How to appoint and remove a Company Secretary in Nigeria.

Who is a company secretary? A company secretary is an officer of a company appointed by the directors to perform certain legal and administrative duties, with the requisite knowledge and experience to discharge these duties. The Companies and Allied Matters Act, 2020 makes a mandatory requirement for all companies to appoint a secretary, with the exception of small companies. Thus, every company in Nigeria both private and public, with the exception of small companies have the regulatory mandate to appoint a company secretary for their operations.

Who can be a secretary of a company? Pursuant to Section 332 of CAMA 2020, the company secretary of a private company does not need any special qualification besides the general requirement that the directors must consider him as possessing the requisite knowledge and experience to perform the function of a company secretary. And for the Public Company the Secretary must be any of the following:

(a) member of the Institute of Chartered Secretaries and Administrators;

(b) a legal practitioner within the meaning of the Legal Practitioners;

(d) any person who has held the office of the secretary of a public company for at least three years of the five years immediately preceding his appointment in a public company; or

(e) a body corporate or Firm consisting of members each of whom is qualified under paragraph (a), (b), or (c).

However, it is important to take note that although foreigners are qualified to be appointed as Directors of any company in Nigeria, a foreigner cannot be a Secretary of any company in Nigeria. Therefore, any Director of a company not resident in Nigeria is not eligible to be a company secretary under Nigerian law.

Read:FOREIGN INVESTMENT IN NIGERIA

What are the duties of a secretary? Pursuant to section 335 of CAMA 2020 the duties of a secretary are but not limited to attending the meeting of the company, the board of directors and its committees, rendering all necessary secretarial services in respect of the meeting and duties of a secretary. Advising on compliance, by the meetings, with the applicable rules and regulations. To maintain the registers and other records required to be maintained by the company under the Act. To render proper returns and giving notification to CAC required under the Act and to carry out such administrative and other secretarial duties as directed by the director or the company.

Note that the secretary shall not, without the authority of the Board exercise any power vested in the Drectors.

How to Appoint or Remove/Change Company Secretary in Nigeria

A company secretary shall be appointed by the directors and subject to the provisions of Section 333(1) of CAMA, may be removed by the directors.

To change a company secretary, such change is affected by a resolution of the Board of Directors of the company. For private companies which can have only one Director and which has no requirements for the appointment of a secretary, where one exists, the Director(s) are the ones that appoint or remove secretaries. If the company has only one director, then that director has the power to appoint or remove a secretary.

However, there is a procedure for removal of a secretary of a public company as stated in Section 333(2) (a)-(d) and (3) (a)-(b) and (4) of CAMA. When the Board of Directors intends to remove a secretary of a public company, the board shall do the following

Issuance of a notice to the secretary of their intention to remove him. Reasons why they wish to remove the secretary must be stated;
Give the secretary a period of seven days (7) within which to make his defense or give him seven days (7) option to resign;
Secretary can resign or make defense as stipulated, but if the secretary doesn’t, the Board of Directors can go ahead to remove him from office as the company secretary, then make a report of same to the next Annual General Meeting.

Where the secretary fails to resign but instead makes a defense but the Board considers the defense insufficient on the grounds that the reason to remove him is fraud or serious misconduct, the Board of Directors can pass their Board resolution removing the secretary, then report same to the next Annual General Meeting. Conversely where the grounds for intended removal is for any reason other than fraud or misconduct, the Board can suspend the secretary and report the suspension at the next General Meeting in that case the secretary can be removed with the approval of the General Meeting.

What are the documents required for change of Company Secretary? For private companies the requirements are means of identification of the new secretary if an individual; particulars/proof of registration (if corporate), the appointment letter of the secretary and date of appointment of new secretary.

For public companies all the aforementioned will be supplied, together with a resolution of the General Meeting where such secretary was removed, or the board resolution removing the secretary where the removal was effected by the Board of Directors rather than the General Meeting.

For the change of secretary, the following information will be required:

company details (Rc number, Director authorizing the removal, the director’s signature, company letter head paper)
the secretary details (name of new secretary, email, phone number, service address, nationality, gender, residence, valid ID card)

Note that company’s Annual returns must be filed up to date as at the time of filing for change of secretary. Where the annual returns filing of the company is not up to date, then the CAC will not allow any changes to be made to the company records until the company’s annual returns are filed up to date.

Read also: Annual Returns Filing with CAC in Nigeria

Note also that the same procedure is applicable for the change of secretary in Incorporated Trustees except that there is no Board of Directors Resolution rather it’s the Minutes of meetings of the Trustless that will be used.

In conclusion, it is important to state that the office of a company secretary is very crucial to the operations of a company. The position of a Company’s Secretary is necessary in today’s corporate world cannot be over-emphasized. The change or removal of Secretary falls under post incorporation matters. You must be an accredited agent with CAC for you to be able to access the post incorporation portal of CAC.

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