Comparative Analysis of the Position of the Company Secretary
By
Rahmatu Ishaq Ahmed (Mrs.)*
Abstract
A company as an artificial entity cannot exist independently of its officers who are its mind and hands that run its day-to-day affairs. One of these officers is the company secretary. Who then is the company secretary? What is his status in a company? Who can be appointed a company secretary? Who appoints the company secretary? What are the powers and responsibilities of the company secretary, his role and liabilities under the code of corporate governance? How is the company secretary removed from office? This article attempts to satisfy these inquisitions while comparing the powers and responsibilities of the company secretary in the United Kingdom (UK), India with that of Nigeria. The article finds that the provisions relating to the company secretary in Nigeria are not as protective and effective as in the other jurisdictions compared. The article recommends that the office of the Company secretary could be elevated to an executive position to make clearer the fiduciary duty of the company secretary.
1. Introduction
It is common knowledge that companies or business entities are creations of the law. As entities which only exist in the contemplation of the law, their policy decisions and governance are usually carried on by persons described as the officers of the company, among which is the Company Secretary.
The Companies and Allied Matters Act[1] provides for and makes it compulsory for every company to have a secretary,[2] by filing Form CAC 2.1 before the company can be incorporated. This has also been recently reinforced by a Corporate Affairs Commission[3] directive to all companies to comply with the provisions of CAMA for the office of a company secretary and file the particulars of same at the Corporate Affairs Commission.[4] These amply emphasize the critical role and importance of a Company Secretary in the affairs of a company.
A company secretary’s powers and responsibilities are numerous and it is the purpose of this article while comparing the position of the company secretary in other jurisdictions like the United Kingdom (UK), India with that of Nigeria, to highlight the qualification, appointment, powers, responsibilities, removal and other critical issues about the office of a company secretary as provided by CAMA and the Laws of these jurisdictions.
The article also examine the provisions of the Code of Corporate Governance 2011 as regards the role of the company secretary and compare it with that of an executive director like the Managing Director. It recommends among other things that the company secretary be made statutorily and compulsorily an executive member of the board of the company in order to considerably strengthen his role.
2. The Company Secretary
Upon incorporation, a company acquires distinct and separate personality from that of its members/shareholders. This status requires that someone must exist that will operate as the link between the company (operating through the board of directors) on the one hand and the shareholders (who have invested their resources in the company) on the other hand, and that person is the company secretary. The company secretary also serves as the link between the company and the CAC in discharging the statutory obligations imposed on the company.[5]
In Nigeria, CAMA imposes a statutory obligation on all companies to have a company secretary,[6] be it public or private company. Every registered company is required by law to have a company secretary (“Secretary”), who may also be one of the directors.[7]
In the UK, since 8 April 2008, there is no requirement for a private company to have a company secretary unless the company’s articles of association state otherwise.[8] If a private company doesn’t have a company secretary then the duties that would otherwise have reposed in the company secretary will fall on the directors of the company[9] but a sole director cannot also be the secretary.[10] A public company in the UK must still have a formally appointed company secretary[11].
3. Status and Authority of Company Secretary
At common law, a company secretary was perceived as a mere servant of the company who lacked any authority to bind his company. Thus Lord Esher M. R in Barnet Hoares and Company v South London Tramways Company[12]stated that a company secretary:[13]
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; nor can anyone assume that statements made by him are necessarily to be accepted as trustworthy without further inquiry.
However, a company secretary is no longer a mere servant; he is much more important person now than he was perceived in the past.[14] The modern status of the company secretary was taken into account in Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd,[15] where Lord Denning M. R. [16] observed thus:
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 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 representations 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. He is certainly entitled to sign contracts with the administrative side of a company’s affairs such as employing staff and so forth. All such matters now come within the ostensible authority of a company secretary.[17]
From the above it is evident that in U.K., the modern company secretary is given the status of an executive officer since he participates in the day-to-day running of the business of the company just like an executive director.[18] An executive director is that type of director that attends to the business of the company, he manages the day-to-day affairs of the company, he is an employee of the company and is entitled to remuneration, and an example of this type of director is the managing director of the company.
In the Nigerian case of Okeowo and ors v. Milgiliore[19] it was held that “a company secretary is a principal officer of the company”. Also, in Wimpey (Nigeria) Limited v. Balogun[20] the court held that: “ a company secretary is indeed a high ranking officer in the company set up and is indeed part of management of the company.”[21]
This has seriously enhanced the corporate status of a modern company secretary[22] who is now seen as a professional member of the board, a very important officer of the company; with an increased status, responsibilities and roles.[23]
The CAMA extensively enhanced the status and role of the company secretary when it saddled the office with duties and responsibilities which only a person with integrity and acting in good faith can discharge. As the main custodian of the company’s vital records, information source and seals, he is expected to act with the highest degree of integrity and honesty.[24]
4. Who can be Appointed a Company Secretary?
A suitable person for appointment as company secretary is not just someone who qualifies as a Legal Practitioner but a person who possesses knowledge of corporate issues and who understands the protocols of meetings, record keeping, documentation and correspondence. Again, a suitable person for appointment should be a person who understands regulatory issues involved in running of companies in Nigeria.[25]
In Nigeria, CAMA simply provides in respect of the qualification of a company secretary as follows: [26]
It shall be the duty of a director of a company to take all reasonable steps to ensure that the secretary of the company is a person who appears to have requisite knowledge and experience to discharge the functions of a secretary of a company.
The above provision is the only requirement a person must fulfill to be qualified for appointment as company secretary in the case of a private company. That is, there is no stipulated qualification for a secretary in a private company but the directors must ensure that the secretary of the company has the requisite knowledge and experience to discharge his duties.
In respect of a company secretary of a public company, section 295 CAMA provides thus:
And in the case of a public company, he shall be-
- a member of the Institute of Chartered Secretaries and Administrators; or
- a legal practitioner within the meaning of the Legal Practitioners Act; or
- 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
- 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
- a body corporate or firm consisting of members each of whom is qualified under paragraphs (a), (b), (c), or (d) of this section.
Also, under the Nigerian Code of Corporate Governance 2011, it is provided that the company secretary should be a person possessing the relevant qualification and competence necessary to effectively discharge the duties of his office.[27]
In the UK, the company secretary may be qualified by virtue of examination and membership of the Institute of Chartered Secretaries and Administrators (ICSA)[28], which is the main qualification specified for company secretaries. ICSA is the body dedicated to the advancement and recognition of professional administration based on a combination of degree-level studies, carefully vetted experience and sponsorship by two people of professional status. Only a person thus qualified is entitled to be designated a ‘Chartered Secretary’ or ‘Chartered Company Secretary.’[29]
In India, the Institute of Company Secretaries of India (ICSI) regulates the profession of company secretaries. ICSI is a statutory professional body which has more than 29,010 associate members.[30] Therefore, company secretary means a person who is a member of the Institute of Company Secretaries of India. Thus, every member of the Institute of Company Secretaries of India is a secretary within the meaning of s 2(45) of the Companies Act.[31]
Chartered secretaries are employed as chairs, chief executives and non-executive directors, as well as executives and company secretaries. Some chartered secretaries are also known in their own companies as corporate secretarial executives/ managers or corporate secretarial directors.[32]
It is important to know that the functions of a company secretary are such that require a lot of knowledge and skill in respect of corporate affairs and it is therefore incumbent on the directors of a company to appoint a company secretary bearing in mind the nature of the tasks to be performed by the secretary. The company secretary can either make the company avoid liabilities or incur a lot of liabilities for the company.
It is the writer’s humble view that in Nigeria, in addition to the requisite qualification for a person to qualify as a company secretary of a public company,[33] there is the need to require that the person has 10 years cognate experience from being a company secretary in a private company or teaching experience in the area of Corporate Governance before the person can be appointed a company secretary of a publicly quoted Company. This is because to be able to discharge his responsibilities a high level of skill is required and not just the knowledge.
6. Who Appoints the Company Secretary?
The duty of appointing and removing a company secretary lies on the board of directors. A notification of the company secretary’s appointment is statutorily required to be filed with the CAC,[34] in the absence of which such appointment shall not be duly recognized by the Commission.[35]
Where the appointment is effected at the pre-incorporation stage, the proposed directors are to instruct the promoter as to whom to appoint and while filling the incorporation forms, the requisite Form CAC 2.1 is to be duly completed, signed and filed, alongside other incorporation documents, with the CAC, notifying it of the secretary’s appointment.
The Code of Corporate Governance 2011 provides that the company secretary should be appointed through a rigorous selection process that is applicable for appointment of new directors. Although the code unlike CAMA is not intended as a rigid set of rules, it is expected to be viewed and understood as a guide to facilitate sound corporate practices and behaviour.
However, where the appointment is post incorporation, a resolution by the directors appointing the secretary is to be filed within 14 days[36] of its passing, alongside the CAC Form 2.1. On doing this and paying the required fees, the CAC will be deemed duly notified of the company secretary’s appointment.[37]
A similar provision with the above applies in UK, however in India it is not expressly provided as to who appoints secretary,[38] but having regard to the position, duties and functions of a secretary, it is advisable that the Board of Directors appoints the secretary, by its resolution.[39] Alternatively, if the managing director/whole time director[40]/manager appoints the secretary, the Board is informed of his appointment and the appointment is noted and ratified by the Board at its next meeting.[41]
7. Powers and Responsibilities of the Company Secretary
The provisions of the CAMA recognize the immerse trust imposed on the company secretary as the custodian of the most important documents, records and other statutory instruments of the company. It therefore, places the secretary under some duties.[42]
In Nigeria, in spite of his changed status, the company secretary does not owe any fiduciary duties to the company. But where he is acting as the company’s agent, he shall owe fiduciary duties to it and shall be liable to the company where he makes secret profits or lets his duties conflict with his personal interests, or uses confidential information he obtains from the company for his own benefit.[43]
However, in line with its changed status, the Company Secretary as an agent of the organization can undertake a binding contract on behalf of the company except he is expressly precluded from taking such decisions ab initio. In the Nigerian case of ABIC Nigeria Ltd. v Ecobank Nigeria Plc,[44] it was held that the company secretary can pass as an alter ego of the company. He is clearly precluded from discharging the duties of the board of directors without authority.[45]The company secretary performs duties on which lies the survival of the corporate entity like conveying and taking minutes at board and general meetings in which decisions are taken that touches on corporate governance. The company secretary also maintains the statutory records required to be kept by a company,[46] renders proper returns and gives notification to CAC as required under CAMA and carries out such administrative and other secretarial duties as directed by the directors of the company.[47]
In practice, the company secretary usually countersigns every instrument to which the seal of the company is affixed. Alternatively, he is the one of those whose signature will validate a document as a document under seal.[48]
The duties and responsibilities of a company secretary as provided under of CAMA[49] include:
- Attending meetings of the company, board of directors and its committees and rendering all necessary secretarial services in respect of these meetings and advising on compliance by the meetings with the applicable rules and regulations.
- Maintaining the registers and other records required to be maintained by the company by CAMA.
- Rendering proper returns and giving notification to CAC as required by CAMA.
- Carrying out such administrative and other secretarial duties as directed by the directors or the company.
The Company Secretary is responsible for the efficient administration of the company and shall not, without the authority of the board of directors, exercise any powers vested in the directors. His powers are restricted largely to administrative powers and not management powers.[50]
The duties of a Secretary are essentially administrative and not managerial. For instance a Secretary commonly:
- Provides legal and administrative support and guidance to the Board of Directors;
- Ensures that the board’s decisions and instructions are properly carried out and communicated;
- Has responsibility to ensure that the company complies with all relevant statutory and regulatory requirements;
- Has responsibility for communications with the shareholders when required;
- Acts as principal administrative officer, liaising with staff, customers, suppliers, media and the board of directors; and
- Executes important documentation on behalf of the company, together with a director[51].
The duties and responsibilities of a company secretary are virtually the same in the UK, India and also Nigeria.[52]
8. The Role of Company Secretaries under the Code of Corporate Governance 2011
Having considered who a company secretary is, we will examine his role in corporate governance. But first, let us briefly look at the term corporate governance.
Corporate governance is seen as the system by which companies are directed and controlled, the subject of a wide-ranging debate from the 1990’s aiming to improve the functioning of boards of companies.[53] In the UK, it is the work of three committees (Cadbury, Greenbury and Hampel)[54] that formed the basis of a set of principles subsequently consolidated into the Combined Code of Corporate Governance.
At the Nigerian scene, Sanusi views corporate governance from the perspective of building credibility, ensuring transparency and accountability as well as maintaining an effective channel of information disclosure that would foster good corporate governance performance, trust as well as sustaining confidence among the various interest groups that make up an organization.[55]
The concept of corporate governance also represents the collection of activities, rules, processes and guidelines aimed at ensuring that a company is using its resources, strategies and directions in the best way possible and in consistency with its mission and stated goals. This is important because shareholders and stakeholders depend on this maxim to measure company progress toward the achievement of these goals.[56]
Therefore, corporate governance describes how companies ought to be run, directed and controlled. It is about supervising and holding to account those who direct and control the management. It is concerned with internal structure of the company; how powers are shared and exercised by the different groups and other stakeholders[57] to ensure that the objectives of the companies are achieved lawfully and ethically.[58]
The Code provides that the company secretary has the primary duty of assisting the Board and management in implementing the code and developing good corporate governance practices and culture.
The Company secretary shall report directly to the Chief Executive Officer (CEO)/Managing Director (MD) but shall also have a direct channel of communication to the Chairman. In addition to his statutory functions,[59] the company secretary should carry out the following duties and responsibilities:
- provide the Board and directors individually, with detailed guidance as to how their responsibilities should be properly discharged in the best interest of the company;
- coordinate the orientation and training of new directors;
- assist the Chairman and CEO/MD to determine the annual Board plan and with the administration of other strategic issues at the Board level;
- compilation of the Board papers and ensuring that the Board’s discussions and decisions are clearly and properly recorded and communicated to the relevant persons;
- notify the Board members of matters that warrant their attention; and
- provide a central source of guidance and advice to the Board and the company, on matters of ethics, conflict of interest and good corporate governance;
The company secretary should be properly empowered by the board to effectively discharge his duties and responsibilities. His appointment and termination should be tabled and ratified by the Board.[60]
9. The Company Secretary as an Officer of the Company
In the UK, the Companies Act 2010 states that the directors and the company secretary are officers of the company. The nature of the office of company secretary is, however, different from that of the directors. The company secretary is answerable primarily (but not wholly) to the directors; not wholly, because the secretary can be held legally accountable for the company’s failure to comply with its legal obligations and because, as an officer of the company, the secretary has a fiduciary relationship with the shareholders.[61] However, this fiduciary relationship is overshadowed by the fiduciary relationship that exists between the directors and the shareholders.[62]
Where the secretary shares legal duties and responsibilities with the directors he will, in practice, ensure compliance by a combination of his own personal actions and by advising the board of directors collectively and individually of their own duties and responsibilities. Advising the directors as to their duties and responsibilities does not by itself guarantee compliance. Consequently, the secretary can be assumed to have fulfilled his legal obligations if he has done everything in his power to ensure compliance.[63] If the directors decide not to follow the company secretary’s advice, it is they who will be accountable in law for their actions or failure to act. However, if the company secretary fails to carry out his personal responsibilities or to advise the directors of their duties and responsibilities, he cannot claim to have done everything in his power to ensure compliance and can be held accountable in law.[64]
The company secretary is therefore established in law as an officer[65] of the company who shares responsibility with the directors for ensuring that the company complies with its legal duties and responsibilities. He has a duty to advise the directors as to their duties and responsibilities and, thus, already has a formal and legally defined role in corporate governance.
10. Can The Company Secretary Be Liable To The Company While Acting For The Company?
As earlier stated, in Nigeria, ordinarily the secretary does not owe the company any fiduciary duties[66]. However, when the company secretary acts as an agent of the company, he shall owe fiduciary duties to the company and thus shall be liable to the company where he makes secret profits or lets his duties conflict with his personal interests, or uses confidential information he obtained from the company for his own benefit[67].
In the UK, the company secretary is also seen as an officer of the company[68]. In some instances therefore he is in the same position as a director so that a provision in the articles or in any contract relieving him from liability is void.[69] In addition it is perfectly possible for the secretary to be liable following a breach of trust or fiduciary duty by the directors under the “knowing assistance” head of liability in certain cases.[70]
11. Removal of a Company Secretary
In Nigeria, the CAMA,[71] provides for the procedure for removing a company secretary of a public company as follows:
Where it is intended to remove the secretary of a public company, the board of directors shall give him notice‐
- stating that it is intended to remove him;
- setting out the grounds on which it is intended to remove him;
- giving him a period not less than seven working days within which to make his defence; and
- giving him an option to resign his office within a period of seven working days.
Where, following the prescribed notice, the secretary does not within the given period resign his office or make a defence, the board may remove him from office and shall make a report to the next general meeting. But where he, without resigning his office, makes a defence and the board does not consider it sufficient, if the ground‐
- on which it is intended to remove him is that of fraud or serious misconduct, the board may remove him from office and shall report to the next general meeting; and
- 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.
Notwithstanding any rule of law, where a secretary suspended under paragraph (b) of subsection (3) of section 296 is removed with the approval of the general meeting, the removal may take effect from such time as the general meeting may determine.
For private companies in Nigeria, there is no procedure for removal of a company secretary. He is appointed and removed when the board of directors decide.
In the U.K., for private companies, a company secretary is no longer legally required, and can be appointed or removed at any time. Following amendments to the Companies Act 2006 which were made in April 2008, private limited companies are no longer required by law to appoint a secretary unless their own Articles of Association explicitly requires them to have one. If such a provision is included, a company must ensure it has a secretary at all times and fill the position upon removal of any existing secretary. Companies with no such provision can choose to appoint or remove a company secretary, if required, at any time after the formation process.[72]
For public companies in the U.K., subject to any service contract in force, the board may remove the company secretary and replace that person by simple majority.
Whether the company secretary has resigned or been removed from office, the following procedures should be followed:
- In the case of a removal, the directors must approve a resolution to remove the company secretary, either at a meeting or by written resolution.
- The fact of the removal of the company secretary must be entered in the company’s register of directors and secretaries and notified to the Registrar of Companies on Form TM 02 within 14 days of the resignation or removal. The form can be filed either in paper form or electronically.
- If the company secretary is an authorised signatory on the company’s bank account, notification of the change in company secretary should be given to the bank.
- A new company secretary must be appointed to a public company as soon as practical.[73]
In India, the procedure for the removal of a company secretary is as follows:
- A Company Secretary can be removed in accordance with the terms of appointment and the Board can record the same.
- Convene a Board meeting, place the matter of removal/resignation of the Company Secretary and pass a resolution to the effect.
- File e-form 32 within thirty days with the Registrar of Companies together with requisite filing fees. Evidence of Cessation (for example Resignation Letter) is an optional attachment.
- Inform the stock exchange where the company is listed.
- Make entries in the Register maintained for recording the particulars of Company Secretaries.
- Issue a general public notice, if it is so warranted, according to size and nature of the company.[74]
From the foregoing, the procedure for removal of a company secretary in Nigeria, U. K. and India are similar.
12. Conclusion
From the foregoing, there is no doubt that the position of the company secretary is very important in the life of a going concern. This is evident in his powers and responsibilities and his appointment and removal in all the jurisdictions compared namely: UK, India and Nigeria.
It is however, recommended for Nigeria, that the Companies and Allied Matters Act be amended to further elevate the status of the company secretary to that of an executive secretary just like the managing director. The code of corporate governance should also bring the position or office of the company secretary in tandem with that of an executive director because the company secretary is one that his advice to the board of the company can either make or mar the company’s corporate existence and needs to be held liable just like a company director in the event of corporate failure.
This implies that a company secretary should statutorily and compulsorily be made an executive member of the board as a director and also the company secretary. This will make clearer the fiduciary duty of the company secretary since at all times he will be seen as an agent who acts on behalf of the company when he so contracts.
In line with the above proposed additional position, the office of the company secretary for public companies should be for persons who have acquired sufficient skill or knowhow of the duties of such office in addition to the required qualification as stated in the Companies and Allied Matters Act. This would only be possible if the office of the company secretary in private companies is reserved for those with requisite qualification as provided in section 295 CAMA and not for persons who in the opinion of the directors possess requisite knowledge and experience to perform the functions of a company secretary.
In line with the above, it is therefore suggested that the statutory qualifications for appointment of secretaries in public companies as provided for in section 295 of CAMA should be made applicable to secretaries of private companies.
There is the need to also make removal from office of the company secretary as rigorous as the removal of a company director where the general meeting will be more responsible. This is because the provision of CAMA relating to removal when he is involved in fraud or serious misconduct can never guarantee the security of tenure of office of the company secretary. As the law stands, such a secretary can be removed by the directors through misuse of their powers.
In the final analysis, there is the need to amend the Companies and Allied Matters Act in line with the above recommendations.
* Lecturer in the Department of Corporate Law Practice, Nigerian Law School, Kano Campus.
[1] Cap C20 Laws of the Federation of Nigeria 2004, hereinafter referred to as CAMA.
[2] Ibid., section 293(1).
[3] Hereinafter referred to as CAC. CAC is the regulatory agency that oversees the Companies and Allied Matters Act in Nigeria.
[4] Which gave all Companies the deadline of 31st December 2010.
[5] A.B. Ahmed, “The role of a company secretary in ensuring effective corporate governance, (ed.), K.I. Dandago, and K. Tijjani, Corporate Governance and Social Responsibility, (Kano: Adamu Joji Publishers, 2011), p. 308.
[6] S. 293 CAMA.
[7] But Section 294 CAMA provides for the avoidance of acts done by a person as director and secretary. That, a provision requiring or authorising a thing to be done by or of a director and the secretary shall not be satisfied by its being done by or of the same person acting both as director and as, or in place of the secretary.
[8] Company secretary: Duties, available at: http://www.out-law.com/page-11123, accessed on 11/3/16.
[9] Company Secretary, available at: en.wikipedia.org/wiki/company secretary, last accessed on 04 August, 2014.
[10] See section 283(1), (2) Companies Act 1985, extracted from G. Morse, Charlesworth’s Company Law, (7th ed.), (Sweet & Maxwell: London, 2005), p. 336.
[11] Company secretary, en.wikipedia.org/wiki/Company secretary, accessed on 8/4/14.
[12] (1887) 10 Q. B. D 815 at p. 817.
[13] See also: Houghton & Co. v Nor hard, Lowe & Wills Ltd (1928) AC 1, where it was held that a company secretary has no implied authority to bind the company by contract. Extracted from H.Y. Bhadmus, Bhadmus on Corporate Law Practice, (2nd ed.), (Enugu: Chenglo Limited, 2013), p. 345.
[14] Bhadmus, ibid.
[15] (1971) 2 Q.B. 711, CA.
[16] Op. cit., per Lord Denning M. R. and Salmon L.J.
[17] Bhadmus, op.cit. fn 11.
[18] Opposed to the executive director is the non-executive, the non-executive director does not participate in the day-to-day running of the affairs of the company, they merely attend to the business of the company at board meetings to take certain decisions on behalf of the company and that is why they are not seen as employees of the company, hence not entitled to remuneration but rather out of pocket expenses when they attend to the business of the company.
[19] (1979) 12 N.S.C.C. 210.
[20] (1986) 3 NWLR (pt 28) p. 328.
[21] Extracted from Bhadmus, above note 11.
[22] Before now, a company secretary was viewed as a mere servant, an errand boy of the board that has nothing to do with the management of the affairs of the company. See Lord Esher M. R’s statement in Barnet Hoares & Co. v South London Tramways and Co. (1887) 18 QDB at 827.
[23] Ahmed, above note 5.
[24] A.A Babington-Ashaye, “Business Recovery And Insolvency Issues: The Role Of A Company Secretary,” available at: www.Icsan.Org/Paperbizrecovery.Html, last Accessed 04 September, 2014.
[25] T. Ngoladi, “Company Secretary Under the Companies and Allied Matters Act, Cap. C20 LFN 2004,” available at: www.akehindeandco.com, last accessed on 04 July, 2014.
[26] Section 295 CAMA, Cap. C20 LFN 2004.
[27] See Code 8.1, Code of Corporate Governance 2011.
[28] Company Secretary, available at: en.wikipedia.org/wiki/company secretary, accessed on 8/4/14.
[29] Ibid. Also, The Faculty of Secretaries and Administrators founded in 1930 is the second body of corporate secretaries in the United Kingdom and now has a strong emphasis on quality work and governance and its members are designated ‘corporate secretaries’ or ‘certified public secretaries.’
[30] Ibid.
[31] K.R. Chandratre, Company Secretary Practice Manual, (vol. II, 2nd ed.), (New Delhi, India: Butterworths, 2008), p. 1296.
[32] Ibid.
[33] Namely a chartered secretary, a legal practitioner, a chartered accountant, 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 a body corporate or firm consisting of members each of whom is qualified as a chartered secretary, a legal practitioner and a chartered accountant.
[34] Form CAC 2.1 (Particulars of the Person who is the secretary of a company or of any changes therein).
[35] See section 296 CAMA.
[36] See Regulation 39(2) Companies Regulation 2012.
[37] Company Secretary, available at: www.perchstoneandgraeys. Com., last accessed on 04 July, 2014.
[38] See Section 383A, Companies Act 1956.
[39] See Chandratre, above note 29 at p. 1298.
[40] Whole time director in India is like a non-executive director under CAMA.
[41] Chandratre, above note 29.
[42] Ahmed, above note 5 at 313.
[43] See section 297 CAMA, see also Bhadmus, op.cit, p. 352 and finally, Iko v John Holt and Sons ltd and Tunna (1957) 1 NSCC 20 cited in Ahmed, A. B., ibid.
[44] (2010) LPELR-3566(CA).
[45] See Section 298(2) CAMA , see also Ahmed, above note 5 at 313.
[46] Example of statutory records are Register of members, Index of members, Register of directors and secretaries, Register of substantial shares in the company, Register of debentures, Register of charges, Accounting records, Minute books e.t.c.
[47] See s. 298 CAMA.
[48] S. 36A Companies Act 1985. See also S. 77 CAMA which provides that: “A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorised officer of the company, and need not be under its common seal unless otherwise so required in this Part of this Act.”
[49] Section 298.
[50] See section 298(2) CAMA.
[51] M. Hayes: “Principal Powers and Duties of the Company Secretary,” available at: www.lexology.com/library/detail.aspx, last assessed, 04, April, 2014.
[52] Chandratre, above note 31 at pp. 1300-1303, for the duties of the secretary under the Indian Companies Act of 1956.
[53] M. Woodley, Osborn’s Concise Law Dictionary, (11th ed.), (London: Sweet & Maxwell, 2009), p. 117.
[54] The report of the Cadbury Committee published in 1992 on the Financial aspect of corporate governance was later described as a landmark in thinking on corporate governance and it triggered the establishment of various committees/commissions throughout the world with focus on corporate governance.
[55] S.O. Sanusi, “Enhancing Good Corporate Governance; A Strategy for Financial Sector Soundness.” A Keynote Address Presented at the Dinner Night of the Chattered Institute of Bankers Nigeria, November 8, 2002. Available at http://www.expisc.com/governance. htm, last accessed 04 August 2014.
[56] R.O. Salawu, “The Role of Auditors in Ensuring Effective Corporate Governance in Nigeria” in K.I. Dandago and B. Tijanni, (eds.) Corporate Governance and Social Responsibility (Kano: Adamu Joji Publishers, 2011), p. 243.
[57] Everybody that is able to hold a claim on the company becomes a stakeholder: owners, creditors, managers, employees, suppliers, customers government and communities.
[58] See Preamble to the Organization for Economic Cooperation and Development’s (OECD) Principle of Corporate Governance. The OECD is a multilateral institution established in 1996 with a secretariat in Paris, France. It was established to help government deal with global economics, social and governance issues. Available at www.oedc.org, last accessed on 04 July, 2014.
[59] That is duties provided under the Companies and Allied Matters Act.
[60] See generally Code 8, Code of Corporate Governance 2011.
[61] The Role of the Company Secretary in Corporate Governance, available at: www.jbs.cam.ac.uk, last accessed on 04 August 2014.
[62] Ibid.
[63] Ibid. See also the Nigerian Code of Corporate Governance 2011.
[64] The Role of the Company Secretary in Corporate Governance, available at: www.jbs.cam.ac.uk, last accessed on 04 August 2014.
[65] See section 567 CAMA “officer”in relation to a body corporate, includes a director, manager or secretary;
[66] Section 297 CAMA.
[67] Ibid.
[68] Section 744 UK Company’s Act.
[69] Morse, G., Charlesworth’s Company Law, (7th ed.), (Sweet & Maxwell: London, 2005) 336.
[70] Ibid.
[71] See section 296(2), (3), (4)CAMA. See also Ngoladi, above note 25.
[72] R. Craig, “Can I appoint or remove a company secretary after the formation process?” available at: www.rapidformations.co.uk. last accessed on 30 October, 2014.
[73] Available at: www.icsa.org.uk/assets/files/pdfs, accessed on 30/10/14.
[74] See, www.company-registration.pro/procedure-for-removal resign ation -of-a-company-secretary, accessed on 30/10/14.