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 36. Registration documents
(1) The memorandum of association shall be delivered to the Commission together with an application for registration of the company, the documents required by this section and a statement of compliance.
(2) The application for registration shall state—
(a) the company’s proposed name ;
(b) the registered office address and head office address if different from the registered office address ;
(c) whether the liability of the members of the company is to be limited and, if so, whether it is to be limited by shares or by guarantee ; and
(d) whether the company is to be a private or a public company.
(3) If the application is delivered by a person as agent for the subscribers to the memorandum of association, it shall state the name and address of that agent.
(4) The application shall contain—
(a) in the case of a company that has a share capital, a statement of initial issued share capital and initial shareholdings ;
(b) in the case of a company that is limited by guarantee, a statement of guarantee ;
(c) a statement of the company’s proposed directors ;
(d) a statement of the proposed registered office of the company ; and
(e) a copy of the proposed articles of association to the extent that these are not supplied by the default application of model articles.
Section 37. Statement of capital and initial shareholdings
(1) The statement of initial issued share capital and initial shareholdings required to be delivered in the case of a company that has a share capital shall state—
(a) the total number of shares of the company to be taken on formation by the subscribers to the memorandum of association ;
(b) the aggregate nominal value of those shares ;
(c) for each class of shares—
(i) prescribed particulars of the rights attached to the shares,
(ii) the total number of issued shares of that class, and
(iii) the aggregate nominal value of issued shares of that class ; and
(d) the amount to be paid up and the amount (if any) to be unpaid on each share (whether on account of the nominal value of the share or by way of premium).
(2) The statement of initial issued share capital and initial shareholdings shall—
(a) contain such information as may be prescribed for the purpose of identifying the subscribers to the memorandum of association ; and
(b) with respect to each subscriber to the memorandum—
(i) the number, nominal value (of each share) and class of shares to be taken by him on formation, and
(ii) the amount to be paid up and the amount (if any) to be unpaid on each share (whether on account of the nominal value of the share or by way of premium).
(3) Where a subscriber to the memorandum is to take shares of more than one class, the information required under subsection (2) (b for each class.
(4) The total fees payable to the Commission in connection with the filing or increase of a company’s issued share capital under this Part of this Act shall be as the Minister may by regulation specify.
Section 38. Statement of guarantee
(1) The statement of guarantee required to be delivered in the case of a company that is limited by guarantee shall—
(a) contain such information as may be prescribed for the purpose of identifying the subscribers to the memorandum of association ; and
(b) that each member undertakes that, if the company is wound up while he is a member, or within one year after he ceases to be a member, he shall contribute to the assets of the company such amount as may be required for—
(i) payment of the debts and liabilities of the company contracted before he ceases to be a member, payment of the costs, charges and expenses of winding-up, and
(ii) adjustment of the rights of the contributories among themselves, not exceeding a specified amount.
Section 39. Statement of proposed directors
(1) The statement of the company’s proposed directors required to be delivered to the Commission shall contain the required particulars of—
(a) the person who is, or persons who are, to be the first director or directors of the company ; and
(b) where applicable, the person who is, or persons who are, to be the first secretary or joint secretaries of the company.
(2) The required particulars are the particulars that are required to be stated in the case of a—
(a) director, in the company’s register of directors and register of directors’ residential addresses ; and
(b) secretary, in the company’s register of secretaries.
(3) The statement shall also contain a consent by each of the persons named as a director, as secretary or one of joint secretaries, to act in the relevant capacity but if all the partners in a firm are to be joint secretaries, consent may be given by one partner on behalf of all of them.
Section 40. Statement of compliance
(1) The statement of compliance required to be delivered to the Commission is a statement by the applicant or his agent that the requirements of this Act as to registration have been complied with.
(2) The Commission may accept the statement of compliance as sufficient evidence of compliance.
(3) Nothing in this section prevents the Commission from accepting declaration of compliance which is signed by a legal practitioner and attested before the commissioner for oaths or notary public.
Section 41. Registration
(1) The Commission shall register the memorandum and articles unless in its opinion—
(a) they do not comply with the provisions of this Act ;
(b) the business which the company is to carry on, or the objects for which it is formed, or any of them, are illegal ;
(c) any of the subscribers to the memorandum is incompetent or disqualified in accordance with section 20 of this Act ;
(d) there is non-compliance with the requirement of any other law as to registration and incorporation of a company ; or
(e) the proposed name conflicts with or is likely to conflict with an existing company, trade mark or business name registered in Nigeria.
(2) Any person aggrieved by the decision of the Commission under subsection (1), may give notice to the Commission requiring it to apply to the Court for directions and the Commission shall, within 21 days of the receipt of such notice, apply to the court for the directions.
(3) The Commission may, in order to satisfy itself as provided in subsection (1) (c), by instrument in writing, require a person subscribing to the memorandum to make and lodge with the Commission, a statutory declaration to the effect that he is not disqualified under section 20 of this Act from joining in forming a company.
(4) Steps to be taken under this Act to incorporate a company shall not include any invitation to subscribe for shares or on the basis of a prospectus.
(5) Upon registration of the memorandum and articles, the Commission shall certify under its seal—
(a) that the company is incorporated ;
(b) in the case of—
(i) a limited company, that the liability of the members is limited by shares or by guarantee, or
(ii) an unlimited company, that the liability of the members is unlimited ; and
(c) that the company is a private or public company, as the case may be.
(6) The certificate of incorporation shall be prima facie evidence that all the requirements of this Act in respect of registration and matters precedent and incidental to it have been complied with and that the association is a company authorised to be registered and duly registered under this Act.
(7) The Commission may withdraw, cancel or revoke a certificate of incorporation issued under this Act where it is discovered that the certificate was fraudulently, unlawfully or improperly procured.
(8) The Commission may cause the publication of the withdrawal, cancellation or revocation of certificates of incorporation periodically in the Federal Government Gazette.
Section 42. Effect of registration
As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the powers and performing all functions of an incorporated company including the power to hold land, and having perpetual succession, 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 this Act.
What this means
Short answer
To register a company you deliver the memorandum and articles to the Commission with an application, a statement of initial issued share capital (or of guarantee), a statement of proposed directors and a statement of compliance (section 36). The Commission registers them unless one of five grounds applies (section 41) and issues a certificate of incorporation, which is prima facie evidence that the Act’s requirements were met (section 41(6)).
What you deliver
The memorandum goes to the Commission with an application and a statement of compliance (section 36(1)). The application states the proposed name, the registered office address and head office address if different, whether members’ liability is limited by shares or guarantee, and whether the company is private or public. If an agent delivers it for the subscribers, it names the agent (section 36(2) and (3)). It also contains:
- for a company with share capital, a statement of initial issued share capital and initial shareholdings (section 37);
- for a company limited by guarantee, a statement of guarantee in which each member undertakes to contribute if the company is wound up while he is a member or within a year after (section 38);
- a statement of proposed directors, and of the secretary if there is one, with each person’s particulars and written consent to act (section 39);
- a statement of the proposed registered office; and
- a copy of the proposed articles, unless the model articles apply by default (section 36(4)).
The statement of compliance says the registration requirements have been met. The Commission may accept it as sufficient evidence, including a declaration signed by a legal practitioner and attested before a commissioner for oaths or notary public (section 40). See minimum share capital for the statement of capital.
When the Commission can refuse
Section 41(1) says the Commission registers the memorandum and articles unless, in its opinion:
- they do not comply with the Act;
- the business or objects are illegal;
- a subscriber is incompetent or disqualified under section 20;
- another law on registration and incorporation has not been complied with; or
- the proposed name conflicts, or is likely to conflict, with an existing company, trade mark or business name registered in Nigeria.
A person aggrieved can give notice requiring the Commission to apply to the court for directions, and the Commission must do so within 21 days of the notice (section 41(2)). The Commission may also require a subscriber to lodge a statutory declaration that he is not disqualified under section 20 (section 41(3)). Steps to incorporate a company cannot include an invitation to subscribe for shares or any prospectus (section 41(4)).
The certificate of incorporation
On registration the Commission certifies under its seal that the company is incorporated, whether the liability of members is limited by shares or guarantee or is unlimited, and whether the company is private or public (section 41(5)). The certificate is prima facie evidence that all the requirements for registration were met and that the association is a company duly registered under the Act (section 41(6)). The Commission can withdraw, cancel or revoke a certificate that was fraudulently, unlawfully or improperly procured, and may publish such decisions periodically in the Federal Government Gazette (section 41(7) and (8)).
What registration does
From the date of incorporation shown on the certificate, the subscribers and anyone who later becomes a member are a body corporate under the name in the memorandum. It can exercise all the powers and functions of an incorporated company, including holding land, and has perpetual succession. Members remain liable to contribute to the company’s assets on a winding up as the Act provides (section 42).
Questions and answers
What documents are needed to register a company?
The memorandum and articles with an application, a statement of initial issued share capital (or of guarantee), a statement of proposed directors with their consents, a statement of proposed registered office, and a statement of compliance (sections 36 to 40).
Can the Commission refuse to register a company?
Yes, on the five grounds in section 41(1): non-compliance with the Act, illegal objects, a disqualified subscriber, non-compliance with another registration law, or a name that conflicts with an existing company, trade mark or business name.
What does a certificate of incorporation prove?
That all the requirements for registration were met and the association is a company duly registered under the Act (section 41(6)).
Can a certificate of incorporation be cancelled?
Yes. The Commission can withdraw, cancel or revoke one that was fraudulently, unlawfully or improperly procured (section 41(7)).
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