This
area of corporate practice deals generally with the way and manner a company is
controlled and directed so as to achieve its objectives. The persons in the
affairs of management are expected to be accountable.
COMPANY
SECRETARY
STATUTES:
Section 293-298 of CAMA.
POSER:
SHOULD A COMPANY HAVE A SECRETARY?
Yes,
by virtue of Section 293(1) of CAMA; Every company shall have a company.
A
person can be a Secretary and a Director at the same time but acts required to
be done by a Director and the Secretary must be done by two separate persons.
In other words; whenever the law stipulates that a document should be signed by
a director and secretary, such document cannot be signed by the same person who
is a director and secretary. See SECTION
294 CAMA
LEGAL STATUS OF A
COMPANY SECRETARY
IN PANORAMA
DEVELOPMENT( GUILDFORD) LIMITED V FIDELIS FURNISHING FABRICS LIMITED: Lord Denning M.R explained the
status of a company secretary;
‘’Time have changed. A
company Secretary is a much important person nowadays than he was in 1887. He
is an officer of the company with extensive duties and responsibilities. This
appears not only in Modern companies Acts but also by the role which he plays
in the day-to-day business of the companies. He is no longer a mere clerk. He
regularly makes representation on behalf of the company and enters into
contracts on its behalf which comes within the day-to-day running of the
company’s business. So much that he may be regarded and held out as having
authority to do such things on behalf of the company”……
However,
please take note that despite the legal status of a Company Secretary, he
cannot without the authority of the board exercise any power vested in the
Directors. SECTION 298(2) CAMA
QUALIFICATION OF A
COMPANY SECRETARY (SECTION 295 CAMA)
IN A PRIVATE
COMPANY
Any
person who appears to have a requisite KNOWLEDGE and SKILL to discharge the
functions of a secretary of a company
IN
A PUBLIC COMPANY
a) Chartered
Secretary
b)
Legal
Practitioner
c)
Chartered Accountant
d)
A
person who is 3 years as Secretary of a public company within the last 5 years
immediately preceding his appointment
e)
A
company or firm of a-e
APPOINTMENT/ REMOVAL OF A COMPANY
SECRETARY (SECTION 296)
He
can be appointed and removed by the Directors
N.B:
The first Secretary is named in FORM 2.1 (Particular of Secretary) delivered
with the Memorandum and Article of Association for registration.
PROCEDURE FOR APPOINTMENT OF A
COMPANY SECRETARY
Company secretary is appointed by the
directors and this is usually done by resolution. The resolution appointing the
company secretary may also require that he signs service agreement with the
company.
N.B:
REFER TO BAHDMUS ON THE DRAFTING OF RESOLUTION FOR APPOINTMENT AND AGREEMENT FOR
THE ENGAGEMENT OF A SECRETARY (PAGE 347-348)
Thereafter,
the company will notify the CAC
within 14 days of his appointment.
His
particulars will be entered in the Register of Directors and Secretary (SECTION 292 CAMA)
The
register shall contain in case of an Individual, his present forename, and
surname, and his usual residential address; and in case of a corporation its
registered name and registered or head office.
PROCEDURE FOR REMOVAL OF PUBLIC
COMPANY SECRETARY
N.B: HIS REMOVAL IS BY RESOLUTION
STEP
1: The Board of directors shall give him a notice stating that
a) Stating that it is intended to
remove him
b) Setting out the grounds on which
it is intended to remove him
c) Giving him a period not less than
7 working days within which
to make his defense and
d) Giving him an option to resign
his office within a period of 7
working days
STEP
2: After the expiration of the 7 days’ Notice, if he does not resign or make a defense,
the Board may remove him from office and report to the Next General Meeting
STEP
3: Where the secretary, without resigning his office makes a defense and the
board does not consider it sufficient, if the ground on which it is intended to
remove him:
a) Is that of fraud or serious
misconduct, the Board may remove him from office and shall report to the Next General
Meeting and
b) Is other than of fraud or serious
misconduct, the board shall not remove him without the approval of the general
meeting, but may suspend him and shall report to the Next General Meeting.
STEP
4: If he is removed at the General Meeting following the suspension, the
effective date of his removal is determined by the General Meeting
STEP
5: Within 14 days after the removal
or resignation, the company must notify CAC of such removal or resignation in
the prescribed form (CAC 2.1) and enter the details in the Register of
Directors and Secretaries.
(N.B:
CAMA did not use steps, I arranged it like this for proper understanding)
Consequently,
a Company Secretary may resign by NOTICE
IN WRITING TO THE COMPANY
DUTIES OF A COMPANY
SECRETARY
GENERAL RULE: Ordinarily a company secretary does not owe a
fiduciary duties to the company. However, when he acts as agents of the company
he shall owe fiduciary duties to the company. Thus he wul be liable to the
company where;
a)
Makes
secret profit
b)
Let
his duties conflict with his personal interest or
c)
Uses
confidential information he obtain from the company for his own benefit. SECTION 297 CAMA
By
virtue of SECTION 298 of CAMA, his duties were stated to include;
a) Attending the meetings of the company,
the board of directors and its committees
b) Rendering all necessary
secretarial services in respect of the meeting
c) Advising on compliance by the
meetings with the applicable rules and regulations
d) Maintaining the Register and
other records required to be maintained by the company under this act
e) Rendering proper returns and
giving notification to the commission required under this Act
f) Carrying out such administrative
and other secretarial duties as directed by the director or the company.
FOR
THE purpose of Bar Part 2 you should add more but first list these ones before
adding.
REQUIREMENT FOR FILING NOTICE OF APPOINTMENT/
CHANGE OF SECRETARY
By
virtue of Regulation 39 of Companies Regulations, 2012, they include;
a) Resolution of Board of Directors
of the Company signed by two directors
b) Duly completed form for
particulars of persons who is secretary of a company
c) Updated annual return filing
d) Updated Section 553 filing where applicable
and
e) Payment of fees.
The
regulation further provides that the Notice of appointment or change of
Secretary shall be filed with the commission within 14 days of the passing of the resolution.
STATUTORY RETURNS/ FILING
N.B FOR MCQ, I WILL
ARRANGE IT BASED ON THE NUMBER OF DAYS
7 DAYS
a) Consummation of Merger.
b) Registration of Appointment of a
receiver or Manager. Section 206
14 DAYS
a)
Return
on Auditors. Section 357, 362(2)
b)
Returns
during Receivership. Section 392
c)
Notice
of change of directors and secretaries. Section 292(4)
d)
Court
Orders. Section 46(9), 53(3) 90(4)
e)
Copy
upon dissolution of company. Section 544(2)
f)
Notice
of Appointment of Liquidator. Section 491
g)
Notice
of Resolution to wind up voluntarily. Section 458
15 DAYS
a) Filing of Special Resolution.
Section 237
b) Notice of Increase in Share
Capital. Section 102
c) Alteration of Objects by Special
Resolution. Section 46 (7)(b)
1 MONTH
a)
Return
of Allotments. Section 129
b)
Returns
on Alteration of Share capital. Section 101
42 DAYS
a)
Annual
Returns. Section 370
90 DAYS
a)
Registration
of Charges. Section 197
TO BE CONTINUED (DIRECTOR)...........
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