By Nkiru-Nzegwu Danjuma
A company secretary is a much more important person nowadays than he was in 1887 â€¦ He is an officer of the company with extensive duties and responsibilities â€¦
He is certainly entitled to sign contracts with the administrative side of a companyâ€™s affairs, such as employing staff, and ordering cars and so forth.Â All such matters now come within the ostensible authority of a companyâ€™s secretary.â€
The high water-mark of the panorama case was that a company secretary does have ostensible authority to bind his company in certain circumstances.As far as Nigeria is concerned, the pronouncements on the status of the company secretary by judges have been conflicting.In the case of Migliore Vs Metal Construction (West Africa) Limited (1977) 3 FRCR 117 @ pg 120 Belgore J. held the view like the common judges that the company secretary is a servant of the company with limited and humble character.
The Supreme Court in the case of Okeowo & Ors Vs Migliore & Ors (1979) 12 NSCC 210 Idigbe J.S.C. held that a company secretary is a principal officer of the company.
Aniagolu J.S.C (as he then was) also held on pg 219 of the same case that â€œThe duties of a Secretary vary with the size and nature of the company and the terms of that arrangement made with him. Apart from certain statutory duties â€¦ the duties of a secretary of a company are not fixed by law.
But the evidence on record shows that the secretary â€¦ had arrogated to himself so much of the functions pertaining to the company that he not only acted as the Secretary but also as the chattered accountant in the later capacity of which he sent fabulous bills for accounting work done (to the company) â€¦â€
In the case of Adebesin Vs May & Baker Nig Ltd (1978) 4 F.R.C.R. 232 Karibi Whyte .J. (as he then was) stated on the status of a company secretary at page 237. â€œThe 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 function and any managerial powers are prima facie vested in the directors and any Managing Directorâ€. The above should not be taken in its entirety as representing the true position of a company secretary in Nigeria of today. The first sentence is yet another judicial recognition of the evolved status of the company secretary in Nigeria.
According to Kiser O. Barnes in the status of company secretaries revisited (1989) 2 GRBPL No 9 pg 15 at p. 22. The Federal High Court references to pre-Panorama case position to the effect that the company secretary lacks authority to bind his company by his representation to third parties appear to stress that in law, the secretary is subordinate to the Board of Directors and cannot be involved in the commercial management of the company. This view of the learned scholar enjoys my humble support.
It is also my considered view that comments of the Justices of the Supreme Court on the point in Okeowo v. Migliore (supra) are superior. The holding of the Court of Appeal in Winpey (Nigeria) Limited v. Balogun (1986) 3 NWLR (pt 28) 328 where a service of process against the company was served on a clerical secretary of the company is of apposite illustration of the evolved status of the Company secretary in Nigeria. The Court held that:â€œA Company Secretary is indeed a high ranking officer in the company set up and is indeed part of the management of the companyâ€.
It is equally noteworthy that case law has established that appearance in court by a company should be by its secretary. See Ayodeji Vs Lagos City Council (1974) NCCLR 299 (High Court of Lagos) where it was held that: â€œIn a magistrateâ€™s court, a company is usually expected to appear by its secretary or other such officer, and cannot be guilty of contempt of a court for not appearing personally in answer to a Summons against his company which has been delivered to him on behalf of the company.â€
In addition, a demand under the hand of a creditor of a company for noncompliance with which the company will under S. 409 (a) of (CAMA), be deemed to be unable to pay its debts, must, where the creditor is also a company, be authenticated under S. 77 CAMA by being signed by a Director, Secretary or other officer of the creditor company.
The timely intervention by the case law and statutes has turned the office of a company secretary into a much exalted position in the common law jurisdiction. The wind of change characterized by the panorama case (supra) blew across the Nigerian business terrain albeit indirectly leaving behind statutory implications. The importance of the office of The Company Secretary is further stressed by the CAMA when under S. 295 it specifically limited the occupation of the office to certain individuals or Companies with specific qualifications which a Company.
Secretary must possess.
This section spells out the qualification which a Company Secretary must possess. The provision of the section is new and recognizes that for a person toqualify to hold a secretaryship in a Company, he must have the requisite knowledge and experience to discharge the functions of the office. By virtue of this section (295), it is the duty of a Director of a Company to ensure that the person assuming the office of secretary has experience and is properly grounded in Company adminisâ€˜tration and management.
The intention of the law-maker in this regard is not far- fetched as the demands of the office of the Company secretary are enormous nowadays. This view stems from the enhancement of the status of the Company Secretary brought about by Panorama Development (Guildford) Limited v. Fidelis Furnishing Fabrics Limited (1971) 3 WLR 440.