Various meaning has been ascribed to a Company Secretary. H. Black in the Black’s Law Dictionary defines: A Company Secretary, in references to a corporation or association as an officer charged with the direction and management of the part of the business of the company which is concerned with the keeping of records, the official correspondence, with giving and receiving notices, countersigning documents etc.. The Secretary functions are purely ministerial and administrative and he is not as Secretary, charged with the exercise of any managerial powers.
In ADEBESIN V MAY & BAKER NIG LTD. KARIBI WHYTE J(as he then was)stated that the secretary is an officer of the company with important duties and responsibilities .the secretary merely acts in a ministerial and administrative capacity .He has no managerial functions and managerial powers are prima facia vested in the directors and any managing director.
It should be noted that the new CAMA (2020) has excluded small companies from the requirement of company secretary (Section 330. Thus, small company is left with the choice of having a company secretary or not.
APPOINTMENT AND QUALIFICATION OF SECRETARY
The company secretary is to be appointed by the directors, for such terms, on such remuneration and conditions as may be deem fit by them. Section 333 CAMA 2020.
Section 295, of the former CAMA 1990, Provided that it is the duty of the directors of a company to take reasonable steps to ensure that the Secretary of the Company is a person who appears to have the requisite knowledge and experience to discharge the functions of a secretary of a company and who in addition, fulfills requirements regarding previous experience or membership of specific profession or professional bodies. Similar provision can be found in Section 332, CAMA 2020.
It should be noted that there is no specific qualification for secretary of a private company. In fact the requirement of a secretary has been removed by CAMA 2O20 for small companies. However, the Company secretary of a Public Company must have one of the following qualifications:
- A Member of the Institute of Chartered Secretaries and Administration, or
- A legal Practitioner within the meaning of the legal practitioner’s Act 1975, or
- Member of the Institute of Chartered Accountant of Nigeria or of such other Bodies of Chartered Accountant as approved from time to time by an Act or Decree, or
- Any person who has held the Office of a Secretary of a Public Company for at least 3 years of the years immediately preceding his appointment.
- Or a Body Corporate or Firm consisting of qualified persons under paragraphs (a, b, and d). Again, it has been recognized that those dealing with the Company will be concerned to know who the Secretary is, and hence the register of directors has been expanded into a register of directors and secretaries. Copies of particulars of secretaries must be field at Companies House and are available for inspection by the public both there and at the Company’s Office.
aDUTIES AND RESPONSIBILITIES OF COMPANY SECRETARY
- Attending the meeting of the Company, the Board of Directors and rendering all necessary secretarial services in respect of the meeting and advising on compliance by the meeting with the applicable Rules and Regulations.
- Maintaining the registers and other records required to be maintained by the Company under the Decree/Act.
- Rendering proper returns and giving notification to the commission required under this Decree/Act.
- Carrying out such administrative duties as directed by the Director of the Company, Subsection (2) of the same section states that “the Secretary shall not without authority of the Board exercises any powers vested in the Directors.
IMPORTANCE OF COMPANY SECRETARY
It undoubtedly a fact that the Company Secretary is the Chief Administrative Officer of the Company and he is an essential ingredient in the implementation of sound and good corporate governance. However, this position has more often being looked down upon and its role has been reduced to taking of minutes of meeting and record keeping. Though the directors are the mind of the company who think and decide for the company, however, the role of secretary is to ensure that the decisions of the minds is being well implemented and to ensure that it’s done in accordance with regulations.
The court in the case of PANORAMA DEVELOPMENT GUILDFILED LTD VS FIDELIS FURNISHING FABRICS, held that signing or entering into certain contracts are inherent in or incidental to the administrative nature of the company secretary’s Office. In the same vein, Chief N. Edun stated thus “we are now in an era in which Company Secretary are usually among the most respected and take most highly paid officers of their Companies and their appointment to such high office pre-supposes the possession of certain basic qualification and experience. Conception of a Secretary’s role as that of a more clerk or servant now clearly boarders on heresy.
Therefore, we will look into the importance of company secretary in line with its duties as provided in CAMA 2020 (Section 335)
Attending the meeting of the Company, the Board of Directors and rendering all necessary secretarial services in respect of the meeting and advising on compliance by the meeting with the applicable Rules and Regulations.
It is the duty of the secretary to attend all board of directors meeting in order to render secretarial duties which include: taking minutes, taking attendants, keeping records. Etc.
However, the role of a secretary at board of directors meeting is bigger than taking minutes of meeting. The secretary has the duty to ensure that all regulations pertaining to how meeting of directors is to be held is complied with, such as: issue of quorum, adjourning of meeting, passing of resolution, appointment of chairman of board, and many more. He is also saddled with the responsibility of drafting board resolution and to determine the type of resolution to be used.
Maintaining the registers and other records required to be maintained by the Company under the Decree/Act.
There are various records and register a company is to keep, and it is the duty of a company secretary to ensure that these records are being kept. These records and register include: Register of directors, register of secretaries, register of charges and many more.
Rendering proper returns and giving notification to the commission required under this Decree/Act.
Every company is required to render annual returns to Corporate Affairs Commission and it is the duty of the Company Secretary to file annual returns with the Commission. He also saddled with the responsibility of giving notification to the Commission where its necessary and such include: when a charge need to ne registered, when there is a change in the directors, when there is need to increase the share capital of the company or to decrease the share capital and many more.
Carrying out such administrative duties as directed by the Director of the Company, Subsection (2) of the same section states that “the Secretary shall not without authority of the Board exercises any powers vested in the Directors.
It is also the duty of the Secretary to carry out such other administrative duties as may be directed by the directors. There are also instances where the directors delegated to the secretary the role to be carried out by the directors.
It has been discussed above that the role of the Secretary is beyond taking of minutes and keeping of records, in fact the Secretary is the Chief Administrative Officer of the Company and the running of the company is contingent on his duties, its role goes to the very foundation of the company.