A CRITICAL ANALYSIS OF CORPORATE SECRETARIAL PRACTICE IN NIGERIA
IMABIBO, IWORI ANDY
BEING A PROJECT SUBMITTED TO THE FACULTY OF LAW,
DEPARTMENT OF BUSINESS LAW. IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B) DEGREE OF THE
RIVERS STATE UNIVERSITY OF SCIENCE AND
WOSU EMMANUEL M. (ESQ)
I, IMABIBO, IWORI ANDY, with Matric No. De: 2008/1902, do hereby declare that this research work was carried out by me. It is therefore an original work of my effort.
IMABIBO, IWORI ANDY DATE
This is to certify that this project work was deligently and successfully carried out by IMABIBO, IWORI ANDY of the Department of Business Law with Matric No. DE. 2008/1902 under the erudite supervision of Barr. E. Wosu of the Faculty of Law, Rivers State University of Science and Technology, Port Harcourt.
Imabibo, Iwori Andy
(Project Researcher) Signature Date
Barr. E. Wosu
(Project Supervisor) Signature Date
(Dean, Faculty of Law) Signature Date
External Examiner Signature Date
I dedicate this work to God Almighty, whose Grace was more than sufficient for me during the research.
My utmost gratitude goes to the Holy Spirit, for strengthening and quickening me.
To my loving Pastor, David Ibiyeomie, who never ceases to declare success in all I do, I say a big thank you.
To the best parents in the world, Mr. & Mrs. Imabibo, I.A., I say thank you for encouragements, prayers, and trust.
To my best friend, brother, in-law, Innocent D. Akeme, I say a big thanks to you for being the best.
To my “daughter” Ibiso Akeme, who always comes to my room to disturb me, I say thanks.
To Betsy, Lolo, Lami, Larry, and Jerry, words cannot express my gratitude, but I sincerely appreciate all your efforts towards my academic pursuit.
And to my Uncle, Mr. Telima Adolphus, thank you very much. To my legal mentor and instructor, Blessings Vic-Jumbo (Esq.) thank you very much.
I remain greatly indebted to my supervisor, E. M. Wosu Esq. for trusting and directing me. You are the best, sir. God bless you.
Thanks to all my friends, we made it.
TABLE OF CONTENT
Title page i
Acknowledgements v Table of contents vi
Table of Cases viii
Table of Statutes x
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background of the study 1
1.2 Statement of the Problem 6
1.3 Aims and Objectives 9
CHAPTER TWO: PRELIMINARIES OF COMPANY LAW
2.1 Introduction 11
2.2 Meaning of Company 15
2.3 Structure of a Registered Company 22
2.4 Organs of a Registered Company 26
2.5 Conclusion 34
CHAPTER THREE: THE COMPANY SECRETARY
3.1 Meaning of a Company Secretary 41
3.2 Company Secretary under the Old
3.3 Company Secretary under the New
3.4 Appointment of a Company Secretary 48
3.5 Qualifications of a Company Secretary 50
3.6 Status of a Company Secretary 52
3.7 Removal of a Company Secretary 56
3.8 Conclusion 58
CHAPTER FOUR: DUTIES, POWERS AND LIABILITIES OF A COMPANY SECRETARY
4.0 Introduction 60
4.1 Duties of a Company Secretary 61
4.2 Nature of Secretaries’ Duties 65
4.3 Powers of a Company Secretary 67
4.4 Liabilities of Company Secretary 69
4.5 The role of a Company Secretary in Nigeria 71
4.6 Conclusion 74
CHAPTER FIVE: CONCLUSION AND RECOMMENDATION
5.1 Conclusion 76
5.2 Observation 79
5.3 Recommendations 81
TABLE OF CASES
1st of Wright V. Tahourdin (1883) 25 Ch.D 320
Adebesin V. May & Baker Nig. Ltd (1987) FRCR 232
Ashibogun V. Aforint Nigeria Ltd (1985)HCNLR 400
Automatic Self-Cleansing Filter Syndicate Co. V. Cunnighame (1906) 2 Ch. 34
Ayodeji V. Lagos City Council (1974) NCLR 299
Barnett Hoares & Co. V. South London Tramway’s Co. (1887)18 QBD 815
Bell V. Lever Bros. (1932) A.C 161
Daily Times (Nigeria) Plc v. Akindiji (1988)12 NIJIR 22
Daimler company Limited V. Continental Tyre company Limited (1916) 2AC. 307 @ 377
Edington V. Dumber Steam Laundry Coy. (1903)2 Ch. 431
Ferguson V. Wilson (1886)LR 2 Ch. 77 @ 89
Freeman V. Buckhurt (1964) ALL ER 630 @ 645
George White Church Limited V. Cavangh (1902) AC 117@ 124
Houghton & Company V. Northard, Love and Wills Limited (1928)ACI
Joint Stock Discount Co. V. Brown (1869)LRB Ex 376 @ 396
Ladejobi V. Odutola Holdings Ltd. (2002)3 NWLR (pt. 753)121
Lewis V. Bankole (1908)1 NLR 81,100-101
Migliore v. Metal construction (W.A) Ltd (1978) NCLR 274
Okeowo V. Migliore (1979)11 SC 138
Panorama Developments (Guildford) Ltd V. Fidelis Furnishing Fabrics Ltd (1971) 2 QB
Re Maidstone Building Provisions (1971)1 NLR 1085 @ 1092
Re Stanley (1906)1 Ch. 131 @ 134
Re State of Whoming Syndicate (1901)2 Ch. 431
Shaw and Sons (Salford) Ltd V. Shaw (1935)2 KB 113
Smith V. Anderson (1880) CH. D 247 $ 273
South London Greyhound Racesource Ltd V. Wake (1931)1 Ch. 496
Trenco V. African Real Estate Ltd (1987)1 LRN 146 @ 153
Trustees of Dartmouth College V. Woodward (1819), 17 US (4 Wheat)518 @ 636
Wimpey Limited V. Balogun (1986)3 NWLR (pt. 28)324 @ 337
TABLE OF STATUTES
Bubbles Act 1720
Chartered Companies Act 1837
Companies Act of 1844
Limited Liability Act 1855
Joint Stock Company Act of 1856
Joint Stock Banking Act of 1857 and 1858
Companies Act of 1862
Companies Act of 1908
Companies Ordinance of 1912
English companies Act of 1948
Companies Decree of 1968
Companies Act of 1968
Companies and Allied Matters Act, 1990
Companies and Allied Mattes Act, Cap C20, Laws of the Federation of Nigeria, 2004
Section 31 of the 1968 Companies Act
Section 1(1)(b) of the 1968 Companies Act
Section 293 of the companies and Allied Matters Act, Cap C20, LFN, 2004
Section 18 of the companies and Allied Matters Act, Cap C20, LFN, 2004
Section 38(2) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 22(3) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 21(1)(a)-(c) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 79(1)-(3) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 27 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 247 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 64 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 63(5) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 37 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 63C of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 63(1) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 65 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 290 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 93 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 336 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 367 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 260 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 69 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 296(1) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 69(c) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 296(2)(4) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 294 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 298(1) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 420 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 370 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 66 of the Companies and Allied Matters Act, Cap
C20, LFN, 2004
Section 298(2) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 297 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 280(5) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 538 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 129 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 292 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 87 of the Companies and Allied Matters Act, Cap
C20, LFN, 2004
Section 194 of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 293(1) of the Companies and Allied Matters Act, Cap C20, LFN, 2004
Section 190 of the 1963 Ghana Companies Code, Act 179
Section 176 of the 1963 Ghana Companies Code, Act 179
Section 107 of the 1963 Ghana Companies Code, Act 179 Section 215 of the 1963 Ghana Companies Code, Act 179
Section 196 of the 1963 Ghana Companies Code, Act 179
Section 32 of the 1963 Ghana Companies Code, Act 179
Irish companies Bill, 2012
LIST OF ABBREVIATION
ALL ER - All England Reports
CA - Court of Appeal
Ch - Chancery
Ch.D - Chancery Division
FRCR - Federal Revenue Court Report
HCNLR - High Court of Nigeria Law Reports
K.B - Kings Bench
LRN - Law Reports of Nigeria
NLR - Nigerian Law Reports
NCLR - Nigerian Commercial Law Reports
NWLR - Nigerian Weekly Law Reports
Q.B - Queens Bench
QBD - Queen’s Bench Division
SC - Selected Judgments of the Supreme Court of Nigeria
WLR - Weekly Law Reports
Before now, the position of a company secretary has been said to be that of a mere servant of the company having no power whatsoever. This position has however changed as a result of the seemingly necessity to a charge in the status of a company secretary. Globalization and its attendant changes has caused the company secretary to be accorded a new look much more better than the ordinary secretary he was ascribed. This work has looked at the meaning of a company secretary, who can be a company secretary, who can appoint a company secretary, the duties and powers of the company secretary, when the company secretary can be said to be liable for acts done by him, and how the company secretary can be removed. This work has revealed that the company secretary has enormous powers as a result of his new status and as such can bind the company by his acts. This work looked at what is operational in Ghana and the Irish nation. This work also revealed that the effectiveness of any company in Nigeria, or anywhere in the world, is a function of a qualified and efficient company secretary. Thus, the longevity or otherwise of any company is tied to the performance of the company secretary. The work further made observations and recommendations for the effectiveness of company secretary in present day demands.
1.1 Background to the Study
The indispensable role of the secretary in a company can be said to be the rationale behind the statutory provision to the effect that every company must have a secretary.
Globally, the company secretary has been said to be the chief administrative officer of the company. He has the duty of overseeing board processes and to ensure compliance to statutory provisions.
The company secretary is an adviser to the Board of Directors, compliance officer, and adviser in business relationships.
These roles and others put together, tend to raise the question of competence of the company secretary.
The company secretary is for all intents and purposes expected to be an experienced and exposed person. A person qualified enough to carry out the functions) of a company secretary efficiently and effectively. He must have a good understanding and working knowledge of his office if he must be proficient in his capacity. He must be one that is properly informed of happenings within and outside the company in order to keep up with changing times and trends, especially in this current electronic age. Amidst these, he must be able to assist in the corporate governance agenda, and promote the best practices essential for the achievement of set objectives of the board. Note that a company efficiency and continuity is a function of the proficiency of the secretary.
A company secretary has been defined as an officer of a company whose role will vary according to the nature of the company but will generally be concerned with the administrative duties imposed upon the company by the companies act (e.g delivering documents to the Companies Registry).
A company secretary acts in the administration of the affairs of the company and business of the board.
Note that though the compliance obligations of the company are placed upon the corporate entity, and its Directors and executives rather than the company secretary the burden of administering the company’s system for regulatory compliance is usually placed on a company’s secretary even where some other person has the primary responsibility to manage such obligations. The company secretary is statutorily obliged not only to advise, but to also ensure compliance.
Traditionally, the secretary’s functions are purely ministerial and administrative. In Re Maidstone Buildings Provisions it was stated that the secretary is not charged with the exercise of any managerial powers. This view must have flowed from the decision of the court in the case of Barnett, Hoares and Co V. South London Tramways Co. where Lord Esther M.R. said; “A secretary is a mere servant, his position is that he is to do what he is told, and no person can assume that he has any authority to represent anything at all…”
It would appear that the views of Lord Esther M.R. on the position of the company secretary as expressed above, is now outdated. The modern view is that the company secretary has ostensible authority and power to bind the company.
The Panorama Development case is generally acknowledged to be an important factor of the changing role of the company Secretary.
In order to facilitate effective functioning of the Board towards policy matters and oversight of management, the company secretary also has a vital role of promoting good relationship with the major factors in the Board. This is to be able to understand and relate to the differing perspectives of independent directors, executive directors, and other sponsor directors.
It must be borne in mind that the Board is composed of different groups having different perspectives, and it is these that the company secretary has to contend with.
Thus, this work will take a critical look at the role of company secretary and to bring to light the challenges facing the corporate secretary.
1.2 STATEMENT OF PROBLEM
It is true that the secretary cannot control the flow of information into the Board. The secretary cannot also decide for the board what best to do. The secretary is the administrative head, not having managerial powers. The powers of the secretary are mainly limited to administrative functions.
However, even though the secretary cannot control the flow of information into the board, it is within his powers and duties to advice the Board on the information that flow.
In modern times, a secretary has been affixed with a dual personality. The secretary is both the secretary of the company, as well as the legal adviser of the company.
This has however been argued on both divides while some commentators are in support of it, others are not in support.
Those in support of the company having a secretary who is also the legal adviser of the company are of the view that since he is the compliance officer, it is presumed he/she is one having competent knowledge in law, and should be in a better position to advise the Board on the usefulness of obeying statutory procedures and requirements, and bringing to their notice the adverse effect of non-compliance of same.
Other commentators argue that to ensure adequate objectivity, it is best to separate the functions of the company secretary. Where a company’s secretary is also the legal adviser, his advice might be bias at some point. He needs to be neutral in all, if he is to be able to advise properly.
We have stated earlier that the office of the secretary is a very sensitive one, and it is this sensitive nature that has made the continuity of a company to be rested on the secretary. Thus, the continuity of every company is largely determined by the efficiency of the company secretary.
This work will therefore be asking certain questions like:
1. How has the company secretary faired in the face of globalization?
2. Is the company secretary still held to be a mere servant, or has such view been changed?
3. Has corporate governance codes been able to address the lapses found in the assignment of a company secretary?
4. What is the attitude of the company secretary towards challenges facing the office in this 21st century?
These questions will be the reference point to this research work.
1.3 AIM AND OBJECTIVES
The aim of this work is to examine critically the role of the corporate secretary in contemporary Nigeria.
To achieve this, we shall specifically address certain objectives;
1) To define the concept of corporate entity, corporate governance and corporate secretary;
2) To identify the duties, powers and liabilities of a corporate secretary;
3) To identify the limits of the corporate secretary;
4) To highlight the roles of a corporate secretary;
5) To examine the effect of the challenges facing the corporate secretary;
6) To highlight salient points in the statutory provisions relating to the office of the corporate secretary and raise queries thereto that will stimulate further study.
These and many more would be answered in the course of this research.
PRELIMINARIES OF COMPANY LAW
The idea of pooling resources together for the purpose of making profit is not alien to the Nigerian society.
In the ancient times, traders, farmers, fishers, etc all come together in their different trades to pool resources together just for the purpose of acquiring more profit at the end of the day which will be shared amongst the members.
We also had social clubs, age, grades, etc. In the typical traditional setting where dues were paid and lending carried out with interest. All these go to reveal that what is today termed company law, is only a modification of a purely traditional setting, and as such cannot be purely attributed a western construct.
The earliest forms of what we today know as companies were the commenda, an arrangement under which the liability of investors was limited to the amounts they contributed. They had no other interest or control over the venture. Expectedly, it was not a long lasting form of trading as new form of association called sociatas was developed by traders in Rome. It was this new form that laid the foundation of the principle of the distinct personality of companies, as it conferred legal rights and duties on individual members.
The development of trading associations soon spread to England from where the development of modern companies and company law in Nigeria took their roots due to the historical/colonial connections between England and Nigeria.
The first type was the medieval guilds. A guild was a company formed by charter from the British crown for the regulation of trading activities in a selected town or towns to which it was restricted.
With the development of international trade, it became convenient for several persons to pool resources together for a single venture organized by the company. Profits were shared at the end of each international trade journey according to each member’s contribution. These came to be known as joint stock companies as there was no individual trading again but the pooling of resources into a common venture. This led to the concept of regulated companies.
Several Acts have heralded the present regime of company law. We had the Bubbles Act that was repealed in 1825, the 1837 Chartered Companies Act, the companies Act of 1844, the Limited Liability Act, 1855, the Joint Stock Company Act of 1856, the Joint Stock Banking Act of 1857 and 1858, and the 1862 Companies Act which was a consolidating Act. After that came the companies Act of 1908.
In Nigeria, before the enactment of the companies’ ordinance of 1912, only foreign companies did business in Nigeria. However, the doing of business by way of more or less informal partnership was not alien to pre-colonial Nigerian, as was held by Osborne CJ in Lewis V. Bankole. The customary laws of those societies that now made up post-colonial Nigeria definitely had rules and principles by which such relationships and business were conducted or regulated in the manner at the time.
Between the periods of 1912-1963 several revolutions were witnessed in the Nigerian company law. Then the companies Decree, 1968 was enacted based on the English Companies Act, 1948. It was later called the companies Act, 1968 after the emergence of civilian rule.
This Act required all foreign companies operating in Nigeria to be registered as Nigerian companies, and also granted legal personality to companies registered pursuant to the Act. By legal personality, the company was a distinct person from its shareholders. Today, what we have operational is the Companies and Allied Matters Act, 1990, which is the basic law for all companies transactions and incorporations.
2.2 MEANING OF COMPANY
The onerous and unrealistic attempts in defining concepts in law are no longer alien to the legal community.
The word “company” is one which has encountered several difficulties in trying to get defined. There is no general acceptable definition of “company” i.e even in its strict legal sense.
Practically, all the definitions so far preferred have one deficiency or the other when held up to academic scrutiny. For any definition to satisfy academic exegesis, it will most likely be out of tune with marketplace realities, whilst a definition that emphasizes the practical is sure to be subject to multitudes of deficiencies from the academic view point. Per Buckly, J in Re Stanley “the word company has no strict legal meaning”.
The Companies and Allied Matters Act Provides that a “company” or “existing company” is a company formed and registered under the Act or, as the case may be, formed or registered in Nigeria before and in existence on the commencement of the Act.
Another practical definition was offered by the encyclopedia of laws to the effect that it is “an organization formed and registered under the Act, or as the case may be, formed and registered in Nigeria before and in existence under the Act”.
These two definitions are insufficient in indicating what a company really is. By stating that registration under the Act is the identity of a company is suggestive of the fact that registered business names, partnerships, etc are all companies. This is absolutely not the law, and can never be said to be the intention of the draftsman.
Halsbury’s Laws of England defines a company as “a collection of individuals united into one body under a special denomination having a perpetual succession under an artificial form and vested under the law with capacity of acting in special respects as an individual particularly capable of giving and being sued and of enjoying immunities and privileges in common and exercising a variety of political rights more or less extensive according to the desire of the constitution or power conferred upon if either at the time of its creation or other periods of its existence”.
This definition is also with deficiencies.
First, a company is not necessarily a collection of individuals as the Act provides that even two persons can incorporate a company. Also, there are countries where just one person can legally incorporate a company. In Nigeria, a person could own all the shares of the company, and the second person just a very minute percentage of the shares of the company just to fulfill the requirements of at least two persons. But in practical terms, just one person directs the affairs of the company. Thus, it is not necessarily a collection of individuals as posited by Halsbury’s laws of England.
Second, companies could be incorporated just for the purpose of carrying out a particular task, and after such task(s) is completed, such company seizes to operate. Also, there are companies that are floated to run for a particular number of years.
Thus, perpetual succession is also not a good qualifier for what a company really is.
Lastly, it is criminal for any company to get involved in any way with politics. The Act prohibits such.
James L.J in Smith V. Anderson defined a company as “an association of many persons who contribute money or its worth to a common stock and employ it for common purpose”. For employing the phrase ‘many persons”, this definition fails like that of Halsbury’s laws of England to reflect the fact that less than many persons (for even one now) can constitute a company. It also fails to make a distinction between companies and other associations in which persons contribute money or its worth (by way of subscription for instance) for common purposes.
The Black’s Law Dictionary defined a company as “A corporation-or, less commonly, an association, partnership, or union-that carries on a commercial or industrial enterprise”. This definition also employed “an association”, which has been greatly criticized in other definitions. Also, not all companies are for commercial purpose(s).
The Principles of Modern Company Law stated that “the word company has no strict legal meaning”.
It is clear that in legal theory (though not as we have seen, always in economic reality), the term implies an association of a number of people for some common object(s).
In common parlance, the word “company” is normally reserved for those associated for economic purpose, i.e. to vary on a business for gain.
It is obvious from the foregoing that there is no single accepted definition of the word “company”. It therefore behooves on legal scholars not to give up the struggle in getting a definition that will satisfy legality and reality. However, at this point, I must state categorically that paying much attention to the formulation of a perfect definition of “company” is not worth much a while. It is more beneficial to concentrate on the economic realities and implications of a company in the practical market place where it operates.
2.3 STRUCTURE OF A REGISTERED COMPANY
When we talk of the structure of a registered company, we simply refer to the way the company is put together. It would thus lead us into issues such as the classification of companies, membership of companies, Memorandum, and Articles of Association.
The repealed companies Act, 1968 broadly divided companies into public and private. While a public company was expected to have at least seven members, a private company was expected to have at least two members but not exceeding fifty members. It must be pointed out here that there was no such limitation on the membership of a public company. Thus a public company could have as much members as available, but such members must not be less than seven.
Under the current dispensation there is only a provision for membership of a private company. No such provision was made for a public company. It therefore means that the provision of the 1968 Act is still valid.
However, innovative classifications were birthed by the current Act.
1) Company limited by shares
2) Company limited by Guarantee and
3) Unlimited company
Both a company limited by shares and an unlimited company are all expected to have share capitals. Only a company limited by Guarantee is excluded from having a share capital.
According to the Act, the subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members. Also, every other person who agrees in writing to become a member of company, and whose name is entered in its register of members, shall be a member of the company. In the case of a company having a share capital, each member shall be a shareholder of the company and shall hold at least one share.
No discussion on the structure of a company will be complete without a mention of the Memorandum of Association, and the Articles of Association of a company.
The memorandum of Association is what contains the company itself. That is to say, it is a document that states the name of the company, state if the company is private or public, limited by shares or guarantee nature of business, etc. The Articles of Association on the other hand deals with the internal affairs of the company. It regulates the rights of the members and sets the manner in which the company’s affairs are to be conducted.
Thus, the memorandum of Association and the articles of association are the basic instruments to which the company owes its existence as a corporate body, and on which depends its capacity and duties as a legal person.
It therefore, means that any discuss on the structure of a company cannot be accurate enough without a mention of the memorandum of association and the articles of association of a company since they are both documents from which a company draws life from and would by extension be the best reference point as to the structure of the company.
2.4 ORGANS OF A REGISTERED COMPANY
A company being an artificial person, an abstraction must act through human agents. So, where it is alleged that a company did an act, it means that the company did the act through its human agents or servants.
A company has primary organs, namely; the members in general meetings, and the Directors, and it generally acts through these organs.
In practice, the initial constitution of the company will provide for the appointment of a board of directors and expressly delegate all powers of management to them, and they in turn are generally empowered to sub-delegate to a committee or managing director. In such circumstances, the theory seems to be that the company, as such as in its constitution, appointed its agents and clothed them with authority; the act which gives birth to the company operates as an appointment and delegation by the company.
It will be observed that authority to exercise the company’s powers is delegated not to the members, nor even to the individual directors but only to the directors as a board although it may, as we shall see, be sub-delegated by the board to individual managing directors and to other officers.
Thus, while the members in general meeting is the supreme legislative authority of the company, the directors are subject to the articles, vested with the power of managing the company on behalf of the shareholders. The directors are not mere agents of the company to carry out its wishes as was formerly thought but are entitled to manage the company in accordance with the power vested in them.
As professor Gower said,
“… both the members in general meeting and the board are organs, rather than agents of the company” and “both the members in general meeting and the board may be the company; the former when acting under the reserved powers the latter when acting under an express or general delegation.” Even at common law, there have been exceptional circumstances when the members in general meeting may, in the overall interest of the effective operation of the company, exercise the power which the board should exercise but failed to exercise or become incapable of exercising. This principle has now been enacted in Section 63(5) of the Act”.
DIVISION OF POWERS BETWEEN THE GENERAL MEETING AND THE BOARD
Until at least the end of the nineteenth century, it seems to have been generally assumed that the principle remained intact that the general meeting was the company whereas the directors were merely the agents of the company subject to the control of the company in general meeting.
In 1906 however, the court of Appeal made it clear that the division of powers between the board and the members in general meeting depended in the case of registered companies entirely on the construction of the articles of association and that where powers had been vested in the board, the general meeting could not interfere with their exercise.
The provisions of subsections (3) and (5) of the Section 63 of the Act came up for interpretation by the court of Appeal in Ladejobi V. Odutola Holdings Ltd. In that case, one of the issues for consideration in the court of Appeal was who as between the Board of Directors and the members in general meeting, had the power to authorize the company to commence action in the court in the light of Section. 63 of the Act. Aderemi, JCA held “…in construing the whole of Section 63 of CAMA, the irresistible conclusion is that the powers of management or control of the company in so far as they affect the institution of litigation in the company’s name are vested in the general meeting.
In a parliamentary democracy such as ours, legislative sovereignty vests with parliament, while administration is left to the executive government, subject to a measure of control by parliament through its power to force a change of government. It is much the same with a company, except, or course, that a company is not sovereign but has limited competence only. Within these limits, supreme rule-making authority rests with a general meeting of the members. Note however that the act of the members in general meeting, the Board of Directors, or of a managing director while carrying on in the usual way the business of the company itself, is treated as the act of the company as they are the primary organs of the company.
These are the primary organs of a company and their acts in the ordinary course of business of the company are termed the acts of the company. On the other hand, there is increasing recognition of the status of management and secretariat. In many modern statutes, particularly in revenue matters a clear distinction is drawn between “full-time service directors” and others. Similarly, the companies Act, 1948 recognizes that the secretary is an important official rather than a mere servant of the company.
These distinctions between the functions of members in general meeting board of directors, and management and secretariat must not be exaggerated. They are of importance only in the case of the public company or the larger private company. In the one or two-man private company the factual position will be the same as in a partnership, with the same few people exercising all these functions. In practice they will probably not clearly distinguish between their actions in their various capacities and normally this will not matter much.
One of the main problems facing company law is to provide an adequate system of checks and balances between the various organs. For the present, however, it is only necessary to point out that this division of functions between separate organs is one of the features which distinguishes a company from a partnership, and which enables the public company to fulfill its economic role.
As from the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forth with of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in the Act”a. By this, it means that upon incorporation, a company becomes a corporate entity distinct from its members, having powers as a human being, with such human attributes as name, address, occupation (nature of business), nationality, etc. It becomes a corporation. A corporation as defined by the Black’s Law Dictionary is “an entity having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely, a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists, indefinitely apart from them, and has the legal powers that its constitution gives it.
Marshall, J in the case of Trustees of Dartmouth College V. Woodward defined corporation thus: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law… it possesses only those properties which the charter of its creation confers upon it.”
Thus, upon incorporation, a company stands to enjoy certain benefits as well as suffer liabilities. Its distinct nature from its members has been one of the major attributes and advantage of a company.
Since a company is an artificial person, it acts through the instrumentality of its organs and human agents. Hence, in Ferguson V. Wilson, Cairns, L.J. stated that “the company cannot act in its own person, for it has no person”. In view of the above, the company acts through its organs and human agents, and it is the acts of its organs, carried out in the ordinary course of the business that binds the company.
Note that there are other officers of the company whose acts would not bind the company except when it is shown that they acted under an authority. Also, not all acts of the organs at all times that will bind the company. There are specific occurrences that will necessitate the lifting of the corporate veil to attach liability on those who are in default and would have ordinarily hid themselves under the corporate personality of the company. Thus, the company structure and organs determine the continuity and efficiency of the company.
In the next chapter, we shall be discussing in details, one of the determining factors of a company in terms of efficiency, continuity, and relevance.
THE COMPANY SECRETARY
It has been said in the previous chapter that the continuity of a company is dependent on the secretary.
The sensitive nature of the office of the company secretary necessitated the growth of regulation for the company secretary in the 19th century. This has become particularly important in recent years due to the increase in the volume of commercial activities and corporate entities. Thus, since a company is merely an artificial legal person, it means it can only act through its human agents, officers and organs:
“…a company, although having a corporate personality is deemed to have human personality through its officers and agents”
A company is a mere abstraction, without a mind or body of its own. Accordingly, its acting and directing will must be sought in the person of human beings of whom the company secretary is one of the most important. In spite of the fact that the company secretary is not part of management, and was hardly ever acknowledged as a principal officer of the company until recently, the law makes it mandatory for every registered company to have a secretary. Unfortunately, the company secretary is still being confused with the ordinary conventional stenographic secretary littered in Nigeria.
The company secretary has not only graduated as an organ of the company, but is now an officer of the company giving substantial authority in the administrative sphere, with powers and duties derived directly from statute.
In recent times, the company secretary has been awarded the office of the legal adviser. Thus, having a dual capacity which even makes him more indispensable. He therefore advices on matters within and without the company whilst still functioning as the secretary.
The inefficiency of the company before the 19th century led to the evolution of new regulations which heralded the new status of a company secretary as an officer of the company having ostensible power to bind the company, as against a mere servant which he was seen as in the 19thcentury. Being an officer of the company with extensive authority especially in the administrative sphere, there is the need to properly scrutinize the position of the company secretary.
Thus, in this chapter, I shall be looking at who a company secretary is, and the position of the company secretary in the company.
3.1 MEANING OF A COMPANY SECRETARY
Etymologically, the word secretary has been a matter of controversy. According to Mr. Webster in his renowned lexicon emphatically expresses that the word secretary has been derived from the Latin word, ‘secretarius’ denting a person entrusted with confidential correspondence. Dr. Samuel Johnson asserts that it has been originated from the French nomenclature ‘secret’ signifying a person who acts behind the curtain.
According to Black’s Law Dictionary, a secretary is defined as a corporate officer in charge of the official correspondence, minutes of board meetings and records of stock, ownership and transfer and they are also termed as the clerk of the corporation.
A company secretary is regarded as an organ of the company and a higher managerial agent whose fraudulent act can be reported to the company in order to make it liable along with him for crimes arising out of fraud, and the falsification of documents and reforms.
Per Lord Esher M.R., “A secretary is a mere servant, his position is that he is to do what he is told and no person assume that he has any authority to represent it all…”
However, times have changed. A company secretary is a much more important person nowadays than he was in 1887. He is an officer of the company with extensive duties and responsibilities.
A secretary is thus an officer of the company having ostensible authority and powers to bind the company.
3.2 COMPANY SECRETARY UNDER THE OLD DISPENSATION
Before the 1968 Companies Act which was repealed by the present Companies and Allied Matters Act, it was left to the discretion of each company whether to have a company secretary or not.
Even where a company decided to appoint a secretary, no mandatory duties were assigned to him, due to the common law position that a secretary was a mere servant whose functions were merely clerical or ministerial and not concerned in carrying on the business of the company.
This was in line within the 1887 decision of Lord Esher in which he stated that a company secretary “is a mere servant his position is that he is to do what he is told to do and no person can assume that he has any authority to represent anything at all; nor can anyone assume that statements made by him are necessarily to be accepted as trustworthy without further enquiry.
In 1902, Lord MacNaghten described the duties of a company secretary as follows, “Now, the duties of a company secretary are well understood. They are of limited and of a somewhat humble character.”
It was held in (1916) that the secretary of a company was not an ‘official who in virtue officii can manage all its affairs with or without the help of servants, in the absence of a regular directorate. A secretary of course, had no authority to bind the company by contract. In 1928, a company director made a contract with a third party without any authority of the company, and the secretary to the company confirmed it on behalf of the company it was held that the company was not liable on the contract as the secretary had no power to bind the company.
The indignity with which the office of a company secretary was being treated has been described as follows: there is perhaps no other functionary in the corporate set-up who has suffered such a high degree of non-recognition by the common law as the secretary, even when his influence is felt in the Boardroom.
The old practice completely degraded the office of a company secretary. This position proved to be unrealistic judged from the enormous responsibilities of a company secretary in modern company practice, and a change was evolved.
3.3 COMPANY SECRETARY UNDER THE NEW DISPENSATION
The modern view was stated by Lord Denning in 1971 as follows:
“But times have changed. A company secretary is a much more 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 the modern companies Acts, but also by the role which he plays in the day-to-day business of companies. He is no longer a mere clerk. He regularly makes representations on behalf of the company and enters into contracts on its behalf which come within the day-to-day running of the company’s business, so much so that he may be regarded as held out having authority to do such things on behalf of the company. He is certainly entitled to sign contracts connected with the administrative side of the company’s affairs, such as employing staff, and ordering cars and so forth. All such matters come within the ostensible authority of a company’s secretary”.
Lord Salmon on the same case stated that the secretary is the chief administrative officer of the company.
A renowned author, Professor Gower, has also made some valuable input on the issue of the status of a secretary in modern corporate administration. As observed by him;
“It is arguable, therefore, that the secretary has also graduated as an organ of the company. Though appointed by the directors, he is not their servant but an officer of the company with substantial authority in the administrative sphere and with powers and duties derived directly from the Articles and the Companies Act. And in the performance of his statutory duties, he is clearly entitled to resist inference with the members, board of directors or managing director…”
The combined effects of Sections 260 and 69 is tantamount to a recognition by the Act that a company secretary in Nigeria is a principal officer of the company whose role in the smooth running of the company cannot be under-estimated, nor does it erode his influence in any way.
Above all, the Nigerian courts have repeatedly held that a company secretary is a senior administrative officer.
Thus, the status of a company secretary in modern times is not same with what it used to be before 1971.
3.4 APPOINTMENT OF A COMPANY SECRETARY
“The position of company secretary evolved with company practice and is now established by law. The appointment of a company secretary became mandatory for the first time in Nigeria through the instrumentality of section 169 of the companies Act of 1968”.
Thus, every company must have a secretary. He is appointed by the directors and the articles may provide for his term of office and the conditions of his appointment subject to the Act.
The Act provides that the acts of a secretary “shall be valid not withstanding any defect that may afterwards be discovered in his appointment or qualification”. Under section 69(b) of the Act, there is the presumption that any person described as the secretary of a company “has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by a… secretary of a company carrying on business of the type carried on by the company or customarily exercised or performed by a secretary of the type concerned”. This presumption also extends to documents issued or certified by the secretary.
These amount to a presumption of regularity in the appointment of the company secretary and until rebutted the company would not be able to evade its obligations to a third party on the purported excuse that the secretary who represented or acted on its behalf was not genuinely appointed, or did not possess the stipulated qualification or had no authority to issue or certify the document(s) concerned.
3.5 QUALIFICATIONS OF A COMPANY SECRETARY
The 1968 Act did not specify any standard qualifications for a company secretary. Accordingly, both in law and in practice, anybody could act as secretary. Section 295 provides that it is the duty of the directors to take all reasonable steps to ensure that the secretary is a person who appears to them to have the requisite knowledge and experience to discharge the functions of the secretary of the company, and in the case of a public company, he shall be:
a) A member of the Institute of Chartered Secretaries and Administrators.
b) A legal practitioner within the meaning of the legal practitioners Act or
c) A member of the Institute of Chartered Accountants of Nigeria or such other bodies of accountants as are established from time to time by an act, or
d) Any person who has held the office of the secretary of a public company for at least three years of the five years immediately preceding his appointment in a public company; or
e) A body corporate or firm consisting of members each of whom is qualified under paragraphs (a), (b), (c) or (d) of this section.
From the above provision, it would seem that the secretary of a private company need not possess any qualification. The exact qualification requirements for appointment as secretary of a private company are not stated except for the duty on the director to take all reasonable steps to ensure that the secretary has the requisite knowledge and experience to discharge the functions of a secretary.
Nevertheless, the act of a secretary shall be valid not withstanding any defect that may afterwards be discovered in his appointment or qualification.
3.6 STATUS OF A COMPANY SECRETARY
The status of the company secretary had been that of a mere servant who was to do just what he was asked to do, and nothing more.
That view was completely erased after 1971. Thus, the status of the company secretary has been decorated with a new look, having ostensible authority to bind the company. The Act also qualifies the secretary with a recommendable status by directing that every company shall have a secretary. If the secretary is still seen as that which existed in 1887, there would have been no need for such provision by the Act. Flowing from the change in status of the company secretary by the Panorama Development case, the secretary has been given different names that go to support that he is now of a higher status, a little below the General Meeting and Directors.
In Okeowo V. Migliore, Idigbe J.S.C observed that in Nigerian law, a company secretary is “a principal officer of the company”. In Migliore V. Metal Construction (W.A.) Ltd, the company secretary was again described as the “administrative officer of the company”. Furthermore, in Adebesin V. May & Baker Nig. Ltd, the company secretary was emphatically uplifted to an officer of the company with important duties and responsibilities.
Thus, it can be argued that the views of the Nigerian courts on the position of the company secretary was summed up by the court of Appeal decision in Wimpy Ltd V. Balogunthat “a company secretary is indeed a high ranking officer in the company set up and is indeed part of the management of the company”. The Judicial recognition of the company secretary in Nigeria has gone a further mile stone by upholding that appearance in court by a company should be through its secretary: Ayodeji V. Lagos City Council. It is arguable therefore that the secretary has also graduated as an organ of the company.
In the light of the increasingly important status of the secretary, it can be argued that those who have dealings with the company would be concerned to know who the secretary is; for example, section 157(2) of the Act requires the secretary of the company to endorse the words “certificate lodged” or similar words on the transfer instrument.
Finally, even though section 64 of CAMA did not include the secretary as one whose acts could also bind the company in the ordinary course of business, section 567 of CAMA recognizes the secretary as an officer of the company, and thus, his acts, carried out in the usual course of business will bind the company.
It therefore means that the status of the company secretary is that of a high ranking officer of the company having ostensible authority to bind the company in acts carried out in the course of business by him.
3.7 REMOVAL OF A COMPANY SECRETARY
Secretaries, being officers can generally be removed in accordance with the terms of their contract. However, provision has been made to safeguard the tenure of office of secretaries of public companies to ensure that they can effectively protect the interest of shareholders and the public by ensuring strict compliance with the rules.
Whilst the secretary of a private company may be removed like any other officer of the company, subject of cause, to any contract of service, the removal of a secretary of a public company is regulated by the Act.
By this it is obvious that the tenure of office of secretaries is protected from victimization.
Sometimes, a company secretary is also the company’s legal adviser. In Daily Times (Nigeria) Plc V. Akindiji, it was held that where a company secretary holds a dual position in the company as the company secretary/legal adviser, the mere fact of this duality does not remove the position of the company secretary from being protected by Section 296 of CAMA. Also the other role as legal adviser becomes protected by the armor that shields the company secretary’s status.
Thus, apart from the provision of the Act on the procedure for the removal of a company secretary, a managing director does not have the power to remove the secretary, the court also has no right to remove the secretary, but may restrain him from performing the duties of his office and may also direct that his removal be considered by the general meeting.
The position of the company secretary has never been given its deserved recognition even though its effect is greatly felt in the company before now. The company secretary was seen as a mere servant, having no power or will of his own, but strictly required to do just what asked to by the board of directors, type minutes, and other clerical functions. He was not seen to have what it takes to enter into contracts for the company, and his acts in the ordinary course of business could not bind the company.
However, that position has changed drastically for good. The company secretary has not just been promoted to an officer of the company, but as a high ranking officer, the director in charge of the administrative arm of the company, having ostensible power to bind the company with his acts carried out in the ordinary course of his business.
Also, the legal recognition of the company secretary as the one to appear in court in any suit for or against the company goes to solidify the earlier assertion that the office of the company secretary is an indispensable one.
Thus, the company secretary has graduated in all ramifications from being a mere servant, to being a high ranking officer of the company, the third in hierarchy after the Members in General Meeting, and the Board of Directors. He is now of a higher and valuable status than he was before 1971.
DUTIES, POWERS AND LIABILITIES OF A COMPANY SECRETARY
The changed status of a company secretary to that of a high ranking officer, situate third on the ranking of the officers of the company has bestowed upon him certain duties and powers, breach of which would incur liability on his part.
Thus, in this chapter, we shall be looking at the duties, powers and liabilities of the company secretary in contemporary corporate governance.
Also, since it has been earlier stated in the preceding chapters, that the efficiency and effectiveness of the company is so much dependent on the company secretary, we shall take a quick glance at the role of the company secretary in Nigeria, and compare it to that in selected few jurisdictions.
4.1 DUTIES OF A COMPANY SECRETARY
Before examining the duties of the secretary, one preliminary though important point should be made. By the provision of Section 294 of CAMA, anything required to be done by or of a director, and the secretary cannot be validly done by either of them even if he acts in dual capacity. If there is a breach of this, it is tantamount to a breach of requirement.
The duties of a company secretary are stipulated in Section 298(1) of CAMA which provides that: the duties of a secretary shall include the following:
a) Attending the meetings of the company, the board of directors and its committees, rendering all necessary secretarial services in respect of the meetings and advising on compliance by the meetings with the applicable rules and regulations.
b) Maintaining the registers and other records required to be maintained by the company under the Act; and
c) Rendering proper returns and giving notification to the commission required under the Act; and
d) Carrying out such administrative and other secretarial duties directed by the directors or the company.
Note the use of the word “include” in the above provision. It is to the effect that the list is not exhaustive. Aniagolu, J.S.C recognized this fact when he stated authoritatively in Okeowo V. Migliore that “Apart from certain statutory duties … the duties of the secretary of a company are not fixed by law”. Indeed in the Act itself, there are other specific duties assigned to the secretary, such as the signing of the annual returns and verifying the statement to be submitted to the official receiver. Also, by Sec. 66 of CAMA, the secretary may also be assigned other responsibilities as an officer of the company either by the General meeting, the Directors or the Managing Directors.
Be that as it may, there are certain duties which may not be performed by the secretary. A secretary while performing the duties appropriate to the office of the secretary is not concerned with the management of the company that being the responsibility of the directors. Thus, by Sec. 298(2) of CAMA, any duty or power vested in or appertaining to the office of the Directors shall not be performed or exercised by the secretary without the authority of the board. Such include: commencing litigation on behalf of the company or defend a suit in the company’s name, call a general meeting, or affix the company’s seal to an instrument. Where the secretary is in breach, the company cannot ratify such as they are termed void ab initio.
It is important to state here that the magnitude of the work of the secretary depends upon the various factors such as the size of the company, the nature of its business, and the Will of the directors or the confidence of the directors in the capacities of the secretary. In a small and medium sized company, the magnitude of the work falling on the secretary may be small, but in a big company, in addition to his own secretarial work, he might be required to organize the company’s office, control the staff, and assist the directors or the Board.
4.2 NATURE OF SECRETARIES’ DUTIES
Sec. 297 of CAMA seems to lay down the general rule that ‘a secretary shall not owe fiduciary duties to the company”. As an exception, the Act goes on to provide that “but where he is acting as its agent, he shall owe fiduciary duties to it, and as such shall be liable to the company where he makes secret profits or let his duties conflict with the personal interests, or uses confidential information he obtained from the company for his own benefit”.
Thus, when he is performing any of his statutory duties, or such administrative or secretarial duties as may be directed by the directors, he is not a fiduciary of the company. On the other hand, where he acts as an agent of the company, that is, when he is authorized to act as such under the provision of Sec. 66 of CAMA, he shall owe fiduciary duties to the company not to make secret profits, or let his duties conflict with his personal interests or appropriate confidential information for his own benefit.
Dada opined however, that there is no basis for this untidy arrangement. Why make someone a fiduciary in one breath, and not in another breath? As one of the principal officers of the company, a secretary should generally owe fiduciary duties to the company. This is more so because by his position, he is the custodian of many vital documents and information which he may appropriate for his own use. It has been stated that good faith must not only be shown, but must manifestly be seen to be shown. It would appear that the secretary’s duty of good faith is co-extensive with that required of the directors.
Finally, Sec. 280(5) of CAMA expressly provides that the duty not to misuse corporate information shall not cease by a director or an officer having resigned from the company, and he shall still be accountable and can be restrained by an injunction from misusing the information received by virtue of his previous position. This is particularly so for a secretary considering that he is usually privy to all the secret and sensitive corporate information of the company.
4.3 POWERS OF A COMPANY SECRETARY
The power of a secretary to bind the company will depend on his express and ostensible authority. The express authority may be given by statute or by the directors. With regard to the ostensible authority, since the secretary is the chief administrative officer of the company, he will have powers to perform those functions relating to such administrative matters. Such functions have been held to include signing contracts connected with the administrative side of the company’s affairs, such as employing staff and hiring cars for the company. Similarly, if he is shown to have implied authority by being so held out through a course of dealing, he will have authority to bind the company.
Thus, the powers of the company secretary mostly flow out of his service agreement with the company, these may be summarized thus:
1) Power to supervise the secretarial department.
2) Power to sign documents requiring authentication of the company.
3) Power to claim remuneration, even as a preferential creditor in the event of the winding up of the company.
4.4 LIABILITIES OF A COMPANY SECRETARY
The secretary is an officer of the company and may be liable as such and is entitled to relief by the court under section 538 of CAMA. But because he is charged with certain statutory duties, he may be liable for default in performing those duties. Even where he is not specifically charged with the statutory duty, if the duty is one with which he is necessarily involved by virtue of his office as secretary, he may be liable to a fine in an appropriate case as an officer in default which means “any officer who knowingly and willfully authorizes or permits or connives at this default, refusal or contravention…” For example, failure to deliver a return of allotment, publish the company’s name outside its place of business, keep a register of directors and secretaries or permit inspection. He is however, not personally liable for breach of trust or misfeasance by directors where he has merely acted in his ministerial or administrative capacity.
It has been established by Company and Alied Matters that the secretary does not owe fiduciary duties to the company as such, but will do so where he acts as an agent, in which case, he will be liable to account where he makes a secret profit or uses confidential information obtained from the company for his own benefit.
4.5 THE ROLE OF A COMPANY SECRETARY IN SOME OTHER JURISDICTIONS OF THE WORLD
4.5.1. CORPORATE SECRETARIAL ROLE IN GHANA
In today’s corporate world, normal business activities of both private and more so public companies are subject to a web of various laws and regulation.
In this aspect, the role of the company secretary is very important. A company secretary is a facilitator and guide as to the best possible means of how to perform a certain act, with minimal complications and with avoidance of not anticipated and costly, pitfalls. Section 190 provides that every company must have a secretary. This is similar to the provision of section 293(1). The company secretary is an agent and in most cases in Ghana, an employee of the company. This gives rise to a number of common law, statutory, and regulatory obligations. The company secretary plays a pivotal role in the smooth administration of the company and in the fulfillment of its responsibilities towards all the regulatory institutions and to the company’s shareholders and other stakeholders. Sections 176, 107, 215, 196, and 32 of the Companies Code are in pari material with the provision of section 298 our Act . These include; maintaining of statutory registers, completion of statutory forms, minutes of Directors’ meetings and general meetings, etc. In Ghana, the company secretary is advised not to be just a compliance officer but to also assume a very important and critical role which is being the: “keeper of the company conscience”.
Thus, it is clear that the company secretary plays a major role in maintaining a watching brief over the code, exchange regulations if applicable, and other relevant obligations of the company. The secretary draws attention to them when they do arise and assists in the fulfillment of due obligations.
4.5.2 IRISH CORPORATE SECRETARIAL ROLE
Principally, the company secretary ensures the company complies with company law, maintains certain statutory registers, and makes the necessary fillings with the registrar of companies such as annual returns, financial statements and certain forms with respect to changes to share capital, etc.
The companies Bill 2012 is the extant statute there. These roles are also similar to that operational in Ghana, and Nigeria.
Most notably, the responsibility for developing and implementing processes to promote and sustain good corporate governance has fallen largely within the remit of the company secretary.
Thus, the role of the company secretary is practically the same since these jurisdictions all recognize that sustaining good corporate governance is the duty of the company secretary.
The company secretary draws power from his letter of employment, the statute, and those assigned to him by the Directors, and or general meetings.
His duties are relative to the size of the company, and in larger companies, he is tasked with additional duties not ordinarily under his routine.
By reason of the company secretary being an employee, there are both express and implied powers, vested in him. He also could be held liable either criminally or civilly, severally or jointly with the Board of Directors and or general meeting.
Finally, it must be stated that as we have seen in Nigeria and other study jurisdictions, the roles and duties of the company secretary can never be exhaustive, as circumstances always necessitate alien tasks on the secretary.
CONCLUSION AND RECOMMENDATION
This research work was centered on the status of the corporate secretary in corporate secretarial practice. We have taken a critical look at who the company secretary is, and the roles he performs for a smooth corporate governance achievement. We have come to see that the company secretary is not the mere servant he was termed to be by Esher M.R. neither is he to be mistaken for a typist as seen in some small offices. The role of the company secretary can never be over-estimated and that was why Danjuma spent over 248 pages on a work centered on the role of the company secretary. It is a fortification of the modification of the status of the company secretary in corporate secretarial practice.
In chapter one of this research, we had a glimpse into what the research work is all about, taking a look into concepts and positions with respect to the company secretary.
In chapter two of this research, we talked about preliminaries of company law, where we ran through history lane to see the evolvement of company law, as well as the revolutions that have taken place over the years with respect to rules and regulations guiding corporate governance and practice. We also defined a company, scrutinized the structure and organs of the company; indeed the company secretary is also an officer of the company even if not included as an organ. The company secretary is one person that can never be lightly acknowledged for his indispensable role in the company.
In chapter three, we got into the very essence of this research, that is, the company secretary himself.
We looked at various definitions of the company secretary, and it necessitated a discourse on what the company secretary was referred to before now, which we discovered was a resultant effect of Esher’s position. This also affected the 1968 companies Act.
However, after the Panorama Development case, the status of the company secretary was promoted, and this case was what set the pace for a new status company secretary in the modern dispensation, and evident in our Act.
In all, chapter three revealed to us the fact that the company secretary is now a high ranking officer of the company, and not that servant of the directors he used to be.
In chapter four, we talked about the duties, powers, and liabilities of the company secretary. Being an employee of the company, he has powers to carry on certain duties which spring from his contract of employment and other statutes. A breach of these duties would make him liable for either civil or criminal liability. We also went ahead to study the role of the company secretary briefly in comparison in Nigeria, Ghana and the Irish world. It is clear that the role of the company secretary is geared towards smooth corporate governance.
It cannot be more gladdening to see that indeed the status of the company secretary has been greatly upgraded to an admirable one.
This research work observed the following:
1) The Act provides that every company must have a secretary.
2) The secretary must be one that is qualified to carry on the duty of corporate secretarial practice effectively.
3) That the continuity and flourishing of any company is hinged on the company secretary.
4) That the company secretary shall be appointed by the directors, and may also be removed by them.
5) That generally, the company secretary does not owe any fiduciary duty to the company.
6) That the Actlisted “inclusive” duties of the company secretary.
7) That the secretary shall not without the authority of the board exercise any power(s) vested in the directors.
Despite the promoted status of the company secretary, there are still limiting factors on the office of the company secretary. Thus, this research recommends the following:
1. That the company secretary be listed as one of the organs of the company.
2. That his appointment should be done by members in General meeting, and not just the Board of Directors in order to ensure transparency and due process.
3. That the removal of the company secretary should not be left to the Directors, as lightly suggested by the Act.This is to ensure security of office of the company secretary which would enable him carryout his duties effectively.
4. That the company secretary be made to owe fiduciary duties to the company at all times, even after the determination of his employment because his office is a vital one, and he is privy to so much vital information’s.
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 . CAMA, CAP C20, LFN 2004, Section 567.
 . Vol. 7 Page 262.
. Quoted by Halliday C., in his lecture note on forms of Business and Non-Business Organizations; Nature & Types of Incorporated Companies, pg. 10
. CAMA, CAP C20, LFN 2004, Section 18.
. Canada and the UK., The Law provides for companies with only one shareholder. See Halliday C. Op cit pg. 10
. Ibid. Section 38(2).
. (1880) CH. D 247, 273.
. Garner, Black’s Law Dictionary, 9th Edn. (USA: West Publishing Co., 2004) 318
. Gower LCB. The Principles of Modern Company Law 3rd Edn. (London: Stevens & Sons) 1969
. The number need not be more than two and of these the interest of one need not be more than nominal, as in the so-called “one-man company”.
. But not universally: we still talk about an infantry company, and a living company
. Sec. 1(1)(b): 31 of Companies Act, 1968
. CAMA, CAP C20, LFN 2004, Section 22(3).
 . Ibid Section 21(1)(a)
 . Ibid Section 21(1)(b)
. Ibid Section 21(1)(c)
. CAMA, CAP C20, LFN 2004, Section 79(1)-(3).
. Ibid. Section 27.
. Danjuma, N. The Role of Company Secretary in Corporate Management (1st edn, Ibadan: Heineman Educational Books, 1991) 18.
. CAMA, CAP C20, LFN 2004, Section 247.
. Ibid. Section 64.
. See 1st of Wright V. Tahourdin (1883)25 Ch D 320
. Shaw and Sons (Salford) Ltd v. Shaw (1935)2 KB 113:104 LJ KB 549 AT 103
. Gower “Modern Compnay Law”, p. 131
. CAMA, CAP C20, LFN 2004.
. Automatic self-cleaning filter syndicate C. V.Cunninghame (1906)2 Ch. 34
. (2002) 3 NWLR (pt 753)121.
. Gower, L.C.B The Principles of modern Company Law 3rd edn., (London: Stevens & Sons, 1969)17.
. CAMA, CAP C20, LFN 2004, Section 63.
. Hence it was not until 1948 that a private company was required to have any director(s)
. CAMA, CAP C20, LFN 2004, Section 37.
. Garner, Black’s Law Dictionary, 9th Edn, West Publishing Co. (2004) 391
. 17 U.S (4 Wheat) 518, 636 (1819)
. Sec. 63 (1) & 65 CAMA, 1990
. (1886) L.R 2 Ch 77 at 89
. CAMA, CAP C20, LFN 2004, Sections 93, 290, 336, & 38(2).
. Per Aniagblu JSC in Trenco V. African Real Estate Ltd (1987)1 LRN 146, 153: Per diplock in Freeman V. Buckhurst (1964) ALL ER 630 at 645.
. Gower LCB, Principles of modern company Law, 4th Edn. (London: Steven and Sons, 1979) 159
. Sharma D. P., Company Law and Secretarial Practice (New Delhi: Oxford & IBH Publishing Co., 1980) 20
. Sharma D. P. Op cit
. Garner, Black’s Law Dictionary 9th Edn. (USA: West Publishing Co., 2004) 1472
. Smith & Keenan’s Compnay Law for students, 10th ed. Pg. 293.
. Barnett Hoares& Co. V South London Tramway’s Co. (1887)18 Q.B.D 815 at 827
. Per Lord Denning in Panorana Development (Guildford ) Ltd (1971)ALL ER 10 at 19.
. CAMA, CAP C20 LFN 2004 Sectioin 367
. Cap C20, LFN 2004, Promulgated in 1990.
. See Dada J.A. Principles of Nigerian Company Law 2nd Edn. (Calabar: Wusen Publishers, 2005) 229
. Barnett Hoares & Co. V. South London Tramways Co. (Supra)
. George White Church Limited V. Cavanagh (1902)A.C 117 at p. 124
. Per Lord Parker in Daimler Company Limited V. Continental Tyre Company Limited (1916) 2 A.C 307 at P. 377
. Houghton & Company V. Northard, Love and Wills Limited (1928) A.C. I
. Edun, Company secretaries in Public companies 1989 2 GRBPL (No. 3) 12 at P. 13
. Panorama Developments (Guilford) Ltd. V. Fidelis Furnishing Fabrics Ltd. (Supra)
. Quoted by Orojo, J.O., “Company Law and practice in Nigeria,” (Lagos, Mbey: & Associates (Nig. ) Ltd., 1992
. CAMA, Cap C 20,, LFN 2004
. Per Ogundare JCA in Wimpey Limited V. Balogun (1986)3 NWLR (pt. 28)324 at 337.
. Ogunche, S., “The company secretary in Nigeria”, Published in the Lawyer’s Chronicle…the Magazine for the African Lawyer.
. CAMA, Cap. C20, LFN, SECTION 293(1)
. Ibid. Section 296(1)
. Ibid. Section 260
. CAMA, CAP C20, LFN 2004, Section 69(C)
. CAMA, CAP C20, LFN 2004, Section 260
. Barnett Hoares & Co. V. South London Tramways Co. (Supra)
. Panorama Developments (Guilford) Ltd. V. Fidelis Furnishing Fabrics Ltd. (Supra)
. CAMA, Cap C 20, LFN, 2004, Section 293
. (1979)11 SC 138: (1979) NSCC 210
. (1978)NCLR 274
. (1987) FRCR 232
. (1987)2 NWLR 322
. (1974)N.C.R.R 299
. CAMA, CAP C20, LFN 2004, Section 296 (2)(4)
. Dr. Orojo J. O., Company Law and Practice in Nigeria 5th Edn. (Ireland: LexisNexis, 2008) 292
. (1988)12 NIJLR 22
. Per Longe, J. in Ashibogun V. Aforint Nigeria Ltd (1985)H.C.N.L.R 400
. Taiwo Okeowo V. Migliore (1975)11 SC 138
. CAMA, Cap C20, LFN 2004, Section 370
. Ibid. section 420
. Per Pennycuick V. C. IN Re maidstone Buildings Provisions Ltd (supra)
. Diamler Co. Ltd V. Continental Tyre Co. (1916) A.C 307
. Edington V. Dumber Steam Laundry Coy. (1903)2 Ch. 431
 Re state of Whoming Syndicate (1901) 2 Ch. 431
 South London Greyhound Racecourse Ltd V. Wake (1931) 1 Ch. 496
 Dada J. A., Principles of Nigerian Company Law 2nd Edn. (Calabar: Wusen Publishers, 2005) 255
. Gower, Op cit. at pg 583
. Gower, Op cit. at pg 574; Cf. Bell V. Lever Bros. (1932) A.C. 161
. Dada J. A. Op cit
 CAMA, CAP C20, LFN 2004, Section 297
 CAMA, CAP C20, LFN 2004, Section 567(2)
 Ibid. Section 129
 Ibid. Section 292
 Ibid. Sections 87 and 194
 Joint Stock Discount Co. V. Brown (1869) LR8 Ex 376 at 396
 CAMA, CAP C20, LFN 2004, Section 297
 Companies Code, 1963, Act 179
 CAMA, CAP C20, LFN 2004
 Ibid. (fn 21)
 Ibid. (fn 22)
. Danjuma N., The Role of the Company Secretary in Corporate Management (Ibadan: Heinemann Educational Books Nigeria Plc, 1991)
. CAMA, Cap C20, LFN 2004, Section 298
. Ibid. Section 296