Pursuant to the provisions of Section 293 of the Companies and Allied Matters Act (CAMA), every company be it Private Company or Public company is required to have a company secretary. In the absence of a company secretary, any officer authorized by the Board of Directors may in the interim carry out the secretary’s functions.
A company secretary is an officer of a company appointed by the directors to perform certain legal and administrative duties, with the requisite knowledge and experience to discharge these duties.
- QUALIFICATIONS AND APPOINTMENT OF A COMPANY SECRETARY
Flowing from Section 295 of CAMA, the company secretary of a private company does not need any special qualification besides the general requirement that the directors must consider him as possessing the requisite knowledge and experience to perform the function of a company secretary.
The person who can be appointed the company secretary of a public company must either be a legal practitioner, chartered accountants, chartered secretaries, or a firm of any of them or must have held the office of company secretary of a public company for at least three (3) of the five (5) years immediately preceding his appointment in a public company. He must also possess requisite knowledge and experience.
- DUTIES/RESPONSIBILITIES OF A COMPANY SECRETARY
The duties of the Company Secretary are both Statutory and Administrative in nature. The Statutory duties include:
- Signing the form for annual returns which is also required to be signed by a director;
- Certifying the financial statements attached to the form’s annual returns, which are also required to be certified by a director;
- Completing and signing a form of application to register a business name of the Company;
Administrative Duties include:
- Maintaining the statutory registers of the company (register of directors and secretary, register of members, register of directors’ and secretaries’ interests and register of debenture holders) and making them available for inspection to those entitled.
- Preparing and filing the annual return and notice of other matters such as changes in directors and secretaries or in their particulars, change of registered office address, a return of allotments, passing of special and certain ordinary resolutions etc. within the prescribed limits in the Corporate Affairs Commission (CAC).
- Preparing and issuing notices of board and general meetings in accordance with instructions given by the Chairman or the Board.
- Attending and taking minutes of meetings and maintenance of the related minute books.
- Ensuring that the board decisions are properly communicated and that action item is circulated to the board members after each board meeting.
- Ensuring that guidance is provided to the board on corporate governance matters generally and ensuring that the provisions of the memorandum and articles of association and of any shareholders’ agreement, to which the company is a party, are observed.
- Providing support to the executive and non-executive directors to include:
- Providing them with a copy of the most recent memorandum and article of association of the company.
- Ensuring that they are aware of their statutory obligations
- Providing them with a schedule of board meetings and
- Providing them with any other information they may validly require to achieve their functions
- Ensuring that the Company complies with its disclosure requirements such as information contained on company letterhead, websites and electronic communications.
- Communicating with Company shareholders/stakeholders.
- Safeguarding of the Company seal and, where authorized, countersigning and, where authorized, countersigning its affixation with one of the directors.
- REMOVAL OF COMPANY SECRETARY
A company secretary shall be appointed by the directors and subject to the provisions of Section 296 of CAMA, may be removed by them.
However, there is a procedure for removal of a secretary of a public company as stated in Section 296(2), (3) (a)-(c) and (4) of CAMA. When the board of directors intends to remove a secretary of a public company, the board shall do the following
- Give notice of such intendment to the secretary, the notice shall state the following
- The intendment to remove him or her
- The grounds of removal
- Providing for a period of not less than 7 working days to make a defence or resign
2. If the secretary did not within the period specified in the notice make a defence or reply, the directors may remove him/her and make a report to the next general meeting.
3. In the alternative, if secretary made a defence and the directors considered it insufficient
- If the ground of removal is fraud or serious misconduct, the board may remove him/her from office and make a report to the next general meeting
- If the ground is that other than fraud or serious misconduct, the board shall remove him/her without the approval of the general meeting but they may suspend him and report to the next general meeting.
- If the general meeting approves the removal, the removal may take effect from such time as may be determined by the general meeting.
Finally, it is important to state that the office of a company secretary is very crucial to the operations of a company.
In many ways, the secretary is now seen as the guardian of the company’s proper compliance with both the law and best practice. Therefore the fact that the position of a Company Secretary is necessary in today’s corporate world cannot be over-emphasized.
Nowadays, the role of a company secretary may also include drafting and reviewing of contractual agreements for private companies. And it would be correct to state that both private and public companies require the services of a company secretary. A private company that that does not have a company secretary may appoint an external individual lawyer or a law firm as its company secretary and solicitor.
Written by Resolution Law Firm, Nigeria
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