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    COMPANY SECRETARY

    Uploaded by

    Nana Gyasi Appiateng

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd

    COMPANY SECRETARY

    Uploaded by

    Nana Gyasi Appiateng
    1 views4 pages

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    © © All Rights Reserved

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    © All Rights Reserved
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    1 views4 pages

    COMPANY SECRETARY

    Uploaded by

    Nana Gyasi Appiateng

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 4

    COMPANY SECRETARY

    Who Is a Company Secretary – the Company secretary, however designated is an


    officer of the Company, and as a matter of fact a key officer. First Schedule (S.383) on
    definitions - “officer” in relation to a body corporate includes any director, secretary or
    employee of that body corporate and a receiver and manager of a part of the undertaking
    of that body corporate, appointed under a power contained in an instrument, and a
    liquidator of a company appointed in a members’ voluntary winding up, but does not
    include a receiver, not being a manager, a receiver and manager appointed by the Court,
    or a liquidator appointed under the provisions of the Bodies Corporate (Official
    Liquidations) Act, 1963 (Act 180), or an auditor of a company.

    According to the second schedule of Act 992, paragraphs

    71. The Company Secretary shall be appointed by the board of directors for the time, at
    the remuneration, and on the conditions that board considers fit, (REMOVAL) and a
    Company Secretary so appointed may be removed by the board of directors, subject
    to the right of the Company Secretary to claim damages if removed in breach of
    contract.

    72. A provision in this Act or this constitution requiring or authorizing a thing to be done
    by a director and the Company Secretary shall not be satisfied by the thing being done by
    that person acting both as director and as, or in place of, the Company Secretary.

     In other words, the Company’s secretary who was an officer of the Company may
    be appointed by:

    i. Board of Directors

    ii. Members in general meeting

    iii. Any other person if permitted by the Constitution (S.29(2))

     It has already been established that a Company’s secretary may be a Director, in


    which case the person is qualified as an executive director. Section 213 introduces
    an innovative provision on persons acting in a dual capacity as a company
    secretary and director, in the event that a person who is a director acts as a
    company secretary. S.213 – Where a person acts as both Director and Company
    Secretary of a company, a provision requiring or authorizing an act to be done by
    the director and a company secretary shall not be considered to be done, if that act
    is done by that person acting in both capacities or to the person acting in both
    capacities.

    PERSONS ENTITLED TO ACT AS COMPANIES SECRETARIES

    S.211 (2) The Company Secretary may be a body corporate except that the body
    corporate must have as one of its promoters, subscribers, directors or operating
    officers, a person who is qualified to be a Company Secretary.

    The effect of this provision is that since the company itself is an artificial entity which
    will require natural persons to act on its behalf, the named persons must possess the
    qualification to be a company’s secretary so that that person can act in that position
    accordingly on behalf of the company.

     Thus, in addition to the above, a company’s secretary can be a natural person with
    the qualification in S. 211(3)

    PANORAMA DEVELOPMENTS LTD V FIDELIS FURNISHING FABRICS LTD

    Fidelis’ company secretary, Mr. Bayne, hired cars from Panorama Development's
    business, Belgravia Executive Car Rental. Bayne used the Fidelis' paper and represented
    that he wished to hire a number of Rolls-Royce’s and Jaguars for the business while his
    managing director was away. He was lying and he used them himself. Bayne was
    prosecuted and imprisoned, but Belgravia had outstanding £570 12s 6d for the hired cars.
    Fidelis claimed that it was not bound to the hire contracts, because Bayne never had the
    authority to enter them.

    The old rule was that company secretaries could not be assumed to have authority
    for anything. Also that a secretary is a mere servant; his position is that he is to do
    what he is told, and no person can assume that he has any authority to represent
    anything at all; ..." this principle was established in the case of Barnett, Hoares &
    Co v South London Tramways Co.

    Lord Denning in the present case held that Fidelis was nevertheless bound on
    the contract to Panorama. Mr. Bayne, as company secretary had implied actual
    authority by virtue of his position as Company Secretary to enter into such
    agreements. Thereby overruling the decision of the court in the Barnett case. The
    court disregarded the arguments that were put forward by Counsel for Fidelis,
    which sought to impress upon the court that the company secretary occupied a
    very humble role and held rather that a company secretary is a much more
    important person nowadays than he was in 1887. He is no longer a mere clerk. He
    regularly makes representations on behalf of the company and enters into contracts
    on its behalf which come within the day-to-day running of the company's business.
    So much so that he may be regarded as held out as having authority to do
    such things on behalf of the company. He is certainly entitled to sign contracts
    connected with the administrative side of a company's affairs, such as employing
    staff, and ordering cars, and so forth. All such matters now come within the
    ostensible authority of a company's secretary.

    Salmon LJ said the secretary ‘is the chief administrative officer of the
    company’ so he has ostensible authority with administrative matters. Nothing
    is more natural than ‘ordering cars so that its servants may go and meet foreign
    customers at airports, nothing to my mind, is more natural than that the company
    should hire those cars through its secretary.’ It might not be so with matters of
    commercial management of the company, for example, a contract for the sale or
    purchase of goods in which the company deals’ but that was not the case here.

    QUALIFICATIONS S.211(3)

    1. The person has obtained a professional qualification or a tertiary level


    qualification that enables that person to have the requisite knowledge and
    experience to perform the functions of a Company Secretary.

    2. The person has held office, before the appointment, as a Company Secretary
    trainee or has been articled under the supervision of a qualified Company
    Secretary for a period of at least three years.

    3. The person is a member in good standing of

    (i) The Institute of Chartered Secretaries and Administrators.

    (ii) The Institute of Chartered Accountants, Ghana.

    4. The person having been enrolled to practice is in good standing as a barrister


    or solicitor in the Republic.

    5. That person by virtue of an academic qualification, or as a member of a


    professional body, appears to the directors as capable of performing the
    functions of secretary of the company.

    STATUTORY DUTIES OF A COMPANY SECRETARY S.212


    1. Assisting the Board to comply with the Constitution of the Company and any
    other enactment.

    2. Keeping the books and records of the company

    3. Ensuring that the minutes of the meetings of shareholders and the directors are
    properly recorded in the form required by this Act.

    4. Preparing a issuing out notices in the name of the Company

    5. Ensuring that the annual financial statements of the Company are dispatched to
    every person entitled to receive same

    6. Ensuring that all statutory

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