PRESENTATION ON THE CHARTERED ACCOUNTANTS ACT, 1963 (ACT 170)

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1 PRESENTATION ON THE CHARTERED ACCOUNTANTS ACT, 1963 (ACT 170) Purpose of Act 170 The purpose of Act 170 is to establish an Institute of Chartered Accountants and to make provision for the conduct of examinations by the Institute and other matters connected with the accountancy profession. Such other matters are the establishment of the Council of the Institute, functions of the Council, officers of the Council, Regulations or restrictions on the practice, offences and penalties amongst others. Part 1. This part consists of 12 provisions which provides for the establishment of the Institute, membership of the institute, establishment of the Council, its membership and functions. Section 1 and 2 establishes the Institute of Chartered Accountants (Ghana) and incorporates it as a body corporate that can sue and be sued in its corporate name. It also has perpetual succession. What this means is that the Institute has an independent legal personality and even though it is a public body its legal advisor is not the Attorney- General. The Institute can commence legal action or defend any legal action in court in its own name and choose its own legal representation. Further the Institute can buy or sell or acquire any property in its own name without authorization from the Government. However as a public body the Institute is subject to the Public Procurement Act. All transactions entered into or executed for and on behalf of the Institute shall be done by any two council members and the seal of the institute shall be affixed on any document evidencing such transaction. E.g. a lease agreement (Indenture) Section 3 provides for the meetings of the membership of the Institute as stated in the first schedule of Act 170. Section 4 provides for the eligibility of a person to become a member of the Institute subject to section 14 Under Section 4(a) a person is eligible to become a member of the Institute if passes the qualifying examinations by the Institute completes practical training endorsed by the Council within a certain period. Under Section 4(b) a person who does not come within section 4 (a) but is a member of a professional accountancy body whose status the Council by Regulations recognizes to be equivalent to the institute is eligible to apply to the institute to be a member. If the application is granted such a person, subject to section 5 becomes a member of the institute but cannot use the title of Chartered Accountant (Ghana) unless and until he passes the qualifying exams of the institute. For e.g. members of ACCA who want to be members of ICA (Ghana) are entitled to apply to the Institute to become members. If the application is granted they will be members but cannot call themselves Chartered Accountants or write CA after their names (as provided by section 6) until they pass the Institutes qualification examination. They can however use any title that comes with the ACCA qualification.

2 Approval for eligibility may be subject to a condition that the person has undergone practical training or has acquired such practical training in accountancy as approved by the Council. Further even though an association may be recognized as equivalent to the Institute, the Council may declare that the members of such association are not eligible for membership of the Institute. Having regards to these discretionary powers of the Council, the description of the required standard of practical experience as well as the grounds or reasons for refusing eligibility for membership to such persons must be provided expressly in the Regulations or Legislative Instrument which section 24 requires the Council to make. This Regulation must be made available or accessible to everyone who is interested. Failing this any such exercise of such discretion may be arbitrary and sin against principles of administrative law which states that exercise of discretionary powers by administrative bodies must be fair. Fairness includes transparency and accesses to information that will enable a person make an informed decision. Section 5 provides for the payment of fees to be qualified to be enrolled as a member of the Institute. The import of this section is that eligibility does not automatically make a person an enrolled member of the Institute. The person must first pay an entrance fee and an annual subscription. Therefore a member of the Institute in good standing is the one whose name is enrolled. Section 7 establishes the governing body of the Institute as the Council which is made up of 11 members. 4 of the council members shall be nominated by the Minister for Education in charge of tertiary education. Apart from this 4 the remaining 7 of whom 4 shall be accountants in active practice shall be elected by the members of the Institute at a general meeting. The Council members will elect two of themselves as President and vice-president respectively. The Council could exercise their powers only after the President of Ghana by instrument appoints a day on which they shall start. This was done in Under section 8 the tenure of office of each council member is two years. Vacation of office may occur by: Written notice by the member to the Minister of Education; Death of the member; and Effluxion of time i.e. expiration of the two years. Where the member who vacates office was appointed by the Minister, the replacement shall be made by the Minister. Where the member was elected by members in general meeting the Council will co-opt another person until general meeting elects the replacement in the next annual general meeting. Only members who serve the full term of two years shall be eligible for re-appointment or re-election. Section 9: It is the function and duty of the Council to administer and manage the Institute in accordance with the provisions of Act 170. Such duties include provision and maintenance of a library of books related to accountancy, encourage research in accountancy, supervise and regulate the engagement, training and transfer of articled

3 clerks, prescribe curriculum for the training of chartered accountants and conduct qualifying examinations for membership of the Institute and provide and maintain a register of chartered accountants and practicing accountants. Section 10: The Council may appoint a secretary and such other officers and employees to assist them in the day-to-day administration of the Institute. The Act is silent as to whether this secretary is Secretary to the Council or an Executive Secretary. There is a clear ambiguity in the provision. This may be clarified by an amendment by Parliament or interpretation. At present the position of the Chief Executive Officer of the Institute can be safely placed under such other officers as provided by section 10. However when you consider the purpose for which the secretary and other officers are to be appointed coupled with the fact that the position of the secretary was specifically mentioned, it seems the true meaning of secretary in section 10 is the Chief Executive Officer who will assist the Council in the day-to-day administration of the Institute. After all the Council meets at least once in each month so it will need someone to see to the day-to-day administration of the Institute. Section 11: The activities of the Institute shall be funded by contributions from members and grantsin-aid from Government. The Council shall have authority to borrow money at an interest for the purposes of the Institute. The Council also has power to invest the Institutes moneys in government bonds or other safe securities determined by the Council. The accounts of the Institute shall be audited by a member who is a chartered accountant but not a Council member. Such auditor shall be appointed yearly by AGM and the audited accounts shall be approved at the AGM. Section 12: Meetings of the Council shall be at least once each month at a time and venue determined by them. This means the Council can decide to meet more than once each month but cannot decide not to meet at all in a month. Five members, excluding the President or Vice, may by written notice to the secretary call for a meeting of Council. The President or Vice alone may also by written request call for a meeting of the council at any time. All notices shall be served on all the Council members within 7 clear days before the meeting unless the meeting is certified by the President or Vice to be an emergency then the notice shall be one clear day. If it turns out that in fact there is no emergency, the meeting shall not be invalidated. Also if a council member does not receive the notice it shall not invalidate the meeting. In any case the notice must contain the agenda for the meeting. The President or in his absence the Vice shall preside at all meetings. In their absence any member present at the meeting shall be elected by the members present to preside. Meetings may be adjourned to a different time or place at the instance of the person presiding but subject to the consent of the members present. Only the unfinished business or agenda at the previous meeting can be discussed at the adjourned date. In view of this no notice of the adjourned meeting needs to be given unless so agreed by resolution of members present. Minutes containing all resolutions and proceedings of any Council meetings which is duly signed by the person presiding shall be proper and be deemed a correct representation of what transpired at the said meeting.

4 PART II Part II contains only 1 provision: Section 13 This section defines who a Practising Accountant is as opposed to a Chartered Accountant. According to this section Practising Accountants must also be registered as such by the Council upon payment of fees. A person registered as such is entitled to use the title PA as opposed to CA. The import of this section is that it is not only Chartered Accountants who are members of the Institute but also Practising Accountants. PART III This part contains eight sections and is one of the most important Parts of Act 170. The reason is that it deals with qualifications and restrictions of the Accountancy profession. Section 14 This section provides for the general disqualification conditions. According to section 14 a person may be eligible to become a member of the Institute but such a person will not be qualified to be enrolled as a member of the Institute if: He is less than 21 years old; He has not paid the prescribed fees; A Superior Court has through a judicial process declared the person as insane; He has been judicially convicted for the offence of dishonesty and fraud like embezzlement, stealing, misappropriation of funds, bribery, e.t.c.; A judgment of a court declares that the person is unable to pay his debts as and when they fall due i.e. insolvent or bankrupt. The bankruptcy must occur through the doing or fault of the person, like mismanaging his finances, and not through unforeseen calamities or natural causes. Section 15 According to this section the name of any member of the Institute or registration of any Practising Accountant will be struck off or cancelled, as the case may be, from the Register by the Council if the affected person becomes insane or a convicted criminal for the offence of stealing, embezzlement or misappropriation of monies, e.t.c Further if a member or a Practicing Accountant fails to pay the prescribed fees for more than 4months his name or registration, as the case may be, will be struck off the register. Also where the Council after a disciplinary hearing under section 16 is satisfied that a chartered Accountant or Practicing Accountant is guilty of professional misconduct, such a persons name or registration may be struck off or cancelled respectively for a period of time or permanently. However the name or registration may be restored if the Council is satisfied that the person is now fit to practice the profession. Section 16 The Council is the final disciplinary authority. It has the power to appoint a disciplinary committee to investigate, upon a complaint or any instance of an alleged professional misconduct by any chartered or practicing accountant. In other words the Council is not limited to investigating only formal complaints of professional misconduct but can also on its own volition investigate any instance of such allegation. Further the Council can decide not to appoint any disciplinary committee but will itself hold the inquiry into the conduct of the affected person.

5 The procedure to be followed by the Disciplinary committee is provided under the third schedule. Section 17 As a means of punishment the Council has power under this section to suspend a Chartered Accountant or suspend the registration of the practicing accountant for a period of time instead of striking off the name or registration. Section 18 A person whose name or registration is struck off by the Council as a result of disciplinary proceedings and is not satisfied with the decision can appeal within 3 months by way of a petition to the High Court. Failure to file the petition within the stated period will render the petition out of time. The petition must be in writing. Section 19 This section defines and gives the scope of professional misconduct as any act stated in the 4 th schedule to Act 170. Sections 20 and 21 These two sections impose restrictions on the practice of accountancy by Chartered and Practising accountants. No person who is not a member of the Institute or registered by the Institute as a Practising accountant can carry on the practice of accountancy. Every Chartered or Practising Accountant must be certified as such by the Council. Certification is valid for a year and is based upon the payment of annual fees. A person recognized by Act 170 as a Chartered Accountant can use that title. However a Firm of Accountants whose partners are all members of the Institute as Chartered Accountants can title the Firm as Chartered Accountants. The same applies for Practising Accountants. PART IV This part contains six sections. Section 22 It is a criminal offence for anyone to contravene any of the provision of Act 170. For instance if a person who is not a Chartered Accountant uses such a title the person commits a criminal offence and upon conviction by a court he is liable to suffer imprisonment for not more than one year or to a fine or to both. Also if a Council member vacates office without a written notice he commits an offence. Section 23 According to this section where and how an accountant receives his remuneration determines whether he is deemed to practice as an accountant. Thus an accountant who is a salaried worker for Government or other employers is not deemed to be a practitioner even though he does some or all the work done by practitioners. In other words an accountant in practice is one who works in an accounting firm.