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Having scrolled online to read my daily news articles, I chanced upon a petition being gathered by some students of the University of Ghana, Messrs Sampson Tagbor and Kojo Danquah.
In the said news articles (published by several news outlets including ghanaweb, peacefmonline), there seemed to be the suggestion of a breach on the part of the University of Ghana due to her inability to deliver her part of the bargain in delivering some essential services which became part of the fee items of the student in the second semester of the 2019/2020 academic year.
This debate raises a serious question for consideration not just on the university of Ghana but on all other universities and schools whose activities have been impeded by the pandemic.
Is/are schools in Ghana in breach of their fundamental duty of their inability to provide these services to their students or pupils due to the corona virus pandemic?
Can this have supposed breach lead to the awarding of compensatory remedies (damages) or some equitable remedies to the affected students?
I must say that this corona virus pandemic opened a pandora box on legal discourse in Ghana and the world. There have been webinars that have been organised by the faculties of law of the University of Ghana, GIMPA entitled “Law in crisis” and the “Law and ethics series” respectively which have sought to bring light and suggest possibilities on the application of the law and some matters of interpretation in this season.
The webinars have sought to provide cogent legal arguments on subjects such as how the state could be managed if an election on December 7 was not a possibility howbeit the finality to these matters are in the hands of a court of competent jurisdiction.
Another box, I think has been opened stemming from the petition started by these two zealous students of Ghana’s prestigious maiden university Messrs Sampson Tagbor and Kojo Danquah to compel the university to refund in part the amount paid in fees by the student due to the school’s inability to deliver on their promises as a result of the Coronavirus pandemic.
I would offer to proffer some solutions based on my little knowledge of the law however, the finality of this matter would still be at the decision of a court of competent jurisdiction with the arguments from learned counsel from both sides of the dispute.
A contract can be simply defined as a set of promises enforceable at law. The American Restatement (Second) of Contracts (1981) defines a contract as a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognises as a duty.
Under contract law there are certain essential elements which must be present to make it valid: offer and acceptance, intention to create legal relations, capacity to contract and consideration.
The university as body corporate under contract law has the capacity to enter into contracts. Section 1 (2) of the University of Ghana Act of 1961, Act 79 establishes the university as a body corporate.
This same provision in the University of Ghana Act can be seen in other public universities Act like UCC Act, UEW Act, UPSA Act among others. This status assumes the university the powers to contract, sue and be sued in its own capacity among other things. The university as part of her activities made offer of admissions to their students whom upon acceptance by mirroring the terms of the contract, they became students of the university (usually payment of fees constitutes a valid acceptance of the offer of admission).
Also, all private schools (universities, colleges, SHS, Basic schools) are registered with the registrar general’s department under the now repeals Companies Act of 1963, Act 179 and assumes the status of legal personalities upon incorporation and can thus enter into valid contracts.
The universities and or schools enter into contractual agreements with the students for the provision of educational services to the student and in return the student also pays fees and fulfill other requirements like attendance to class sessions, passing of examinations among others.
The terms of the contract are usually spelt out in the admission letters issued by the university or school to the student upon admission. Compliance of the terms of the admission (contract) leads to both sides fulfilling their part of their obligation until the contract is fully discharged by either party under various circumstances.
The question still remains, under what circumstances will the university or schools be deemed to have breached their part of the bargain in providing educational and other services to their students or pupils as agreed upon and whether the said breach gave rise to some remedies to the aggrieved party(ies)?
Under the law of contracts, there is a doctrine called the doctrine of frustration which requires that where it is impossible for a contracting party to fulfill his part of the obligation due to certain circumstances unforeseeable to him, this would discharge the contract and free all parties from all obligations. Also, where after a contract has been made, unforeseen contingencies or events may occur through no fault of the parties which may make performance of the contract physically impossible or which may radically change the nature of the obligations under the contract (Dowuona-Hammond, 2016).
In (Davis Contractors ltd v. Fareham Urban District Council, 1956), the House of Lords of the UK held inter alia; thus a contract is said to be frustrated where an unforeseen or unexpected event occurs to make the performance of the contract impossible, illegal or radically different from the performance that was contemplated.
It can be reasonably inferred from the above that the contract between the university of Ghana and other schools have been frustrated. Further, the performance of the contract has been rendered radically different from the performance that was contemplated. In other words, the university resorted to an online platform for tuition which was still a performance of the contract just that it was radically different from what was agreed upon i.e. the classroom interaction.
Some contracts even have insertions of force majuere clauses which states that where it become impossible of either party to fulfill their part of the obligation due to “acts of God”, neither party would be in breach.
The question remains, can the COVID 19 pandemic be used as a basis to declare a contract frustrated? Could the COVID 19 pandemic be in the reasonable contemplation of the University of Ghana or schools during their offer of admission to the students?
I guess not!
The COVID 19 pandemic could be described as an unforeseen circumstance which has frustrated the contract of tuition and other services between schools and their pupils or students.
I would conclude by saying that the petitioners must show that indeed the supposed breach by the university is one that can be remedied by the reliefs they seek else they only open student leadership to ridicule at the management level. Petitions should not be made to be seen as a publicity stance to advance a course but rather an avenue to compel management to act by raising compelling arguments to buttress the points raised.
The petitioners may instead channel their energies in petitioning the President of Ghana to provide stimulus packages for universities and schools especially the private ones.
I conclude that neither the University of Ghana or any other school can be found in breach of their obligations with reference to the above.
References
Antiedu, T. B. (2019). Reading the Law. Pentecost Press Limited.
Davis Contractors ltd v. Fareham Urban District Council, AC 696 (House of Lords of the United Kingdom April 19, 1956).
Dowuona-Hammond, C. (2016). The Law of Contract in Ghana. Frontiers Printing & Publishing Limited.
Sampson A. Adjei
ampsadjei@gmail.com
The writer is a level 300 Bachelor of Laws student at the Wisconsin International University College, Ghana.
