The sections, word for word
Every section on this subject, exactly as printed in the Official Gazette (Act No. 3 of 2020). The explanation follows beneath.
Section 330. Secretaries
(1) Except in the case of a small company, every company shall have a secretary.
(2) Where at the commencement of this Act a public company has not appointed a secretary, the company shall not later than six months after the commencement of this Act appoint a secretary.
(3) Anything required or authorised to be done by or of the secretary may, if the office is vacant or there is for any other reason no secretary capable of acting, be done by or of any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or of any officer of the company authorised generally or specially by the directors.
(4) If a public company contravenes the provisions of this section, the company and the directors of the company are liable to a fine in such amount as the Commission shall specify and, in the case of continued contravention, to a daily penalty in such amount as the Commission shall specify.
Section 331. Avoidance of acts done by a person as director and secretary
A provision requiring or authorising a thing to be done by or of a director and the secretary is not satisfied by its being done by or of the same person acting both as director and as, or in place of the secretary.
Section 332. Qualification of a secretary
It is 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 the requisite knowledge and experience to discharge the functions of a secretary of a 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 ;
(c) a member of any professional body of accountants established from time to time by an Act of the National Assembly ;
(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 paragraph (a), (b), or (c).
Section 333. Appointment and removal of a secretary
(1) A secretary is appointed by the directors and, subject to the provisions of this section, may be removed by them.
(2) Where it is intended to remove the secretary of a public company, the board of directors shall give him notice—
(a) stating that it is intended to remove him ;
(b) setting out the grounds on which it is intended to remove him ;
(c) giving him a period at least seven working days within which to make his defence ; and
(d) giving him an option to resign his office within seven working days.
(3) Where, following the notice prescribed in subsection (2), 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 the secretary, without resigning his office, makes a defence and the board does not consider it sufficient, if the ground—
(a) on which it is intended to remove him is fraud or serious misconduct, the board may remove him from office and shall report to the next general meeting ; and
(b) 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.
(4) Notwithstanding any provision of law, where a secretary suspended under subsection (3) (b) is removed with the approval of the general meeting, the removal may take effect from such time as the general meeting may determine.
Section 334. Fiduciary interests of a secretary
A secretary does not owe fiduciary duties to the company, but where he is acting as its agent he owes fiduciary duties to it, and as such is 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.
Section 335. Duties of a secretary
(1) The duties of a secretary include—
(a) attending 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 ;
(b) maintaining the registers and other records required to be maintained by the company under this Act ;
(c) rendering proper returns and giving notification to the Commission required under this Act ; and
(d) carrying out such administrative and other secretarial duties as directed by the director or the company.
(2) The secretary shall not, without the authority of the board exercise any power vested in the directors.
Section 336. Register of secretaries
Every public company shall maintain a register of secretaries which shall contain the particulars set out in section 337 of this Act.
Section 337. Particulars of secretaries to be registered: individuals
(1) A company’s register of secretaries shall contain the following particulars in the case of an individual—
(a) full name and any former name or names ;
(b) address ; and
(c) email address.
(2) For the purposes of this section a “former name” means a name by which the individual was formerly known.
(3) The register may not contain particulars of a former name where the former name—
(a) was changed or disused before the person attained the age of 18 years ; or
(b) has been changed or disused for 20 years or more.
(4) The address required to be stated in the register is a service address which may be stated to be the company’s registered office.
Section 338. Particulars of secretaries to be registered: corporate secretaries and firms
(1) A company’s register of secretaries shall contain the following particulars in the case of a body corporate, or a firm—
(a) corporate or firm name ;
(b) registered or principal office ; and
(c) email address.
(2) If all the partners in a firm are joint secretaries it is sufficient to state the particulars that would be required if the firm were a legal person and the firm had been appointed secretary.
Section 339. Duty to notify the Commission of changes
(1) A company shall, within 14 days, from—
(a) a person becoming or ceasing to be a secretary, or
(b) the occurrence of any change in the particulars contained in its register of secretaries, give notice to the Commission of the change and of the date on which it occurred.
(2) Notice of a person having become a secretary of the company shall—
(a) contain a statement of the particulars of the new secretary that are required to be included in the company’s register of secretaries ; and
(b) be accompanied by a consent, by that person, to act in that capacity.
(3) If default is made in complying with this section, the company and each officer of the company are liable to a penalty for every day during which the default continues in such amount as the Commission shall specify in its regulations.
Section 340. Particulars of secretaries to be registered and notified to the Commission: power to make regulations
The Minister may, by regulations vary particulars required to be contained in a company’s register of secretaries and to be notified to the Commission.
What this means
Short answer
Every company except a small company must have a secretary (section 330). The secretary attends meetings and gives secretarial services, keeps the company’s registers, files returns and notices with the Commission, and does administrative work the directors assign (section 335). A public company’s secretary must hold one of the qualifications in section 332.
Does your company need a secretary?
Section 330(1) says every company, except a small company, must have a secretary. If the office is vacant, or no secretary is able to act, an assistant or deputy secretary can act, or failing that an officer the directors have authorised generally or specially (section 330(3)). If a public company breaks the rule, the company and its directors are liable to a fine set by the Commission, and to a daily penalty if it continues (section 330(4)). A thing the Act requires to be done by a director and the secretary is not satisfied by one person acting in both roles (section 331).
Who can be a secretary
Directors must take reasonable steps to make sure the secretary appears to have the knowledge and experience the job needs (section 332). In a public company the secretary must be one of the following:
- a member of the Institute of Chartered Secretaries and Administrators;
- a legal practitioner under the Legal Practitioners Act;
- a member of a professional body of accountants established by an Act of the National Assembly;
- a person who has been secretary of a public company for at least three of the five years before the appointment; or
- a body corporate or firm whose members are each qualified under the first three points.
What a secretary does
Section 335(1) lists the secretary’s duties. They include attending meetings of the company, the board and its committees, providing the secretarial services for them and advising on compliance. They also include keeping the registers and records the Act requires, filing the returns and notices the Commission requires, and doing administrative and secretarial work the directors or the company direct. The secretary may not exercise a power vested in the directors without the board’s authority (section 335(2)).
A secretary does not owe fiduciary duties to the company as such. When acting as its agent, however, he does, and he is liable to the company for secret profits, for letting his duties conflict with his own interests, and for using confidential information for his own benefit (section 334).
Appointment and removal
The directors appoint a secretary and may remove him (section 333(1)). Removing the secretary of a public company has a procedure. The board must give notice that it intends to remove him, state its grounds, allow at least seven working days to make a defence, and offer him the option to resign within seven working days. If he neither resigns nor defends, the board may remove him and report to the next general meeting.
- If he defends and the board is not satisfied, and the ground is fraud or serious misconduct, the board may remove him and report to the next general meeting.
- If the ground is anything else, the board needs the general meeting’s approval, but may suspend him and must report to the next general meeting (section 333(3)).
The register of secretaries and notifying changes
A public company must keep a register of secretaries (section 336). For an individual it shows full name and former names, an address that may be the registered office, and an email address. For a body corporate or firm it shows the name, registered or principal office, and email address (sections 337 and 338). Within 14 days of a person becoming or ceasing to be secretary, or of a change in the particulars, the company must notify the Commission. A new secretary’s notice must carry his consent to act (section 339).
Questions and answers
Does every company need a company secretary?
Every company except a small company must have one (section 330(1)).
Who can be the secretary of a public company?
A member of the Institute of Chartered Secretaries and Administrators, a legal practitioner, a member of an accountancy body set up by an Act of the National Assembly, a person with three years’ experience as secretary of a public company in the last five, or a body corporate or firm of qualified members (section 332).
What are the secretary’s main duties?
Attending and servicing meetings and advising on compliance, keeping the registers and records, filing returns and notices with the Commission, and administrative duties the directors give (section 335).
How long does the company have to tell the Commission about a new secretary?
14 days, with the new secretary’s consent to act (section 339).
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