Corporate Social Responsibility: STATUTORY ROLES OF THE COMPANY SECRETARYSTATUTORY ROLES OF THE COMPANY SECRETARY

STATUTORY ROLES OF THE COMPANY SECRETARY Iyke Ozemena Attorney, Corporate Consultant, Author: All company meetings are required to be recorded in the minute book. It is a statutory injunction. This function is performed by the Company Secretary while the meeting is on-going. A Company Secretary is an organizer; a person concerned with all the affairs of the company meetings. A company meeting without a secretary is incomplete for legal purposes, unless someone is deputising for him/her. It is mandatory for every company to have a Secretary.1 A secretary has a distinct role; and not an appendage of any office. A detailed study of s.293 -- 298 of the Companies Act specifying the company secretary and his role reveals an enhanced role of Company Secretary over and above his/her role under the previous Companies Act. For instance s.297 imposes a duty of fiduciary interests on a secretary acting as an agent of the company as if he/she is a director; although by s.298(2) he/she is not allowed to act in the capacity of a director without clearance from the board. In performing the duties of a secretary in relation to meetings, he liaises with the chairman of the board and the chief executive of the company. Where the secretary is unable to act for any reason his assistant or deputy would be instructed to stand in for her/him. If he has no assistant, a competent officer capable of carrying out those functions shall be appointed by the directors to do the job. 2 The qualification of a Secretary may vary from one private company to another, in most cases knowledge and experience within the company are important considerations for appointment but there are stipulated qualifications for secretaries of public companies. There are five categories of qualification listed in s.295. They are as follows: (1) A member of Institute of Chartered Secretaries and Administrators, or (2) A legal practitioner within the meaning of the Legal Practitioners Act 1975. (3) A member of the Institute of Chartered Accountants or such other bodies of accountants as are established from time to time by an Act or a Bye-law. (4) Any person who has held the office of the Secretary of a public company for at least 3 years of the 5 years immediately preceding his/her appointment in a public company or (5) A body corporate or firm consisting of members of each of whom is qualified under the first four categories. The qualification and position occupied by company secretaries are now clear especially in respect of public companies. It is also clear that a secretary plays a distinct role from that of directors. Where the Act requires something to be done by a director it would be wrong and therefore invalid if a secretary does it. In other words there is a clear statutory demarcation of the functions of the director and secretary. 3 Thier functions may be interwoven in other areas but where the statut spells out that either of them should do a particular thing it should be so. The duties of a secretary differ from one company to the other but the core areas are stipulated under s.298 and it includes: (a) Attending the meeting of the Company, the board of directors and its committees, rendering all necessary secretarial services in respect of the meeting and advising on compliance by the meeting with the applicable rules and regulations. (b) Maintaining the registers and other records required to be maintained by the company under this Act. (c) Rendering proper returns and giving notification to the commission required under this Act. (d) Carrying out such administrative and other secretarial duties as directed by the director, or the company. It is vital to note that appointment of Company Secretary is done by the directors. 4 Naturally such appointment is done as early as the company commences business or the appointment can be made before the first annual general meeting, if it is a public company. Since the appointment is by the board of directors it follows naturally that his removal shall be by the board. However, there is a laid down procedure which shall be complied with before a secretary is deemed removed. 5 In the first place he shall be given notice of the proposed removal. The notice shall contain four salient points stated below: (a) The notice shall state that his removal has been proposed. (b) The grounds of the proposed removal. (c) Stating also that he is required to make his defence within 7 working days. (d) An option to resign within 7 days. On receipt of the notice the secretary has 7 working days to prepare and put forward a defense. Alternatively he may resign within the same period. If his defense is a weak one or not bother to make a defense at all the board may remove him/her. The board can also remove him/her before the next general meeting if the grounds of removal is fraud or borders around it. For less serious grounds than fraud the board may suspend him/her pending the next general meeting. The removal becomes effective as ssoon as the general meeting determines. A register of directors and secretaries are kept by every company. The register shall contain information about the secretaries and directors and details of their personal interests. The register is kept at the company's registered office for access and inspection by members for not less than two hours a day. Whenever there is a change in the particulars contained in the register a form is completed to reflect the change and forwarded to the Corporate Affairs Commission within 14 days of the change. At the level of our world today, a company secretary should not only be master of these main activities above; the office demands much more knowledge over and above those skills, the internal routine of the organisation he/she serves, as well as current affairs and public relations. The global soci-political and economic systems and the advent of digital communications have combined to make Company Secretary's job very sophisticated. For him/her to cope with the job, learning and skills acquisition must be undertaken continually. There are several digital devices that video conferencing and verbatim recorders are just the commonest few. It is not compulsory that all these knowledge should be applied. However, it is important to acquire them than to be found wanting when an office requires the skill. Consider the post of a Company Secretary, or a Local Government Secretary. Their qualifications may vary but the skills required to carry out their functions would remain the same. Their orientations must differ significantly because of the nature, business or services offered by various organisations they serve. The qualification of secretary to a limited liability company registered under CAMA 1990 is already specified by s.295 of the Act. Such position would necessarily require the knowledge of business and industrial community. Some may call for indept knowledge of management, organisation and methods. Others may need higher administrative skills. For secretaries who qualified through the Instiatute of Chartered Secretaries and Administrators as well as Accountancy bodies, they would be very familiar with these subjects as much as Legal Practitioners. Occassions do arise when company activities attract public notice and attention. The Annual General Meeting may attract such public attention; anniversaries, jubilee and centinary celeberation or even launch of new products. The media may be specifically invited, or attend on their own volution. Then there may be impromptu session of questions and answers; or a press interview. An unprepared Company Secretary may fall into the danger of not presenting the company's point of view or profile properly. Being abreast of the company's mission, activities and profile is the antidote. More and more offices are becoming computerised. In some companies almost all the executives have computers on their desks. You have to come to terms with the reality of automated office. The demand of this modern office development on a Secretary are two-folds. First, the secretary should be computer literate and conversant with modern office equipments. Second, he/she should ensure that relevant staff get these new skills to be part of an effective team. On the other hand, a Local Government Secretary should be versed in local government legislation and administration. The appreciation of the constantly increasing and changing roles of local authorities is equally important. He/she should be conversant with the various aspects of local government income and expenditure. There is also increasing political awareness and formation of pressure groups which the Secretary should be prepared to contend with. The function of the local government during the first and second republics were minimal and essentially as agents of the regions/state governments. The status changed after 1976 Local Government Reforms to the effect that local government was recognised as a third tier government, and to this extent a location of power and a permanent administrative structure. Similarly, the abolition of Ministry of Local Government in 1988 enhanced the local government autonomy. However, in the third republic, the 1989 Consititution further strenghtened the position by granting it greater autonomy. This position has further been fortified by the creation of more local government areas bringing the total to 774 according to the 1999 Constitution. By Decree 23 of 1991 local governments were granted the status of a legislative body and other ancillary enhancement of the chairman's powers. This increased the law interpretation and compliance load of the councils. Thus the local government secretary needs to be exposed to the politics, economics of local government and its legislative procedures. The commission recommended an extended duties of a Secretary to include circulating minutes of past meetings; reminds all the members of Board meetings and carrying on any other duties assigned by the Board. Further, a Secretary should have ostensible authority to sign contracts, employ staff, hire car and manage office on behalf of the company. A fine of N400 shall be imposed on any company which contravenes these provisions. 
 Bibiliography 1. Section 293 (1) CAMA 2. Section 293 (2) 3. Section 294 (1) 4. Section 296 (1) 5. Section 296 (2) 6. Janner on Communication Ch.50 
 Iyke Ozemena is the author of these books: 
 DIRECTORS: Duties & Enforcement | http://www.amazon.com/dp/B005783S6S The 13th President | http://www.amazon.com/dp/B0058CXE1W GUIDE TO FINAN$IAL $ECURITY | http://www.amazon.com/dp/B005EFTHNC IDEAWORKSHOP MANUAL: ENTREPRENEURS | http://www.amazon.com 
http://www.amazon.com/dp/B005LVH7VI DIRECTORS: Qualification, Appointment, Proceedings & Removal | 
DIRECTORS: MEETINGS: DYNAMICS & LEGALITY | http://www.amazon.com/dp/B005MKCESY

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Corporate Social Responsibility

Friday, August 22, 2014

STATUTORY ROLES OF THE COMPANY SECRETARYSTATUTORY ROLES OF THE COMPANY SECRETARY

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