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Part XVIII

Miscellaneous and Supplemental

 

 

Application of this Part of this Decree

 

 

624.    (1)         Except as otherwise provided, this Part, that is, Part A of this Decree shall apply to-

 

(a)             all companies formed and registered under this Decree;

 

(b)             all existing companies;

 

(c)             all companies incorporated, formed or registered under other enactments; and

 

(d)             unregistered companies.

 

  (2)          This Decree shall not apply to unions of workers or of employers; and registration of any such union whether described as such a union or as trade union shall, if effected under the Companies Act, 1968 before its repeal by this Decree, be void.

 

625.    (1)         Except as otherwise expressly provided in this Decree-

 

(a)             the provisions of this Decree shall have effect notwithstanding anything to the contrary contained in the memorandum of articles of a company, or in any agreement executed, by it, or in any resolution passed by the company in general meeting or by its board of directors whether the same be registered, executed or passed as the case may be, before or after commencement of this Decree; and

 

(b)             any provision contained in the memorandum or articles, agreement or resolution as in paragraph (a) of this subsection shall, to the extent to which it is repugnant to the provisions of this Decree become or be void, as the case may be.

 

  (2)          Any provision of this Decree overriding or interpreting a company's articles as if a re-enacted provision of the Companies Act, 1968 shall, except as provided by this Decree, apply in relation to articles in force at the commencement of this Decree, as well as to articles coming into force thereafter, and shall apply also in relation to a company's memorandum as it applies in relation to its articles.

 

626.         In the application of this Decree to existing companies, it shall apply in the same manner-

 

(a)             in the case of a limited company, other than a company limited by guarantee, as if the company had been formed and registered under this Decree as a company limited by shares;

 

(b)             in the case of a company limited by guarantee, as if the company has been formed and registered under this Decree as a company limited by guarantee; and

 

(c)             in the case of a company, other than a limited company, as if the company had been formed and registered under this Decree as an unlimited company:

 

Provided that reference, express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered under the Companies Act, 1912 as the first Nigerian enactment in respect of companies, or as the case may be, any enactment relating to companies thereafter in force in Nigeria before the commencement of this Decree.

 

627.         This Decree shall apply to every company registered but not formed under the Companies Act, 1912 aforesaid or, as the case may be, any enactment relating to companies thereafter in force in Nigeria before the commencement of this Decree:

 

Provided that reference, express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered under the enactment in force in Nigeria at the date when it was registered.

 

628.         This Decree shall apply to every unlimited company registered as a limited company in pursuance of section 52 of the Companies Act, 1968 or of any enactment replaced by that section, as the case may be,m in the same manner as it applies to an unlimited company registered in pursuance of this Decree as limited company:

 

Provided that reference express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered as a limited company under the said section 52 or any enactment replaced by that section, as the case may be.

 

629.     (1)         The provisions of this Decree specified in column 2 of Schedule 13 to this Decree (which respectively related to all bodies corporate, incorporated in and having a principal place of business in Nigeria, other than those mentioned in subsection (2) of this section as if they were companies registered under this Decree, but subject to any limitations mentioned in relation to those provisions respectively in the third column of that Schedule and to such adaptation and modifications (if any) as amy be specified by order made by the Minister and published in the Gazette.

 

  (2)          The provisions of subsection (1) of this section shall not apply by virtue of this section to any of the following, that is to say-

 

(a)             any body incorporated under any enactment other than this Decree;

 

(b)             any body not formed for the purpose of carrying on a business which has for its objects the acquisition of gain by the body or by the individual members thereof; and

 

(c)             any body for the time being exempted by the direction of the National Council of Ministers.

 

  (3)          This section shall not repeal or revoke in whole or in part any enactment or other instrument constituting or regulating any body in relation to which the said provisions are applied by virtue of this section; but in relation to any such body, the operation of any such enactment or instrument shall be suspended in so far as it is inconsistent with any of the said provisions as they apply for the time being to that body.

 

 

Administration

 

 

630.    (1)         The address of the registered or head office of a company given to the Commission in accordance with paragraph (e) of subsection (2) of section 35 of this Decree or any change in the address made in accordance with the provisions of this section shall be the office to which all communications and notices to the company may be addressed.

 

  (2)          Notice of any change in the address of the registered or head office of the company shall be given within 14 days of the change to the Commission which shall record the same:

 

Provided that a postal box address or a private mail bag address shall not be accepted by the Commission as the registered or head office.

 

  (3)          If a company carries on business without complying with subsection (2) of this section, the company and every officer in default shall be guilty of an offence liable to a fine of 50 for every day during which and the company so carries on business.

 

  (4)          The fact that a change in the address of a company is included in is annual return shall not be taken to satisfy the obligation imposed by this section.

 

  (5)          Where a company incorporated before the commencement of this Decree has provided an address not in accordance with this section or section 35 of this Decree, as the case may be, it shall within 14 days after such commencement comply with the requirements of this section and the failure shall be an offence punishable as prescribed by this section.

 

631.    (1)         Every company, after incorporation shall-

 

(a)             paint or affix, and keep painted or affixed, its name and registration number on the outside of every office or place in which its business is carried on, in a conspicuous position, in letters easily legible;

 

(b)             have its name engraved in legible characters on its seals; and

 

(c)             have its name and registration number mentioned in legible characters in all business letters of the company and in all notices, advertisements, and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills or parcels, invoices, receipts, and letters of credit of the company.

 

  (2)          If a company fails to paint or affix, and keep painted or affixed its name in the manner directed by this Decree, it shall be liable to a fine of 100 for not so painting or affixing its name, and for every day during which its name is not so kept, painted or affixed; and every director and manager of the company who knowingly and wilfully authorises or permits the default shall be liable to the like penalty.

 

  (3)          If a company fails to comply with the provisions of paragraph (b) or (c) or sub-section (1) of this section, the company shall be guilty of an offence and liable to a fine of 500.

 

  (4)          If any officer of a company or any person on its behalf-

 

(a)             uses or authorises the use of any seal purporting to be a seal of the company whereon its name is not so engraved as aforesaid; or

 

(b)             issues or authorises the issue of any business letter of the company or any notice, or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods wherein its name is not mentioned in the manner aforesaid; or

 

(c)             issues of authorises to be issued any bill or parcels, invoice, receipt, or letter of credit of the company, wherein its name is not mentioned in manner aforesaid,

 

he shall be guilty of an offence and on conviction liable to a fine of 500 and shall further be personally liable to the holder of any such bill of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless it is duly paid by the company.

 

632.    (1)      There shall be paid to the Commission in respect of the several matters mentioned in Schedule 17 to this Decree the fees there specified; and where no provision is made for fees in particular cases, the Minister may with the approval of the National Council of Ministers by order published the Gazette prescribe fees and amend the said Schedule to give in effect to it.

 

  (2)          Subject to subsection (3) of this section, any fees paid to the Registrar of Companies before the commencement of this Decree shall be deemed to have been validly paid under this Decree.

 

  (3)          The fees referred to in subsection (2) to this section shall cease to be payable immediately the fees specified in Schedule 17 of this Decree become operative and payable.

 

  (4)          All fees paid to the Commission and not otherwise directed by this Decree for payment into a particular account, shall be paid into the Consolidated Revenue Fund of the Federation.

 

633.    (1)         Any register, record, index, minute book or book of account required by this Decree to be made an d kept by a company may be made by making entries in bound books or in loose leaves, whether pasted to not, or in a photograph c film form, or may be entered or recorded by any information storage device that is capable of reproducing the required information in intelligible written form within a reasonable time, or by recording the matters in question in any other manner in accordance with the accepted commercial usage.

 

  (2)          Where any such register, record, index, minute book or book of account is not kept by making entries in a bound book, but by some other means, adequate precautions shall be taken for guarding against falsification and for facilitating its discovery and where default is made in a complying with the provisions of this subsections, the company and every officer of the company who is in default shall be liable to a fine of 50 and where the offence is a continuing one, shall in addition be liable to a fine of 50 for everyday during which the default continues.

 

  (3)          Where any such register, index, minute book or accounting record is not kept by making, entries in a bound book, but by some other means including electronic means, adequate precautions shall be taken for guarding against falsification and facilitating its discovery.

 

  (4)          If default is made in complying with the provisions of subsection (3) of this section, the company and every officer of it who is in default shall be guilty of an offence and liable to a fine of 50 and for continuing contravention, to a daily default fine of 5.

 

  (5)          The power conferred on a company by sub-section (1) of this section to keep register, or other record by recording the matters in question otherwise than by making entries in bound books includes power to keep the register or other record by recording those matters otherwise than a legible form, so long as the recording is capable of being reproduced in a legible form.

 

  (6)          Any provisions of an instrument made by a company before 1st October 1968 which requires register of holders of the company debentures to be kept in a legible form shall be read as requiring the register to be kept in a legible or non-legible form.

 

  (7)          If any such register or other record of a company as is mentioned in subsection (2) of this section or a register of holders of a company's debentures, is kept by the company by recording the matters in question otherwise than in a legible form, the duty imposed on the company by this Decree to allow inspection of or to furnish a copy of the register or other record or any part of it shall be treated as a duty to allow inspection of, or to furnish, a reproduction of the recording or of the relevant part of it in a legible form.

 

634.    (1)         Any person may, on payment of the fees prescribed in Part III of Schedule 17 to this Decree inspect documents or obtain certificates of incorporation or copies of or extracts from documents held by the Commission for the purposes of this Decree.

 

  (2)          Where a copy or extract from any document registered under this Decree is certified by the Commission to be a true copy or extract, it shall in all proceedings be admissible in evidence as of equal validity with the original document, and it shall be unnecessary to prove the official position of the person certifying the copy of extract.

 

  (3)          No process for compelling the production of any document kept by the commission shall issue from any court, except with the leave of that court, and such process, if issued, shall bear thereon a statement that it is issued with the leave of the court.

 

635.    (1)         The Chief Judge of the Federal High Court may make rules of court for carrying into effect the objects of this Decree so far as they relate to the winding up of companies or generally in respect of other applications to a court under this Decree.

 

  (2)          For the purpose of this section, it is declared that rules made for the purpose of any enactment passed or made on or before, or to have effect on or after, the commencement of this Decree shall, on its commencement, ensure and have effect where they are not inconsistent with rules of court made or deemed to have been made, under this section.

 

636.    (1)         Every banking company or an insurance company or a deposit, provident, or benefit society shall, before it commences business, and also on the first Monday in February and the first Tuesday in August in every year during which it carries on business, submit to the Commission a statement in the form in Schedule 14 to this Decree or as near thereto as circumstances may admit.

 

  (2)          A copy of the statement shall be put up in a conspicuous place in the registered office of the company, and in every branch office or place where the business of the company is carried on.

 

  (3)          Every member and every creditor of the company shall be entitled to a copy of the statement, on payment of a sum not exceeding 1.

 

  (4)          If default is made in compliance with this section, the company shall be guilty of an offence and liable to a fine of 100 for every day during which the default continues; and every director and manager of the company who knowingly and wilfully authorises or permits the default shall be liable to the like penalty.

 

  (5)          For the purposes of this Decree, a company that carries on the business of insurance in common with any other business or businesses shall be deemed to be an insurance company.

 

 

Legal Proceedings, etc.

 

 

637.    (1)         All offences under this Decree for a criminal sanction to be imposed in case of an act, omission or default without reference therein to the default being as offence, or without reference to conviction thereof in a court, as the case may be, the reference to the act, omission or default shall be construed as referable to an offence, and the expression "offences" as used in this section shall have effect in relation to any such act, omission or default.

 

638   (1)         If, on application made to a Judge of the Federal High Court in chambers by the Attorney-General of the Federation, there is shown to be reasonable cause to believe that a person has, while in officer of a company, committed an offence in connection with the management of the company's affairs and that evidence of the commission of the offence is to be found in any books or papers of or under the control of the company, an order may be made -

 

(a)             authorising any person named therein to inspect the said books or papers or any of them for the purpose of investigating and obtaining evidence of the offence; or

 

(b)             requiring the secretary of the company or any other officer thereof as may be named in the order to produce the said books or papers, to a person and at place named in the order.

 

  (2)          The provisions of subsection (1) of this section shall apply also in relation to any books or papers of a person caring on the business of banking so far as they relate to the company's affairs, as it applies to any books or papers of our under the control of the company, except that no such order as is referred to in paragraph (b) of that subsection shall be made by virtue of this subsection.

 

  (3)          No appeal shall lie from the decision of a Judge of the Federal High Court on any application under this section.

 

639.         Where a limited company is the plaintiff in any action or other legal proceedings, any Judge having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the company may be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be give for those costs, and may stay all proceedings until the security is given.

 

640.         Where proceedings are instituted under this Decree against any person by the Attorney-General of the Federation, nothing in this Decree shall be taken to require any person who has acted as legal practitioner for the defendant to disclose any privileged communication made to him in that capacity.

 

641.    (1)         If in any proceeding for negligence, default or breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor it appears to the court hearing the case that the officer or person is or may be liable in respect of the negligence, default, or breach of duty or breach of trust, but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case, including those connected with his appointment he ought fairly to be excused for the negligence, default or breach of duty or breach of trust, that court may relieve him, either wholly or partly, from this liability on such terms as the court may deem fit.

 

  (2)          When any such officer or person aforesaid has reason to apprehend that any claim may be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief, and the court on any such application shall have the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust has been brought.

 

642.         If any person trades or carries on business under any name or title of which the last word or words are "Unlimited", "Limited", "Public Limited Company" or "Limited by Guarantee" or their abbreviations, he shall, unless duly incorporated as an unlimited company, a private company limited by shares, a public limited by shares, or a company limited by guarantee respectively be guilty of an offence and liable to a fine of 50 for every day during which the name or title is used.

 

643.    (1)         Where a penalty is not elsewhere prescribed in this Decree and subject to the provisions of subsection (2) of this section, if any person in any return, report, certificate, balance sheet, or other document required by or for the purpose of any of the provisions of this Decree, wilfully makes a statement which is false in any material particular knowing it to be false, he shall be guilty of an offence and liable-

 

(a)             on conviction in the High Court to imprisonment for a term of two years: or

 

(b)             on conviction in a lower court, to a fine of 1,000 or to imprisonment for a term of four months, or to both such fine and imprisonment.

 

  (2)          Nothing in this section shall affect the provisions of any enactment imposing penalties in respect of perjury in force in Nigeria.

 

644.        The provisions of section 514(3) of this Decree (which imposes penalty for certain offences connected with fraudulent trading discovered on winding up a company shall extend and apply to cases where fraudulent trading is discovered in circumstances other than on winding up a company.

 

645.         Any court imposing a fine under this Decree may direct that the whole or nay part thereof be applied in or towards payment of the costs of the proceedings, or in or towards rewarding the person on whose information or at whose suit the fine is recovered and subject to any such direction, all fines under this Decree shall notwithstanding anything in any other enactment be paid into the appropriate Consolidated Revenue Fund.

 

646.    (1)         The Commission may apply to court for directions in respect of any matter concerning its duties, powers and functions under this Decree and on any such application, the court may give such directions and make such further order as it thinks fit in the circumstances.

 

  (2)          The Commission may conduct enquires with respect to the compliance with the provisions of this Decrees by any person or company.

 

 

Miscellaneous

 

 

647.    (1)         The Commission may, with the approval of the National Council of Ministers, by regulation or order, published in the Gazette, add to, delete from or otherwise alter the whole or any part of any of the Schedules, Tables or Forms prescribed or in force under this Decree.

 

  (2)          It is hereby declared that until regulations, rules or orders are made under and for the purpose of this Decree prescribing forms for use, the force at the commencement of this Decree shall be deemed to have been made under it and shall have effect accordingly.

 

648.    (1)         If a company, having made default in complying with any provision of this Decree requiring it to file with, deliver or send to the Commission any return, account or other document, or to give notice to it of mission any return, account or other document, or to give notice to it of any matter, fails to make good the default within 14 days after the service of a notice on the company requiring it to do so, the court may, on the application of any member or creditor of the company or of the Commission, order the company and any officer to make good the default within such time as may be specified in the order.

 

  (2)          Any order under this section may provide that all costs of incidental to the application shall be borne by the company or by any officer of the company responsible for the default.

 

  (3)          Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a company or its officers in respect of any such default as aforesaid.

 

649.    (1)         The powers of a company include (if they would not otherwise do so apart from this section) power to make the following provisions for the benefit of persons employed or formerly employed by the company or any of its subsidiaries, that is to say, provision in connection with the cessation or the transfer, to any person of the whole part of the undertaking of the company or subsidiary.

 

  (2)          The power conferred by subsection (1) of this section shall be exercisable notwithstanding that its exercise is not in the best interest of the company.

 

  (3)          The power which a company may exercise by virtue only of subsection (1) of this section shall only be exercised by the company if sanctioned-

 

(a)             in a case not falling within paragraph (b) (c) of this subsection resolution of the company; or

 

(b)             if so authorised by the memorandum or articles, a resolution of the directors; or

 

(c)        If the memorandum or articles require the exercise of the power to be sanctioned by a resolution other than a simple resolution of the company, with the sanction of that other resolution.

 

  (4)          Any payment which may be made by a company under this section may, if made before the commencement of any winding up of the company, be made out of profits of the company which are available for dividend.

 

650.    (1)         In this Part, that is, Part A of this Decree, unless the context otherwise requires-

 

"accounts" includes a company's group accounts, whether prepared in the form of accounts or not;

 

"agent" does not include a legal practitioner acting as counsel for any person;

 

"alien" means a person or associate whether corporate or unincorporated other than a Nigeria citizen or association;

 

"amalgamation" has the meaning assigned to it under section 590 of this Decree;

 

"annual return" means the return required to be made, in the case of a company limited by shares under sections 371 to 372 and, in the case of a company limited by guarantee, under section 373 of this Decree;

 

"the appointed day" means a period of one year from the commencement of this Decree.

 

"arrangement" has the meaning assigned to it under section 537 of this Decree;

 

"articles" means the articles of association of a company, as originally framed or as altered by special resolution, including so far as they apply to the regulations contained in Table A in the First Schedules of the Companies Act, 1922 or in that Table as altered by any subsequent enactment or reprint of the laws, or in Table A in Schedule 1 to this Decree;

 

"authorised minimum share capital" means 10,000 in the case of a private company and 500,000 in the case of a public company;

 

"authorised share capital" means the share capital of a company at any give time;

 

"book and paper" and "book or paper" include accounts deeds, writings, and document;

 

"circulating capital" means a portion of the subscribed capital of the company intended to be used by being temporarily parted with and circulated in business, in the form of money, goods and other assets, and which, or the proceeds of which, are intended to return to the company with an increment, and are intended to be used again and again, and to always return with some accretion;

 

"Commission" except when referred to in Part XVII means the Corporate Affairs Commission established under section 1 of this Decree;

 

"company" or "existing company" means a company formed and registered under this Decree or, as the case may be, formed and registered in Nigeria before an in existence on the commencement of this Decree

 

 

"company limited by guarantee" and "company limited by shares" have the meanings assigned to them respectively by section 21 of this Decree;

 

"companies liquidation account" means the account kept on behalf of the Commission pursuant to section 428 of this Decree;

 

"contributory" means every person liable to contribute to the assets of a company in the event of its being wound up and for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, the expression includes any person alleged to be contributory;

 

"court" or "the court" used in relation to company, means the Federal High Court, and to the extent to which application may be made to it as; court includes the Court of Appeal and the Supreme Court of Nigeria:

 

"creditors voluntary winding up" has the meaning assigned to it by section 462 (4) of this Decree;

 

"debenture" means a written acknowledgement of indebtedness by the company, setting out the terms and conditions of the indebtedness, and includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not;

 

"director" includes any person occupying the position of director by whatever name called; and includes any person in accordance with those directions or instructions the directors of the company are accustomed to act;

 

"dividend" means a proportion of the distributed profits of the company which may be fixed annual percentage, as in the case of preference shares, or it may be variable according to the prosperity or other circumstances of, the company, as in the case of equity shares;

 

"document" includes summons, notice, order and other legal process, and register;

"equity share" means a share other than a preference share; and "equity capital" shall be construed accordingly;

 

"fixed capital" means that capital which a company retains in the form of assets upon which the subscribed capital or other sum has been expended, and which assets either themselves produced income, independent of any further action by the company, or being retained by the company are made use of to produce income or gain profits;

 

"foreign company" means a company incorporated elsewhere than in Nigeria;

 

"forename" includes a Christian name and a personal name, and "surname" includes a patronymic;

 

"Gazette" means the official Gazette of the Federation;

 

"group financial statements" has the meaning assigned to it by section 336(1) of this Decree;

 

"holding company" means a holding company as defined by section 338 of this Decree;

 

inability to pay debts" in relation to a company has the meaning assigned by section 409 of this Decree;

 

"insolvent person" where used in this Decree means any person in Nigeria who, in respect of any judgment, decree or court order against him, is unable to satisfy execution or other process issued thereon in favour of a creditor, and the execution or other process remains unsatisfied for not less than six weeks;

 

"issued generally" means, in relation to a prospectus, issued to persons who are not existing members or debenture holders of the company;

 

"issued share capital" in relation to any reduction, has the meaning assigned by section 105(2) of this Decree;

 

"legal practitioner" has the meaning assigned to it by the Legal Practitioners Act 1975;

 

"member" includes the heir, executor, administrator or other personal representative, as the case may be, of the member;

 

"members voluntary winding up" has the meaning assigned to it by section 462 (4) of this Decree;

 

"memorandum" means the memorandum of association of a company as originally framed or as altered in pursuance of any enactment;

 

"minimum subscription" has the meaning assigned to it by Section 567 (3) of this Decree;

 

"Minister" means the Minister charged with responsibility for trade; and Ministry" shall be constituted accordingly;

 

"non-cash asset" means any property or interest in property other than cash and for this purpose, cash includes foreign currency;

 

"officer" in relation to a body corporate, includes a director, manager or secretary;

 

"official receiver" means the officer by whatever name called or known charged with control of affairs in bankruptcy and if the appointment is vacant for any reason whatsoever, means the sheriff;

 

"personal representative" where customary law is applicable includes successors appointed in respect of deceased contributories;

 

"preference share" means a share, by whatever name designated, which does not entitle the holder of it to any right to participate beyond a specified amount in any distribution whether by way of dividend or on redemption, in a winding up, or otherwise; **********

 

"prescribed" means, as respects the provisions of this Decree (other than as to the winding up of companies), prescribed by court or, as the case may be, by other proper authority by regulations or order, and as to winding up, means as prescribed by rules of court, or deemed so to be;

 

"private company" has the meaning assigned to it by section 22(1) of this Decree;

 

"prospectus" means any prospectus, notice, circular, advertistment, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company and includes any document which save to the extent that it offer securities for a consideration other than cash, is prospectus;

 

"receiver." includes a manager,

 

"recognised stock exchange" means any body of persons for the time being recognised by the Securities and Exchange Commission as a stock exchange dealing in shares, debentures and other securities;

 

"registered company" means a company incorporated or deemed to be incorporated under this Decree;

 

"the Registrar-General" means the Registrar-General appointed under section 8 of this Decree;

 

"resolution for reducing share capital" has the meaning assigned to it by section 106 of this Decree;

 

"resolution for voluntary winding up" has the meaning assigned to it by section 457 of this Decree;

 

"rules" includes rules made by the Chief Judge of the Federal High Court for the purpose of section 453 or 516, of this Decree and includes rules of court made or deemed to have been made under section 635 of this Decree and all incidental forms; and also rules made by the Corporate Affairs Commission and the Securities and Exchange Commission under this Decree;

 

"securities" include shares, debentures, debenture stock, bonds, notes (other than promissory notes) and units under a unit trust scheme;

 

"share" means the interests in a company's share capital of a member who is entitled to share in the capital or income of such company; and except where a distinction between stock and shares is expressed or implied, includes stock;

 

"small company" has the meaning assigined to it under section 351 of this Decree;

 

"statutory declaration" means a declaration voluntarily made under the Oaths Act 1963 and in Nigeria includes one so made under any other enactment or law providing for the taking of voluntary declaration;

 

"statutory meeting" means the meeting required to be held by section 211 (1) of this Decree;

 

"statutory report" has the meaning assigned to it by section 211 (2) of this Decree;

 

"subsidiary" means, in relation to body corporate, a subsidiary as defined by section 228 of this Decree;

 

"Table A" means Table A in Schedule 1 to this Decree;

 

"time of the opening of the subscription lists" has the meaning assigned to it by section 566 (1) of this Decree;

 

"unlimited company" has the meaning assigned to it by section 21(1) of this Decree;

 

"units" and "unit trust scheme" have respectively the meanings assigned to them in section 575 of this Decree;

 

unregistered company" where used in Part XV of this Decree, includes any partnership, association or company with the following exceptions,

 

(a)             a company and any existing company registered under this Decree; and

 

(b)             a partnership, association or company which consists of less than eight members and is not a foreign partnership, association or company.

 

  (2)          References in this Decree to bodies corporate or to corporations exclude corporations sole; but unless the context otherwise requires, they shall include references to companies incorporated outside Nigeria.

 

  (3)          For the purpose of any provision in this Decree which stipulates that an officer of a company who is in default shall be liable to a fine or other penalty, or personally liable to any third party, reference to "officer who is in default" shall be construed as a reference to any officer of the company who knowingly and willfully authorise or permits or connives at default, refusal or contravention specified in the provision.

 

651.    (1)         Subject to the provisions of this section, the Companies Act 1968 and the Companies (Special Provisions) Act shall, on the commencement of this Decree, be repealed.

 

  (2)          Nothing in this Decree shall affect any order, rule, regulation, appointment, conveyance, mortgage, deed or agreement, made, resolution passed, direction given, proceeding taken, instrument issued or thing done under the enactment hereby repealed; but any such order, rule, regulation, appointment, conveyance, mortgage, deed, agreement, resolution, direction, proceeding, instrument or thing if in force immediately before the commencement of this Decree shall, on the commencement of this Decree, continue in force, and so far as it could have been made, passed, given, taken, issued or done under this Decree shall have effect as if so made, passed, given, taken, issued or done.

 

  (3)          Nothing in this Decree shall be construed so as to prohibit the continuation of an inspection by inspectors appointed under any enactment hereby repealed, begun before the commencement of this Decree, and section 325 of this Decree shall apply to a report of inspectors appointed under any enactment hereby repealed as it applies to a report of inspectors appointed under section 314 of this Decree.

 

  (4)          Where, under the provisions of section 261 of the Companies Act 1968 a prosecution by a liquidator has been directed by the court and has not been completed on the commencement of this Decree, subsection (2) of that section shall have effect and be construed as if all expenses properly incurred by the liquidator in the prosecution are to be defrayed as directed by the court under section 438 of this Decree, and not in accordance with that subsection.

 

  (5)          Any register kept under the enactment hereby repealed shall be deemed to be kept under the corresponding provisions of this Decree.

 

  (6)          Funds and accounts constituted under this Decree shall be deemed to be in continuation of the corresponding funds and account constituted under the enactment hereby repealed.

 

  (7)          Nothing in this Decree shall affect -

 

(a)             the incorporation of any company registered under any enactment hereby repealed; or

 

(b)             Table A in the First Schedule of the Companies Act in so far as it applies to any company existing at the commencement of this Decree, except as otherwise provided in this Decree.

 

  (8)          Where any offence, being an offence for the continuance of which a penalty was provided, has been committed under any enactment hereby repealed, proceedings may be taken under this Decree in respect of the continuance of the offence after the commencement of this Decree, in the same manner as if the offence had been committed under the corresponding provisions of this Decree.

 

 (9)          Where by any enactment repealed by this Decree a time is fixed for the doing of an act or the performance of a duty and in any particular case that time has expired or but for this Decree would have expired between the date of the commencement of this Decree and the date of its signing, the time so fixed shall, for the avoidance of doubt, be deemed to have been extended so as to expire not later than seven days after the date of commencement of this Decree, so however that nothing herein shall be construed to authorise any extension of time for the doing or performance, as the case may be, of an act or duty otherwise to be done or performed within a period of time limited by any such repealed enactment.

 

 (10)          The provisions of this Decree with respect to winding up (other than section 511 which imposes a penalty for corrupt inducement affecting appointment of a liquidator, shall not apply to any company of which the winding up commenced before the coming into operation of this Decree, but every such company shall be wound up in the same manner and with the same incidents as if this Decree (apart from section 511) had not been made and, for the purposes of the winding up, the enactment under which the winding up commenced shall be deemed to remain in force.

 

 (11)          A copy of every order staying the proceedings in a winding up commenced as aforesaid shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the Commission which shall make a minute of the order in his books relating to the company.

 

 (12)          In this section "enactment hereby repealed" includes any enactment repealed or replaced by the Companies Act 1968, which itself is repealed by this Decree.

 

 

 

Part B 

Business Names

 

 

652.         This Part of this Decree and Part C thereof shall be administered by the Corporate Affairs Commission established under Part A of this Decree.

 

653.         There shall be established in each State of the Federation, a register office of business names where there shall be kept a register in the prescribed form in which shall be entered such matters as are required by this Decree or any regulation made thereunder to be entered in it.

 

654.    (1)         The Registrar-General of Companies appointed under section 8 of this Decree shall be the Registrar of Business Names.

 

  (2)          There may be appointed from tinme to time fit persons to be Assistant Registrars of Business Names or other officers as may be necessary for the administration of this part of this Decree.

 

655.    (1)         The Registrar shall cause business names to be registered in accordance with the provisions of this part of this Decree.

 

  (2)          For the purpose of the registration under this Part of this Decree, of the business names of a firm, individual or corporation at any of the register offices of business names, any Assistant Registrar may, subject to any direction that the Commission may give, perform any act or discharge any duty which the Registrar may lawfully perform or discharge or is required by this Decree to perform or discharge, and, subject to that, any reference in this Part of this Decree to the Registrar unless the context otherwise admits, shall accordingly be deemed to include a reference to an Assistant Registrar.

 

  (3)          Without prejudice to the generality of the foregoing provisions of subsection (1) of this section, an Assistant Registrar may be assigned to the registrry of business names in a State for the purpose of registering business names and keeping a register of business names.

 

656.    (1)         Every individual, firm or corporation having a place of business in Nigeria and carrying on business under a business name shall be registered in the manner provided in this Part of this Decree if -

 

(a)             in the case of a firm, the name does not consist of the true surname of all partners without any addition other than the true forenames of the individual partners or the initials of such fornames;

 

(b)             in the case of an individual the name does not consist of his true surname without any addition other than his true foresames or the initials thereof;

 

(c)             in the case of a corporation whether or not registered under this Decree, the names does not consist of its corporate name without any addition.

 

  (2)          Notwithstanding subsection (1) of this section where -

 

(a)             the addition merely indicates that the business is carried on in succession to a former owner of the business, that addition shall not of itself render registration necessary;

 

(b)             two or more individual partners have the same surname, the addition of an `s' at the end of that surname shall not of itself render registration necessary; and

 

(c)             the business is carried on by a receiver or manager appointed by any court, registration shall not be necessary,

 

657.    (1)         Every firm, individual or corporation required under this Decree to be registered shall, within twenty-eight days after the firm, individual or corporation commences the business in respect of which registration is required or within three months of the coming into operation of this Decree furnish to the Registrar at the register office for the State in which the principal place of business of the firm, company or individual is situated, a statement in writing in the prescribed form, signed as required by this section and containing the following particulars -

 

(a)             the business name or, if the business is carried on under two or more business name, each of those business names;

 

(b)             the general nature of the business;

 

(c)             the full postal address of the principal place of business;

 

(d)             the full postal address of every other place of business;

 

(e)             where the registration to be effected is that of a firm -

 

(i)             the present forenames and surname, any former forenames or surname, the nationality and, if that nationality is not the nationality of origin, the age, the sex, the usual residence and any other business occupation of each of the individuals who are partners; and

 

(ii)             the corporate name and registered office of such corporation which is a partner;

 

(f)             where the registration to be effected is that of an individual, the present forenames and surname, any former forenames or surnames, the nationality and, if that nationality is not the nationality of origin, the nationality of origin, the age, the sex, the usual residence and any other business occupation of the individual;

 

(g)             where the registration to be effected is that of a company, the name and registered office of the company;

 

(h)             the date of commencement of the business whether before or after the coming into operation of this Decree.

 

  (2)          Where the registration to be effected is that of an individual or a firm consisting only of individuals, there shall be submitted to the Registrar copies of the passport photographs of the individual certified in a manner required by the Registrar.

 

  (3)          Where the registration to be effected is that of a firm or individual carrying on business on behalf of another individual, firm or corporation whether as nominee or trustee, the statement required by subsection (1) of this section to be furnished shall contain the following particulars in addition to the particulars required by that subsection -

 

(a)             the present forenames and surname, any former forenames or surname, the nationality and, if that nationality is not the nationality of origin, the nationality of origin and the usual residence of each individual on whose behalf the business is carried on;

 

(b)             the name of each firm or corporation in whose behalf the business is carried on;

 

  (4)          Where the registration to be effected is that of a firm or individual carrying on business as general agent for any concern carrying on business outside Nigeria and not having a place of business in Nigeria, the statement required by subsection (1) of this section to be furnished shall, in addition to the particulars required by that subsection state the name and full postal address of each such concerns, provided that in the case of a firm or individual carrying on business as general agent for three or more such soncerns, it shall be sufficient to state the fact that the business is so carried on and the countries in which the concerns carry on business.

 

  (5)          A statement furnished in accordance with subsections (1) to (4) of this section shall -

 

(a)             in the case of a statement furnished by an individual, be signed by him;

 

(b)             in the case of a statement furnished by a firm, be signed by each individual who is a partner and by a director or the secretary of each corporation which is partner;

 

(c)             in the case of a company be signed by a director or the secretary: Provided that, if the statement is accompanied by a statutory declaration made by any person to the effect that he is a partner of the firm or is a director or the secretary of a corporation which is a partner of the firm the statement may be signed by that person alone.

 

  (6)          A statement furnished in accordance with subsections (1) to (4) of this section by an individual who is a minor or by a firm of which one of the partners is a minor shall, in addition to the requirements of subsection (1) of this section be signed by a magistrate, legal practitioner or police officer of or above the rank of Assistant Superintendent of Police.

 

658.    (1)         On receipt by the Registrar of the statement of particulars required to be furnished under section 657 of this Decree, he shall, subject to subsection (2) of this section and to the provisions of any regulations made under this Decree, cause to be entered in the register the business name of the individual, company or firm and file the statement.

 

  (2)          The Registrar shall add to the business name in the register the identification letters of the State which shall be in brackets at the end of the business name, and these shall form part of the business name.

 

659.    (1)         On the registration of any firm, company or individual under this Decree, the Registrar shall issue a certificate in the prescribed form containing letters in name together with the distinguishing State identification letters in brackets at the end of the name.

 

  (2)          On the registration of any charge in the particulars registered in respect of any firm, company or individual the Registrar may in his discretion either amend the certificate previously issued or issue a fresh certificate.

 

  (3)          A certificate issued under this section shall be sent by registered post or delivered to the firm, company or individual registering, who shall thereupon exhibit and thereafter maintain the same in a conspicious position at the principal place of the business so registered:

 

Provided that -

 

(a)             where a fresh certificate has been issued under subsection (2) of this section, the provisions of this subsection shall apply to such fresh certificate only and not to the certificate orginally issued; and

 

(b)             where any certificate has been lost or destroyed or rendered illegible, a copy of such certificate has been lost or destroyed or rendered illegible, a copy of such certificate certified by the Registrar may be exhibited in place of the original.

 

  (4)          Where a firm, company or individual registered under this Decree has more than one place of business, the original certificate shall be exhibited and maintained as required by subsection (3) of this section at the principal place of business and a copy of the certificate certified by the Registrar shall be exhibited and thereafter maintained in a conspicuous position in each of the other places of business.

 

666   (1)         Whenever a change is made or occurs in the particulars required by section 657 of this Decree to be furnished in respect of any firm, company or individual registered under that section, other than particulars as to the age of an individual the firm or individual shall within 28 days after such change notify the change to the Registrar at the register office at which the firm, company or individual is registered.

 

   (2)          The notice required under subsection (1) of this section shall be in writing signed as provided in section 657 of this Decree.

 

661   (1)         If any firm, company or individual registered under this Decree ceases to carry on business it shall be the duty of the partner in the firm at the time when it ceased to carry on business or of the individual or if he is dead his personal representative, within three months after the business has ceased to be carried on, to send by post or deliver to the Registrar a notice, stating that the firm or individual has ceased to carry on business.

 

  (2)          On receipt of such a notice as mentioned in subsection (1) of this section the Registrar may received the firm, company or individual from the register.

 

  (3)          Where the Registrar has reasonable cause to believe that firm, company or individual registered under this Decree is not carrying on business he may send to the firm, company or individual by registered post a notice that, unless an answer is received to such notice within two months from the date thereof, the firm, company or individual may be removed from the register.

 

  (4)          If the Registrar either receives an answer from the firm, company or individual to the effect that the firm, company or individual is not carrying on business or does not within two months from the date of the notice receive an answer, he may remove the firm, company or individual from the register.

 

662.    (1)         Where any business name under which the business of a person is carried on or to be carried on -

 

(a)             contains the word "National", "Government", "Municipal", "State", "Federal", or any other word which imports or suggests that the business enjoys the patronage of the Federal, State or Local Government; or

 

(b)             contains the word "co-operative" or its equivalent in any other language or any abbreviation thereof; or

 

(c)             contains the words "Chamber of Commerce", "Building Society" "Guarantee", "Trustee", "Investment", "Bank", "Insurance", or any word or similar connotation; or

 

(d)             is identical with or similar to a name by which any firm, company or individual is registered under this Part of this Decree or any company is registered under this Decree; or

 

(e)             is similar to any trade mark registered in Nigeria; and the Registrar is of opinion that registration would likely mislead the public then the Registrar shall, unless the consent of the Commission has been first obtained by the person refuse to register the business name or, as the case may be, cancel the registration thereof.

 

  (2)          Where any business name under which the business of a person is carried on -

 

(a)             contains any word which, in the opinion of the Registrar, is likely to mislead the public as to the nationality, race or religion of the persons by whom the business is wholly or mainly owned or controlled; or

 

(b)             is, in the opinion of the Registrar, deceptive or objectionable in that it contains a reference direct or otherwise to any personage, practice or institution, or is otherwise unsuitable as a business name,

 

then the Registrar shall refuse to register the business name, or, as the case may be, cancel the registration thereof, but any person aggrieved by a decision of the Registrar under this subsection may, within one month of such refusal or cancellation, appeal to the Commission.

 

  (3)          The Registrar may refuse to register an individual or firm under this Decree if the age of the individual or of any individual who is a partner is stated in the statement furnished under section 656 of this Decree to be less than eighteen years.

 

  (4)          Where the Registrar has irreputable evidence to the effect that an individual, firm or company that has previously been involved in fraudulent trade malpractices either in local or international trade is submitting an application for the registration of a new business name, the Registrar shall refuse to register such a business name.

 

663.         The Registrar shall allow searches to be made at all reasonable time in any register book, register or file of registered documents in his possession.

 

664.    (1)         The Registrar shall upon request give a certified copy of any entry in any register book, register or filed documents in his possession.

 

  (2)          Every such certified copy shall be received in evidence, without any further or other proof, in all legal proceedings, civil or criminal.

 

665.    (1)         Every individual or firm required by this Decree to be registered shall in all trade catalogues, trade circulars, show cards and business letters issued or sent by the individual or firm to any person have mentioned in legible characters -

 

(a)             in the case of an individual, his present forenames or the initials thereof and present surname and any former forenames or surname and his nationality; and

 

(b)             in the case of a firm, the present forenames or the initials thereof and present surname, and any former forenames or surnames and the nationality of all the partners in the firm or in the case of a corporation being a partner, the corporate name; and

 

(c)             the registration number of the business name.

 

  (2)          Where the individual referred to in subsection (1) of this section is a minor, words "a minor" shall be added, in brackets, after his name.

 

666.         Where any firm or individual required under this Decree to furnish a statement of particulars or of any change in particulars makes default in so doing the rights of such defaulter under or arising out of any contract made or entered into by or on behalf of such defaulter in relation to the business in respect of which particulars where required at any time while he is in default shall not be enforceable by action or other legal proceedings either in the business name or otherwise:

 

Provided that -

 

(a)            the defaulter may apply to a High Court in which any such contract would otherwise be enforceable for relief against the disability imposed by this section and a High Court in which any such contract would otherwise be enforceable on being satisfied that the default was accidental, or due to in advance, or some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may grant such relief either generally as regards all contracts enforceable by the court or as respect any particular contract and on such conditions as the court may impose;

 

(b)             nothing herein contained shall prejudice the rights of any other parties as against the defaulter in respect of such contract as aforesaid;

 

(c)             if any action or proceeding shall be commenced by any other party against the defaulter to enforce the rights of such party in respect of such contract, nothing herein contained shall preclude the defaulter from enforcing in that action or proceeding by way of counter claim, set-off or other wise such rights as he may have against that party in respect of such contract.

 

667.    (1)         If any firm or individual required under this Decree to be registered -

 

(a)             fails to comply with the provisions of section 657 of this Decree: or

 

(b)             fails to comply with the provisions of section 660 of this Decree; or of section 659 of this Decree: or

 

(c)             fails to comply with the provisions of subsection (3) or subsection (4) of section 659 of this Part; or

 

(d)             carries on business under a business name, registration of which has been refused or cancelled under section 662 of this Decree,

 

every partner in the firm or the individual shall be guilty of an offence and liable on conviction to a fine of 50 for every day during which the default continues, and the court shall order a statement of the required particulars to be furnished to the Registrar within such time as may be specified in the order.

 

  (2)         If any person whose duty it is under subsection (1) of section 661 of this Decree gives notice that firm or individual has ceased to carry on business fails to comply with the provisions of that subsection, he shall be guilty of an offence and liable on conviction to a fine of 520.

 

  (3)          If any firm, company or individual in issuing any trade trade catalogues, trade circular, show card or business letter fails to comply with the provisions of section 665, of this Decree, every partner in the firm or the individual shall be guilty of an offence and liable on conviction to a fine of 250.

 

  (4)          If any statement required to be furnished under this Decree contains any matter which is false in any material particular to the knowledge of any person signing it, such person shall be guilty of an offence and liable on conviction to a fine of 500 or to imprisonment for six months or to both such fine and imprisonment.

 

668.         The Minister may work the approval of the National Council of Ministers, make regulations -

 

(a)            for the governance and guidance of the Registrar and Assistant registers and of all persons acting under them;

 

(b)             prescribing the forms to be used for the purpose of this part of this Decree;

 

(c)             prescribing the fees to taken by the officers by or before whom the acts for which the fees are payable are done under this Part of this Decree;

 

(d)             generally for the conduct and regulation of registration under this Part of this Decree and any matters incidental thereto.

 

669.         Any firm or company which or individual who immediately before the coming into operation of this Decree was registered under the Registration of Business Names Act 1961 hereby repealed shall be deemed to be registered under and in accordance with this Decree and the provisions of this Decree shall apply in respect of such firm, company or individual accordingly, and any statement furnished under the said Act hereby repealed shall be deemed to have been furnished under and in accordance with this Decree.

 

670.    (1)         Every firm, company or individual carrying on business under a registered business name shall, not later than the 30th day of June in each year except the calendar year in which the business name is registered deliver to the Commission a return in a prescribed form showing the particulars of the firm, company or individuals, the nature of the business carried on and the state of the financial affairs of the business carried on by the firm, company or individual in the business name during the preceding period of January 1 to December 31.

 

  (2)          The returns shall be signed, in the case of an individual or firm consisting only of individuals, by the individuals and in the case of a company or a partner who is a company, by a director and the secretary.

 

  (3)          Failure to comply with any of the provisions of this sections shall be punishable with a fine of 200, and a daily default fine of 25.

 

671.    (1)         In this Part of this Decree, unless the context otherwise requires -

 

"Assistant Registrar" means in Assistant Registrar of Business Names appointed under section 654 of this Decree;

 

"business" includes any trade, industry and profession and any occupation carried on for profit;

 

"business name", means the name or style under which any business is carried on whether in partnership or otherwise;

 

"firm' means an unincorporated body of two or more individuals or one or more individual and one or more corporations, or two or more corporations, who or which  have entered into partnership with one another with a view to carrying on business for profit "forename" when used with a surname includes any first name;

 

"initials" includes any recognised abbreviation of a forename;

 

"Minister" means the Minister charged with responsibility for matters relating to the registration of Business Names;

 

"minor" means a person who has not attained the age of 18 years;

 

"person" includes a firm, individual or corporation;

 

"Registrar" means the Registrar of Business Names;

 

"show cards" means a card containing or exhibiting articles dealt with, or samples or representations thereof.

 

  (2)          The Registration of a business name under this Decree shall not be construed as authorising the use of that name if apart from such registration the use of thereof could be prohibited.

 

672.         The registration of Business Names Act 1961 is hereby repeated.

 

 

 

Part C 

Incorporated Trustees

 

 

673.    (1)         Where one or more trustees are appointed by any community of persons bound together by custom, religion, kingship or nationality or by anybody or association of persons established for any religious, educational literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorised by the community, body or association (hereinafter in this Decree referred to as "the association") apply to the Commission in the manner hereafter provided for registration under this Decree as a corporate body.

 

  (2)          Upon being so registered by the Commission, the trustee or trustees shall become a corporate body in accordance with the provisions of section 679 of this Part of this Decree.

 

674.    (1)         Application under section 673 of this Decree shall be in the form prescribed by the Commission and shall state -

 

(a)             the name of the proposed corporate body which must contain the words "Incorporated Trustees of ...........";

 

(b)             the aims and objects of the association which must be for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, and must be lawful;

 

(c)             the names, addresses and occupations of the secretary of the association, if any.

 

  (2)          There shall be attached to the application -

 

(a)             two printed copies of the constitution of the association;

 

(b)             duly signed copies of the minutes of the meeting appointing the trustees and authorising the application, showing the people present and the votes scored;

 

(c)             the impression or drawing of the proposed common seal.

 

  (3)          The application shall be signed by the person making it.

 

  (4)          The Commission may require such declaration or other evidence in verification of the statements and particulars in the application, and such other particulars, information, and evidence, if any, as it may think fit.

 

  (5)          If any person knowingly makes any false statement or gives any false information for the purpose of incorporating trustees under this Part of the Decree, he shall be guilty of an offence and liable on conviction to imprisonment for one year or to a fine of 100.

 

675.    (1)         A person shall not be qualified to be appointed as a trustee if -

 

(a)             he is an infant; or

 

(b)             he is a person unsound mind having been so found by a court;

 

(c)             he is an undischarged bankrupt; or

 

(d)             he has been convicted of an offence involving fraud or dishonesty within five years of his proposed appointment.

 

  (2)          If a person disqualified under paragraph (c) or (d) of subsection (1) of this section acts as a trustee, he shall be liable to a fine of 50 for every day during which he so acts.

 

676.         The constitution of the association shall in addition to any other matter -

 

(a)             state the name or title of the association which shall not conflict with that of a company, or with a business name or trade mark registered in Nigeria;

 

(b)             the aims and objects of the association; and

 

(c)             make provisions, in respect of the following -

 

(i)             appointment, powers, duties, tenure of office and replacement of the trustees;

 

(ii)             the use and custody of the common seal;

 

(iii)             the meetings of the association;

 

(iv)             the number of members of the governing body, if any, the procedure for their appointment and removal, and their powers; and

 

(v)             where subscriptions and other contributions are to be collected, the procedure for disbursement of the funds of the association, the keeping of accounts and the auditing of such accounts.

 

677.    (1)         If the Commission is satisfied that the application has complied with the provisions of sections 674, 675 and 676 of this Decree it shall cause the application to be published in a prescribed form in a daily newspapers circulating in the area where the corporation is to be situated and at least one of the newspaper shall be a national newspaper.

 

  (2)          The advertisement shall invite objections, if any, to the registration of the body.

 

  (3)          The objection shall state the grounds on which it is made and shall be forwarded to reach the Commission within 28 days of the date of the last of the publications in the newspapers.

 

  (4)          If any objections are made, the Commission shall consider them and may require the objections and applicants to furnish further information or explanation, and may uphold or reject the objection as it considers fit and inform the applicant accordingly.

 

678.    (1)         If, after the advertisement, no objection is received within the period specified in section 677 of this Act or, where any objection is received, and the same is rejected, the Commission, having regard to all the circumstances, may assent to the application or withhold its assent.

 

  (2)          If the Commission assents to the application, it shall register the trustees and issues a certificate in the prescribed form.

 

679.    (1)         From the date of registration, the trustee or trustee shall become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustee or trustees and subject to section 685 of this Part  of this Act to hold and acquire, and transfer, assign or otherwise dispose of any property, or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provisions as the trustees might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purposes of such community, body or association of persons.

 

  (2)          The certificate of incorporation shall vest in the body corporate all property and interests of whatever nature or tenure belonging to or held by any person in trust for such community, body or association of persons.

 

  (3)          A certificate of incorporation when granted shall be prima facie evidence that all the preliminary requisitions herein contained and required in respect of such incorporation have been complied with, and the date of incorporation mentioned in such certificate shall be deemed to be the date on which incorporation has taken place.

 

680.      (1)         Where the association is desirous of changing or altering its name or objects or any of them, the trustee shall apply to the Commission in the prescribed form setting out the alterations desired and attaching a copy of the resolution approving the change and duly certified by the trustees.

 

  (2)          The Commission on receipt of the application shall consider it and, if satisfied that the change or alteration is prima facie lawful shall -

 

(a)             cause the application to be published in two daily newspapers in the manner specified in subsection (1) of section 677 of this Act; and

 

(b)             direct the corporation to display for at least twenty-eight days a notice of the proposed change or alteration conspicuously mounted at the corporation headquarters, or at any branch offices, or any such places where a majority of the members are likely to see it as the Commission may require.

 

  (3)          The publication and notices shall call for objections which, if any, shall state the grounds of objection and be forwarded to reach the Commission not later than twenty-eight days after the last of the publications in the newspapers.

 

  (4)          The provisions of section 676 and of subsection (1) of section 677 of this Part of this Act shall apply to this section as they apply to an application for registration.

 

  (5)          If the Commission assents to the application the alterations shall be made and in the case of a change of name, the Commission shall issue a new certificate in the new name in place of the former certificate.

 

681.         Subject to sections 676 and 677 of this Part  of this Act, an association whose trustees are incorporated under this Part  of this Act may alter its Constitution by a resolution passed by a simple majority of its members and approved by the Commission.

 

682.    (1)         Where a body or association intends to replace some or all its trustees or to appoint additional trustees, it may by resolution at a general meeting do so and apply in the prescribed form for the approval of the Commission.

 

  (2)          Upon such application the provision of subsections (2) to (4) of section 680 of this Act, shall apply to this section as they apply to the change of name or object.

 

  (3)          If the Commission assents to the application it shall signify its assent in writing to the corporation and the appointment shall become valid as from the date of the resolution appointing the trustees.

 

683.         Any change or alterations purported to be made in contravention of section 680, 681 or 682 of this Part of this Acts shall be void.

 

684.         The association may appoint a council, or governing body which shall including the trustees and may, subject to the provisions of this Part of this Act, assign to it such administrative and management functions as it deemed expedient.

 

685.         The powers vested in the trustees by or under this Act shall be exercised subject to the directions of the association, or of the council or governing body appointed under section 684 of this Part  of this Act, as the case may be.

 

686.    (1)         The income and property of a body or association whose trustees or trustees are incorporated under this Part of this Act shall be applied solely towards the promotion of the objects of the body as set forth in its constitution and no portion thereof shall be paid or transferred directly or indirectly, by way of dividend, bonus, or otherwise by way or profit to any of the members of association:

 

  (2)          Nothing in subsection (1) of this section shall prevent the payment, in good faith, of reasonable and proper remuneration to an officer of servant of the body in return for any service actually rendered to the body or association:

 

Provided that -

 

(a)             With the exception of ex-officio members of the governing council, no member of a council of management or governing body shall be appointed to any salaried office of the body, or any officer of the body paid by fees; and

 

(b)             no remuneration or other benefit in money or money's worth shall be given by the body to any member of such council or governing body except repayment of out-of-pocket expenses demised, or let to the body or reasonable fee for services rendered.

 

  (3)          If any person knowingly acts or joins in acting in contravention of this section, he shall be liable to refund such income or property so misapplied to the association.

 

687.         The common seal of the body corporate shall have such device as may be approved by the Commission; and any instrument to which the common seal of the corporate body has been affixed in apparent compliance with the regulations for the use of the common seal shall be binding on the corporate body, notwithstanding any defect or circumstance affecting the execution of such instrument.

 

688.         Subject to the provisions of this Part of this Act and of the constitution of the association, the corporate body may contract in the same form and manner as an individual.

 

689.    (1)         The Commission shall preserve all documents delivered to it under this Part  of this Act.

 

  (2)          Any person may on application to the Commission be permitted to inspect the documents kept under subsection (1) of this section on payment of a prescribed fee and may require a copy or extract of any such document to be certified by the Commission on payment of a prescribed fee.

 

690.    (1)         The trustees of the corporation shall not earlier than 30th June or later than 31st December each year (other than the year in which it is incorporated), submit to the Commission a return showing, among other things, the name of the corporation, the names, addresses and occupations of the trustees, and members of the council or governing body, particulars of any land held by the corporate body during the year, and of any changes which have taken place in the constitution of the association during the preceding year.

 

  (2)          If the trustees fail to comply with subsection (1) of this section they shall be liable to a fine of 5 for each day during which the default continues.

 

691.    (1)         A body corporate formed under this Part of this Act may be dissolved by the court on a petition brought for that purpose by -

 

(a)             the governing body or council; or

 

(b)             one or more trustees; or

 

(c)             members of the association constituting not less than fifty per cent of the total membership; or

 

(d)             the Commission.

 

  (2)          The grounds on which the body corporate may be dissolved are -

 

(a)             that the aims and objects for which it was established have been fully realised and no useful purpose would be served by keeping the corporation alive;

 

(b)             that the body corporate is formed to exist for a specified period and that period has expired and it is not necessary for it to continue to exist;

 

(c)             that all the aims and objects of the association have become illegal or otherwise contract to public policy; and

 

(d)             that it is just and equitable in all the circumstances that the body corporate be dissolved.

 

  (3)          At the hearing of the petition, all persons whose interest or rights may, in the opinion of the court, be affected by the dissolution shall be put on notice.

 

  (4)          If in the event of a winding-up or dissolution of the corporate body there remains after the satisfaction of all its debts and liabilities, and property whatsoever, the same shall not be paid to or distributed among the members of the association, but shall be given or transferred to some other institutions having objects similar to the objects of the body, such institutions to be determined by the members of the association at or before the time of dissolution.

 

  (5)          If effect cannot be given to the provisions of subsection (4) of this section, the remaining property shall be transferred to some charitable object.

 

692.       The Minister may, with the approval of the National Council of Minister, make regulations generally for the purpose of this Part  of this Act and, in particular, without prejudice to the generality of the foregoing provisions, make regulations -

 

(a)             prescribing the forms and returns and other information required under this Part  of this Act;

 

(b)             prescribing the procedure for obtaining any information required under this Part  of this Act.

 

(c)             requiring returns to be made within the period specified therein by any body corporate to which this PART of this Act applies.

 

693.         In this Part  of this Act, unless the context otherwise requires -

 

"Commission" means the Corporate Affairs Commission established under section 1 of this Act;

 

"court" means the Federal High Court;

 

"Federal Gazette" means the Federal Government Official Federal Gazette; and

 

"Minister" means the Minister charged with responsibility for matters relating to trade.

 

694.         The Land (Perpetual Succession) Act, is hereby repealed.

 

695.         All trustees duly registered as bodies corporate under the Land (Perpetual Succession) Act shall, as from the date of coming into operation of this Act, be deemed to be registered under and in accordance with this Part of this Act and the provisions of this Part of this Act shall apply in respect of such trustees accordingly.

 

 

Part  D

Short Title

 

 

696.         This Act may be cited as the Companies and Allied Matters Act.

 

 


 

 

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