities. While customary
law is not codified, it is an essential source of law for commercial
activities, especially in areas where statutory law does not provide a direct
answer.
a)
Customary Commercial Practices
In Ghana,
commercial activities such as land transactions, property transfers, and trade
are often influenced by local customs. For example, customary law may govern
the sale of land or the transfer of property rights, and commercial lawyers
must be familiar with these customs when advising clients on transactions
involving customary land or property. In some cases, commercial contracts may
be governed by the customary law of the parties involved.
b)
Application of Customary Law in Court
The courts in
Ghana apply customary law in matters where statutory law is silent or where the
parties to a dispute have agreed to be governed by customary law. Commercial
lawyers must understand how customary law interacts with statutory law and how
courts apply it in resolving commercial disputes. The application of customary
law is often influenced by the region, community, or ethnic group involved.
5.
International Treaties and Conventions
International law
and treaties also play an important role in Ghana’s commercial law. As a member
of various international organizations, Ghana has signed several treaties,
conventions, and agreements that influence commercial activities. These include
trade agreements, treaties on intellectual property, and international
arbitration conventions.
a) The
United Nations Convention on Contracts for the International Sale of Goods
(CISG)
Ghana is a
signatory to the United Nations Convention on Contracts for the International Sale of
Goods (CISG), which governs
international sale contracts between businesses in different countries.
Commercial lawyers advising clients on international trade must be familiar
with the provisions of this convention, as it provides a uniform framework for
the sale of goods across borders.
b)
Bilateral and Multilateral Trade Agreements
Commercial lawyers
also rely on bilateral and multilateral trade agreements to advise clients
involved in international commerce. Ghana is a member of the World
Trade Organization (WTO) and has signed various regional trade agreements, such as
the African
Continental Free Trade Area (AfCFTA). These agreements provide the legal framework for trade
between Ghana and other countries and impact matters such as tariffs, export
regulations, and cross-border dispute resolution.
6.
Conclusion
Commercial law in
Ghana is derived from multiple sources, including statutory laws, common law,
customary law, and international treaties. These sources interact and
complement each other to create a comprehensive legal framework that governs
commercial activities and transactions. Commercial lawyers in Ghana must
understand and navigate these sources to effectively advise clients, draft
contracts, and resolve disputes. As the business landscape continues to evolve,
commercial lawyers must stay informed about changes in both national and international
legal frameworks to ensure their clients remain compliant and their commercial
interests are protected.
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