Introduction
Every company, whether private or public, must have a secretary except a small company. The company secretary works on the board of directors, the general meeting and may be responsible for the day-to-day running of the company. A company can appoint an assistant or deputy company secretary. Where there is no company secretary, or the office of the secretary is vacant, the acts of a secretary can be done by an assistant or deputy secretary; in their absence any officer of the company authorized generally or on that behalf by the directors.
The former position of law was that a secretary was a mere servant in the company however the Secretary is now regarded as a high ranking official of the company and involved in the management of the company.1 Though, a secretary is part of the management team, he cannot act on its own unless directed to do so. A person can be a director and company secretary at the same time, but acts required to be done by a director, and the company secretary must be done by two separate people. In such instance, it has to be done by a distinct person.
Qualification of a Company Secretary
Any person who appears to the directors of a private company to have requisite knowledge and experience to discharge the functions of a company secretary may be appointed by the company as a secretary. This is because there is no statutory qualification to be met by secretaries of private companies. However, in the case of a public company, the person shall be any of the five persons:
- A member of the Institute of Chartered Secretaries and Administrators; or
- A legal practitioner; or
- A member of any professional body of accounts established from time to time by an Act of the National Assembly; or
- Any person who has held 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 chartered secretary, legal practitioner or chartered accountant.2
Statutory Duties of a Company Secretary
The Company and Allied Maters Act has provided for four duties of the company secretary which includes the following
- The Company Secretary attends the meeting of the company, the board of directors and its committees, rendering all necessary secretarial services in respect of the meeting, and advising on compliance by the meetings with the applicable rules and regulations;
- The Secretary maintains the registers and other statutory records or books;
- He renders proper statutory returns and gives notifications required to be given to Corporate Affairs Commission, and
- Carries out such administrative and other secretarial duties as directed by the directors of the company. The secretary must not, without authority exercise any power vested in the directors.
Regulatory compliances to be made by a Company Secretary
The Company Secretary is to make the following regulatory compliance on behalf of the company to the Corporate Affairs Commission. The Company Secretary is to file or notify the CAC of the following;
- Court orders regarding alteration of objects, re-registration of companies, and rectification of register within 14 days.
- Notice of change of particulars of directors or secretaries within 14 days.
- Annual Returns within 42 days.
- Return of allotment within 15 days
- Registration of charges within 90 days
- Registration of certain resolutions
- Increase of share capital within 15 days of passing the resolution
- Consolidation of shares within 1 month
- Appointment of auditors within 1 week of such appointment
- Removal of auditors within 14 days
- Resignation of auditors
- Returns during receivership and winding up within 14 days
- Returns on the alteration of share capital
- Statutory Reports
- Returns on the Auditors
- Returns during Receivership and Winding up
- Registration of order and minutes of reduction
- Statutory Report
Removal of a Company Secretary
The removal is done by the Board of Directors both in private and public company. The Managing Director cannot unilaterally remove a company secretary. For the removal to be valid, it must be by the board of directors.3 There is no special procedure for the removal of the company secretary of a private company. The procedure for the removal of the company secretary of public company is as follows;
- Where it is intended to remove the company 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 (7) working days within which to make his defense and;
- Giving him an option to resign from his office within a period of seven (7) working days
- Where, following the notice prescribed above, the company secretary does not within the given period resign his office or make a defense, the board may remove him from office and the directors shall make a report to the next general meeting.
- Where the secretary, without resigning from his office makes a defense 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; or
- Is other than 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 company secretary so suspended is removed with approval of the general meeting, the removal may take effect from such time as the general meeting may determine
- Within 14 days after removal, the company shall notify the CAC of the termination of the secretary's appointment in prescribed CAC Form 8A and enter details in the Register of Directors and Secretaries.
Consequences of failing to appoint a Company Secretary
Section 330(4) of CAMA 2020 provides that if a public company fails to appoint a secretary, both the company and its directors will be liable to fines as specified by the Corporate Affairs Commission. If the contravention continues, daily penalties against the company will be imposed by the Commission. This power to impose financial penalty for both the company and its director for non-compliance underscores the seriousness of not having a company secretary as required by CAMA.
To avoid legal consequences, ensuring compliance with statutory legal requirements and promoting good corporate governance practices, it is strongly recommended that all companies in Nigeria appoint a company secretary for improved operational efficiency.
Conclusion
The role of a Company Secretary in Nigeria is multifaceted and crucial for ensuring regulatory compliance. The secretary serves as a key administrative officer, responsible for maintaining statutory records, filing necessary returns with the Corporate Affairs Commission (CAC), and providing essential support to the board of directors.
The secretary's duties include attending meetings, advising on compliance with applicable rules and regulations, and ensuring that the company adheres to its statutory obligations. Given the importance of these responsibilities, it is vital for companies to appoint a qualified and experienced secretary who can effectively manage these tasks.
Moreover, the removal of a company secretary, particularly in public companies, must follow a structured procedure to ensure fairness and transparency. This includes providing the secretary with adequate notice, an opportunity to defend themselves, and in some cases, obtaining approval from the general meeting.
Ultimately, the company secretary plays a pivotal role in maintaining the integrity and compliance of a company's operations, making their position indispensable in the corporate governance framework of Nigerian companies.
By Adeola A. Oyinlade and Olamilekan C. Fayemi for Adeola Oyinlade & Co.
Adeola Oyinlade & Co is a top corporate and commercial law firm in Nigeria specializing in company secretarial services to several companies in diverse sectors of the Nigerian economy. Our services have earned us the Nigeria Law Firm of the Year Award at the Lawyers Global 2024 Annual Legal Awards and the prestigious International Law Firm of the Year in Nigeria of Corporate INTL Global Awards for the years 2022, 2023, 2024 and 2025 (4 years in a row) among others.
Footnotes
1. Panorama Development (Guildford) Ltd v. Fidelis Furnishing Fabrics [1971]
2. Section 332 of the companies and allied matters act 2020
3. Ashibogun V. Afprint (Nig.) Ltd.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
