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COMPANIES CODE, 1963 (ACT 179)
As amended
ARRANGEMENT OF SECTIONS
Section
CHAPTER I—PRELIMINARY
1. Commencement.
2. Interpretation.
3. Application of Act.
4. Application of particular
chapters of the Code.
5. Prohibition of partnerships
exceeding 20 members.
6. Companies formed for special
purposes.
7. Saving of equity and common
law.
CHAPTER II—PROVISIONS APPLICABLE
TO ALL COMPANIES
Part A—Formation and Matters
Incidental Thereto
8. Right to form a company.
9. Types of company.
10. Companies limited by
guarantee.
11. Conversion of company limited
by shares to company limited by
guarantee.
12. Duties of promoters.
13. Pre-incorporation contracts.
14. Formation of companies.
15. Names of companies.
Part B—The Company's Regulations
16. Contents of Regulations.
17. Form of Regulations.
18. Subscribing to Regulations.
19. Regulations of existing
companies.
20. Prints of Tables A and B.
21. Effect of Regulations.
22. Alteration of Regulations.
23. Copies of Regulations.
Part C—Capacity of Companies
24. Powers of companies.
25. Ultra Vires.
26. Alteration of authorised
businesses.
Part D—Commencement of Business
27. Filing of particulars.
28. Minimum capital.
29. Penalties for breach of
section 27 or 28.
Part E—Membership of Companies
30. Constitution of membership.
31. Right of member to attend and
vote.
32. Register of members.
33. Inspection of register.
34. Power to close register.
35. Rectification of register.
36. Register to be evidence.
37. Liability of members.
38. Companies ceasing to have
members.
Part F—Shares
39. Nature of shares.
40. No par shares.
41. Issue of shares.
42. Payment of shares.
43. Return of issues.
44. Penalties for non-compliance
with section 42 or 43.
45. Meaning of payment in cash.
46. Classification of shares.
47. Variation of class rights.
48. Preference and equity shares.
49. Suspension of voting rights of
preference shares.
50. Votes of equity shares.
51. Canons of construction of
class rights.
52. Numbering of shares.
53. Issue of share certificates.
54. Effect of share certificates.
55. Reserve liability.
56. Prohibited transactions in
shares.
57. Alteration of number of
shares.
58. Financial assistance for
acquisition of shares.
59. Acquisition by company of its
own shares.
60. Redemption of redeemable
preference shares.
61. Purchase by a company of its
own shares.
62. Limit on number of shares
acquired.
63. Share deals account.
64. Modification of sections 59 to
63 in relation to authorised
mutual funds.
65. Acquisition of shares of
holding company.
Part G—Stated Capital and
Dividends
66. Meaning of stated capital.
67. Reduction of stated capital.
68. Modification of sections 66
and 67 in relation to authorised
mutual funds.
69. Meaning of "surplus".
70. Meaning of "income surplus".
71. Legality of dividend payments.
72. Prohibition of payment of
dividends by companies limited by
guarantee.
73. Declaration of dividends.
74. Capitalisation issues and
non-cash dividends.
Part H—Resolutions Reducing
Capital, Shares or Liability
75. Resolutions requiring
confirmation of Court.
76. Application for confirming
order.
77. Order confirming the
resolution.
78. Order and minute to be
registered.
79. Protection of creditors.
Part I—Debentures and Debenture
Stock
80. Issue of debentures or
debenture stock.
81. Specific performance of
contracts to subscribe for
debentures.
82. Documents of title to
debentures.
83. Effect of statements in
debentures.
84. Perpetual debentures.
85. Convertible debentures.
86. Secured or naked debentures.
87. Meaning of "floating charge".
88. Powers of the Court.
89. Payment of preferential
creditors out of assets subject to
a floating charge.
90. Limitation of efficacy of
floating charges in liquidations.
91. Application of sections 236
to 245.
92. Trustees for debentureholders.
93. Meetings of debentureholders.
94. Re-issue of redeemed
debentures.
Part J—Transfer of Shares and
Debentures
95. Restrictions on
transferability of shares.
96. Register of debentures.
97. Restriction on transferability
of debentures.
98. Registration of transfers.
99. Transmission of shares or
debentures by operation of law.
100. Protection of beneficiaries.
101. Certification of transfers.
102. Company's lien on shares.
Part K—Branch Registers
103. Power for company to keep
branch registers.
104. Regulations as to branch
registers.
105. Stamp duties in case of
securities registered in branch
registers.
106. Provisions as to branch
registers kept in Ghana.
Part L—Registration of Particulars
of Charges
107. Registration of particulars
of charges created by companies.
108. Charges to secure fluctuating
amounts.
109. Charges on property acquired.
110. Existing charges.
111. Duty of company to deliver
particulars for registration.
112. Register of particulars of
charges.
113. Endorsement of registration
on debentures of a series.
114. Entry of satisfaction on
discharge.
115. Rectification of register of
particulars of charges.
116. Registration of enforcement
of security.
117. Copies of charges to be kept
by company.
118. Registration constituting
notice.
Part M—Registered Office,
Publication of Name, and Annual
Return
119. Registered office.
120. Notice of situation of
registered office.
121. Publication of name of
company.
122. Annual return.
Part N—Accounts and Audit
123. Keeping of books of account.
124. Circulation of profit and
loss account, balance sheet, and
reports.
125. Profit and loss account.
126. Balance sheet.
127. Group accounts.
128. Particulars of directors'
emoluments and pensions.
129. Particulars of amounts due
from officers.
130. Provisions supplemental to
sections 123 to 129.
131. Signing and publication of
accounts.
132. Directors' report.
133. Auditors' report.
134. Appointment and remuneration
of auditors.
135. Removal of auditors.
136. Duties and powers of
auditors.
Part O—Acts by or on behalf of the
Company
137. Division of powers between
general meeting and board of
directors.
138. Delegation to committees and
managing directors.
139. Acts of the company.
140. Acts of officers or agents.
141. No constructive notice of
registered documents.
142. Presumption of regularity.
143. Liability of company not
affected by officer's fraud or
forgery.
144. Form of contracts.
145. Bills of exchange and
promissory notes.
146. Authentication of documents.
147. Execution of deeds abroad.
148. Official seal for use
abroad.
Part P—General Meetings and
Resolutions
149. Annual general meetings.
150. Extraordinary general
meetings.
151. Place of meetings.
152. Length of notice of
meetings.
153. Contents of notice.
154. Persons entitled to notice.
155. Service of notice.
156. Accidental failure to give
notice.
157. Circulation of members'
resolutions and supporting
circulars.
158. Circulation of members'
circulars.
159. General provisions affecting
sections 157 and 158.
160. Attendance at meetings.
161. Quorums.
162. Power of Court to order
meeting.
163. Proxies.
164. Obtaining proxies by
misrepresentation.
165. Representation of
corporation at meetings.
166. Chairman of meetings.
167. Adjournments.
168. Types of resolution.
169. Amendments.
170. Procedure on voting.
171. Voting of joint holders.
172 Votes by persons of unsound
mind.
173. Date of passing of
resolutions.
174. Written resolutions.
175. Application of sections 152
to 174 to class meetings.
176. Registration of certain
resolutions.
177. Minutes of general meetings.
178. Inspection of minute book.
Part Q—Directors and Secretary
179. Meaning of directors.
180. Number of directors.
181. Appointment of directors.
182. Competence of directors.
183. Directors' share
qualification.
184. Vacation of office of
director.
185. Removal of directors.
186. Restraining fraudulent
persons from managing companies.
187. Substitute directors.
188. Alternate directors.
189. Presence of directors in
Ghana.
190. Secretary.
191. Avoidance of acts in dual
capacity as director and
secretary.
192. Executive directors.
193. Managing directors.
194. Remuneration of directors.
195. Prohibition of tax-free
payments.
196. Register of directors and
secretary.
197. Registration of particulars
of directors and secretaries.
198. Publication of names of
directors.
199. Prohibition of assignment of
offices.
200. Proceedings of directors.
201. Minutes of directors'
meetings.
202. Limitations on the powers of
directors.
203. Duties of directors.
204. Exercise of directors'
powers.
205. Conflicts of duty and
interest.
206. Consent of company.
207. Contracts in which directors
are interested.
208. Directors acting
professionally.
209. Civil liabilities for breach
of duty.
210. Legal proceedings to enforce
liabilities.
211. Payments to directors for
loss of office or on transfer of
the company's undertaking.
212. Payments to directors in
connection with take-over bids.
213. Provisions supplemental to
sections 211 and 212.
214. Duties of directors in
connection with sales or purchases
of the company's securities.
215. Register of directors'
holdings.
216. General saving of existing
law relating to officers.
Part R—Protection Against Illegal
or Oppressive Action
217. Injunction or declaration in
the event of illegal or irregular
activity.
218. Remedy against oppression.
219. Enquiries by the Registrar.
220. Appointment of inspector
under order of the Court.
221. Appointment of inspector on
special resolution of the company.
222. Power to carry investigation
into the affairs of associated
companies.
223. Production of documents and
evidence.
224. Inspectors' report.
225. Proceedings after
investigation.
226. Expenses of investigations.
227. Power to require information
as to persons interested in
shares or debentures.
228. Saving for legal
practitioners and bankers.
Part S—Arrangements and
Amalgamations
229. Meaning of arrangement and
amalgamation.
230. Arrangement or amalgamation
by sale of undertaking for
securities to be distributed.
231. Arrangement or amalgamation
with Court approval.
232. Powers of the Court for
facilitating arrangements or
amalgamations.
233. Information as to
arrangements and amalgamations.
234. Power to acquire shares of
minority on acquisition of
subsidiary company.
235. Rights of minority on
acquisition of subsidiary company.
Part T—Receivers and Managers
236. Disqualification for
appointment as receiver.
237. Power to appoint Official
Trustee.
238. Powers of receivers and
managers.
239. Receivers and managers
appointed by the Court.
240. Receivers and managers
appointed out of Court.
241. Liabilities of receivers and
managers on contracts.
242. Notification that receiver
or manager has been appointed.
243. Accounts where manager
appointed to enforce a floating
charge.
244. Delivery to Registrar of
accounts of receivers.
245. Enforcement of receivers'
duties.
Part U—Winding up
246. Modes of winding up.
247. Declaration of solvency.
248. Procedure on resolution for
liquidation.
249. Statements and accounts of
final financial year.
250. Resolution for appointment
and removal of liquidator.
251. Remuneration of liquidator.
252. Disqualification of
liquidator.
253. Status of liquidator.
254. Cessation of directors'
powers.
255. Powers of liquidator.
256. Books and accounts during
private liquidation.
257. Liquidation account.
258. Duty of liquidator in case of
insolvency.
259. Stay of proceedings.
260. Dissolution of companies.
261. Dissolution without full
winding up.
Part V—Documents
262. Service of documents by
company.
263. Service of documents on
company.
264. Books and registers.
Part W—Invitations to the Public
265. Control of public
invitations.
266. Meaning of "invitations to
the public."
267. Offers for sale deemed to be
made by the company.
CHAPTER III—ADDITIONAL PROVISIONS
APPLICABLE TO PRIVATE COMPANIES
ONLY
268. Default in complying with
conditions constituting a private
company.
269. Documents to be annexed to
the annual return of a private
company.
270. Qualification of auditors of
private companies.
271. Requisitioning extraordinary
general meetings of a private
company.
272. Appointment and removal of
directors of private companies.
273. Conversion of private
company to public company.
CHAPTER IV—ADDITIONAL PROVISIONS
APPLICABLE TO PUBLIC COMPANIES
ONLY
Part A—Prospectuses and Statements
in Lieu of Prospectus
274. Statement in lieu of
prospectus.
275. Prospectus on invitation to
the public to acquire or dispose
of securities.
276. General and restricted
invitations to the public.
277. Certificates of exemption.
278. Expert's consent.
279. Registration of
prospectuses.
280. Meaning of "approved stock
exchange" and "exempted dealer".
281. Waiting period.
282. Withdrawal of applications
after the waiting period.
283. Invitations in respect of
securities to be dealt in on a
stock exchange.
284. Minimum subscription.
285. Application of sections 275
to 279 and 281 to 284 to
authorised mutual funds.
286. Civil remedy for mis-statements
or omissions in a prospectus.
287. Rescission for mis-statements
in a prospectus.
288. Voting rights of shares
offered to the public.
289. Public invitations to
deposit money with public
companies.
290. Prohibition of waiver and
notice clauses.
291. Criminal liability for mis-statements.
291A. Discretion of Registrar to
Waive or Modify the Application of
Part A of Chapter IV.
Part B—Dividends and Transfers
292. Limitation of liability of
shareholders in public companies
to restore illegal dividends.
293. Interim dividends.
294. Restrictions on the
transferability of securities of
public companies.
Part C—Annual Returns and Auditors
295. Documents to be annexed to
the annual return of a public
company.
296. Qualification of auditors of
public company.
Part D—General Meetings
297. Extraordinary general
meetings of public companies.
Part E—Directors
298. Rotation of directors of a
public company.
299. Voting for directors of a
public company.
300. Cumulative voting for
directors of a public company.
301. Prohibition of loans by a
public company to directors.
CHAPTER V—PROVISIONS APPLICABLE TO
NON-GHANAIAN COMPANIES
302. Meaning of external company.
303. Documents to be delivered to
Registrar by external company.
304. Returns required on
alteration of registered
particulars.
305. Local managers.
306. Service on external company.
307. Accounts of external
company.
308. Obligation to state name
etc. of external company.
309. Publication of names of
local managers.
310. Registration of particulars
of charges.
311. Notification of winding up
of external company.
312. Cessation of business of
external company.
313. Penalties and disabilities.
314. Control of public
invitations relating to external
companies.
315. Control of public
invitations relating to other
non-Ghanaian companies.
316. Application of sections 266
and 267 to external and
non-Ghanaian companies.
317. Interpretation.
CHAPTER VI— SUPPLEMENTARY
Part A—Unit Trusts and Mutual
Funds
318. Unit trusts.
319. Mutual funds.
Part B—Miscellaneous Offences
320. Inducing persons to invest.
321. Penalty for false
statements.
322. Penalty for improper use of
"Incorporated" or " Limited".
323. Publication of misleading
statements regarding shares or
capital.
Part C—Legal Proceedings
324. Representative actions.
325. Costs in actions by limited
companies.
326. Contribution between joint
wrongdoers.
327. Power to grant relief.
Part D—Administration
328. Registrar of companies.
329. Fees.
330. Documents to be translated.
331. Registration of documents.
332. Prescribed forms.
333. Inspection, copies and
evidence of registered documents.
334. Authentication of documents
issued by Registrar or Minister.
335. Enforcement of duty to make
returns.
336. Regulations.
337. Registrar's power to obtain
directions of the Court.
338. Periodical reports by
Registrar.
339. Extension to unregistered
companies.
340. Repeals.
SCHEDULES
First Schedule—Definitions
Second Schedule—Tables A and B
Third Schedule—Form of Annual
Return
Fourth Schedule—Accounts
Fifth Schedule—Auditors' Report
Sixth Schedule—Statement in Lieu
of Prospectus
Seventh Schedule—Prospectus
Eighth Schedule—Fees
Ninth Schedule—Transitional
Provisions affecting Existing
Companies
Tenth Schedule—Repeals
THE HUNDRED AND SEVENTY-NINTH
ACT OF THE PARLIAMENT OF THE
REPUBLIC OF GHANA
ENTITLED
THE COMPANIES CODE, 1963
AN ACT to codify and amend the law
relating to companies.
DATE OF ASSENT: 28TH MAY, 1963
BE IT ENACTED by the President
and the National Assembly in this
present Parliament assembled, as
follows:—
CHAPTER I—PRELIMINARY
Section 1—Commencement.
This Code shall come into
operation on the first day of
July, 1963.
Section 2—Interpretation.
First Sch.
In this Code, unless the context
otherwise requires, the
expressions defined in the First
Schedule hereto shall have the
meanings assigned to them in that
Schedule.
Section 3—Application of Act.
(1) Except where otherwise
provided, the provisions of this
Code shall apply to all companies
formed in Ghana, whether before
or after the commencement of this
Code, under the provisions of the
Companies Ordinance, (Cap. 193) or
this Code.
(2) Nothing in this Code contained
shall affect the validity of
anything done before the date when
the Code comes into operation.
Ninth Sch.
(3) The provisions of this Code
which require or may require
immediate action by existing
companies when this Code comes
into operation are referred to in
the Ninth Schedule to this Code.
Section 4—Application of
Particular Chapters of the Code.
(1) The provisions of Chapter III
of this Code shall apply to
private companies but not to
public companies.
(2) The provisions of Chapter IV
of this Code shall apply to public
companies but not to private
companies.
(3) The provisions of Chapter V of
this Code shall not apply to
companies formed in Ghana.
Section 5—Prohibition of
Partnerships Exceeding 20 Members.
No company, association or
partnership consisting of more
than twenty persons shall be
formed for the purpose of carrying
on any business that has for its
object the acquisition of gain by
the company, association or
partnership, or by the individual
members thereof, unless it is
registered as a company under this
Code or is formed in pursuance of
some other enactment for the time
being in force.
Section 6—Companies formed for
Special Purposes.
Nothing in this Code shall
abrogate or affect any special
legislation relating to companies
carrying on the business of
banking, insurance or any other
business from time to time subject
to special regulation.
Section 7—Saving of Equity and
Common Law.
The rules of equity and of common
law applicable to companies shall
continue in force except so far as
they are inconsistent with the
provisions of this Code.
CHAPTER II—PROVISIONS APPLICABLE
TO ALL COMPANIES
Part A—Formation and Matters
Incidental thereto
Section 8—Right to form a Company.
Any one or more persons may form
an incorporated company by
complying with the provisions of
this Code in respect of
registration.
Section 9—Types of Company.
(1) An incorporated company may be
either,
(a) a company having the liability
of its members limited to the
amount, if any, unpaid on the
shares respectively held by them,
in this Code referred to as a
company limited by shares; or
(b) a company having the liability
of its members limited to such
amount as the members may
respectively undertake to
contribute to the assets of the
company in the event of its being
wound up, in this Code referred to
as a company limited by guarantee;
or
(c) a company not having any limit
on the liability of its members,
in this Code referred to as an
unlimited company.
(2) A company of any of the
foregoing types may either be a
private company or a public
company.
(3) A private company shall be a
company which by its Regulations,
(a) restricts the right to
transfer its shares, if any;
(b) limits the total number of its
members and debentureholders to
fifty, not including persons who
are bona fide in the employment of
the company and persons who,
having been formerly bona fide in
the employment of the company,
were while in that employment, and
have continued after the
determination of that employment
to be, members or debentureholders
of the company;
(c) prohibits the company from
making any invitation to the
public to acquire any shares or
debentures of the company; and
(d) prohibits the company from
making any invitation to the
public to deposit money for fixed
periods or payable at call,
whether bearing or not bearing
interest:
Provided that where two or more
persons hold one or more shares or
debentures jointly, they shall,
for the purposes of this
subsection, be treated as a single
member or debentureholder.
(4) Any other company shall be a
public company.
(5) A company limited by shares
and an unlimited company shall be
registered with shares.
(6) A company limited by guarantee
shall not be registered with
shares and shall not create or
issue shares.
Section 10—Companies Limited by
Guarantee.
(1) A company limited by guarantee
may not lawfully be incorporated
with the object of carrying on
business for the purpose of making
profits.
(2) If any company limited by
guarantee shall carry on business
for the purpose of making profits,
all officers and members thereof
who shall be cognisant of the fact
that it is so carrying on business
shall be jointly and severally
liable for the payment and
discharge of all the debts and
liabilities of the company
incurred in carrying on such
business, and the company and
every such officer and member
shall be liable to a fine not
exceeding five pounds for every
day during which it shall carry on
such business.
(3) The total liability of the
members of a company limited by
guarantee to contribute to the
assets of the company in the event
of its being wound up shall not at
any time be less than one hundred
pounds.
(4) Subject to compliance with
subsection (3) of this section,
the Regulations of a company
limited by guarantee may provide
that members can retire or be
excluded from membership thereof.
(5) If in breach of subsection (3)
of this section the total
liability of the members of any
company limited by guarantee shall
at any time be less than one
hundred pounds, every director and
member of the company who is
cognisant of the breach shall be
liable to a fine not exceeding one
hundred pounds.
Section 11—Conversion of Company
Limited by Shares to Company
Limited by Guarantee.
(1) A company limited by shares
may be converted into a company
limited by guarantee if,
(a) there is no unpaid liability
on any of its shares;
(b) all its members agree in
writing to such conversion and to
the voluntary surrender to the
company for cancellation of all
the shares held by them
immediately prior to the
conversion;
(c) new Regulations, appropriate
to a company limited by guarantee,
are adopted by the company
pursuant to section 22 of this
Code;
(d) a member or members agree in
writing to contribute to the
assets of the company, in the
event of its being wound up, to an
extent not less than that
prescribed by subsection (3) of
section 10 of this Code.
(2) Upon delivery to the
Registrar for registration of,
(a) a copy of the said new
Regulations and of the special
resolution adopting the same, and
(b) a statutory declaration by a
director and the secretary of the
company confirming that the
conditions of the immediately
preceding subsection have been
complied with,
the Registrar shall issue a new
certificate of incorporation
altered to meet the circumstances
of the case; and as from the date
mentioned in such certificate the
company shall be converted into a
company limited by guarantee, the
shares therein shall be validly
surrendered and cancelled
notwithstanding the provisions of
section 56 of this Code, and any
members of the company who have
not agreed to contribute to the
assets of the company in the event
of its being wound up shall cease
to be members thereof:
Provided that,
(a) except in accordance with
subsection (3) of section 15 of
this Code, the company may not
change the name under which it was
registered prior to the
conversion; but the omission of
the word "Limited" as the last
word of the name of the company
after conversion shall not be
regarded as a change of name;
(b) if the Registrar is of the
opinion that the name under which
the company is registered will be
misleading or undesirable on its
conversion to a company limited by
guarantee he shall, in accordance
with subsection (5) of section 15
of this Code, direct the company
to change its name and shall not
issue a new certificate of
incorporation until the direction
has been complied with or
cancelled in accordance with the
provisions of that subsection;
(c) until a new certificate of
incorporation is issued the former
Regulations shall continue to
apply and neither the surrender of
the shares of the company nor the
agreement to contribute to the
assets of the company in the event
of its being wound up shall take
effect.
(3) The conversion of a company
pursuant to the provisions of this
section shall not affect any
rights or obligations of the
company except as mentioned in
this section or render defective
any legal proceedings by or
against the company.
Section 12—Duties of Promoters.
(1) Any person who is or has been
engaged or interested in the
formation of a company shall be
deemed to be a promoter of that
company:
Provided that a person acting in a
professional capacity for persons
engaged in procuring the formation
of the company shall not thereby
be deemed to be a promoter.
(2) Until the formation of a
company is complete and its
working capital has been raised,
the promoter shall,
(a) stand in a fiduciary
relationship to the company;
(b) observe the utmost good faith
towards the company in any
transaction with it or on its
behalf; and
(c) compensate the company for any
loss suffered by it by reason of
his failure so to do.
(3) A promoter who acquires any
property or information in
circumstances in which it was his
duty as a fiduciary to acquire it
on behalf of the company shall
account to the company for such
property and for any profit which
he may have made from the use of
such property or information.
(4) Any transaction between a
promoter and the company may be
rescinded by the company unless,
after full disclosure of all
material facts known to the
promoter, the transaction shall
have been entered into or ratified
on behalf of the company,
(a) if all the company's directors
are independent of the promoter,
by the company's board of
directors; or
(b) by all the members of the
company; or
(c) by the company at a general
meeting at which neither the
promoter nor the holders of any
shares in which he is beneficially
interested shall have voted on the
resolution to enter into or ratify
that transaction.
(5) No period of limitation shall
apply to any proceedings brought
by a company to enforce any of its
rights under this section; but in
any such proceedings the Court may
relieve a promoter in whole or in
part and on such terms as it
thinks fit from liability
hereunder if in all the
circumstances, including lapse of
time, the Court thinks it
equitable so to do.
Section 13—Pre-incorporation
Contracts.
(1) Any contract or other
transaction purporting to be
entered into by a company prior to
its formation or by any person on
behalf of the company prior to its
formation may be ratified by the
company after its formation; and
thereupon the company shall become
bound by and entitled to the
benefit thereof as if it had been
in existence at the date of such
contract or other transaction and
had been a party thereto.
(2) Prior to ratification by a
company the person or persons who
purported to act in the name or on
behalf of the company shall, in
the absence of express agreement
to the contrary, be personally
bound by the contract or other
transaction and shall be entitled
to the benefit thereof.
Section 14—Formation of Companies.
After the commencement of this
Code a company shall be formed in
manner following, that is to say,
(a) there shall be delivered to
the Registrar for registration a
copy of the proposed Regulations
of the company complying with
sections 16 to 18 of this Code;
(b) unless, in the opinion of the
Registrar,
(i)
the Regulations do not comply with
this Code;
(ii) the objects for which the
company is being formed or the
business which it is to carry on,
or any of them are unlawful;
(iii) any of the subscribers to
the Regulations is an infant or of
unsound mind; or
(iv) any of the directors named in
the Regulations is under section
182 of this Code, incompetent to
be appointed a director,
the Registrar shall register the
said Regulations;
(c) upon registration of the
Regulations, the Registrar shall
certify under his seal that the
company is incorporated and, in
the case of a limited company,
that the liability of its members
is limited;
(d) from the date of registration
mentioned in the certificate of
incorporation, the company shall
be a body corporate by the name
contained in the Regulations and,
subject as provided in sections 27
and 28 of this Code, be capable
forthwith of exercising all the
functions of an incorporated
company;
(e) the Registrar shall insert a
notice in the Gazette stating the
issue of such certificate and the
terms thereof;
(f) the certificate of
incorporation, or a copy thereof,
certified as correct under the
hand of the Registrar, or the
Gazette containing the notice
referred to in paragraph (e) of
this section, shall be conclusive
evidence that the company has been
duly registered and incorporated
under this Code and no proceedings
shall be brought in any Court to
cancel or annul such registration:
Provided that nothing in this
paragraph contained shall
prejudice the institution of
proceedings to wind up the company
in accordance with section 247 of
this Code.
Section 15—Names of Companies.
(1) The last word of the name of a
company limited by shares shall be
"Limited":
Provided that an existing company
limited by shares which has been
licensed under section 15 of the
Companies Ordinance (Cap. 193), to
dispense with the word "Limited"
shall retain the right to such
dispensation until the expiration
of six months after the
commencement of this Code.
(2) No company shall be registered
by a name which, in the opinion of
the Registrar, is misleading or
undesirable.
(3) A company may, by special
resolution and with the approval
of the Registrar signified in
writing, change its name.
(4) If, through inadvertence or
otherwise, a company on its first
registration or on its
registration by a new name is
registered by a name which, in the
opinion of the Registrar, is
misleading or undesirable, the
company may change its name with
the sanction of the Registrar, and
if the Registrar shall so direct
within six months of its being
registered by that name, shall
change it within a period of six
weeks from the date of the
direction or such longer period as
the Registrar may think fit to
allow.
(5) If the Registrar is of the
opinion that by reason of any
change in the objects of, or the
nature of the business carried on
by a company the name under which
it is registered is misleading or
undesirable, the Registrar may
direct such company to change its
name and the company shall change
its name within six weeks of such
direction, unless within that time
it shall have lodged an appeal to
the Court against such direction.
(6) The Court shall, thereupon,
either cancel or confirm such
direction and its decision shall
be final and conclusive; and if
the direction shall be confirmed,
the company shall change its name
within six weeks of such
confirmation.
(7) If a company makes default in
complying with a direction under
either of the three immediately
preceding subsections it and any
director of the company who is
cognisant of the default shall be
liable to a fine not exceeding
five pounds for every day during
which the default continues.
(8) Where a company changes its
name under this section the
Registrar shall enter the new name
on the register in place of the
former name, and shall issue a
certificate of incorporation
altered to meet the circumstances
of the case.
(9) Any alteration so made shall
be advertised by the Registrar in
the Gazette and in one newspaper
published in Ghana and circulating
in the district in which the
registered office of the company
is situated.
(10) A certificate or an
advertisement in the Gazette under
this section shall be conclusive
evidence of the alteration to
which it relates.
(11) A change of name by a company
shall not affect any rights or
obligations of the company or
render defective any legal
proceedings by or against the
company, and any legal proceedings
that might have been continued or
commenced against it by its former
name may be continued or commenced
against it by its new name.
(12) The Registrar may, on written
application and on payment of the
prescribed fee, reserve a name
pending registration of a company
or a change of name by a company.
(13) Any such reservation shall be
for such period as the Registrar
shall think fit not exceeding two
months and during the period of
reservation no other company shall
be registered under the reserved
name or under any other name which
in the opinion of the Registrar is
too like the reserved name.
Part B—The Company's Regulations
Section 16—Contents of
Regulations.
(1) This section shall apply to
any company registered after the
commencement of this Code and to
an existing company which,
pursuant to section 19 of this
Code, adopts Regulations in lieu
of its memorandum and articles of
association.
(2) The Regulations of a company
shall state,
(a) the name of the company, with
"Limited" as the last word of the
name in the case of a company
limited by shares;
(b) the nature of the business or
businesses which the company is
authorised to carry on, or if the
company is not formed for the
purpose of carrying on a business,
the nature of the object or
objects for which it is
established;
(c) that the company has, for the
furtherance of its authorised
businesses or objects, all the
powers of a natural person of full
capacity except in so far as such
powers are expressly excluded by
the Regulations;
(d) the names of the first
directors of the company;
(e) that the powers of the
directors are limited in
accordance with section 202 of
this Code.
(3) The Regulations of a company
limited by shares or by guarantee
shall also state that the
liability of its members is
limited.
(4) In the case of a company
having shares the Regulations
shall also state the number of
shares with which the company is
to be registered.
Second Sch.
(5) In the case of a company
limited by guarantee the
Regulations shall also,
(a) contain a regulation in the
terms of regulation 3 of Table B
in the Second Schedule to this
Code, with such modifications as
the Registrar shall allow, stating
that the income and property of
the company shall be applied
solely towards the promotion of
its objects, and that no portion
thereof shall be paid or
transferred directly or indirectly
to the members of the company
except as therein permitted;
(b) state that each member
undertakes to contribute to the
assets of the company in the event
of its being wound up while he is
a member or within one year after
he ceases to be a member, for
payment of the debts and
liabilities of the company, and of
the costs of winding up, such
amount as may be required not
exceeding a specified amount; and
(c) state that if, upon the
winding up of the company, there
remains after the discharge of all
its debts and liabilities any
property of the company the same
shall not be distributed among the
members but shall be transferred
to some other company limited by
guarantee having objects similar
to the objects of the company or
applied to some charitable object,
such other company or charity to
be determined by the members prior
to the dissolution of the company.
(6) The Regulations may contain
any other lawful provisions
relating to the constitution and
administration of the company.
Section 17—Form of Regulations.
Second Sch.
(1) In the case of a company
registered after the commencement
of this Code, or an existing
company which, pursuant to section
19 of this Code, adopts
Regulations in lieu of its
memorandum and articles of
association, the form of the
Regulations of,
(a) a private company limited by
shares,
(b) a public company limited by
shares,
(c) a company limited by
guarantee,
shall be respectively in
accordance with the forms set out
in Table A Part I, Table A Part
II, or Table B, in the Second
Schedule to this Code or as near
thereto as circumstances may
admit; and the form of the
Regulations of an unlimited
company shall be in accordance
with the form set out in Table A
Part I, if a private company, or
Table A Part II, if a public
company, or as near thereto as
circumstances may admit, but with
such modifications as are
necessary having regard to the
fact that the liability of the
members is unlimited.
(2) The Regulations may adopt such
of the provisions of the
appropriate Table as are not
required, by section 16 of this
Code, to be stated in the
Regulations, and, in so far as the
Regulations do not exclude or
modify those provisions, they
shall, so far as applicable, be
part of the Regulations of the
company.
(3) The Regulations shall be
printed, typewritten, or in some
other legible form acceptable to
the Registrar.
Section 18—Subscribing to
Regulations.
(1) The Regulations of any company
registered after the commencement
of this Code shall be signed by
one, or more subscribers in the
presence of, and shall be attested
by, one witness at the least.
(2) In the case of Regulations of
a company with shares the
subscribers, or each subscriber if
more than one, shall write
opposite to his name the number of
shares he takes and the cash price
payable therefor, and shall take
at least one share.
(3) The Regulations shall not be
chargeable to any stamp duty.
Section 19—Regulations of Existing
Companies.
Second Sch.
(1) An existing company may, by
special resolution, adopt
Regulations in the form required
by this Code in lieu of its
memorandum and articles of
association and may adopt such of
the provisions of the appropriate
Table in the Second Schedule
hereto as are not required, by
section 16 of this Code, to be
stated in the Regulations.
(2) Any reference in this Code to
the Regulations of a company
shall, in the case of an existing
company which has not adopted
Regulations in lieu of its
memorandum and articles, be deemed
to be a reference to its
memorandum and articles of
association.
(3) Nothing in subsection (1) of
this section shall be deemed to
authorise any company to alter the
substance, as opposed to the form,
of its Regulations except as
mentioned in section 22 of this
Code.
Section 20—Prints of Tables A and
B.
Second Sch.
Where the Regulations of a company
include without express repetition
all or any of the provisions of
Table A or B, a printed copy of
the appropriate Table or, in the
case of Table A, of the
appropriate Part thereof shall be
attached to every copy of such
Regulations.
Section 21—Effect of Regulations.
(1) Subject to the provisions of
this Code, the Regulations, when
registered, shall have the effect
of a contract under seal between
the company and its members and
officers and between the members
and officers themselves whereby
they agree to observe and perform
the provisions of the Regulations,
as altered from time to time, in
so far as they relate to the
company, members, or officers as
such.
(2) Where the Regulations empower
any person to appoint or remove
any director or other officer of
the company such power shall be
enforceable by that person
notwithstanding that he is not a
member or officer of the company.
(3) In any action by any member or
officer to enforce any obligation
owed under the Regulations to him
and any other member or officer,
such member or officer shall, if
any other member or officer is
affected by the alleged breach of
such obligation, sue in a
representative capacity on behalf
of himself and all other members
or officers who may be affected
other than any who are defendants
and the provisions of section 324
of this Code shall apply.
Section 22—Alteration of
Regulations.
A
company may, by special
resolution, alter or add to its
Regulations or adopt new
Regulations:
Provided that,
(a) the name of the company shall
not be altered except with the
consent of the Registrar in
accordance with section 15 of this
Code;
(b) the number of the company's
shares may be altered in
accordance with the provisions of
sections 11, 57 to 63, 75 to 79,
218, or 231 of this Code but not
otherwise;
(c) the businesses which the
company is authorised to carry on
or, if the company is not formed
for the purpose of carrying on a
business, the objects for which it
is established may be altered or
added to in accordance with the
provisions of section 26 or 231 of
this Code but not otherwise;
(d) no alteration or addition
shall be made which shall conflict
with any order of the Court made
under section 218 of this Code;
(e) if at any time the shares of
the company are divided into
different classes the rights
attached to any class may be
altered in accordance with section
47 or 231 of this Code but not
otherwise;
(f) the Regulations may restrict
or exclude the company's power to
alter all or any of its
Regulations or to add thereto or
may impose conditions for the
alteration or addition thereto, in
which event the Regulations may
not be altered or added to except
in accordance with the provisions
thereof or of section 231 of this
Code;
(g) the Regulations as altered or
added to shall be in accordance
with the provisions of this Code
and shall contain the statements
and regulations required by
section 16 of this Code;
(h) except in accordance with
section 231 of this Code no member
of the company shall be bound by
an alteration made in the
Regulations after the date on
which he became a member, if and
in so far as the alteration
requires him to take more shares
than the number held by him on the
date on which the alteration is
made or in any way increase his
liability as at that date to pay
money to the company, or which
increases or imposes restrictions
on the right to transfer the
shares held by him at the date of
the alteration, unless he agrees
in writing, either before or after
the alteration is made, to be
bound thereby;
(i)
no alteration shall be made which
would have the effect of
converting an unlimited company
into a limited company or a
company limited by guarantee into
a company limited by shares;
(j) an alteration may be
restrained or cancelled by the
Court in accordance with section
217 or 218 of this Code.
Section 23—Copies of Regulations.
(1) A company shall, on being so
required by any member, send to
him a copy of its Regulations on
payment of the sum of two
shillings and sixpence or such
less sum as the company may
prescribe.
(2) Where an alteration is made to
the Regulations every copy thereof
issued after the date of the
alteration and whether to a member
or otherwise shall be in
accordance with the alteration.
(3) If a company makes default in
complying with this section the
company and every officer of the
company who is in default shall be
liable for each offence to a fine
not exceeding ten pounds.
Part B—The Company's Regulations
Section 24—Powers of Companies.
Except to the extent that a
company's Regulations otherwise
provide, every company registered
after the commencement of this
Code and every existing company
which, pursuant to section 19 of
this Code, adopts Regulations in
lieu of its memorandum and
articles of association shall
have, for the furtherance of its
objects and of any business
carried on by it and authorised in
its Regulations, all the powers of
a natural person of full capacity.
Section 25—Ultra Vires.
(1) A company shall not carry on
any business not authorised by its
Regulations and shall not exceed
the powers conferred upon it by
its Regulations or this Code.
(2) A breach of subsection (1) of
this section may be asserted in
any proceedings under section 210,
218 or 247 of this Code or under
subsection (4) of this section.
(3) Notwithstanding subsection (1)
of this section, no act of a
company and no conveyance or
transfer of property to or by a
company shall be invalid by reason
of the fact that such act,
conveyance or transfer was not
done or made for the furtherance
of any of the authorised
businesses of the company or that
the company was otherwise
exceeding its objects or powers.
(4) On the application of,
(a) any member of the company, or
(b) the holder of any debenture
secured by a floating charge over
all or any of the company's
property or by the trustee for the
holders of any such debentures,
the Court may prohibit, by
injunction, the doing of any act
or the conveyance or transfer of
any property in breach of
subsection (1) of this section.
(5) If the transactions sought to
be prohibited in any proceedings
under the immediately preceding
subsection are being, or are to
be, performed or made pursuant to
any contract to which the company
is a party, the Court may, if it
deems the same to be equitable and
if all the parties to the contract
are parties to the proceedings,
set aside and prohibit the
performance of such contract, and
may allow to the company or to the
other parties to the contract
compensation for any loss or
damage sustained by them by reason
of the setting aside or
prohibition of the performance of
such contract but not compensation
for loss of anticipated profits to
be derived from the performance of
such contract.
Section 26—Alteration of
Authorised Businesses.
(1) A company may, by special
resolution, alter its Regulations
with respect to the businesses
which it is authorised to carry on
or, in the case of a company not
formed for the purpose of carrying
on a business, with respect to the
objects for which it is
established:
Provided that if an application is
made to the Court in accordance
with this section for the
alteration to be annulled, it
shall not have effect except in so
far as it is confirmed by the
Court.
(2) Within twenty-eight days of
the passing of any such resolution
notice thereof shall be given in
the prescribed form to the holders
of all debentures secured by a
floating charge over any of the
company's property and to the
trustees, if any, for such
debenture holders.
(3) An application to the Court
under this section shall be made
within sixty days after the
passing of the resolution.
(4) An application for the Court
under this section may be made,
(a) by the Registrar; or
(b) in the case of a private
company, by any member or by any
one to whom notice has to be given
under subsection (2) of this
section; or
(c) in the case of a public
company,
(i)
by the holders of not less than
fifteen per centum in the
aggregate of the company's issued
shares or any class thereof or, if
the company has no shares, by not
less than fifteen per centum of
the company's members;
(ii) by the trustees for the
holders of any debentures secured
by a floating charge over any of
the company's property; or
(iii) by the holders of not less
than fifteen per centum of the
company's debentures secured by a
floating charge over any of the
company's property.
(5) If an application to the Court
is made under this section the
company shall forthwith deliver to
the Registrar for registration
notice in the prescribed form of
that fact.
(6) On an application under this
section being made the Court may,
(a) make an order confirming the
alteration in whole or in part and
on such terms and conditions as
it thinks fit;
(b) adjourn the proceedings in
order that an arrangement may be
made to the satisfaction of the
Court for the purchase of the
interests of dissentients; and may
give such directions and make such
orders as it may think expedient
for facilitating and carrying into
effect any such arrangement;
and if the Court shall refuse to
confirm the alteration it shall
make an order annulling the
alteration.
(7) The company shall within
twenty-eight days of the making by
the Court of any order under this
section deliver an office copy
thereof to the Registrar for
registration.
(8) If a company makes default in
giving or publishing any notice or
delivering any document as
required by this section, the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding ten
pounds.
Part D—Commencement of Business
Section 27—Filing of Particulars.
(1) A company registered after the
commencement of this Code shall
not transact any business,
exercise any borrowing powers, or
incur any indebtedness, except
such as shall be incidental to its
incorporation or to obtaining
subscriptions to or payment for
its shares, until it has delivered
to the Registrar a return in
duplicate in the prescribed form
giving particulars, as at the date
of the return, of,
(a) its name;
(b) its authorised business, or,
if the company is not formed for
the purpose of carrying on a
business, the nature of its
objects;
(c) the names and any former
names, addresses and business
occupations of its directors and
secretary, and particulars of any
other directorships held by them,
as provided by section 196 of this
Code;
(d) the name and address of its
auditor;
(e) the addresses of its
registered office and principal
place of business in Ghana and the
number of the post office Box of
its registered office;
(f) if its register of members is
kept and maintained elsewhere than
at the registered office of the
company, the address at which it
is kept;
(g) if the company has shares,
(i)
the amount of its stated capital,
as defined in section 66 of this
Code;
(ii) the number of its authorised
shares of each class;
(iii) the number of its issued
shares of each class and the
amount paid thereon distinguishing
between the amount paid in cash
and the amount paid otherwise than
in cash and, in the case of a
company limited by shares, the
amount, if any, remaining payable
thereon distinguishing between the
amount presently due for payment
and the amount not yet due for
payment.
(2) If the company is limited by
shares the return shall further
state that the declaration
referred to in subsection (1) of
section 28 of this Code has been
delivered to the Registrar for
registration.
(3) The return shall be signed by
two directors and by the secretary
of the company.
(4) The Registrar shall register
the said return and cause a copy
thereof to be published in the
Gazette.
Section 28—Minimum Capital.
(1) A company limited by shares
shall not transact any business,
exercise any borrowing powers or
incur any debt except such as
shall be incidental to its
incorporation or to obtaining
subscriptions to or payment for
its shares until—
(a) there has been paid to it for
the issue of its shares
consideration to the value of at
least—
(i)
twenty million cedis of which at
least five million cedis shall be
paid in cash within section 45 of
this Code in respect of a public
company; or
(ii) five million cedis of which
at least one million cedis shall
be paid in cash within the meaning
of section 45 of this Code in
respect of a private company”. [As
substituted by the Companies Code
(Amendment) Act, 1997 (Act 531)
s.1].
(b) the company has delivered to
the Registrar for registration a
declaration in the prescribed form
verifying that such payments have
been received.
(2) An existing company limited by
shares shall not continue after
the expiration of six months from
the commencement of this Code to
transact any business, exercise
any borrowing powers, or incur any
indebtedness unless,
(a) prior to the expiration of the
six months and whether before or
after the commencement of this
Code, there shall have been paid
to it for the issue of its shares
consideration to the value of at
least five hundred pounds of which
at least one hundred pounds shall
have been paid in cash within the
meaning of section 45 of this
Code; and
(b) the company has delivered to
the Registrar for registration a
declaration in the prescribed form
verifying that such payments have
been received.
(3) For the purposes of this
section any value attributed to
the goodwill of a business or to
services rendered or to be
rendered to the company shall not
be regarded as valuable
consideration for the issue of
shares.
(4) The declarations referred to
in subsections (1) and (2) of this
section shall be signed by all the
directors and by the secretary of
the company.
Section 29—Penalties for Breach of
Section 27 or 28.
(1) In the event of default in
complying with either of the two
immediately preceding sections,
(a) the company and every officer
of the company who is in default
shall be liable to a fine not
exceeding five pounds for each day
during which the default
continues; and
(b) the rights of the company
concerned under or arising out of
any contract made during such time
as the default continues, except
such contracts as shall be
incidental to obtaining
subscriptions to or payments for
its shares, shall not be
enforceable by action or other
legal proceedings:
Provided that,
(a) the company may apply to the
Court for relief against the
disability imposed by this
paragraph of this subsection and
the Court, on being satisfied that
it is just and equitable to grant
relief, may grant such relief
either generally or as respects
any particular contract and on
such conditions as the Court may
impose;
(b) nothing herein contained shall
prejudice the rights of any other
parties as against the company, or
any other person, in respect of
such contract;
(c) if any action or proceeding
shall be commenced by any other
party against the company to
enforce the rights of such party
in respect of such contract,
nothing herein shall preclude the
company from enforcing in that
action or proceeding by way of
counterclaim, set off, or
otherwise, such rights as it may
have against that party in respect
of that contract.
(2) In the event of any default in
complying with subsection (1) of
section 28 of this Code then,
without prejudice to the
provisions of subsection (1) of
this section, the subscribers to
the company's Regulations, the
first directors named in such
Regulations and any person who was
a director at any time thereafter
until paragraphs (a) and (b) of
the said subsection have been
complied with, shall be jointly
and severally liable for the whole
of the debts and liabilities of
the company incurred while the
company was in default, unless he
proves,
(a) in the case of a person named
as one of the first directors,
that he was named without his
consent; or
(b) that he took all reasonable
and practicable steps to prevent
the default; or
(c) that he honestly believed on
reasonable grounds that the
provisions in paragraphs (a) and
(b) of the said subsection had
been complied with prior to the
incurring of the debt or
liability.
(3) If there shall be any error or
omission in any return or
declaration delivered to the
Registrar under either of the
immediately preceding sections,
then, without prejudice to the
provisions of section 321 of this
Code, the company and every
signatory of the return or
declaration shall be liable to a
fine not exceeding fifty pounds.
Part E—Membership of Companies
Section 30—Constitution of
Membership.
(1) The subscribers to the
Regulations shall be deemed to be
members of the company and on its
registration shall be entered as
members in the register of members
referred to in section 32 of this
Code.
(2) Every other person who agrees
with the company to become a
member of the company and whose
name is entered in the register of
members shall be a member of the
company.
(3) Every member shall have such
rights, duties and liabilities as
are by this Code and the
Regulations of the company
conferred and imposed upon
members.
(4) In the case of a company with
shares each member shall be a
shareholder of the company and
shall hold at least one share, and
every holder of a share shall be a
member of the company.
(5) Membership of a company with
shares shall continue until a
valid transfer of all the shares
held by the member is registered
by the company, or until all such
shares are transmitted by
operation of law to another person
or forfeited for non-payment of
calls under a provision in the
Regulations, or until the member
dies.
(6) Membership of a company
limited by guarantee shall
continue until the member dies, or
validly retires or is excluded
from membership in accordance with
a provision to that effect in the
Regulations.
Section 31—Right of Member to
Attend and Vote.
Subject to section 49 of this
Code, every member shall,
notwithstanding any provision in
the Regulations, have a right to
attend any general meeting of the
company and to speak and vote on
any resolution before the meeting:
Provided that the company's
Regulations may provide that a
member shall not be entitled to
attend and vote unless all calls
or other sums presently payable by
him in respect of shares in the
company have been paid.
Section 32—Register of Members.
(1) Every company shall keep in
Ghana a register of its members
and enter therein the following
particulars, that is to say,
(a) the names and addresses of the
members and, in the case of a
company having shares a statement
of the shares held by each member
distinguishing each share by a
number so long as the share has a
number, and of the amount paid or
agreed to be considered as paid on
the shares of each member and of
the amount, if any, remaining
payable on such shares;
(b) the date at which each person
was entered in the register as a
member;
(c) the date at which any person
ceased to be a member.
(2) The entry required under
paragraph (a) or (b) of subsection
(1) of this section shall be made
within twenty-eight days of the
conclusion of the agreement with
the company to become a member or,
in the case of a subscriber to the
Regulations, within twenty-eight
days of the registration of the
company.
(3) The entry required under
paragraph (c) of subsection (1) of
this section shall be made within
twenty-eight days of the date when
the person concerned ceased to be
a member, or , if he ceased to be
a member otherwise than as a
result of action by the company,
within twenty-eight days of
production to the company of
evidence satisfactory to the
company of the occurrence of the
event whereby he ceased to be a
member, and all entries relating
to such person may be deleted from
the register after the expiration
of six years from the date when
such person ceased to be a member.
(4) Where a company has more than
fifty members the register shall
contain an index of the names of
the members in such a form as to
enable the account of each member
to be readily found.
(5) Every existing company shall,
within twenty-eight days of the
coming into operation of this Code
send to the Registrar for
registration, notice in the
prescribed form, of the place
where its register of members is
kept and every company shall
within twenty-eight days of any
change in the place at which its
register of members is kept send
notice thereof to the Registrar:
Provided that a company shall not
be bound to send notice under this
subsection where the register has,
at all times since it came into
existence, or in the case of a
register in existence at the
commencement of this Code, at all
times since then, been kept at the
registered office of the company.
(6) Where a company makes default
in complying with this section,
the company and every officer of
the company who is in default
shall be liable to a fine not
exceeding five pounds for every
day during which such default
continues.
(7) The company may arrange with
some other person, in this Code
referred to as the registration
officer, for the making up of the
register to be undertaken on
behalf of the company by the
registration officer at his
office; and if by reason of any
default of the registration
officer the company makes default
in complying with this section or
with section 33 of this Code, the
registration officer shall be
liable to the same penalties as if
he were an officer of the company
and the power of the Court under
subsection (4) of section 33 of
this Code shall extend to the
making of orders against the
registration officer and his
officers and employees.
Section 33—Inspection of Register.
(1) Except when the register of
members is closed in accordance
with the provisions of section 34
of this Code, the register and
index of the names of the members
of the company shall, during
business hours, subject to such
reasonable restrictions as the
company may impose but so that not
less than two hours in each day,
other than Saturdays, Sundays and
public holidays, shall be allowed
for inspection, be open to the
inspection of any member without
charge and of any other person on
payment of one shilling, or such
less sum as the company may
prescribe, for each inspection.
(2) Any member or other person may
require a copy of the register or
any part thereof, on payment of
two shillings and sixpence, or
such less sum as the company may
prescribe, for every hundred words
or part thereof required to be
copied; and the company shall
cause any copy so required by any
person to be sent to that person
within a period of ten days
commencing on the day next after
the day on which the requirement
is received by the company.
(3) If any inspection required
under this section is refused, or
if any copy required under this
section is not sent within the
proper period, the company and
every officer of the company who
is in default shall be liable in
respect of each offence to a fine
not exceeding five pounds for
every day during which the default
continues.
(4) In the case of any such
refusal or default the Court may
by order compel an immediate
production of the register for
inspection or direct that the
copies required be sent to the
person requiring them.
Section 34—Power to Close
Register.
A
company may, on giving notice by
advertisement in some daily
newspaper circulating in the
district in which the registered
office of the company is situated,
close the register of members or
that part thereof relating to any
class of members for any time or
times not exceeding in the whole
thirty days in each year.
Section 35—Rectification of
Register.
(1) If,
(a) the name of any person is,
without sufficient cause, entered
in or omitted from the register of
members of a company, or
(b) default is made in entering on
the register any of the
particulars which, under section
32 of this Code, are required to
be entered thereon,
the person aggrieved, or any
member of the company, or the
company, may apply to the Court
for rectification of the register.
(2) Where an application is made
under this section, the Court may
either refuse the application or
may order rectification of the
register and payment by the
company of compensation for any
loss sustained by any party
aggrieved.
(3) On an application under this
section being made, the Court may
decide any question relating to
the title of any person who is a
party to the application to have
his name entered in or omitted
from the register, whether the
question arises between members or
alleged members, or between
members or alleged members on the
one hand and the company on the
other hand, and generally may
decide any question necessary or
expedient to be decided for
rectification of the register.
(4) A company may, without
application to the Court, at any
time rectify any error or omission
in the register of members but
such a rectification shall not
adversely affect any person unless
he agrees to the rectification
made.
Section 36—Register to be
Evidence.
The register of members shall be
prima facie evidence of any
matters by this Code directed or
authorised to be inserted therein.
Section 37—Liability of Members.
(1) Prior to the winding up of the
company, a member of a company
with shares shall be liable to
contribute the balance, if any, of
the amount payable in respect of
the shares held by him in
accordance with the terms of the
agreement under which the shares
were issued or in accordance with
a call validly made by the company
pursuant to the company's
Regulations.
(2) Where any contribution has
become due and payable in
accordance with subsection (1) of
this section or where, under the
terms of any agreement with the
company, a member has undertaken
personal liability to make future
payments in respect of shares
issued to him, the liability of
the member shall continue
notwithstanding that the shares
held by him are subsequently
transferred, or forfeited under a
provision to that effect in the
company's Regulations, but his
liability shall cease if and when
the company shall have received
payment in full of all such moneys
in respect of the shares.
(3) Subject as aforesaid no member
or past member shall be liable to
contribute to the assets of the
company except in the event of its
being wound up.
(4) In the event of a company
being wound up every present or
past member shall be liable to
contribute to the assets of the
company to an amount sufficient
for payment of its debts and
liabilities and for the costs,
charges and expenses of the
winding up and for the adjustment
of the rights of the members and
past members among themselves but
subject to the following
qualifications, that is to say,
(a) a past member shall not be
liable to contribute if he has
ceased to be a member for a period
of one year or upwards before the
commencement of the winding up;
(b) a past member shall not be
liable to contribute unless it
appears to the Court that the
existing members are unable to
satisfy the contributions required
to be made by them in pursuance of
this section;
(c) in the case of a company
limited by shares, no contribution
shall be required from any member
or past member exceeding the
amount, if any, unpaid on the
shares in respect of which he is
liable as a present or past
member;
(d) in the case of a company
limited by guarantee, no
contribution shall be required
from any member or past member
exceeding the amount undertaken to
be contributed by him to the
assets of the company in the event
of its being wound up;
(e) any sum due from the company
to a member or past member, in his
character of member, by way of
dividends or otherwise shall not
be set-off against the amount for
which he is liable to contribute
in accordance with this section
but any such sum shall be taken
into account for the purposes of
final adjustment of the rights of
the members and former members
amongst themselves.
(5) For the purposes of this
section the expression "past
member" includes the estate of a
deceased member and where any
person dies after becoming liable
as a member or past member such
liability shall be enforceable
against his estate.
(6) Except as aforesaid a member
or past member of a company shall
not be liable as a member or past
member for any of the debts and
liabilities of the company.
Section 38—Companies Ceasing to
have Members.
If at any time a company ceases to
have any member and it carries on
business for more than six months
without at least one member, every
person who is a director of the
company during the time that it so
carries on business after those
six months shall be jointly and
severally liable for the payment
of all the debts and liabilities
of the company incurred during
that period.
Part F—Shares
Section 39—Nature of Shares.
(1) The shares of any member in a
company shall be personal estate
and shall not be in the nature of
real estate or immovable property.
(2) The number of shares in a
company and the rights and
liabilities attaching thereto
shall be dependent on the terms of
issue, and of the company's
Regulations as amended from time
to time, so far as they are
consistent with this Code.
Section 40—No par shares.
(1) All shares created or issued
after the commencement of this
Code shall be shares of no par
value.
(2) All shares issued prior to the
commencement of this Code shall be
deemed to be converted into shares
of no par value but such
conversion shall not affect the
rights and liabilities attached to
such shares and in particular, but
without prejudice to the
generality of this provision, such
conversion shall not affect,
(a) any unpaid liability on such
shares;
(b) the rights of the holders
thereof in respect of dividends,
voting or repayment on winding up
or a reduction of capital.
Section 41—Issue of Shares.
Shares up to the total number
authorised by the company's
Regulations may be issued at such
times and for such consideration
as the company shall determine and
shall be paid for at such times as
are agreed between the member and
the company or as may be specified
in the Regulations:
Provided that on the winding up of
the company every past and present
shareholder of the company shall
be liable to contribute to the
assets of the company to the
extent referred to in section 37
of this Code.
Section 42—Payment of Shares.
(1) Except on a capitalisation
issue pursuant to subsection (1)
of section 74 of this Code, shares
shall not be issued otherwise than
for valuable consideration paid or
payable to the company and unless
otherwise agreed shares shall be
paid for in cash.
(2) If a company shall have agreed
to accept payment for any shares
otherwise than wholly in cash the
company shall, within twenty-eight
days after the allotment of such
shares, deliver to the Registrar
for registration a contract in
writing duly stamped evidencing
the terms of such agreement and
the true value of the
consideration or, if such
agreement shall not have been
reduced to writing, particulars in
the prescribed form of such
agreement duly stamped, as if it
were a written agreement:
Provided that such particulars
shall not be required on a
capitalisation issue of shares
pursuant to subsection (1) of
section 74 of this Code.
(3) The statement in the agreement
of the value of the non-cash
consideration shall be prima facie
evidence of the true value
thereof, but when a company
limited by shares is in course of
being wound up under the Bodies
Corporate (Official Liquidation)
Act, 1963 (Act 180) the liquidator
or any creditor may apply to the
Court and if the Court is
satisfied that the true value of
such consideration was less than
stated it may, in its discretion,
direct that the shares shall be
treated as unpaid to such an
amount as its shall direct.
Section 43—Return of Issues.
Whenever any company makes any
issue of shares, other than a
re-issue of treasury shares as
defined in subsection (3) of
section 59 of this Code, the
company shall within twenty-eight
days thereafter deliver to the
Registrar for registration a
return in the prescribed form
showing, as at the date of the
return,
(a) the amount of its stated
capital, attributable to each of
the items specified in subsection
(1) of section 66 of this Code;
(b) the number of its authorised
shares of each class;
(c) the total number of its issued
shares of each class and the
amount paid thereon distinguishing
between the amount paid in cash
and the amount paid otherwise than
in cash and, in the case of a
company limited by shares, the
amount, if any, remaining payable
thereon distinguishing between the
amount presently due for payment
and the amount not yet due for
payment;
(d) the total number of its
treasury shares of each class:
Provided that a company registered
after the commencement of this
Code shall not be required to
deliver a return under this
section in respect of any issue of
shares made prior to the delivery
to the Registrar of the return
required by section 27 of this
Code.
Section 44—Penalties for
Non-compliance with section 42 or
43.
If default is made in delivering
any document required under either
of the two immediately preceding
sections, the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding five pounds for
every day during which the default
continues.
Section 45—Meaning of Payment in
Cash.
Shares shall not be deemed to have
been paid for in cash except to
the extent that the company shall
actually have received cash
therefor at the time of, or
subsequently to, the agreement to
issue the shares; and where shares
are issued to a person who has
sold or agreed to sell property or
rendered or agreed to render
services to the company or to
persons nominated by him the
amount of any payment made for the
property or services shall be
deducted from the amount of any
cash payment made for the shares
and only the balance, if any,
shall be treated as having been
paid in cash for such shares
notwithstanding any exchange of
cheques or other securities for
money.
Section 46—Classification of
Shares.
(1) The Regulations of a company
may provide for different classes
of shares by attaching to certain
of the shares preferred, deferred
or other special rights or
restrictions, whether in regard to
dividend, voting, repayment or
otherwise.
(2) Shares shall not be deemed to
be of the same class unless they
rank pari passu for all purposes.
Section 47—Variation of Class
Rights.
(1) If at any time the shares of a
company are divided into different
classes, the rights attached to
any class shall not be varied
except to the extent and in the
manner provided in the
Regulations.
(2) If the Regulations shall
expressly forbid any variation of
the rights of a class, or shall
contain provisions regarding such
variation and shall expressly
forbid any alteration of such
provisions the rights or the
provisions for variation shall not
be altered except with the
sanction of the Court under a
scheme of arrangement in
accordance with section 231 of
this Code.
(3) Except as provided in
subsection (2) of this section a
company may, by special
resolution, alter its Regulations
by inserting therein provisions
regarding the variation of the
rights of any class or by
modifying the terms of any such
provisions.
(4) Any such alteration shall
require the prior written consent
of the holders of at least
three-fourths of the issued shares
of each class or the sanction of a
special resolution of the holders
of the shares of each class and
shall be deemed, for the purposes
of subsections (7) to (11) of this
section to be a variation of the
rights of each class.
(5) Notwithstanding any provision
in the Regulations the rights
attached to any class of shares
first issued after the
commencement of this Code shall
not be varied except with the
written consent of the holders of
at least three-fourths of the
issued shares of that class or the
sanction of a special resolution
of the holders of the shares of
that class.
(6) Any resolution of a company
the implementation of which would
have the effect of diminishing the
proportion of the total votes
exercisable at a general meeting
of the company by the holders of
the existing shares of a class or
of reducing the proportion of the
dividends or distributions payable
at any time to the holders of the
existing shares of a class, shall
be deemed to be a variation of the
rights of that class.
(7) If the rights of any class of
shares are varied the holders of
not less in the aggregate than
fifteen per centum of the issued
shares of that class may apply to
the Court to have the variation
cancelled, and where such
application is made the variation
shall not have effect unless and
until it is confirmed by the
Court.
(8) An application to the Court
under subsection (7) of this
section shall be made within sixty
days of the date on which the
variation was effected and may be
made on behalf of the shareholders
entitled to make the application
by such one or more of their
number as they may appoint in
writing.
(9) If such an application is made
the company shall forthwith
deliver to the Registrar for
registration notice in the
prescribed form of that fact.
(10)The Court after hearing the
applicant and any other persons
who apply to the Court to be heard
and appear to the Court to be
interested in the application
shall, if it is satisfied that the
variation would unfairly prejudice
the shareholders of any class,
cancel the variation and shall, if
not so satisfied, confirm the
variation.
(11) The company shall, within
twenty-eight days after the making
of an order by the Court on such
application, deliver a copy
thereof to the Registrar for
registration.
(12) If a company makes default in
delivering to the Registrar the
notice or order referred to in
subsection (9) or (11) of this
section, the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding ten pounds.
Section 48—Preference and Equity
Shares.
In this Code the expression
"preference share" means a share,
by whatever name designated in the
Regulations, which does not
entitle the holder thereof to any
right to participate beyond a
specified amount in any
distribution whether by way of
dividend, or on redemption, in a
winding up, or otherwise; and any
other share shall be referred to
as an "equity share".
Section 49—Suspension of Voting
Rights of Preference Shares.
(1) Notwithstanding section 31 of
this Code, the Regulations may
provide that the right of holders
of preference shares to attend and
vote at a general meeting of the
company may be suspended upon such
conditions as may be specified.
(2) Notwithstanding any provision
in the Regulations, any preference
shares issued after the
commencement of this Code shall
carry the right to attend general
meetings and on a poll thereat to
at least one vote per share in the
following circumstances, but not
otherwise, that is to say,
(a) upon any resolution during
such period as the preferential
dividend or any part thereof
remains in arrear and unpaid, such
period starting from a date not
more than twelve months, or such
lesser period as the Regulations
may provide, after the due date of
the dividend; or
(b) upon any resolution which
varies the rights attached to such
shares; or
(c) upon any resolution to remove
an auditor of the company or to
appoint another person in place of
such auditor; or
(d) upon any resolution for the
winding up of the company or
during the winding up of the
company.
(3) Subject to the provisions of
section 31 of this Code and to the
preceding subsections of this
section, any preference shares
issued after the commencement of
this Code shall carry the right on
a poll at a general meeting of the
company to one vote, and to one
vote only, in respect of each
share:
Provided that any special
resolution of a company increasing
the number of shares of any class
may validly resolve that any
existing class of preference
shares shall carry the right to
such votes additional to one vote
per share as shall be necessary in
order to preserve the existing
ratio which the votes exercisable
by the holders of such preference
shares at a general meeting of the
company bear to the total votes
exercisable at the meeting.
(4) For the purposes of subsection
(2) of this section a dividend
shall be deemed to be due on the
date appointed in the Regulations
for the payment of the dividend
for any year or other period, or
if no such date is appointed, upon
the day immediately following the
expiration of the year or other
period, and whether or not such
dividend shall have been earned or
declared.
Section 50—Votes of Equity Shares.
(1) Notwithstanding any provision
in the Regulations, any equity
shares issued after the date of
the commencement of this Code
shall, subject to the provisions
of section 31 of this Code, carry
the right on a poll at any general
meeting of the company to one
vote, and to one vote only, in
respect of each share.
(2) For the purposes of this
section any alteration of the
rights of issued preference shares
so that they become equity shares
shall be deemed to be an issue of
equity shares.
Section 51—Canons of Construction
of Class Rights.
In construing the provisions of
the company's Regulations in
respect of the rights attached to
shares, the following canons of
construction shall be observed,
that is to say,
(a) unless the contrary intention
appears, no dividend shall be
payable on any shares unless the
company shall resolve to declare
such dividend;
(b) unless the contrary intention
appears, a fixed preferential
dividend payable on any class of
shares shall be cumulative, that
is to say, no dividend shall be
payable on any shares ranking
subsequent thereto until all the
arrears of the fixed dividend have
been paid;
(c) unless the contrary intention
appears, in a winding up arrears
of any cumulative preferential
dividend whether or not earned or
declared shall be payable up to
the date of actual payment in the
winding up;
(d) if any class of share is
expressed to have a right to a
preferential dividend, then,
unless the contrary intention
appears, such class shall have no
further right to participate in
dividends;
(e) if any class of share is
expressed to have preferential
right to payment out of the assets
of the company in the event of
winding up then, unless the
contrary intention appears, such
class shall have no further right
to participate in the distribution
of assets in the winding up;
(f) in determining the rights of
the various classes to share in
the distribution of the company's
property on a winding up no regard
shall be paid, unless the contrary
intention appears, to whether or
not such property represents
accumulated profits or surplus
which would have been available
for dividend while the company
remained a going concern;
(g) subject as aforesaid, all
shares rank equally in all
respects unless the contrary
intention appears.
Section 52—Numbering of Shares.
Each issued share in a company
shall be distinguished by a
definitive number:
Provided that if and so long as
all the issued shares of the
company or all the issued shares
therein of a particular class are
fully paid, none of these shares
need thereafter have a
distinguishing number so long as
it remains fully paid.
Section 53—Issue of Share
Certificates.
(1) Every company shall, within
two months after the issue of any
of its shares or after the
registration of the transfer of
any share, deliver to the
registered holder thereof a
certificate under the common seal
of the company stating,
(a) the number and class of shares
held by him, and the definitive
numbers thereof, if any;
(b) the amount paid on such shares
and the amount, if any, remaining
unpaid;
(c) the name and address of the
registered holder.
(2) If a share certificate is
defaced, lost or destroyed the
company, at the request of the
registered holder of the shares,
shall renew the same on payment of
a fee not exceeding two shillings
and sixpence and on such terms as
to evidence and indemnity and the
payment of the company's
out-of-pocket expenses of
investigating evidence as the
company may reasonably require.
(3) If default is made in
complying with this section the
company and any officer of the
company who is in default shall be
liable to a fine not exceeding
fifty pounds, and, on application
being made by any person entitled
to have the certificate delivered
to him, the Court may order the
company to deliver the certificate
and may require the company and
any such officer to bear all the
costs of, and incidental to, the
application.
Section 54—Effect of Share
Certificates.
(1) Statements made in a share
certificate under the common seal
of the company shall be prima
facie evidence of the title to the
shares of the person named therein
as the registered holder and of
the amounts paid and payable
thereon.
(2) If any person shall change his
position to his detriment in
reliance in good faith on the
continued accuracy of the
statements made in such
certificate the company shall be
estopped in favour of such person
from denying the continued
accuracy of such statements and
shall compensate such person for
any loss suffered by him in
reliance thereon and which he
would not have suffered had the
statement been or continued to be
accurate:
Provided that nothing herein
contained shall derogate from any
right the company may have to be
indemnified by any other person.
Section 55—Reserve Liability.
A
company limited by shares may, by
special resolution, determine that
any portion of the unpaid
liability on its shares which has
not already been called up shall
not be capable of being called up
except in the event, and for the
purpose, of the company being
wound up; and thereupon that
portion shall not be capable of
being called up except in the
event and for the purpose
aforesaid.
Section 56—Prohibited Transactions
in Shares.
(1) Except as hereinafter
mentioned a company shall not,
(a) alter the number of its shares
or the amount remaining payable
thereon;
(b) release any shareholder or
former shareholder from any
liability on the shares;
(c) provide any financial
assistance, directly or
indirectly, for the subscription
or purchase of its shares or the
shares of its holding company;
(d) acquire, by way of purchase or
otherwise, any of its issued
shares or any shares of its
holding company.
(2) For the purposes of paragraph
(d) of subsection (1) of this
section shares shall be deemed to
have been acquired by the company
if they purport to be held on
trust for the company
notwithstanding that they are
registered in the names of
nominees.
(3) Nothing in subsection (1) of
this section shall prohibit a
company from voluntarily acquiring
its own shares on its conversion
to a company limited by guarantee
in accordance with section 11 of
this Code.
(4) In the event of any breach of
this section,
(a) if such breach is of paragraph
(a) or (b) of subsection (1) of
this section, the purported
alteration or release shall be
void and every officer of the
company who is in default shall be
liable to a fine not exceeding one
hundred pounds;
(b) if such breach is of paragraph
(c) or (d) of subsection (1) of
this section then,
(i)
the transaction concerned shall,
except in favour of a bona fide
purchaser or seller of shares
without knowledge of the breach,
be voidable by the company and any
payment made by the company in
respect thereof shall be
immediately repayable with
interest at the rate of five per
centum per annum, or such higher
rate as the Court may think fit to
order,
(ii) whether or not such
transaction is avoided, every
officer of the company who is in
default shall be liable to a fine
not exceeding one hundred pounds
or twice the amount of any
provision or payment made by the
company in respect of such
transaction, whichever is the
greater.
Section 57—Alteration of Number of
Shares.
(1) A company may, by alteration
of its Regulations,
(a) increase the number of its
shares by creating new shares;
(b) reduce the number of its
shares by cancelling shares which
have not been taken or agreed to
be taken by any person or by
consolidating its existing shares,
whether issued or not, into a
smaller number of shares.
(2) On any consolidation of shares
the amounts paid, and any unpaid
liability thereon, and any fixed
sum by way of dividend or
repayment to which such shares
were entitled shall be
consolidated likewise.
Section 58—Financial Assistance
for Acquisition of Shares.
Nothing in section 56 of this Code
shall be deemed to prohibit any of
the following transactions,
namely,
(a) the payment of commission or
brokerage to any person in
consideration of his subscribing
or agreeing to subscribe or
procuring or agreeing to procure
subscriptions for any shares in
the company provided that the
payment of commission or brokerage
is authorised by the Regulations
and does not exceed ten per centum
of the price at which the shares
are issued or such lesser rate as
may be specified in the
Regulations;
(b) where the lending of money is
part of the ordinary business of
the company, the lending of money
in the ordinary course of business
notwithstanding that such money
may be used for the subscription
or purchase of shares in the
company or its holding company;
(c) the provision by a company in
accordance with any scheme for the
time being in force of money for
the purchase or subscription of
shares to be held for the benefit
of persons bona fide in the
employment of the company or any
associated company including any
director holding a salaried
employment in the company or any
associated company;
(d) the making by a company of
loans to persons, other than
directors, bona fide in the
employment of the company or any
associated company with a view to
enabling those persons to purchase
or subscribe for shares to be held
by themselves beneficially and not
as nominees for the company or any
other person;
(e) the payment by a company of a
lawful dividend on its shares
notwithstanding that the dividend
received by a shareholder is used
to discharge any liability on his
shares or to repay money borrowed
for the purpose of subscribing or
purchasing shares.
(f) in the case of a public
company some or all of whose
equity shares are dealt in on an
approved stock exchange or in
respect of which an application
has been made to an approved stock
exchange for permission to deal in
such shares, the payment of any
commissions, fees, costs and
expenses and the giving of any
indemnities and warranties in each
case to a person arranging or
otherwise involved in an
underwriting, placing or sale of
securities in the company or any
similar transaction thereto,
provided that (i) an application
for permission to deal in such
securities has been or is to be
made to an approved stock exchange
and (ii) any such financial
assistance is given in good faith
in the interests of the company.
[As inserted by the Companies Code
(Amendment) Act, 1994 (Act 474) s.
1].
Section 59—Acquisition by Company
of its Own Shares.
(1) Notwithstanding section 56 of
this Code, a company may, if
authorised by its Regulations and
subject to compliance with
sections 60 to 63 of this Code,
(a) create and issue preference
shares which are, or at the option
of the company are liable, to be
redeemed on such terms and in such
manner as may be provided in the
Regulations and may convert
existing shares, whether issued or
not, into such redeemable
preference shares;
(b) purchase its own shares;
(c) acquire its own shares by a
voluntary transfer to it or to
nominees for it:
Provided that no shares shall be
redeemed, purchased or acquired by
the company so long as there is an
unpaid liability thereon.
(2) Where authorised by its
Regulations a company may forfeit
any shares issued with an unpaid
liability for non-payment of any
sums due and payable thereon.
(3) On redemption, purchase,
acquisition or forfeiture shares
shall be available for re-issue by
the company unless the company by
alteration of its Regulations
cancels such shares; and in this
Code, such shares, until re-issued
or cancelled, shall be referred to
as treasury shares.
(4) Except as provided in section
67 of this Code, no redemption,
purchase, acquisition or
forfeiture by the company of its
shares nor the cancellation of
shares so redeemed, purchased,
acquired or forfeited shall reduce
the stated capital of the company.
(5) No voting rights shall be
exercised and no dividends shall
be payable on any treasury shares,
and, except where otherwise
stated, treasury shares shall not
be treated as issued shares within
the meaning of the provisions of
this Code.
Section 60—Redemption of
Redeemable Preference Shares.
(1) Notwithstanding any provision
in the Regulations, a company
shall not redeem any of its
redeemable preference shares
except,
(a) out of a credit balance on the
share deals account referred to in
section 63 of this Code or out of
transfers to that account in the
manner referred to in that section
from income surplus as defined in
section 70 of this Code; or
(b) out of the proceeds of a fresh
issue of shares made for the
purposes of the redemption not
more than twelve months before the
date of redemption.
(2) If any redeemable preference
shares have become redeemable in
accordance with the provisions of
the Regulations and the funds of
the company are sufficient to
entitle it, under subsection (1)
of this section, to redeem the
whole of the shares due for
redemption, the holder of any such
shares may serve notice on the
company requiring it to effect the
redemption in accordance with the
Regulations.
(3) If the company shall fail to
redeem such shares within
twenty-eight days of the service
of the notice, the shareholder who
has served the notice may apply to
the Court on behalf of himself and
all other shareholders whose
shares are due for redemption; and
the Court, if satisfied that the
conditions of this subsection are
fulfilled, may order the company
to redeem the shares and may
require the company and any
officer of the company who is in
default to bear all the costs of,
and incidental to, the
application.
(4) The provisions of section 324
of this Code shall apply to any
application to the Court under
subsection (3) of this section.
Section 61—Purchase by a Company
of its Own Shares.
Notwithstanding any provision in
the Regulations, a company shall
not purchase any of its own shares
except on compliance with the
following conditions, that is to
say,
(a) shares shall only be purchased
out of a credit balance on the
share deals account referred to in
section 63 of this Code or out of
transfers to that account in the
manner referred to in that section
from income surplus as defined in
section 70 of this Code;
(b) redeemable preference shares
shall not be purchased at a price
greater than the lowest price at
which they are then redeemable or
will be redeemable at the next
date thereafter at which they are
due or liable to be redeemed;
(c) no purchase shall be made in
breach of section 62 of this Code.
Section 62—Limit on Number of
Shares Acquired.
No transaction shall be entered
into by or on behalf of a company
whereby the total number of its
shares, or of its shares of any
one class, held by persons other
than the company or its nominees
becomes less than eighty-five per
centum of the total number of
shares, or of shares of that
class, which have been issued:
Provided that,
(a) redeemable preference shares
shall be disregarded for the
purposes of this section;
(b) where, after shares of any
class have been issued, the number
thereof has been reduced, this
section shall apply as if the
number originally issued,
including shares of that class
cancelled before the reduction
took effect, had been the number
as so reduced.
Section 63—Share deals Account.
(1) When a company first redeems
or purchases any of its shares,
otherwise than on a redemption of
redeemable preference shares out
of the proceeds of a fresh issue
of shares in accordance with
paragraph (b) of subsection (1) of
section 60 of this Code, it shall
open an account, to be known as
the share deals account and shall
credit thereto a sum not less than
the amount to be expended on such
redemption or purchase by
transferring such sum from income
surplus, as defined in section 70
of this Code.
(2) There shall be debited to the
share deals account all sums which
the company shall from time to
time expend on the redemption or
purchase of any of its shares,
otherwise than on a redemption of
redeemable preference shares out
of the proceeds of a fresh issue
of shares in accordance with the
said paragraph (b) of subsection
(1) of section 60 of this Code,
and to such account shall be
credited the net price or the
value of the consideration
received by the company on the
re-issue of any of its treasury
shares.
(3) If at any time the total
amount to be debited to the share
deals account under subsection (2)
of this section exceeds the amount
credited thereto in accordance
with subsections (1) and (2) of
this section, an amount equal to
such excess shall be transferred
to the credit of such account from
income surplus, as defined in
section 70 of this Code, and no
purchase or redemption, otherwise
than a redemption of redeemable
preference shares out of the
proceeds of a fresh issue of
shares in accordance with the said
paragraph (b) of subsection (1) of
section 60 of this Code, shall be
made by the company unless its
income surplus is sufficient to
enable such transfer to be made.
(4) No amount shall be debited or
credited to the share deals
account, otherwise than in
accordance with the foregoing
subsections of this section,
except on a transfer to stated
capital in accordance with section
66 of this Code or under an order
of the Court under section 77 or
231 of this Code.
(5) A true copy of the share deals
account, showing the class and
number of shares involved in each
transaction and the price paid or
received therefor, shall be kept
in a separate book at the
registered office of the company
and shall during business hours,
subject to such reasonable
restrictions as the company's
Regulations may impose but so that
not less than two hours in each
day, other than a Saturday, Sunday
or public holiday, be allowed for
inspection, be open to the
inspection of any member without
charge and of any other person on
payment of two shillings and
sixpence, or such less sum as the
company may prescribe, for each
inspection.
(6) Any member or other person
shall be entitled to be furnished,
within ten days after he has made
a request in that behalf to the
company, with a copy of the share
deals account or any part thereof
at a charge not exceeding one
shilling for every hundred words
or part thereof.
(7) If any inspection required
under subsection (5) of this
section is refused or if any copy
required to be sent under
subsection (6) of this section is
not sent within the proper time,
the company and every officer of
the company who is in default
shall be liable to a fine not
exceeding five pounds for every
day during which the default
continues, and the Court may by
order compel an immediate
inspection or furnishing of a
copy, as the case may be.
Section 64—Modification of
Sections 59 to 63 in Relation to
Authorised Mutual Funds.
In relation to any company which
is for the time being an
authorised mutual fund within the
meaning of section 319 of this
Code, any of the provisions of
sections 59 to 63 of this Code may
be waived or modified by order of
the Registrar in accordance with
the provisions of the said section
319.
Section 65—Acquisition of Shares
of holding Company.
(1) Notwithstanding section 56 of
this Code, a company which is a
subsidiary may acquire shares in
its holding company, where the
subsidiary company is concerned as
personal representative or trustee
unless the holding company or any
subsidiary thereof is beneficially
interested otherwise than by way
of security for the purposes of a
transaction entered into by it in
the ordinary course of a business
which includes the lending of
money.
(2) A subsidiary which is, at the
commencement of this Code, a
holder of shares of its holding
company or a subsidiary which
acquired shares in its holding
company before it became a
subsidiary of that holding company
may continue to hold such shares
but, subject to the last foregoing
subsection, shall have no right to
vote at meetings of the holding
company or any class of
shareholders thereof and shall not
acquire any future shares therein
except on a capitalisation issue
in accordance with subsection (1)
of section 74 of this Code.
Part G—Stated Capital and
Dividends
Section 66—Meaning of "Stated
Capital".
(1) The stated capital of a
company with shares shall consist
of the sum of the following items,
that is to say,
(a) the total proceeds of every
issue of shares for cash,
including any amounts paid on
calls made on shares issued with
an unpaid liability, without any
deductions for expenses or
commissions;
(b) the total value of the
consideration, as stated in the
agreement, received for every
issue of shares otherwise than for
cash;
(c) the total amount which the
company by special resolution
shall have resolved to transfer to
stated capital from surplus, as
defined in section 69 of this
Code, including the credit balance
on the share deals account
referred to in section 63 of this
Code:
Provided that,
(a) paragraph (a) or (b) of this
subsection shall not require the
proceeds or value of the
consideration received on the
re-issue of treasury shares to be
added to stated capital; and for
this purpose, when a company
having treasury shares makes an
issue of shares, such issue shall,
until the number of treasury
shares of that class is exhausted,
be deemed to be an issue of those
treasury shares and not a first
issue of further shares, unless
the company shall otherwise
determine;
(b) the amount of the stated
capital may be reduced to the
extent and in the manner provided
by section 67 of this Code.
(2) Within twenty-eight days after
the raising of any stated capital,
the company shall deliver to the
Registrar for registration
particulars in the prescribed form
showing the amount so raised and
the total stated capital,
distinguishing between the amounts
thereof attributable to each of
the items specified in subsection
(1) of this section.
(3) If there shall be any default
in delivering to the Registrar the
particulars required under the
immediately preceding subsection,
the company and every officer of
the company who is in default
shall be liable to a fine not
exceeding five pounds for every
day during which the default
continues.
Section 67—Reduction of Stated
Capital.
(1) Notwithstanding subsection (4)
of section 59 of this Code, the
stated capital of a company shall
be deemed to be reduced by the
amount by which a redemption of
redeemable preference shares is
made out of the proceeds of a
fresh issue of shares made for the
purposes of the redemption not
more than twelve months before the
date of redemption.
(2) An unlimited company may, if
authorised by its Regulations,
reduce its stated capital by
ordinary resolution.
(3) Subject as aforesaid and to
section 68 of this Code a company
may not reduce its stated capital
except in accordance with sections
75 to 79 of this Code.
Section 68—Modification of
Sections 66 and 67 in Relation to
Authorised Mutual Funds.
In relation to any company which
is for the time being an
authorised mutual fund within the
meaning of section 319 of this
Code, the two immediately
preceding sections of this Code
shall have effect subject to the
terms of any directions made by
order of the Registrar pursuant to
the said section 319.
Section 69—Meaning of "Surplus".
The surplus of a company with
shares shall be the amount by
which its assets, other than
unpaid calls and other sums
payable in respect of its shares
and not including treasury shares,
less its liabilities, as shown in
its accounts prepared and audited
in accordance with sections 123 to
136 of this Code, exceed its
stated capital.
Section 70—Meaning of "Income
Surplus".
The income surplus of a company
with shares shall be the surplus,
as defined in section 69 of this
Code, less the amounts
attributable to,
(a) any unrealised appreciation in
the value of any asset of the
company, other than such an
appreciation in the value of any
asset as would, under normal
accounting principles, be credited
to profit and loss account, unless
the amount of such appreciation
shall have been transferred to
stated capital; and
(b) any balance standing to the
credit of the share deals account
immediately before the
ascertainment of the income
surplus.
Section 71—Legality of Dividend
Payments.
(1) Except in a winding up, a
company shall not pay a dividend
to its shareholders or, except in
accordance with sections 75 to 79
of this Code, make any return or
distribution of any of its assets
to its shareholders unless,
(a) the company is able, after
such payment, return or
distribution, to pay its debt as
they fall due;
(b) the amount or value of such
payment, return or distribution
does not exceed its income surplus
immediately prior to the making of
such payment, return or
distribution.
(2) If any payment, return or
distribution shall be made in
contravention of this section,
(a) every director of the company
who is in default shall be jointly
and severally liable to restore to
the company the total amount by
which the payment, return or
distribution contravenes this
section, with interest on such
amount at the rate of five per
centum per annum;
(b) unless, within twelve months
after the date of the payment,
return or distribution, the total
amount with interest thereon shall
be restored to the company by the
directors in accordance with
paragraph (a) of this subsection,
every shareholder shall be liable
to restore to the company the
amount received by him in
contravention of this section;
(c) if the directors of the
company shall make restoration to
the company in accordance with
paragraph (a) of this subsection
they shall have a right to be
indemnified by any shareholder who
has received any amount knowing
that it contravenes this section
to the extent of the amount
received by him with interest
thereon at the rate of five per
centum per annum.
(3) Any shareholder, officer or
creditor of the company or the
Registrar may apply to the Court
for an injunction restraining a
company from paying a dividend or
from making a return or
distribution in contravention of
this section or for an order for
restoration in accordance with
subsection (2) of this section.
(4) Any application by a
shareholder or creditor shall be
made in a representative capacity
on behalf of himself and all other
shareholders or creditors, as the
case may be, of the company and
the provisions of section 324 of
this Code shall apply.
(5) In relation to public
companies, paragraph (b) of
subsection (2) of this section
shall be modified as stated in
section 292 of this Code.
Section 72—Prohibition of Payment
of Dividends by Companies Limited
by Guarantee.
(1) A company limited by guarantee
shall not at any time pay any
dividend or make any distribution
or return of its assets to its
members.
(2) If any payment, distribution
or return shall be made in
contravention of this section any
member to whom it is made shall
restore the same to the company
with interest thereon at the rate
of five per centum per annum and
every officer of the company who
is in default shall be liable to a
fine not exceeding one hundred
pounds.
Section 73—Declaration of
Dividends.
(1) Subject to the foregoing
sections a company may by ordinary
resolution declare dividends in
respect of any year or other
specified period, but no dividend
shall exceed the amount
recommended by the directors.
(2) In relation to public
companies this section shall be
supplemented by section 293 of
this Code.
Section 74—Capitalisation Issues
and Non-cash Dividends.
(1) When a company has resolved to
transfer any sum from surplus to
stated capital pursuant to
paragraph (c) of subsection (1) of
section 66 of this Code, the
company upon the recommendation of
the directors may, by the same or
any subsequent special resolution,
resolve that unissued shares in
the company be issued credited as
fully paid to the members who
would have been entitled to
receive the sum had it been
lawfully distributed by way of
dividend and in the same
proportions and so that the sum so
transferred to stated capital
shall be deemed to be paid,
otherwise than in cash, on such
shares.
(2) Such an issue shall, in this
Code, be referred to as a
capitalisation issue.
(3) A company, upon the
recommendation of the directors,
may resolve that any sum standing
to the credit of the company's
income surplus and which could
have lawfully been distributed by
way of dividend shall be applied,
on behalf of the members who would
have been entitled to receive the
same if it had been distributed by
way of dividend, in paying up
amounts for the time being unpaid
on any shares held by them, and
such sum shall thereupon be deemed
to have been paid upon a call made
on such shares and shall be
transferred to stated capital
pursuant to paragraph (a) of
subsection (1) of section 66 of
this Code.
(4) Any resolution of a company
lawfully declaring a dividend may,
upon the recommendation of the
directors, direct payment wholly
or partly by distribution of
securities for money, or of fully
paid, but not partly paid, shares
or debentures of any other body
corporate, or of fully paid
debentures of the company of a
nominal amount equal to the amount
so directed to be paid.
(5) The directors shall give
effect to any such resolution and
may make such provision as they
shall think fit for the case of
any shares, debentures, or
securities for money becoming
distributable in fractions and may
issue fractional certificates or,
in the case of a distribution in
accordance with subsection (4) of
this section, but not in the case
of a capitalisation issue in
accordance with subsection (1) of
this section, may sell the shares,
debentures or securities for money
represented by such fractions and
distribute the net proceeds of the
sale among the members otherwise
entitled to such fractions in due
proportions.
(6) Any allotment of shares or
debentures or any payment-up of
shares pursuant to such resolution
may be made without obtaining the
individual consents thereto of the
members concerned and any
transfers of shares or debentures
in any other body corporate may be
signed on behalf of the members to
whom they are transferred by any
person nominated in writing by the
directors and such signature shall
be effective and binding on all
such members.
Part H—Resolutions reducing
Capital, Shares or Liability
Section 75—Resolutions Requiring
Confirmation of Court.
(1) Subject to confirmation by the
Court, a company limited by shares
may, by special resolution,
(a) reduce its stated capital in
any way;
(b) extinguish or reduce the
unpaid liability on any of its
shares;
(c) resolve to pay or return to
its shareholders any of its assets
which are in excess of the wants
of the company;
(d) alter its Regulations by
cancelling any of its shares.
(2) A resolution under this
section shall, in this Code, be
referred to as a resolution
requiring confirmation.
(3) If the resolution requiring
confirmation shall vary the rights
attached to any class of shares,
the resolution shall not be
effective unless the provisions of
section 47 of this Code have been
complied with.
(4) This section shall not be
deemed to require confirmation by
the Court of any transaction
validly effected under any of the
foregoing sections of this Code.
Section 76—Application for
Confirming Order.
(1) Where a company has passed a
resolution requiring confirmation
it may apply to the Court for an
order confirming the same.
(2) Where the resolution requiring
confirmation involves either
diminution of liability in respect
of shares with an unpaid liability
or a payment or return to any
shareholders, and in any other
case if the Court so directs, the
following provisions shall have
effect unless, having regard to
the special circumstances of the
case, the Court shall otherwise
direct, that is to say,
(a) every creditor of the company
who at the date fixed by the Court
is entitled to any debt or claim
which, if that date were the
commencement of the winding up of
the company, would be admissible
in proof against the company,
shall be entitled to oppose the
confirmation;
(b) the Court shall settle a list
of creditors so entitled to
oppose, and for that purpose shall
ascertain, as far as possible
without requiring an application
from any creditor, the names of
those creditors and the nature and
amount of their debts or claims,
and may publish notices fixing a
day or days within which creditors
not entered on the list are to
claim to be so entered or are to
be excluded from the right of
opposing the confirmation;
(c) where a creditor entered on
the list whose debt or claim is
not discharged or has not
determined does not consent to the
confirmation, the Court may, if it
thinks fit, dispense with the
consent of that creditor, on the
company securing payment of his
debt or claim by appropriating, as
the Court may direct, the
following amount, that is to say,
(i)
if the company admits the full
amount of the debt or claim, or ,
though not admitting it, is
willing to provide for it, then
the full amount of the debt or
claim;
(ii) if the company does not admit
and is not willing to provide for
the full amount of the debt or
claim, or if the amount is
contingent or not ascertained,
then an amount fixed by the Court
after the like inquiry and
adjudication as if the company
were being wound up under the
provisions of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180).
(3) The Court may refer the
application to the Registrar who
shall appoint one or more
competent reporters to investigate
the fairness of the resolution for
reduction and to report thereon to
the Court.
(4) The remuneration of the
reporters shall be fixed by the
Registrar and it and the expenses
of the investigation shall be
borne by the company.
Section 77—Order Confirming the
Resolution.
The Court, if satisfied,
(a) with respect to every creditor
of the company who under the last
foregoing section is entitled to
oppose that either his consent has
been obtained or his debt or claim
has been discharged `or secured;
and
(b) that the provisions of
sections 75 and 76 of this Code
have been duly complied with; and
(c) that the resolution requiring
confirmation is fair and
equitable,
may make an order confirming the
resolution on such terms and
conditions as it thinks fit.
Section 78—Order and Minute to be
Registered.
(1) The Registrar, upon production
to him of an order of the Court
confirming the resolution
requiring confirmation and the
delivery to him of a copy of the
order and of a minute, approved by
the Court, showing,
(a) the new stated capital of the
company,
(b) the number of authorised and
issued shares and the classes, if
any, into which they are divided,
(c) the amount deemed to be paid
and the unpaid liability if any,
on such issued shares,
distinguishing the amount paid in
cash and the amount paid otherwise
than in cash,
shall register the order and
minute and cause the particulars
stated in the minute to be
published in the Gazette.
(2) On registration of the order
and minute, and not before, the
resolution for reduction shall
take effect.
(3) The Registrar shall certify
under his hand the registration of
the order and minute and such
certificate shall be conclusive
evidence that all the requirements
of this Code with respect to the
resolution requiring confirmation
have been complied with and that
the stated capital and shares of
the company are such as is stated
in the minute.
Section 79—Protection of
Creditors.
(1) If any creditor, entitled in
respect of any debt or claim to
oppose the confirmation, is by
reason of his ignorance of the
proceedings for confirmation, or
of their nature and effect with
respect to his claim, not entered
on the list of creditors and,
after the confirmation, the
company fails to pay the amount of
his debt or claim, then,
(a) every person who was a member
of the company at the date of the
registration of the order and
minute, shall be liable to
contribute for the payment of that
debt or claim, an amount not
exceeding the amount which he
would have been liable to
contribute on the winding up of
the company had that commenced
immediately before the date of
such registration; and
(b) if the company is wound up,
the Court, on the application of
any such creditor and proof of his
ignorance as aforesaid, may settle
a list of persons so liable to
contribute and make and enforce
calls and orders on such persons
as if they were members liable to
contribute in accordance with
section 37 of this Code.
(2) Nothing in subsection (1) of
this section shall affect the
rights of the members among
themselves and, except as provided
in subsection (1) of this section,
a member or past member after the
date of the registration of the
order and minute shall not be
liable in respect of any share to
any call or contribution exceeding
in amount the unpaid liability on
such share as set out in the
minute.
(3) If any officer of the company,
(a) wilfully conceals the name of
any creditor entitled to oppose
the confirmation; or
(b) wilfully misrepresents the
nature or amount of the debt or
claim of any creditor; or
(c) aids, abets, or is privy to
any such concealment or
misrepresentation as aforesaid, he
shall be personally liable to pay
to the creditor the amount of his
debt or claim to the extent to
which it is not paid by the
company and shall be guilty of an
offence and liable on conviction
to imprisonment for a term not
exceeding two years, or to a fine
not exceeding two hundred pounds,
or to both such imprisonment and
fine.
Part I—Debentures and Debenture
Stock
Section 80—Issue of Debentures or
Debenture stock.
(1) A company may raise loan
capital by the issue of a
debenture or of a series of
debentures or of debenture stock.
(2) A debenture is a written
acknowledgment of indebtedness by
the company setting out the terms
and conditions of the loan.
(3) All debentures of the same
series shall rank pari passu in
all respects notwithstanding that
they may be issued on different
dates.
(4) Instead of issuing debentures
acknowledging separate loans to
the company, the loans may be
funded by the creation of
debenture stock of a prescribed
amount parts of which, represented
by debenture stock certificates,
may be issued to separate holders.
(5) Debenture stock shall be
created by deed under the common
seal of the company either in the
form of a deed poll or an
indenture in favour of trustees
for debenture stockholders.
(6) In this Code, unless the
context otherwise requires, the
expression "debenture" includes
"debenture stock" and the
expression "debenture holder"
includes "debenture stockholder".
(7) A debenture holder shall not
be a member of the company and,
notwithstanding any provision in
the debenture or the company's
Regulations, shall not be entitled
to attend and vote at any general
meeting of the company.
Section 81—Specific Performance of
Contracts to Subscribe for
Debentures.
A
contract with a company to take up
and pay for any debentures of the
company may be enforced by an
order for specific performance.
Section 82—Documents of Title to
Debentures.
(1) Every company shall, within
two months after the allotment of
any of its debentures or after the
registration of the transfer of
any debentures, deliver to the
registered holder thereof the
debentures or a certificate of the
debenture stock under the common
seal of the company.
(2) If a debenture or debenture
stock certificate is defaced, lost
or destroyed, the company, at the
request of the registered holder
of the debenture, shall issue a
certified copy of the debenture or
renew the debenture stock
certificate on payment of a fee
not exceeding two shillings and
sixpence and on such terms as to
evidence and indemnity and the
payment of the company's
out-of-pocket expenses of
investigating evidence as the
company may reasonably require.
(3) If default is made in
complying with this section the
company and any officer of the
company who is in default shall be
liable to a fine not exceeding one
hundred pounds and on application
by any person entitled to have the
debentures or debenture stock
certificate delivered to him the
Court may order the company to
deliver the debenture stock
certificate and may require the
company and any such officer to
bear all the costs of, and
incidental to, the application.
Section 83—Effect of Statements in
Debentures.
(1) Statements made in debentures
or debenture stock certificates
shall be prima facie evidence of
the title to the debentures of the
person named therein as the
registered holder and of the
amounts secured thereby.
(2) If any person shall change his
position to his detriment in
reliance in good faith on the
continued accuracy of any
statements made in the debenture
or debenture stock certificate,
the company shall be estopped in
favour of such person from denying
the continued accuracy of such
statements and shall compensate
such person for any loss suffered
by him in reliance thereon, and
which he would not have suffered
had the statement been or
continued to be accurate:
Provided that nothing in this
subsection contained shall
derogate from any right the
company may have to be indemnified
by any other person.
Section 84—Perpetual Debentures.
A
condition contained in any
debenture or in any trust deed for
securing any debentures, whether
issued or executed before or after
the commencement of this Code,
shall not be invalid by reason of
the fact that the debentures are
thereby made irredeemable or
redeemable only on the happening
of a contingency, however remote,
or on the expiration of a period
however long.
Section 85—Convertible Debentures.
Debentures may be issued upon the
terms that in lieu of redemption
or repayment they may, at the
option of the holder or the
company, be converted into shares
in the company upon such terms as
are stated in the debentures.
Section 86—Secured or Naked
Debentures.
(1) Debentures may either be
secured by a charge over the
company's property or may be
unsecured by any charge.
(2) Debentures may be secured by a
fixed charge on certain of the
company's property or a floating
charge over the whole or a
specified part of the company's
undertaking and assets, or by both
a fixed charge on certain property
and a floating charge.
(3) A charge securing debentures
shall become enforceable on the
occurrence of the events specified
in the debentures or the deed
securing the same.
(4) Where any legal proceedings
are brought by a debentureholder
to enforce the security of a
series of debentures of which he
holds part, the debentureholder
shall sue in a representative
capacity on behalf of himself and
all other debentureholders of that
series, and section 324 of this
Code shall apply.
(5) Where debentures are secured
by a charge the provisions of Part
L of this Chapter relating to
registration of particulars of
charges, shall apply.
Section 87—Meaning of "Floating
Charge".
(1) A floating charge is an
equitable charge over the whole or
a specified part of the company's
undertaking and assets both
present and future, so however
that the charge shall not preclude
the company from dealing with such
assets until,
(a) the security becomes
enforceable and the holder
thereof, pursuant to a power in
that behalf in the debenture or
the deed securing the same,
appoints a receiver or manager or
enters into possession of such
assets; or
(b) the Court appoints a receiver
or manager of such assets on the
application of the holder; or
(c) the company goes into
liquidation.
(2) On the happening of any of
such events the charge shall be
deemed to crystallize and to
become a fixed equitable charge on
such of the company's assets as
are subject to the charge.
(3) If a receiver or manager is
withdrawn with the consent of the
chargee, or the chargee withdraws
from possession, before the charge
has been fully discharged, the
charge shall thereupon be deemed
to cease to be a fixed charge and
again become a floating charge.
(4) A fixed charge on any property
shall have priority over a
floating charge affecting that
property unless the terms on which
the floating charge was granted
prohibited the company from
granting any later charge having
priority over the floating charge
and the person in whose favour
such later charge was granted had
actual notice of that prohibition
at the time when the charge was
granted to him.
Section 88—Powers of the Court.
(1) Whenever a fixed or floating
charge has become enforceable the
Court shall have power to appoint
a receiver and, in the case of a
floating charge, a receiver and
manager of the assets subject to
the charge.
(2) In the case of a floating
charge, the Court may,
notwithstanding that the charge
has not become enforceable,
appoint a receiver or manager if
satisfied that the security of the
debenture holder is in jeopardy.
(3) The security of the debenture
holder shall be deemed to be in
jeopardy if the Court is satisfied
that events have occurred or are
about to occur which render it
unreasonable in the interests of
the debentureholder that the
company should retain power to
dispose of its assets.
(4) A receiver or manager shall
not be appointed as a means of
enforcing debentures not secured
by any charge.
(5) In this Code unless the
context otherwise requires the
expression "receiver" includes
"manager".
Section 89—Payment of Preferential
Creditors out of Assets Subject to
a Floating Charge.
(1) Where a receiver is appointed
on behalf of the holders of any
debentures of the company secured
by a floating charge or possession
is taken by or on behalf of those
debentureholders of any property
subject to the charge, the debts
which in every winding up are,
under the provisions of section 41
of the Bodies Corporate (Official
Liquidations) Act, 1963 (Act 180),
to be paid in priority to all
other debts, shall be paid out of
any assets coming to the hands of
the receiver or other person
taking possession as aforesaid in
priority to any claim for
principal or interest in respect
of the debentures.
(2) If the receiver or such other
person taking possession as
aforesaid shall make any repayment
in respect of the debenture before
discharging all debts having
priority in accordance with
subsection (1) of this section, he
shall be personally liable to
discharge such debts to the extent
of the repayment made by him.
(3) The periods of time mentioned
in the provisions referred to in
section 41 of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), shall be reckoned from
the date of the appointment of the
receiver or possession being
taken, as the case may be.
(4) Any payments made under this
section shall be recouped as far
as may be out of the assets of the
company available for payment of
general creditors.
Section 90—Limitation of Efficacy
of Floating Charges in
Liquidations.
If the winding up of the company
commences within twelve months of
the creation of a floating charge
on the undertaking or property of
the company such charge shall,
unless it is proved that the
company was solvent immediately
after the creation of the charge,
be invalid except to the amount of
any cash paid to the company at
the time of, or subsequently to,
the creation of the charge and in
consideration for the charge,
together with interest on that
amount at the rate of five per
centum per annum.
Section 91—Application of Sections
236 to 245.
The provisions of Part T of this
Chapter shall apply to, and on the
appointment of any receiver by or
on behalf of the debentureholders.
Section 92—Trustees for
Debentureholders.
(1) Whether or not debentures are
secured by a charge over the
company's property they may be
secured by a trust deed appointing
trustees for the debentureholders.
(2) It shall be the duty of such
trustees to safeguard the rights
of the debentureholders and, on
behalf of and for the benefit of
the debentureholders, to exercise
the rights, powers, and discretion
conferred upon them by the trust
deed.
(3) Charges securing the
debentures may be created in
favour of the debentureholders by
vesting them in the trustees.
(4) Any provision contained in a
trust deed or in any contract with
the holders of debentures secured
by a trust deed shall be void in
so far as it would have the effect
of exempting a trustee thereof
from, or indemnifying him against,
liability for any breach of trust
or failure to show the degree of
care and diligence required of him
as trustee having regard to the
powers, authorities or discretion
conferred on him by the trust
deed:
Provided that nothing herein
contained shall be deemed to
invalidate any release otherwise
validly given in respect of
anything done or omitted to be
done by a trustee on the agreement
to such release, of a majority of
not less than three-fourths in
value of the debentureholders
present in person, or where
proxies are permitted, by proxy at
a meeting summoned for the
purpose.
(5) Notwithstanding any provisions
in the debentures or trust deed
the Court may, on the application
of any debentureholder or of the
Registrar, remove any trustee and
appoint another in his place if
satisfied that such trustee has
interests which conflict or may
conflict with those of the
debentureholders or that for any
reason it is undesirable that such
trustee should continue to act:
Provided that where any such
application is made by a
debentureholder the Court, if it
thinks fit, may order the
applicant to give security for the
payment of the costs of the
trustee and may direct that the
application shall be heard in
chambers.
(6) When a trustee dies or
retires, the Registrar, at any
time prior to the appointment of
another trustee in his place in
accordance with any provision to
that effect in the trust deed, may
appoint another trustee in his
place.
Section 93—Meetings of
Debentureholders.
(1) The terms of any debentures or
trust deed may provide for the
convening of general meetings of
the debentureholders and for the
passing, at such meetings, of
resolutions binding on all the
holders of the debentures of the
same class.
(2) Whether or not the debentures
or trust deed contain such
provisions as are referred to in
subsection (1) of this section,
the Registrar may at any time
direct a meeting of the
debentureholders of any class to
be held and conducted in such
manner as the Registrar thinks
fit, to consider any matters which
he or the trustees, if any, shall
bring before the meeting, and may
give such ancillary or
consequential direction as he
shall think fit.
Section 94—Re-issue of Redeemed
Debentures.
(1) Where, either before or after
the commencement of this Code, a
company has redeemed any debenture
previously issued, the company
may, subject to subsection (5) of
this section, re-issue the same.
(2) Such re-issue may be made
either by re-issuing the same
debenture or by issuing another in
its place.
(3) On re-issue the person
entitled to the debenture shall
have the same priority as if the
debenture had never been redeemed.
(4) The re-issue of a redeemed
debenture shall be treated as the
issue of a new debenture for the
purposes of stamp duty but not for
any other purpose including any
provision limiting the amount or
number of debentures to be issued:
Provided that any person lending
money on the security of any
re-issued debenture which appears
to be duly stamped may give the
debenture in evidence in any
proceedings without payment of the
stamp duty or any penalty unless
he had notice, or but for his
negligence, might have discovered
that the debenture was not duly
stamped, but in any such case the
company shall be liable to pay the
proper stamp duty and penalty.
(5) Nothing herein contained shall
entitle a company to re-issue a
redeemed debenture if it has
manifested its intention that the
debenture shall be cancelled or if
re-issue is forbidden by any
provision in the company's
Regulations or in the debenture,
trust deed or other contract
entered into by the company.
(6) Where a company has deposited
any of its debentures to secure
advances from time to time on
current account or otherwise, the
debentures shall not be deemed to
have been redeemed by reason of
the account of the company having
ceased to be in debit while the
debentures remained so deposited.
Part J—Transfer of Shares and
Debentures
Section 95—Restrictions on
Transferability of Shares.
(1) Except as expressly provided
in the company's Regulations
shares shall be transferable
without restriction by a written
transfer in common form.
(2) Subject to section 294 of this
Code, the company's Regulations
may impose restrictions of any
nature whatsoever on the
transferability of shares,
including power for the directors
to refuse to register any transfer
and provisions for compulsory
acquisition or rights of first
refusal in favour of other members
or officers of the company:
Provided that no restriction shall
be imposed on the transferability
of any shares after the same have
been issued unless the holders
thereof shall consent in writing.
(3) Notwithstanding subsection (1)
of this section a company may
refuse to register a transfer of
shares to any person who is an
infant or to any one found by a
competent court in Ghana to be or
a person of unsound mind.
Section 96—Register of Debentures.
(1) A company which issues or has
issued debentures shall maintain a
register of the holders thereof.
(2) Subject to the provisions of
Part K of this chapter, the
register of debentureholders shall
be kept and maintained at the same
address as that at which the
register of members is kept and to
such register of debentureholders
all the provisions of sections 32
to 36 of this Code shall, mutatis
mutandis, apply, including
subsection (5) of section 32
regarding the giving of notice to
the Registrar of the place where
the register is kept.
Section 97—Restrictions on
Transferability of Debentures.
(1) Except as expressly provided
in the terms of any debentures,
debentures shall be transferable
without restriction by a written
transfer in common form and so
that the transferee shall be
entitled to the debenture and to
the moneys secured thereby without
regard to any equities, set-off,
or cross claim between the company
and the original or any
intermediate holder.
(2) Subject to section 294 of this
Code, the terms of any debenture
may impose restrictions of any
nature whatsoever on the
transferability of debentures
including power for the company to
refuse to register any transfer
and provisions for compulsory
acquisition or rights of first
refusal in favour of other
debentureholders, or members or
officers of the company:
Provided that if any restriction
is imposed on the right to
transfer any debenture, notice of
the restriction shall be endorsed
on the face of the debenture or
debenture stock certificate and,
in the absence of such
endorsement, the restriction shall
be ineffective as regards any
transferee for value whether or
not he has notice of the
restriction.
Section 98—Registration of
Transfers.
(1) Subject to sections 99 and 100
of this Code, no notice of any
trust, express, implied or
constructive or of any equitable,
contingent, future, or partial
interest in any share or debenture
or any fractional part of a share
or debenture shall be entered in
the register of members or
debentureholders or receivable by
the company, and the company shall
not be bound by, or be compelled
in any way to recognise, any other
rights in respect of a share or
debenture except an absolute right
to the entirety thereof in the
registered holder; and accordingly
until the name of the transferee
is entered in the register in
respect thereof the transferor
shall, so far as concerns the
company, be deemed to remain the
holder thereof.
(2) Notwithstanding anything
contained in the Regulations of a
company or in any contract, it
shall not be lawful for the
company to register a transfer of
shares or debentures unless a
proper instrument of transfer duly
stamped, if chargeable to stamp
duty, has been delivered to the
company:
Provided that nothing herein
contained shall prejudice any
power of the company to register
any person to whom the right to
any shares or debentures has been
transmitted by operation of law.
(3) Unless otherwise provided in
the company's Regulations or the
terms of the debenture, the
company may refuse to register any
transfer unless it is accompanied
by the appropriate share
certificate, debenture, or
debenture stock certificate, or
the company is bound to issue a
renewal or copy thereof in
accordance with subsection (2) of
section 53 or 82 of this Code.
(4) Transfers may be lodged for
registration either by the
transferor or transferee.
(5) If a company refuses to
register a transfer the company
shall, within two months after the
date on which the transfer was
lodged with the company, send to
the transferee and transferor
notice of the refusal.
(6) If default is made in
complying with subsection (2) or
(5) of this section, the company
and every officer of the company
who is in default shall be liable
to a fine not exceeding one
hundred pounds.
Section 99—Transmission of Shares
or Debentures by Operation of Law.
(1) In the case of the death of a
shareholder or debentureholder the
survivor or survivors where the
deceased was a joint holder, and
the legal personal representatives
of the deceased where he was a
sole holder or last survivor of
joint holders, shall be the only
persons recognised by the company
as shareholders or
debentureholders.
(2) A person upon whom the
ownership of a share or debenture
devolves by reason of his being
the legal personal representative,
receiver, or trustee in bankruptcy
of the holder, or by operation of
law may, upon such evidence being
produced as the company may
properly require, be registered
himself as the holder of the share
or debenture or transfer the same
to some other person and such
transfer shall be as valid as if
he had been registered as a holder
at the time of execution of the
transfer:
Provided that the company shall
have the same right, if any, to
decline registration of a transfer
by such person as it would have
had in the case of a transfer by
the registered holder but shall
have no right to refuse
registration of the person
himself.
(3) A person upon whom the
ownership of a share or debenture
devolves by reason of his being
the legal personal representative,
receiver, or trustee in bankruptcy
of the holder, or by operation of
law shall, prior to registration
of himself or a transferee, be
entitled to the same dividends,
interest and other advantages as
if he were the registered holder
and, in the case of a share, to
the same rights and remedies as if
he were a member of the company,
except that he shall not, before
being registered as a member in
respect of the share, be entitled
to attend and vote at any meeting
of the company:
Provided that the company may at
any time give notice requiring any
such person to elect either to be
registered himself or to transfer
the share or debenture and if the
notice is not complied with within
ninety days, the company may
thereafter suspend payment of all
dividends, interest or other
moneys payable in respect of the
share or debenture until the
requirements of the notice have
been complied with.
Section 100—Protection of
Beneficiaries.
(1) Any person claiming to be
interested in any shares or
debentures or the dividends or
interest thereon may protect his
interest by serving on the company
concerned copies of a notice and
affidavit in accordance with the
provisions of Order 46 rules 4 to
12 of the Rules of the High Court.
(2) Notwithstanding the provisions
of subsection (1) of section 98 of
this Code, the company shall enter
on the register of members or
debentureholders, as the case may
be, the fact that such notice has
been served and shall not register
any transfer or make any payment
or return in respect of the shares
or debentures contrary to the
terms of the notice until the
expiration of due notice to the
claimant in accordance with the
provisions of that Order.
(3) In the event of any default by
the company in complying with this
section the company shall
compensate any person injured
thereby.
Section 101—Certification of
Transfers.
(1) When the holder of any shares
or of debenture stock wishes to
transfer to any person part only
of the shares or stock represented
by one or more certificates, the
instrument of transfer together
with the relative certificates may
be delivered to the company or to
the registration officer of the
company with a request to
certificate the instrument of
transfer.
(2) If a company or its
registration officer endorses on
an instrument of transfer the
words "certificate lodged", or
words to the like effect, this
shall be taken as a representation
to any one acting on the faith of
the certification that there has
been produced to, and retained by,
the company or the registration
officer such certificates as show
a prima facie title to the shares
or stock in the transferor named
in the instrument of transfer but
not as a representation that the
certificates are genuine or that
the transferor has any title to
the shares or stock.
(3) Where any person acts on the
faith of a false certification
made by the company, the company
shall be liable to compensate such
person for any loss suffered as a
result of so acting.
(4) Where any person acts on the
faith of a false certification
made by the registration officer,
the company and the registration
officer shall be jointly and
severally liable to compensate
such person for any loss suffered
as a result of so acting but the
company shall be entitled to be
indemnified by the registration
officer.
(5) The certification shall be
deemed to be made by the company
if,
(a) it bears the signature or
initials, whether handwritten or
not, of any of its officers for
whose act of signing it the
company is liable under the
provisions of sections 139 to 143
of this Code; or
(b) it purports to bear the
signature or initials, whether
handwritten or not, of any officer
of the company and is issued by
any officer of the company for
whose act of issuing it the
company is liable under the
provisions of sections 139 to 143
of this Code.
(6) The certification shall be
deemed to be made by the
registration officer if,
(a) it bears the signature or
initials, whether handwritten or
not, of the registration officer
or of any officer, agent or
servant of his having his
authority to certificate transfers
of the company's shares or
debenture stock; or
(b) it purports to bear the
signature or initials, whether
handwritten or not, of the
registration officer or any
officer, agent or servant of his
and when issued by the
registration officer or any
officer, agent or servant of his,
him having his authority to issue
certifications of transfers of the
company's shares or debenture
stocks.
(7) For the purposes of
subsections (5) and (6) of this
section, the certification shall
be deemed to be issued by any
person if the instrument of
transfer bearing the certification
is delivered or sent by him to the
transferor, transferee or any
other person named in the request
for certification or is despatched
to any such person with a covering
letter bearing his signature or
initials, whether handwritten or
not.
Section 102—Company's Lien on
Shares.
(1) A company may, by its
Regulations, provide that it shall
have a lien on any of its issued
shares on which there is any
unpaid liability for all moneys,
whether presently payable or not,
called or payable at a fixed time
in respect of those shares, and
such lien shall be an effective
charge on such shares and any
dividends payable thereon
enforceable in manner provided by
the Regulations.
(2) Notwithstanding any provision
in the Regulations the company's
lien shall not extend to shares on
which there is no unpaid liability
or to any sums due from the
shareholder except in respect of
the unpaid liability on the
shares.
Part K—Branch Registers
Section 103—Power for Company to
Keep Branch Register.
(1) A company having shares may,
if so authorised by its
Regulations, cause to be kept in
any country outside Ghana branch
registers of shareholders or
debentureholders residing in that
country or in any other country
outside Ghana, in this Code
referred to as a branch register.
(2) The company shall give to the
Registrar notice of the situation
of the office where any branch
register is kept, and of any
change in its situation, and if it
is discontinued, of its
discontinuance, and any such
notice shall be given within
twenty-eight days of the opening
of the office or of the change or
discontinuance, as the case may
be.
(3) If default is made in
complying with subsection (2) of
this section, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five pounds for
every day during which the default
continues.
Section 104—Regulations as to
Branch Registers.
(1) A branch register shall be
deemed to be a part of the
company's register of members or
debentureholders, as the case may
be, in this section referred to as
the principal register.
(2) It shall be kept in, and shall
be opened for inspection in, the
same manner in which the principal
register is, by sections 32 to 36
and 96 to 98 of this Code,
required to be kept, except that
the advertisement before closing
the register shall be inserted in
some newspaper circulating in the
district where the branch register
is kept.
(3) The company shall,
(a) transmit to its registered
office a copy of every entry in
its branch register as soon as may
be after the entry is made; and
(b) cause to be kept at the place
where the company's principal
register is kept a duplicate of
its branch register duly entered
up from time to time and every
such duplicate shall, for the
purposes of this Code, be deemed
to be a part of the principal
register.
(4) Subject to the provisions of
this section with respect to the
duplicate register the shares or
debentures registered in a branch
register shall be distinguished
from those registered in the
principal register, and no
transaction with respect to any
shares or debentures registered in
a branch register shall, during
the continuance of that
registration, be registered in any
other register.
(5) A company may discontinue a
branch register, and thereupon all
entries in that register shall be
transferred to the principal
register.
(6) Subject to the provisions of
this Code, a company may, by its
Regulations, make such provisions
as it may think fit respecting the
keeping of branch registers.
(7) If default is made in
complying with subsection (3) of
this section, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five pounds for
each day during which the default
continues; and where the principal
register is kept at the office of
some person other than the
company, and by reason of any
default of his the company fails
to comply with paragraph (b) of
subsection (3) of this section, he
shall be liable to the same
penalty as if he was an officer of
the company who was in default.
Section 105—Stamp Duties in Case
of Securities Registered in Branch
Registers.
An instrument of transfer of a
share or debenture registered in a
branch register, shall be deemed
to be a transfer of property
situate out of Ghana, and, unless
executed in any part of Ghana,
shall be exempt from any stamp
duty chargeable in Ghana.
Section 106—Provisions as to
Branch Registers kept in Ghana.
(1) If, by virtue of the law in
force in any country, companies
incorporated under that law have
power to keep in Ghana branch
registers of their shareholders or
debentureholders, the Minister
may, by legislative instrument,
direct that sections 33 and 35 of
this Code shall, subject to any
modifications and adaptations
specified in the instrument, apply
to and in relation to any such
branch registers kept in Ghana as
they apply to and in relation to
registers of companies within the
meaning of this Code.
(2) The Minister may, by
legislative instrument, cancel or
modify any instrument made under
subsection (1) of this section.
Part L—Registration of Particulars
of Charges
Section 107—Registration of
Particulars of Charges Created by
Companies.
(1) Every charge, other than those
specified in subsection (3) of
this section, created by a company
after the commencement of this
Code shall be void so far as any
security on the company's
property, which expression
includes its undertaking and the
unpaid liability on its shares, is
thereby conferred, unless the
particulars hereinafter
prescribed, together with the
original or a certified copy of
the instrument, if any, by which
the charge is created or
evidenced, are delivered in the
prescribed form to the Registrar
for registration within
twenty-eight days after the date
of its creation.
(2) This section shall not
prejudice any contract or
obligation for repayment of the
money thereby secured and when a
charge becomes void under this
section the money secured thereby
shall immediately become payable
notwithstanding any provision to
the contrary in any contract.
(3) This section shall not apply
to any pledge of, or possessory
lien on, goods, or to any charge,
by way of pledge, deposit, letter
of hypothecation or trust receipt,
of bills of lading, dock warrants
or other documents of title to
goods, or of bills of exchange,
promissory notes or other
negotiable securities for money.
(4) Subject to subsections (5) and
(6) of this section the
particulars requiring delivery for
registration under this section
shall be,
(a) the date of creation of the
charge;
(b) the nature of the charge;
(c) the amount secured by the
charge, or the maximum sum deemed
to be secured thereby in
accordance with the provisions of
section 108 of this Code;
(d) short particulars of the
property charged;
(e) the persons entitled to the
charge; and
(f) in the case of a floating
charge, the nature of any
restriction on the power of the
company to grant further charges
ranking in priority to, or pari
passu with, the charge thereby
created.
(5) Where a series of debentures
containing, or giving by reference
to any other instrument, any
charge to the benefit of which the
debenture holders are entitled
pari passu, is created by the
company, it shall, for the
purposes of this section, be
sufficient if they are delivered
to the Registrar within
twenty-eight days after the
execution of the document
containing the charge or, if there
is no such document, after the
execution of any debentures of the
series, the following particulars,
namely,
(a) the dates of the resolutions
authorising the issue of the
series and the date of the
covering deed, if any, by which
the security is created or
defined;
(b) the total amount secured by
the whole series;
(c) the names of the trustees, if
any; and
(d) the particulars specified in
paragraphs (b), (d), and (f) of
subsection (4) of this section,
together with the original or a
certified copy of the deed
creating the charge or, if there
is no such deed, of the debentures
of the series.
(6) For the purposes of
subsections (1) and (5) of this
section a certified copy shall be
a copy which has endorsed thereon
a certificate to the effect that
it is a true and complete copy of
the original, under the seal of
the company or under the hand of
some person interested therein
otherwise than on behalf of the
company.
(7) Where the original is in any
other language the copy shall also
contain a translation acceptable
to the Registrar similarly
certified to the effect that it is
an accurate translation of the
original.
(8) Nothing in this section
contained shall affect the
provisions of any other enactment
relating to the registration of
charges.
Section 108—Charges to Secure
Fluctuating Amounts.
Where a charge, particulars of
which require registration under
section 107 of this Code is
expressed to secure all sums due
or to become due or some other
uncertain or fluctuating amount,
the particulars required under
paragraph (c) of subsection (4) of
the said section 107 shall state
the maximum sum deemed to be
secured by such charge, being the
maximum sum covered by the stamp
duty paid thereon, and such charge
shall be void, so far as any
security on the company's property
is thereby conferred, as respects
any excess over the stated
maximum:
Provided that, if,
(a) additional stamp duty is
subsequently paid on such charge;
and
(b) at any time thereafter prior
to the commencement of the winding
up of the company amended
particulars of the said charge
stating the increased maximum sum
deemed to be secured thereby,
together with the original
instrument by which the charge was
created or evidenced, are
delivered to the Registrar for
registration,
then, as from the date of such
delivery the charge, if otherwise
valid, shall be effective to the
extent of such increased maximum
sum except as regards any person
who, prior to the date of such
delivery, has acquired any
proprietary rights in, or a fixed
or floating charge on, the
property subject to the charge.
Section 109—Charges on Property
Acquired.
(1) When a company acquires any
property which is subject to a
charge of such kind that
particulars of it would, if it had
been created by the company after
the acquisition of the property,
have been required to be
registered under section 107 of
this Code, the company shall cause
particulars of the charge together
with the document, if any, by
which the charge was created or
evidenced or a copy thereof,
certified as provided in
subsections (6) and (7) of section
107 of this Code, to be delivered
to the Registrar for registration
within twenty-eight days after the
date on which the acquisition is
completed.
(2) The particulars requiring
registration under this section
shall be those specified in
subsection (4) of section 107 of
this Code with the addition of the
date of the acquisition of the
property by the company.
(3) Failure to comply with this
section shall not affect the
validity of the charge.
Section 110—Existing Charges.
(1) Where, at the date of
commencement of this Code, a
company has property on which
there is a charge particulars of
which would require registration
if it had been created by the
company after the date of such
commencement then, unless the
charge has been discharged or the
property has ceased to be held by
the company prior to the
expiration of six months from the
date of such commencement, the
company shall within that time
cause particulars of the charge as
prescribed by section 107 of this
Code to be delivered to the
Registrar for registration
together with the document, if
any, by which the charge was
created or a copy thereof,
certified as required by that
section.
(2) Every existing company shall,
prior to the expiration of six
months from the commencement of
this Code, deliver to the
Registrar for registration a
statutory declaration made by a
director and the secretary of the
company stating whether or not
there are any charges on the
company's property of which
particulars require to be
registered under this section and
confirming that particulars of any
such charges have been duly
delivered to the Registrar for
registration.
(3) In the event of default in
complying with subsection (2) of
this section the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding five pounds for
every day during which the default
continues.
(4) Failure to comply with this
section shall not affect the
validity of the charge.
Section 111—Duty of Company to
Deliver Particulars for
Registration.
(1) It shall be the duty of the
company to send to the Registrar
for registration the particulars
required to be sent under sections
107 to 110 of this Code, but
registration of the particulars of
any such charge may be effected on
the application of any person
interested therein.
(2) Where registration is effected
on the application of some person
other than the company, that
person shall be entitled to
recover from the company the
amount of any fees payable to the
Registrar on the registration.
(3) If any company makes default
in sending to the Registrar any
particulars requiring registration
as aforesaid, then, unless the
particulars have been duly
delivered for registration by some
other person, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding one hundred
pounds.
Section 112—Register of
Particulars of Charges.
(1) The Registrar shall keep, with
respect to each company, a
register of the particulars duly
delivered to him pursuant to
sections 107 to 110 of this Code
and shall enter the particulars
thereon.
(2) The Registrar shall give a
certificate under his hand of the
registration of particulars of any
charge registered in pursuance of
such sections and the certificate
shall be conclusive evidence,
except in favour of the company or
of any other person who shall have
delivered false or incomplete
particulars or an incorrect copy
of any document, that the
requirements of sections 107 to
110 of this Code have been
complied with.
(3) In the case of a charge of the
type referred to in section 108 of
this Code the certificate shall
state the maximum sum deemed to be
secured by such charge.
(4) The original or certified copy
instrument of the charge delivered
with the particulars shall not be
registered or retained by the
Registrar.
Section 113—Endorsement of
Registration on Debentures of a
Series.
(1) A company shall cause to be
endorsed on every debenture,
forming one of a series of
debentures, or certificate of
debenture stock which is issued by
the company and the payment of
which is secured by a charge,
particulars of which are
registered under sections 107 to
110 of this Code,
(a) a copy of the certificate of
registration, or
(b) a statement that registration
has been effected and the date of
registration:
Provided that nothing in this
subsection contained shall be
construed as requiring to be so
endorsed any debenture or
certificate or debenture stock
issued by the company before the
charge was created or before the
commencement of this Code.
(2) Every person who knowingly
authorises or permits the delivery
of any debenture or certificate of
debenture stock which is required
to be endorsed under the
provisions of this section and
which is not so endorsed shall be
liable to a fine not exceeding ten
pounds.
(3) If any person shall cause to
be endorsed on any debenture or
certificate of debenture stock any
purported copy of a certificate of
registration or statement that
registration has been effected
which he knows to be false in any
material particular or shall
authorise or permit the delivery
of any debenture or certificate of
debenture stock bearing an
endorsement purporting to be a
copy of a certificate of
registration or statement that
registration has been effected
which he knows to be false in any
material particular, he shall be
guilty of an offence and liable on
conviction to imprisonment for a
term not exceeding five years or
to a fine not exceeding one
thousand pounds or to both such
imprisonment and fine.
Section 114—Entry of Satisfaction
on Discharge.
The Registrar, on application in
the prescribed form and on
evidence being given to his
satisfaction with respect to any
charge of which particulars have
been registered,
(a) that the debt for which the
charge was given has been paid or
satisfied in whole or in part, or
(b) that the whole or part of the
property charged has been released
from the charge or has ceased to
form part of the company's
property or undertaking,
shall enter on the register a
memorandum of satisfaction in
whole or in part, or of the fact
that the whole or part of the
property has been released from
the charge or has ceased to be
part of the company's property, as
the case may be, and where he
enters a memorandum of
satisfaction in whole he shall, if
required, furnish the company with
a copy thereof.
Section 115—Rectification of
Register of Particulars of
Charges.
(1) The Court, on being satisfied
that the omission to register
particulars of a charge within the
time required by this Code or that
the omission or mis-statement of
any particulars with respect to
any charge or in a memorandum of
satisfaction was accidental, or
due to inadvertence or to some
other sufficient cause, or is not
of a nature to prejudice the
position of creditors or members
of the company, or that on other
grounds it is just and equitable
to grant relief, may, on the
application of the company or any
person interested, and on such
terms as seem to the Court just
and expedient, order that the time
for registration shall be
extended, or as the case may be,
that the omission or mis-statement
shall be corrected.
(2) When the Court grants an
extension of time for registration
the charge shall not, unless the
Court shall otherwise order,
adversely affect any person who,
prior to the date of actual
registration of particulars of the
charge, shall have acquired any
proprietary rights in, or a fixed
or floating charge on, the
property subject to the charge,
and shall be ineffective against
the liquidator and any creditors
of the company if the winding up
of the company commences before
the date of actual registration.
Section 116—Registration of
Enforcement of Security.
(1) If any person obtains an order
for the appointment of a receiver
of any of the property of a
company, or appoints such a
receiver or enters into possession
of such property under any powers
contained in any charge, notice of
the fact in the prescribed form
shall, within ten days from the
date of the order, appointment or
entry into possession, be given to
the Registrar who shall enter the
fact in the register of the
particulars of charges relating to
such company.
(2) If default is made in giving
the notice required under
subsection (1) of this section the
receiver, the person entering into
possession, the company, and any
officer of the company who is in
default shall each be liable to a
fine not exceeding five pounds for
everyday during which the default
continues.
(3) Where any person appointed
receiver of the property of the
company ceases to act as such
receiver or where any person
having entered into possession
goes out of possession he shall,
within ten days of so ceasing to
act or to remain in possession,
give notice to that effect in the
prescribed form to the Registrar
who shall enter the notice in the
register of particulars of
charges.
(4) If any person makes default in
complying with the requirements of
subsection (3) of this section he
shall be liable to a fine not
exceeding five pounds for everyday
during which the default
continues.
(5) The Registrar shall cause a
copy of any notice given under
this section to be published in
the Gazette.
Section 117—Copies of Charges to
be kept by Company.
(1) Every company shall cause a
copy of every instrument creating
any charge of which particulars
require to be registered under
sections 107 to 110 of this Code
to be kept at the registered
office of the company and at any
other office in Ghana at which its
register of debenture holders is
kept:
Provided that in the case of a
series of uniform debentures, a
copy of one debenture of the
series shall be sufficient.
(2) Such copies shall be open to
inspection during usual business
hours, subject to such reasonable
restrictions as the company in
general meeting may impose but so
that not less than two hours in
each day, other than Saturdays,
Sundays and public holidays shall
be allowed for inspection, by any
member or creditor of the company
without fee and by any other
person on payment of such fee, not
exceeding one shilling for each
inspection, as the company may
prescribe.
(3) If the company shall make
default in complying with
subsection (1) of this section or
if inspection of the said copies
is refused, the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding one hundred pounds,
and in the event of any such
refusal the Court may by order
compel an immediate inspection of
the copies.
Section 118—Registration
Constituting Notice.
The registration of any
particulars under the foregoing
sections in this Part of this Code
shall constitute actual notice of
such particulars, but not of the
contents of any document referred
to therein or delivered therewith,
to all persons and for all
purposes as from the date of
registration.
Part M—Registered Office,
Publication of Name and Annual
Returns
Section 119—Registered Office.
(1) A company shall, as from the
date when it commences to carry on
business or as from the
twenty-eighth day after the date
of its incorporation, whichever is
the earlier, have a registered
office in Ghana with a post office
box to which all communications
and notices to the company may be
addressed.
(2) If default is made in
complying with this section the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding
five pounds for everyday during
which the default continues.
Section 120—Notice of Situation of
Registered Office.
(1) Notice of the situation of the
original registered office of the
company and of the number of its
post office box shall be given to
the Registrar for registration in
accordance with the provisions of
section 27 of this Code.
(2) If the return referred to in
section 27 of this Code shall not
have been delivered to the
Registrar for registration within
twenty-eight days after the date
of the company's incorporation,
notice of the situation of the
registered office and of the
number of its post office box
shall be given in the prescribed
form to the Registrar for
registration.
(3) Notice of any change in the
situation of the registered office
or of the number of its post
office box shall be given in the
prescribed form to the Registrar
for registration within
twenty-eight days of the change.
(4) If the notice given to the
Registrar by an existing company
prior to the commencement of this
Code pursuant to section 52 of the
Companies Ordinance (Cap. 193)
shall not have given both the
situation of the company's
registered office and the number
of its post office box, an amended
notice in the prescribed form
shall be given to the Registrar
for registration within
twenty-eight days of the
commencement of this Code.
(5) The inclusion in the annual
return referred to in section 122
of this Code of a statement as to
the situation of the company's
registered office and the number
of its post office box shall not
be taken to satisfy the obligation
imposed by this section.
(6) If default is made in
complying with subsection (2), (3)
or (4) of this section the company
and every officer of the company
who is in default shall be liable
to a fine not exceeding five
pounds for every day during which
the default continues.
Section 121—Publication of Name of
Company.
(1) Every company shall,
(a) paint or affix, and keep
painted or affixed, its name on
the outside of its registered
office and of every office or
place in which its business is
carried on, in a conspicuous
position in letters easily
legible;
(b) have its name engraved in
legible characters on its seal;
(c) have its name accurately
mentioned in legible characters at
the head of all business letters,
invoices, receipts, notices, or
other publications of the company,
and in all negotiable instruments
or orders for money, goods or
services purporting to be signed
or endorsed by or on behalf of the
company.
(2) If any company makes default
in complying with subsection (1)
of this section the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding fifty pounds.
(3) If an officer of the company
or any person purporting to act on
its behalf uses or authorises the
use of a seal purporting to be a
seal of the company whereon its
name is not engraved as required
by subsection (1) of this section
he shall be liable to a fine not
exceeding fifty pounds.
(4) If any officer of the company
or other person shall sign or
endorse or authorise the signing
or endorsement on behalf of the
company of any negotiable
instrument or order for money,
goods or services wherein the name
of the company is not accurately
mentioned in accordance with
paragraph (c) of subsection (1) of
this section, such person shall be
personally liable to discharge the
obligation thereby incurred unless
it is duly discharged by the
company or otherwise, but without
prejudice to any right of
indemnity which such person may
have against the company or any
other person.
(5) The use of the abbreviation
"Ltd." instead of "Limited" shall
not be deemed to be a breach of
the provisions of this section.
Section 122—Annual Return.
Third Sch.
(1) Every company shall, once at
least in every year, deliver to
the Registrar for registration an
annual return including
particulars of every member of the
company, and in the form and
relating to the matters prescribed
in the Third Schedule to this
Code:
Provided that a company need not
make a return under this section,
(a) in the year of its
incorporation; or
(b) in any year ending less than
eighteen months after the date of
its incorporation, so long as it
makes a return within forty-two
days after the first despatch to
its members and debentureholders
of the statements, accounts, and
reports referred to in section 124
of this Code.
(2) The annual return shall be
completed and made within
forty-two days of the date on
which the statements, accounts,
and reports of the company are
sent to the members and
debentureholders pursuant to
section 124 of this Code, and
shall be signed by a director and
the secretary of the company.
(3) The return shall state the
position as at the date of the
annual general meeting of the
company or, if the holding of an
annual general meeting is waived
in accordance with subsection (3)
of section 149 of this Code, as at
the twenty-first day after the
despatch of the documents referred
to in subsection (2) of this
section.
(4) The Registrar, after
registering the annual return,
shall cause to be published in the
Gazette a notice that the annual
return in respect of the company
has been registered.
(5) In the case of a private
company the annual return shall be
accompanied by the documents
specified in section 269 of this
Code and in the case of a public
company by the documents specified
in section 295 of this Code.
(6) If a company makes default in
complying with this section, the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding
five pounds for every day during
which the default continues.
Part N—Accounts and Audit
Section 123—Keeping of Books of
Account.
(1) Every company shall cause to
be kept proper books of accounts
with respect to its financial
position and changes therein, and
with respect to the control of and
accounting for all property
acquired whether for resale or for
use in the company's business,
and, in particular with respect
to,
(a) all sums of money received and
expended by, or on behalf of, the
company and the matters in respect
of which the receipt and
expenditure takes place;
(b) all sales and purchases by the
company of property, goods and
services;
(c) the assets and liabilities of
the company and the interests of
the members therein.
(2) Proper books of account shall
not be deemed to be kept if there
are not kept such books as are
necessary to give a true and fair
view of the state of the company's
affairs and to prepare proper
profit and loss accounts and
balance sheets in accordance with
sections 125 to 131 of this Code.
(3) The books of account may be
kept either by making entries in
bound volumes, or, subject to
compliance with subsections (2)
and (3) of section 264 of this
Code, by a system of mechanical
recording, or otherwise.
(4) The books of account shall be
kept at the registered office of
the company or at such other place
as the directors shall think fit,
and shall at all times be open to
inspection by the directors,
secretary and auditors of the
company.
Section 124—Circulation of Profit
and Loss Account, Balance Sheet
and Reports.
(1) The directors of every company
shall, at some date not later than
eighteen months after the
incorporation of the company and
subsequently once at least in
every calendar year at intervals
of not more than fifteen months,
cause to be prepared and sent to
every member of the company and to
every holder of debentures of the
company a copy of each of the
following documents, namely,
(a) a profit and loss account and
balance sheet prepared and signed
in accordance with sections 125 to
131 of this Code;
(b) a report by the directors
thereon in accordance with section
132 of this Code;
(c) a report by the auditors in
accordance with section 133 of
this Code:
Provided that this subsection
shall not require a copy of such
documents to be sent to a member
or debentureholder of whose
address the company is unaware,
but such person shall be entitled
to be furnished on demand without
charge with a copy of the last of
such profit and loss accounts and
balance sheets and directors' and
auditors' reports.
(2) Unless the holding of an
annual general meeting is duly
waived by the members in
accordance with subsection (3) of
section 149 of this Code, the
documents referred to in
subsection (1) of this section
shall be laid before the company
in general meeting.
(3) The Registrar, if for any
reason he thinks fit so to do, may
extend the periods of eighteen
months and fifteen months referred
to in subsection (1) of this
section, and, in the circumstances
referred to in subsection (11) of
section 127 of this Code, may
waive the requirements of this
section in respect of any calendar
year.
Section 125—Profit and Loss
Account.
(1) The profit and loss account
referred to in paragraph (a) of
subsection (1) of section 124 of
this Code shall, in the case of
the first account since the
incorporation of the company,
cover the period since the
incorporation of the company and,
in any other case, cover the
period since the preceding account
and shall be made up to a date not
earlier by more than nine months
from the date on which it is to be
sent to members and
debentureholders pursuant to
section 124 of this Code:
Provided that,
(a) in the case of an existing
company which has not previously
prepared a profit and loss account
and which was not required under
its Regulations to prepare one,
the first account need not cover a
period commencing earlier than the
date of commencement of this Code;
(b) the Registrar, if for any
reason he thinks fit so to do, may
extend the aforesaid period of
nine months.
(2) The date to which the profit
and loss account is to be made up
in accordance with subsection (1)
of this section is hereafter in
this Code referred to as the end
of the company's financial year.
Fourth Sch. Part I.
(3) The profit and loss account
shall, subject to subsection (5)
of section 127 of this Code,
relating to consolidated profit
and loss accounts,
(a) give a true and fair view of
the profit or loss of the company
for the period to which it
relates; and
(b) comply with the requirements
of sections 127 to 131 and Part I
of the Fourth Schedule to this
Code.
(4) The Registrar may, on the
application or with the consent of
the company's directors, modify in
relation to that company any of
the requirements in Part I of the
Fourth Schedule to this Code for
the purpose of adapting them to
the circumstances of the company,
but no such modification shall
derogate from the obligation
imposed by paragraph (a) of
subsection (3) of this section to
give a true and fair view of the
profit or loss of the company.
Section 126—Balance Sheet.
(1) The balance sheet referred to
in paragraph (a) of subsection (1)
of section 124 of this Code shall
give a true and fair view of the
state of affairs of the company as
at the end of the company's
financial year and shall comply
with the requirements of sections
127 to 131 and Part II of the
Fourth Schedule to this Code.
(2) The Registrar may, on the
application or with the consent of
the company's directors, modify
any of the requirements in Part II
of the Fourth Schedule to this
Code for the purpose of adapting
them to the circumstances of the
company, but no such modification
shall derogate from the obligation
imposed by section (1) of this
section to give a true and fair
view of the state of affairs of
the company.
Section 127—Group Accounts.
(1) The provisions of this section
shall apply where, at the end of
the company's financial year, a
company has subsidiaries.
(2) Accounts and statements
dealing, as hereinafter mentioned,
with the profit or loss and the
state of affairs of the company
and the subsidiaries, in this Code
called group accounts, shall,
subject to subsection (3) of this
section, be sent to the members
and debentureholders of the
company with the company's own
profit and loss account and
balance sheet pursuant to section
124 of this Code.
(3) Notwithstanding anything
contained in the foregoing
subsection,
(a) group accounts shall not be
required where the company at the
end of the company's financial
year is the wholly owned
subsidiary of another company;
(b) subject to the approval of the
Registrar, group accounts need not
deal with a subsidiary of the
company if the company's directors
are of opinion that,
(i)
it is impracticable or would be of
no real value to the members and
debentureholders of the company in
view of the insignificance of the
amount involved; or
(ii) it would involve expense or
delay out of proportion to the
value to members and
debentureholders of the company;
or
(iii) the result would be
misleading or harmful to the
business of the company or any of
its subsidiaries; or
(iv) the business of the holding
company and that of the
subsidiaries are so different that
they cannot reasonably be treated
as a single undertaking.
(4) Subject to subsection (5) of
this section, the group accounts
shall be consolidated accounts
comprising;
(a) a consolidated profit and loss
account dealing with the profit or
loss of the company and all
subsidiaries to be dealt with in
the group accounts;
(b) a consolidated balance sheet
dealing with the state of affairs
of the company and those
subsidiaries.
(5) If the company's directors are
of the opinion that it is better
for the purpose of presenting the
same or equivalent information in
a form which may be more readily
appreciated by the members and
debentureholders, the group
accounts may be prepared in a form
other than that required by
subsection (4) of this section
and, in particular, may consist of
more than one set of consolidated
accounts dealing respectively with
the company and various groups of
subsidiaries or of separate
accounts, dealing with each of the
subsidiaries, attached to the
company's accounts or of
statements expanding the
information about the subsidiaries
in the company's own accounts, or
any combination of those forms.
(6) The group profit and loss
account may be wholly or partly
incorporated in the company's own
profit and loss account and a
consolidated profit and loss
account dealing with the company
and all or any of its subsidiaries
shall be deemed to be a profit and
loss account of the company
complying with subsection (3) of
section 125 of this Code, so long
as it complies with the
requirements of this section and
shows how much of the consolidated
profit or loss for the financial
year is dealt with in the accounts
of the company.
(7) The group accounts shall give
a true and fair view of the profit
or loss and of the state of
affairs of the company and the
subsidiaries dealt with thereby as
a whole, so far as concerns the
interests of the company.
Fourth Sch. Part III.
(8) The accounts of the company
and the group accounts, if any,
shall comply with the requirements
of Part III of the Fourth Schedule
to this Code.
(9) The Registrar may, on the
application or with the consent of
the company's directors, modify in
relation to that company any of
the requirements in Part III of
the Fourth Schedule for the
purpose of adapting them to the
circumstances of the company but
no such modification shall
derogate from the obligation
imposed by subsection (7) of this
section to give a true and fair
view of the profit or loss and the
state of affairs of the company
and the subsidiaries as a whole,
so far as concerns the interests
of the company.
(10) A holding company's directors
shall secure that, except where in
their opinion there are good
reasons against it, in which case
their reasons shall be stated in a
note on the company's accounts,
the financial year of each of its
subsidiaries shall coincide with
the company's own financial year,
and the group accounts shall deal
with the affairs of the holding
company and the subsidiaries for
the same financial year.
(11) Where it appears to the
Registrar desirable for a holding
company or subsidiary company to
extend its financial year so that
the subsidiary's financial year
may end with that of the holding
company, and for that purpose to
postpone the despatch of the
accounts and reports referred to
in section 124 of this Code from
one calendar year to another, the
Registrar may direct that the
despatch thereof by one or other
of these companies shall not be
required in the earlier of the
said calendar years.
(12) If the financial year of a
subsidiary does not coincide with
that of the holding company the
group accounts shall, unless the
Registrar shall otherwise direct,
deal with the subsidiary's profit
or loss for, and the state of
affairs as at the end of, its
financial year ending last before
that of the holding company.
Section 128—Particulars of
Directors' Emoluments and
Pensions.
(1) In a note to the accounts of a
company there shall be shown, in
accordance with the provisions of
this section, the following
information in so far as it is
contained in the company's books
or papers or the company has
obtained the information from the
persons concerned or has the right
to obtain it under section 130 of
this Code, namely;
(a) the aggregate amount of the
directors' emoluments;
(b) the aggregate amount of
directors' or past directors'
pensions; and
(c) the aggregate amount of any
compensation to directors or past
directors in respect of loss of
office.
(2) The amount to be shown under
paragraph (a) of subsection (1) of
this section, shall include fees,
salaries and percentages, expense
allowances, contributions paid
under any pension scheme, and the
estimated value of benefits in
kind, except benefits of such
character and value as are
customarily afforded to employees
other than directors, paid to, or
receivable by, any director in
respect of his services as an
officer of the company or any
associated company.
(3) The amount to be shown under
paragraph (b) of subsection (1) of
this section, shall include any
pension paid or receivable in
respect of services as a director
or past director of the company,
or in respect of services, while a
director of the company, in
connection with the management, or
as an officer of the company or
any associated company, whether
that pension is paid to, or
receivable by, the director or
past director or any other person:
Provided that it shall not be
necessary to include a pension
paid or receivable under a pension
scheme which is such that the
contributions thereunder are
substantially adequate for the
maintenance of the scheme.
(4) The amount to be shown under
paragraph (c) of subsection (1) of
this section, shall include any
sums paid to or receivable by, a
director or past director by way
of compensation for the loss of
office as director of the company
or for the loss, while a director
of the company, or in connection
with his ceasing to be a director
of the company, of any other
office in the company or of any
office in any associated company;
and any sum and the value of any
other valuable consideration paid
or receivable in connection with
retirement from office or as
damages for breach of a contract
of service, shall be deemed to be
paid or receivable by way of
compensation for loss of office.
(5) The amounts to be shown under
each paragraph of subsection (1)
of this section, shall include all
relevant sums paid by, or
receivable from, the company or
any other person.
(6) The amounts to be shown under
this section for any financial
year shall be the sums receivable
in respect of that year whenever
paid or, in the case of sums not
receivable in respect of a period,
the sums paid during that year:
Provided that any sums paid in
advance of the financial year to
which they are expressed to relate
shall be shown in the accounts for
the financial year in which they
are paid.
(7) Where it is necessary to do so
for the purpose of making any
distinction required by this
section, the directors may
apportion, in such manner as they
think appropriate, any payments
between the matters in respect of
which they have been paid or are
receivable.
Section 129—Particulars of Amounts
due from Officers.
(1) In a note to the accounts of a
company there shall, subject to
the provisions of this section, be
separately shown,
(a) the aggregate amount of all
sums due to the company or any
associated company at the end of
the company's financial year from
any officers of the company or any
associated company;
(b) the maximum amount of all sums
due to the company and any
associated companies at any time
during the company's financial
year from any officers of the
company or any associated company.
(2) If the company or any
associated company shall have
given a guarantee or security to
any person in respect of any
indebtedness of an officer of the
company or any associated company,
the amount guaranteed or in
respect of which the security was
given shall be included in the
amounts to be shown under
subsection (1) of this section.
(3) Notwithstanding subsections
(1) and (2) of this section, the
following shall not require to be
separately shown, namely,
(a) any indebtedness incurred as a
result of a transaction in the
ordinary course of business by the
company or any associated company
unless the indebtedness shall not
have been discharged within three
months from the date of such
transaction;
(b) any loan made in the ordinary
course of business by a company,
the ordinary business of which
includes the lending of money;
(c) a loan made by the company or
any associated company to any
officer of the company or
associated company if the loan
does not exceed two thousand
pounds or two per centum of the
stated capital of the company
concerned, whichever is the less,
and is certified by the directors
of the company concerned to have
been made in accordance with any
practice adopted, or about to be
adopted, by that company with
respect to loans to such
employees:
Provided that paragraphs (b) and
(c) of this subsection shall not
include in either case a loan made
by a company under a guarantee
from or on security provided by
any associated company.
(4) References in this section to
an associated company shall be
taken as referring to any company
which is an associated company at
the end of the company's financial
year, whether or not an associated
company at the date of the
transaction concerned.
(5) Nothing in this section shall
derogate from section 301 of this
Code prohibiting loans by public
companies to their directors or
directors of their associated
companies.
Section 130—Provisions
Supplemental to Sections 123 to
129.
(1) Any reference in this Code to
a profit and loss account or
balance sheet or to the accounts
of a company, shall include any
notes thereon and any document
annexed thereto giving information
which is required by this Code.
(2) Any reference in this Code to
a profit and loss account shall be
taken, in the case of a company
limited by guarantee or other
company not trading for profit, as
referring to its income and
expenditure account, and
references to profit and loss and
to a consolidated profit and loss
account shall be construed
accordingly.
(3) If any person, being a
director of a company, fails to
take all reasonable steps to
secure compliance with the
provisions of sections 123 to 129
of this Code he shall, in respect
of each offence, be liable to
imprisonment for a term not
exceeding two years or to a fine
not exceeding two hundred pounds
or to both such imprisonment and
fine:
Provided that,
(a) in any proceedings against a
person for any such offence it
shall be a defence to prove that
he had reasonable cause to
believe, and did believe, that a
competent and reliable person was
charged with the duty of seeing
that the said provisions were
complied with and was in a
position to discharge that duty;
and
(b) a person shall not be
sentenced to imprisonment for any
such offence unless, in the
opinion of the Court, the offence
was committed wilfully.
(4) It shall be the duty of every
director and former director of
the company to give notice in
writing to the company of such
matters relating to himself as may
be necessary to enable the company
to comply with sections 128 and
129 of this Code; and if notice is
given by a director it shall be
his duty to secure that it is
brought up and read at the next
meeting of the directors after it
is given:
Provided that it shall not be
necessary for any person to give
written notice of loans,
guarantees or securities made or
given by the company itself.
(5) Any person who makes default
in complying with subsection (4)
of this section shall be liable to
a fine not exceeding one hundred
pounds.
(6) It shall be the duty of every
company to give such written
notice to any associated company
relating to any transaction
entered into by the first named
company as may be necessary to
enable the associated company to
comply with sections 128 and 129
of this Code.
(7) If any company shall make
default in complying with
subsection (6) of this section the
company, and every officer of the
company, who is in default shall
be liable to a fine not exceeding
one hundred pounds.
Section 131—Signing and
Publication of Accounts.
(1) A company shall not issue,
publish or circulate a copy of any
profit and loss account or balance
sheet unless,
(a) it shall have attached thereto
a copy of each of the other
documents referred to in
paragraphs (a), (b) and (c) of
subsection (1) of section 124 of
this Code and of any group
accounts required under section
127 of this Code; and
(b) the said accounts and balance
sheet shall have been approved by
the board of directors and, after
such approval, signed on their
behalf by two directors.
(2) The foregoing subsection shall
not prohibit the publication of,
(a) a fair and accurate summary of
any profit and loss account and
balance sheet and the auditors'
report thereon after such profit
and loss account and balance sheet
shall have been approved by, and
signed on behalf of, the board of
directors;
(b) a fair and accurate summary of
the profit or loss figures for
part of the company's financial
year.
(3) In the event of any breach of
subsection (1) of this section the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding
fifty pounds.
Section 132—Directors' Report.
(1) The report of the directors
referred to in paragraph (b) of
subsection (1) of section 124 of
this Code shall consist of a
report by the directors on the
state of the company's affairs
and, if the company is a holding
company, on the state of affairs
of the company and its
subsidiaries as a group, and the
amount, if any, which they
recommended shall be paid by way
of dividend.
(2) The report shall be approved
by the board of directors and
signed on behalf of the board by
two directors.
(3) The report shall deal, so far
as is material for the
appreciation of the state of the
company's affairs, with any change
during the financial year in the
nature of the business of the
company or of the company's
associated companies, or in the
classes of business in which the
company has an interest, whether
as member of another company or
otherwise.
(4) The report shall contain a
list of bodies corporate in
relation to which either of the
following conditions is fulfilled
at the end of the company's
financial year, that is to say,
(a) the body corporate is a
subsidiary of the company,
(b) although the body corporate is
not a subsidiary of the company,
the company is beneficially
entitled to equity shares of the
body corporate conferring the
right to exercise more than
twenty-five per centum of the
votes exercisable at a general
meeting of the body corporate.
(5) The list referred to in the
immediately preceding subsection
shall distinguish between bodies
corporate falling within paragraph
(a) and paragraph (b) thereof and
shall state as regards each such
company,
(a) its name;
(b) its country of incorporation;
(c) the nature of the business
carried on by it.
(6) If the company is, at the end
of its financial year, the
subsidiary of another, the report
shall also state the name and
country of incorporation of its
holding company.
(7) If, on application being made
by the directors, the Registrar is
satisfied that mention of any of
the matters referred to in
subsections (3), (4), (5) and (6)
of this section would be harmful
to the business of the company or
any of its associated companies,
he may direct that such matter
need not be mentioned in the
report of a financial year.
(8) If any director fails to take
all reasonable steps to comply
with the provisions of this
section he shall be liable to a
fine not exceeding one hundred
pounds.
Section 133—Auditors' Report.
Fifth Sch.
(1) The report by the auditors
referred to in paragraph (c) of
subsection (1) of section 124 of
this Code, shall consist of a
report, addressed to the members
of the company, by an auditor or
auditors duly qualified and
appointed as auditors of the
company in accordance with section
134 of this Code, on the books of
account of the company, and on
every balance sheet, profit and
loss account, and all group
accounts to be sent to the members
and debentureholders of the
company in accordance with
sections 124 and 127 of this Code,
and shall contain statements as to
the matters mentioned in the Fifth
Schedule to this Code.
(2) If, in the case of any
accounts, any of the particulars
required to be shown under
sections 128 and 129 of this Code
are not shown, the report, in
addition to stating that the
accounts do not give all the
information required by this Code,
shall contain a statement giving
the required particulars so far as
the auditors are reasonably able
to do so.
(3) The report shall, at all
times, be open to inspection by
any member or debentureholder of
the company at the registered
office of the company during usual
business hours and shall be read
at any annual general meeting of
the company held within three
months after it is sent to members
and debentureholders in accordance
with section 124 of this Code.
Section 134—Appointment and
Remuneration of Auditors.
(1) No person shall be appointed
as auditor of a company unless,
(a) he shall prior to such
appointment have consented in
writing to be appointed; and
(b) he is duly qualified in
accordance with the provisions of
section 270 of this Code, if
appointed as auditor of a private
company, or section 296 of this
Code if appointed as auditor of a
public company.
(2) A partnership firm may be
appointed, in the name of the
firm, as auditors of a company,
but, whether or not such firm is a
body corporate, such appointment
shall be deemed to be an
appointment of such of the
partners of the firm as, at the
time of the appointment, are duly
qualified.
(3) The first auditors of a
company incorporated after the
commencement of this Code shall be
appointed within three months of
the incorporation of the company
or prior to the delivery to the
Registrar of the particulars
required under section 27 of this
Code, and every existing company
shall, unless it already has duly
qualified auditors, appoint
auditors within three months after
the commencement of this Code.
(4) Notwithstanding any contrary
provision in the company's
Regulations, auditors shall be
appointed by ordinary resolution
of the company and not otherwise:
Provided that,
(a) the directors may appoint the
first auditors of a company and
may fill any casual vacancy in the
office of auditor;
(b) if a company shall have no
auditor for a continuous period of
three months the Registrar may
appoint auditors.
(5) Every existing auditor shall
continue in office until,
(a) he ceases to be qualified for
appointment; or
(b) he resigns his office by
notice in writing to the company;
or
(c) an ordinary resolution is duly
passed at an annual general
meeting in accordance with section
135 of this Code removing him from
office or appointing some other
person in his place as from the
conclusion of the annual general
meeting;
and when any casual vacancy occurs
in the office of auditor the
surviving or continuing auditor or
auditors, if any, may act.
(6) Notice of the names and
addresses of the first auditors of
a company incorporated after the
commencement of this Code shall be
given to the Registrar in
accordance with section 27 of this
Code.
(7) Within three months after the
commencement of this Code, every
existing company shall give notice
in the prescribed form to the
Registrar for registration of the
names and addresses of its
auditors.
(8) Within twenty-eight days after
the occurrence of any change in
the auditors of any company, the
company shall give notice thereof
in the prescribed form to the
Registrar for registration.
(9) Every company shall give
notice to the Registrar if at any
time after the commencement of
this Code a continuous period of
three months shall have elapsed
without the company having a duly
qualified auditor.
(10) The remuneration of the
auditors,
(a) in the case of an auditor
appointed by the directors or by
the Registrar, may be fixed by the
directors or the Registrar, as the
case may be, for the period
expiring at the conclusion of the
next annual general meeting of the
company;
(b) subject as aforesaid, shall be
fixed by an ordinary resolution of
the company or in such manner as
the company by ordinary resolution
may determine.
(11) For the purposes of the
immediately preceding subsection,
any sums paid or payable by the
company in respect of the
auditors' expenses shall be deemed
to be included in the expression
"remuneration".
(12) If any company shall commit a
breach of any of the provisions of
this section or describe as
auditor of the company any person
who has not been duly appointed,
the company and any officer of the
company who is in default shall be
liable to a fine not exceeding one
hundred pounds.
(13) For the purposes of
subsections (6), (7) and (8) of
this section, where a partnership
firm is appointed auditors in the
name of the firm, the firm name
and business address shall be
given to the Registrar and, for
the purposes of such subsections a
change in the constitution of the
firm or of the partners therein
who are auditors of the company
shall not be deemed to be a change
in the auditors.
Section 135—Removal of Auditors.
(1) A resolution to remove any
auditor or to appoint any other
person in his place shall not be
effective unless,
(a) it is passed at an annual
general meeting of the company;
(b) written notice shall have been
given to the company of the
intention to move it not less than
thirty-five days before the annual
general meeting at which it is to
be moved and on its receipt the
company shall have forthwith sent
a copy thereof to the auditor
concerned; and
(c) the company shall have given
its members notice of such
resolution at the same time and in
the same manner as it gives notice
of the meeting or, if that is not
practicable, shall have given them
notice thereof in the same manner
as notices of meetings are
required to be given not less than
twenty-one days before the
meeting:
Provided that,
(a) if, after notice of the
intention to move the resolution
is given to the company, an annual
general meeting is called for a
date thirty-five days or less
after the notice has been given to
the company, the notice shall be
deemed to have been properly given
for the purposes of this
subsection;
(b) in the case of a resolution to
remove any auditor appointed by
the directors in accordance with
subsection (4) of section 134 of
this Code, or to appoint any other
person in place of an auditor so
appointed, this subsection shall
have effect with the substitution
of fourteen days for thirty-five
days in paragraph (b) and seven
days for twenty-one days in
paragraph (c).
(2) The auditor concerned shall be
entitled,
(a) to be heard on the resolution
at the meeting; and
(b) to send to the company a
written statement, copies of which
the company shall send with every
notice of the annual general
meeting or, if the statement is
received too late, shall forthwith
circulate to every person entitled
under section 154 of this Code to
notice of the meeting in the same
manner as notices of meetings are
required to be given:
Provided that the company need not
send or circulate such statement,
(a) if it is received by the
company less than seven days
before the meeting; or
(b) if the Court, on application
being made by the company or any
other person who claims to be
aggrieved, so orders upon being
satisfied that the statement is
unreasonably long or that the
rights conferred by this section
are being abused to secure
needless publicity for defamatory
matter; and the Court may order
the costs of the applicant to be
paid in whole or in part by the
auditor notwithstanding that he is
not a party to the application.
(3) Without prejudice to the
auditor's right to be heard orally
on such resolution he may, unless
the Court shall have made an order
under the immediately preceding
subsection, also require that the
written statement by him be read
to the meeting.
(4) If the resolution is passed it
shall not take effect until the
conclusion of the annual general
meeting.
Section 136—Duties and Powers of
Auditors.
(1) The auditors of a company
while acting in performance of
their duties under this Code shall
not be deemed to be officers or
agents of the company, but shall
stand in a fiduciary relationship
to the members of the company as a
whole and shall act in such manner
as faithful, diligent, careful,
and ordinarily skilful auditors
would act in the circumstances.
(2) No provision, whether
contained in the Regulations of a
company, or in any contract, or in
any resolution of a company, shall
relieve an auditor from the duty
to act in accordance with
subsection (1) of this section or
relieve him from any liability
incurred as a result of any breach
thereof.
(3) Every auditor shall have a
right of access at all times to
the books and accounts and
vouchers of the company and shall
be entitled to require from the
officers of the company such
information and explanation as he
thinks necessary for the
performance of his duties.
(4) The auditors of a company
shall be entitled to attend any
general meeting of the company and
to receive all notices of, and
other communications relating to,
any general meeting and to be
heard at any general meeting on
any part of the business of the
meeting which concerns them as
auditors.
(5) The auditors of a company may
apply to the Court for directions
in relation to any matter arising
in connection with the performance
of their functions under this
Code; and on any such application
the Court may give such directions
as the Court thinks just; and
unless the Court shall otherwise
direct, the costs of any such
application shall be paid by the
company.
(6) Before accepting appointment
as auditor of a company the
auditor shall communicate with the
retiring auditor, if any, and
invite him to make any
representations and supply any
information about the company
which he may care to make and
supply.
(7) The auditors, in addition to
their statutory duties to the
members under subsection (1) of
this section, may, under the terms
of their contract with the
company, expressly or impliedly
undertake obligations to the
company in relation to the
detection of defalcations, and
advice on accounting, costing,
taxation, raising of finance and
other matters.
Part O—Acts by or on behalf of the
Company
Section 137—Division of Powers
between General Meeting and Board
of Directors.
(1) A company shall act through
its members in general meeting or
its board of directors or through
officers or agents, appointed by,
or under authority derived from,
the members in general meeting or
the board of directors.
(2) Subject to the provisions of
this Code, the respective powers
of the members in general meeting
and the board of directors shall
be determined by the company's
Regulations.
(3) Except as otherwise provided
in the company's Regulations, the
business of the company shall be
managed by the board of directors
who may exercise all such powers
of the company as are not by this
Code or the Regulations required
to be exercised by the members in
general meeting.
(4) Unless the Regulations shall
otherwise provide, the board of
directors when acting within the
powers conferred upon them by this
Code or the Regulations shall not
be bound to obey the directions or
instructions of the members in
general meeting.
(5) Notwithstanding the provisions
of subsection (3) of this section,
the members in general meeting
may,
(a) act in any matter if the
members of the board of directors
are disqualified or are unable to
act by reason of a deadlock on the
board or otherwise;
(b) institute legal proceedings in
the name and on behalf of the
company if the board of directors
refuse or neglect to do so;
(c) ratify or confirm any action
taken by the board of directors;
or
(d) make recommendations to the
board of directors regarding
action to be taken by the board.
(6) No alteration of the
Regulations shall invalidate any
prior act of the board of
directors which would have been
valid if that alteration had not
been made.
Section 138—Delegation to
Committees and Managing Directors.
Unless otherwise provided in the
Regulations, the board of
directors,
(a) may exercise their powers
through committees consisting of
such member or members of their
body as they think fit, and
(b) may from time to time appoint
one or more of their body to the
office of managing director and
may delegate all or any of their
powers to such managing director.
Section 139—Acts of the Company.
Any act of the members in general
meeting, the board of directors,
or a managing director while
carrying on in the usual way the
business of the company shall be
treated as the act of the company
itself; and accordingly the
company shall be criminally and
civilly liable therefor to the
same extent as if it were a
natural person:
Provided that,
(a) the company shall not incur
civil liability to any person if
that person had actual knowledge
at the time of the transaction in
question that the general meeting,
board of directors, or managing
director, as the case may be, had
no power to act in the matter or
had acted in an irregular manner
or if, having regard to his
position with, or relationship to,
the company, he ought to have
known of the absence of power or
of the irregularity;
(b) if in fact a business is being
carried on by the company, the
company shall not escape liability
for acts undertaken in connection
therewith merely because the
business in question was not among
the businesses authorised by the
company's Regulations.
Section 140—Acts of Officers or
Agents.
(1) Except as provided in section
139 of this Code, the acts of any
officer or agent of a company
shall not be deemed to be acts of
the company, unless,
(a) the company, acting through
its members in general meeting,
board of directors, or managing
director, shall have expressly or
impliedly authorised such officer
or agent to act in the matter; or
(b) the company, acting as
aforesaid, shall have represented
the officer or agent as having its
authority to act in the matter, in
which event the company shall be
civilly liable to any person who
has entered into the transaction
in reliance on such
representation, unless such person
had actual knowledge that the
officer or agent had no authority
or unless, having regard to his
position with, or relationship to,
the company, he ought to have
known of such absence of
authority.
(2) The authority of an officer or
agent of the company may be
conferred prior to action by him
or by subsequent ratification; and
knowledge of action by such
officer or agent and acquiescence
therein by all the members for the
time being entitled to attend
general meetings of the company or
by the directors for the time
being or by the managing director
for the time being, shall be
equivalent to ratification by the
members in general meeting, board
of directors, or managing
director, as the case may be.
(3) Nothing in this section shall
derogate from the vicarious
liability of a company for the
acts of its employees while acting
within the scope of their
employment.
Section 141—No Constructive notice
of Registered Documents.
Except as mentioned in section 118
of this Code, regarding
particulars in the register of
particulars of charges, a person
shall not be deemed to have
knowledge of any particulars,
documents, or the contents of
documents by reason only that such
particulars or documents are
registered by the Registrar or
referred to in any particulars or
documents so registered.
Section 142—Presumption of
Regularity.
Any person having dealings with a
company or with someone deriving
title under the company shall be
entitled to make the following
assumptions, that is to say,
(a) that the company's Regulations
have been duly complied with;
(b) that every person described in
the particulars filed with the
Registrar pursuant to sections 27
and 197 of this Code as a
director, managing director or
secretary of the company, or
represented by the company, acting
through its members in general
meeting, board of directors, or
managing director, as an officer
or agent of the company, has been
duly appointed and has authority
to exercise the powers and perform
the duties customarily exercised
or performed by a director,
managing director, or secretary of
a company carrying on business of
the type carried on by the company
or customarily exercised or
performed by an officer or agent
of the type concerned;
(c) that the secretary of the
company, and every other officer
or agent of the company having
authority to issue documents or
certified copies of documents on
behalf of the company has
authority to warrant the
genuineness of the documents or
the accuracy of the copies so
issued;
(d) that a document has been duly
sealed by the company if it bears
what purports to be the seal of
the company attested by what
purports to be the signatures of
two persons who, in accordance
with paragraph (b) of this
section, can be assumed to be a
director and the secretary of the
company;
and the company and those deriving
title under it shall be estopped
from denying the truth of any such
assumption:
Provided that,
(a) a person shall not be entitled
to make such assumptions as
aforesaid if he had actual
knowledge to the contrary or if,
having regard to his position
with, or relationship to, the
company, he ought to have known
the contrary;
(b) a person shall not be entitled
to assume that any one or more of
the directors of the company have
been appointed to act as a
committee of the board of
directors or that an officer or
agent of the company has the
company's authority by reason only
that the Company's Regulations
provide that authority to act in
the matter may be delegated to a
committee or to an officer or
agent.
Section 143—Liability of Company
not Affected by Officer's Fraud or
Forgery.
Where, in accordance with sections
139 to 142 of this Code, a company
would be liable for the acts of
any officer or agent, the company
shall be liable notwithstanding
that the officer or agent has
acted fraudulently or forged a
document purporting to be sealed
by, or signed on behalf of the
company.
Section 144—Form of Contracts.
Contracts on behalf of a company
may be made, varied or discharged
as follows, that is to say,
(a) any contract which, if made
between individuals would be by
law required to be in writing
under seal, or which could be
varied or discharged by writing
under seal only, may be made,
varied or discharged, as the case
may be, in writing under the
common seal of the company;
(b) any contract which, if made
between individuals would be by
law required to be in writing or
to be evidenced in writing by the
parties to be charged therewith or
which could be varied or
discharged only by writing or
written evidence signed by the
parties to be charged, may be
made, evidenced, varied or
discharged, as the case may be, in
writing signed in the name or on
behalf of the company;
(c) any contract which, if made
between individuals would be valid
although made by parol only and
not reduced to writing or which
could be varied or discharged by
parol, may be made, varied or
discharged, as the case may be, by
parol on behalf of the company.
Section 145—Bills of Exchange and
Promissory Notes.
(1) A bill of exchange or
promissory note shall be deemed to
have been made, accepted, or
endorsed, on behalf of a company
if made, accepted or endorsed in
the name of the company or if
expressed to be made, accepted or
endorsed on behalf or on account
of the company.
(2) The company and its successors
shall be bound thereby if the
company is, in accordance with
sections 139 to 143 of this Code,
liable for the acts of those who
made, accepted or endorsed in its
name or on its behalf or account;
and a signature by a director or
the secretary on behalf of the
company shall not be deemed to be
a signature by procuration for the
purposes of section 23 of the
Bills of Exchange Act, 1961 (Act
55).
Section 146—Authentication of
Documents.
A
document or proceeding requiring
authentication by a company may be
signed on its behalf by an officer
of the company and need not be
under its common seal.
Section 147—Execution of deeds
Abroad.
(1) A company may, by writing
under its common seal, empower any
person, either generally or in
respect of any specified matters,
as its attorney to execute deeds
on its behalf in any place outside
Ghana.
(2) A deed signed by such an
attorney on behalf of the company
and under his seal shall bind the
company and have the same effect
as if it were under its common
seal.
Section 148—Official Seal for use
Abroad.
(1) A company whose objects
require or comprise the
transaction of business in
countries other than Ghana may, if
authorised by its Regulations,
have for use in any territory,
district or place not situate in
Ghana, an official seal which
shall be a facsimile of the common
seal of the company with the
addition on its face of the name
of the territory, district or
place where it is to be used.
(2) Every document to which an
official seal is duly affixed
shall bind the company as if it
had been sealed with the common
seal of the company.
(3) The company may, by writing
under its common seal, authorise
any agent appointed for that
purpose to affix the official seal
to any document to which the
company is a party in the
territory, district or place.
(4) Any person dealing with such
an agent in reliance on the
writing conferring the authority
shall be entitled to assume that
the authority of the agent
continues during the period, if
any, mentioned in the writing or,
if no period is there mentioned,
then until that person has actual
notice of the revocation or
determination of the authority.
(5) The person affixing any such
official seal shall, by writing
under his hand, certify on the
document to which the seal is
affixed, the date on which and the
place at which it is affixed.
Part P—General Meetings and
Resolutions
Section 149—Annual General
Meetings.
(1) Except as provided in
subsection (3) of this section,
every company shall in each year
hold a general meeting as its
annual general meeting in addition
to any other meetings in that
year, and shall specify the
meeting as the annual general
meeting in the notices calling it;
and not more than fifteen months
shall elapse between the date of
one annual general meeting and the
next:
Provided that, so long as a
company holds its first annual
general meeting within eighteen
months of its incorporation, it
need not hold it in the year of
its incorporation or in the
following year.
(2) The annual general meeting
shall be held not earlier than
twenty-one days after the
company's profit and loss account
and balance sheet, any group
accounts, and the reports of the
directors and auditors, thereon
shall have been despatched to
members and debentureholders of
the company in accordance with
section 124 of this Code; and the
said statements, accounts, and
reports shall be laid before the
annual general meeting for
consideration.
(3) If the auditors of the company
and all the members of the company
entitled to attend and vote at any
annual general meeting shall agree
in writing that an annual general
meeting shall be dispensed with in
any year, it shall not be
necessary for that company to hold
an annual general meeting that
year.
(4) If default is made in holding
the annual general meeting in
accordance with subsection (1) of
this section, the Registrar may,
of his own motion or on the
application of any officer or
member of the company, call, or
direct the calling of, an annual
general meeting of the company,
and may give such ancillary or
consequential directions as he
thinks fit, including directions
modifying or supplementing, in
relation to the calling, holding
and conducting of that meeting,
the operation of the company's
Regulations and sections 151 to
155, 161, 163, 166, 167, and 169
to 173 of this Code.
(5) Where a meeting held in
pursuance of subsection (4) of
this section is not held in the
year in which occurred the default
in holding the company's annual
general meeting, the meeting so
held shall be treated as the
annual general meeting for that
year, but shall not be treated as
the annual general meeting for the
year in which it is held unless,
at that meeting, the company
resolves that it shall be so
treated.
(6) Where a company so resolves, a
copy of the resolution shall,
within twenty-eight days of the
passing thereof, be forwarded to
the Registrar for registration.
(7) If default is made in holding
an annual general meeting of the
company in accordance with
subsection (1) of this section, or
in complying with any directions
of the Registrar under subsection
(4) of this section, or in
complying with subsection (2), (5)
or 6 of this section, the company,
and every officer of the company
who is in default shall be liable
to a fine not exceeding fifty
pounds.
Section 150—Extraordinary General
Meetings.
(1) Extraordinary general meetings
may be convened by the directors
whenever they think fit.
(2) If at any time there are not
within Ghana sufficient directors
capable of acting to form a
quorum, any director may convene a
meeting.
(3) An extraordinary general
meeting of a private company may
be requisitioned in accordance
with section 271 of this Code and
an extraordinary general meeting
of a public company may be
requisitioned in accordance with
section 297 of this Code.
Section 151—Place of Meetings.
Unless the company's Regulations
otherwise provide, all general
meetings shall be held in Ghana.
Section 152—Length of Notice of
Meetings.
(1) Meetings, other than adjourned
meetings, shall be convened by
notice in writing to the persons
who are, under section 154 of this
Code, entitled to receive notice
of general meetings.
(2) Subject to subsections (3) and
(4) of this section, twenty-one
days notice at the least or in the
case of a special resolution under
section 2 of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), seven days notice
exclusive of the day on which the
notice is served, but inclusive of
the day for which notice is given,
shall be given.
(3) The company's Regulations may
provide for a period of notice
longer, but not shorter, than that
specified in subsection (2) of
this section.
(4) A meeting of a company shall,
notwithstanding that it is called
by shorter notice than that
specified in subsection (2) of
this section, or in the company's
Regulations, be deemed to have
been duly called if it is so
agreed,
(a) in the case of a meeting
called as the annual general
meeting, by all the members
entitled to attend and vote
thereat; and
(b) in the case of any other
meeting, by a majority in number
of the members having a right to
attend and vote at the meeting,
being a majority holding not less
than ninety-five per centum of the
shares giving a right to attend
and vote at the meeting or, in the
case of a company limited by
guarantee, by a ninety-five per
centum majority in number of the
members:
Provided that where any members
are entitled to vote only on some
resolutions to be moved at the
meeting and not on others, those
members shall be taken into
account for the purposes of this
subsection in respect of the
former resolutions and not in
respect of the latter.
Section 153—Contents of Notice.
(1) The notice of a meeting shall
specify the place, date and hour
of the meeting, and the general
nature of the business to be
transacted thereat in sufficient
detail to enable those to whom it
is given to decide whether to
attend or not; and where the
meeting is to consider a special
resolution shall set out the terms
of the resolution.
(2) In the case of notice of an
annual general meeting, a
statement that the purpose is to
transact the ordinary business of
an annual general meeting shall be
deemed to be a sufficient
specification that the business
is,
(a) to declare a dividend;
(b) consideration of the accounts
and reports of the directors and
auditors;
(c) the election of directors in
the place of those retiring;
(d) the fixing of the remuneration
of the auditors; and
(e) if the requirements of
sections 135 and 185 are duly
complied with, the removal and
election of auditors and
directors.
(3) No business may be transacted
at any general meeting unless
notice of it has been duly given.
(4) In every case in which a
member is entitled, pursuant to
section 163 of this Code, to
appoint a proxy to attend and vote
instead of him, the notice shall
contain with reasonable
prominence, a statement that the
member has the right to appoint a
proxy to attend and vote instead
of him and that the proxy need not
be a member of the company; and if
default is made in complying with
this subsection as respects any
meeting, every officer of the
company who is in default shall be
liable to a fine not exceeding
fifty pounds.
Section 154—Persons Entitled to
Notice.
The following persons shall be
entitled to receive notice of
general meetings, namely,
(a) every member;
(b) every person upon whom the
ownership of a share devolves by
reason of his being a legal
personal representative, receiver
or a trustee in bankruptcy of a
member;
(c) every director of the company;
(d) every auditor for the time
being of the company.
Section 155—Service of Notice.
(1) Notice may be given by the
company to any member or director
either personally or by sending it
through the post addressed to him
at his registered address, or by
leaving it for him with some
person apparently over the age of
sixteen years at such address.
(2) Notice may be given to the
joint holders of a share by giving
the notice to the joint holder
named first in the register of
members in respect of the share.
(3) Notice may be given to a
person upon whom ownership of a
share has devolved by reason of
his being a legal personal
representative, receiver or
trustee in bankruptcy of a member
either personally or by sending it
through the post addressed to him
by name, or by the title of
representatives of the deceased or
receiver or trustee of the
bankrupt, or by any like
description, at the address, if
any, supplied for the purpose by
such person, or by leaving it for
him with some person apparently
over the age of sixteen years at
such address, or, until such
address has been supplied, by
giving the notice in any manner in
which the same might have been
given if the death, receivership
or bankruptcy had not occurred.
(4) Where a notice is sent by
post, service shall be deemed to
be effected by properly
addressing, pre-paying, and
posting a letter containing the
notice and to have been effected
at the expiration of forty-eight
hours after the letter containing
the same is posted.
(5) The letter need not be
registered but where it is sent to
an address outside Ghana it shall
be despatched by air mail.
Section 156—Accidental Failure to
give Notice.
The accidental omission to give
notice of a meeting to, or the
non-receipt of notice of a meeting
by, any person entitled to receive
notice shall not invalidate the
proceedings at that meeting.
Section 157—Circulation of
Members' Resolutions and
Supporting Circulars.
(1) A company shall at its own
expense, on the request in writing
of any member entitled to attend
and vote at a general meeting,
include in the notice of that
general meeting notice of any
resolution which may properly be
moved and is intended to be moved
at that meeting and, at the like
request, include with such notice
a statement of not more than five
hundred words with respect to the
matter referred to in the proposed
resolution or any other business
to be dealt with at that meeting:
Provided that if the proposed
resolution is not passed at that
meeting the same resolution or one
substantially to the same effect
shall not be moved at any general
meeting within three years
thereafter, unless the directors
shall otherwise agree or unless
the request within three years is
supported in writing by members of
the company representing between
them not less than one-twentieth
of the total voting rights of all
the members having at the date of
the request a right to vote on the
resolution to which the request
relates.
(2) A company shall not be bound
to give notice of any such
resolution or to circulate such
statement unless the written
request or requests, signed by the
member or members concerned,
together with the resolution and
statement, are deposited at the
registered office of the company
not less than six weeks before the
meeting:
Provided that if, after such
documents have been deposited, a
general meeting is called for a
date six weeks or less thereafter,
the documents shall be deemed to
have been properly deposited.
Section 158—Circulation of
Members Circulars.
(1) A company shall, at the
request in writing of any member
entitled to attend and vote at the
general meeting but, unless the
company otherwise resolves, at the
expense of that member, circulate
to members of the company a
statement of not more than one
thousand words with respect to any
business to be dealt with at that
meeting.
(2) The statement shall be
circulated to members of the
company in any manner permitted
for service of notice of the
meeting and, so far as
practicable, at the same time as
notice of the meeting, or, if that
is impracticable, as soon as
possible thereafter.
(3) A company shall not be bound
to circulate such statement
unless,
(a) the written request, signed by
the member concerned, together
with the statement, is deposited
at the registered office of the
company not less than ten days
before the meeting;
(b) there is also deposited with
the request a sum reasonably
sufficient to meet the company's
expenses in giving effect thereto.
Section 159—General Provisions
Affecting Sections 157 and 158.
(1) A company shall not be bound
under either section 157 or 158 of
this Code to circulate any
resolution or statement if, on the
application either of the company
or of any other person who claims
to be aggrieved, the Court is
satisfied that the rights
conferred by those sections are
being abused to secure needless
publicity for defamatory matter;
and the Court may order the
company's costs on an application
under this section to be paid in
whole or in part by the member
making the request,
notwithstanding that he is not a
party to the application.
(2) In the event of any default in
complying with section 157 or 158
of this Code, every officer of the
company who is in default shall be
liable to a fine not exceeding
fifty pounds.
Section 160—Attendance at
Meetings.
Notwithstanding any contrary
provision in the company's
Regulations the following persons
shall be entitled to attend any
general meeting of the company,
namely,
(a) every member of the company;
(b) every director of the company;
(c) the secretary of the company;
and
(d) every auditor for the time
being of the company;
Provided that,
(a) if the company's Regulations
so provide a member shall not be
entitled to attend unless all
calls or other sums presently
payable by him in respect of
shares in the company have been
paid;
(b) any member who is holder of
preference shares only shall not
be entitled to attend if his right
to do so is validly suspended in
accordance with section 49 of this
Code;
(c) nothing herein contained shall
be deemed to preclude other
persons from attending any general
meeting with the permission of the
chairman thereof.
Section 161—Quorums.
(1) No business shall be
transacted at any general meeting
unless a quorum of members is
present at the time when the
meeting proceeds to discuss that
business; but provided that a
quorum is then present the meeting
may validly proceed with that
business notwithstanding that a
quorum is not present throughout:
Provided that where any members
present are entitled to vote only
on some resolutions and not on
others such members shall be
counted towards a quorum in
respect of the former resolutions
but not in respect of the latter.
(2) Unless otherwise provided in
the company's Regulations, the
following shall constitute a
quorum, that is to say,
(a) if the company has only one
member, that member present in
person or, where proxies are
allowed, by proxy;
(b) in any other case two members
present in person or, where
proxies are allowed, by proxy, or
one member so present holding
shares representing more than
fifty per centum of the total
voting rights of all the members
having a right to vote at the
meeting.
(3) Unless otherwise provided in
the company's Regulations, if a
quorum is not present within half
an hour after the time appointed
for the meeting, the meeting if
convened upon the requisition of
members in accordance with section
271 or 297 of this Code, shall be
dissolved, and in any other case
shall stand adjourned to the same
day, in the next week at the same
time and place or to such other
day, place and time as the
directors may determine, and if at
the adjourned meeting a quorum is
not present within half an hour
after the time appointed the
member or members present shall
constitute a quorum.
(4) Where the meeting is adjourned
to the same day, place and time in
the following week no notice need
be given; otherwise notice of the
adjourned meeting shall be
published in at least one daily
newspaper circulating in the
district in which is situated the
registered office of the company.
(5) Provided that a quorum is
present the meeting shall be
deemed to be duly conducted
notwithstanding that only one
member or one proxy is present.
Section 162—Power of Court to
Order Meeting.
(1) If for any reason it is
impracticable to call a meeting of
a company in any manner in which
meetings of that company may be
called, or to conduct the meeting
of the company in the manner
prescribed by the Regulations of
this Code, the Court may, on the
application of any director or
member of the company, or of the
Registrar, order a meeting of the
company to be called, held and
conducted in such manner as the
Court thinks fit; and where any
such order is made may give such
ancillary or consequential
directions as it thinks expedient.
(2) Any meeting called, held and
conducted in accordance with an
order under the foregoing
subsection shall, for all
purposes, be deemed to be a
meeting of the company duly
called, held and conducted.
Section 163—Proxies.
(1) Any member of a company
entitled to attend and vote at a
meeting of the company shall be
entitled to appoint another
person, whether a member of the
company or not, as his proxy to
attend and vote instead of him and
such proxy shall have the same
rights as the member to speak at
the meeting:
Provided that unless the company's
Regulations shall otherwise
provide, this subsection shall not
apply in the case of a company
limited by guarantee.
(2) The instrument appointing the
proxy shall be in writing under
the hand of the appointor or his
agent duly authorised in writing
or, if the appointor is a body
corporate, either under seal or
under the hand of an officer or
agent duly authorised.
Second Sch.
(3) An instrument appointing a
proxy shall be in the form
prescribed by Table A in the
Second Schedule hereto or in such
form as the company's Regulations
may provide; but, notwithstanding
any provision in the company's
Regulations, an instrument in the
form prescribed by Table A shall
be sufficient.
(4) Unless the company's
Regulations shall otherwise
provide, the instrument appointing
a proxy and the power of attorney
or other authority, if any, under
which it is signed or a notarially
certified copy of that power or
authority shall be deposited at
the registered office of the
company or at such other place
within Ghana as specified in the
notice convening the meeting not
less than forty-eight hours before
the time for holding the meeting
or adjourned meeting or, in the
case of a poll, not less than
twenty-four hours before the time
appointed for the taking of the
poll, and in default the
instrument of proxy shall not be
treated as valid:
Provided that any provision
contained in a company's
Regulations shall be void in so
far as it would have the effect of
requiring the documents herein
referred to, to be deposited more
than forty-eight hours before the
time for holding the meeting or
adjourned meeting or, in the case
of a poll, more than twenty-four
hours before the time appointed
for taking the poll.
(5) Where instruments of proxy
have been deposited in accordance
with the immediately preceding
subsection, any person entitled,
in his own right or as proxy for
another member or members or
partly in one way and partly in
another, to more than ten per
centum of the total voting rights
of all members entitled to vote at
the meeting shall be entitled, at
any time during business hours
prior to the conclusion of the
meeting or the taking of the poll,
but subject to such reasonable
restrictions as the company may
impose, to inspect such deposited
instruments of proxy and the
original or copy powers of
attorney or other authority under
which they are signed.
(6) The appointment of a proxy
shall be terminated by the death
or insanity of the appointor or by
his revocation of the proxy or the
authority under which it was
executed; and the personal
attendance of a member at the
meeting or the later appointment
of another proxy in respect of the
same share shall be deemed to be
revocation:
Provided that a vote given in
accordance with the terms of an
instrument of proxy may be treated
by the company as valid
notwithstanding the termination or
revocation of the appointment so
long as no intimation in writing
of the termination or revocation
or of the events causing the same
shall have been received by the
company, at its registered office
or other place appointed for the
deposit of instruments of proxy,
before the commencement of the
meeting or adjourned meeting or
more than twenty-four hours before
a poll.
(7) If, for the purpose of any
meeting of a company, invitations
to appoint as proxy a person or
one of a number of persons
specified in the invitations are
issued at the company's expense,
then,
(a) such invitations shall be sent
to all members entitled to attend
and vote at the meeting;
(b) such invitations shall be
accompanied by forms for the
appointment of a proxy which shall
entitle the members to direct the
proxy to vote either for or
against each resolution;
(c) where instruments of proxy are
duly completed and returned in
accordance with the instructions
in the invitation and are not
revoked then,
(i)
it shall be the duty of the
chairman of the meeting to demand
a poll after any vote by show of
hands unless the result on the
show of hands is in accord with
the directions, if any, given in
all such instruments of proxy; and
(ii) on any poll the votes of the
members concerned shall be deemed
to be cast in accordance with the
directions, if any, in such
instruments of proxy
notwithstanding the absence,
abstention, or purported vote to
the contrary of the proxy.
(8) Where a member, not having
been invited so to do, requests
the company to issue him with a
form of appointment of proxy or a
list of persons willing to act as
proxy, the company may issue such
form or list to him without doing
so to all the other members
entitled to attend and vote; but
such form or list shall be
available on request in writing to
every such member and any forms of
appointment so issued shall comply
with paragraph (b) of subsection
(7) of this section and shall be
deemed to be an instrument of
proxy to which paragraph (c)
thereof applies.
(9) Every officer of the company
who knowingly authorises or
permits any breach or
non-observance of subsection (5),
(6), (7) or (8) of this section
shall be liable to a fine not
exceeding one hundred pounds and
in the event of a refusal to
permit inspection in accordance
with subsection (5) of this
section the Court may by order
compel an immediate inspection.
Section 164—Obtaining Proxies by
Misrepresentation.
(1) The vote of a proxy shall not
be rejected at a meeting on the
ground that the appointment of a
proxy was obtained by mis-representation.
(2) The Court may, on the
application of the company or any
member entitled to vote at the
meeting or the Registrar, annul
the appointment of a proxy if
satisfied that the appointment was
obtained by any material
misrepresentation of fact whether
made fraudulently or not.
(3) Where any such order is made
the Court may further order that
the holding of the meeting shall
be postponed until such date as
the Court may order and may give
such ancillary or consequential
directions as it thinks fit.
Section 165—Representation of
Corporations at Meetings.
(1) A body corporate, whether a
company within the meaning of this
Code or not, may, by resolution of
its directors or other governing
body, authorise such person as it
thinks fit to act as its
representative,
(a) if it is a member of a
company, at any meeting of the
company;
(b) if it is a creditor, including
a debentureholder, of a company,
at any meeting of any creditors of
the company held in pursuance of
this Code or of the Bodies
Corporate (Official Liquidations)
Act, 1963 (Act 180), or of any
rules made thereunder, or in
pursuance of the provisions
contained in any debenture or
trust deed, as the case may be.
(2) A person authorised as
aforesaid, upon production of a
copy of the resolution by which he
was authorised, shall be entitled
to exercise the same powers on
behalf of the body corporate which
he represents as that body
corporate could exercise if it
were an individual shareholder,
creditor, or holder of debentures
of that other company.
(3) This section shall not be
deemed to preclude any body
corporate from appointing a proxy
to attend and vote on its behalf.
Section 166—Chairman of Meetings.
(1) Unless otherwise provided in
the company's Regulations, the
chairman, if any, of the board of
directors shall preside as
chairman at every general meeting
of the company, or if there is no
such chairman or, if he shall not
be present within fifteen minutes
after the time appointed for
holding the meeting or is
unwilling to act, the directors
present shall elect one of their
number to be chairman of the
meeting, or, if no director is
present or willing to act, the
members present shall choose one
of their number to be chairman of
the meeting.
Section 167—Adjournments.
(1) The chairman may, with the
consent of any meeting at which a
quorum is present, and shall if so
directed by an ordinary resolution
passed at the meeting, adjourn the
meeting from time to time and from
place to place; but no business
shall be transacted at any
adjourned meeting other than the
business left unfinished at the
meeting from which the adjournment
took place and any additional
business of which due notice shall
be given as in the case of an
original meeting.
(2) When a meeting is adjourned
for thirty days or more, notice of
the adjourned meeting shall be
given as in the case of an
original meeting.
(3) Save as aforesaid and unless
the company's Regulations
otherwise provide, it shall not be
necessary to give notice of the
adjournment of any meeting at
which a quorum was present, or of
the business to be transacted at
the adjournment.
Section 168—Types of Resolution.
(1) A resolution shall be an
ordinary resolution when it has
been passed by a simple majority
of votes cast by such members of
the company as, being entitled so
to do, vote in person or, where
proxies are allowed, by proxy at a
general meeting.
(2) A resolution shall be a
special resolution when it has
been passed by not less than
three-fourths of the votes cast by
such members of the company as,
being entitled so to do, vote in
person or, where proxies are
allowed, by proxy at a general
meeting of which, notice
specifying the intention to
propose the resolution, as a
special resolution has been duly
given.
(3) A reference in this Code or in
any Regulations, debentures or
debenture trust deed to an
ordinary or special resolution of
a meeting of any class of
shareholders, creditors, or
debentureholders shall bear a like
meaning to that specified in
subsection (1) or (2) of this
section, as the case may be, with
the substitution of the members of
the class for the members of the
company.
Section 169—Amendments.
The terms of any resolution,
special or ordinary, before a
general meeting may be amended by
ordinary resolution moved at the
meeting provided that the terms of
the resolution as amended will
still be such that adequate notice
of the intention to pass the same
can be deemed to have been given
in accordance with section 153 of
this Code.
Section 170—Procedure on Voting.
(1) Unless the company's
Regulations shall otherwise
provide, a resolution put to the
vote of a meeting shall be decided
on a show of hands unless a poll
is, before or on the declaration
of the result of the show of
hands, demanded by,
(a) the chairman,
(b) at least three members present
in person or by proxy, or
(c) any member or members present
in person or by proxy and
representing not less than
one-twentieth of the total voting
rights of all the members having
the right to attend and vote on
the resolution:
Provided that any provision
contained in the company's
Regulations shall be void in so
far as it would have the effect,
(a) of excluding the right to
demand a poll on any question
other than the election of the
chairman or the adjournment of the
meeting; or
(b) of making ineffective a demand
for a poll on any such question
which is made by the persons
specified in any of paragraphs
(a), (b) or (c) of this
subsection.
(2) The demand for a poll may be
withdrawn.
(3) On a show of hands each member
who is personally present and
entitled to vote and each proxy
for any member entitled to vote
shall have one vote.
(4) Unless a poll is effectively
demanded, a declaration by the
chairman that a resolution has, on
a show of hands been carried, or
carried unanimously, or by a
particular majority, or lost, and
an entry to that effect in the
book containing the minutes of the
meeting shall be conclusive
evidence of the fact without proof
of the number or proportion of
votes recorded in favour of or
against such resolution.
(5) If a poll is effectively
demanded it shall be taken at such
time and in such manner as the
chairman shall direct.
(6) In lieu of directing that a
poll shall be taken of those
members present in person or by
proxy at the poll, the chairman
may direct that voting shall be by
postal ballot of all the members
entitled to attend and vote on the
resolution; and in that event,
ballot papers shall be served on
members entitled to attend and
vote on the resolution in the same
manner as notice of the meeting is
required to be given to them and
such members may cast their votes
either by personally completing
the ballot papers or by having the
same completed by any proxy of
theirs whose instrument of
appointment has been deposited, in
accordance with subsection (4) of
section 163 of this Code, not less
than twenty-four hours before the
time appointed for the closing of
the ballot.
(7) Notwithstanding subsection (5)
of this section, a postal ballot
in accordance with the immediately
preceding subsection shall be
directed by the chairman if,
(a) the company's Regulations so
provide; or
(b) on or after the chairman has
directed a poll, an ordinary
resolution in favour of a postal
ballot under this subsection is
moved at the meeting and passed on
a show of hands.
(8) For all the purposes of this
Code a postal ballot in accordance
with subsection (6) of this
section shall be deemed to be a
poll.
(9) Except as otherwise lawfully
provided in the company's
Regulations, on a poll each
shareholder entitled to vote
shall have one vote for each share
held by him and each member of a
company limited by guarantee shall
have one vote.
(10) On a poll a member entitled
to more than one vote, or a proxy
representing more than one member
or a member entitled to more than
one vote, need not, if he votes,
use all his votes or cast all the
votes he uses in the same way.
(11) Unless the company's
Regulations otherwise provide, in
the case of an equality of votes,
whether on a show of hands or a
poll, the chairman of the meeting
at which the show of hands takes
place or at which the poll is
demanded shall be entitled to a
second or casting vote.
Section 171—Voting by Joint
Holders.
In the case of joint holders the
vote of the senior who tenders a
vote, whether in person or by
proxy, shall be accepted, to the
exclusion of the votes of the
other joint holders; and for this
purpose seniority shall be
determined by the order in which
the names stand in the register of
members.
Section 172—Votes by Persons of
Unsound Mind.
A
member of unsound mind may vote,
whether on a show of hands or a
poll, by such person as may be
appointed for the purpose by the
Court and the person so appointed
may vote by proxy.
Section 173—Date of Passing of
Resolutions.
(1) Where a resolution is passed
at an adjourned meeting, the
resolution shall, for all
purposes, be deemed to have been
passed on the date on which it was
in fact passed at the adjourned
meeting.
(2) Where a resolution is passed
on a poll it shall for all
purposes be deemed to have been
passed on the day on which the
result of the poll is declared,
and not on any earlier day.
Section 174—Written Resolutions.
(1) Except as provided in
subsection (3) of this section, a
resolution in writing signed by
all the members for the time being
entitled to attend and vote on
such resolution at a general
meeting, or being bodies corporate
by their duly authorised
representatives, and, if the
company has only one such member
by that member, shall be as valid
and effective for all purposes as
if the same had been passed at a
general meeting of the company
duly convened and held; and if
described as a special resolution
shall be deemed to be a special
resolution within the meaning of
this Code.
(2) The resolution shall be deemed
to have been passed on the date on
which the same was signed by the
last member to sign, and where the
resolution states a date as being
the date of his signature thereof
by any member such statement shall
be prima facie evidence that it
was signed by that member on that
date.
(3) Subsections (1) and (2) of
this section shall not apply to a
resolution to remove an auditor,
which can be passed only at an
annual general meeting in
accordance with section 135 of
this Code, or to remove a
director, which can be passed only
at a general meeting in accordance
with section 185 of this Code.
Section 175—Application of
Sections 152 to 174 to Class
Meetings.
(1) Sections 152 to 174 of this
Code shall apply to meetings of
any class of members in like
manner as they apply to general
meetings of companies, but so that
the necessary quorum shall be as
set out in subsection (2) of this
section and that any member of the
class present in person or by
proxy may demand a poll.
(2) At any meeting of any class of
members the necessary quorum shall
be,
(a) if there are not more than two
members of that class, one member
present in person or by proxy;
(b) in any other case, two
members, present in person or by
proxy, holding not less than
one-third of the total voting
rights of that class:
Provided that the company's
Regulations may provide for a
larger, but not for a smaller
quorum.
Section 176—Registration of Copies
of Certain Resolutions.
(1) A certified true copy of every
special resolution of a general
meeting or of a class of members
and of every resolution to which a
specified proportion of a class of
members have consented in writing
and which would not have been
effective for its purpose, unless
such written consent had been
given, without the passing of a
special resolution, shall be
forwarded to the Registrar for
registration within twenty-eight
days after the passing or making
thereof.
(2) Such copy shall be printed,
typewritten, or in some other
legible form acceptable to the
Registrar.
(3) A copy of every special
resolution of a general meeting of
the company for the time being in
force shall be embodied in or
annexed to every copy of the
Regulations issued after the
passing of the resolution:
Provided that, where the sole
effect of the special resolution
is to amend the Regulations, this
subsection shall be sufficiently
complied with if every copy of the
Regulations issued thereafter
embodies the effect of the
amendment and refers to the date
of the passing of the special
resolution.
(4) If a company fails to comply
with this section the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five pounds for
each default.
Section 177—Minutes of General
Meetings.
(1) Every company shall cause
minutes of all proceedings of
general meetings and meetings of
any class of members to be entered
in a book or books kept for the
purpose.
(2) Any such minute, if purporting
to be signed by the chairman of
the meeting at which the
proceedings took place or of the
next succeeding meeting, shall be
prima facie evidence of the
proceedings.
(3) Where minutes have been made
in accordance with the provisions
of this section then, until the
contrary is proved, the meeting
shall be deemed to be duly held,
convened and conducted.
(4) If a company fails to comply
with subsection (1) of this
section the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding one hundred pounds.
Section 178—Inspection of Minute
Books.
(1) The books containing the
minutes of proceedings of every
general meeting or class meeting
of a company held after the
commencement of this Code, shall
be kept at the registered office
of the company and shall, during
business hours, subject to such
reasonable restrictions as the
company's Regulations may impose,
but so that not less than two
hours in each day, other than a
Saturday, Sunday or public
holiday, be allowed for
inspection, be open to the
inspection of any member without
charge.
(2) Any member shall be entitled
to be furnished, within ten days
after he has made a request in
that behalf to the company, with a
copy of any such minutes at a
charge not exceeding one shilling
for every hundred words.
(3) If any inspection required
under this section is refused or
if any copy required under this
section is not sent within the
proper time, the company and every
officer of the company who is in
default shall be liable in respect
of each offence to a fine not
exceeding five pounds for every
day during which the default
continues and the Court may, by
order, compel an immediate
inspection or furnishing of a
copy, as the case may be.
Part Q—Directors and Secretary
Section 179—Meaning of
"Directors."
(1) For the purposes of this Code
the expression "directors" means
those persons, by whatever name
called, who are appointed to
direct and administer the business
of the company.
(2) Any person, not being a duly
appointed director of a company,
(a) who shall hold himself out or
knowingly allow himself to be held
out as a director of that company,
or
(b) on whose directions or
instructions the duly appointed
directors are accustomed to act,
shall be subject to the same
duties and liabilities as if he
were a duly appointed director of
the company:
Provided that nothing in this
subsection contained shall be
deemed to derogate from the duties
or liabilities of the duly
appointed directors, including the
duty not to act on the directions
or instructions of any other
person.
(3) If any person, not being a
duly appointed director of a
company, shall hold himself out,
or knowingly allow himself to be
held out, as a director of the
company, or if the company shall
hold out such person, or knowingly
allow such person to hold himself
out, as a director of the company,
such person or the company as the
case may be, shall be liable to a
fine not exceeding one hundred
pounds.
(4) For the purposes of
subsections (2) and (3) of this
section a person who is described
as director of a company, whether
such description is qualified by
the word "local", "special",
"executive", or in any other way,
shall be deemed to be held out as
a director of that company.
Section 180—Number of Directors.
(1) Every company incorporated
after the commencement of this
Code shall have at least two
directors.
(2) Every company incorporated
prior to the commencement of this
Code shall, after the expiration
of six months from the
commencement of this Code, have at
least two directors.
(3) If at any time the number of
directors is less than two in
breach of either of the foregoing
subsections of this section and
the company continues to carry on
business for more than four weeks
thereafter, the company and every
director and member of the company
who is in default shall be liable
to a fine not exceeding five
pounds for every day during which
it so carries on business after
the expiration of such four weeks
without having at least two
directors; and every director and
member of the company who is
cognisant of the fact that it is
carrying on business with fewer
than two directors shall be
jointly and severally liable for
all the debts and liabilities of
the company incurred during that
time.
(4) Subject as aforesaid the
number of directors shall be fixed
by, or in accordance with, the
company's Regulations.
Section 181—Appointment of
Directors.
(1) No person shall be appointed a
director of a company unless he
shall prior to such appointment,
have consented in writing to be
appointed.
(2) The first directors of a
company shall be named in the
company's Regulations.
(3) Subject to the following
subsections of this section and to
sections 182 and 183 of this Code,
the appointment of directors shall
be regulated by the company's
Regulations and except as
otherwise provided in the
Regulations, section 272 of this
Code shall regulate the
appointment of directors of a
private company and sections 298
and 299 of this Code the
appointment of directors of a
public company.
(4) The Regulations of a company
may provide for the appointment of
a director or directors by any
class of shareholders,
debentureholders, creditors,
employees or any other person.
(5) Notwithstanding any provision
in the company's Regulations, any
casual vacancy in the number of
directors may be filled by,
(a) the continuing directors or
director notwithstanding that
their number may have been reduced
below that fixed as the necessary
quorum of directors; or
(b) by an ordinary resolution of
the company in general meeting:
Provided that,
(a) in exercising their power to
fill such vacancy the directors
shall observe the rules laid down
in sections 203 and 204 of this
Code and shall not appoint any
person to be a director unless
they have taken reasonable steps
to satisfy themselves that he is a
person of integrity and suitable
to be a director of the company;
(b) if the casual vacancy so
filled is one which, under the
terms of the company's
Regulations, should be filled by
an appointment by any class of
shareholders, debentureholders,
creditors, employees, or other
person, the director appointed by
the continuing directors or by an
ordinary resolution of the company
in general meeting, as the case
may be, shall cease to hold office
so soon as any other director is
duly appointed in accordance with
the Regulations.
Section 182—Competence of
Directors.
(1) The following persons shall
not be competent to be appointed
or to act as directors of a
company, namely,
(a) an infant;
(b) any one found by a competent
court to be a person of unsound
mind;
(c) a body corporate;
(d) any one in respect of whom an
order shall have been made under
section 186 of this Code so long
as such order remains in force
unless leave to act as director
has been given by the Court in
accordance with that section;
(e) an undischarged bankrupt,
unless he shall have been granted
leave to act as director by the
Court by which he was adjudged
bankrupt.
(2) If any of the persons
specified in subsection (1) of
this section, other than a body
corporate, or person of unsound
mind, shall act as a director of
any company or knowingly allow
himself to be appointed a
director, he shall be liable on
conviction to imprisonment for a
term not exceeding five years or
to a fine not exceeding five
hundred pounds or to both such
imprisonment and fine; and if any
body corporate shall act as a
director or allow itself to be
appointed a director, the body
corporate and every officer
thereof who knowingly permitted it
so to act or to be appointed shall
be liable to a fine not exceeding
five hundred pounds.
(3) If any company shall appoint
any person as director in
contravention of this section the
company and every director of the
company who is in default shall be
liable to a fine not exceeding
five hundred pounds.
(4) The company's Regulations may
lawfully provide that classes of
persons additional to those
provided in subsection (1) of this
section shall be incompetent to be
directors of the company.
Section 183—Directors' Share
Qualification.
(1) Unless the company's
Regulations otherwise provide, a
director need not be a member of
the company or hold any shares
therein.
(2) Where the Regulations require
a director to hold a specified
share qualification, every
director shall obtain his
qualification within two months
after his appointment or such
shorter period as may be fixed by
the Regulations; and his office
shall be vacated if he shall fail
to do so, or if at any time after
the expiration of that period he
ceases to hold his qualification:
Provided that if the company
amends its Regulations so as to
introduce or increase the
requirement of a share
qualification every director
holding office at the date of such
alteration shall have two months
thereafter to obtain his
qualification and shall not vacate
office under this section unless
he fails to do so.
(3) A person vacating office under
this section shall be incapable
of being re-appointed a director
of the company until he has
obtained his qualification.
Section 184—Vacation of Office of
Director.
(1) The office of director shall
be vacated if the director becomes
incompetent to act as a director
by virtue of the provisions of
section 182 of this Code, or if he
ceases to hold office by virtue of
section 183 of this Code, or if he
resigns his office by notice in
writing to the company.
(2) The company's Regulations may
lawfully provide for the
termination or vacation of office
in circumstances additional to
those specified in the foregoing
subsection.
Section 185—Removal of Directors.
(1) Subject to the provisions of
section 300 of this Code and to
the following subsections, a
company may by ordinary resolution
at any general meeting remove from
office all or any of the directors
notwithstanding anything in its
Regulations or in any agreement
with any director.
(2) A resolution to remove any
director shall not be moved at any
general meeting unless notice of
the intention to move it has been
given to the company not less than
thirty-five days before the
meeting at which it is to be
moved:
Provided that if after notice of
the intention to move the
resolution is given to the
company, a meeting is called for a
date thirty-five days or less
after the notice has been given,
the notice shall be deemed to have
been properly given for the
purposes of this subsection.
(3) The company shall give its
members notice of such resolution
at the same time and in the same
manner as it gives notice of the
meeting or, if that is not
practicable, shall give them
notice thereof in the same manner
as notices of meetings are
required to be given not less than
twenty-one days before the
meeting.
(4) On receipt of notice of an
intended resolution to remove a
director under this section the
company shall forthwith send a
copy thereof to the director
concerned and such director,
whether or not he is a member of
the company, shall be entitled,
(a) to be heard on the resolution
at the meeting; and
(b) to send to the company a
written statement, copies of which
the company shall send with every
notice of the general meeting or,
if the statement is received too
late, shall forthwith circulate to
every person entitled under
section 154 of this Code to notice
of the meeting in the same manner
as notices of meetings are
required to be given:
Provided that the company need not
send or circulate such statement,
(a) if it is received by the
company less than seven days
before the meeting, or
(b) if the Court, on application
by the company or any other person
who claims to be aggrieved, so
orders upon being satisfied that
the statement is unreasonably long
or that the rights conferred by
this section are being abused to
secure needless publicity for
defamatory matter; and the Court
may order the costs of the
applicant to be paid in whole or
in part by the director
notwithstanding that he is not a
party to the application.
(5) Without prejudice to the
director's right to be heard
orally on such resolution, he may,
unless the Court shall have made
an order under the immediately
preceding subsection, also require
that the written statement by him
be read to the meeting.
(6) A vacancy created by the
removal of any director under this
section, if not filled at the
meeting at which he is removed,
may be filled as a casual vacancy
in accordance with section 181 of
this Code.
(7) Nothing in this section shall
be taken as depriving any director
who has a service agreement with
the company of any right to
compensation to which he may
lawfully be entitled under such
agreement on the termination of
his directorship or of any right
to damages if his removal from his
directorship constitutes a breach
of such service agreement.
Section 186—Restraining Fraudulent
Persons from Managing Companies.
(1) Where,
(a) a person is convicted on
indictment, whether in Ghana or
elsewhere, of any offence
involving fraud or dishonesty or
any offence in connection with the
promotion, formation or management
of a body corporate, or
(b) a person is adjudicated
bankrupt whether in Ghana or
elsewhere, or
(c) it appears that a person has
been guilty of any criminal
offence, whether convicted or not,
in relation to any body corporate
or of any fraud or breach of duty
in relation to a body corporate,
the Court, on its own motion or on
the application of any of the
persons referred to in subsection
(3) of this section, may order
that that person shall not,
without the leave of the Court, be
a director of or in any way,
whether directly or indirectly, be
concerned or take part in the
management of any company or act
as auditor, receiver or liquidator
of any company for such period as
may be specified in the order.
(2) An order under paragraph (a)
of subsection (1) of this section
may be made by any court in Ghana
before which the person is
convicted as well as by the High
Court.
(3) An application for an order
under this section may be made by
the Registrar or by the Official
Trustee, or by the trustee in
bankruptcy of the person concerned
or by the liquidator of any body
corporate.
(4) A person intending to apply
for the making of an order under
this section shall give not less
than twenty-eight days written
notice of his intention to the
person against whom the order is
sought, and to the Registrar if
the application is made by some
person other than the Registrar.
(5) On the hearing of any
application under this section the
applicant, the person against whom
the order is sought, the Registrar
and the Official Trustee may
appear, and give evidence and call
witnesses and draw the attention
of the Court to any relevant
matters.
(6) A person against whom an order
has been made under this section
who intends to apply for leave to
act as a director or in the
management of a company shall give
at least twenty-eight days written
notice of his intention to the
Registrar, and the Registrar, the
Official Trustee, and any person
on whose application the order was
made or who appeared at the
hearing at which the order was
made, may appear and give evidence
and call witnesses and draw the
attention of the Court to any
relevant matters.
(7) Where any order is made or
leave is granted under this
section, the Court making the
order or granting leave shall
forward a copy to the Registrar
who shall cause a summary thereof
to be published in the Gazette.
(8) The Registrar shall maintain a
register of orders made under this
section and shall enter therein
particulars of each order and of
any leave granted and such
register shall be open to the
inspection of any person on
payment of one shilling for each
inspection.
(9) If any person acts in
contravention of an order made
under this section he shall, in
respect of each offence, be liable
on conviction to imprisonment for
a term not exceeding two years or
to a fine not exceeding five
hundred pounds, or to both such
imprisonment and fine.
Section 187—Substitute Directors.
(1) Unless the company's
Regulations otherwise provide, a
company may appoint substitute
directors in accordance with the
provisions of this section.
(2) A substitute director is one
who is appointed to act as a
deputy for another named director
and as his substitute in his
absence.
(3) A substitute director shall
not be counted as a director for
the purposes of any provision in
this Code or the company's
Regulations prescribing a minimum
or maximum number of directors,
other than a provision relating to
a quorum, and shall not be
entitled to vote at any meeting of
directors or any committee of
directors at which the director
for whom he is substitute is
present.
(4) Except as provided by
subsection (3) of this section, a
substitute director shall be
deemed to be a full director of
the company for all purposes and
shall be appointed and may be
removed in the same way as
directors are required to be
appointed and removed, and shall
not cease to be a director by
reason of the fact that the
director for whom he is a
substitute ceases to be a
director.
Section 188—Alternate Directors.
(1) Unless prohibited by the
Regulations a director may, in
respect of any period not
exceeding six months in which he
is absent from Ghana or unable for
any reason to act as a director,
appoint another director or any
other person approved by a
resolution of the board of
directors, as an alternate
director.
(2) The appointment shall be in
writing signed by the appointor
and appointee and lodged with the
company.
(3) Every alternate director so
appointed shall, for the period of
such appointment, be deemed for
all purposes to be a director and
officer of the company and not the
agent of his appointor; but he
shall not be required to hold any
share qualification
notwithstanding that, under the
Regulations, directors may be so
required, nor shall he be entitled
to appoint an alternate director,
nor shall he be counted as a
director for the purposes of any
provision of this Code or the
Regulations relating to the
minimum or maximum number of
directors, other than a provision
relating to a quorum.
(4) The company shall not be
liable to pay additional
remuneration by reason of the
appointment of an alternate
director.
(5) The Regulations of the company
may provide that the alternate
director shall be entitled to
receive from the company during
the period of his appointment the
remuneration to which his
appointor, but for such
appointment, would have been
entitled and that his appointor
shall not be entitled to
remuneration for that period, but,
in absence of such provision in
the Regulations, the alternate
director shall not be entitled to
be remunerated otherwise than by
the director appointing him.
(6) An alternate director who is
himself a director shall have an
additional vote for each director
for whom he acts as alternate at
every meeting of the directors.
(7) The appointment of an
alternate director shall cease at
the expiration of the period for
which he was appointed, or if his
appointor gives written notice to
that effect to the company, or if
his appointor ceases for any
reason to be a director or if the
alternate director resigns by
notice in writing to the company.
(8) Until the cessation of the
appointment of an alternate
director both the appointor and
appointee shall be and may act as
directors of the company, but no
alternate, unless a director in
his own right, shall attend or
vote at any meeting of the
directors or any committee of
directors at which his appointor
is present.
Section 189—Presence of Directors
in Ghana.
(1) At least one director of every
company shall at all times be
present in Ghana.
(2) In the event of any wilful
breach of this section the company
and every director of the company
who is in default shall be liable
to a fine not exceeding five
pounds for every day during which
the default continues.
(3) The rights of the company
concerned under or arising out of
any contract made during such time
as there shall be no director of
the company present in Ghana shall
not be enforceable by action or
other legal proceedings:
Provided that,
(a) the company may apply to the
Court for relief against the
disability imposed by this
subsection and the Court, on being
satisfied that it is just and
equitable to grant relief, may
grant such relief either generally
or as respects any particular
contract and on such conditions as
the Court may impose;
(b) nothing herein contained shall
prejudice the rights of any other
parties as against the company, or
any other person in respect of
such contract;
(c) if any action or proceeding
shall be commenced by any other
party against the company to
enforce the rights of such party
in respect of such contract,
nothing herein contained shall
preclude the company from
enforcing in that action or
proceeding by way of counterclaim,
set off or otherwise, such rights
as it may have against that party
in respect of that contract.
Section 190—Secretary.
(1) Every company shall have a
secretary and if any company shall
carry on business for more than
six months without a secretary the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding
five pounds for each day that the
company continues to carry on
business without a secretary after
the expiration of such six months.
(2) Anything required or
authorised to be done by or to the
secretary may, if the office is
vacant or there is for any other
reason no secretary capable of
acting, be done by or to any
assistant or deputy secretary or
any officer of the company
appointed by the directors to be
acting secretary.
(3) Unless the Regulations shall
otherwise provide, the secretary
shall be appointed by the
directors for such term, at such
remuneration and upon such
conditions as they may think fit,
and may be removed by them,
subject however to his right to
claim damages from the company if
removed in breach of contract.
(4) The secretary may be a body
corporate.
Section 191—Avoidance of Acts in
dual Capacity as Director and
Secretary.
A
provision requiring or authorising
a thing to be done by or to a
director and the secretary shall
not be satisfied by its being done
by or to the same person acting
both as director and as, or in
place of, the secretary.
Section 192—Executive Directors.
Unless the company's Regulations
shall otherwise provide,
(a) a director may hold any other
office or place of profit under
the company, other than the office
of auditor, in conjunction with
the office of director;
(b) the directors may from time to
time appoint one or more of their
body to such other office for such
period and on such terms as they
may determine and, subject to the
terms of any agreement entered
into in any particular case, may
revoke such appointment;
(c) subject to compliance with
section 194 of this Code and
subject to the provisions of
section 195 of this Code, such
office may be remunerated by way
of salary, commission, share of
profits, participation in pension
and retirement schemes, or partly
in one way and partly in another,
as the directors may determine;
(d) in exercising their powers
hereunder the directors shall
observe the rules laid down in
sections 203 and 204 of this Code
and, in particular, in determining
the amount of remuneration shall
satisfy themselves that the amount
of the remuneration is reasonably
related to the value of the
services of the holder of the
office.
Section 193—Managing Directors.
Unless the Company's Regulations
shall otherwise provide,
(a) the directors may from time to
time appoint one or more of their
body to the office of managing
director and to any such
appointment the provisions of
section 192 of this Code shall
apply;
(b) the appointment of managing
director shall be automatically
determined if the holder of the
office ceases from any cause to be
a director and, unless the
agreement entered into in any
particular case shall otherwise
provide, such determination shall
not constitute a breach of this
contract with the company;
(c) the directors may entrust to
and confer upon a managing
director any of the powers
exercisable by them upon such
terms and with such restrictions
as they think fit, and either
collaterally with, or to the
exclusion of their own powers and,
subject to the terms of any
agreement entered into in any
particular case, may from time to
time revoke or vary all or any of
such powers.
Section 194—Remuneration of
Directors.
(1) Subject as hereinafter
provided in this section, the fees
and other remuneration payable to
the directors in whatsoever
capacity, shall be determined from
time to time by ordinary
resolution of the company, and not
by any provision in the
Regulations or in any agreement,
which provision shall be null and
void.
(2) The fees payable to the
directors as such shall be
determined from time to time by
ordinary resolution of the company
and not in any other way:
Provided that where the
Regulations of an existing company
contain any provision fixing the
fees payable to the directors such
provision shall continue in
operation and have effect until
the date of the first annual
general meeting of the company
held next after the commencement
of this Code.
(3) Unless otherwise resolved, the
fees payable to directors shall be
deemed to accrue from day-to-day
and the directors shall also be
entitled to be paid all travelling
and other expenses properly
incurred by them in attending and
returning from meetings of the
directors or any committee of the
directors or general meeting of
the company or otherwise in
connection with the business of
the company.
(4) Where any director holds any
other office or place of profit
under the company in accordance
with section 192 or 193 of this
Code, the terms of his appointment
may provide for his remuneration
in respect thereof but he shall
not be entitled to any
remuneration additional to the
fees to which he is entitled as
director unless and until the
terms of his appointment to such
office have been approved by
ordinary resolution of the
company:
Provided that where any director
holds any such office or place of
profit under an appointment made
prior to the sixth day of April,
1961 and the terms of his
appointment contain provisions
relating to his remuneration, such
provisions, although not approved
by ordinary resolution of the
company, shall continue in
operation and have effect,
(a) if the appointment is for a
fixed term, not determinable by
the company or on the director
ceasing to be a director, until
the expiration of that fixed
period or the earlier
determination of the appointment;
(b) in any other case, until the
date of the first annual general
meeting of the company held next
after the commencement of this
Code, or the earlier determination
of the appointment.
Section 195—Prohibition of
Tax-free Payments.
(1) It shall not be lawful for a
company to pay a director or
secretary of the company
remuneration free of income tax or
otherwise calculated by reference
to or varying with the amount of
his income tax except under a
contract which was in force prior
to the sixth day of April, 1961
and provides expressly, and not by
reference to the company's
Regulations, for payment of
remuneration as aforesaid.
(2) Any provision contained in a
company's Regulations, or in any
resolution of a company or of a
company's directors, or in any
contract, other than such a
contract as is excepted from the
provisions of subsection (1) of
this section, for payment of
remuneration as aforesaid shall
have effect as if it provided for
payment, as a gross sum, subject
to income tax, of the net sum for
which it actually provides.
(3) This section shall not apply
to remuneration due before the
commencement of this Code or in
respect of a period before the
commencement of this Code.
Section 196—Register of Directors
and Secretary.
(1) Every company shall keep at
its registered office a register
of its directors including
substitute directors appointed in
accordance with section 187 of
this Code but excluding alternate
directors appointed in accordance
with section 188 of this Code, and
secretaries.
(2) The register shall contain the
following particulars with respect
to each director, namely,
(a) his present forenames and
surname;
(b) any former forename or
surname;
(c) his usual residential address;
(d) his business occupation, if
any; and
(e) particulars of any other
directorships, other than
alternate directorships held by
him.
(3) The register shall contain the
following particulars with respect
to the secretary or, where there
are joint secretaries, with
respect to each of them, namely,
(a) in the case of an individual,
the particulars required by
paragraphs (a) to (d) of the
immediately preceding subsection;
(b) in the case of a body
corporate, its corporate name and
registered or principal office:
Provided that when all the
partners in a firm are joint
secretaries the name and principal
office of the firm may be stated
instead of the residential address
of each partner.
(4) The register shall during
business hours, subject to such
reasonable restrictions as the
company may by its Regulations
impose so that not less than two
hours in each day, other than
Saturdays, Sundays and public
holidays, be allowed for
inspection, be open to the
inspection of any member of the
company without charge and any
other person on payment of one
shilling, or such less sum as the
company may prescribe, for each
inspection.
(5) If any inspection required
under this section is refused or
if default is made in complying
with subsection (1), (2) or (3) of
this section, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding one hundred
pounds, and in the case of any
such refusal the Court may by
order compel an immediate
inspection of the register.
(6) For the purposes of this
section and sections 197 and 198
of this Code,
(a) in the case of a person
usually known by a title different
from his surname, the expression
"surname" means that title;
(b) references to a former name do
not include,
(i)
in the case of a person usually
known by a title, the name by
which he was known prior to his
succession to that title;
(ii) a name changed or disused
before the person bearing the name
attained the age of eighteen years
or changed or disused for a period
of not less than twenty years;
(iii) in the case of a married
woman, the name by which she was
known prior to the marriage.
Section 197—Registration of
Particulars of Directors and
Secretaries.
(1) Every existing company shall,
within twenty-eight days after the
commencement of this Code, send to
the Registrar for registration a
return in the prescribed form
containing the particulars
specified in the register referred
to in section 196 of this Code.
(2) Every company incorporated
after the commencement of this
Code shall include the particulars
specified in the said register in
the statement required to be sent
to the Registrar in accordance
with section 27 of this Code.
(3) Every company shall, within
twenty-eight days of any change
occurring among its directors or
in its secretary or in any of the
particulars contained in the
register, other than those
required under paragraph (e) of
subsection (2) of section 196 of
this Code, send to the Registrar
for registration notification in
the prescribed form of the change,
specifying the date of the change.
(4) If default is made in
complying with subsection (1) or
(3) of this section, the company
and every officer of the company
who is in default shall be liable
to a fine not exceeding five
pounds for every day during which
the default continues.
(5) A director or secretary who
resigns his office shall be deemed
to be in default unless
notification of his resignation is
duly given to the Registrar in
accordance with subsection (3) of
this section.
Section 198—Publication of Names
of Directors.
(1) Every company shall in all
trade circulars and business
letters on or in which the
company's name appears state in
legible characters with respect to
every director, including
substitute directors appointed in
accordance with section 187 of
this Code but excluding alternate
directors appointed in accordance
with section 188 of this Code,
(a) his present forenames and
surname,
(b) any former forenames or
surname:
Provided that, if special
circumstances exist which render
it in the opinion of the Registrar
expedient that such an exemption
should be granted, the Registrar
may by legislative instrument
grant, subject to such conditions
as may be specified in the
instrument, exemption from the
obligations imposed by this
section in respect of any company.
(2) If a company makes default in
complying with this section, the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding
five pounds for each offence.
Section 199—Prohibition of
Assignment of Offices.
A
provision in the Regulations of
any company or in any agreement
purporting to empower a director
or other officer to assign his
office to another person and any
purported assignment of the office
shall be void.
Section 200—Proceedings of
Directors.
Subject to any contrary provisions
in the Regulations,
(a) the directors may meet
together in Ghana or elsewhere for
the dispatch of business, adjourn
and otherwise regulate their
meetings as they think fit, and
may delegate any of their powers
to committees consisting of such
member or members of their body as
they think fit; but any committee
so formed shall in the exercise of
the powers so delegated conform to
any regulations that may be
imposed on them by the directors;
(b) any director may, and the
secretary on the requisition of a
director shall, at any time summon
a meeting of directors, and any
director being a member of a
committee may, and the secretary
on the requisition of any such
director shall, at any time summon
a meeting of the committee;
(c) it shall not be necessary to
give notice of a meeting of
directors or of a committee of
directors to any director for the
time being absent from Ghana;
(d) the quorum necessary for the
transaction of business of the
directors and of every committee
of directors may be fixed by the
directors and unless so fixed
shall be two, or, in the case of a
one-man committee one;
(e) except as provided in
paragraph (f) of this section no
business shall be transacted in
the absence of a quorum
notwithstanding that a quorum was
present at the commencement of the
meeting;
(f) the continuing directors may
act notwithstanding any vacancy in
their body but, if and so long as
their number is reduced below the
number fixed as the necessary
quorum, the continuing directors
or director may act for four weeks
after the number is so reduced,
but thereafter may act only for
the purpose of increasing their
number to that number or of
summoning a general meeting of the
company and for no other purpose;
(g) the directors and any
committee of directors may elect a
chairman of their meetings and
determine the period for which he
is to hold office, but if no such
chairman is elected, or if at any
meeting the chairman is not
present within five minutes after
the time appointed for holding the
same, those present may choose one
of their number to be chairman of
the meeting;
(h) questions arising at any
meeting of the directors or any
committee of directors shall be
decided by a majority of votes and
in the case of an equality of
votes the chairman shall have a
second or casting vote;
(i)
attendance and voting by proxy
shall not be permitted at meetings
of directors or committees of
directors;
(j) a resolution in writing,
signed by all the directors for
the time being entitled to receive
notice of a meeting of the
directors, or of a committee of
directors, shall be as valid and
effectual as if it had been passed
at a meeting of the directors or a
committee of directors duly
convened and held.
Section 201—Minutes of Directors'
Meetings.
(1) Every company shall cause
minutes of all proceedings of
meetings of its directors and any
committee of directors to be
entered in a book or books kept
for the purpose.
(2) Any such minutes, if
purporting to be signed by the
chairman of the meeting at which
the proceedings took place or of
the next succeeding meeting, shall
be prima facie evidence of the
proceedings.
(3) Where minutes have been made
in accordance with the provisions
of this section then, until the
contrary is proved, the meeting
shall be deemed to be duly
convened, held and conducted and
all appointments of directors
shall be deemed to be valid.
(4) If a company fails to comply
with subsection (1) of this
section the company and every
officer of the company who is in
`default shall be liable to a fine
not exceeding one hundred pounds.
Section 202—Limitations on the
Powers of the Directors.
(1) Notwithstanding subsection (3)
of section 137 of this Code or any
provision in the company's
Regulations, the directors of a
company with shares shall not,
without the approval of an
ordinary resolution of the
company,
(a) sell, lease or otherwise
dispose of the whole, or
substantially the whole, of the
undertaking or of the assets of
the company;
(b) issue any new or unissued
shares, other than treasury
shares, in the company unless the
same shall first have been offered
on the same terms and conditions
to all the existing shareholders
or to all the holders of the
shares of the class or classes
being issued in proportion as
nearly as may be to their existing
holdings;
(c) make voluntary contributions
to any charitable or other funds,
other than pension funds for the
benefit of employees of the
company or any associated company,
of any amounts the aggregate of
which will, in any financial year
of the company, exceed one
thousand pounds or two per centum
of the income surplus of the
company at the end of the
immediately preceding financial
year, whichever is the greater:
Provided that,
(a) no resolution of the company
shall be effective as approving of
such transaction as is referred to
in paragraph (a) of this
subsection unless it authorises in
terms the specific transaction
proposed by the directors;
(b) no resolution of the company
shall be effective as approving of
such a transaction as is referred
to in paragraph (b) of this
subsection if passed more than one
year before the issue of the said
shares unless such issue is in
accordance with a scheme for the
time being in force relating to
the issue of shares to or for the
benefit of persons bona fide in
the employment of the company or
any of its associated companies.
(1a) Paragraph (b) of the proviso
to subsection (1) of this section
shall not apply to a public
company some or all of whose
equity shares are dealt in on an
approved stock exchange; [As
inserted by the Companies Code
(Amendment) Act, 1994 (Act 474) s.
2(a)].
(2) Notwithstanding any provisions
of this Code or in the company's
Regulations or in any resolution
of the company in general meeting,
no new or unissued shares or
treasury shares shall be issued to
any director or past director of
the company or of any associated
company or to his nominee or to
any body corporate controlled by
him unless the shares shall first
have been offered on the same
terms and conditions to all the
existing shareholders or to all
the holders of the shares of the
class or classes being issued in
proportion to their existing
holdings or, in the case of a
public company, to members of the
public.
(2a) Subsection (2) of this
section may be disapplied with the
approval of an ordinary resolution
of a public company some or all of
whose equity shares are dealt in
on an approved stock exchange or
in respect of which application
has been made to an approved stock
exchange for permission to deal in
such shares. [As inserted by the
Companies Code (Amendment) Act,
1994 (Act 474) s. 2(b)].
(3) For the purposes of the
immediately preceding subsection a
body corporate shall be deemed to
be controlled by a director if
such body corporate or its
directors are accustomed to act in
accordance with the directions or
instructions of such director or
his nominee or if at a general
meeting of such body corporate
such director or his nominee is
entitled to exercise or control
the exercise of one-third or more
of the voting power.
(4) Nothing in the foregoing
subsections of this section shall
prohibit,
(a) the issue of any shares under
a bona fide underwriting
agreement; or
(b) the issue to a director at a
fair price payable in cash of such
shares, if any, as, under the
Regulations of the company, he is
required to hold by way of share
qualification.
(5) Unless the company's
Regulations shall otherwise
provide the directors of a company
with shares shall not, without the
approval of an ordinary resolution
of the company, exercise the
company's power to borrow money or
to charge any of its assets where
the moneys to be borrowed or
secured, together with the amount
remaining undischarged of moneys
already borrowed or secured, apart
from temporary loans obtained from
the company's bankers in the
ordinary course of business, will
exceed the stated capital for the
time being of the company.
(6) No person dealing with the
company in good faith or
registering any disposition of, or
title to, property shall be
concerned to see whether the
conditions of this section have
been fulfilled and the provisions
of sections 139 to 143 of this
Code shall apply to any
transactions of the type referred
to in this section notwithstanding
that such conditions have not been
fulfilled.
Section 203—Duties of Directors.
(1) A director of a company stands
in a fiduciary relationship
towards the company and shall
observe the utmost good faith
towards the company in any
transaction with it or on its
behalf.
(2) A director shall act at all
times in what he believes to be
the best interests of the company
as a whole so as to preserve its
assets, further its business, and
promote the purposes for which it
was formed, and in such manner as
a faithful, diligent, careful and
ordinarily skilful director would
act in the circumstances.
(3) In considering whether a
particular transaction or course
of action is in the best interests
of the company as a whole a
director may have regard to the
interests of the employees, as
well as the members, of the
company, and, when appointed by,
or as representative of, a special
class of members, employees, or
creditors may give special, but
not exclusive, consideration to
the interests of that class.
(4) No provision, whether
contained in the Regulations of a
company, or in any contract, or in
any resolution of a company shall
relieve any director from the duty
to act in accordance with this
section or relieve him from any
liability incurred as a result of
any breach thereof.
Section 204—Exercise of Directors'
Powers.
The directors shall not, without
the approval of an ordinary
resolution of the company, exceed
the powers conferred upon them by
this Code and the company's
Regulations or exercise such
powers for a purpose different
from that for which such powers
were conferred notwithstanding
that they may believe such
exercise to be in the best
interests of the company.
Section 205—Conflicts of Duty and
Interest.
Notwithstanding any provision in
the company's Regulations, a
director shall not, without the
consent of the company in
accordance with section 206 of
this Code, place himself in a
position in which his duty to the
company conflicts or may conflict
with his personal interests or his
duties to other persons, and in
particular, without such consent a
director shall not,
(a) use for his own advantage any
money or property of the company
or any confidential information or
special knowledge obtained by him
in his capacity as director;
(b) be interested directly or
indirectly, otherwise than merely
as a shareholder or
debentureholder in a public
company, in any business which
competes with that of the company;
or
(c) be personally interested,
directly or indirectly, in any
contract or other transaction
entered into by the company except
as provided by section 207 of this
Code.
Section 206—Consent of Company.
(1) For the purposes of section
205 of this Code the company shall
not be deemed to have consented
unless, after full disclosure of
all material facts, including the
nature and extent of any interests
of the directors, the transaction
concerned shall have been
specifically authorised by an
ordinary resolution of the company
which shall either have been
agreed to by all the members of
the company entitled to attend and
vote at a general meeting or have
been passed at a general meeting
at which neither the director
concerned nor the holders of any
shares in which he is beneficially
interested, either directly or
indirectly, shall have voted as
members on such resolution.
(2) Consent in accordance with
subsection (1) of this section may
be given either before or after
the occurrence of the transaction
to which it relates:
Provided that a resolution of the
company ratifying a transaction or
series of related transactions
which has already taken place
shall not be effective for the
purposes of such subsection unless
it was passed not later than
fifteen months after the date when
the transaction or first of such
transactions took place.
Section 207—Contracts in which
Directors are Interested.
(1) Unless otherwise provided in
the company's Regulations, a
director, notwithstanding section
205 of this Code, shall be
entitled to enter into a contract
with the company and, subject to
compliance with section 203 of
this Code and with subsections (2)
to (7) of this section, such
contract or any other contract by
the company in which any director
is in any way interested shall not
be liable to be avoided nor shall
any director be liable to account
for any profit made thereby by
reason of such director holding
that office or of the fiduciary
relationship thereby established.
(2) Every director who is in any
way, whether directly or
indirectly, materially interested
in any contract or proposed
contract entered into or to be
entered into by or on behalf of
the company shall declare the
nature and extent of his interest
at a meeting of the directors of
the company.
(3) In the case of a proposed
contract the declaration required
by this section to be made by a
director shall be made at the
meeting of the directors at which
the question of entering into the
contract is first taken into
consideration or, if the director
was not at the date of that
meeting interested in the proposed
contract, at the next meeting
after he became so interested, and
in a case where the director
becomes interested in a contract
after it is made the said
declaration shall be made at the
first meeting of the directors
held after the director becomes so
interested.
(4) For the purposes of this
section, a general notice in
writing given to the directors of
the company by a director to the
effect that he is a member of a
specified company or firm and is
to be regarded as interested in
any contract which may, after the
date of the notice, be made with
that company or firm, shall be
deemed to be a sufficient
declaration of interest in
relation to any contract or
proposed contract so made or to be
made:
Provided that,
(a) there is stated in the said
notice the nature and extent of
the interest of the director in
such company or firm;
(b) at the time the question of
confirming or entering into any
contract is first taken into
consideration the extent of his
interest in such company or firm
is not greater than is stated in
the notice;
(c) no such general notice shall
be of any effect unless either it
is given at a meeting of the
directors, or the director giving
the notice takes all reasonable
steps to secure that it is brought
up and read at the next meeting of
directors after it is given;
(d) such a general notice shall
not be effective for more than
twelve months but may from time to
time be renewed.
(5) A director of the company
shall not enter into any contract
on its behalf in which he or, to
his knowledge, any director of the
company or any associated company
is in any way materially
interested, whether directly or
indirectly, until a resolution has
been passed by the directors
approving thereof.
(6) In the case of any proposed
contract in which such officer is
himself interested he shall, prior
to the passing of the approving
resolution, declare the nature and
extent of his interest therein at
a meeting of directors or by
written notice given to the
directors.
(7) A director shall not vote in
respect of any contract or
arrangement in which he is
materially interested and if he
shall do so his vote shall not be
counted, nor shall he be counted
in the quorum required for that
business, but neither of these
prohibitions shall apply to,
(a) any arrangement for giving any
director any security and
indemnity in respect of money lent
by him to or obligations
undertaken by him for the benefit
of the company; or
(b) any arrangement for the giving
by the company of any security to
a third party in respect of a debt
or obligation of the company for
which the director himself has
assumed responsibility in whole or
in part under a guarantee or
indemnity or by the deposit of a
security; or
(c) any contract by a director to
subscribe for or underwrite shares
or debentures of the company.
(8) A copy of every declaration
made and notice given in pursuance
of this section shall, within
three days after the making or
giving thereof, be entered in a
book kept for this purpose.
(9) Such book shall be open for
inspection without charge by any
director, secretary, auditor or
member of the company at the
registered office of the company
and shall be produced at every
general meeting of the company,
and at any meeting of the
directors if any director so
requests in sufficient time to
enable the book to be available at
the meeting.
(10) Any director who fails to
comply with any of the provisions
of this section and any officer
who fails to comply with
subsections (5) and (6) of this
section shall be liable to a fine
not exceeding one hundred pounds.
(11) If a company fails to comply
with subsections (8) and (9) of
this section the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding one hundred pounds
and if any inspection or
production required thereunder is
refused the Court may by order
compel an immediate inspection or
production.
(12) For the purpose of this
section an interest merely as
holder of debentures, or of not
more than two per centum of the
shares or any class of shares, of
a public company shall not be
deemed to be a material interest.
Section 208—Directors Acting
Professionally.
Unless otherwise provided in the
company's Regulations, any
director may, notwithstanding
section 205 of this Code, act by
himself or his firm in a
professional capacity for the
company, except as auditor, and he
or his firm shall be entitled to
proper remuneration for
professional services as if he
were not a director.
Section 209—Civil Liabilities for
Breach of Duty.
If a director commits any breach
of his duties under sections 203
to 205 of this Code,
(a) the director and any other
person who knowingly participated
in the breach shall be liable to
compensate the company for any
loss it suffers as a result of
such breach;
(b) the director shall account to
the company for any profit made by
him as a result of such breach;
and
(c) any contract or other
transaction entered into between
the director and the company in
breach of such duties may be
rescinded by the company.
Section 210—Legal Proceedings to
Enforce Liabilities.
(1) Proceedings to enforce the
liabilities referred to in the
immediately preceding section or
to restrain a threatened breach of
any duty under sections 203 to 205
of this Code or to recover from
any director of the company any
property of the company may be
instituted by the company or by
any member of the company.
(2) Proceedings may be instituted
by the company on the authority of
the board of directors or of any
receiver and manager or liquidator
of the company, or of an ordinary
resolution of the company which
shall either have been agreed to
by all the members of the company
entitled to attend and vote at a
general meeting or have been
passed at a general meeting.
(3) At such general meeting
neither the proposed defendants
nor the holders of any shares in
which they or any of them are
beneficially interested shall vote
on such resolution and if they do
vote their votes shall not be
counted.
(4) After an investigation of the
affairs of the company,
proceedings may, pursuant to
section 225 of this Code, also be
instituted in the name of the
company by the Registrar.
(5) Where proceedings are
instituted by a member he shall
sue in a representative capacity
on behalf of himself and all other
members, except any that are
defendants to the action, and
shall join the company as a
defendant; and to any such
representative action the
provisions of section 324 of this
Code shall apply.
(6) The Court, on the application
of any defendant, may stay
proceedings by such member if
satisfied that, in all the
circumstances, including his
participation in the transaction
complained of and the
circumstances in which he became a
member, it is inequitable that he
should be allowed to have the
conduct of the action, and may, if
it shall think fit order such
member to give security for
payment of the costs of the
defendants and may direct that the
action or any part of it shall be
heard in chambers.
(7) No period of limitation shall
apply to any proceedings under
this section, but in any such
proceedings the Court may relieve
a director from liability in whole
or in part and on such terms as it
thinks fit if, in all the
circumstances including lapse of
time, the Court thinks it
equitable so to do.
(8) In any proceedings under this
section the Court shall have power
when justice so requires, to order
that any sum found to be payable
by any defendant shall be
restored, in whole or in part, to
members or former members of the
company instead of to the company
itself; and in that event the
Court may order that the necessary
enquiries shall be made to
ascertain the identity of the
members and former members
concerned and may give such
consequential directions as may be
necessary or expedient.
(9) No proceedings under this
section shall be dismissed,
settled or compromised without the
approval of the Court after notice
of the proposed dismissal,
settlement or compromise has been
given to all members of the
company and to the Registrar in
such manner as the Court directs.
(10) Within the time prescribed by
such notice any member of the
company and the Registrar may
appear and call the attention of
the Court to any matters which
seem relevant and may give
evidence and call witnesses.
(11) If the Court shall not
approve the dismissal or
compromise it may give the conduct
of the action to any member
willing to continue the same, or
to the Registrar in the name of
the company, making such
consequential orders regarding the
parties to the action or otherwise
as may be necessary or expedient.
Section 211—Payments to Directors
for Loss of Office or on Transfer
of the Company's Undertaking.
(1) It shall not be lawful for a
company to make to any director or
former director of the company or
any associated company any payment
by way of compensation for loss of
any office in the company or any
associated company, or as
consideration for or in connection
with his retirement from office,
without particulars with respect
to the proposed payment, including
the amount thereof, being
disclosed to the members of the
company and the proposal being
approved by an ordinary resolution
of the company agreed to or passed
in the manner provided by section
206 of this Code.
(2) It shall not be lawful for any
payment to be made, whether by the
company or otherwise, to any
director or former director of a
company in connection with the
transfer of the whole or any part
of the undertaking or property of
the company or any associated
company, whether such payment is
expressed to be by way of
compensation for loss of office or
otherwise, unless particulars with
respect to the proposed payment,
including the amount thereof have
been disclosed to the members of
the company and the proposal
approved by an ordinary resolution
of the company agreed to or passed
in the manner provided by section
206 of this Code.
(3) If any payment shall be made
in contravention of this section
the amount thereof shall be deemed
to be money of the company used by
a director for his own advantage
within the meaning of section 205
of this Code.
Section 212—Payments to Directors
in Connection with Takeover Bids.
(1) Where an offer is made for the
acquisition of any shares of a
company on the terms that the same
is available for acceptance,
(a) by all the shareholders of the
company or by all the holders of
shares of the class to which the
offer relates, or
(b) by the holders of shares
which, together with any shares
already owned beneficially by the
person making the offer or by any
body corporate in which he is the
controlling shareholder, confer
the right to exercise or control
the exercise of not less than
one-third of the voting power at
any general meeting of the
company,
and in connection with such an
offer it is proposed that a
payment shall be made or a payment
has been made to any director or
former director of the company or
any associated company, over and
above the receipt by him in
respect of any shares in the
company held by him of the same
price as may be receivable by
other holders of the shares of the
same class, it shall be the duty
of that director to take all
reasonable steps to secure that
particulars of the payment are
included in or sent with any
notice of the offer made for their
shares which is given to any
shareholders.
(2) If,
(a) any such director fails to
take reasonable steps as
aforesaid, or
(b) any person who has been
properly required by any such
director to include the said
particulars in or send them with
any such notice fails to do so,
he shall be liable to a fine not
exceeding fifty pounds.
(3) Unless,
(a) the requirements of subsection
(1) of this section are complied
with, and
(b) the making of the payment is,
before the transfer of any shares
in pursuance of the offer,
approved by an ordinary
resolution,
(i)
agreed to by all the holders of
the shares to which the offer
relates, or
(ii) passed at a meeting, summoned
for the purpose by notice
complying with subsection (5) of
this section, of such holders at
which neither the director
concerned nor the holders of any
shares in which he is beneficially
interested, either directly or
indirectly, shall have voted on
such resolution,
such payment shall be distributed
in the manner provided by the next
succeeding subsection.
(4) Where a payment is to be
distributed in accordance with the
provisions of the immediately
foregoing subsection, the person
making or proposing to make such
payment and the director or former
director to whom it is made or
proposed to be made shall be
jointly and severally liable to
distribute the same among any
persons who have sold their shares
as a result of the offer in
proportion to the number of shares
sold by them, and if any director
or former director shall receive
any such payment he shall hold the
same on trust for such persons:
Provided that,
(a) the expenses incurred in
distributing such payment shall be
borne by the persons liable to
make the distribution and not
retained out of the payment;
(b) if, in proceedings instituted
prior to the expiration of three
months from the first transfer of
any shares in pursuance of the
offer, the Court shall award or
approve the payment of damages to
such director or former director
for breach of any valid service
agreement, the amount of any such
damages, but not of any costs or
expenses incurred in connection
with such proceedings, shall be
paid to or retained by the
director or former director out of
such payment and only the balance
thereof, if any, shall be
distributable as aforesaid.
(5) The notice of any general
meeting summoned for the purposes
of subsection (3) of this section
shall be convened, held and
conducted as nearly as may be in
accordance with the provisions of
this Code and the company's
Regulations relating to general
meetings of the company, and the
notices convening the meeting
shall state that if the resolution
approving the payment is not
passed the payment will be
distributable among the persons
who have sold their shares in
pursuance of the offer except to
the extent that the Court may
award or approve the payment to
the director or former director
concerned of damages for breach of
a valid service agreement.
(6) It shall not be lawful for
such an offer as is referred to in
subsection (1) of this section to
be made conditional upon approval
of a payment or proposed payment
to any director or former director
and, if an offer is expressed to
be made subject to such a
condition, the condition shall be
void and of no effect.
(7) For the purposes of paragraph
(b) of subsection (1) of this
section,
(a) when the offer is made by a
body corporate, shares shall be
deemed to be owned beneficially by
such body corporate if they are
owned beneficially by it or by any
of its associated companies or by
any controlling shareholders of
it; and
(b) a person shall be deemed to be
a controlling shareholder of a
body corporate if such body
corporate or its directors are
accustomed to act in accordance
with the directions or instruction
of such person or his nominee or
if, at a general meeting of such
body corporate, such person is
entitled to exercise or control
the exercise of one-third or more
of the voting power.
Section 213—Provisions
Supplemental to Sections 211 and
212.
(1) For the purposes of sections
211 and 212 of this Code and of
this section the expression
"payment" includes any benefit or
advantage whether in cash or in
kind.
(2) sections 211 and 212 of this
Code shall not render unlawful or
apply to the payment of damages
awarded or approved by any
competent court for breach of any
valid service agreement or the
bona fide payment of any pension
or superannuation benefit in
respect of past services in
accordance with a valid service
agreement.
(3) For the purposes of subsection
(4) of section 212 of this Code
and the immediately preceding
subsection, a service agreement
shall not be deemed to be valid if
it shall have been entered into in
contemplation of such a transfer
as is referred to in subsection
(2) of section 211 of this Code or
of such an offer as is referred to
in subsection (1) of section 212
of this Code, and unless the
contrary is proved the service
agreement shall be deemed to have
been entered into in contemplation
of such transfer or offer if it is
made within one year before or
contemporaneously with, or at any
time after the date of the
agreement to transfer or the
making of the offer.
(4) For the purposes of sections
211 and 212 of this Code if,
(a) any payment, not being
remuneration properly payable in
accordance with section 194 of
this Code, is received by a
director or former director within
a period of one year before, or
two years after the date of the
agreement to make such transfer as
is referred to in subsection (2)
of section 211 of this Code or of
the date of making such an offer
as is referred to in subsection
(1) of section 212 of this Code,
and
(b) the company or the person to
whom such transfer or by whom such
offer was made was privy to the
making of the payment,
such payment shall be deemed to
have been received by him in
connection with the transfer or
offer unless he proves that the
payment would have been received
by him whether or not the transfer
or offer had been made.
Section 214—Duties of Directors in
Connection with Sales or Purchases
of the Company's Securities.
(1) If a director of a company,
having acquired as such director
any special information which may
substantially affect the value of
the shares or debentures of the
company or any associated company,
shall buy or sell any such shares
or debentures without disclosing
such information to the seller or
purchaser thereof, the purchase or
sale shall be voidable at the
option of the seller or purchaser
within twelve months after the
date of the agreement to sell or
buy.
(2) For the purposes of this
section any shares or debentures
bought or sold shall be deemed to
have been bought or sold by a
director if his interest therein
is such as to require recording in
relation to him in the register to
be maintained in accordance with
section 215 of this Code, unless
it is proved that the sale or
purchase was not made by him or on
his instructions or advice or on
the instructions or advice of any
other person to whom he had
imparted any special information
affecting the value of the shares
or debentures obtained by him in
his capacity of director.
(3) This section shall not
prejudice the right of the company
to proceed against any director
for breach of section 205 of this
Code.
Section 215—Register of Directors'
Holdings.
(1) Every company shall keep a
register showing, as respects each
director of the company, the
number and description and, in the
case of debentures, the amount, of
any shares in or debentures of the
company or any associated company
of which he is the holder or in
which he has, directly or
indirectly, any beneficial
interest or right to acquire, or
of which he has an option to buy
or sell:
Provided that the register need
not include shares in any body
corporate which is the wholly
owned subsidiary of another body
corporate.
(2) The nature and extent of a
director's interest in any shares
or debentures recorded in relation
to him in the said register shall,
if he so requires, be indicated in
the register.
(3) Where any shares or debentures
fail to be or cease to be recorded
in the said register in relation
to any director by reason of a
transaction entered into after the
commencement of this Code and
while he is a director, the
register shall also show the date
of, and price or other
consideration for the transaction;
and where there is an interval
between the agreement for any such
transaction and the completion
thereof, the date shown shall be
that of the agreement.
(4) The register shall be kept at
the same place as the register of
members maintained in accordance
with section 32 of this Code, and
shall be open to inspection during
business hours, subject to such
reasonable restrictions as the
company's Regulations may impose
but so that not less than two
hours in each day, other than
Saturdays, Sundays and public
holidays, be allowed for
inspection, by any member or
debentureholder or any former
member or debentureholder or by
the auditor of the company or by
the Registrar.
(5) The register shall also be
produced at the commencement of
any general meeting of the company
and remain open and accessible
during the continuance of the
meeting to any person attending
the meeting.
(6) It shall be the duty of any
director of the company to give
notice to the company of such
matters relating to himself as may
be necessary for the purposes of
complying with subsections (1) and
(3) of this section.
(7) Any such notice shall be in
writing and shall be given within
twenty-eight days after the
commencement of this Code and
within twenty-eight days after the
occurrence of any transaction
occurring thereafter which
requires recording.
(8) If the notice is not given at
a meeting of directors, the
director giving it shall take
reasonable steps to secure that it
is brought up and read at the next
meeting of directors after it is
given.
(9) If default is made in
complying with subsections (6),
(7) and (8) of this section, the
director concerned shall be liable
to a fine not exceeding one
hundred pounds for each default.
(10) If default is made in
complying with subsection (1),
(3), (4) or (5) of this section
the company and every officer of
the company who is in default
shall be liable to a fine not
exceeding one hundred pounds and
if any inspection required under
subsections (4) and (5) is refused
the Court may by order compel an
immediate inspection of the
register.
(11) The company shall not, by
virtue of anything done for the
purposes of this section, be
affected with notice of, or put
upon enquiry as to, the right of
any person in relation to any
shares and debentures.
(12) For the purposes of this
section a director shall be deemed
to be beneficially interested in
shares or debentures if a body
corporate holds them or has any
right in or over them and that
body corporate or its directors
are accustomed to act in
accordance with his directions or
instructions, or he is entitled to
exercise or control the exercise
of one-third or more of the voting
power at any general meeting of
that body corporate.
Section 216—General Saving of
Existing Law Relating to Officers.
The rights, duties and liabilities
of officers and agents of
companies shall continue to be
governed by the rules of the
common law and equity relating to
principal and agent and master and
servant save in so far as such
rules are inconsistent with the
express provisions of this Code.
Part R—Protection against Illegal
or Oppressive Action
Section 217—Injunction or
Declaration in the Event of
Illegal or Irregular Activity.
(1) The Court on the application
of any member may by injunction
restrain the company from doing
any act or entering into any
transaction which is illegal or
beyond the power or capacity of
the company or which infringes any
provision of its Regulations, or
from acting on any resolution not
properly passed in accordance with
this Code and the company's
Regulations, and may declare any
such act, transaction or
resolution already done, entered
into, or passed to be void and of
no effect:
Provided that,
(a) nothing in this section
contained shall derogate from the
protection afforded by any
provision of this Code to any
person dealing with the company;
(b) in relation to acts beyond the
capacity or power of the company,
this section shall be subject and
without prejudice to the
provisions of section 25 of this
Code;
(c) the right afforded to a member
to apply to the Court under this
section shall be without prejudice
to any right he may have to
institute proceedings against any
director of the company pursuant
to section 210 or to apply to the
Court under section 218 of this
Code.
(2) In any proceedings by a member
under this section the Court may,
if it shall think fit, order that
the member shall give security for
the costs of the company and may
direct that the application shall
be heard in chambers.
Section 218—Remedy Against
Oppression.
(1) Any member or debentureholder
of a company or, in a case falling
within section 225 of this Code,
the Registrar may apply to the
Court for an order under this
section on the ground
(a) that the affairs of the
company are being conducted or the
powers of the directors are being
conducted or the powers of the
directors are being exercised in a
manner oppressive to one or more
of the members or debentureholders
or in disregard of his or their
proper interests as members,
shareholders, officers, or
debentureholders of the company;
or
(b) that some act of the company
has been done or is threatened or
that some resolution of the
members, debentureholders or any
class of them has been passed or
is proposed which unfairly
discriminates against, or is
otherwise unfairly prejudicial to,
one or more of the members or
debentureholders.
(2) If on such application the
Court is of opinion that either of
such grounds is established, the
Court may, with a view to bringing
to an end or remedying the matters
complained of, make such order as
it thinks fit: and, without
prejudice to the generality of the
foregoing may by order,
(a) direct or prohibit any act or
cancel or vary any transaction or
resolution; or
(b) regulate the conduct of the
company's affairs in future; or
(c) provide for the purchase of
the shares or debentures of any
members or debentureholders of the
company by other members or
debentureholders of the company or
by the company itself and in the
case of purchase of shares by the
company without regard to the
limitations imposed by sections 59
to 63, other than subsections (4)
and (5) of section 59 of this
Code.
(3) Where an order under this
section makes any alteration in or
addition to any of the company's
Regulations then, notwithstanding
anything in any other provision of
this Code but subject to any
provisions of the order, the
company shall not have power
without the leave of the Court to
make any further alteration in or
addition to the Regulations
inconsistent with the provisions
or the order.
(4) An office copy of any order
under this section altering or
adding to the company's
Regulations shall, within
twenty-eight days after the making
thereof, be delivered by the
company to the Registrar for
registration; and if a company
makes default in complying with
this subsection the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding one hundred
pounds.
(5) On any application under this
section by a member or
debentureholder of the company the
Court, if it thinks fit, may order
the application to give security
for the costs of the company and
may direct that the application
shall be heard in chambers.
Section 219—Enquiries by the
Registrar.
(1) In order to ensure that the
provisions of sections 123 to 133
of this Code (relating to the
maintenance and auditing of
accounts) are being duly complied
with the Registrar may by written
order call on any company to
produce for his inspection all or
any of the books of the company.
(2) Where it appears to the
Registrar that there are
circumstances suggesting in
relation to any company,
(a) that any provisions of this
Code are not being complied with,
or
(b) that any document which the
company is required to send to him
under the provisions of this Code
does not disclose a full and fair
statement of the matters to which
it purports to relate, or
(c) that the business of the
company is being conducted with
intent to defraud its creditors or
the creditors of any other person
or otherwise for a fraudulent or
unlawful purpose or that the
business of the company is being
conducted or the powers of the
directors are being exercised in a
manner oppressive to some part of
the members or debentureholders or
in disregard of their proper
interests as members,
shareholders, officers or
debentureholders, or
(d) that persons concerned with
its formation or the management of
its affairs have in connection
therewith been guilty of a breach
of duty towards it or its members,
or
(e) that the members of the
company have not been given all
the information with respect to
its affairs that they might
reasonably expect,
the Registrar may by written order
call on the company to produce for
his inspection all or any of the
books of the company or to furnish
in writing such information or
explanation as he may specify in
his order.
(3) Where the Registrar makes an
order under subsection (1) or (2)
of this section the company shall
comply with the same within such
time as may be specified in the
order and all persons who are or
have been officers of the company
shall, so far as lies within their
power, produce such books or
furnish such information or
explanation.
(4) If the company shall make
default in complying with
subsection (3) of this section the
company and any officer of the
company who is in default shall be
liable to a fine not exceeding one
hundred pounds and if any officer
or former officer of the company
shall make default in complying
with the said subsection (3) he
shall likewise be liable to a fine
not exceeding one hundred pounds.
(5) Unless the books, information,
or explanations produced or given
to the Registrar in accordance
with the provisions of this
section satisfy the Registrar that
further action is not needed, he
shall either proceed in accordance
with section 225 of this Code or
report the circumstances in
writing to the Court.
(6) Nothing in this section shall
require any company licensed under
section 24 of the Companies
Ordinance (Cap. 193) or any
statutory re-enactment or
modifications thereof, to carry on
banking business to produce its
books containing details of the
accounts with it of its banking
customers.
Section 220—Appointment of
Inspector under Order of the
Court.
(1) The Court may order the
Registrar to appoint one or more
competent inspectors to
investigate the affairs of a
company and to report thereon to
the Registrar in such manner as
the Court directs,
(a) upon a report by the Registrar
after enquiries by him in
accordance with section 219 of
this Code;
(b) upon the application of the
Registrar; or
(c) upon the application of not
less than one hundred members or
of members holding not less than
one-tenth of the issued shares or
of members being not less than
one-tenth in number of the total
members.
(2) When the application is made
under paragraph (c) of the
foregoing subsection,
(a) the application shall be
supported by such evidence as the
Court may require for the purpose
of showing that the applicants
have good reason for requiring the
investigation; and the Court may,
before ordering the appointment of
an inspector, require the
applicants to give security to an
amount not exceeding two hundred
pounds for payment of the costs of
the investigation;
(b) at least fourteen days'
previous notice of the application
shall be given to the Registrar
who shall be entitled to be
represented at the hearing and to
give evidence and call witnesses.
(3) Any application under this
section shall be heard in chambers
and at least fourteen days'
previous notice thereof shall be
given to the company which shall
be entitled to be represented at
the hearing and to give evidence
and call witnesses.
Section 221—Appointment of
Inspector on Special Resolution of
the Company.
The Registrar shall appoint one or
more competent inspectors to
investigate the affairs of a
company and to report thereon to
the Registrar in such manner as
the Registrar shall direct if the
company by special resolution
declares that its affairs ought to
be investigated by an inspector
appointed by the Registrar.
Section 222—Power to Carry
Investigation into the Affairs of
Associated Companies.
If an inspector appointed under
either of the two last foregoing
sections to investigate the
affairs of a company thinks it
necessary for the purposes of his
investigation to investigate also
the affairs to any other body
corporate which is or has at any
relevant time been the company's
associated company, he shall have
power so to do, and shall report
on the affairs of the other body
corporate so far as he thinks the
results of his investigation
thereof are relevant to the
investigation of the affairs of
the first-mentioned company.
Section 223—Production of
Documents and Evidence.
(1) It shall be the duty of all
officers and agents of the company
and of all officers and agents of
any other body corporate whose
affairs are investigated by virtue
of the immediately preceding
section to produce to the
inspectors all books and documents
of or relating to the company or,
as the case may be, the other body
corporate which are in their
custody or power and otherwise to
give to the inspectors all
assistance in connection with the
investigation which they are
reasonably able to give.
(2) An inspector may examine on
oath the officers and agents of
the company or other body
corporate in relation to its
business and may administer an
oath accordingly.
(3) If any officer or agent of the
company or other body corporate,
(a) destroys or refuses to produce
to the inspectors any book or
document which it is his duty
under this section so to produce,
or
(b) refuses to answer any question
which is put to him by the
inspectors with respect to the
affairs of the company or other
body corporate, as the case may
be,
the inspectors may certify the
facts in writing to the Court, and
the Court may thereupon inquire
into the case, and after hearing
any witnesses who may be produced
against or on behalf of the
alleged offender and after hearing
any statement which may be offered
in defence punish the offender in
like manner as if he had been
guilty of contempt of the Court.
(4) If an inspector thinks it
necessary for the purposes of his
investigation that a person whom
he has no power to examine on oath
should be so examined, he may
apply to the Court and the Court
may, if it sees fit, order that
person to attend and be examined
on oath before it on any matter
relevant to the investigation; and
on any such examination,
(a) the inspector may take part
therein either personally or by a
legal practitioner;
(b) the Court may put such
questions to the person examined
as the Court thinks fit;
(c) the person examined shall
answer all such questions as the
Court may put or allow to be put
to him, but may at his own cost
employ a legal practitioner, who
shall be at liberty to put to him
such questions as the Court may
deem just for the purpose of
enabling him to explain or qualify
any answers given by him;
and notes of the examination shall
be taken down in writing, and
shall be read over to or by, and
signed by, the person examined,
and may thereafter be used in
evidence against him:
Provided that, notwithstanding
anything in paragraph (c) of this
subsection, the Court may allow
the person examined such costs as
in its discretion it may think
fit, and any costs so allowed
shall be paid as part of the
expenses of the investigation.
(5) In this section, any reference
to officers or to agents shall
include past, as well as present,
officers or agents, as the case
may be, and for the purposes of
this section the expression
"agents", in relation to a company
or other body corporate shall
include the bankers or legal
practitioners of the company or
other body corporate and any
persons employed by the company or
other body corporate as auditors.
Section 224—Inspectors' Report.
(1) The inspectors may, and, if so
directed by the Registrar, shall,
make interim reports to the
Registrar, and on the conclusion
of the investigation shall make a
final report to the Registrar.
(2) Any such report shall be
written or printed, as the
Registrar directs.
(3) The Registrar shall, unless in
his opinion it is undesirable in
the public interest,
(a) forward a copy of any report
made by the inspectors to the
registered office of the company;
(b) furnish a copy thereof on
request and on payment of a
reasonable charge, to any other
person who is a member of the
company or of any other body
corporate dealt with in the report
by virtue of section 222 of this
Code, or whose interests as a
creditor of the company or of any
such other body corporate as
aforesaid appear to the Registrar
to be affected;
(c) where the inspectors are
appointed under section 220 of
this Code, furnish a copy to the
Court; and
(d) where the inspectors are
appointed under paragraph (c) of
subsection (1) of section 220 of
this Code, furnish, at the request
of the applicants for the
investigation, a copy to them;
and may also cause the report to
be printed and published.
(4) A copy of any such report
authenticated by the seal of the
Registrar shall be admissible in
any legal proceedings as evidence
of the opinion of the inspectors
in relation to any matter
contained in the report.
Section 225—Proceedings after
Investigations.
If as a result of any information
obtained in accordance with
section 219 of this Code or as a
result of any report made under
the immediately preceding section,
it appears to the Registrar that,
(a) any person may have been
guilty of an offence for which he
is criminally liable, the
Registrar shall refer the matter
to the Attorney-General who, if he
considers that the case is one in
which a prosecution ought to be
instituted, shall institute
proceedings accordingly;
(b) any company ought to be wound
up or that an application should
be made to the Court under section
218 of this Code, the Registrar
may petition the Court to wind up
the company, if it thinks it just
and equitable to do so, or may
apply to the Court under such
section 218;
(c) proceedings ought in the
public interest to be brought by
any company against any director
or former director of any company
under section 210 of this Code or
against any person to recover
property, damages or compensation
to which any body corporate is
entitled, the Registrar may
himself bring proceedings for that
purpose in the name of the company
or body corporate but, subject to
section 226 of this Code, shall
indemnify the company or body
corporate against any costs or
expenses incurred by it in
connection with such proceedings.
Section 226—Expenses of
Investigations.
(1) The expenses of, and
incidental to, an investigation by
the Registrar under section 219 of
this Code or by inspectors
appointed by the Registrar under
section 220 or 221 of this Code
shall be defrayed in the first
instance by the Registrar out of
moneys provided by Parliament, but
the following persons shall, to
the extent mentioned, be liable to
repay the Registrar, that is to
say,
(a) any person who is convicted on
a prosecution instituted by virtue
of paragraph (a) of section 225 of
this Code or who is ordered to
restore property or pay damages or
compensation in proceedings
brought by virtue of paragraph (c)
of section 225 of this Code may in
the same proceedings be ordered to
pay the said expenses to such
extent as may be specified in the
order;
(b) any body corporate in whose
name proceedings are brought by
virtue of paragraph (c) of section
225 of this Code shall be liable
to the amount or value of any sums
or property recovered by it as a
result of those proceedings, and
the expenses shall be a first
charge on such sums or property;
(c) any body corporate dealt with
by the report of any inspector
appointed under section 220 or 221
of this Code and the applicants,
other than the Registrar, for the
investigation where the inspector
was appointed under section 220 of
this Code shall be liable to such
extent, if any, as the Registrar
shall direct.
(2) The report of any inspector
may, if he thinks fit, and shall
if the Registrar so directs,
include a recommendation as to the
directions, if any, which he
thinks appropriate to be given
under paragraph (c) of the
preceding subsection.
(3) For the purposes of this
section any costs or expenses
incurred by the Registrar in
connection with proceedings
brought under paragraph (b) or (c)
of section 225 of this Code shall
be treated as expenses of the
investigation giving rise to the
proceedings.
(4) As between the persons
specified in paragraphs (a), (b)
and (c) of subsection (1) of this
section, liability to repay the
Registrar shall be borne, to the
extent to which they are
respectively liable under such
paragraphs, in the first instance
by those liable under paragraph
(a), then by those liable under
paragraph (b), and finally by
those liable under paragraph (c).
Section 227—Power to require
Information as to Persons
Interested in Shares or
Debentures.
(1) Where it appears to the
Registrar that there is good
reason to investigate the
ownership of any shares in or
debentures of a company or where
the directors of a company so
request in writing he may himself
carry out such investigation or by
written order appoint one or more
inspectors to carry out such
investigation in manner
hereinafter appearing. [As amended
by the the Companies Code
(Amendment) Act 1994 (Act 474)
s.3]
(2) The Registrar or any inspector
appointed by him may require any
person whom he has reasonable
cause to believe,
(a) to be or to have been
interested in those shares or
debentures, or
(b) to act or to have acted in
relation to those shares or
debentures as the agent or adviser
of someone interested therein,
to give him any information which
such person has or can reasonably
be expected to obtain as to the
present and past interests in
those shares or debentures and the
names and addresses of the persons
interested and of any persons who
act or have acted on their behalf
in relation to the shares and
debentures.
(3) For the purposes of this
section a person shall be deemed
to have an interest in a share or
debenture if he has any right to
acquire or dispose of the share or
debenture or any interest therein
or to vote in respect thereof, or
if his consent is necessary for
the exercise of any of the rights
of other persons interested
therein, or if other persons
interested therein can be required
or are accustomed to exercise
their rights in accordance with
his instructions.
(4) Any person who fails to give
any information required of him
under this section, or who in
giving any such information makes
any statement which is false in
any material particular shall be
liable to imprisonment for a term
not exceeding six months or to a
fine not exceeding five hundred
pounds or to both, unless, in the
case of a false statement, he
proves that he believed on
reasonable grounds that such
statement was true.
(5) Where it appears to the
Registrar that there is difficulty
in finding out the relevant facts
about any such shares or
debentures, whether issued or to
be issued, and that the difficulty
is due wholly or mainly to the
unwillingness of the persons
concerned or any of them to give
accurate information as required
by this section, the Registrar may
by order direct that the shares or
debentures shall, until further
order, be subject to the
restrictions imposed by the next
succeeding subsection.
(6) So long as any shares or
debentures are directed to be
subject to the restrictions
imposed by such direction as is
referred to in the immediately
preceding subsection,
(a) any transfer of those shares
or debentures or of the right to
be issued therewith and any issue
thereof shall be void;
(b) no voting rights shall be
exercisable in respect thereof;
(c) no further shares or
debentures shall be issued in
right of those shares or
debentures or in pursuance of an
offer made to the holders thereof;
(d) except in a liquidation, no
payment shall be made of any sums
due from the company on those
shares or debentures.
(7) Where the Registrar makes an
order directing that shares or
debentures shall be subject to the
said restrictions, or refuses to
make an order directing that they
shall cease to be subject thereto,
any person having any interest in
such shares or debentures may
apply to the Court and the Court
may, if it sees fit, direct that
the shares or debentures shall
cease to be subject to the said
restrictions or any of them.
(8) Any person who,
(a) exercises or purports to
exercise any right to dispose
either of any shares or debentures
which, to his knowledge, are for
the time being subject to the said
restrictions or any of them, or of
any right to be issued with any
such shares or debentures, or
(b) votes, whether as holder or
proxy, or appoints a proxy to vote
in respect of any shares or
debentures which, to his
knowledge, are for the time being
subject to the restriction that no
voting rights shall be exercisable
in respect thereof, or
(c) being the holder of any shares
or debentures fails to notify of
the said restrictions any other
holder or proxy for any holder
whom he does not know to be aware
thereof,
shall be liable to imprisonment
for a term not exceeding six
months or to a fine not exceeding
five hundred pounds or to both,
and where shares or debentures in
any company are issued in
contravention of the said
restrictions, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five hundred
pounds.
(9) A prosecution shall not be
instituted under the immediately
preceding subsection except by, or
with the consent of, the
Attorney-General.
(10) Where an inspector has been
appointed to carry out an
investigation under this section
he shall report in writing to the
Registrar on the result of his
investigation.
(11) The Registrar may, in his
discretion,
(a) cause to be furnished to such
person or persons as he shall
think fit a copy of such report as
is referred to in the immediately
preceding subsection or of part or
parts thereof and may cause the
same or any parts thereof to be
printed and published;
(b) may divulge to such person or
persons as he shall think fit any
information obtained by him as a
result of his or the inspector's
investigation and may cause any
such information to be published.
(12) The expenses of any
investigation under this section
shall be defrayed by the Registrar
out of moneys provided by
Parliament.
Section 228—Saving for Legal
Practitioners and Bankers.
Nothing in section 219 to 227 of
this Code shall require disclosure
to the Registrar or to any
inspector appointed by him,
(a) by a legal practitioner of any
privileged communication made to
him in that capacity except as
regards the name and address of
his client;
(b) by the bankers of any body
corporate in their capacity as
bankers of such body corporate of
any information as to the affairs
of any of their customers other
than such body corporate.
Part S—Arrangements and
Amalgamations.
Section 229—Meaning of
"Arrangement" and "Amalgamation".
In this Code,
(a) the expression "arrangement"
means any change in the rights or
liabilities of members,
debentureholders or creditors of a
company or any class thereof or in
the Regulations of a company,
other than a change effected under
any of the foregoing sections of
this Code or by the unanimous
agreement of all the parties
affected thereby;
(b) the expression "amalgamation"
means any merger of the
undertakings or any part of the
undertakings of two or more
companies or of the undertakings
or part of the undertakings of one
or more companies and one or more
bodies corporate.
Section 230—Arrangement and
Amalgamation by Sale of
undertaking for Securities to be
Distributed.
(1) With a view to effecting any
arrangement or amalgamation, a
company may by special resolution
resolve that the company be put
into members' voluntary
liquidation and that the
liquidator be authorised to sell
the whole or part of its
undertaking or assets to another
body corporate, whether a company
within the meaning of this Code or
not, in this section called the
transferee company, in
consideration or part
consideration of fully paid
shares, debentures or other like
interests in the transferee
company and to distribute the same
in specie among the shareholders
of the company in accordance with
their rights in the liquidation.
(2) Any sale and distribution in
pursuance of a special resolution
under this section shall be
binding on the company and all
members thereof and each member
shall be deemed to have agreed
with the transferee company to
accept the fully paid shares,
debentures or other like interests
to which he is entitled under such
distribution:
Provided that,
(a) if within one year from the
date of the passing of any such
special resolution as is referred
to in subsection (1) of this
section an order is made under
section 218 of this Code or for
the winding up of the company
under the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), the arrangement or
amalgamation and the sale and
distribution shall not be valid
unless sanctioned by the Court;
(b) If any member of the company
by notice in writing addressed to
the liquidator and left at the
registered office of the company
within twenty-eight days after the
passing of the resolution,
dissents therefrom in respect of
any of the shares held by him, the
liquidator shall either abstain
from carrying the resolution into
effect or shall purchase such
shares at a price to be determined
in manner provided by subsections
(3), (4) and (5) of this section.
(3) If the liquidator elects to
purchase the shares of any member
who has expressed his dissent in
accordance with subsection (2) of
this section, the price payable
therefor shall be determined by
agreement or, in default of
agreement, by a single arbitrator
appointed by the president for the
time being of the Institute of
Chartered Accountants in Ghana in
accordance with the law relating
to arbitration for the time being
in force.
(4) The price shall be determined
by estimating what the member
concerned would have received had
the whole of the undertaking of
the company been sold as a going
concern for cash to a willing
buyer and the proceeds, less the
costs of liquidation, been divided
amongst the members in accordance
with their rights.
(5) The purchase money shall be
paid before the company is
dissolved and raised by the
liquidator in such manner as may
be determined by the special
resolution or, in default of any
direction in the special
resolution, in such manner as he
may think fit as part of the
expenses of the winding-up.
(6) Nothing in this section
contained shall authorise any
variation or abrogation of the
rights of any creditors of the
company.
(7) If any company otherwise than
under the foregoing subsections of
this section sells or resolves to
sell the whole or any part of its
undertaking or assets to another
body corporate in consideration or
part consideration of any shares,
debentures or other like interests
in that body corporate and
resolves to distribute the same in
specie among the members of the
company, whether in a liquidation
or by way of dividend, any member
of the company may, by notice in
writing addressed to the company
and left at the registered office
of the company within twenty-eight
days after the passing of the
resolution authorising such
distribution, require the company
either to abstain from carrying
the resolution into effect or to
purchase any of his shares at a
price to be determined in manner
provided by subsections (3), (4)
and (5) of this section:
Provided that nothing herein
contained shall authorise any
company,
(a) to purchase its shares except
in accordance with sections 59 to
64 of this Code;
(b) to make any distribution to
its shareholders except in
accordance with sections 71 to 79
of this Code or in a liquidation.
Section 231—Arrangement or
Amalgamation with Court Approval.
(1) Where any arrangement or
amalgamation is proposed, whether
or not involving a compromise
between a company and its
creditors or members or any class
or classes of them, the Court, on
the summary application of the
company or any member or creditor
of the company or, in the case of
a company being wound up, of the
liquidator, may either order that
meetings of the various classes of
members and creditors concerned be
summoned in such manner as the
Court directs or that a postal
ballot be taken of the various
classes in manner provided by
subsections (6), (7) and (8) of
section 170 of this Code.
(2) If a three-fourths majority of
each class of members concerned
and a majority in number
representing three-fourths in
value of each class of creditors
concerned shall approve the said
arrangement or amalgamation the
same shall be referred to the
Registrar who shall appoint one or
more competent reporters to
investigate the fairness of the
said arrangement or amalgamation
and to report thereon to the
Court.
(3) The remuneration of the
reporters shall be fixed by the
Registrar and it and the proper
expenses of the investigation
shall be borne by the company or
such other party to the
application as the Court shall
order.
(4) If the Court shall, after
considering the said report, make
an order confirming the
arrangement or amalgamation, with
or without modifications, the same
as confirmed shall be binding on
the company and on all members and
creditors thereof and its validity
shall not subsequently be
impeachable in any proceedings.
(5) Upon the hearing by the Court
of the application to confirm the
arrangement or amalgamation any
member or creditor of the company
claiming to be affected thereby
shall be entitled to be
represented and to object.
(6) The Court may prescribe such
terms as it shall think fit as a
condition of its confirmation
including a condition that any
members shall be given rights to
require the company to purchase
their shares at a price fixed by
the Court or to be determined in
manner provided in the order.
(7) An arrangement or amalgamation
may be carried out in accordance
with the provisions of this
section notwithstanding that it
could have been accomplished under
the previous section or any other
provisions of this Code; but the
provisions of section 75 to 79 of
this Code shall also be complied
with if the arrangement or
amalgamation is one which, by
virtue of section 75 requires the
confirmation of the Court in
accordance with such sections.
(8) An order made under subsection
(4) of this section shall have no
effect until an office copy of the
order has been delivered to the
Registrar who shall register the
order and cause the same to be
published in the Gazette.
(9) A copy of the order shall be
annexed to every copy of the
company's Regulations issued by
the company after the order has
been made; and if a company makes
default the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding five pounds in
respect of every copy in respect
of which default is made.
Section 232—Powers of the Court
for Facilitating Arrangements or
Amalgamations.
(1) Where an application is made
to the Court under the last
foregoing section and it is shown
to the Court that under the
arrangement or amalgamation the
whole or any part of the
undertaking or assets of any
company, in this section referred
to as a transferor company, is to
be transferred to another company,
in this section referred to as the
transferee company, the Court may,
either by the order sanctioning
the arrangement or amalgamation or
by any subsequent order, make
provision for all or any of the
following matters, that is to say,
(a) the transfer to the transferee
company of the whole or any part
of the undertaking, assets and
liabilities of any transferor
company;
(b) the allotting or appropriation
by the transferee company of any
shares, debentures or other like
interests in that company which,
under the arrangement or
amalgamation, are to be allotted
or appropriated by that company to
or for any person;
(c) the continuation by or against
the transferee company of any
legal proceedings pending by or
against any transferor company;
(d) the dissolution, without
winding up, of any transferor
company;
(e) the provision to be made for
any persons who, within such time
and in such manner as the Court
directs, dissent from the
arrangement or amalgamation;
(f) such incidental, consequential
and supplemental matters as are
necessary to secure that the
arrangement or amalgamation shall
be fully and effectively carried
out.
(2) Where an order under this
section provides for the transfer
of property or liabilities, that
property shall, by virtue of the
order, be transferred to and vest
in, and those liabilities shall,
by virtue of the order, be
transferred to and become
liabilities of, the transferee
company, and in the case of any
property, if the order so directs,
freed from any charge which is, by
virtue of the arrangement or
amalgamation, to cease to have
effect.
(3) Where an order is made under
this section, every company in
relation to which the order is
made shall cause an office copy
thereof to be delivered to the
Registrar for registration within
twenty-eight days after the making
of the order; and if default is
made in complying with this
subsection, the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding five pounds for each
day during which the default
continues.
(4) In this section the expression
"property" includes property
rights and powers of every
description and the expression
"liabilities" includes duties of
every description notwithstanding
that such rights, powers and
duties are of a personal character
which could not under the general
law be assigned or performed
vicariously.
Section 233—Information as to
Arrangements and Amalgamations.
(1) Where any notice of any
resolution to approve an
arrangement or amalgamation under
section 230 or 231 of this Code is
sent to members or creditors of
any company, there shall be sent
also a statement explaining the
effect of the arrangement or
amalgamation and in particular
stating any material interests of
the directors of the company or
otherwise, and the effect thereon
of the arrangement or amalgamation
in so far as it is different from
the effect on the like interests
of other persons.
(2) In any notice of any such
resolution which is given by
advertisement, there shall be
included either such a statement
as aforesaid or a notification of
the place at which and the manner
in which members or creditors to
whom the notice is addressed may
obtain copies of such a statement;
and every such member or creditor
shall, on making application in
the manner indicated in the
notice, be furnished by the
company, free of charge, with a
copy of the statement.
(3) Where the arrangement or
amalgamation affects the rights of
debentureholders of the company,
the said statement shall give the
like explanation as respects the
trustees of any deed for securing
the debentures as it is required
to give as respects the company's
directors.
(4) Where a company makes default
in complying with any requirements
of this section, the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five hundred
pounds; and for the purposes of
this subsection any liquidator of
the company and any trustee of a
deed securing debentures of the
company shall be deemed to be an
officer of the company:
Provided that,
(a) a person shall not be liable
under this subsection if he shows
that the default was due to the
refusal of any other person to
supply the necessary particulars
as to his interests;
(b) nothing herein contained shall
derogate from the power of the
Court under section 217 or 218 of
this Code to declare ineffective
any special resolution passed
pursuant to section 230 of this
Code.
(5) It shall be the duty of any
director of the company and of any
trustee for debentureholders of
the company to give notice to the
company of such matters relating
to himself as may be necessary for
the purposes of this section, and
any such person who makes default
in complying with this subsection
shall be liable to a fine not
exceeding fifty pounds.
Section 234—Power to acquire
Shares of Minority on Acquisition
of Subsidiary Company.
(1) Where a body corporate,
whether a company within the
meaning of this Code or not, in
this section referred to as the
transferee company, has made an
offer to the holders of shares in
a company, in this section
referred to as the transferor
company, then, provided that the
conditions specified in subsection
(2) of this section are duly
fulfilled, the transferee company
may compulsorily acquire the
shares in the transferor company
in the manner specified in this
section.
(2) This section shall apply if,
(a) the offer by the transferee
company is made to the holders of
the whole of the shares in the
transferor company, other than
those already held by the
transferee company or any of its
associated companies or by
nominees for the transferee
company or any of its associated
companies;
(b) the consideration for the
acquisition is either,
(i)
the allotment of shares in the
transferee company, or
(ii) the allotment of shares in
the transferee company or, at the
option of the holders, a payment
of cash;
(c) the same terms are offered to
all the holders of the shares to
whom the offer is made or, where
there are different classes of
shares, to all the holders of
shares of the same class;
(d) within four months after the
making of the offer it has been
accepted in respect of not less
than nine-tenths of the whole of
the shares and of not less than
nine-tenths of the shares of each
class, other than shares already
held as aforesaid and the holders
of such shares are not less than
three-fourths in number of the
holders of those shares and of
each class thereof.
(3) Where the conditions specified
in subsection (2) of this section
are fulfilled, the transferee
company may, within two months
thereafter, give notice in the
prescribed form to any shareholder
who has not accepted the offer in
respect of all his shares that it
desires to acquire his shares and
when such notice is given the
transferee company shall, unless
on an application made by the
shareholder in accordance with
subsection (4) of this section the
Court thinks fit to order
otherwise, be entitled and bound
to acquire those shares on the
terms of the offer.
(4) At any time within a period of
two months from the service of the
notice referred to in subsection
(3) of this section, any
shareholder to whom notice has
been given in accordance with such
subsection may apply to the Court;
and the Court may order that the
transferee company shall not be
entitled to acquire the share of
such holder or that the transferee
company shall be bound to acquire
those shares upon such other terms
as the Court may order.
(5) On any application to the
Court under subsection (4) of this
section the Court, before making
any order may, if it thinks fit,
refer the matter to the Registrar
who shall appoint one or more
competent reporters to investigate
the fairness of the offer and to
report thereon to the Court.
(6) The remuneration of the
reporters shall be fixed by the
Registrar and it and the proper
expenses of the investigation
shall be borne by the transferee
company or by the applicant or
both as the Court shall order.
(7) Where the Court makes an order
under subsection (4) of this
section that the transferee
company shall be bound to acquire
the shares concerned upon terms
different from those of the
original offer then, unless the
Court shall otherwise order, the
transferee company shall give
notice in the prescribed form, of
such amended terms, to all other
holders of shares of the same
class and to all former holders of
shares of the same class who
accepted the original offer.
(8) At any time within two months
of the giving of such notice any
shareholder shall be entitled to
require the transferee company to
acquire his shares upon the same
terms as those ordered by the
Court and any such former holder
shall be entitled to require the
transferee company to pay or
transfer to him any additional
consideration to which he would
have been entitled had his shares
been acquired on the terms ordered
by the Court.
(9) Where a notice has been given
by the transferee company under
subsection (3) of this section and
the Court has not, on an
application by the shareholder
under subsection (4) of this
section, ordered to the contrary,
the transferee company shall,
(a) on the expiration of two
months from the date on which
notice has been given, or
(b) if an application by the
shareholder under subsection (4)
of this section is then pending
after that application has been
disposed of,
transmit a copy of the notice to
the transferor company together
with an instrument of transfer
executed on behalf of the
shareholder by any person
appointed by the transferee
company and on its own behalf by
the transferee company, and
transfer to the transferor company
the shares, or if the shareholder
has exercised the cash option, if
any, pay to the transferor company
the cash, representing the
consideration payable by the
transferee company for the shares
which by virtue of this section
the transferee company is entitled
to acquire, and the transferor
company shall thereupon register
the transferee company as the
holder of those shares.
(10) Any sums received by the
transferor company under
subsection (9) of this section
shall be paid into a separate bank
account and any such sums and all
shares so received shall be held
by the transferor company on trust
for the several persons entitled
to the shares in respect of which
the said sums and shares were
received.
Section 235—Rights of Minority on
Acquisition of Subsidiary Company.
(1) Where, as a result of an offer
to the shareholders of a company
or any of them, shares in that
company are transferred to another
body corporate, whether a company
within the meaning of this Code or
not, in this section called the
transferee company, or its nominee
and those shares, together with
any other shares in the first
mentioned company held by, or by a
nominee for, the transferee
company, or by, or by a nominee
for, any of its associated
companies at the date of the
transfer, comprise or include
three-fourths of the shares in the
first named company or any class
of those shares, then,
(a) the transferee company shall
within one month from the date of
the transfer, unless on a previous
transfer it has already complied
with this requirement, give notice
of that fact in the prescribed
form to the holders of the
remaining shares or of the
remaining shares of that class, as
the case may be; and
(b) any such holder may within
three months from the giving of
the notice to him require the
transferee company to acquire all
or any of his shares.
(2) Where a shareholder under
subsection (1) of this section
requires the transferee company to
acquire any shares, the transferee
company shall be entitled and
bound to acquire those shares on
the terms of the offer or on such
other terms as may be agreed or as
the Court, on the application of
either the transferee company or
the shareholder, thinks fit to
order.
(3) On any application to the
Court under subsection (2) of this
section the Court may, if it
thinks fit, refer the matter to
the Registrar who shall appoint
one or more competent reporters to
investigate the fairness of the
offer and in that event
subsections (5) and (6) of section
234 of this Code shall apply.
Part T—Receivers and Managers
Section 236—Disqualification for
Appointment as Receiver.
(1) The following persons shall
not be competent to be appointed
or to act as receivers or managers
of any property or undertaking of
a company, namely,
(a) an infant;
(b) any one found by a competent
court to be a person of unsound
mind;
(c) a body corporate;
(d) anyone in respect of whom an
order shall have been made under
section 186 of this Code, so long
as such order remains in force
unless leave to act as receiver or
manager of the property or
undertaking of the company
concerned has been given by the
court in accordance with that
section;
(e) an undischarged bankrupt,
unless he shall have been granted
leave to act as receiver or
manager of the property or
undertaking of the company
concerned by the Court by which he
was adjudged bankrupt.
(2) A director or auditor of a
company shall not be qualified for
appointment as a receiver or
manager of any property or
undertaking of that company.
(3) Any appointment made in
contravention of this section
shall be void; and if any of the
persons named in subsection (2) of
this section or in paragraph (a),
(c), (d) or (e) of subsection (1)
of this section shall act as such
a receiver or manager he shall be
liable to a fine not exceeding
five hundred pounds, or, in the
case of an individual, to
imprisonment for a term not
exceeding six months or to a fine
not exceeding five hundred pounds,
or to both such imprisonment and
fine.
Section 237—Power to Appoint
Official Trustee.
Where application is made to the
Court to appoint a receiver or
manager on behalf of secured
creditors or debentureholders of a
company which is being wound up
under the provisions of the Bodies
Corporate (Official Liquidations)
Act, 1963 (Act 180), the Official
Trustee may be appointed.
Section 238—Powers of Receivers
and Managers.
(1) A person appointed receiver of
any property of a company shall,
subject to the rights of any prior
incumbrances, take possession of
and protect the property, receive
the rents and profits and
discharge all outgoings in respect
thereof and realise the security
of those on whose behalf he is
appointed; but unless also
appointed manager he shall not
have power to carry on any
business or undertaking.
(2) A person appointed manager of
the whole or any part of the
undertaking of a company shall
manage the same with a view to the
beneficial realisation of the
security of those on whose behalf
he is appointed.
(3) As from the date of
appointment of a receiver or
manager the powers of the
directors or liquidators in a
members' voluntary liquidation to
deal with the property or
undertaking over which he is
appointed shall cease unless and
until the receiver or manager is
discharged.
(4) If, on the appointment of a
receiver or manager, the company
is being wound up under the
provisions of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), or the property
concerned is in the hands of some
other officer of the Court, the
liquidator or officer shall not be
bound to relinquish control of
such property to the receiver or
manager except under an order of
the Court.
Section 239—Receivers and Managers
Appointed by Court.
A
receiver or manager of any
property or undertaking of a
company appointed by the Court
shall be deemed to be an officer
of the Court and not of the
company and shall act in
accordance with the directions and
instructions of the Court.
Section 240—Receivers and Managers
Appointed out of Court.
(1) A receiver or manager of any
property or undertaking of a
company appointed out of Court
under a power contained in any
instrument shall, subject to
section 241 of this Code, be
deemed to be an agent of the
person or persons on whose behalf
he is appointed; and if appointed
manager of the whole or any part
of the undertaking of a company he
shall also be deemed to be an
officer of the company and to
stand in a fiduciary relationship
to it, and section 203 of this
Code shall apply to a manager as
if he were a director of the
company:
Provided, however, that in the
exercise of his powers he may,
pursuant to subsection (3) of
section 203 of this Code, give
special, but not exclusive,
consideration to the interests of
those on whose behalf he is
appointed.
(2) Such a receiver or manager may
apply to the Court for directions
in relation to any matter arising
in connection with the performance
of his functions; and on any such
application the Court may give
such directions, or make such
order declaring the rights of
persons before the Court or
otherwise, as the Court thinks
fit.
(3) The Court may, on the
application of the company or any
liquidator of the company, by
order fix the amount to be paid by
way of remuneration to any such
receiver or manager; and may from
time to time on application made
either by the company or
liquidator or by the receiver or
manager, vary or amend the order.
(4) The power of the Court under
the immediately preceding
subsection shall, where no
previous order has been made with
respect thereto under that
subsection,
(a) extend to fixing the
remuneration for any period before
the making of the order or the
application therefor;
(b) be exercisable notwithstanding
that the receiver or manager has
died or ceased to act before the
making of the order or the
application therefor; and
(c) where the receiver or manager
has been paid or has retained for
his remuneration for any period
before the making of the order any
amount in excess of that so fixed
for that period, extend to
requiring him or his personal
representatives to account for the
excess or such part thereof as may
be specified in the order:
Provided that the power conferred
by this paragraph shall not be
exercised as respects any period
before the making of the
application for the order unless,
in the opinion of the Court, there
are special circumstances making
it proper for the power to be so
exercised.
Section 241—Liabilities of
Receivers and Managers of
Contracts.
(1) A receiver or manager of any
property or undertaking of a
company shall be personally liable
on any contract entered into by
him except in so far as the
contract otherwise expressly
provides.
(2) As regards contract entered
into by him in the proper
performance of his functions such
receiver or manager shall, subject
to the rights of any prior
incumbrancers, be entitled to an
indemnity in respect of liability
thereon out of the property over
which he has been appointed to act
as receiver or manager.
(3) A receiver or manager
appointed out of Court under a
power contained in any instrument
shall also be entitled, as regards
contracts entered into by him with
the express or implied authority
of those appointing him, to an
indemnity in respect of liability
thereon from those appointing him
to the extent to which he is
unable to recover in accordance
with subsection (2) of this
section.
Section 242—Notification that
Receiver or Manager has been
Appointed.
(1) Where a receiver or manager of
any property or undertaking of a
company has been appointed, notice
shall be given to the Registrar in
accordance with section 116 of
this Code; and every invoice,
order or business letter issued by
or on behalf of the company or the
receiver or manager or the
liquidator of the company, being a
document on or in which the name
of the company appears, shall
contain a statement that a
receiver or manager has been
appointed.
(2) If default is made in
complying with the requirements of
this section relating to invoices,
orders or business letters the
company and every officer,
liquidator, receiver or manager of
the company who is in default
shall be liable to a fine not
exceeding twenty pounds in respect
of each default.
Section 243—Accounts where Manager
Appointed to Enforce a Floating
Charge.
(1) Where a manager is appointed
of the whole or substantially the
whole of the undertaking of any
company on behalf of the holders
of any debentures secured by a
floating charge the provisions of
section 19 of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), shall apply as regards
the submission of a statement of
affairs and of periodical accounts
by the manager as if the company
had been ordered to be wound up
under such Act and as if the
manager had been appointed
liquidator.
(2) If any person makes default in
complying with the requirements of
this section he shall be liable to
a fine not exceeding five pounds
for every day during which the
default continues.
Section 244—Delivery to Registrar
of Accounts of Receivers.
(1) Except where the last
foregoing section of this Code
applies, every receiver or manager
of any property of a company
shall,
(a) within one month, or such
longer period as the Registrar may
allow, after the expiration of the
period of twelve months from the
date of his appointment and of
every subsequent period of twelve
months until he ceases to act,
deliver to the Registrar for
registration an abstract in the
prescribed form showing his
receipts and payments during that
period of twelve months;
(b) within one month, or such
longer period as the Registrar may
allow, after he ceases to act as
receiver or manager deliver to the
Registrar for registration an
abstract in the prescribed form
showing his receipts and payments
during the period from the end of
the twelve months to which the
last abstract, if any, related,
and the aggregate of his receipts
and payments during the whole
period of his appointment.
(2) Every receiver or manager who
makes default in complying with
the requirements of this section
shall be liable to a fine not
exceeding five pounds for every
day during which the default
continues.
Section 245—Enforcement of
Receivers' Duties.
(1) If any receiver or manager of
any property or undertaking of a
company,
(a) having made default in filing,
delivering or making any return,
account, or other document or in
giving any notice which he is by
any provision of this Code
required to file, deliver, make,
or give, fails to make good the
default within twenty-eight days
after the service on him of a
notice requiring him to do so, or
(b) having been appointed out of
Court under the powers contained
in any instrument, has, after
being required at any time by the
liquidator of the company so to
do, failed to render proper
accounts of his receipts and
payments and to vouch the same and
to pay over to the liquidator the
amount properly payable to him,
the Court may, on an application
made for the purpose, make an
order directing the receiver or
manager to make good the default
within such time as may be
specified in the order and may
provide that all costs of and
incidental to the application
shall be borne by the receiver or
manager.
(2) An application for the
purposes of this section may, in
the case of such default as is
mentioned in paragraph (a) of
subsection (1) of this section, be
made by the company or any member,
creditor or liquidator of the
company or by the Registrar, and
in the case of such default as is
mentioned in paragraph (b)
thereof, be made by the
liquidator.
Part U—Winding Up
Section 246—Modes of Winding Up.
(1) The winding up of a company
may be either,
(a) by an official liquidation in
accordance with the provisions of
the Bodies Corporate (Official
Liquidations) Act, 1963 (Act 180);
or
(b) by a private liquidation in
accordance with the provisions of
this Part of this Code.
(2) The company shall, from the
commencement of the winding up
cease to carry on its business
except so far as may be required
for the beneficial winding up
thereof, but the corporate state
and corporate powers of the
company shall continue until it is
dissolved.
(3) Where a company is being wound
up by way of a private
liquidation, every invoice, order
or business letter issued by or on
behalf of the company or any
liquidator of the company or a
receiver or manager of any
property of the company, being a
document in or on which the name
of the company appears, shall
contain a statement that the
company is being wound up under
this Part of this Code.
(4) If default is made in
complying with the provisions of
the immediately preceding
subsection the company and any
officer of the company and any
liquidator, receiver or manager
who is in default shall be liable
to a fine not exceeding twenty
pounds.
Section 247—Declaration of
Solvency.
(1) Where it is proposed to wind
up a company by way of a private
liquidation, the directors of the
company or, in the case of a
company having more than two
directors, the majority of the
directors shall, at a meeting of
the directors, make an affidavit
to the effect that they have made
a full enquiry into the affairs of
the company, and that, having done
so, they have formed the opinion
that the company will be able to
pay its debts and liabilities in
full within such period not
exceeding twelve months from the
commencement of the winding up as
may be specified in the affidavit.
(2) An affidavit made under the
preceding subsection shall not
have effect for the purposes of
this Part of this Code, unless,
(a) it is made within five weeks
immediately preceding the date of
the passing of the resolution for
the winding up of the company by
way of private liquidation and is
delivered to the Registrar for
registration on or before that
date; and
(b) it embodies a statement of the
company's assets and liabilities
at the latest practicable date
before the making of the
affidavit.
(3) Any director of a company
making an affidavit under this
section without having reasonable
grounds for the opinion that the
company will be able to pay its
debts and liabilities in full
within the period specified in the
affidavit, shall be liable to
imprisonment for a term not
exceeding one year or to a fine
not exceeding five hundred pounds
or to both such imprisonment and
fine; and if the company is wound
up in pursuance of the resolution
for the winding up of the company
by way of private liquidation
passed within the period of five
weeks after the making of the
affidavit, but its debts and
liabilities are not paid or
provided for in full within the
period stated in the affidavit, it
shall be presumed, until the
contrary is shown, that the
director did not have reasonable
ground for his opinion.
Section 248—Procedure on
Resolution for Liquidation.
(1) A company may be wound up by
way of private liquidation if,
(a) the company resolves by
special resolution that it shall
be wound up by way of private
liquidation; and
(b) prior to the date of such
resolution an affidavit declaring
that the company is solvent is
made in accordance with section
247 of this Code.
(2) The private liquidation shall
be deemed to commence at the time
of the passing of the resolution.
(3) When a company has passed a
resolution for a private
liquidation it shall, within
fourteen days after the passing of
the resolution, send to the
Registrar a copy of the resolution
and he shall publish the same in
the Gazette.
Section 249—Statement and Accounts
of Final Financial Year.
For the purposes of sections 123
to 136 of this Code, the final
financial year of a company in
liquidation under this Part of
this Code shall be deemed to end
immediately prior to the date of
the commencement of the winding
up, and, subject as hereinafter
mentioned, all the provisions of
those sections shall continue to
apply to the preparation, auditing
and despatch of the statements,
accounts and report referred to in
those sections:
Provided that,
(a) a copy of the document
referred to in section 124 shall
be sent to the liquidator
appointed in accordance with
section 250 of this Code as well
as to every member and
debentureholder of the company in
accordance with the said section
124;
(b) a copy of such documents shall
be sent to the persons
hereinbefore referred to within
three months after the date of
commencement of the winding up.
Section 250—Resolution for
Appointment and Removal of
Liquidator.
(1) The resolution for the private
liquidation of a company shall
include the appointment as
liquidator of a person therein
named; and no such resolution
shall be valid for the purposes of
this Part of this Code unless the
person so named shall have
previously consented in writing to
his appointment.
(2) Where a vacancy occurs by
death, resignation or otherwise in
the office of liquidator, the
company in general meeting may
fill the vacancy and for that
purpose a general meeting may be
convened by any member or if there
were more liquidators than one, by
the continuing liquidators.
(3) The Court may, on the
application of any member of the
company or of the Registrar,
remove a liquidator and appoint
another in his place, or appoint a
liquidator if, from any cause
whatsoever, there is no liquidator
acting.
(4) The company or the Court, as
the case may be, shall give notice
to the Registrar of the removal or
appointment of a liquidator, and
the Registrar shall register the
notice and publish it in the
Gazette.
Section 251—Remuneration of
Liquidator.
For the purposes of a private
liquidation the company shall, in
general meeting, fix the
remuneration to be paid to a
liquidator appointed for the
purpose of liquidation; and where
the appointment of a liquidator is
made by the Court the remuneration
of the liquidator shall be fixed
by the Court.
Section 252—Disqualification of
Liquidator.
(1) The following persons shall
not be competent to be appointed
or to act as liquidators of a
company under this Part of this
Code, namely,
(a) an infant;
(b) any person found by a court of
competent jurisdiction to be a
person of an unsound mind;
(c) a body corporate;
(d) any person convicted on
indictment, whether in Ghana or
elsewhere, of any offence
involving fraud or dishonesty or
any offence in connection with the
promotion, formation or management
of a body corporate;
(e) an undischarged bankrupt or
any other person subject to
insolvency proceedings under the
Insolvency Act, 1962 (Act 153).
(2) A director of a company shall
not be qualified for appointment
as a liquidator of that company.
(3) An auditor of a company may be
appointed as liquidator of that
company:
Provided that an auditor of a
company shall not be appointed as
liquidator in a private
liquidation unless on his
appointment special resolution is
duly passed dispensing with the
auditing of his accounts and he,
or another auditor if more than
one, is duly qualified under
section 296 of this Code for
appointment as auditor of a public
company.
(4) Any appointment made in
contravention of this section
shall be void; and if any of the
persons named in paragraph (a),
(c), (d) or (e) of subsection (1)
or in subsection (2) of this
section shall act as liquidator of
a company, he shall be liable to a
fine not exceeding five hundred
pounds or in the case of an
individual to imprisonment for a
term not exceeding five years or
to a fine not exceeding five
hundred pounds or to both such
imprisonment and fine.
Section 253—Status of Liquidator.
A
liquidator appointed for the
purpose of a private liquidation
shall be deemed to stand in a
fiduciary relationship to the
company as if he were a director
of the company and accordingly the
provisions of sections 203 to 216
of this Code shall, mutatis
mutandis, apply.
Section 254—Cessation of
Directors' Powers.
On the appointment of a liquidator
for the purposes of a private
liquidation all the powers of the
board of directors shall vest in
the liquidator and the powers and
authority of every director shall
cease, save in so far as the
company in general meeting or the
liquidator sanctions the
continuance thereof and except so
far as is necessary to enable the
directors to prepare statements
and accounts of the company.
Section 255—Powers of Liquidator.
(1) A liquidator in a private
liquidation may exercise all the
powers of the liquidator in an
official winding up under the
Bodies Corporate (Official
Liquidations) Act, 1963 (Act 180).
(2) When several liquidators are
appointed, any power given by this
Code may be exercised by such one
or more of them as may be
determined at the time of their
appointment, or, in default of
such determination, by any number
not less than two.
(3) The Court shall have the same
powers in relation to the
liquidator in a private
liquidation as are by the Bodies
Corporate (Official Liquidations)
Act, 1963 (Act 180) conferred upon
it in relation to official
liquidations; and the liquidator
may apply to the Court for
directions in relation to any
matter arising in connection with
the performance of his functions
or to exercise all or any of the
powers which the Court might
exercise if the company were being
wound up under the said Act and,
on any such application, the Court
may give such directions or make
such order as the Court thinks
just.
Section 256—Books and Accounts
during Private Liquidation.
(1) The liquidator in a private
liquidation shall keep proper
records and books of account with
respect to his acts and dealings
and of the conduct of the winding
up and of all receipts and
payments by him and, so long as he
carries on the business of the
company, shall keep a distinct
account of the trading.
(2) In the event of the winding up
continuing for more than a year
the liquidator shall summon a
general meeting of the company at
the end of the first year from the
commencement of the winding up and
of each succeeding year, or at the
first convenient date within three
months of the end of the year or
such longer period as the
Registrar may allow, and shall lay
before the meeting an account of
his acts and dealings and of the
conduct of the winding up during
the preceding year and of the
trading during such time as the
business of the company has been
carried on, and within
twenty-eight days thereafter shall
send a copy of such accounts to
the Registrar for registration.
(3) So soon as the affairs of the
company are fully wound up, the
liquidator shall prepare and send
to every member of the company
final accounts of the winding up
showing how the winding up has
been conducted, the result of the
trading during such time as the
business of the company has been
carried on, and how the property
of the company has been disposed
of, and thereupon shall convene a
general meeting of the company for
the purpose of laying before it
such accounts and of giving an
explanation thereof.
(4) Within twenty-eight days after
the meeting referred to in the
immediately preceding subsection
the liquidator shall send to the
Registrar for registration copies
of the accounts laid before the
meeting and a statement of the
holding of the meeting and of its
date:
Provided that if a quorum was not
present at the meeting the
liquidator, in lieu of the
statement hereinbefore mentioned,
shall send a statement that the
meeting was duly convened and that
no quorum was present thereat.
(5) The records, books and
accounts referred to in this
section shall be in such form, if
any, as the Registrar may from
time to time prescribe and shall
give a true and fair view of the
matters therein recorded and of
the administration of the
company's affairs and of the
winding up.
(6) The accounts referred to in
subsection (2) and (3) of this
section shall be audited by the
auditors of the company prior to
being laid before the company in
general meeting in accordance with
such subsections and the auditors
shall state in a report annexed
thereto whether, in their opinion
and to the best of their
information,
(a) they have obtained all the
information and explanations
necessary for the purpose of their
audit;
(b) proper books and records have
been maintained by the liquidator
in accordance with this Code; and
(c) such accounts are in
accordance with the books and
records and give all the
information required by this Code
in the manner therein required and
give a true and fair view of the
matters stated in such accounts:
Provided that such audit and
auditors' report shall not be
required if,
(a) the liquidator, or one of the
liquidators if more than one, is
duly qualified under section 296
of this Code for appointment as
auditor of a public company; and
(b) on or after his appointment as
liquidator, the company resolved
by special resolution that the
accounts should not be required to
be audited in accordance with this
subsection.
(7) Meetings required to be
convened under this section shall
be convened and held, so far as
may be, in accordance with the
provisions of this Code and the
Regulations of the company
relating to general meetings.
(8) The liquidator shall preserve
the books and papers of the
company and of the liquidator for
a period of five years from the
dissolution of the company but
thereafter may destroy such books
and papers unless the Registrar
shall otherwise direct in which
event he shall not destroy the
same until the Registrar shall
consent in writing.
(9) If a liquidator shall fail to
comply with any of the provisions
of this section he shall be liable
to a fine not exceeding fifty
pounds for each default.
Section 257—Liquidation Account.
(1) The liquidator shall open an
account, to be known as the
private liquidation account, with
a bank nominated by the company in
general meeting for the purposes
of the private liquidation.
(2) All receipts and payments by
or on behalf of the liquidator in
respect of the company shall be
credited or debited, as the case
may be to such private liquidation
account.
(3) If, on the application of the
company or any other person
interested in the liquidation
proceedings, it appears to the
Court before the termination of
the liquidation, that assets have
been lost to the estate by reason
of any default by the liquidator,
the Court may order that the
private liquidation account be
credited with such sum as may
appear to the Court to be just.
Section 258—Duty of Liquidator in
Case of Insolvency.
(1) If in a private liquidation
the liquidator is at any time of
the opinion that the company may
not be able to pay its debts in
full within the period stated in
the affidavit made under section
247 of this Code, he shall
forthwith give notice thereof to
the Registrar, together with a
statement of the company's
liabilities and assets.
(2) The said notice and statement
shall be in the prescribed form.
(3) The Registrar, whether or not
he makes an order under section 5
of the Bodies Corporate (Official
Liquidations) Act, 1963 (Act 180),
shall register both the notice and
the statement and cause a copy of
the notice to be published in the
Gazette.
(4) If the liquidator fails to
comply with this section he shall
be liable to a fine not exceeding
five hundred pounds.
Section 259—Stay of Proceedings.
(1) At any time during the course
of a private liquidation and prior
to the dissolution of the company,
the company in general meeting
may, by special resolution,
resolve that, subject to the
confirmation of the Court, the
liquidation proceedings shall be
stayed.
(2) After the passing of such
special resolution, application
may be made to the Court by the
liquidator or any member of the
company; and the Court may in its
discretion and subject to such
terms and conditions as the Court
may think fit, order that the
liquidation be stayed, that the
liquidator be discharged and that
the directors be permitted to
resume the management of the
company.
(3) At least twenty-eight days
before the hearing of the
application to the Court under the
immediately preceding subsection,
written notice thereof shall be
given by the applicant to the
Registrar, to all directors of the
company and to any liquidator of
the company, if not the applicant,
and the Registrar shall cause the
same to be published in the
Gazette.
(4) The Registrar and any
director, liquidator, member or
creditor of the company shall be
entitled to appear on the hearing
of the application and to call
witnesses and give evidence.
(5) If an order confirming the
resolution is made by the Court,
the company shall send an official
copy thereof to the Registrar and
the Registrar shall register the
same and cause a copy to be
published in the Gazette; and
thereupon the liquidation shall be
deemed to have ceased and the
company shall continue to be a
going concern subject however, to
any terms or conditions in the
said order.
Section 260—Dissolution of
Companies.
(1) When the Registrar is
satisfied that the winding up of
the company is complete he shall
strike the name of the company off
the register and notify the same
in the Gazette and the company
shall thereupon be deemed to be
dissolved as at the date of the
publication of the notification in
the Gazette.
(2) Where a company has been
dissolved, the Court may, at any
time within two years after the
date of the dissolution, on an
application being made for the
purpose by the Registrar or by the
liquidator of the company or by
any former officer, member, or
creditor of the company or any
person claiming through or under
him, make an order, upon such
terms as the Court thinks fit,
declaring the dissolution to have
been void and ordering the name of
the company to be restored to the
registrar.
(3) An office copy of an order
made under subsection (2) of this
section shall be delivered to the
Registrar for registration and he
shall cause the same to be
published in the Gazette and
thereupon the name of the company
shall be restored to the register
and the company shall be deemed to
have continued in existence as if
it had not been dissolved except
that for the purposes of any
period of limitation time shall
not be deemed to run during the
period between dissolution and
restoration.
(4) The Court may by the order
give such directions and make such
provisions as seem just for
placing the company and all other
persons in the same position as
nearly as may be as if the name of
the company had never been struck
off.
Section 261—Dissolution without
full Winding Up.
(1) Where the Registrar, of his
own knowledge, or upon information
supplied by an officer, member or
creditor of a company, has
reasonable cause to believe that
the company is not carrying on
business or in operation, he may
send to the company by registered
post a letter enquiring whether
the company is carrying on
business or in operation.
(2) If the Registrar does not
within two months of sending the
letter receive any answer thereto,
he may, at any time thereafter,
send to the company by registered
post a second letter, referring to
the first letter and stating that
no answer thereto has been
received by the Registrar, and
that if an answer be not received
to the second letter within two
months from the date thereof, a
notice will be published in the
Gazette with a view to striking
the name of the company off the
register.
(3) If the Registrar either
receives an answer from the
company to the effect that it is
not carrying on business or in
operation, or does not within the
specified time after sending the
second letter receive any answer
thereto, the Registrar may publish
in the Gazette and send to the
company by registered post a
notice that at the expiration of
three months from the date of that
notice the name of the company
shall, unless cause is shown to
the contrary, be struck off the
register and the company shall be
dissolved.
(4) Where a company is being wound
up and the Registrar has
reasonable cause to believe that
no liquidator is acting but is not
satisfied that the winding up is
complete, he may publish in the
Gazette and send to the company
and to the last known place of
business of the person, if any,
last known to have acted as
liquidator, a like notice as is
provided in the last foregoing
subsection.
(5) At or after the expiration of
the time mentioned in the notice
the Registrar shall, unless cause
is shown, strike the name of the
company off the register and shall
publish notice thereof in the
Gazette and on such publication in
the Gazette the company shall be
dissolved:
Provided that,
(a) the liability, if any, of
every director or other officer
and member of the company shall
continue and may be enforced as if
the company had not been
dissolved;
(b) nothing in this section shall
affect the power of the Court to
order the winding up of the
company.
(6) When the name of a company has
been struck off the register under
this section, at any time within
twenty years after the publication
in the Gazette in accordance with
subsection (5) of this section,
the Court may, on application
being made for this purpose by any
liquidator or by any former
officer, member or creditor of the
company or by any person claiming
through or under him, make an
order upon such terms as the Court
thinks fit, declaring the
dissolution to have been void and
ordering the name of the company
to be restored to the register and
all the provisions of subsection
(3) of section 260 of this Code
shall apply as if the order was
one made under the said section
260.
(7) A notice or letter to be sent
under this section to a company
may be addressed to the company at
its registered office or, if no
office has been registered, to its
last known place of business, if
any, or to the care of some
officer of the company or, if
there is no officer of the company
whose name and address are known
to the Registrar, may be sent to
the person or each of the persons
who subscribed the Regulations of
the company addressed to him at
the address mentioned in the
subscription to the Regulations.
Part V—Documents
Section 262—Service of Documents
by Company.
(1) A document may be served by a
company on any member,
debentureholder, or director of
the company either personally or
by sending it through the post in
a prepaid letter addressed to him
at his address on the register of
members, debentureholders, or
directors, as the case may be, or
if he has no registered address,
at the address, if any, supplied
by him to the company for the
giving of notices to him, or by
leaving it for him with some
person apparently over the age of
sixteen years at such address.
(2) A document may be served by a
company on the joint holders of
any share or debenture of the
company by serving it on the joint
holder named first in the register
of members or debentureholders in
respect of the share or debenture.
(3) A document may be served by a
company upon the person upon whom
the ownership of any share or
debenture has devolved by reason
of his being a legal personal
representative, receiver or
trustee in bankruptcy of a member
or debentureholder either
personally or by sending it
through the post in a prepaid
letter addressed to him by name,
or by the title of representative
of the deceased, receiver or
trustee of the bankrupt, or by any
like description, at the address,
if any, supplied for the purpose
by such person or by leaving it
for him with some person
apparently over the age of sixteen
years at such address, or until
such address has been supplied, by
serving the document in any manner
in which the same might have been
served if the death, receivership
or bankruptcy had not occurred.
(4) Where a document is sent by
post, service shall be deemed to
be effected by properly
addressing, pre-paying and posting
a letter containing the document
and to have been effected at the
expiration of forty-eight hours
after the letter containing the
same is posted.
(5) The letter need not be
despatched by registered post but
where it is sent to an address
outside Ghana it shall be
despatched by air-mail.
Section 263—Service of Documents
on Company.
(1) A document may be served on a
company by leaving it at, or
sending it by post to, the
registered office of the company
or the latest office registered by
the Registrar as the registered
address of the company.
(2) Any document to be served by
post on a company shall be posted
in such time as to admit of its
being delivered in due course of
delivery within the time, if any,
prescribed for the service
thereof; and in proving service it
shall be sufficient to prove that
a letter containing such document
was properly addressed prepaid and
posted, whether or not by
registered post.
(3) If a company has no registered
office, service upon any director
of the company or, if the company
has no director or if no director
can be traced in Ghana, upon any
member of the company, shall be
deemed good and effectual service
upon such company.
(4) If it shall be proved that any
document was in fact received by
the board of directors, managing
director or secretary of a company
such document shall be deemed to
have been served on the company
notwithstanding that service may
not have been effected in
accordance with the foregoing
subsections of this section.
(5) Nothing in this section shall
derogate from any provision in
this Code relating to the service
of any document, or from the power
of any court to direct how service
shall be effected of any document
relating to legal proceedings
before that court.
Section 264—Books and Registers.
(1) Any register, minute book or
book of account required by this
Code to be kept by a company may
be kept either by making entries
in bound volumes, or by a system
of mechanical recording or
otherwise.
(2) Where any such register,
minute book or book of account is
not kept by making entries in
bound volumes, adequate
precautions shall be taken for
guarding against the risk of
falsification that might arise
from the method of recording and
for facilitating discovery.
(3) Where any system of mechanical
recording is adopted, adequate
arrangements shall be made for
making the information therein
available in an intelligible form
to any one lawfully inspecting the
register, minute book or book of
account.
(4) If default is made in
complying with subsection (2) or
(3) of this section the company
and every officer of the company
who is in default shall be liable
to a fine not exceeding fifty
pounds.
Part W—Invitations to the Public
Section 265—Control of Public
Invitations.
(1) It shall not be lawful for any
person to make any invitation to
the public,
(a) to acquire or dispose of any
shares or debentures of a company,
or
(b) to deposit money with any
company for a fixed period or
payable at call, whether bearing
or not bearing interest,
unless the company concerned is a
public company and the appropriate
provisions contained in Part A of
Chapter IV of this Code are duly
complied with:
Provided that nothing in this
subsection contained shall render
unlawful the sale of any shares or
debentures by or under the
supervision of the Court.
(2) If any invitation to the
public is made in breach of
subsection (1) of this section,
all persons making the invitation
and every officer of any body
corporate making the invitation
who is in default shall be liable
on conviction in the case of a
body corporate to a fine not
exceeding one thousand pounds and
in any other case to imprisonment
for a term not exceeding two years
or to a fine not exceeding one
thousand pounds or to both such
imprisonment and fine.
(3) If as a result of any
invitation to the public in breach
of subsection (1) of this section
any person acquires or disposes of
any shares or debentures or
deposits money with any company he
shall be entitled to rescind such
transaction and either in addition
to or instead of rescinding, to
recover compensation for any loss
sustained by him from any person
who is liable, whether convicted
or not, in respect of the breach.
(4) Where, in accordance with
subsection (3) of this section,
any person claims to rescind any
transaction he must do so with
reasonable promptitude and shall
not be entitled to rescind any
transaction with the company or to
recover compensation from it
unless he takes steps to rescind
before the commencement of the
winding up of the company, but the
fact that it is too late to
rescind shall not prejudice his
right to recover compensation from
any person other than the company.
Section 266—Meaning of
"Invitations to the Public".
(1) For the purposes of this Code
an invitation shall be deemed to
be made to the public if an offer
or invitation to make an offer is,
(a) published, advertised or
disseminated in Ghana by
newspaper, broadcasting,
cinematograph, or any other means
whatsoever;
(b) made to or circulated among
any persons whether selected as
members or debentureholders of the
company concerned or as clients of
the persons making or circulating
the invitation or in any other
manner;
(c) made to any one or more
persons upon the terms that the
persons to whom it is made may
renounce or assign the benefit
thereof or of any shares or
debentures to be obtained
thereunder in favour of any other
person;
(d) made to any one or more
persons to acquire any shares or
debentures dealt in upon any stock
exchange or in respect of which
the invitation states that
application has been or will be
made for permission to deal in
those shares or debentures upon
any stock exchange:
Provided that,
(a) nothing herein contained shall
be taken as requiring any
invitation to be treated as made
to the public if it can properly
be regarded in all the
circumstances as being a domestic
concern of the persons making and
receiving it;
(b) an invitation made by or on
behalf of a private company
exclusively to its existing
shareholders and debentureholders,
not being greater in number than
is prescribed by subsection (3) of
section 9 of this Code, and its
existing employees shall not be
deemed to be an invitation to the
public unless the invitation is of
the type referred to in paragraph
(c) or (d) of this subsection.
(2) For the purposes of the
foregoing subsection the issue of
any form of application for shares
or debentures or of any form to be
completed on the deposit of money
with a company shall be deemed to
be an invitation to acquire those
shares or debentures or to deposit
money.
Section 267—Offers for Sale deemed
to be made by Company.
Where any company allots or agrees
to allot any of its shares or
debentures to any person with a
view to the public being invited
to acquire any of those shares or
debentures, then, for all the
purposes of this Code, any
invitation so made shall be deemed
to be an invitation to the public
made by the company as well as by
the person actually making the
same, and any person who acquires
any such shares or debentures in
response to the invitation shall
be deemed to be an allottee from
the company of those shares or
debentures:
Provided that where,
(a) an invitation to the public is
made in respect of any such shares
or debentures within six months
after the allotment or agreement
to allot, or
(b) at the date when the
invitation to the public was made,
the whole consideration to be
received by the company in respect
of the shares or debentures had
not been so received,
it shall be assumed, unless the
contrary is shown, that the
allotment or agreement to allot
was made by the company with a
view to an invitation to the
public being made in respect of
those shares or debentures.
CHAPTER III—ADDITIONAL PROVISIONS
APPLICABLE TO PRIVATE COMPANIES
ONLY
Section 268—Default in Complying
with Conditions Constituting a
Private Company.
If a private company makes default
in complying with any of the
conditions in its Regulations
specified in subsection (3) of
section 9 of this Code, sections
295 and 301 of this Code shall
thereafter apply to such company
as if it were a public company:
Provided that the Court, on being
satisfied that the failure to
comply with the conditions was
accidental or due to inadvertence
or to some other sufficient cause,
or that on other grounds it is
just and equitable to grant
relief, may, on the application of
the company or any officer or
member of the company, and on such
terms and conditions as seem to
the Court just and expedient,
order that the company be relieved
of such consequences as aforesaid.
Section 269—Documents to be
Annexed to the Annual Return of a
Private Company.
(1) With the annual return
required by section 122 of this
Code a private company shall send
to the Registrar for registration,
(a) a certificate that the company
has not, since the date of the
last return, or, in the case of
the first return, since the date
of incorporation of the company,
issued any invitation to the
public to acquire any shares or
debentures of the company or to
deposit money with the company;
and
(b) a certificate that the number
of members and debentureholders of
the company does not exceed fifty
or that any excess over fifty
consists solely of persons who are
bona fide in the employment of the
company and persons who, having
been formerly bona fide in the
employment of the company were,
while in that employment, and have
continued after the determination
of that employment to be, members
or debentureholders of the
company; and
either
(c) a copy of every profit and
loss account, balance sheet, and
group accounts circulated to the
members and debentureholders
pursuant to section 124 of this
Code during the period to which
the return relates, and a copy of
the report of the directors and of
the report of the auditors
accompanying such accounts;
or
(d)
(i)
a written statement by the
auditors of the company that, to
the best of their knowledge and
belief the accounts and reports
referred to in section 124 of this
Code have been sent to the members
and debentureholders in accordance
with that section; and
(ii) a copy of the auditors'
report so sent; and
(iii) except in the case of a
company limited by guarantee, a
certificate that, to the best of
the knowledge and belief of the
persons signing the certificate,
no body corporate is or has been
at any time beneficially
interested, otherwise than by way
of security, in any issued shares
of the company, or that if any
body corporate is or has been so
interested it is an exempted body
corporate as defined in subsection
(5) of this section.
(2) The certificates required by
paragraphs (a), (b), and (d) of
subsection (1) of this section
shall be signed by a director and
by the secretary of the company.
(3) The copies required by
paragraph (c) of subsection (1) of
this section shall be certified by
a director and by the secretary of
the company to be true copies.
(4) The copy of the report of the
auditors required by paragraph (d)
of subsection (1) of this section
shall be certified by the auditors
to be a true copy and the
statement referred to in that
paragraph shall be signed by the
auditors.
(5) For the purposes of this
section a body corporate shall be
an exempted body corporate if,
(a) it is not a public company;
(b) it has not at any time issued
any invitation to the public to
acquire any of its shares or
debentures or to deposit money
with it; and
(c) at all times since it became
beneficially interested in any
shares of the company,
(i)
it has not had more than fifty
members and debentureholders, not
including persons who are bona
fide in the employment of the body
corporate and persons who, having
been formerly bona fide in the
employment of company were, while
in that employment, and continued
after the determination of that
employment to be, members or
debentureholders of the company;
and
(ii) no other body corporate,
other than an exempted body
corporate, has been beneficially
interested, other than by way of
security, in any issued shares of
the body corporate.
Section 270—Qualification of
Auditors of Private Companies.
(1) A person shall not be
qualified for appointment as
auditor of a private company
unless,
(a) he is, under the Chartered
Accountants Act, 1963 (Act 170),
a member of the Institute of
Chartered Accountants, or
(b) he is a practising accountant
within the meaning of the said
Act, and is not disqualified under
subsection (3) of this section.
(2) If at any time within ten
years from the commencement of
this Code the Registrar is
satisfied that the provisions of
subsection (1) of this section
have become or are about to become
unworkable by reason of the
shortage in Ghana of persons with
the requisite qualifications, he
may, by legislative instrument
suspend the operation of the said
subsection (1) for such period or
periods, not exceeding in all a
total period of five years, as he
shall think fit, and so long as
such suspension is in operation
any person shall be qualified to
be appointed auditor of a private
company unless disqualified under
subsection (3) of this section.
(3) The following persons shall be
disqualified for appointment as
auditor of a private company, that
is to say,
(a) an officer of the company or
of any associated company;
(b) a person who is a partner of
or in the employment of an officer
of the company or of any
associated company;
(c) an infant;
(d) any person found by a
competent court to be a person of
unsound mind;
(e) a body corporate, except that
members of an incorporated
partnership may be appointed in
the manner provided by subsection
(2) of section 134 of this Code;
(f) any one in respect of whom an
order shall have been made under
section 186 of this Code so long
as such order remains in force
unless leave to act as auditor of
the company concerned has been
given by the Court in accordance
with that section;
(g) an undischarged bankrupt,
unless he shall have been granted
leave to act as auditor of the
company concerned by the court by
which he was adjudged bankrupt;
(h) a person who is for the time
being disqualified from acting as
auditor of a company by order of
the Registrar under subsection (4)
of this section:
Provided that nothing contained in
paragraph (b) of this subsection
shall disqualify,
(a) a person from being appointed
as auditor by reason only of the
fact that he is a partner or in
the employment of a person acting
as secretary or registration
officer of the company or any
associated company;
(b) any person who, prior to the
sixth day of April, 1961, was
acting as auditor of a company
from continuing to act or to be
appointed as auditor of that
company.
(4) The Registrar may, on cause
being shown, by legislative
instrument disqualify any person
otherwise qualified from acting as
auditor of any private company and
may at any time remove such
disqualification.
(5) From any instrument of the
Registrar disqualifying any person
or refusing to remove the
disqualification there shall be a
right to appeal to the Court.
(6) Any person not qualified for
appointment as auditor who shall
act as auditor of a private
company shall be liable to a fine
not exceeding five hundred pounds
and the company by whom he is
appointed and every officer
thereof who is in default shall be
liable to a fine not exceeding
five hundred pounds.
Section 271—Requisitioning
Extraordinary General Meetings of
a Private Company.
(1) The directors of a private
company, notwithstanding any
provision in its Regulations,
shall, on the requisition of any
two or more members of the
company or a single member
holding not less than one-tenth of
the shares of the company, or, in
the case of a company limited by
guarantee, one-tenth of the total
voting rights of all members,
forthwith proceed duly to convene
an extraordinary general meeting
of the company.
(2) The requisition shall state
the nature of the business to be
transacted at the meeting and
shall be signed by the
requisitionists and sent to or
deposited at the registered office
of the company.
(3) If the directors do not,
within seven days from the date of
receipt of the requisition at the
registered office of the company,
proceed duly to convene a meeting
for a date not later than
twenty-eight days thereafter, the
requisitionists or any of them may
themselves convene a meeting but
any meeting so convened shall not
be held after the expiration of
four months from the said date.
(4) Any reasonable expenses
incurred by the requisitionists by
reason of the failure of the
directors duly to convene a
meeting shall be repaid to the
requisitionists by the company,
and any sum so repaid shall be
retained by the company out of any
fees or other remuneration of such
of the directors as were in
default.
(5) For the purposes of this
section, the directors shall be
deemed not to have proceeded duly
to convene a meeting if they do
not, within seven days after the
receipt of the requisition at the
registered office, cause notices
of the meeting to transact the
business specified in the
requisition to be given in
accordance with sections 152 to
155 of this Code.
Section 272—Appointment and
Removal of Directors of Private
Companies.
(1) The appointment and removal of
directors of a private company
shall, subject to sections 180 to
185 of this Code, be regulated by
the company's Regulations.
(2) In the absence of any contrary
provision in the company's
Regulations each of the existing
directors shall continue to hold
office until he vacates office
under section 184 of this Code, or
is removed under section 185 of
this Code; and the company may at
any time by ordinary resolution
fill any vacancy in the number of
directors and may at any time by
ordinary resolution increase the
number of directors so however
that the total number of directors
shall not exceed the maximum, if
any, prescribed by the
Regulations.
Section 273—Conversion of Private
Company to Public Company.
(1) A private company shall be
converted into a public company if
it shall alter its Regulations in
such a manner that they no longer
include all the provisions which,
under subsection (3) of section 9
of this Code, are required to be
included in the Regulations of a
company in order to constitute it
a private company.
(2) Within twenty-eight days after
the date of the special resolution
altering the Regulations the
company shall deliver to the
Registrar for registration,
(a) a copy of the said resolution
in accordance with section 176 of
this Code; and
Seventh Sch.
(b) unless the company is a
company limited by guarantee, a
prospectus complying with the
provisions of the Seventh Schedule
to this Code, or a statement in
lieu of prospectus complying with
the provisions of the Sixth
Schedule to this Code.
Sixth Sch.
(3) The Registrar shall cause
notice of the conversion of the
company to be published in the
Gazette.
(4) If default is made in
complying with subsection (1) or
(2) of this section the company
and every officer of the company
who is in default shall be liable
to a fine not exceeding one
hundred pounds.
CHAPTER IV—ADDITIONAL PROVISIONS
APPLICABLE TO PUBLIC COMPANIES
ONLY
Part A—Prospectuses and Statements
in Lieu of Prospectus
Section 274—Statement in Lieu of
Prospectus.
(1) A public company shall, within
twenty-eight days after its
incorporation, or after its
conversion from a private company
in accordance with section 273 of
this Code, deliver to the
Registrar for registration a
statement in lieu of prospectus,
signed by every person who is
named therein as a director or a
proposed director of the company
or by his agent authorised in
writing, in the form and
containing the particulars set out
in Part I of the Sixth Schedule to
this Code and, in the cases
mentioned in Part II of that
Schedule, accompanied by the
accounts and reports specified
therein:
Provided that this subsection
shall not apply to,
(a) any company limited by
guarantee;
(b) any company which, within
twenty-eight days after its
incorporation or conversion from a
private company, delivers for
registration a prospectus
complying in all respects with the
Seventh Schedule to this Code.
Seventh Sch.
(2) Every existing company shall,
within six months after the
commencement of this Code, deliver
to the Registrar for registration
a like statement in lieu of
prospectus signed by every
director of the company or by his
agent authorised in writing:
Provided that this subsection
shall not apply to any existing
company which, prior to the
expiration of such six months,
(a) alters its Regulations so as
to convert the company into a
private company by inserting in
its Regulations the conditions
specified in subsection (3) of
section 9 of this Code; or
(b) is converted into a company
limited by guarantee in accordance
with section 11 of this Code; or
(c) registers and publishes a
prospectus complying in all
respects with the Seventh Schedule
to this Code;
Seventh Sch.
and for the purposes of subsection
(4) of this section an existing
company shall be deemed to be a
company to which this subsection
applies until it has complied with
proviso (a), (b) or (c) of this
subsection.
Sixth Sch.
(3) Every statement in lieu of
prospectus delivered under the
foregoing subsections shall, where
the persons making any such report
as is specified in Part II of the
said Sixth Schedule have made any
such adjustments as are mentioned
in paragraph 27 of such Schedule,
have endorsed thereon or attached
thereto a written statement signed
by those persons setting out the
adjustments and giving the reason
therefor.
(4) A company to which subsection
(1) or (2) of this section
applies, shall not, after the
commencement of this Code, issue
any of its shares or debentures
until after the expiration of
seven days after the statement in
lieu of prospectus has been
delivered to the Registrar:
Provided that this subsection
shall not prohibit the issue to
the subscribers of the Regulations
of the number of shares for which
each has subscribed.
(5) If any shares are issued in
contravention of the immediately
preceding subsection any person to
whom they are allotted shall be
entitled to rescind the allotment
at any time within three months of
the allotment notwithstanding that
the company is in course of being
wound up, and every director of
the company who knowingly
contravenes or permits the
contravention shall be liable to
compensate the company and the
allottee respectively for any loss
which the company or the allottee
may have sustained thereby.
(6) If a company contravenes
subsection (1), (2) or (3) of this
section, the company and every
officer of the company who is in
default shall be liable to a fine
not exceeding one hundred pounds.
(7) Where a statement in lieu of
prospectus delivered to the
Registrar under subsection (1) or
(2) of this section includes any
untrue statement or omits
truthfully to state any of the
particulars required to be stated
by virtue of the Sixth Schedule
then,
(a) any person, which expression
for the purposes of this
subsection shall not include the
company itself, who authorised the
delivery of the statement in lieu
of prospectus for registration
shall be liable to imprisonment
for a term not exceeding two years
or to a fine not exceeding one
hundred pounds or both, unless he
shall prove either that the untrue
or omitted statement was
immaterial or that he had
reasonable grounds to believe and
did, up to the time of delivery
for registration of the statement
in lieu of prospectus, believe
that the untrue statement was
true;
(b) an allottee who acquired any
shares or debentures in the
company in reliance on the
statement in lieu of prospectus
and who was misled by the untrue
statement or omission shall be
entitled to rescind the allotment
of such shares or debentures and
to recover from any person guilty
of an offence under the foregoing
paragraph, whether convicted or
not, compensation for any loss
which he has suffered by reason
of such reliance:
Provided that an allottee shall
not be entitled to rescission
under this subsection unless he
claims to rescind with reasonable
promptitude after discovering that
an untrue statement or omission
was made, and, in any case, prior
to the winding up of the company;
(c) any person who acquires any
shares or debentures in the
company from an allottee in
reliance on the statement in lieu
of prospectus and who was misled
by the untrue statement or
omission shall be entitled to
recover from any person guilty of
an offence under paragraph (a) of
this subsection, whether convicted
or not, compensation for any loss
which he has suffered by reason of
such reliance.
Section 275—Prospectus on
Invitations to the Public to
Acquire or Dispose of Securities.
(1) Notwithstanding section 265 of
this Code it shall be lawful to
make an invitation to the public
to acquire or dispose of any
shares or debentures of a public
company if,
(a) within six months prior to the
making of the invitation there has
been delivered to the Registrar
and registered by him in
accordance with section 279 of
this Code a prospectus relating to
such shares or debentures
complying in all respects with the
relevant provisions of sections
276 to 278 of this Code; and
(b) except as provided in
subsection (2) of this section,
every person to whom the
invitation is made is supplied
with a true copy of such
prospectus at the time when the
invitation is first made to him;
and
(c) every copy of the prospectus
states on its face that it has
been registered by the Registrar
and the date of registration.
(2) Paragraph (b) of the foregoing
subsection shall not apply to an
invitation made by or through a
member of an approved stock
exchange to a client of that
member or to an invitation made by
or through an exempted dealer or
to an invitation made by a summary
complying with subsection (3) of
this section. [As amended by the
Companies Code (Amendment) Act
1994 (Act 474) s. 4(a)].
(3) It shall be lawful to publish
by newspaper advertisement or
otherwise a summary of the
contents of a prospectus, duly
registered in accordance with
section 279 of this Code, so long
as the summary
(a) does not contain any form of
application for any shares or
debentures which has not been
approved by the Registrar or, in
respect of shares or debentures
dealt in or to be dealt in upon an
approved stock exchange by such
stock exchange;
(b) states with reasonable
prominence where copies of the
full prospectus may be obtained
and the fact that it has been
registered and the date of
registration;
(c) is in terms previously
approved by the registrar, or,
where the shares or debentures
concerned are dealt in upon an
approved stock exchange or where
the prospectus or summary states
that application is to be made to
an approved stock exchange for
permission to deal thereon in such
shares or debentures, is in terms
previously approved by such stock
exchange. [As substituted by the
Companies Code (Amendment) Act,
1994 (Act 474) s. 4(b)].
Section 276—General and Restricted
Invitations to the Public.
Seventh Sch.
(1) Except as provided in section
277 of this Code, where the
invitation invites the public to
acquire any shares or debentures
of a public company, the
prospectus referred to in the
immediately preceding section
shall state the matters specified
in Part I of the Seventh Schedule
to this Code and set out the
reports specified in Part II of
that Schedule:
Provided that this subsection
shall not apply to,
(a) an invitation by a company in
respect of shares or debentures of
that company or any of its
associated companies made solely
to the existing shareholders or
debentureholders of that company;
or
(b) an invitation by a company in
respect of shares or debentures of
that company which are in all
respects uniform with shares or
debentures of that company
previously issued and for the time
being dealt in on an approved
stock exchange.
Seventh Sch.
(2) A prospectus relating to any
invitation to the public to
acquire or dispose of any shares
or debentures of a public company,
being an invitation not falling
within subsection (1) of this
section, either because it does
not invite the public to acquire
any shares or debentures or
because it is excluded from the
ambit of that subsection by virtue
of the proviso thereto, need not
state all the matters or set out
the reports specified in the
Seventh Schedule to this Code; but
shall not contain any untrue
statement and, if the shares or
debentures to which it relates are
dealt in on any stock exchange,
whether in Ghana or elsewhere, or
if application has been, or is
being, made to a stock exchange
for permission to deal in those
shares or debentures the
prospectus,
(a) shall state that the shares or
debentures are dealt in on that
stock exchange or, as the case may
be, that application has been or
is to be made for permission to
deal therein on that stock
exchange; and
(b) shall state whether or not
that stock exchange is an approved
stock exchange within the meaning
of this Code; and
(c) shall contain the particulars
and information required by that
stock exchange;
and in any other case shall state
that the shares or debentures are
not dealt in on any stock
exchange.
(3) An invitation falling within
subsection (1) of this section is
hereafter in this Code described
as a general invitation; and an
invitation falling within
subsection (2) of this section is
hereafter in this Code described
as a restricted invitation.
Section 277—Certificates of
Exemption.
Seventh Sch.
(1) Where it is proposed to make a
general invitation to the public
to acquire any shares or
debentures of a public company and
application is made to an approved
stock exchange for permission for
those shares or debentures to be
dealt in on that stock exchange
there may, on the request of the
applicant, be given by or on
behalf of that stock exchange a
certificate of exemption, that is
to say, a certificate that, having
regard to the proposals, as stated
in the request, as to the size and
other circumstances of the
invitation, compliance with the
requirements of the Seventh
Schedule would be unduly
burdensome.
Seventh Sch.
(2) If a certificate of exemption
is granted and if the proposals
aforesaid are adhered to, a
prospectus containing the
particulars and information
required by the said stock
exchange if duly published in the
manner required by such stock
exchange shall be deemed to be a
prospectus complying with the
Seventh Schedule to this Code.
Section 278—Expert's Consent.
(1) If any prospectus relating to
an invitation to the public in
respect of any shares or
debentures of a public company,
whether a general invitation or a
restricted invitation, includes a
statement purporting to be made by
an expert, the prospectus shall
not be delivered for registration
unless,
(a) such expert has given his
written consent, and has not,
before delivery of the prospectus
for registration in accordance
with section 279 of this Code,
withdrawn such consent, to the
publication of the prospectus with
the inclusion of the statement in
the form and context in which it
is included; and
(b) a statement that he has given
and not withdrawn his consent
appears in the prospectus.
(2) If, after delivery of the
prospectus for registration but
prior to registration thereof any
such expert withdraws his consent
the person who has delivered the
prospectus for registration shall
immediately notify the Registrar.
(3) In this section the expression
"expert" includes engineer, valuer,
accountant, assayer, and any other
person whose profession or calling
gives authority to a statement by
him.
Section 279—Registration of
Prospectuses.
(1) Every prospectus delivered to
the Registrar for registration
pursuant to section 275 of this
Code shall be delivered in
triplicate.
(2) Where a general invitation is
being made by or on behalf of a
company in respect of its shares
or debentures, one copy of the
prospectus delivered to the
Registrar shall be signed by every
person who is named therein as a
director or proposed director of
the company or by his agent
authorised in writing as well as
being signed, in the manner
referred to in subsections (3) and
(4) of this section, by or on
behalf of any other person also
making the invitation.
(3) In every case one copy of the
prospectus so delivered shall be
signed by the person making the
invitation or by his agent
authorised in writing.
(4) Where the person making the
invitation is a firm or body
corporate it shall be sufficient
if the prospectus is signed by or
on behalf of the firm or body
corporate by not less than half
the partners or by not less than
two directors of the body
corporate, and any such partner
or director may sign by his agent
authorised in writing.
(5) One copy of the prospectus so
delivered shall have endorsed
thereon or attached thereto,
(a) any consent of an expert
required by section 278 of this
Code; and
(b) in the case of a prospectus
relating to a general invitation,
a certified copy or translation of
each of the documents required to
be available for inspection in
accordance with paragraph 45 of
the Seventh Schedule to this
Code, or, where a certificate of
exemption has been granted
pursuant to section 277 of this
Code, required to be available for
inspection under the regulations
of the stock exchange:
Provided that if a copy or
translation of any such document
has already been delivered by the
company to the Registrar for
registration, the Registrar may
dispense with the need to endorse
or attach a further copy thereof
if, in the opinion of the
Registrar, the copy originally
delivered is readily identifiable
and accessible.
(6) If the prospectus relates to
shares or debentures dealt in on
an approved stock exchange or
states that application has been
or will be made to an approved
stock exchange for permission to
deal in the shares or debentures
to which it relates, there shall
be delivered to the Registrar with
the prospectus a certificate
signed by or on behalf of that
approved stock exchange that,
(a) the prospectus has been
scrutinised by the stock exchange;
and
(b) its requirements relating to
the contents thereof have been
satisfied;
and the Registrar shall thereupon
register the prospectus within
forty-eight hours of the delivery
of the prospectus to him, unless
it is incomplete or irregular on
its face or unless, prior to
registration, any consent of an
expert required by section 278 of
this Code has been withdrawn.
(7) If the prospectus relates to
any invitation made by or through
an exempted dealer there shall be
delivered to the Registrar with
the prospectus a certificate
signed by or on behalf of that
exempted dealer that,
(a) he accepts personal
responsibility for the contents of
the prospectus; and
(b) it complies in all respects
with the provisions of this Code;
and the Registrar shall thereupon
register the prospectus within
forty-eight hours of the delivery
of the prospectus to him unless it
is incomplete or irregular on its
face or unless,prior to
registration any consent of an
expert required by section 278 of
this Code has been withdrawn.
(8) In any case not falling within
subsection (6) or (7) of this
section the Registrar shall
register the prospectus and any
documents required to be endorsed
thereon or attached thereto at the
expiration of twenty-one days from
the delivery to him in accordance
with subsection (1) of this
section, or such shorter time as
he may allow in any particular
case, unless,
(a) any consent of an expert
required by section 278 has been
withdrawn; or
(b) in the opinion of the
Registrar, the prospectus does not
comply with the provisions of this
Code or contains any untrue
statement or omits to state any
material fact or is otherwise
incomplete or misleading;
in which case he shall refuse to
register the same until any
necessary consents are given or
the prospectus is amended to the
Registrar's satisfaction.
(9) From any refusal by the
Registrar to register a prospectus
the company or any other person
who has delivered the prospectus
for registration may apply to the
Court which, after hearing the
applicant and the Registrar, and
such evidence as they may call,
may either order the Registrar to
register the prospectus or may
dismiss the application and
prohibit any person before the
Court from publishing the
prospectus until it has been
amended to the satisfaction of the
Registrar.]
(9a) In any case not falling
within subsection (5) or (6) of
this section the Registrar may,
for the purpose of reaching an
opinion on whether a prospectus—
(a) does not comply with the
provisions of this Code; or
(b) contains any untrue statement;
or
(c) omits to state any material
fact; or
(d) is otherwise incomplete or
misleading,
refer the prospectus to the
Securities Regulatory Commission
for its opinion and in such a case
the Commission shall give its
opinion with the period of 21
days, in relation to the
prospectus, referred to in
subsection (8) of this section.1
[As inserted by the Securities
Industry Law, 1993 (PNDCL 333) s.
145 ss 1. ]
(10) If the Court orders the
prospectus to be registered it
shall be registered by the
Registrar upon delivery to him of
an office copy of the order.
(11) Every copy of any prospectus
which has been delivered for
registration in accordance with
the provisions of this section
shall state at its head the
following:
"A copy of this prospectus has
been delivered to the Registrar of
Companies, Ghana, for
registration. The Registrar has
not checked and will not check the
accuracy of any statements made
and accepts no responsibility
therefor or for the financial
soundness of the company or the
value of the securities
concerned".
(12) Until the contrary is shown,
the first publication of the
prospectus shall be assumed to
have occurred on the date of
registration thereof.
Section 280—Meaning of "Approved
Stock Exchange" and "Exempted
Dealer".
(1) For the purposes of this Code
"approved Stock exchange" means a
body corporate approved as a stock
exchange under section 25 of the
Securities Industry Law, 1993 (PNDCL
333). [As amended by the
Securities Industry Law, 1993 (PNDCL
333) s. 145 ss 2. ]
(2) It shall be the duty of every
approved stock exchange to furnish
to the Registrar as at the first
day of January in each year, and
at any other time if called upon
by the Registrar to do so, a list
showing,
(a) the name and business address
and the style under which he
carries on business of each person
who at the date of the list is a
member of that stock exchange, and
if a body corporate, the name of
each of the directors thereof; and
(b) the names of all persons who
are for the time being authorised
by that member to deal in
securities on his behalf.
(3) The Minister may, by
legislative instrument, declare
any person, firm or body corporate
carrying on business in Ghana to
be an exempted dealer, whereupon,
so long as the instrument remains
in force, such person, firm or
body corporate shall be an
exempted dealer for the purposes
of this Code.
Section 281—Waiting Period.
(1) For the purpose of this Code
the expression "the waiting
period" means a period of ten days
after the first publication of a
registered prospectus or such
longer period as may be stated in
the prospectus as the period prior
to the expiration of which
applications, offers or
acceptances in response thereto
will not be accepted or treated as
binding:
Provided that,
(a) where the shares or debentures
to which the invitation relates
are dealt in on a stock exchange
or where the prospectus states
that application has been or will
be made for permission to deal
therein on any stock exchange,
and
(b) to comply with the
requirements of that stock
exchange it is necessary to
advertise the prospectus in one or
more newspapers,
then the publication of the
prospectus shall not be deemed to
have occurred until the prospectus
is so advertised.
(2) No binding contract or legally
enforceable obligation shall be
entered into in response to any
invitation to the public in
respect of any shares or
debentures of any public company
until after the expiration of the
waiting period, and any
application, offer or acceptance
by any person in response to the
invitation shall be revocable by
such person at any time prior to
the expiration of the waiting
period:
Provided that nothing in this
subsection shall invalidate any
bona fide underwriting agreement
in respect of any such shares or
debentures.
Section 282—Withdrawal of
Applications after the Waiting
Period.
Where a general invitation is made
to the public in respect of any
shares or debentures of a public
company, an application for such
shares or debentures shall not be
revocable during a period of seven
days immediately after the
expiration of the waiting period
unless, prior to the expiration of
the period of seven days, some
person responsible for the
prospectus has, in accordance with
section 286 of this Code, given
public notice having the effect
under that section of excluding or
limiting the responsibility of the
person giving it.
Section 283—Invitations in Respect
of Securities to be dealt in on a
Stock Exchange.
(1) Where a prospectus, issued in
connection with any general or
restricted invitation to the
public to acquire any shares or
debentures in a public company,
states that application has been
or will be made for permission for
such shares or debentures to be
dealt in on a stock exchange, any
agreement to acquire such shares
or debentures made in pursuance of
such prospectus shall become void
if the application is refused by
that stock exchange or if
permission to deal in the shares
or debentures is not granted
within twenty-eight days after the
expiration of the waiting period.
(2) If any agreement becomes void
in accordance with the foregoing
subsection, the person or persons
making the invitation shall
forthwith repay and restore
without interest all money and
other property received from any
person in response to the
invitation.
(3) If any money or other property
is not repaid or restored in
accordance with subsection (2) of
this section within eight days
after it becomes repayable or
returnable, the person or persons
making the invitation and, in the
case of a body corporate, the
directors of that body corporate
shall be jointly and severally
liable to repay that money or
restore that property with
interest at the rate of five per
centum per annum on the amount or
value thereof from the expiration
of the eighth day:
Provided that a director shall not
be liable if he proves that the
default in the repayment of the
money was not due to any
misconduct or negligence on his
part.
(4) So long as the persons making
the invitation may become liable
to repay any money in accordance
with subsection (2) of this
section, all moneys received from
any persons in response to the
invitation shall be kept in a
separate bank account and shall be
deemed to be held on trust to give
effect to the provisions of this
section; and if default is made in
complying with this subsection,
the persons making the invitation
and, in the case of a body
corporate, every officer thereof
who is in default shall be liable
to a fine not exceeding five
hundred pounds.
Section 284—Minimum Subscription.
(1) Where any public company makes
a general invitation to the public
to subscribe for any of its shares
or debentures, the amount payable
on application for such shares or
debentures shall not be less than
twenty per centum of the
subscription price.
Seventh Sch.
(2) Unless, within twenty-eight
days of the expiration of the
waiting period, the amount stated
in the prospectus as the minimum
amount which, in the opinion of
the directors, must be raised in
order to provide for the matters
specified in sub-paragraph (b) of
paragraph 24 of the Seventh
Schedule to this Code, hereinafter
called the minimum subscription,
has been subscribed and the amount
payable on application for the
minimum subscription has been paid
to and received by the company,
any agreement to subscribe for any
such shares or debentures shall
become void at the expiration of
such twenty-eight days.
(3) If any agreement becomes void
in accordance with the last
foregoing subsection, the company
shall forthwith repay without
interest all moneys received from
any persons in response to the
invitation.
(4) If any money is not repaid in
accordance with subsection (3) of
this section within eight days
after it becomes repayable, the
directors of the company shall be
jointly and severally liable to
repay that money with interest at
the rate of five per centum per
annum from the expiration of the
eighth day:
Provided that a director shall not
be liable if he proves that the
default in the repayment of the
money was not due to any
misconduct or negligence on his
part.
(5) So long as the company may
become liable to repay any money
in accordance with subsection (3)
of this section, all moneys
received from any person in
response to the invitation shall
be kept in a separate bank account
and shall be deemed to be held on
trust to give effect to the
provisions of this section; and if
default is made in complying with
this subsection the company and
every officer of the company who
is in default shall be liable to a
fine not exceeding five hundred
pounds.
Section 285—Application of
Sections 275 to 279, and 281 to
284 to Authorised Mutual Funds.
In relation to any invitation to
the public to acquire or dispose
of any shares in a public company
which, pursuant to section 319 of
this Code, has been declared to be
an authorised mutual fund, the
provisions of sections 275 to 279
and 281 to 284 of this Code shall
have effect subject to the terms
of any instrument made by the
Registrar under the said section
319.
Section 286—Civil Remedy for Mis-statements
or Omissions in a Prospectus.
(1) Where a prospectus published
in connection with any general or
restricted invitation to the
public in respect of any shares or
debentures of a public company
contains any untrue statement or
omits to state any of the
particulars or to set out any of
the reports which, under the
foregoing sections of this Code,
it is required to state or set
out, then, subject to the
provisions of this section, every
person enumerated in subsection
(2) of this section shall be
liable to pay compensation to any
persons who acquire or dispose of
any shares or debentures on the
faith of the prospectus for any
loss they may have sustained by
reason of such untrue statement or
omission.
(2) Subject to the provisions of
this section, the following
persons shall be liable to pay
compensation in accordance with
subsection (1) of this section,
namely,
(a) every person making the
invitation to which the prospectus
relates;
(b) every person who was a
director of a body corporate
making the invitation at the time
when the prospectus was published;
(c) where the invitation was made
by the company to whose shares or
debentures the invitation relates,
(i)
every person who has authorised
himself to be named and is named
in the prospectus as a director or
as having agreed to become a
director, either immediately or
after an interval of time;
(ii) every promoter of the company
who was a party to the preparation
of the prospectus: and
(d) every person who, pursuant to
section 278 of this Code, has
consented to the publication of
the prospectus containing a
statement by him as an expert.
(3) No person shall be liable
under the foregoing subsections of
this section if he proves,
(a) that as regards every untrue
statement, not purporting to be
made on the authority of an
expert, other than himself, or of
a public official document or
statement, he had reasonable
grounds to believe and did believe
up to the time of the publication
of the prospectus or, where any
waiting period applies, up to the
expiration of the waiting period,
that the statement was true;
(b) that as regards any omission,
he was not cognisant thereof up to
the time of the publication of the
prospectus or, where any waiting
period is applicable, up to the
expiration of the waiting period;
(c) that as regards every untrue
statement purporting to be a
statement by an expert, other than
himself, or contained in what
purports to be a copy of or
extract from a report or valuation
of an expert, it fairly
represented the statement, or was
a correct and fair copy of or
extract from the report or
valuation, and that he had
reasonable grounds to believe and
did believe up to the time of the
publication of the prospectus that
the person making the statement
was competent to make it and had
given the consent required by
section 278 of this Code and had
not withdrawn that consent before
the date of registration of the
prospectus;
(d) that as regards every untrue
statement purporting to be a
statement made by an official
person or contained in what
purports to be a copy of or
extract from a public official
document, it was a correct and
fair representation of the
statement or copy of or extract
from the document;
(e) that after the publication of
the prospectus but before the
expiration of any waiting period
he, on becoming aware of any
untrue statement therein or
omission therefrom, withdrew his
consent thereto and gave
reasonable public notice of the
withdrawal and of the reason
therefor; or
(f) that the prospectus was
published without his knowledge
and that, on becoming aware of its
publication, he forthwith gave
reasonable public notice that it
was published without his
knowledge.
(4) A person enumerated in
subparagraph (i) of paragraph (c)
of subsection (2) of this section
shall not be liable under
subsections (1) and (2) of this
section if he proves that having
consented to being named as a
director or as having agreed to
become a director he withdrew his
consent before the registration of
the prospectus and that it was
published without his authority or
consent.
(5) A person enumerated in
paragraph (d) of subsection (2) of
this section shall not be liable
under subsections (1) and (2) of
this section,
(a) if the untrue statement or
omission was not made by him; or
(b) if he proves,
(i)
that as regards any untrue
statement made by him, he was
competent to make the statement
and that he had reasonable grounds
to believe and did believe, up to
the date of publication of the
prospectus or, where any waiting
period applies, up to the
expiration of the waiting period,
that the statement was true;
(ii) that having given his consent
under section 278 of this Code he
withdrew it in writing before
delivery of the prospectus for
registration; or
(iii) that, after delivery of the
prospectus for registration but
before publication thereof, or,
where any waiting period applies,
before the expiration of the
waiting period, he, on becoming
aware of the untrue statement or
omission, withdrew his consent in
writing and gave reasonable public
notice of the withdrawal, and of
the reason therefor.
(6) Where,
(a) any person is named in a
prospectus as a director of a
company or as having agreed to
become a director of a company,
and he has not consented to become
a director or has withdrawn his
consent before the publication of
the prospectus and has not
authorised or consented to the
publication thereof, or
(b) the consent of a person is
required under section 278 of this
Code to the publication of the
prospectus and he either has not
given that consent or has
withdrawn it before the
publication of the prospectus,
every person making the invitation
to which the prospectus relates
and every person who was a
director of any body corporate
making the invitation at the time
when the prospectus was published,
except any without whose knowledge
or consent the prospectus was
published, shall be liable to
indemnify the person referred to
in paragraph (a) or (b) of this
subsection against all damages,
costs, and expenses to which he
may be made liable by reason of
his name having been inserted in
the prospectus or of the inclusion
therein of a statement purporting
to be made by him as an expert, or
in defending himself against any
legal proceeding brought against
him in respect thereof.
Section 287—Recission for Mis-statements
in a Prospectus.
(1) If any person acquires any
shares or debentures of a public
company from that company or
disposes of any shares or
debentures of a public company to
that company as a result of an
untrue statement of a material
fact made, whether innocently or
fraudulently, in a prospectus
published in connection with any
invitation to the public made by
or on behalf of that company, such
person shall, subject to
subsection (2) of this section, be
entitled to rescind the
acquisition or disposition of the
shares or debentures.
(2) Such person shall not be
entitled to rescission unless he
claims to rescind with reasonable
promptitude after discovering that
the untrue statement was made and,
in any case prior to the
commencement of the winding up of
the company.
Section 288—Voting Rights of
Shares Offered to the Public.
(1) No invitation shall be made to
the public to acquire any shares
in a public company unless the
voting rights attached to all the
shares of the company,
notwithstanding that they may have
been issued before the
commencement of this Code, are
such as are required by sections
49 and 50 of this Code in the case
of shares issued after the
commencement of this Code.
(2) If any person shall make an
invitation to the public in breach
of this section he shall be liable
to a fine not exceeding one
thousand pounds and if the
invitation is made by or on behalf
of the company, the company, and
every officer of the company who
is in default, shall be liable to
a like fine.
Section 289—Public Invitations to
Deposit Money with Public
Companies.
(1) Notwithstanding section 265 of
this Code it shall be lawful to
make an invitation to the public
to deposit money with a public
company if,
(a) the public company is
licensed, under section 24 of the
Companies Ordinance (Cap. 193) or
any statutory re-enactment
thereof, to carry on banking
business; or
(b) prior to the making of the
invitation the written consent of
the Registrar has been obtained to
the making thereof and the
invitation is made in accordance
with such conditions and
restrictions as he has imposed.
(2) The Registrar may, in his
absolute discretion grant or
withhold such consent as is
referred to in paragraph (b) of
subsection (1) of this section
and, without prejudice to the
generality of the foregoing, may
require the registration with and
approval by him of any
advertisement or circular to be
used in connection with the
invitation.
(3) If any advertisement or
circular used in connection with
the invitation contains any untrue
statement then, subject to
subsection (4) of this section,
any person who made the invitation
and every person who was a
director of a body corporate
making the invitation at the time
when the advertisement or circular
was published, shall be liable to
pay compensation to any persons
who deposited money with the
public company on the faith of the
advertisement or circular for any
loss they may have sustained by
reason of such untrue statement.
(4) No person shall be liable
under subsection (3) of this
section if he proves,
(a) that he had reasonable grounds
to believe and did believe up to
the time of publication of the
advertisement or circular that the
statement was true; or
(b) that the advertisement or
circular was published without his
knowledge and that on becoming
aware of its publication he
forthwith gave reasonable public
notice that it was published
without his knowledge.
(5) If any person deposits any
money with a public company as a
result of an untrue statement of a
material fact made, whether
innocently or fraudulently, in any
advertisement or circular
published in connection with any
invitation to the public made by
or on behalf of that company such
person shall be entitled to
require the company immediately to
repay such money with interest at
the rate of five per centum per
annum or such higher rate as may
have been agreed to be paid on the
deposit.
Section 290—Prohibition of Waiver
and Notice Clauses.
A
condition purporting to require or
bind any person to waive
compliance with any of the
foregoing sections of this Part of
this Code or purporting to affect
him with notice of any contract,
document or matter, not
specifically referred to in any
prospectus or statement in lieu of
prospectus, advertisement or
circular, shall be void.
Section 291—Criminal Liability for
Mis-statements.
(1) Where a prospectus,
advertisement or circular
published in relation to any
invitation to the public to
acquire or dispose of any shares
or debentures of a company or to
deposit money with a company,
(a) contains any untrue statement,
or
(b) omits truthfully to state any
of the matters which, under the
foregoing sections of this Part of
this Code, it is required to
state,
any person who authorised the
publication of the prospectus,
advertisement or circular shall be
liable on conviction to
imprisonment for a term not
exceeding two years or a fine not
exceeding one thousand pounds or
both, or in the case of a body
corporate to a fine not exceeding
one thousand pounds, unless he
proves, either that the untrue or
omitted statement was immaterial
or that he had reasonable grounds
to believe and did believe, up to
the time of publication of the
prospectus, that the statement was
true.
(2) For the purposes of this
section a person shall not be
deemed to have authorised the
publication of a prospectus by
reason only of his having given
the consent required by section
278 of this Code and the Register
shall not be deemed to have
authorised the publication of an
advertisement or circular by
reason of his having given the
consent referred to in section 289
of this Code.
Section 291A.—"Discretion of
Registrar to Waive or Modify the
Application of Part A of Chapter
IV.
(1) Notwithstanding any other
provisions of this Code, the
Registrar, in his absolute
discretion may waive or modify the
requirements of any of the
provisions of Part A of Chapter IV
of this Code in relation to an
invitation to the public to
acquire or dispose of any shares
or debentures of a company or to
deposit money with the company for
a fixed period or payable at call,
whether bearing or not bearing
interest.
(2) Any such invitation and any
prospectus relating thereto shall
be deemed to comply with this Code
to the extent that the Registrar
has waived or modified any of such
requirements. [As inserted by the
Companies Code (Amendment) by the
Company Code (Amendment) Act, 1944
(Act 474) s. 5].
Part B—Dividends and Transfers
Section 292—Limitation on
Liability of Shareholders in
Public Companies to Restore
Illegal Dividends.
If a public company pays a
dividend in contravention of
subsection (1) of section 71 of
this Code, a shareholder therein
shall not be liable to restore to
the company any amount received by
him in respect of such dividend if
he shall show that, at the time
when he received the same, he did
not know that the payment
contravened the subsection.
Section 293—Interim Dividends.
The directors of a public company
with shares may, unless the
Regulations of the company shall
otherwise provide, from time to
time pay to the shareholders of
the company interim dividends on
account of dividends to be
declared by the company in
accordance with section 73 of this
Code:
Provided that,
(a) no payment shall be made in
contravention of subsection (1) of
section 71 of this Code; and
(b) if a payment is made in
contravention of such subsection
the persons specified in
subsection (2) of the said section
71 shall be liable to restore the
same to the company with interest
in accordance with that subsection
as qualified by section 292 of
this Code.
Section 294—Restrictions on the
Transferability of Securities of
Public Companies.
(1) Notwithstanding subsection (2)
of section 95 of this Code, the
Regulations of a public company
shall not impose any restriction
on the right to transfer any
shares of the company and if the
Regulations purport to impose any
such restriction it shall be
ineffective:
Provided that this subsection
shall not,
(a) prohibit any restriction on
the right to transfer any shares
on which there is an unpaid
liability; or
(b) preclude any company from
refusing to register a transfer of
shares to any person who is an
infant or to any one found by a
competent court to be a person of
unsound mind.
(2) Notwithstanding subsection (2)
of section 97 of this Code, a
public company shall not after the
commencement of this Code issue
any debenture of the company which
imposes any restriction on the
right to transfer such debenture
and if the debenture purports to
contain any such restriction it
shall be ineffective:
Provided that this subsection
shall not render ineffective any
restriction contained in a
debenture issued before the
commencement of this Code or while
the company was a private company.
Part C—Annual Returns and Auditors
Section 295—Documents to be
Annexed to Annual Returns of a
Public Company.
The annual return of every public
company required by section 122 of
this Code shall be accompanied by
a copy, certified both by a
director and the secretary of the
company to be a true copy, of
every balance sheet, profit and
loss account, group accounts,
directors' report and auditors'
report sent to members and
debentureholders of the company in
accordance with section 124 of
this Code during the period to
which the return relates.
Section 296—Qualification of
Auditors of a Public Company.
(1) A person shall not be
qualified for appointment as
auditor of a public company
notwithstanding that he may have
been appointed auditor thereof
while it was a private company,
unless he is, under the Chartered
Accountants Act, 1963 (Act 170) a
member of the Institute of
Chartered Accountants; and is not
disqualified under subsection (2)
of this section.
(2) The following persons shall be
disqualified for appointment as
auditor of a public company,
namely,
(a) an officer of the company, or
of any associated company;
(b) a person who is a partner of
or in the employment of an officer
of the company, or of any
associated company;
(c) an infant;
(d) any person found by a
competent court to be a person of
unsound mind;
(e) a body corporate, except that
members of an incorporated
partnership may be appointed in
the manner provided by subsection
(2) of section 134 of this Code;
(f) any one in respect of whom an
order shall have been made under
section 186 of this Code so long
as such order remains in force
unless leave to act as auditor of
the company concerned has been
given by the Court in accordance
with that section;
(g) an undischarged bankrupt,
unless he shall have been granted
leave to act as auditor of the
company concerned by the court by
which he was adjudged bankrupt;
(h) a person who is for the time
being disqualified from acting as
auditor of a company by instrument
of the Registrar under subsection
(3) of this section:
Provided that nothing contained in
paragraph (b) of this subsection
shall disqualify a person from
being appointed as auditor by
reason only of the fact that he is
a partner or in the employment of
a person acting as secretary or
registration officer of the
company of any associated company.
(3) The Registrar may, on cause
being shown, by legislative
instrument disqualify any person
from acting as auditor of any
public company and may at any time
remove such disqualification.
(4) From any instrument of the
Registrar disqualifying any person
or refusing to remove the
disqualification there shall be a
right of appeal to the Court.
(5) Any person not qualified for
appointment as auditor who shall
act as auditor of a public company
shall be liable to a fine not
exceeding five hundred pounds and
the company by whom he is
appointed and every officer
thereof who is in default shall be
liable to a like fine.
Part D—General Meetings
Section 297—Extraordinary General
Meetings of Public Companies.
(1) The directors of a public
company, notwithstanding anything
in its Regulations, shall, on the
requisition of members of the
company holding not less than
one-twentieth of the shares of the
company, or, in the case of a
company limited by guarantee,
members of the company
representing not less than
one-twentieth of the total voting
rights of all members of the
company, forthwith proceed duly to
convene an extraordinary general
meeting of the company.
(2) The requisition shall state
the nature of the business to be
transacted at the meeting and
shall be signed by the
requisitionists and sent to or
deposited at the registered office
of the company, and may consist of
several documents in like form
each signed by one or more
requisitionists.
(3) If the directors do not,
within twenty-eight days from the
date of receipt of the requisition
at the registered office of the
company, proceed duly to convene a
meeting for a date not later than
twenty-eight days thereafter the
requisitionists, or any of them,
may themselves convene a meeting
but any meeting so convened shall
not be held after the expiration
of four months from the said date.
(4) Any reasonable expenses
incurred by the requisitionists by
reason of the failure of the
directors duly to convene a
meeting shall be repaid to the
requisitionists by the company,
and any sum so repaid shall be
retained by the company out of any
fees or other remuneration of such
of the directors as were in
default.
(5) For the purposes of this
section, the directors shall be
deemed not to have proceeded duly
to convene a meeting if they do
not, within twenty-eight days of
the receipt of the requisition at
the registered office, cause
notices of the meeting to transact
the business specified in the
requisition to be given in
accordance with sections 152 to
155 of this Code.
Part E—Directors
Section 298—Rotation of Directors
of a Public Company.
Subject to sections 181 to 185 and
section 300 of this Code, and
except as otherwise provided in
the company's Regulations, the
following rules shall apply to the
retirement and appointment of
directors of a public company,
that is to say,
(a) at the first annual general
meeting of the company all the
directors shall retire from
office, and at the annual general
meeting in every subsequent year
one-third of the directors for the
time being or, if their number is
not three or a multiple of three,
then the number nearest one-third,
shall retire from office;
(b) the directors to retire in
every year shall be those who have
been longest in office since their
last election, but, as between
persons who became directors on
the same day those to retire
shall, unless they otherwise agree
among themselves, be determined by
lot;
(c) any director appointed to the
office of managing director shall
not, while holding that office, be
subject to retirement by rotation
or be taken into account in
determining the rotation of
retirement of directors;
(d) a retiring director shall be
eligible for re-election;
(e) the company, at the annual
general meeting at which a
director retires as aforesaid, may
fill the vacated office by
electing a person thereto, and in
default the retiring director
shall, if offering himself for
re-election, be deemed to have
been re-elected unless at such
meeting it is expressly resolved
not to fill such vacated office or
unless a resolution for the
re-election of such director shall
have been put to the meeting and
lost;
(f) no person, other than a
director retiring at the meeting
shall, unless recommended by the
directors, be eligible for
election to the office of director
at any general meeting unless not
less than three nor more than
twenty-eight days before the date
appointed for the meeting there
shall have been left at the
registered office of the company
notice in writing signed by a
member entitled to attend and vote
at the meeting of his intention to
propose such person for election,
and also notice in writing signed
by that person of his willingness
to be elected;
(g) on any increase or decrease in
the number of directors the
company may by ordinary resolution
determine in what rotation the
increased or decreased number is
to retire from office.
Section 299—Voting for Directors
of a Public Company.
(1) At a general meeting of a
public company, other than a
company limited by guarantee, a
resolution for the appointment of
two or more persons as directors
of the company by a single
resolution shall not be moved
unless a resolution that it shall
be so moved has first been agreed
to by the meeting without any vote
being given against it.
(2) A resolution moved in
contravention of this section
shall be void, whether or not its
being so moved was objected to at
that time.
(3) For the purposes of this
section, a resolution approving
appointments or nominating persons
for appointment shall be treated
as a resolution for appointment.
(4) This section shall not apply
where the company's Regulations
provide for cumulative voting in
accordance with section 300 of
this Code.
Section 300—Cumulative Voting for
Directors of a Public Company.
(1) The Regulations of a public
company may provide that directors
shall be elected by cumulative
voting.
(2) When the Regulations provide
for such cumulative voting, the
following rules shall apply, that
is to say,
(a) notwithstanding any provision
to the contrary in the company's
Regulations the minimum number of
directors of the company shall not
be less than three and the whole
of the directors, including any
managing director, shall retire
from office at each annual general
meeting;
(b) the votes of each member
shall, for the purpose of electing
directors to fill the resulting
vacancies, be multiplied by the
number of vacancies;
(c) every member may cast all his
resulting votes in favour of one
candidate for election or may
distribute them among as many
candidates as he thinks fit;
(d) the candidates receiving the
highest number of votes up to the
number of directors to be elected,
shall be deemed to be elected;
(e) notwithstanding section 185 of
this Code, unless the whole board
of directors is removed by an
ordinary resolution duly passed in
accordance with that section, no
director may be removed thereunder
if the votes cast against his
removal would, when multiplied by
the total number of directors,
have been sufficient to secure his
return at an election of the whole
board conducted in accordance with
the foregoing paragraphs.
|
Nature of Conviction |
Nature of previous convictions |
Punishment to be substituted
for the punishment prescribed |
|
Summary conviction for crime
Conviction for misdemeanour
Conviction for second degree
felony |
Any conviction for a similar
crime
A conviction for a similar
misdemeanour; or for a similar
felony; or two summary
convictions for similar crimes
A conviction for any felony;
or a conviction for a similar
misdemeanour for which a
sentence of more than six
months' imprisonment was
passed |
Twice the maximum imprisonment
and twice the maximum fine
which might otherwise be
inflicted
Imprisonment for five years in
the discretion of the Court
Imprisonment for fourteen
years; and, if the Court so
directs, police supervision
for not more than five years |
Section 301—Prohibition of Loans
by Public Companies to Directors.
(1) It shall not be lawful for any
public company to make a loan to
any person who is its director or
a director of any associated
company, or to enter into any
guarantee or provide any security
in connection with a loan made to
such a person by any other person:
Provided that nothing in this
section shall apply,
(a) to the making of a loan to an
associated company or the entering
into any guarantee or the proving
of any security in connection with
a loan made to an associated
company by any other person; or
(b) subject to subsection (2) of
this section, in the case of a
company whose ordinary business
includes the lending of money or
the giving of guarantees in
connection with loans made by
other persons, to anything done by
the company in the ordinary course
of that business.
(2) Proviso (b) to subsection (1)
of this section shall not
authorise the making of any loans
or the entering into any guarantee
or the providing of any security,
unless the total amount lent,
guaranteed, and secured in respect
of loans to such persons as
aforesaid does not exceed one per
centum of the net assets of the
company; and for the purpose of
this subsection the expression
"net assets" means the assets less
the liabilities of the company as
shown in the last audited balance
sheet of the company.
(3) If any company shall make
default in complying with the
provisions of this section the
company and every officer of the
company who is in default shall be
liable to a fine not exceeding one
hundred pounds and the directors
authorising the making of the loan
or the entering into the guarantee
or the providing of the security
shall be jointly and severally
liable to indemnify the company
against any loss arising therefrom.
CHAPTER V—PROVISIONS APPLICABLE TO
NON-GHANAIAN COMPANIES
Section 302—Meaning of "External
Company".
(1) The provisions of sections 303
to 317, other than section 315, in
this Chapter of this Code shall
apply to all external companies as
defined in this section.
(2) An external company is a body
corporate formed outside Ghana
which, at or subsequently to, the
commencement of this Code has an
established place of business in
Ghana.
(3) The expression "established
place of business" means a branch,
management, share, transfer, or
registration office, factory,
mine, or other fixed place of
business, but does not include an
agency unless the agent has, and
habitually exercises, a general
authority to negotiate and
conclude contracts on behalf of
the body corporate or maintains a
stock of merchandise belonging to
that body corporate from which he
regularly fills orders on its
behalf:
Provided that,
(a) a body corporate shall not be
deemed to have an established
place of business in Ghana merely
because it carries on business
dealings in Ghana through a bona
fide broker or general commission
agent acting in the ordinary
course of his business as such;
(b) the fact that a body corporate
has a subsidiary which is
incorporated, resident, or
carrying on business in Ghana,
whether through an established
place of business or otherwise,
shall not of itself constitute the
place of business of that body
corporate.
Section 303—Documents to be
Delivered to Registrar by External
Company.
(1) External companies which,
after the commencement of this
Code, establish a place of
business in Ghana shall, within
one month of the establishment of
the place of business, deliver to
the Registrar for registration,
(a) a certified copy of the
charter, statutes, regulations,
memorandum and articles, or other
instrument constituting or
defining the constitution of the
company, in a language acceptable
to the Registrar;
(b) a statement in duplicate in
the prescribed form giving the
following particulars regarding
the company, namely,
(i)
its name;
(ii) the nature of its business or
businesses or other main objects;
(iii) the present forenames and
surname and any former forename or
surname, and the address and
business occupation of some one or
more person, in this Code referred
to as a local manager, authorised
to manage the business in Ghana of
the company;
(iv) if the company has shares,
the number and nominal value, if
any, of its authorised and issued
shares, the amount paid up thereon
and the amount remaining payable
thereon, distinguishing between
the amounts paid and payable in
cash and the amounts paid and
payable otherwise than in cash;
(v) the address of its registered
or principal office in the country
of its incorporation;
(vi) the address of its principal
place of business in Ghana and the
number of its post office box;
(vii) the name and address in
Ghana of a person, in this Code
referred to as a process agent,
authorised by the company to
accept service of process and
other documents on its behalf;
(c) such particulars, and copies,
of any charges on the property of
the company as are required to be
delivered for registration in
accordance with section 310 of
this Code, or, if there are no
such charges, a statement in the
prescribed form to that effect.
(2) External companies which at
the commencement of this Code
already have an established place
of business in Ghana shall, within
six months after the commencement
of this Code, send to the
Registrar for registration the
documents referred to in
subsection (1) of this section.
(3) The Registrar shall register
the said documents in the register
of external companies and cause
the particulars contained in the
statement referred to in paragraph
(b) of subsection (1) of this
section to be published in the
Gazette.
(4) For the purposes of
sub-paragraph (iii) of paragraph
(b) of subsection (1) of this
section and of section 309 of this
Code,
(a) in the case of a person
usually known by a title different
from his surname, the expression
"surname" means that title;
(b) reference to a former name
shall not include,
(i)
in the case of a person usually
known by a title, the name by
which he was known prior to his
succession to that title;
(ii) a name changed or disused
before the person bearing the name
attained the age of eighteen
years, or changed or disused for a
period of not less than twenty
years;
(iii) in the case of a married
woman, the name by which she was
known prior to the marriage.
Section 304—Returns Required on
Alteration of Registered
Particulars.
(1) If any alteration is made in
the charter, statutes,
regulations, memorandum and
articles, or other instrument
referred to in paragraph (a) of
subsection (1) of the immediately
preceding section, the company
shall, within two months of the
effective date of the alteration,
deliver to the Registrar for
registration notice in the
prescribed form giving details of
the alteration.
(2) If any alteration is made in
any of the particulars contained
in the statement referred to in
paragraph (b) of subsection (1) of
the immediately preceding section,
the company shall, within the
times prescribed by the subsection
(3) or (4) of this section,
deliver to the Registrar for
registration notice in the
prescribed form in duplicate
giving details of the alteration.
(3) In the case of any alteration
in any of the particulars referred
to in sub-paragraph (i), (ii),
(iv) or (v) of paragraph (b) of
subsection (1) of the immediately
preceding section, the notice
required by subsection (2) of this
section shall be delivered to the
Registrar within two months after
the effective date of the
alteration.
(4) In the case of any alteration
in any of the particulars referred
to in sub-paragraph (iii), (vi) or
(vii) of paragraph (b) of
subsection (1) of the immediately
preceding section, the notice
required by subsection (2) of this
section shall be delivered to the
Registrar within twenty-eight days
of the date of the alteration, and
the Registrar shall cause the
particulars in such notice to be
published in the Gazette.
Section 305—Local Managers.
(1) An external company shall not
appoint any person as its local
manager or cause any person to be
named as such in any statement or
notice delivered to the Registrar
under the foregoing sections of
this Code unless such person is
competent, in accordance with
section 182 of this Code, to be
appointed a director of a company
formed in Ghana under this Code.
(2) The acts of any person
registered as the local manager of
an external company while carrying
on the business in Ghana of that
company shall bind the company
unless the local manager has no
authority so to act and the person
with whom he was dealing had
actual knowledge of the absence of
authority, or, having regard to
his position with or relationship
to the company, ought to have
known of such absence of
authority.
Section 306—Service on External
Company.
(1) Any process or other document
shall be sufficiently served on an
external company if delivered or
sent by post to the person last
registered as the company's
process agent at his last
registered address even if the
process agent refuses to accept
service or the company has ceased
to maintain a place of business in
Ghana:
Provided that this subsection
shall not apply to service of a
document,
(a) if the company was struck off
the register of external companies
under section 312 of this Code
more than six years previously; or
(b) if one person was last
registered as process agent and
that person is dead or, in the
case of a body corporate,
dissolved; or
(c) if two or more persons were
last registered as process agents
and each of those persons is dead,
or in the case of a body
corporate, dissolved.
(2) Where,
(a) no registration of the name
and address of a person as the
process agent of an external
company has been effected, or
(b) the foregoing subsection does
not apply by reason of paragraph
(b) or (c) of the proviso thereto,
any process or other document
shall be sufficiently served on
the company if delivered or sent
by post to any place of business
of the company in Ghana or, if the
company has ceased to have any
place of business in Ghana, to the
registered office or principal
place of business of the company
in the country of its
incorporation.
(3) Any document to be served by
post on an external company shall
be posted in such time as to admit
of its being delivered in due
course of delivery within the
time, if any, prescribed for the
service thereof; and in proving
service it shall be sufficient to
prove that a letter containing
such document was properly
addressed, prepaid, and posted,
whether or not by registered post.
(4) If it shall be proved that any
document was in fact received by
any local manager or process agent
or by the board of directors,
managing director or secretary of
the external company such document
shall be deemed to have been
served on that company
notwithstanding that service may
not have been effected in
accordance with the foregoing
subsection of this section.
(5) Nothing in this section shall
derogate from the power of any
court to direct how service shall
be effected of any document
relating to legal proceedings
before that court.
Section 307—Accounts of External
Company.
(1) Every external company shall,
once in every year at intervals of
not more than fifteen months, make
out and deliver to the Registrar
for registration a profit and loss
account and balance sheet and, if
the company is a holding company,
group accounts, in the form and
containing the same particulars as
the accounts which, under
paragraph (a) of subsection (1) of
section 124 of this Code, the
directors would have been required
to send to the members and
debentureholder of the company if
it were a company formed in Ghana
under this Code:
Provided that the Registrar may
accept for registration a profit
and loss account, a balance sheet
and group accounts prepared in the
form required under the law of the
place of the company's
incorporation if, in his opinion,
such accounts give substantially
the same, or greater, information
as that required to be given in
the accounts referred to in
section 124 of this Code.
(2) The accounts mentioned in
subsection (1) of this section
shall be in a language acceptable
to the Registrar.
(3) Notwithstanding that the
profit and loss account, the
balance sheet and the group
accounts prepared in the form
required under the law of the
place of the company's
incorporation do not give
substantially as much information
as that required in the accounts
referred to in section 124 of this
Code, the Registrar may, in his
absolute discretion, nevertheless
agree to accept such accounts for
registration in compliance with
subsection (1) of this section;
but in that event, subject as
provided by subsection (5) of this
section, the company shall also
deliver to the Registrar for
registration, in a language
acceptable to the Registrar,
(a) a profit and loss account,
made out as nearly as may be in
the form and containing the
particulars required by section
125 of this Code and giving a true
and fair view of the profit or
loss, during the period to which
it relates, on the company's
operations in Ghana as if such
operations had been conducted by a
separate company formed in Ghana
under this Code;
Fourth Sch.
(b) a statement as at the end of
the company's financial year
showing the company's assets
locally situated in Ghana
classified, distinguished and
valued in accordance with the
provisions of section 126 and Part
II of the Fourth Schedule to this
Code, and the nature and amount of
any specific charges on such
assets; and
(c) a report on the account and
statement referred to in the
foregoing paragraphs of this
subsection by an auditor qualified
in accordance with section 296 of
this Code, stating that in his
opinion and to the best of his
information the accounts and
statements are in accordance with
the books and records of the
company and give the information
required by this Code in the
manner therein required and give a
true and fair view of the matters
therein stated:
Provided that this subsection
shall not apply to any company
which,
(a) has at any time made in Ghana
any invitation to the public to
acquire any of its shares or
debentures or to deposit money
with it; or
(b) has issued any shares or
debentures which are for the time
being dealt in on any stock
exchange in Ghana.
(4) In the profit and loss account
referred to in paragraph (a) of
subsection (3) of this section,
the company shall be entitled to
make such apportionments and to
add such notes and explanations as
shall, in its opinion, be
necessary or desirable in order to
give a true and fair view of the
profit or loss on its operations
in Ghana and for this purpose may
debit a reasonable rate of
interest on capital employed in
Ghana.
(5) Notwithstanding that the
Registrar agrees to accept a
profit and loss account, a balance
sheet and group accounts under
subsection (3) of this section, he
may waive compliance with
paragraphs (a), (b) and (c) of
that subsection or any of such
paragraphs if satisfied that
compliance therewith is
impracticable having regard to the
nature of the company's operations
in Ghana.
(6) In relation to the accounts
and statements referred to in this
section the Registrar shall have
the same powers to modify the
requirements of Parts I, II and
III of the Fourth Schedule to this
Code as he has in relation to
companies formed in Ghana under
this Code.
(7) This section shall not apply
to an external company carrying on
banking business in Ghana under a
licence granted pursuant to
section 24 of the Companies
Ordinance, (Cap. 193), or any
statutory re-enactment thereof,
unless such company,
(a) has at any time made in Ghana
any invitation to the public to
acquire any of its shares or
debentures; or
(b) has issued any shares of
debentures which are for the time
being dealt in officially on any
stock exchange in Ghana.
(8) Where this section applies to
any such banking company the
exemptions referred to in Part IV
of the Fourth Schedule to this
Code shall apply to the accounts
and balance sheet of such company.
(9) If it appears to the Minister
to be desirable in the public
interest, the Minister may, by
legislative instrument, direct
that, in the case of any external
company or class of external
company, this section shall not
apply or shall apply subject to
such exceptions and modifications
as shall be specified in the
instrument.
Section 308—Obligation to State
name, etc., of External Company.
(1) Every external company shall,
(a) conspicuously exhibit on every
place where it carries on business
in Ghana the name of the company,
the country in which the company
is incorporated, and, if the
liability of the members is
limited, the fact that it is so
limited;
(b) cause the name of the company
and of the country in which it is
incorporated and if the liability
of the members is limited the fact
that it is so limited to be stated
in legible letters at the head of
all business letters of the
company despatched in Ghana.
(2) Where the name of the company
is in a foreign language, the
requirements of this section
relating to the name of the
company shall be deemed to be
fulfilled by exhibiting and
stating translation thereof in a
language acceptable to the
Registrar.
(3) The fact that the word
"limited", or its equivalent in a
foreign language, forms part of
the company's name shall not be
deemed a sufficient compliance
with the obligations imposed by
this section relating to the
exhibition and stating of the fact
that the liability of the members
is limited.
Section 309—Publication of names
of Local Managers.
(1) Every external company shall,
in all trade circulars and
business letters on or in which
the company's name appears and
which are despatched in Ghana by
or on behalf of the company, state
in legible letters with respect to
each local manager,
(a) his present forenames or
initials thereof, and his present
surname; and
(b) any former forename or
surname:
Provided that if special
circumstances exist which render
it in the opinion of the Registrar
expedient that such an exemption
should be granted, the Registrar
may by legislative instrument
grant, subject to such conditions
as may be specified in the
instrument, exemption from the
obligations imposed by this
section in respect of any company.
(2) The provisions of subsection
(4) of section 303 of this Code
shall apply to this section.
Section 310—Registration of
Particulars of Charges.
The provisions of Part L of
Chapter II of this Code shall
extend to charges on property in
Ghana which are, or have been,
created, and to charges on
property in Ghana which is
acquired, by an external company:
Provided that,
(a) particulars of charges created
prior to the date when the
external company had an
established place of business in
Ghana, and
(b) particulars of charges created
prior to the commencement of this
Code,
shall be deemed to be duly
registered if particulars thereof
are duly delivered to the
Registrar for registration in
accordance with section 303 of
this Code and the failure to
register any such charge as is
referred to in paragraph (a) or
(b) of this proviso shall not
affect the validity of the charge.
Section 311—Notification of
Winding Up of External Company.
(1) Where, in the case of an
external company,
(a) a winding up order is made by
a court of the country in which
the company is incorporated,
(b) a resolution is passed or
other appropriate proceedings are
taken in that country to lead to
the voluntary winding up of the
company, or
(c) the company is dissolved or
otherwise ceases to exist
according to the law of the
country in which it was
incorporated,
the local managers and process
agents of the company shall,
within twenty-eight days
thereafter cause notice thereof in
the prescribed form to be given to
the Registrar who shall register
the same and cause the particulars
contained therein to be published
in the Gazette.
(2) Where any such events have
occurred as are referred to in
paragraph (a) or (b) of subsection
(1) of this section the local
managers of the company shall, on
every invoice, order or business
document on or in which the
company's name appears, cause a
statement to appear in legible
letters to the effect that the
company is being wound up in the
country where it is incorporated.
(3) If any person shall in Ghana
carry on, or purport to carry on,
business on behalf of the company
after the date on which it was
dissolved or has otherwise ceased
to exist in the country in which
it was incorporated he shall be
liable to a fine not exceeding
five pounds for each day during
which he continues so to do.
(4) Nothing in this section
contained shall derogate from the
provisions of the Bodies Corporate
(Official Liquidations) Act, 1963
(Act 180), enabling an external
company, whether or not it has
been dissolved or has otherwise
ceased to exist according to the
law of the country in which it was
incorporated, to be wound up under
that Act.
Section 312—Cessation of Business
of External Company.
(1) If any external company ceases
to have an established place of
business in Ghana it shall within
twenty-eight days after so
ceasing, give notice thereof to
the Registrar in the prescribed
form in duplicate and the
Registrar shall register the same
and cause a copy of the notice to
be published in the Gazette.
(2) The Registrar shall thereupon
strike the name of the company off
the register of external
companies.
(3) After notice has been given to
the Registrar in accordance with
subsection (1) of this section and
so long as the company shall not
have an established place of
business in Ghana then, except as
provided in subsection (6) of this
section, no person shall be under
any obligation to deliver any
document relating to that company
to the Registrar pursuant to the
foregoing sections in this Chapter
of this Code.
(4) Where the Registrar has
reasonable cause to believe that
an external company has ceased to
have a place of business in Ghana
he may send by registered post to
the registered local manager and
process agent and, if more than
one, to all such persons, a letter
enquiring whether the company is
maintaining an established place
of business in Ghana.
(5) If the Registrar receives an
answer to the effect that the
company has ceased to have an
established place of business in
Ghana or does not, within three
months, receive any reply, he may
strike the name of the company off
the register of external
companies.
(6) At any time within six years
after the date on which the
company was struck off the
register of external companies
under subsections (1) and (2) or
(4) and (5) of this section, all
persons shall continue to have a
right to inspect the documents
relating to that company; and
during such six years the company
shall, notwithstanding subsection
(3) of this section, continue to
be under the obligation imposed by
section 304 of this Code to give
notice of any alteration in the
names of the company's process
agent.
Section 313—Penalties and
Disabilities.
(1) If any external company or any
local manager or process agent of
an external company fails to
comply with any of the obligations
imposed upon it or him by the
foregoing provisions of this
Chapter of this Code, the external
company and any local manager or
process agent who is in default
shall be liable to a fine not
exceeding fifty pounds or, in the
case of a continuing default, five
pounds for every day during which
the default continues.
(2) If there is any default in
delivering to the Registrar any
document required to be delivered
for registration pursuant to the
foregoing provisions of this
Chapter of this Code, the rights
of the external company concerned
under or arising out of any
contract made in Ghana during such
time as the default continues
shall not be enforceable by action
or other legal proceedings:
Provided that,
(a) the external company may apply
to the Court for relief against
the disability imposed by this
subsection and the Court, on being
satisfied that it is just and
equitable to grant relief, may
grant such relief either generally
or as respects any particular
contract and on such conditions as
the Court may impose;
(b) nothing herein contained shall
prejudice the rights of any other
parties against the external
company in respect of such
contract;
(c) if any action or proceeding
shall be commenced by any other
party against the external company
to enforce the rights of such
party in respect of such contract,
nothing therein contained shall
preclude the external company from
enforcing in that action or
proceeding by way of counterclaim,
set off or otherwise, such rights
as it may have against that party
in respect of that contract.
Section 314—Control of Public
Invitations Relating to External
Companies.
(1) If any person makes in Ghana
any invitation to the public to
acquire or dispose of any shares
or debentures of an external
company or to deposit money with
any external company for a fixed
period or payable at call, whether
bearing or not bearing interest,
then, subject as hereinafter
mentioned, the provisions of Part
W of Chapter II and of Part A of
Chapter IV of this Code shall
apply as if the external company
were a public company within the
meaning of this Code.
(2) The Registrar, in his absolute
discretion, may waive or modify
the requirements of any of the
provisions of Part A of Chapter IV
of this Code in relation to any
such public invitation as is
referred to in subsection (1) of
this section.
(2a) Any such invitation and any
prospectus relating thereto shall
be deemed to comply with this Code
to the extent that the Registrar
has waived or modified any of such
requirements. [As inserted by the
Companies Code (Amendment) Act,
1994 (Act 474) s. 6].
(3) Where the invitation to the
public is a general invitation
within the meaning of section 276
of this Code the prospectus, in
addition to complying with the
Seventh Schedule to this Code,
subject to any modifications in
accordance with the immediately
preceding subsection and subject
to section 277 of this Code, shall
also contain particulars with
respect to the following matters,
namely,
(a) the instrument constituting or
defining the constitution of the
company;
(b) the enactments, or provisions
having the force of an enactment,
by or under which the
incorporation of the company was
effected;
(c) an address in Ghana where
copies of the foregoing or, if the
same are in a foreign language,
certified translations thereof can
be inspected;
(d) the date on which and the
country in which the company was
incorporated.
(4) Any prospectus registered and
any advertisement or circular
published in connection with any
such invitation shall state the
country in which the external
company is incorporated and the
address of its principal place of
business in Ghana.
(5) Unless the provisions of this
section are complied with the
making of the invitation shall be
deemed to be a breach of section
265 of this Code.
Section 315—Control of Public
Invitations Relating to other
Non-Ghanaian Companies.
(1) For the purposes of this and
the following section the
expression "non-Ghanaian Company"
means any association incorporated
or to be incorporated outside
Ghana not being an external
company as defined in section 302
of this Code.
(2) If any person makes in Ghana
any invitation to the public which
is either,
(a) a general invitation, as
defined by section 276 of this
Code, to acquire any shares or
debentures of a non-Ghanaian
company, or
(b) an invitation to deposit money
with any non-Ghanaian company for
a fixed period or payable at call
whether bearing or not bearing
interest,
then, subject as hereinafter
mentioned, the provisions of Part
W of Chapter II and Part A of
Chapter IV of this Code shall
apply as if the non-Ghanaian
company were a public company
within the meaning of this Code,
and subsections (2) and (3) of the
immediately preceding section
shall apply as if such company
were an external company.
(3) Any prospectus, advertisement
or circular registered or
published in connection with any
such invitation shall state the
country in which the non-Ghanaian
company is incorporated and, if
the liability of its members is
limited shall so state.
(4) Unless the provisions of this
section are complied with the
making of the invitation shall be
deemed to be a breach of section
265 of this Code.
(5) Sections 286, 287, 290 and 291
of this Code shall apply in
relation to any invitation to the
public to acquire or dispose of
any shares or debentures of a
non-Ghanaian company, whether or
not an invitation of the types
referred to in subsection (2) of
this section, and sections 289,
290 and 291 shall apply in
relation to any invitation to the
public to deposit money with any
non-Ghanaian company, as if the
company were a public company
within the meaning of this Code.
Section 316—Application of
Sections 266 and 267 to External
and Non-Ghanaian Companies.
(1) For the purposes of the
foregoing provisions of this
Chapter of this Code, the
expression "invitation to the
public" shall bear the meaning
assigned to it in section 266 of
this Code:
Provided that an invitation made
by or on behalf of an external or
non-Ghanaian company exclusively
to its existing shareholders and
debentureholders, not being
greater in number than is
prescribed by subsection (3) of
section 9 of this Code, and its
existing employees shall not be
deemed to be an invitation to the
public unless the invitation is of
the type referred to in paragraph
(c) or (d) of subsection (1) of
section 266.
(2) Section 267 of this Code shall
apply to invitations to the public
made in respect of shares or
debentures of external and
non-Ghanaian companies.
Section 317—Interpretation.
For the purposes of the foregoing
provisions of this Chapter of this
Code,
(a) the expression "certified"
means that the document concerned
has endorsed thereon a
certificate, to the effect that it
is a true and complete copy of the
original or, as the case may be,
an accurate translation of the
original, under the seal of the
company or signed by a director
and the secretary of the company;
and
(b) the expression "secretary"
includes any person occupying the
position of secretary by whatever
name called.
CHAPTER VI—SUPPLEMENTARY
Part A—Unit Trusts and Mutual
Funds
Section 318—Unit Trusts.
[Repealed by Securities Industry
Law, 1993 (PNDCL 333) s. 146]
Section 319—Mutual Funds.
(1) Where the Registrar is
satisfied that a body corporate,
being a public company within the
meaning of this Code or an
external company having an
established place of business in
Ghana within the meaning of
Chapter V of this Code, has been
incorporated for the purpose of
holding and managing securities or
other property, and that in the
Regulations of the body corporate
or in some other instrument
binding the body corporate
satisfactory arrangements are made
for ensuring,
(a) that if any invitation is made
to the public to subscribe for its
shares the price at which the
shares are offered shall be based
on the net value of its assets at
the time of the offer with no
addition except for a reasonable
service charge, and
(b) that the body corporate will
at any time repurchase any such
shares from the holder thereof at
a price based on the net value of
its assets at the time of the
repurchase without any deduction
except for a reasonable service
charge,
he may, in his absolute discretion
and subject to such conditions and
restrictions as he shall think
fit, by legislative instrument
declare such body corporate to be
an authorised mutual fund for the
purposes of this Code and, by such
instrument, may direct that so
long as such body corporate
remains an authorised mutual fund
any of the provisions of sections
59 to 63, 66 and 67, 275 to 279,
281 to 284 and 314 of this Code
shall not have effect in relation
to that body corporate or to
invitations to the public to
acquire or dispose of its shares
or any of such provisions shall
have effect with such
modifications as are specified in
the instrument.
(2) If the Registrar considers
that the instrument declaring any
body corporate to be an authorised
mutual fund should be revoked or
that the terms of the instrument
should be varied, he may serve on
the body corporate a written
notice that he is considering the
revocation of the instrument or,
as the case may be, a specified
variation of its conditions,
restrictions or directions, and
inviting the body corporate to
make, within a period of one month
from the date of service of the
notice, any representations it may
desire to make with respect to the
proposed revocation or variation,
(3) The Registrar may revoke or
vary the instrument after the
expiration of the said period,
but, before deciding whether or
not to revoke or vary the
instrument, he shall take into
consideration any representations
so made by the body corporate and,
if it so requests, afford it an
opportunity of being heard by the
Registrar within that period.
(4) If any authorised mutual fund
shall commit any breach or
non-observance of any of the
conditions or restrictions in the
instrument declaring it to be an
authorised mutual fund every
officer of the body corporate who
is in default shall be liable to
imprisonment for a term not
exceeding two years or to a fine
not exceeding one thousand pounds
or to both such imprisonment and
fine.
Part B—Miscellaneous Offences
Section 320—Inducing Persons to
Invest.
(1) Any person who by any
statement, promise or forecast
which is untrue, misleading, false
or deceptive induces or attempts
to induce another person to enter
into or offers to enter into,
(a) any agreement for or with a
view to acquiring, disposing of,
or underwriting, securities, or
lending or depositing money to or
with any body corporate, or
(b) any agreement the purpose or
pretended purpose of which is to
secure a profit to any of the
parties from the yield of
securities or by reference to
fluctuations in the value of
securities,
shall be guilty of an offence and
liable to a term of imprisonment
not exceeding seven years unless
he shall prove that he had
reasonable grounds to believe and
did believe that the statement was
true or that the promise or
forecast was not misleading, false
or deceptive.
(2) Any person who, by any
dishonest concealment of material
facts induces or attempts to
induce another person to enter
into any of the transactions
referred to in subsection (1) of
this section shall be guilty of a
like offence and subject to the
like punishment as that prescribed
by subsection (1) of this section.
Section 321—Penalty for False
Statements.
(1) If any person in any return,
report, certificate, account, or
other document required under any
provision of this Code to be sent
to the Registrar wilfully makes a
statement false in any particular,
knowing it to be false, he shall
be guilty of an offence, and shall
be liable on conviction to
imprisonment for a term not
exceeding two years, or to a fine
not exceeding one thousand pounds
or to both such imprisonment and
fine.
(2) Nothing in this section shall
affect the liability of any body
corporate or other person under
any other section of this Code or
other enactment; but the penalties
imposed by this section shall be
alternative, and not additional to
any penalties imposed by such
other section or enactment.
Section 322—Penalty for Improper
use of "Incorporated" or
"Limited".
If any person or persons trade or
carry on business in Ghana under
any name or title of which the
words "incorporated",
"corporation" or any contraction
or imitation thereof or any
equivalent in any other language
forms part or of which the word
"limited" or any contraction or
imitation thereof or any
equivalent in any other language
is the last word, that person or
those persons shall unless duly
incorporated under this Code or
some other enactment and, where
"limited" or any contraction or
imitation thereof is the last
word, unless duly, incorporated
with limited liability, be liable
to a fine not exceeding five
pounds for every day during which
that name or title has been used.
Section 323—Publication of
Misleading Statements Regarding
Shares or Capital.
(1) It shall not be lawful to
state the number of the authorised
or issued shares of any body
corporate or the amount of its
capital in any notice,
advertisement, business letter or
other publication of the body
corporate unless such statement
shall include with equal
prominence accurate particulars of
the number of shares issued, and
of the stated and paid up capital
of the body corporate.
(2) In the event of any breach of
this section the body corporate
and every officer of the body
corporate who is in default shall
be liable to a fine not exceeding
five hundred pounds.
Part C—Legal Proceedings
Section 324—Representative
Actions.
Where, under any section of this
Code it is provided that if legal
proceedings are instituted by any
person he shall sue in a
representative capacity on behalf
of himself and other members of a
class the following provisions
shall apply, that is to say,
(a) such person may commence
proceedings in such representative
capacity without obtaining the
consent and approval of any other
member of the class represented
and, subject to paragraph (b) of
this section, such person shall
have the sole conduct of the
action and no other member of the
class shall be deemed to be a
party to the proceedings or in any
way liable for the costs thereof;
(b) any member of the class
represented may at any time prior
to final judgment apply to the
Court for leave to be made a party
to the proceedings whether as
co-plaintiff or otherwise and the
Court may grant leave upon such
terms regarding the conduct of the
action and otherwise as it shall
think fit; and if such leave is
granted the applicant shall become
a party to the proceedings and
liable accordingly to have an
order for costs made against him;
(c) any judgment given in the
action shall bind and enure for
the benefit of all members of the
class represented, whether or not
they have intervened in the
proceedings in accordance with
paragraph (b) of this section;
(d) no proceedings shall be
dismissed, settled or compromised
without the leave of the Court
which may, if it shall think fit,
order that notice of the proposed
dismissal, settlement or
compromise shall be given to all
members of the class represented
and any other persons;
(e) in relation to proceedings
under section 210 of this Code
this section shall be supplemented
by the provisions of that section;
(f) nothing in this section
contained shall affect the
validity of any agreement between
the members of the class
represented, relating to
contribution towards the costs of
the party or parties suing in a
representative capacity.
Section 325—Costs in Actions by
Limited Companies.
Where a body corporate with
limited liability is the plaintiff
in any legal proceedings the Court
may, if it appears by credible
evidence that there is reason to
believe that the body corporate
will be unable to pay the costs of
the defendant if successful in his
defence, require sufficient
security to be given for the
costs, and may stay all
proceedings until the security is
given.
Section 326—Contribution between
Joint Wrongdoers.
Where more than one officer of a
body corporate or other persons
are liable to pay any damages,
costs, compensation, debt, or
monetary penalty under, or in
respect of any breach of, any
section of this Code, they shall
have a right of contribution
amongst themselves; and in any
action to enforce liability or in
an action to recover contribution
the Court may award contribution
on such terms as it shall consider
equitable in all the circumstances
and may exempt any person from
liability to make contribution or
direct that the contribution to be
recovered from any persons shall
amount to a complete indemnity.
Section 327—Power to Grant Relief.
(1) If in any proceedings against
a member, officer or auditor of a
company for any default or breach
of duty under any section of this
Code or against any trustee for
debentureholders in respect of any
breach of duty or trust it appears
to the court hearing the case that
that member, officer, auditor or
trustee is or may be liable but
that he has acted honestly and
reasonably and that, having regard
to all the circumstances of the
case, he ought fairly to be
excused, the court may relieve him
in whole or in part from his
liability on such terms as the
court may think fit.
(2) Where any such member,
officer, auditor or trustee has
reason to apprehend that any claim
may be made against him in respect
of any breach of duty or trust, he
may apply to the Court for relief;
and the Court on any such
application shall have the same
power to relieve him as under this
section it would have had if it
had been a court before which
proceedings against that person
for breach of duty or trust had
been brought.
(3) Written notice of any
application to the Court under
subsection (2) of this section
shall be given to the Registrar at
least twenty-one days before the
date of the hearing of the
application and the Registrar may
appear on the hearing of the
application and call such evidence
and make such representations as
he thinks fit.
Part D—Administration
Section 328—Registrar of
Companies.
(1) The President may appoint a
registrar of Companies in this
Code referred to as the Registrar,
to carry out the duties and
functions vested by or under this
Code or any other enactment in the
Registrar.
(2) Until any other appointment is
made the Registrar-General shall
be the Registrar.
(3) There may be appointed such
Assistant and Deputy Registrars of
Companies and such other officers
as are required for the purposes
of this Code.
(4) Anything in this Code
appointed, authorised or required
to be done to or by the Registrar
or to be signed by the Registrar
may be done to or by or signed by
any Assistant or Deputy Registrar
and shall be as valid and
effectual as if done to or by or
signed by the Registrar.
(5) The Registrar shall have a
seal and such seal shall bear the
words "Registrar of Companies,
Ghana".
Section 329—Fees.
Eighth Sch.
In respect of the several matters
set out in the first column of the
Table in Part I of the Eighth
Schedule to this Code there shall
be paid to the Registrar the
several fees specified in the
second column of that Table, but
subject to the exemption referred
to in Part II of that Schedule.
Section 330—Documents to be
Translated.
Where, under any section of this
Code, any document is required to
be prepared or registered such
document shall, unless the section
otherwise provides, be in a
language acceptable to the
Registrar.
Section 331—Registration of
Documents.
(1) Where, under any section of
this Code, any document or
particulars require to be
registered by the Registrar,
registration shall be effected by
inserting the document or making
the appropriate entries of the
particulars in the file maintained
at the Companies' Registration
Office in relation to the company
concerned.
(2) For the purposes of any
provision of this Code, no
document or particulars shall be
deemed to have been delivered to
the Registrar for registration
until the appropriate registration
fee has been paid to the
Registrar.
(3) If the Registrar is of opinion
that any documents or particulars
delivered to him for registration,
(a) contain matter contrary to
law, or
(b) by reason of any error,
omission or misdescription have
not been duly completed, or
(c) otherwise do not comply with
the requirements of this Code, or
(d) contain any error,
he may request that the document
or particulars be appropriately
amended or completed and
re-submitted and may refuse to
register the document or
particulars until appropriately
amended or completed; and in that
event the document or particulars
shall not be deemed to have been
delivered for registration until
re-submitted appropriately amended
or completed.
Section 332—Prescribed Forms.
(1) Where any section of this Code
provides that any document shall
be in the prescribed form such
document shall be in the form
prescribed by the Registrar by
legislative instrument.
(2) The Registrar may, by
legislative instrument, prescribe
forms for the purposes of this
Code.
(3) Where any section of this Code
provides that a document shall be
delivered to the Registrar for
registration the Registrar may
refuse to accept the same if, in
his opinion, it is insufficiently
legible or is written upon paper
insufficiently durable to be
suitable for registration.
(4) If the Registrar shall, in
accordance with subsection (3) of
this section, refuse to accept any
document for registration the same
shall not, for the purposes of any
section of this Code, be deemed to
have been duly delivered to him
unless a duplicate thereof in a
form acceptable to him is duly
delivered within the time
prescribed by such section or
within such extended time as the
Registrar may allow for the
delivery of a duplicate.
(5) The Registrar shall not have
power to refuse to accept any
document on the ground that the
paper on which it is written is
insufficiently durable if the same
is written on the appropriate
printed form issued by the
Government Printer.
Section 333—Inspection, Copies and
Evidence of Registered Documents.
(1) Any person may,
(a) inspect the register of
particulars of charges and any
document registered by the
Registrar upon payment of two
thousand five hundred cedis for
each inspection of the register
and documents relating to one
company; [As amended by the
Companies Code (Amendment) Act,
1997 (Act 531) s. 3].
(b) require a certificate of the
incorporation of any company or a
copy of any other document, or any
part of any other document,
registered by the Registrar to be
certified under the hand of the
Registrar, on payment of such fees
as the Registrar may prescribe,
not exceeding one pound for each
page.
(2) No process for compelling the
production of any document kept by
the Registrar shall issue from any
court except with the leave of
that court and any process if
issued shall bear thereon a
statement that it is issued with
the leave of the court.
(3) A copy of, or extract from,
any document registered by the
Registrar, certified to be a true
copy under the hand of the
Registrar, whose official position
it shall not be necessary to
prove, shall in all legal
proceedings be admissible in
evidence as of equal validity with
the original document.
Section 334—Authentication of
Documents Issued by Registrar or
Minister.
(1) All documents purporting to be
orders, certificates, licences,
approvals or revocations thereof
made or issued by the Registrar or
the Minister for the purposes of
this Code and purporting to be
sealed with the seal of the
Registrar, or be signed by him, or
to be signed by the Minister or on
his behalf by a properly
authorised officer, shall be
received in evidence as such
without further proof of validity
unless the contrary is shown.
(2) A certificate that any order
made, certificate issued, or act
done is the order, certificate, or
act of the Registrar or the
Minister shall, if signed by the
Registrar or Minister respectively
be conclusive evidence of the fact
so certified.
Section 335—Enforcement of Duty to
make Returns.
If a body corporate or any officer
or liquidator of a body corporate,
having made default in complying
with any provision of this Code
which requires it, to deliver any
return, account, or other
document, or to give notice of any
matter, fails to end the default
within twenty-eight days after the
service of a notice on the body
corporate or the officer or
liquidator requiring it or him to
do so, the Court may, on an
application made to the Court by
the Registrar or by any member or
creditor of the body corporate,
make an order directing the body
corporate and any officer thereof
or the liquidator to make good the
default within such time as may be
specified in the order; and may
provide that all costs of and
incidental to the application
shall be borne by the body
corporate or by any officer or
liquidator of the body corporate
responsible for the default.
Section 336—Regulations.
(1) The Registrar may, by
legislative instrument, make
Regulations regulating the
exercise by him of any of the
powers and discretions conferred
upon him by this Code.
(2) Such Regulations shall not be
invalid by reason of the fact that
they purport to regulate the
exercise by the Registrar of a
power which, under any provision
of this Code, is exercisable in
his absolute discretion.
Section 337—Registrar's Power to
Obtain Directions of the Court.
The Registrar may apply to the
Court for directions in relation
to any matter arising in
connection with his functions
under this Code, and on any such
application the Court may give
such directions or make such order
as the Court thinks fit.
Section 338—Periodical Reports by
Registrar.
(1) The Registrar shall, at
intervals of not more than three
years cause a report on the
operation of this Code to be made
to the Minister who shall lay the
same before the National Assembly.
(2) In any such report the
Registrar shall, in addition to
giving general statistical
information relating to the
registration and dissolution of
companies, report on the exercise
by him of his powers under this
Code and, in particular, shall
refer to all cases in which he
has, under the powers conferred by
this Code, waived compliance or
modified any of the normal
provisions of this Code, and shall
state in each case his reasons for
so doing.
Section 339—Extension to
Unregistered Companies.
(1) The Minister may, by
legislative instrument, direct
that any of the provisions of this
Code shall apply to all bodies
corporate formed in Ghana
otherwise than under the Companies
Ordinance, (Cap. 193), or this
Code or to certain classes of such
bodies or to certain named bodies
corporate formed in Ghana, as
specified in the instrument, as if
they were companies registered
under this Code.
(2) If any such instrument is made
the Minister may from time to time
exempt any named body corporate
from the application to it of any
of such provisions.
(3) No instrument shall be made
under subsection (1) of this
section unless a draft of the
order has been laid before
National Assembly and approved by
a resolution thereof.
Section 340—Repeals.
Tenth Sch.
The enactments mentioned in the
first column of the Tenth Schedule
to this Code are hereby repealed
to the extent specified in the
second column of that Schedule.
SCHEDULES
FIRST SCHEDULE
(Section 2)
DEFINITIONS
Subject Expression
Meaning
1. Types of Company.
"body corporate" means a
corporation formed under this Code
or otherwise and whether in Ghana
or elsewhere but does not include
a corporation sole such as an
incorporated office.
"company" means a
body corporate formed and
registered under this Code or an
existing company
"existing Company"
means a body corporate formed and
registered under the Companies
Ordinance (Cap. 193) unless, prior
to the commencement of this Code,
it has been dissolved or
re-registered under some other
Act.
"company limited by
shares", "company limited by
guarantee", "unlimited company",
"public company" and "private
company"shall have the meanings
assigned to them in section 9 of
this Code.
"external company"
shall have the meaning assigned to
it by section 302 of this
Code.
"subsidiary" and
"holding company" A body
corporate shall be the subsidiary
of another and that other shall be
its holding company if,
(a) that
other body corporate by the
exercise of some power directly or
indirectly vested in it, whether
by virtue of the beneficial
ownership of shares or otherwise,
can appoint or remove or procure
the appointment or removal of all
or not less than half of its
directors for the time being or
can prevent the appointment or
removal of all or not less than
half of its directors:
Provided that,
(i)
a power exercisable in a fiduciary
capacity for another person shall
be treated as exercisable by that
other and not by the fiduciary;
(ii) a power exercisable by virtue
of shares held by way of security
only for the purpose of a
transaction entered into in the
ordinary course of business of
that other body corporate shall be
disregarded;
(iii) a body corporate shall be
deemed to have power to appoint a
director of another body corporate
if any person's appointment as
director of that other body
corporate necessarily follows from
his appointment as director or
other officer of that first named
body corporate; or
(b) it is a subsidiary of any body
corporate which is that other's
subsidiary.
"associated
company" The expression
"associated company" where used in
this Code to describe the
relationship of one body corporate
to another means that the body
corporate so described is the
subsidiary or holding company of
that other, or a subsidiary of
that other's holding company, or a
holding company of that other's
subsidiary.
"wholly owned
subsidiary" Where a holding
company is beneficially entitled,
whether the registered holder or
not, to all the issued shares of
any of its subsidiaries that
subsidiary is the wholly owned
subsidiary of that holding
company.
"non-Ghanaian
company" shall have the meaning
assigned to it by section 315 of
this Code.
2. Officers of bodies corporate.
"director" in relation to any
company has the meaning assigned
to it by section 179 of this Code
and in relation to any other body
corporate means any one whose
position in relation to that body
corporate is such that he would be
a director thereof if that body
corporate were a company.
"alternate director"
shall have the meaning assigned to
it by section 188 of this
Code.
"substitute director"
shall have the meaning assigned to
it by section 187 of this
Code.
"secretary" in
relation to a company, means the
person appointed secretary of the
company in accordance with section
190 of this Code and in relation
to any other body corporate means
any person occupying the position
of secretary by whatever name
called
"officer" in relation
to any body corporate, means any
director, secretary or employee of
that body corporate and a receiver
and manager of any part of the
undertaking of that body corporate
appointed under a power contained
in any instrument, and any
liquidator of a company appointed
in a members' voluntary winding
up, but does not include any
receiver, not being a manager, or
any receiver and manager appointed
by the Court, or any liquidator
appointed under the provisions of
the Companies (Liquidation) Act,
1962, (Act), or any auditor of a
company
3. Securities and dealings
therein. "shares" means the
interests of members of a body
corporate who are entitled to
share in the capital or income of
such body corporate.
"Treasury shares"
shall have the meaning assigned to
it in subsection (3) of section 59
of this Code.
"debenture" and
"debenture stock" in relation to
companies, shall have the meanings
assigned to them in section 80 of
this Code and in relation to any
other body corporate mean any
debenture, debenture stock or bond
whether constituting a charge on
the assets of the body corporate
or not.
"securities" means,
(a) shares or debentures;
(b) securities of the Government
of Ghana or any country or
territory outside Ghana;
(c) rights or interests, whether
described as units or otherwise
under any unit trust; and
(d) rights, whether actual or
contingent in respect of money
lent to or deposited with, any
person not being a body corporate
licensed, under section 24 of the
Companies Ordinance (Cap. 193) or
any statutory re-enactment
thereof, to carry on banking
business.
"acquire" and its
cognate expressions, in relation
to any securities, means that
securities are obtained whether
from the body corporate whose
securities they are or from a
former holder and whether for cash
or for a consideration other than
cash or for no consideration, and,
except where the context otherwise
requires, includes an agreement to
acquire.
"dispose" and its
cognate expressions, in relation
to any securities, means that such
securities are parted with whether
to the body corporate whose
securities they are or to some
other person and whether for cash
or for a consideration other than
cash or for no consideration, and,
except where the context otherwise
requires, includes an agreement to
dispose.
"buy", "purchase" and
"sell", and their cognate
expressions, in relation to
securities, mean an acquisition
and disposal of such securities
for cash, and, except where the
context otherwise requires,
includes an agreement to buy and
sell.
"subscribe" and its
cognate expressions, in relation
to securities, means the purchase
of such securities from the body
corporate whose securities they
are, and, except where the context
otherwise requires, includes an
agreement to subscribe.
"capitalisation
issue" shall have the
meaning assigned to it by
subsection (1) of section 74 of
this Code.
"stock exchange" means
any body corporate or association
of persons operating an exchange
or market on which securities are
acquired and disposed of.
"approved stock
exchange" shall have the meaning
assigned to it by section 280 of
this Code.
"exempted dealer"
shall have the meaning assigned to
it by section 280 of this Code.
4. Miscellaneous. "annual return"
means the return required to be
made under section 122 of this
Code.
"acquire" in relation
to securities see 3 above.
"arrangement" and
"amalgamation" shall have the
meanings assigned to them in
section 229 of this Code.
"associated
company" See 1, above.
"approved stock
exchange" See 3, above.
"authorised mutual
fund" shall have the meaning
assigned to it in section 319 of
this Code.
"authorised unit
trust" shall have the
meaning assigned to it in section
318 of this Code.
"body corporate" See
1, above.
"buy" in relation to
securities, see 3 above.
"calls" means any sum
which the company shall have
validly resolved to call up in
respect of any shares issued with
an unpaid liability and where by
the terms of issue of a share any
sum becomes payable on
application, allotment or at any
fixed date such sum shall be
deemed to be a call duly made and
payable on the date on which by
the terms of issue the same become
payable.
"capitalisation
issue" See 3,
above.
"charge" means any
security on property and includes
a mortgage whether legal or
equitable.
"company" "company
limited by shares", "company
limited by guarantee"
See 1, above.
"contributions" in
relation to any pension scheme
means any payment, including an
insurance premium, paid for the
purposes of the scheme by or in
respect of persons rendering
services in respect of which
pensions will or may become
payable under the scheme, but does
not include any payment in respect
of two or more persons if the
amount paid in respect of each of
them is not ascertainable.
"Court" means the High
Court.
"creditors' voluntary
winding up" shall have the meaning
assigned to it by section 248 of
this Code.
"debentures" and
"debenture stock" See 3,
above.
"default" For the
purposes of any section in this
Code providing that any person who
is in default shall be liable to a
fine or penalty or to pay damages
or compensation or to discharge a
debt or obligation, the expression
"in default" means that the person
concerned knowingly authorises or
permits the default, refusal or
contravention mentioned in the
section.
"directors" See 2,
above.
"dispose" in relation
to securities, see 3, above.
"equity
share" shall have the
meaning assigned to it by section
48 of this Code.
"exempted dealer" See
3, above.
"existing company"
"external company" See 1, above.
"financial year" means
the period covered by the
company's profit and loss account
in accordance with section 125 of
this Code.
"floating charge"
shall have the meaning assigned to
it by section 87 of this Code.
"holding company" See
1, above.
"income surplus" shall
have the meaning assigned to it by
section 70 of this Code.
"in default" See
"default".
"infant" means any
natural person under the age of
twenty-one years or such other age
as may from time to time be
declared by any enactment to be
full age for legal purposes.
"insolvent" in
relation to any body corporate
means that its liabilities exceed
its assets or that it is unable to
pay its debts as they fall due.
"invitation to the
public" shall have the meaning
assigned to it by section 266 of
this Code
"liquidator" means the
person appointed to wind up a body
corporate.
"local
manager" in relation to an
external company, shall have the
meaning assigned to it by section
303 of this Code.
"manager" means a
person appointed to exercise the
functions referred to in
subsections (1) and (2) of section
238 of this Code.
"managing director"
means a director to whom has been
delegated some of the powers of
the board of directors, to direct
and administer the business of the
company.
"members' voluntary
winding up" shall have the
meaning assigned to it by section
249 of this Code.
"Minister" means the
Minister to whom functions under
this Act are assigned by the
President.
"mutual fund" shall
have the meaning assigned to it by
section 319 of this Code.
"non-Ghanaian company"
See 1, above.
"officer" See
2, above.
"officer in
default" See "officer" and
"default".
"ordinary resolution"
shall have the meaning assigned to
it by section 168 of this
Code.
"payment in cash"
shall have the meaning assigned to
it by section 45 of this Code.
"pension" means any
superannuation allowance,
superannuation gratuity, or
similar payment.
"pension scheme" means
a scheme for the provision of
pensions in respect of services as
an officer of a company which is
maintained in whole or in part by
contributions.
"preference share"
shall have the meaning assigned to
it by section 48 of this Code.
"prescribed form"
shall have the meaning assigned to
it by section 332 of this Code.
"private company" See
1, above.
"process agent" in
relation to external companies
shall have the meaning assigned
to it by section 303 of this
Code.
"public" See
"invitation to the
public".
"public company" See
1, above.
"purchase" in relation
to securities, see 3 above.
"receiver" means a
person appointed to exercise the
functions referred to in
subsection (1) of section 238 of
this Code.
"Registrar" means the
Registrar of Companies appointed
in accordance with section 328 of
this Code.
"registration" shall
have the meaning assigned to it by
section 331 of this Code.
"registration
officer" shall have the meaning
assigned to it by subsection (7)
of section 32 of this Code.
"resolution requiring
confirmation" shall have the
meaning assigned to it by
subsection (2) of section 75 of
this Code.
"seal" means the
common seal of the company.
"security" See 3,
above.
"sell" in relation to
securities, see 3 above.
"share" See 3,
above.
"solvent" means not
insolvent.
"special resolution"
shall have the meaning assigned to
it by section 168 of this Code.
"stated capital" shall
have the meaning assigned to it by
section 66 of this Code.
"stock exchange" see
3, above.
"subsidiary" See 1,
above.
"surplus" Bears the
meaning assigned to it by section
69 of this Code.
"Table A" and Table B"
means Tables A and B respectively
in the Second Schedule to this
Code.
Second sch.
"Treasury shares"
shall have the meaning assigned to
it by subsection (3) of section 59
of this Code.
"unit trust" shall
have the meaning assigned to it by
section 318 of this Code.
"unit" means the
rights and interests whether
described as units or otherwise,
under any unit trust.
"untrue statement"
means a statement which is false
or misleading in the form, context
or circumstances in which it was
made having regard to any failure
to state other facts.
Sixth and Seventh Sch.
"vendor" means any person who has
entered into any contract,
absolute or conditional, for the
sale or leasing, of any property
or for the granting of an option
to purchase or lease, any
property: but for the purpose of
the Sixth and Seventh Schedules to
this Code where the vendors of any
of them are an unincorporated firm
the members of the firm shall be
treated as one vendor and not as
separate vendors.
"waiting period" shall
have the meaning assigned to it by
section 281 of this Code.
"winding up under an
order of the Court" shall have
the meaning assigned to it by
section 247 of this Code.
SECOND SCHEDULE
(Sections 16, 17, 19 and 20)
TABLES A AND B
PART I
Table A—Regulations for a Private
Company Limited by Shares
Regulation 1—
The name of the company is John
Mensah & Co., Limited.
Regulation 2—
The nature of the businesses which
the company is authorised to carry
on are,
a) to acquire and take over as a
going concern the business of
storekeeper now carried on at 1116
High Street, Accra, under the
style of John Mensah & Co., and
all or any of the assets and
liabilities of the proprietor of
that business used in connection
therewith or belonging thereto and
with a view thereto to enter into
an agreement a draft of which has
for the purposes of identification
been signed by the subscriber of
these Regulations, and to carry
the same into effect with or
without modifications;
(b) to carry on the business of a
storekeeper in all its branches at
1116 High Street, Accra or
elsewhere and, in particular, to
buy, sell and deal in goods,
stores, consumable articles and
effects of all kinds, both
wholesale and retail.
Regulation 3—
Pursuant to section 24 of the
Companies Code, 1963 (Act 179),
the company has, for the
furtherance of its authorised
businesses, all the powers of a
natural person of full capacity
except in so far as such powers
are expressly excluded by these
Regulations.
Regulation 4—
The first directors of the company
are John Mensah and Kwame Kofi.
Regulation 5—
The powers of the board of
directors are limited in
accordance with section 202 of the
Code.
Regulation 6—
The liability of the members of
the company is limited.
Regulation 7—
The company is to be registered
with 1,000 shares of no par value.
Regulation 8—
The company is a private company
and accordingly,
(a) the right to transfer shares
is restricted in manner following,
that is to say, the directors may,
in their absolute discretion and
without assigning any reason
therefor, decline to register any
transfer of any share;
(b) the number of members and
debentureholders of the company,
exclusive of persons who are bona
fide in the employment of the
company and of persons who having
been formerly bona fide in the
employment of the company were
while in such employment and have
continued after the determination
of such employment to be members
or debentureholders of the
company, is limited to fifty:
Provided that where two or more
persons hold one or more shares or
debentures jointly they shall for
the purposes of this regulation be
treated as a single member;
(c) the company is prohibited from
making any invitation to the
public to acquire any of its
shares or debentures;
(d) the company is prohibited from
making any invitation to the
public to deposit money for fixed
periods or payable at call,
whether bearing or not bearing
interest.
Regulation 9—Shares and Variation
of Rights
The company may, by special
resolution altering these
Regulations,
(a) increase the number of its
shares by creating new shares;
(b) reduce the number of its
shares by cancelling shares which
have not been taken or agreed to
be taken by any person, or by
consolidating its existing shares,
whether issued or not, into a
smaller number of shares;
(c) provide for different classes
of shares by attaching to certain
of the shares preferred, deferred
or other special rights or
restrictions whether in regard to
dividend, voting, repayment, or
otherwise:
Provided that the voting rights of
equity shares shall comply with
the provisions of sections 31 and
50 of the Code and the voting
rights of preference shares shall
comply with the provisions of
sections 31 and 49 of the Code.
(d) in accordance with section 59
of the Code create preference
shares which are, or at the option
of the company are liable, to be
redeemed on such terms and in such
manner as may be provided, but
subject to compliance with the
provisions of sections 60 to 63 of
the Code.
Regulation 10—
(1) The company shall not issue
any new or unissued shares for
cash unless the same are offered
in the first instance to all the
shareholders or to all the
shareholders of the class or
classes being issued in proportion
as nearly as may be to their
existing holdings.
(2) The offer to the existing
shareholders shall be by notice
specifying the number of shares to
which the shareholder is entitled
to subscribe and limiting a time,
not being less than twenty-eight
days after the date of service of
the notice, after the expiration
of which the offer, if not
accepted, will be deemed to be
declined.
(3) After the expiration of such
time, or on receipt of an
intimation from the shareholder
that he declines to accept the
shares offered, the board of
directors may, subject to the
terms of any resolution of the
company and to the provisions of
section 202 of the Code, dispose
of the same at a price not less
than that specified in the offer
in such manner as they think most
beneficial to the company.
(4) This regulation shall not be
alterable except with the
unanimous consent of all the
members of the company.
Regulation 11—
If at any time the shares are
divided into different classes,
the rights attached to any class
may be varied with the written
consent of the holders of at least
three-fourths of the issued shares
of that class or the sanction of a
special resolution of the holders
of the shares of that class.
Regulation 12—
Subject to compliance with the
provisions of sections 60 to 63 of
the Code the company may exercise
the powers conferred by section 59
of the Code to,
(a) purchase its own shares;
(b) acquire its own shares by a
voluntary transfer to it or
nominees for it;
(c) forfeit in manner hereinafter
appearing any shares issued with
an unpaid liability for
non-payment of calls or other sums
payable in respect thereof.
Regulation 13—
The company may pay commission or
brokerage to any person in
consideration of his subscribing
or agreeing to subscribe or
agreeing to procure subscriptions
for any shares in the company
provided that the payment does not
exceed ten per centum of the price
at which the shares are issued.
Regulation 14—
Share certificates shall be issued
in accordance with section 53 of
the Code.
Regulation 15—Calls on Shares
(1) Where shares are issued upon
the terms that any part of the
price payable therefor is not
payable at a fixed time the board
of directors may from time to time
make calls upon the shareholders
in respect of any moneys unpaid on
their shares, provided that no
call shall be payable less than
twenty-eight days from the date
fixed for the payment of the last
preceding call, and each
shareholder shall, subject to
receiving not less than fourteen
days notice specifying the time or
times and place of payment, pay to
the company at the time or times
and place so specified the amount
called upon his shares.
(2) A call may be revoked or
postponed as the directors may
determine.
Regulation 16—
A
call shall be deemed to have been
made at the time when the
resolution of the directors
authorising the call was passed
and may be required to be paid by
instalments.
Regulation 17—
The joint holders of a share shall
be jointly and severally liable to
pay all calls in respect thereof.
Regulation 18—
If a sum called in respect of a
share is not paid before or on the
day appointed for payment, the
person from whom the sum is due
shall pay interest thereon from
the date appointed for payment to
the time of actual payment at such
rate not exceeding five per centum
per annum as the board of
directors may determine, but the
board of directors shall be at
liberty to waive payment of such
interest wholly or in part.
Regulation 19—
Any sum which by the terms of
issue of a share becomes payable
on application therefor or on
allotment, or at any fixed date
shall for the purposes of these
Regulations be deemed to be a call
duly made and payable on the date
on which by the terms of issue the
same becomes payable, and in the
case of non-payment all the
relevant provisions of these
Regulations as to payment of
interest and expenses, forfeiture,
sale or otherwise shall apply as
if such sum had become payable by
virtue of a call duly made and
notified.
Regulation 20—
As between shares of the same
class the company shall not
differentiate between the holders
as to the amount of calls to be
paid or the times of payment.
Regulation 21—
If the company shall receive from
any shareholder all or any part of
the moneys not presently payable
or called upon any shares held by
him the sum shall not be treated
as a payment in respect of the
shares until such sum becomes due
and payable on such shares and in
the mean time shall be deemed to
be a loan to the company upon
which the company may pay interest
at such rate not exceeding five
per centum per annum as may be
agreed between the board of
directors and such shareholder.
Regulation 22—Forfeiture of Shares
If a shareholder fails to pay any
call or instalment of a call,
including any sum deemed to be a
call under regulation 19 hereof,
the board of directors may at any
time thereafter during such time
as any part of the call or
instalment remains unpaid, serve a
notice on him requiring payment of
so much of the call or instalment
as is unpaid, together with any
interest which may have accrued.
Regulation 23—
The notice shall name a further
day not earlier than the
expiration of fourteen days from
the date of service of the notice
on or before which the payment
required by the notice is to be
made, and shall state that in the
event of non-payment at or before
the times appointed the shares in
respect of which the call was made
will be liable to be forfeited.
Regulation 24—
If the requirements of such notice
are not complied with, any share
in respect of which the notice has
been given may, at any time
thereafter, before the payment
required by the notice has been
made, be forfeited by a resolution
of the directors to that effect.
Regulation 25—
A
forfeited share may either be
cancelled by alteration of these
Regulations or may be retained as
a treasury share until sold or
otherwise disposed of on such
terms and in such manner as the
board of directors think fit.
Regulation 26—
A
person whose shares have been
forfeited shall cease to be a
member in respect of the forfeited
shares and shall be bound to
surrender to the company for
cancellation the share certificate
or certificates in respect of the
shares so forfeited but shall,
notwithstanding, remain liable to
pay to the company all moneys
which, at the date of the
forfeiture, were payable by him to
the company in respect of the
shares, but his liability shall
cease if and when the company
shall have received payment in
full of all such moneys in respect
of the shares.
Regulation 27—
A
statutory declaration in writing
that the declarant is a director
or the secretary of the company
and that a share in the company
has been duly forfeited on the
date stated in the declaration,
shall be conclusive evidence of
the facts therein stated as
against all persons claiming to be
entitled to the share.
Regulation 28—Lien
(1) The company shall have a first
and paramount lien on all shares
issued with an unpaid liability
for all moneys, whether presently
payable or not, called or payable
at a fixed time in respect of that
share.
(2) The company's lien shall
extend to all dividends payable
thereon.
Regulation 29—
If any sum in respect of which the
company has a lien is presently
payable the board of directors,
after serving the notice required
by regulations 22 and 23 hereof,
may, at any time before the
payment required by such notice
has been made, sell any share on
which the company has such lien
instead of forfeiting it in
accordance with regulation 24
hereof.
Regulation 30—
(1) To give effect to any such
sale the board of directors may
authorise some person to transfer
the shares sold to the purchaser
thereof.
(2) The purchaser shall be
registered as the holder of the
share comprised in such transfer
and he shall not be bound to see
to the application of the purchase
money nor shall the title to his
shares be affected by any
irregularity or invalidity in the
proceedings in reference to the
sale.
Regulation 31—
The proceeds of such sale shall be
received by the company and
applied in payment of such part of
the amount in respect of which the
lien exists as is presently
payable, and the residue, if any,
shall, subject to a like lien for
sums not presently payable as
existed upon the shares before the
sale, be paid to the person
entitled to the share at the date
of the sale but the company shall
not be bound to make such payment
unless and until such person has
surrendered to the company for
cancellation his share certificate
or certificates relating to the
shares so sold.
Regulation 32—Transfer and
Transmission of Shares
Subject to regulation 8 (a) hereof
shares shall be transferable and
transfers shall be registered in
the manner provided by sections 95
and 98 of the Code.
Regulation 33—
In the event of the death of any
shareholder or in the event of the
ownership of any share devolving
upon any person by reason of his
being the legal personal
representative, receiver, or
trustee in bankruptcy of the
holder, or by operation of law,
the provisions of section 99 of
the Code shall apply.
Regulation 34—Dividends
The company may, by ordinary
resolution, declare dividends in
respect of any year or other
period but no dividend shall
exceed the amount recommended by
the board of directors.
Regulation 35—
No dividend shall be paid unless,
(a) the company will, after such
payment, be able to pay its debts
as they fall due;
(b) the amount of such payment
does not exceed the amount of the
company's income surplus
immediately prior to the making of
such payment.
Regulation 36—
The board of directors may, before
recommending any dividend, set
aside out of the profits or income
surplus of the company such sums
as they think proper in order to
provide for a known liability,
including a disputed or contingent
liability, or as a depreciation or
replacement provision and may
carry forward any profits or
income surplus which they may
think prudent not to distribute.
Regulation 37—
All dividends shall be declared
and paid as a fixed sum per share
and not as a proportion of the
amount paid in respect of a share.
Regulation 38—
The board of directors may deduct
from any dividend payable to any
shareholder all sums of money
presently payable by him to the
company in respect of his shares.
Regulation 39—
(1) Any dividend payable in cash
may be paid by cheque or warrant
sent by post directed to the
registered address of the
shareholder or, in the case of
joint holders, to the registered
address of that one who is first
named on the register of members,
or to such person and to such
address as the holder or joint
holders may in writing direct.
Every such cheque or warrant shall
be made payable to the order of
the person to whom it is sent.
(2) Any one of two or more joint
holders may give effectual
receipts for any dividends.
(3) Every dividend payment shall
be accompanied by a statement
showing the gross amount of the
dividend, and any tax deducted or
deemed to be deducted therefrom.
Regulation 40—
No dividend shall bear interest
against the company.
Regulation 41—Capitalisation
Issues and Non-Cash Dividends
The company, upon the
recommendation of the directors,
may exercise the powers conferred
by section 74 of the Code,
(a) to make capitalisation issues
of shares in accordance with
subsection (1) of section 74,
(b) to resolve, in accordance with
subsection (3) of section 74, that
any sum standing to the credit of
the company's income surplus and
which could have been distributed
by way of dividend shall be
applied in paying up amounts for
the time being unpaid on shares,
(c) to direct, in accordance with
subsection (4) of section 74, that
payment of a dividend shall be
wholly or partly by distribution
of securities for money or fully
paid shares or debentures of
another body corporate or of fully
paid debentures of the company.
Regulation 42—Accounts and Audit
The board of directors shall cause
proper books of account to be kept
and a profit and loss account and
balance sheet to be prepared,
audited and circulated in
accordance with sections 123 to
133 of the Code.
Regulation 43—
Auditors, qualified in accordance
with section 270 of the Code,
shall be appointed and their
duties regulated in accordance
with sections 134 to 136 of the
Code.
Regulation 44—General Meetings and
Resolutions
The powers of the members in
general meeting shall be as stated
in section 137 of the Code.
Regulation 45—
Annual general meetings shall be
held in accordance with section
149 of the Code.
Regulation 46—
Extraordinary general meetings may
be convened by the directors
whenever they think fit in
accordance with section 150 of the
Code and shall be convened by the
directors on a requisition of
members in accordance with section
271 of the Code.
Regulation 47—
Notice of general meetings shall
be given in accordance with
sections 152 to 159 of the Code
and accompanied by any statements
required to be circulated
therewith in accordance with
sections 157 to 159 of the Code.
Regulation 48—
Meetings may be attended by the
persons referred to in section 160
of the Code but a member shall not
be entitled to attend unless all
calls or other sums presently
payable by him in respect of
shares in the company have been
paid.
Regulation 49—
The quorum required for any
general meeting shall be as stated
in section 161 of the Code.
Regulation 50—
(a) In accordance with section 163
of the Code any member entitled to
attend and vote at a meeting of
the company shall be entitled to
appoint another person, whether a
member of the company or not, as
his proxy to attend and vote
instead of him and such proxy
shall have the same rights as the
member to speak at the meeting.
(b) An instrument appointing a
proxy shall be in the following
form or a form as near thereto as
circumstances admit:
" John Mensah & Co.,
Limited
I/We
of
being a member/members of the
above-named company hereby
appoint.
of
or failing him
of
as
my/our proxy to vote for me/us on
my/our behalf at the
annual/extraordinary general
meeting of the company to be held
on
the
day of
19
and at any adjournment
thereof.
Signed
this day
of 19
This form is to be used:—
Strike out whichever is not
desired.* in favour of
--------------------------
resolution numbered 1
against
Strike out whichever is not
desired.* in favour of
--------------- resolution
numbered 2.
against
[Delete if only one resolution is
to be proposed; add further
instructions if more than two
resolutions are to be proposed.]
Unless otherwise instructed, the
proxy will vote as he thinks fit.
*
Strike out whichever is not
desired."
Regulation 51—
A
body corporate which is a member
of the company may attend and vote
either by proxy or by a
representative appointed in
accordance with section 165 of the
Code.
Regulation 52—
Meetings shall be conducted in
accordance with sections 166 to
173 of the Code. On a poll being
demanded the Chairman of the
meeting shall not be required to
direct a postal ballot in
accordance with subsections (6),
(7) and (8) of section 170 of the
Code unless he thinks fit or an
ordinary resolution to that effect
is moved at the meeting and passed
on a show of hands.
Regulation 53—
In accordance with section 174 of
the Code a resolution in writing
signed by all the members for the
time being entitled to attend and
vote at general meetings, or being
bodies corporate by their duly
authorised representatives, and if
the company has only one such
member by that member shall be as
valid and effective for all
purposes, except as provided by
such section 174, as if the same
had been passed at a general
meeting of the company duly
convened and held, and if
described as a special resolution
shall be deemed to be a special
resolution within the meaning of
the Code.
Regulation 54—
Minutes of general meetings shall
be kept in accordance with section
177 of the Code.
Regulation 55—
If at any time the shares of the
company are divided into different
classes the foregoing regulations
shall apply to a meeting of any
class of members in like manner as
they apply to general meetings but
so that the necessary quorum shall
be as set out in section 175 of
the Code.
Regulation 56—Votes of Members
Subject to any rights or
restrictions for the time being
attached to any class of
preference shares and which may be
validly attached thereto pursuant
to section 49 of the Code,
(a) on a show of hands each member
and each proxy lawfully present at
the meeting shall have one vote,
and on a poll each member present
in person or by proxy shall have
one vote for each share held by
him.
(b) in the event of a postal
ballot being directed pursuant to
subsections (6), (7) and (8) of
section 170 of the Code, each
member entitled to attend and vote
at the meeting shall have one vote
for each share held by him.
Regulation 57—Directors
The number of directors, not being
less than two or more than five,
shall be determined by ordinary
resolution of the members in
general meeting and until so
determined shall be two.
Regulation 58—
The continuing directors may act
notwithstanding any vacancy in
their body but if and so long as
their number is reduced below two
or below the number fixed by the
directors as the necessary quorum
they may act for four weeks after
the number is so reduced, but
thereafter may act only for the
purpose of increasing their number
to that number or of summoning a
general meeting of the company and
for no other purpose.
Regulation 59—
The appointment of directors shall
be regulated by sections 181 and
272 of the Code.
Regulation 60—
The persons referred to in section
182 of the Code shall not be
competent to be appointed
directors of the company.
Regulation 61—
A
director need not be a member of
the company or hold any shares
therein.
Regulation 62—
The office of director shall be
vacated in accordance with section
184 of the Code and any director
may be removed from office in
accordance with section 185 of the
Code.
Regulation 63—
(1) The company may appoint
substitute directors in accordance
with section 187 of the Code and
any director may appoint an
alternate director in accordance
with section 188 of the Code.
(2) An alternate director shall
not be entitled to be remunerated
otherwise than out of the
remuneration of the director
appointing him.
Regulation 64—
At least one director of the
company shall at all times be
present in Ghana.
Regulation 65—
The remuneration payable to any
director in whatsoever capacity
shall be determined or approved by
the members in general meeting in
accordance with section 194 of the
Code.
Regulation 66—
The proceedings of the directors
shall be regulated by section 200
of the Code and the board of
directors may delegate any of
their powers to committees of the
directors in accordance with that
section.
Regulation 67—
Minutes of meetings of the board
of directors and of any committee
of directors shall be kept in
accordance with section 201 of the
Code.
Regulation 68—Powers and Duties of
Directors
(1) The business of the company
shall be managed by the directors
who may pay all expenses incurred
in promoting and registering the
company.
(2) Subject to section 202 of the
Code, the board of directors may
exercise all such powers of the
company, including power to borrow
money and to mortgage or charge
its property and undertaking or
any part thereof and to issue
debentures, as are not by the Code
or these Regulations required to
be exercised by the members in
general meeting.
Regulation 69—
In any transaction with the
company or on its behalf and in
the exercise of their powers the
directors shall observe the duties
and obligations imposed on them by
sections 203 to 205 of the Code.
Regulation 70—
Subject to compliance with section
207 of the Code, a director may
enter into any contract with the
company and such contract or any
other contract of the company in
which any director is in any way
interested shall not be liable to
be avoided nor shall any director
be liable to account for any
profit made thereby by reason of
the director holding the office of
director or of the fiduciary
relationship thereby established.
Regulation 71—
Any director may act by himself or
his firm in a professional
capacity for the company, except
as auditor, and he or his firm
shall be entitled to proper
remuneration for professional
services as if he were not a
director.
Regulation 72—Executive and
Managing Directors
The board of directors may
exercise the powers conferred by
section 192 of the Code to appoint
one or more of their body to any
other office or place of profit
under the company, other than the
office of auditor, for such period
and on such terms as they may
determine and, subject to the
terms of any agreement entered
into in any particular case, may
revoke such appointment.
Regulation 73—
(1) The board of directors may
exercise the power conferred by
section 193 of the Code to appoint
one or more of their body to the
office of managing director for
such period and on such terms as
they may determine and, subject to
the terms of any agreement entered
into in any particular case, may
revoke such appointment and such
appointment shall be automatically
determined if the holder of the
office ceases from any cause to be
a director.
(2) The directors may entrust to
and confer upon a managing
director any of the powers
exercisable by them upon such
terms and with such restrictions
as they think fit, and either
collaterally with, or on the
exclusion of, their own powers,
and subject to the terms of any
agreement entered into in any
particular case, may from time to
time revoke or vary all or any of
such powers.
Regulation 74—
No remuneration shall be payable
to any director in respect of any
office or place of profit to which
he is appointed under the
foregoing regulations unless and
until the terms of his appointment
have been approved by ordinary
resolution of the company in
general meeting in accordance with
section 194 of the Code.
Regulation 75—Secretary and
Officers and Agents
The Secretary shall be appointed
by the board of directors for such
time, at such remuneration, and
upon such conditions as they think
fit; and any secretary so
appointed may be removed by them,
subject however to his right to
claim damages if removed in breach
of contract.
Regulation 76—
A
provision in the Code or these
Regulations requiring or
authorising a thing to be done by
or to a director and the secretary
shall not be satisfied by its
being done by or to the same
person acting both as director and
as, or in place of, the secretary.
Regulation 77—
(1) The board of directors may
from time to time appoint officers
and agents of the company and may
appoint any body corporate, firm,
or body of persons, whether
nominated directly or indirectly,
by the board of directors, to be
the attorney or attorneys of the
company for such purposes and with
such powers, authorities and
discretions, not exceeding those
vested in or exercisable by the
directors under these Regulations,
and for such period and subject to
such conditions as they may think
fit.
(2) Any such powers of attorney
may contain such provisions for
the protection and convenience of
persons dealing with any such
attorney as the directors may
think fit and may also authorise
any such attorney to delegate all
or any of the powers, authorities
and discretions vested in him.
Regulation 78—The Seal
The directors shall provide for
the safe custody of the seal,
which shall only be used by the
authority of the board of
directors or of a committee of the
directors authorised by the board
of directors in that behalf, and
every instrument to which the seal
shall be affixed shall be signed
by a director, and shall be
countersigned by the secretary or
by a second director or by some
other person appointed by the
directors for the purpose.
Regulation 79—
The company may exercise the
powers conferred by section 148 of
the Code with regard to having an
official seal for use abroad, and
such powers shall be vested in the
board of directors.
Regulation 80—Service of Documents
Any document may be served by the
company on any member,
debentureholder or director of the
company in the manner provided by
section 262 of this Code.
Regulation 81—Winding-up
(1) If the company shall be wound
up the liquidator may, with the
sanction of a special resolution
of the company and any other
sanction required by the Code or
by the Bodies Corporate (Official
Liquidation) Act, 1963 (Act 180),
divide amongst the members in
specie or kind the whole or any
part of the assets of the company,
whether they shall consist of
property of the same kind or not,
and may for such purpose set such
value as he deems fair upon any
property to be divided as
aforesaid and may determine how
such division shall be carried out
as between the members or
different classes of members.
(2) The liquidator may, with the
like sanction, vest the whole or
any part of such assets in
trustees upon such trusts for the
benefit of the members as the
liquidator, with the like
sanction, shall think fit.
(3) Notwithstanding the foregoing
no member shall be compelled to
accept any securities whereon
there is any liability.
Regulation 82—Interpretation
In these Regulations; unless the
context otherwise requires,
(a) "Code" means the Companies
Code, 1963 (Act 179) or any
statutory modification or
re-enactment thereof;
(b) words or expressions shall
have the same meaning as in the
Code;
(c) references to sections of the
Code shall mean such sections as
modified or re-enacted from time
to time.
I
the undersigned am desirous of
forming an incorporated company in
pursuance of these Regulations and
I agree to take the number of
shares in the company set opposite
my name and to pay therefor in
cash the consideration stated.
Name, Address
and
Number
Consideration
Description
or
of
Payable in Cash
Occupation
of
Shares
Subscriber
John Mensah of 1116, High Street,
Accra, Storekeeper ...
... ...
100
£G100
Dated the 22nd day of November,
1961.
Witness to the above signature:
Name ... ...
... ... Charles
Robinson.
Address ... ...
... ... Nkrumah
Circle, Accra.
Description or
Occupation ... Legal
Practitioner.
NOTES ON PART I
Regulations in the form of
regulations 1 to 7 must be
expressly stated in the
Regulations lodged for
registration. The remaining
regulations may be adopted by
reference by stating:—
"8. The company is a private
company and accordingly
regulations 8 to 82 in Part I of
Table A in the Second Schedule to
the Companies Code, 1963 (Act
179), shall apply."
If it is desired to exclude any
such regulations insert after
"Companies Code, 1963 (Act 179)",
the words "(except regulations)".
If it is desired to exclude Table
A completely, insert instead of
the above:—
"8. The regulations contained in
Table A in the Second Schedule to
the Companies Code, 1963 (Act
179), shall not apply to the
company except in so far as they
are repeated or contained in these
Regulations."
In that event care must be taken
to include a regulation equivalent
to regulation 8 of the Table;
otherwise the company will not be
a private company.
1. Regulations 8 and 32. If in
addition, or instead, of the
unfettered power to refuse
transfers it is desired to give
the other shareholders rights of
pre-emption or first refusal
appropriate provisions should be
inserted after regulation 32. In
that event regulation 8 (a) need
merely state "the right to
transfer shares is restricted in
manner hereinafter appearing".
2. Regulation 52. If the shares
are equally divided between two
interests it may be desirable to
delete this regulation and to
substitute another beginning—
"Meetings shall be conducted in
accordance with sections 166 to
173 of the Code but so that the
Chairman of the meeting shall not
have a casting vote either on a
show of hands or a poll....."
This will prevent one side from
out-voting the other but may, of
course, lead to a deadlock.
3. Regulation 52. If it is
desired that the Chairman should
be required to direct a postal
ballot if a poll is demanded, this
regulation should be deleted and
another substituted in which the
last sentence should read:—
"On a poll being validly demanded
the Chairman of the meeting shall
direct a postal ballot in
accordance with subsections (6),
(7) and (8) of section 170 of the
Code."
4. Regulation 59. If it is
desired that any class of
security-holders or the employees
shall have the right to appoint
one or more directors, this
regulation should be deleted and
another substituted making the
appropriate provisions.
5. Regulation 63. If it is
desired that the alternate
director shall be entitled to the
remuneration of his appointor this
regulation should be deleted and
another substituted in which the
second sentence should read:—
"An alternate director shall be
entitled to receive from the
company during the period of his
appointment the remuneration to
which his appointor, but for that
appointment, would have been
entitled, and his appointor shall
not be entitled to such
remuneration for that period."
6. Regulation 66. As pointed out
in Note 2 it may sometimes be
desirable to deprive the Chairman
of a casting vote. In that event
this regulation should be deleted
and the following substituted:—
"The proceedings of the directors
shall be regulated by section 200
of the Code but so that on an
equality of votes the Chairman
shall not have a second or casting
vote."
7. Subscription of Regulations.
If there is to be more than one
member it may be convenient for
all to subscribe, in which case
this provision should be amended
to read as in the corresponding
provision in Part II. It will
normally be convenient for the
subscribers to sign for the amount
of the minimum cash consideration
required under section 28 and not
merely for one share each.
8. No provision has been made for
the keeping of branch registers as
these will rarely be needed in the
case of private companies. Should
it nevertheless be desired to
maintain such registers a
regulation similar to regulation
43 of Part II should be included.
PART II
Table A—Regulations for a Public
Company Limited by Shares
Regulation 1—
The name of the company is Ghana
Mining Corporation Limited.
Regulation 2—
The nature of the businesses which
the company is authorised to carry
on are,
(a) to purchase, take concessions
of, lease, or otherwise acquire
any mines, mining rights, and
metalliferous land in Ghana or
elsewhere and any interest
therein, and to explore, work,
exercise, develop, and turn the
same to account;
(b) to crush, win, get, quarry,
smelt, calcine, refine, dress,
amalgamate, manipulate, and
prepare for market, ore, metal and
mineral substances of all kinds.
Regulation 3—
Pursuant to section 24 of the
Companies Code, 1963 (Act 179),
the company has, for the
furtherance of its authorised
businesses all the powers of a
natural person of full capacity
except in so far as such powers
are expressly excluded by these
Regulations.
Regulation 4—
The first directors of the company
are,
Kofi Mensah
John Henry Smith
Herbert Harold Brown
Kwame Kwasi
George Kojo
Thomas Kobina and
William Kwaku
Regulation 5—
The powers of the board of
directors are limited in
accordance with section 202 of the
Code.
Regulation 6—
The liability of the members of
the company is limited.
Regulation 7—
The company is to be registered
with 500,000 shares of no par
value.
Regulation 8—Shares and Variation
of Rights
The company may, by special
resolution altering these
Regulations,
(a) increase the number of its
shares by creating new shares;
(b) reduce the number of its
shares by cancelling shares which
have not been taken or agreed to
be taken by any person, or by
consolidating its existing shares,
whether issued or not, into a
smaller number of shares;
(c) provide for different classes
of shares by attaching to certain
of the shares preferred, deferred
or other special rights or
restrictions whether in regard to
dividend, voting, repayment, or
otherwise:
Provided that the voting rights of
equity shares shall comply with
the provisions of sections 31 and
50 of the Code and the voting
rights of preference shares shall
comply with the provisions of
sections 31 and 49 of the Code;
(d) in accordance with section 59
of the Code create preference
shares which are, or at the option
of the company are liable, to be
redeemed on such terms and in such
manner as may be provided, but
subject to compliance with the
provisions of sections 60 to 63 of
the Code.
Regulation 9—
On the issue of any new or
unissued shares in the company the
directors shall comply with the
provisions of section 202 of the
Code.
Regulation 10—
If at any time the shares are
divided into different classes,
the rights attached to any class
may be varied with the written
consent of the holders of at least
three-fourths of the issued shares
of that class or the sanction of a
special resolution of the holders
of the shares of that class.
Regulation 11—
Subject to compliance with the
provisions of sections 60 to 63 of
the Code the company may exercise
the powers conferred by section 59
of the Code to,
(a) purchase its own shares;
(b) acquire its own shares by a
voluntary transfer to it or to
nominees for it;
(c) forfeit in manner hereinafter
appearing any shares issued with
an unpaid liability for
non-payment of calls or other sums
payable in respect thereof.
Regulation 12—
The company may pay commission or
brokerage to any person in
consideration of his subscribing
or agreeing to subscribe or
procuring or agreeing to procure
subscriptions for any shares in
the company provided that the
payment does not exceed ten per
centum of the price at which the
shares are issued.
Regulation 13—
Share certificates shall be issued
in accordance with section 53 of
the Code.
Regulation 14—Calls on Shares
(1) Where shares are issued upon
the terms that any part of the
price payable therefor is not
payable at a fixed time the board
of directors may from time to time
make calls upon the shareholders
in respect of any moneys unpaid on
their shares, provided that no
call shall be payable less than
twenty-eight days from the date
fixed for the payment of the last
preceding call, and each
shareholder shall, subject to
receiving not less than fourteen
days notice specifying the time or
times and place of payment, pay to
the company at the time or times
and place so specified the amount
called upon his shares.
(2) A call may be revoked or
postponed as the directors may
determine.
Regulation 15—
A
call shall be deemed to have been
made at the time when the
resolution of the directors
authorising the call was passed
and may be required to be paid by
instalments.
Regulation 16—
The joint holders of a share shall
be jointly and severally liable to
pay all calls in respect thereof.
Regulation 17—
If a sum called in respect of a
share is not paid before or on the
day appointed for payment, the
person from whom the sum is due
shall pay interest thereon from
the date appointed for payment to
the time of actual payment at such
rate not exceeding five per centum
per annum as the board of
directors may determine, but the
board of directors shall be at
liberty to waive payment of such
interest wholly or in part.
Regulation 18—
Any sum which by the terms of
issue of a share becomes payable
on application therefor or on
allotment, or at any fixed date
shall for the purposes of these
Regulations be deemed to be a call
duly made and payable on the date
on which by the terms of issue the
same becomes payable, and in the
case of non-payment all the
relevant provisions of these
Regulations as to payment of
interest and expenses, forfeiture,
sale or otherwise shall apply as
if such sum had become payable by
virtue of a call duly made and
notified.
Regulation 19—
As between shares of the same
class the company shall not
differentiate between the holders
as to the amount of calls to be
paid or the times of payment.
Regulation 20—
If the company shall receive from
any shareholder all or any part of
the moneys not presently payable
or called upon any shares held by
him the sum shall not be treated
as a payment in respect of the
shares until such sum becomes due
and payable on such shares and in
the meantime shall be deemed to be
a loan to the company upon which
the company may pay interest at
such rate not exceeding five per
centum per annum as may be agreed
between the board of directors and
such shareholder.
Regulation 21—Forfeiture of Shares
If a shareholder fails to pay any
call or instalment of a call,
including any sum deemed to be a
call under regulation 18 hereof,
the board of directors may at any
time thereafter during such time
as any part of the call or
instalment remains unpaid, serve a
notice on him requiring payment of
so much of the call or instalment
as is unpaid, together with any
interest which may have accrued.
Regulation 22—
The notice shall name a further
day, not earlier than the
expiration of fourteen days from
the date of service of the notice,
on or before which the payment
required by the notice is to be
made, and shall state that in the
event of non-payment at or before
the times appointed the shares in
respect of which the call was made
will be liable to be forfeited.
Regulation 23—
If the requirements of such notice
are not complied with, any share
in respect of which the notice has
been given may, at any time
thereafter, before the payment
required by the notice has been
made, be forfeited by a resolution
of the directors to that effect.
Regulation 24—
A
forfeited share may either be
cancelled by alteration of these
Regulations or may be retained as
a treasury share until sold or
otherwise disposed of on such
terms and in such manner as the
board of directors think fit.
Regulation 25—
A
person whose shares have been
forfeited shall cease to be a
member in respect of the forfeited
shares and shall be bound to
surrender to the company for
cancellation the share certificate
or certificates in respect of the
shares so forfeited but shall,
notwithstanding, remain liable to
pay to the company all moneys
which, at the date of the
forfeiture, were payable by him to
the company in respect of the
shares, but his liability shall
cease if and when the company
shall have received payment in
full of all such moneys in respect
of the shares.
Regulation 26—
A
statutory declaration in writing
that the declarant is a director
or the secretary of the company
and that a share in the company
has been duly forfeited on the
date stated in the declaration,
shall be conclusive evidence of
the facts therein stated as
against all persons claiming to be
entitled to the share.
Regulation 27—Lien
(1) The company shall have a first
and paramount lien on all shares
issued with an unpaid liability
for all moneys, whether presently
payable or not, called or payable
at a fixed time in respect of that
share.
(2) The company's lien shall
extend to all dividends payable
thereon.
Regulation 28—
If any sum in respect of which the
company has a lien is presently
payable the board of directors,
after serving the notice required
by regulations 21 and 22 hereof,
may, at any time before the
payment required by such notice
has been made, sell any share on
which the company has such lien
instead of forfeiting it in
accordance with regulation 23
hereof.
Regulation 29—
(1) To give effect to any such
sale the board of directors may
authorise some person to transfer
the shares sold to the
purchaser thereof.
(2) The purchaser shall be
registered as the holder of the
shares comprised in such transfer
and he shall not be bound to see
to the application of the purchase
money nor shall the title to his
shares be affected by any
irregularity or invalidity in the
proceedings in reference to the
sale.
Regulation 30—
The proceeds of such sale shall be
received by the company and
applied in payment of such part of
the amount in respect of which the
lien exists as is presently
payable, and the residue, if any,
shall, subject to a like lien for
sums not presently payable as
existed upon the shares before the
sale, be paid to the person
entitled to the share at the date
of the sale but the company shall
not be bound to make such payment
unless and until such person has
surrendered to the company for
cancellation his share certificate
or certificates relating to the
shares so sold.
Regulation 31—Transfer and
Transmission of Shares
(1) The board of directors may
decline to register,
(a) the transfer of any share on
which there is an unpaid liability
to a person of whom they shall not
approve;
(b) the transfer of any share to
any person who is an infant or to
any one found by a competent court
in Ghana to be a lunatic or of
unsound mind.
(2) Subject as aforesaid there
shall be no restriction on the
right to transfer any shares in
the company.
Regulation 32—
Shares shall be transferable and
transfers shall be registered in
the manner provided by sections 95
and 98 of the Code.
Regulation 33—
In the event of the death of any
shareholder or in the event of the
ownership of any share devolving
upon any person by reason of his
being the legal personal
representative, receiver or
trustee in bankruptcy of the
holder, or by operation of law,
the provisions of section 99 of
the Code shall apply.
Regulation 34—Dividends
The company may by ordinary
resolution declare dividends in
respect of any year or other
period but no dividend shall
exceed the amount recommended by
the board of directors.
Regulation 35—
The board of directors may
exercise the power conferred by
section 293 of the Code to pay
interim dividends.
Regulation 36—
No dividend shall be paid unless,
(a) the company will, after such
payment, be able to pay its debts
as they fall due;
(b) the amount of such payment
does not exceed the amount of the
company's income surplus
immediately prior to the making of
such payment.
Regulation 37—
The board of directors may, before
recommending any dividend, set
aside out of the profits or income
surplus of the company such sums
as they think proper in order to
provide for a known liability,
including a disputed or contingent
liability, or as a depreciation or
replacement provision and may
carry forward any profits or
income surplus which they may
think prudent not to distribute.
Regulation 38—
All dividends shall be declared
and paid as a fixed sum per share
and not as a proportion of the
amount paid in respect of a share.
Regulation 39—
The board of directors may deduct
from any dividend payable to any
shareholder all sums of money
presently payable by him to the
company in respect of his shares.
Regulation 40—
(1) Any dividend payable in cash
may be paid by cheque or warrant
sent by post directed to the
registered address of the
shareholder or, in the case of
joint holders, to the registered
address of that one who is first
named on the register of members,
or to such person and to such
address as the holder or joint
holders may in writing direct.
(2) Every such cheque or warrant
shall be made payable to the order
of the person to whom it is sent.
(3) Any one of two or more joint
holders may give effectual
receipts for any dividends.
(4) Every dividend payment shall
be accompanied by a statement
showing the gross amount of the
dividend, and any tax deducted or
deemed to be deducted therefrom.
Regulation 41—
No dividend shall bear interest
against the company.
Regulation 42—Capitalisation
Issues and Non-Cash Dividends
The company, upon the
recommendation of the directors,
may exercise the powers conferred
by section 74 of the Code,
(a) to make capitalisation issues
of shares in accordance with
subsection (1) of section 74;
(b) to resolve, in accordance with
subsection (3) of section 74, that
any sum standing to the credit of
the company's income surplus and
which could have been distributed
by way of dividend shall be
applied in paying up amounts for
the time being unpaid on shares;
(c) to direct, in accordance with
subsection (4) of section 74, that
payment of a dividend shall be
wholly or partly by distribution
of securities for money or fully
paid shares or debentures of
another body corporate or of fully
paid debentures of the company.
Regulation 43—Branch Registers
The company may exercise the
powers conferred by sections 103
and 104 of the Code with respect
to the keeping of branch registers
and the board of directors may,
subject to the provisions of those
sections, make such regulations as
they think fit respecting the
keeping of any such register and
may, subject as aforesaid, vary
such regulations.
Regulation 44—Accounts and Audit
The board of directors shall cause
proper books of account to be kept
and a profit and loss account and
balance sheet to be prepared,
audited and circulated in
accordance with sections 123 to
133 of the Code.
Regulation 45—
Auditors, qualified in accordance
with section 296 of the Code,
shall be appointed and their
duties regulated in accordance
with sections 134 to 136 of the
Code.
Regulation 46—General Meetings and
Resolutions
The powers of the members in
general meeting shall be as stated
in section 137 of the Code.
Regulation 47—
Annual general meetings shall be
held in accordance with section
149 of the Code.
Regulation 48—
Extraordinary general meetings may
be convened by the directors
whenever they think fit in
accordance with section 150 of the
Code and shall be convened by the
directors on a requisition of
members in accordance with section
297 of the Code.
Regulation 49—
Notice of general meetings shall
be given in accordance with
sections 152 to 159 of the Code
and accompanied by any statements
required to be circulated
therewith in accordance with
sections 157 to 159 of the Code.
Regulation 50—
Meetings may be attended by the
persons referred to in section 160
of the Code but a member shall not
be entitled to attend unless all
calls or other sums presently
payable by him in respect of
shares in the company have been
paid.
Regulation 51—
The quorum required for any
general meeting shall be as stated
in section 161 of the Code.
Regulation 53—
(1) In accordance with section 163
of the Code any member entitled to
attend and vote at a meeting of
the company shall be entitled to
appoint another person, whether a
member of the company or not, as
his proxy to attend and vote
instead of him and such proxy
shall have the same rights as the
member to speak at the meeting.
(2) An instrument appointing a
proxy shall be in the following
form or a form as near thereto as
circumstances admit:
"Ghana Mining Corporation Limited
I/We.....................................................of.......................................................................being
a member/members of the
above-named company hereby
appoint.........................................of
............................. or
failing him
..............................................
of......................................as
my/our proxy to vote for me/us on
my/our behalf at the
annual/extraordinary general
meeting of the company to be held
on
the.....................................................day
of......................19......and
at any adjournment thereof.
Signed
this....................................day
of.......................................19....
This form is to be used:—
Strike out whichever is not
desired.* in favour
of
______________ resolution numbered
1
against
Strike out whichever is not
desired.* in favour
of
______________ resolution numbered
2.
against
[Delete if only one resolution is
to be proposed; add further
instructions if more than two
resolutions are to be proposed.]
Unless otherwise instructed, the
proxy will vote as he thinks fit.
*Strike out whichever is not
desired."
Regulation 53—
A
body corporate which is a member
of the company may attend and vote
either by proxy or by a
representative appointed in
accordance with section 165 of the
Code.
Regulation 54—
(1) Meetings shall be conducted in
accordance with sections 166 to
173 of the Code.
(2) On a poll being demanded the
chairman of the meeting shall not
be required to direct a postal
ballot in accordance with
subsections (6), (7) and (8) of
section 170 of the Code unless he
thinks fit or an ordinary
resolution to that effect is moved
at the meeting and passed on a
show of hands.
Regulation 55—
In accordance with section 174 of
the Code a resolution in writing
signed by all the members for the
time being entitled to attend and
vote at general meetings, or being
bodies corporate by their duly
authorised representatives, and if
the company has only one such
member by that member shall be as
valid and effective for all
purposes, except as provided by
such section 174, as if the same
had been passed at a general
meeting of the company duly
convened and held, and if
described as a special resolution
shall be deemed to be a special
resolution within the meaning of
the Code.
Regulation 56—
Minutes of general meetings shall
be kept in accordance with section
177 of the Code.
Regulation 57—
If at any time the shares of the
company are divided into different
classes the foregoing regulations
shall apply to meetings of any
class of members in like manner as
they apply to general meetings but
so that the necessary quorum shall
be as set out in section 175 of
the Code.
Regulation 58—Votes of Members
Subject to any rights or
restrictions for the time being
attached to any class of
preference shares and which may be
validly attached thereto pursuant
to section 49 of the Code,
(a) on a show of hands each member
and each proxy lawfully present at
the meeting shall have one vote,
and on a poll each member present
in person or by proxy shall have
one vote for each share held by
him;
(b) in the event of a postal
ballot being directed pursuant to
subsections (6), (7) and (8) of
section 170 of the Code, each
member entitled to attend and vote
at the meeting shall have one vote
for each share held by him.
Regulation 59—Directors
The number of directors, not being
less than five or more than
twelve, shall be determined by
ordinary resolution of the members
in general meeting and until so
determined shall be seven.
Regulation 60—
The continuing directors may act
notwithstanding any vacancy in
their body but if and so long as
their number is reduced below two
or below the number fixed by the
directors as the necessary quorum
they may act for four weeks after
the number is so reduced, but
thereafter may act only for the
purpose of increasing their number
to that number or of summoning a
general meeting of the company and
for no other purpose.
Regulation 61—
The appointment of directors shall
be regulated by sections 181, 298
and 299 of the Code.
Regulation 62—
The persons referred to in section
182 of the Code shall not be
competent to be appointed
directors of the company.
Regulation 63—
A
director need not be a member of
the company or hold any shares
therein.
Regulation 64—
The office of director shall be
vacated in accordance with section
184 of the Code and any director
may be removed from office in
accordance with section 185 of the
Code.
Regulation 65—
(1) The company may appoint
substitute directors in accordance
with section 187 of the Code and
any director may appoint an
alternate director in accordance
with section 188 of the Code.
(2) An alternate director shall
not be entitled to be remunerated
otherwise than out of the
remuneration of the director
appointing him.
Regulation 66—
At least one director of the
company shall at all times be
present in Ghana.
Regulation 67—
The remuneration payable to any
director in whatsoever capacity
shall be determined or approved by
the members in general meeting in
accordance with section 194 of the
Code.
Regulation 68—
The proceedings of the directors
shall be regulated by section 200
of the Code and the board of
directors may delegate any of
their powers to committees of the
directors in accordance with that
section.
Regulation 69—
Minutes of meetings of the board
of directors and of any committee
of directors shall be kept in
accordance with section 201 of the
Code.
Regulation 70—Powers and Duties of
Directors
(1) The business of the company
shall be managed by the directors
who may pay all expenses incurred
in promoting and registering the
company.
(2) Subject to section 202 of the
Code, the board of directors may
exercise all such powers of the
company, including power to borrow
money and to mortgage or charge
its property and undertaking or
any part thereof and to issue
debentures, as are not by the Code
or these Regulations required to
be exercised by the members in
general meeting.
Regulation 71—
In any transaction with the
company or on its behalf and in
the exercise of their powers the
directors shall observe the duties
and obligations imposed on them by
sections 203 to 205 of the Code.
Regulation 72—
Subject to compliance with section
207 of the Code, a director may
enter into any contract with the
company and such contract or any
other contract of the company in
which any director is in any way
interested shall not be liable to
be avoided nor shall any director
be liable to account for any
profit made thereby by reason of
the director holding the office of
director or of the fiduciary
relationship thereby established.
Regulation 73—
Any director may act by himself or
his firm in a professional
capacity for the company, except
as auditor, and he or his firm
shall be entitled to proper
remuneration for professional
services as if he were not a
director.
Regulation 74—Executive and
Managing Directors
The board of directors may
exercise the powers conferred by
section 192 of the Code to appoint
one or more of their body to any
other office or place of profit
under the company, other than the
office of auditor for such period
and on such terms as they may
determine and, subject to the
terms of any agreement entered
into in any particular case, may
revoke such appointment.
Regulation 75—
(1) The board of directors may
exercise the power conferred by
section 193 of the Code to appoint
one or more of their body to the
office of managing director for
such period and on such terms as
they may determine and, subject to
the terms of any agreement entered
into in any particular case, may
revoke such appointment and such
appointment shall be automatically
determined if the holder of the
office ceases from any cause to be
a director.
(2) The directors may entrust to
and confer upon a managing
director any of the powers
exercisable by them upon such
terms and with such restrictions
as they think fit, and either
collaterally with, or to the
exclusion of, their own powers,
and subject to the terms of any
agreement entered into in any
particular case, may from time to
time revoke or vary all or any of
such powers.
Regulation 76—
No remuneration shall be payable
to any director in respect of any
office or place of profit to which
he is appointed under the
foregoing regulations unless and
until the terms of his appointment
have been approved by ordinary
resolution of the company in
general meeting in accordance with
section 194 of the Code.
Regulation 77—Secretary and
Officers and Agents
The secretary shall be appointed
by the board of directors for such
time, at such remuneration, and
upon such conditions as they think
fit; and any secretary so
appointed may be removed by them,
subject however to his right to
claim damages if removed in breach
of contract.
Regulation 78—
A
provision in the Code or these
Regulations requiring or
authorising a thing to be done by
or to a director and the secretary
shall not be satisfied by its
being done by or to the same
person acting both as director and
as, or in place of, the secretary.
Regulation 79—
(1) The board of directors may
from time to time appoint officers
and agents of the company and may
appoint any body corporate, firm,
or body of persons, whether
nominated directly or indirectly,
by the board of directors, to be
the attorney or attorneys of the
company for such purposes and with
such powers, authorities and
discretions, not exceeding those
vested in or exercisable by the
directors under these Regulations,
and for such period and subject to
such conditions as they may think
fit.
(2) Any such powers of attorney
may contain such provisions for
the protection and convenience of
persons dealing with any such
attorney as the directors may
think fit and may also authorise
any such attorney to delegate all
or any of the powers, authorities
and discretions vested in him.
Regulation 80—The Seal
The directors shall provide for
the safe custody of the seal,
which shall only be used by the
authority of the board of
directors or of a committee of the
directors authorised by the board
of directors in that behalf, and
every instrument to which the seal
shall be affixed shall be signed
by a director, and shall be
countersigned by the secretary or
by a second director or by some
other person appointed by the
directors for the purpose.
Regulation 81—
The company may exercise the
powers conferred by section 148 of
the Code with regard to having an
official seal for use abroad, and
such powers shall be vested in the
board of directors.
Regulation 82—Service of Documents
Any document may be served by the
company on any member,
debentureholder or director of the
company in the manner provided by
section 262 of the Code.
Regulation 83—Winding-Up.
(1) If the company shall be wound
up, the liquidator may, with the
sanction of a special resolution
of the company and any other
sanction required by the Code or
by the Bodies Corporate (Official
Liquidations) Act, 1963 (Act 180),
divide amongst the members in
specie or kind the whole or part
of the assets of the company,
whether they shall consist of
property of the same kind or not,
and may for such purpose set such
value as he deems fair upon any
property to be divided as
aforesaid and may determine how
such division shall be carried out
as between the members or
different classes of members.
(2) The liquidator may, with the
like sanction, vest the whole or
any part of such assets in
trustees upon such trusts for the
benefit of the members as the
liquidator, with the like
sanction, shall think fit.
(3) Notwithstanding the foregoing
no member shall be compelled to
accept any securities whereon
there is any liability.
Regulation 84—Interpretation
In these Regulations unless the
context otherwise requires
(a) "Code" means the Companies
Code, 1963 (Act 179), or any
statutory modification or
re-enactment thereof,
(b) words or expressions shall
have the same meaning as in the
Code,
(c) references to sections of the
Code shall mean such sections as
modified or re-enacted from time
to time.
We the undersigned are desirous of
forming an incorporated company in
pursuance of these Regulations and
we respectively agree to take the
number of shares in the company
set opposite our respective names
and to pay therefor in cash the
consideration respectively stated.
Name, Address and
Description Number
of Shares
Consideration
or Occupation of
Subscriber
Payable in Cash
Kofi Mensah of 301 Ring Road,
Obuasi,
Mining Engineer .. ...
... ... 1,000
£G500
John Henry Smith of 421 Ghana
House,
Kumasi, Chartered Accountant
...
1,000
£G500
Dated the 22nd day of November,
1961.
Witness to the above signature:
Name—Charles Robinson
Address—Nkrumah Circle, Accra
Description or Occupation—Legal
Practitioner.
NOTES ON PART II
Regulations in the form of
regulations 1 to 7 must be
expressly stated in the
Regulations lodged for
registration. The remaining
regulations may be adopted by
reference by stating:—
"8 The company is a public company
and accordingly regulations 8 to
84 of Part II of Table A in the
Second Schedule to the Companies
Code, 1963 (Act 179), shall
apply."
"If it is desired to exclude any
such regulations, insert after
"Companies Code, 1963 (Act 179),"
the words "(except regulations)".
If it is desired to exclude Table
A completely, insert instead of
the above:—
"8 The regulations contained in
Table A in the Second Schedule to
the Companies Code, 1963 (Act
179), shall not apply to the
company except in so far as they
are repeated or contained in these
Regulations."
1. Regulation 54. If it is
desired that the chairman should
be required to direct a postal
ballot if a poll is demanded, this
regulation should be deleted and
another substituted in which the
last sentence should read:—
"On a poll being validly demanded
the chairman of the meeting shall
direct a postal ballot in
accordance with subsection (6) of
section 170 of the Code."
2. Regulation 61. If it is
desired that any class of
security-holders or the employees
shall have the right to appoint
one or more directors, this
regulation should be deleted and
another substituted making the
appropriate provisions.
If it is desired to provide for
cumulative voting, this regulation
should be deleted and the
following substituted:
"Directors shall be elected by
cumulative voting and accordingly
the provisions contained in
sections 181 and 300 of the Code
shall regulate the appointment of
directors."
3. Regulation 64. If cumulative
voting for directors has been
prescribed (see note 2) this
regulation should be deleted and
the following substituted:—
"The office of director shall be
vacated in accordance with section
184 of the Code and, subject to
section 300 of the Code, any
director may be removed from
office in accordance with section
185 of the Code."
4. Regulation 65. If it is
desired that the alternate
director shall be entitled to the
remuneration of his appointor this
regulation should be deleted and
another substituted in which the
second sentence should read:—
"An alternate director shall be
entitled to receive from the
company during the period of his
appointment the remuneration to
which his appointor, but for that
appointment, would have been
entitled, and his appointor shall
not be entitled to such
remuneration for that period."
5. Subscription of Regulations.
There is no need for the
Regulations to be subscribed by
more than one member and if only
one is to subscribe, this
provision should be amended to
read as in the corresponding
provision in Part I.
It will normally be convenient for
the subscribers to sign for the
amount of the minimum cash
consideration required under
section 28 and not, as is the
present practice, merely for one
share each.
Table B—Regulations of a Company
Limited by Guarantee
Regulation 1—
The name of the company is the
Ghana Historical Society
(hereinafter called the
"Society").
Regulation 2—
The objects for which the Society
is formed are,
(a) to promote the study of
history and in particular the
history of Ghana and of the
African continent;
(b) to provide a central
organisation in Ghana for
teachers, students and research
workers in historical studies;
(c) to provide opportunities for
the reading of papers, the
delivering of lectures, and for
the acquisition and dissemination
of historical information;
(d) to sponsor historical research
and to provide fellowships,
grants, scholarships and bursaries
for students of history;
(e) to publish or assist in the
publication of the proceedings of
the Society and of books, articles
and papers on historical subjects.
Regulation 3—
The income and property of the
Society, whencesoever derived,
shall be applied solely towards
the promotion of the objects of
the Society as set forth in the
immediately preceding regulation
and no portion thereof shall be
paid or transferred, directly or
indirectly, by way of dividend,
bonus or profit to any person who
is a member of the Society or of
its Council:
Provided that,
(a) nothing herein contained shall
prevent the payment in good faith,
of reasonable and proper
remuneration to any officer of the
Society, or to any member of the
Society in return for any services
actually rendered to the Society
nor prevent the payment of
interest at a rate not exceeding
six per centum per annum on money
lent, or reasonable and proper
rent for premises let to the
Society;
(b) no member of the Council of
the Society shall be appointed to
any salaried office of the Society
or office of the Society paid by
fees;
(c) no remuneration or other
benefit in money or moneys worth
shall be given by the Society to
any member of the Council except
repayment of out-of-pocket
expenses and interest at the rate
aforesaid on money lent or
reasonable and proper rent for
premises let to the Society;
Regulation 4—
Pursuant to section 24 of the
Companies Code, 1963 (Act 179),
the Society has, for the
furtherance of its authorised
objects, all the powers of a
natural person of full capacity
except in so far as such powers
are expressly excluded by these
Regulations.
Regulation 5—
(1) The board of directors of the
Society shall be known as the
Council.
(2) The first members of the
Council are,
John Mensah
George Kojo
Kwame Kofi
William Kwaku
John Harold Brown
Charles Crabbe
Thomas Kobina
Henry Jones, and
Herbert Henry Smith.
Regulation 6—
The powers of the Council are
limited in accordance with section
202 of the Code.
Regulation 7—
The liability of the members is
limited.
Regulation 8—
Each member of the Society
undertakes to contribute to the
assets of the Society in the event
of its being wound up while he is
a member or within one year after
he ceases to be a member, for
payment of the debts and
liabilities of the Society and of
the costs of winding up such
amount as may be required not
exceeding ten pounds.
Regulation 9—
If upon the winding up or
dissolution of the Society there
remains after the discharge of its
debts and liabilities any property
of the Society, the same shall not
be distributed among the members
but shall be transferred to some
other company limited by guarantee
having objects similar to the
objects of the Society or applied
to some charitable object, such
other company or charity to be
determined by ordinary resolution
of the members in general meeting
prior to the dissolution of the
Society.
Regulation 10—Ordinary Members
(1) The subscribers of these
Regulations and such other persons
as the Council shall admit to
ordinary membership shall be
members of the Society.
(2) The members in general meeting
may by ordinary resolution
prescribe qualifications for
membership of the Society and
unless the resolution otherwise
provides no person shall
thereafter be admitted to
membership by the Council unless
he has the prescribed
qualifications.
Regulation 11—Associate Members
(1) The Society in general meeting
may resolve by ordinary resolution
that the Council may admit to
associate membership of the
Society and may prescribe
qualifications for such associate
membership.
(2) Associate members shall be
permitted to take part in such
proceedings and functions of the
Society as the resolution shall
prescribe or, in default of
prescription, as the Council shall
think fit, but shall not be
members of the Society in its
corporate capacity and shall not
have any vote on any resolution at
any general meeting of the
Society, or be counted towards a
quorum.
Regulation 12—Honorary Membership
(1) The Society in general meeting
may resolve by ordinary resolution
that the Council may admit to
honorary membership of the society
any person, whether or not an
ordinary or associate member of
the Society, who in the opinion of
the Council has rendered signal
service to the Society or to any
of the objects which the Society
is formed to promote.
(2) An honorary member, unless
also admitted as an ordinary
member of the Society, shall have
the same rights as an associate
member and if also admitted as an
ordinary member shall have the
same rights as an ordinary member
but shall not be liable to pay any
subscription to the Society.
Regulation 13—Resignation or
Exclusion of Members
Subject, in the case of ordinary
members of the Society, to
compliance with section 10 of the
Code,
(a) any ordinary, associate or
honorary member may resign his
membership by notice in writing to
the Council;
(b) the Council may in its
discretion exclude from membership
of the Society any ordinary or
associate member,
(i)
if the subscription payable to the
Society by such ordinary or
associate member shall be unpaid
six months after the same shall
have become due and payable; or
(ii) if in the opinion of the
Council the continued membership
of such person would be
detrimental to the interests of
the Society or to the furtherance
of its objects.
Regulation 14—Subscriptions
(1) Ordinary and associate members
shall pay such annual
subscriptions as the members in
general meeting on the
recommendation of the Council
shall determine by ordinary
resolution from time to time.
(2) The subscription shall be due
and payable on admission to
membership and thereafter on the
first day of January in each year
or on such other date as the
resolution shall provide.
(3) The subscription may differ as
between ordinary and associate
members and a different
subscription may be prescribed in
the case of corporate bodies
admitted to membership or in the
case of any person admitted to
membership as representing any
institution or unincorporated
association.
Regulation 15—Accounts and Audit
The Council shall cause proper
books of account to be kept and an
income and expenditure account and
balance sheet to be prepared,
audited and circulated in
accordance with sections 123 to
133 of the Code.
Regulation 16—
Auditors, qualified in accordance
with section 296 of the Code,
shall be appointed and their
duties regulated in accordance
with sections 134 to 136 of the
Code.
Regulation 17—General Meetings and
Resolutions
Annual general meetings shall be
held in accordance with section
149 of the Code.
Regulation 18—
Extraordinary general meetings may
be convened by the Council
whenever they think fit in
accordance with section 150 of the
Code, and shall be convened on the
requisition of ordinary members in
accordance with section 297 of the
Code.
Regulation 19—
Notice of general meetings shall
be given in accordance with
sections 152 to 159 of the Code
and accompanied by any statements
required to be circulated
therewith in accordance with
sections 157 to 159 of the Code.
Regulation 20—
General meetings may be attended
by the persons referred to in
section 160 of the Code and the
quorum required shall be as stated
in section 161 of the Code.
Regulation 21—
A
member shall not be entitled to
attend or vote at any general
meeting by proxy.
Regulation 22—
A
body corporate which is a member
of the Society may attend and vote
at any general meeting by a
representative appointed in
accordance with section 165 of the
Code.
Regulation 23—
(1) General meetings shall be
conducted in accordance with
sections 166 to 173 of the Code.
(2) The President, or in his
absence the Vice-President of the
Society, shall preside as chairman
at every general meeting but if
neither is present within five
minutes after the time appointed
for holding the meeting the
members present shall choose one
of their number to be chairman of
the meeting.
(3) On a poll being demanded on
any resolution at a general
meeting the chairman of the
meeting may direct a postal ballot
of the ordinary members in
accordance with subsections (6),
(7) and (8) of section 170 of the
Code and shall so direct if an
ordinary resolution to that effect
is moved at the meeting and passed
on a show of hands or if the
resolution concerned is,
(a) a special resolution, or
(b) any such resolution as is
referred to in regulation 9, 10,
11, 12 or 14 of these Regulations.
Regulation 24—
In accordance with section 174 of
the Code a resolution in writing
signed by all the members, or
being bodies corporate by their
duly authorised representatives,
shall be as valid and effective
for all purposes, except as
provided by such section 174, as
if the same had been passed at a
general meeting of the Society
duly convened and held, and if
described as a special resolution
shall be deemed to be a special
resolution within the meaning of
the Code and these Regulations.
Regulation 25—
Minutes of general meetings shall
be kept in accordance with section
177 of the Code.
Regulation 26—Votes of Members
Each ordinary member present at
any general meeting shall have one
vote on a show of hands or a poll
and if a postal ballot is directed
in accordance with regulation 23
hereof and subsections (6), (7)
and (8) of section 170 of the
Code, each ordinary member,
whether or not present at the
meeting, shall have one vote.
Regulation 27—The Council
The number of members of the
Council, not being less than two
or more than twelve, shall be
determined by ordinary resolution
of the members in general meeting
and until so determined shall be
nine.
Regulation 28—
The continuing members of the
Council may act notwithstanding
any vacancy in their body; but if
and so long as their number is
reduced below two or below the
number fixed by the Council as the
necessary quorum, they may act for
four weeks after the number is so
reduced, but thereafter may act
only for the purpose of increasing
their number to that number or of
summoning a general meeting of the
Society and for no other purpose.
Regulation 29—
Members of the Council shall be
appointed from among the ordinary
members of the Society in manner
following, that is to say,
(a) at the first annual general
meeting of the Society all the
members of the Council shall
retire from office and at the
annual general meeting in any
subsequent year one-third of their
number or, if their number is not
three or a multiple of three, then
the number nearest one-third,
shall retire from office;
(b) the members of the Council to
retire in every year shall be
those who have been longest in
office since their last election,
but as between persons who became
members on the same day those to
retire shall,unless they otherwise
agree among themselves, be
determined by lot;
(c) election to the Council shall
be by secret ballot which shall be
conducted in the following manner,
that is to say,
(i)
any ordinary member wishing to
nominate another ordinary member
or members for election to the
Council shall notify the Secretary
in writing, accompanied by the
nominee's consent in writing, at
least twenty-one clear days before
the date of the annual general
meeting of the Society. A retiring
member shall be eligible for
re-election without nomination and
shall be deemed to offer himself
for re-election unless he notifies
the Secretary in writing at least
twenty-one days before the date of
the annual general meeting, that
he does not wish to stand for
re-election;
(ii) if the number of nominees
competent for appointment as
members of the Council and
retiring members offering
themselves for re-election exceeds
the number of vacancies to be
filled, the Secretary shall, at
least fourteen days before the
date of the annual general
meeting, send to each ordinary
member a ballot paper containing a
list of the names of such nominees
and retiring members offering
themselves for re-election
requesting him to indicate by
means of a distinctive mark on the
ballot paper the names of the
persons for whom he votes. Each
member may vote for one or more
persons not exceeding in number
the number of vacancies to be
filled;
(iii) no ballot paper shall be
valid unless returned to the
registered office of the Society
not less than twenty-four hours
before the time appointed for the
annual general meeting and shall
be counted by scrutineers
appointed at the meeting who shall
inform the chairman of the meeting
of the votes obtained by each
candidate. The chairman shall then
announce the names of the
successful candidates to the
meeting. No ballot paper shall be
valid on which votes have been
cast in excess of the number of
vacancies, and in case of doubt as
to the validity of a ballot paper
or the intention of the voter the
decision of the chairman of the
meeting shall be final and
conclusive;
(iv) if the number of competent
nominees and retiring members
offering themselves for
re-election does not exceed the
number of vacancies, the chairman
of the meeting shall declare the
candidates duly elected. If the
number so elected is less than the
number of vacancies, the remaining
vacancies may be filled as casual
vacancies.
(d) any casual vacancy in the
number of members of the Council
may be filled by the Council or by
ordinary resolution of the members
in general meeting in accordance
with section 181 of the Code.
Regulation 30—
The persons referred to in section
182 of the Code shall not be
competent to be appointed members
of the Council.
Regulation 31—
Membership of the Council shall be
vacated in accordance with section
184 of the Code and any member may
be removed from the Council in
accordance with section 185 of the
Code.
Regulation 32—
(1) The proceedings of the Council
shall be regulated by section 200
of the Code.
(2) At all meetings of the Council
the President, or in his absence,
the Vice-President if present,
shall be chairman.
Regulation 33—
Minutes of meetings of the Council
and of any committee of the
Council shall be kept in
accordance with section 201 of the
Code.
Regulation 34—Powers and Duties of
the Council
(1) The activities of the Society
shall be managed by the Council
who may pay all expenses incurred
in promoting and registering the
Society.
(2) Subject to section 202 of the
Code, the Council may exercise all
such powers of the Society,
including power to borrow money
and to mortgage or charge its
property and to issue debentures,
as are not by the Code or these
Regulations required to be
exercised by the members in
general meeting.
Regulation 35—
In any transaction with the
Society or on its behalf and in
the exercise of their powers the
members of the Council shall
observe the duties and obligations
imposed on them by sections 203 to
205 of the Code.
Regulation 36—
To the extent permitted by
regulation 3 of these Regulations
and subject to compliance with
section 207 of the Code, a member
of the Council may enter into a
contract with the Society and such
contract or any other contract of
the Society in which any member of
the Council is in any way
interested shall not be liable to
be avoided, nor shall any member
of the Council be liable to
account for any profit made
thereby by reason of his being a
member of the Council or of the
fiduciary relationship thereby
established.
Regulation 37—President and
Vice-President
(1) The Council at their first
meeting and at their first meeting
held after each annual general
meeting shall elect from their
members a President and
Vice-President of the Society who
shall hold office for the ensuing
year or until their successors are
elected.
(2) Any vacancy occurring in these
offices shall be filled in like
manner at the next meeting of the
Council held after the occurrence
of the vacancy.
Regulation 38—Committees
(1) The Council may appoint
committees from among their own
members or from the members of the
Society or from a combination of
both.
(2) The President, or if he is
unable or unwilling to act, the
Vice President, shall ex officio
be a member of every committee.
(3) The terms of reference and
duration of office of all
committees shall be prescribed by
the Council and all such
committees shall be deemed to be
committees of the Council for the
purposes of the Code.
Regulation 39—Secretary and
Treasurer and Officers
(1) The Council shall appoint a
Secretary and a Treasurer or a
Secretary/Treasurer who may be one
of their own members or a member
of the Society or neither.
(2) If one of their own number is
appointed the office shall be an
honorary one without remuneration.
(3) The Council may also appoint
such other officers and agents as
may be necessary or expedient.
Regulation 40—The Seal
(1) The Council shall be empowered
to adopt a common seal for use by
the Society and shall provide for
the safe custody thereof.
(2) The seal shall only be used by
the authority of the Council or of
a committee of the Council
authorised by the Council in that
behalf, and every instrument to
which the seal shall be affixed
shall be signed by a member of the
Council and shall be countersigned
by the Secretary or a second
member of the Council or by some
other person appointed by the
Council for the purpose.
Regulation 41—Service of
Documents.
Any document may be served by the
Society on any ordinary member,
debentureholder or member of the
Council in the manner provided by
section 262 of the Code and may be
served in like manner on any
associate or honorary member
either personally or at the
address supplied by him to the
Society for the purpose of service
of notices.
Regulation 42—Interpretation
In these Regulations, unless the
context otherwise requires,
(a) "Code" means the Companies
Code, 1963 (Act 179), or any
statutory modification or
re-enactment thereof;
(b) words or expressions shall
have the same meaning as in the
Code;
(c) references to sections of the
Code shall mean such sections as
modified or re-enacted from time
to time
We the undersigned are desirous of
forming an incorporated company in
pursuance of these Regulations and
we agree to become members thereof
and to accept liability in
accordance with regulation 8 of
these Regulations.
Names, Addresses and Descriptions
or Occupation of Subscribers
John Mensah of the University
College of Ghana, Legon, Accra,
University Teacher
George Kojo of the University
College of Ghana, Legon, Accra,
University Teacher
Kwame Kofi of the University
College of Ghana, Legon, Accra,
University Teacher
William Kiraku of the University
College of Ghana, Legon, Accra,
University Teacher
John Harold Brown of Achimota
School, Achimota, Accra, School
Teacher
Charles Crabbe of Mfantsipim
School, Cape Coast, School Teacher
Patrick Kobina of St. Augustine's
School, Cape Coast, School Teacher
Henry Jones of Adisadel School,
Cape Coast, School Teacher
Herbert Henry Smith of 117 First
Avenue, Cantonments, Accra, Author
Margaret Ward of Aburi Girls'
School, Aburi, School Teacher.
Dated the 22nd day of November,
1961.
Witness to the above signatures:
Name: Charles
Robinson
Address: Nkrumah
Circle, Accra
Description or Occupation: Legal
Practitioner.
NOTES ON TABLE B
Regulations in the form of
regulations 1 to 9 must be
expressly stated in the
Regulations lodged for
registration. The remaining
regulations may be adopted by
reference by stating:—
"10. Regulations 10 to 42 in Table
B in the Second Schedule to the
Companies Code, 1963 (Act 179),
shall apply."
If it is desired to exclude any
such regulations insert after
"Companies Code, 1963 (Act 179),"
the words "(except regulations )".
If it is desired to exclude Table
B completely insert instead of the
above:—
"10. The regulations contained in
Table B in the Second Schedule to
the Companies Code, 1963 (Act
179), shall not apply except in so
far as they are repeated or
contained in these Regulations."
1. Regulation 1.—"Association",
"Club", "College", "School" or the
like should be substituted for
"Society" as appropriate. If
Table B is adopted there should
then be added to the adopting
clause given above "but so that
any reference therein to "the
Society" shall be deemed to be a
reference to "the Association" (or
"the Club", etc.)".
2. Regulation 3.—In accordance
with section 16 (5) of the Code
the Registrar may permit
modifications to the form of this
regulation where appropriate. In
some circumstances it might be
appropriate to allow some of the
following additions to the
proviso:—
"nor shall prevent the gratuitous
distribution among, or sale at a
discount to, members of the
Society of any books or other
publications, whether published by
the Society or otherwise, relating
to any of its foregoing objects."
"nor shall prevent the bona fide
relieving or assisting of persons,
or the wives, widows, families or
relations of persons who, having
been members of the Society, have
ceased to be so and have become
poor and necessitous, or are
dead."
"nor be deemed to exclude any
member of the Society from the
benefit of any fellowship, grant,
scholarship or bursary made in
furtherance of any object of the
Society."
"nor shall prevent any member who
may be a successful exhibitor at
any exhibition or show held or
promoted by the Society from
receiving as such exhibitor any
prize, medal or other recognitions
which may be awarded to him."
"nor shall prevent the payment of
reasonable fees for acting as an
examiner appointed by (the
College)."
3. Regulation 5.—In some cases,
for example, if the company is to
run a school or college, it may be
appropriate to substitute "Board
of Governors" for "Council". In
that event, if Table B is adopted
there should be added to the
adopting clause given above "but
so that any reference therein to
"the Council" or "the member of
the Council" shall be deemed to be
a reference to "the Board of
Governors" or "the Governors", as
the case may be".
4. Regulation 8.—Provided the
total amount guaranteed by the
subscribers is at least one
hundred pounds, the amount of the
individual guarantee may be
smaller or larger than ten pounds.
5. After Regulation 9.—If the
company is to be a private company
insert here:—
"9A. The Society is a private
company and accordingly,
(a) the number of members and
debentureholders of the Society,
exclusive of persons who are bona
fide in the employment of the
Society and of persons who having
been formerly bona fide in the
employment of the Society were
while in such employment and have
continued after the determination
of such employment to be members
or debentureholders of the
Society, is limited to fifty:
Provided that where two or more
persons hold one or more
debentures jointly they shall for
the purpose of this regulation be
treated as a single
debentureholder;
(b) the Society is prohibited from
making any invitation to the
public to acquire any of its
debentures;
(c) the Society is prohibited from
making any invitation to the
public to deposit money for fixed
periods or payable at call,
whether bearing or not bearing
interest."
6. Regulation 16.— If the company
is a private company, this
regulation should be deleted and
the following substituted:—
"16. Auditors, qualified in
accordance with section 270 of the
Code, shall be appointed and their
duties regulated in accordance
with sections 134 to 136 of the
Code."
7. Regulation 18.—If the company
is a private company, this
regulation should be deleted and
another substituted in similar
terms except that the final words
should read "in accordance with
section 271 of the Code."
8. Regulation 20.—If it is desired
to increase the size of the quorum
this regulation should be deleted
and another substituted stating
the larger quorum required. If,
however, the provisions in
regulation 23 regarding a postal
ballot are retained, a small
quorum is unlikely to matter.
9. Regulation 21.—Proxy voting is
not compulsory in the case of
guarantee companies (section 163)
and is usually regarded as
inappropriate. If it is desired to
provide for it this regulation
should be deleted and another
substituted based on regulation 50
of Table A Part I and regulation
52 of Table A Part II.
10. Regulation 22.—If proxy voting
is allowed, this regulation should
be deleted and another substituted
based on regulation 51 of Table A
Part I and regulation 53 of Table
A Part II.
11. Regulation 29.—It will often
be desirable to delete this
regulation and to substitute an
alternative method of election.
The method provided in the
regulation provides a suitable
procedure for clubs, societies and
associations but will rarely be
appropriate for schools or
colleges, which may prefer to rely
on sections 181 and 272 or 298 and
299 of the Code.
12. Regulations 37 and 38.— These
regulations may be inappropriate
(without amendment) in the case of
clubs, schools and colleges.
13. Subscription of
Regulations.—There is no minimum
or maximum number of subscribers
but the total guaranteed by the
subscribers must not be less than
one hundred pounds. Since the
amount of the guarantee has been
fixed by regulation 8 at ten
pounds, in this model there are
ten subscribers.
THIRD SCHEDULE
(Section 122)
CONTENTS OF ANNUAL RETURN
1. The name of the company.
2. The nature of the authorised
business or businesses of the
company or, if the company is not
formed for the purpose of carrying
on a business, the nature of its
objects.
3. The address of the company's
registered office and the number
of the post office box of such
registered office.
4. The address of the company's
principal place of business in
Ghana.
5. All such particulars with
respect to the persons who at the
date of the return are the
directors and secretary of the
company as are required by section
196 of this Code to be contained
in the register of directors and
secretary.
6. The present forenames and
surnames and any former forename
and surname of every member of the
company, the nationality,
residential and postal addresses
and the business occupation of
every such member of the company,
the number of shares held by every
such member at the date of the
return, particulars of shares
transferred since the last return
by persons who are still members
of the company, that is to say,
the number of the shares and the
date of registration of the
transfer; particulars of shares
transferred since the last return
by persons who have ceased to be
members of the company, that is to
say, the number of such shares and
the date of registration of the
transfer and the folio of the
register containing particulars of
every such member.
7. If the company's register of
members is kept and maintained
elsewhere than at the registered
office of the company, the address
at which it is kept.
8. If the company maintains a
register of debentureholders
elsewhere than at the registered
office of the company, the address
at which it is kept.
9. Particulars of the total amount
of the indebtedness of the company
in respect of all charges,
particulars of which are required
to be registered with the
Registrar pursuant to Part L of
Chapter II of this Code.
10. The names, countries of
incorporation, and nature of the
businesses of all subsidiaries of
the company and of all bodies
corporate in which the company is
beneficially entitled to equity
shares conferring the right to
exercise more than twenty-five per
centum of the votes exercisable at
a general meeting of the body
corporate:
Provided that the information
required by this paragraph need
not be given if, and to the extent
that, such information would
conflict with any direction given
by the Registrar under subsection
(7) of section 132 of this Code.
11. If the company has shares,
(a) the amount of its stated
capital, distinguishing between
the amounts attributable to each
of the items specified in
subsection (1) of section 66 of
this Code;
(b) the number of its authorised
shares of each class;
(c) the number of its issued
shares of each class;
(d) the number of its treasury
shares of each class;
(e) the total amount of any unpaid
instalments or calls which are due
and payable and the number and
class of shares concerned;
(f) the total number of shares of
each class which have been
forfeited;
(g) in the case of a company
limited by shares,
(i)
the total amount of any unpaid
liability, on its shares of each
class, which is not yet due for
payment, and
(ii) the amount, if any, of such
unpaid liability on its shares
which, pursuant to section 55 of
this Code, the company has
resolved shall not be capable of
being called up except in the
event and for the purpose of the
company being wound up.
FOURTH SCHEDULE
(Sections 125, 126 and 127).
ACCOUNTS
PART I—PROVISIONS AS TO PROFIT AND
LOSS ACCOUNT
1. There shall be separately
shown,
(a) gross sales, less discounts,
returns, and allowances, or, where
appropriate, the amount of
operating or other equivalent
revenues;
(b) the cost of goods sold as
normally computed under the system
of accounting followed or, where
appropriate, the operating or
other equivalent expenses;
(c) selling, general and
administrative expenses, and any
other expenses that under the
system of accounting followed
would normally be deducted in
arriving at the trading profit;
(d) income from investments
distinguishing between,
(i)
income from associated companies,
(ii) income from other trade
investments,
(iii) income from other
investments;
(e) income from any other sources,
distinguishing between each
significant source of income;
(f) the amount charged to revenue
by way of provision for the loss,
diminution in value, depreciation,
renewal or replacement of assets,
hereinafter referred to as
depreciation or replacement
provision, in respect of fixed
assets;
(g) interest on the company's
debentures and other loans other
than those classified in the
balance sheet as current
liabilities;
(h) interest in respect of other
loans and indebtedness of the
company;
(i)
the aggregate of all amounts paid
or payable by the company to the
directors of the company for the
financial year required to be
disclosed in accordance with the
provisions of section 128 of this
Code, together with a statement,
by way of note, of any such
amounts paid or payable by other
persons than the company;
(j) the remuneration of the
auditors of the company including
any sums paid by the company in
respect of the auditors' expenses;
(k) the amounts of the charges and
credits, if any, for income tax
showing, by way of note or
otherwise, the amounts of each
distinct tax with a description
thereof and a statement of the
period in respect of which it is
payable;
(l) the amounts of charges and
credits, if any, in respect of
discount or premiums on
debentures;
(m) any profit or loss arising on
the sale, realisation or disposal
of fixed assets;
(n) any preliminary expenses, and
expenses incurred on the issue of
shares or debentures, including
any sums paid by way of commission
or brokerage on the issue of
shares or debentures;
(o) the amount of any voluntary
contributions to any charitable or
other funds, other than pension
funds for the benefit of employees
of the company or any associated
company;
(p) any other expenses,
distinguishing between each
significant class of expense.
2. If any of the items shown in
the profit and loss account are
stated net of income tax relating
thereto this shall be indicated.
3. There shall be stated by way of
note or otherwise any material
respects in which any items shown
in the profit and loss account are
affected by,
(a) transactions of a sort not
usually undertaken by the company
or other circumstances of an
exceptional or non-recurrent
nature;
(b) any change in the basis of
accounting;
(c) any amount relating to an
earlier financial year;
(d) any adjustment arising from
the over or under statement of
revenue or expenses in the profit
and loss account of an earlier
financial year;
and any statement made under this
paragraph shall indicate the
amount by which the profit and
loss account has been affected and
whether this represents an
addition to or a deduction from
the profit that would otherwise
have been shown.
4. If any item in the profit and
loss account includes an amount in
respect of money provided under
paragraph (c) of section 58 of
this Code this fact shall be
indicated by way of note or
otherwise and the amount thereof
stated, and so far as any money
provided under that subsection is
included in the amount stated in
accordance with the provisions of
section 128 of this Code the
amount so included shall also be
indicated.
5. The balance of the profit and
loss account after the inclusion
of the items required by the
foregoing paragraphs, so far as
these are relevant to the figures
in the account, shall be
transferred to an account to be
called the income surplus account.
6. No amount shall be credited to
the profit and loss account that
cannot properly enter into the
composition of the income surplus
in accordance with section 70 of
this Code.
7. No amount shall be debited to
the profit and loss account in
respect of an addition to a
reserve other than by way of
transfer of the balance of the
profit and loss account for the
financial year to the income
surplus account, shown as such,
and in particular no amount shall
be debited to the profit and loss
account other than as a transfer
to the income surplus account
unless it is either the amount of
an actual money outlay or is in
the opinion of the directors
reasonably necessary in order to
provide for known future
expenditure or for a known
liability, which term shall
include a disputed or contingent
liability, or for a known or
estimated loss in value of current
assets, or as a depreciation or
replacement provision.
8. No amount shall be credited to
the profit and loss account in
respect of a withdrawal from a
reserve other than by way of
transfer of the balance of the
profit and loss account for the
financial year to the income
surplus account, shown as such.
9. If a company is under any
obligation to transfer or set
aside a sum to reserve out of its
profits this obligation shall be
deemed to have been fulfilled if
such sum has been transferred to
stated capital or if a note is
made upon the balance sheet in
accordance with paragraph 34 of
this Schedule to the effect that
the company is under an obligation
to withhold from distribution as
dividend a corresponding part of
the income surplus.
10. Except in the case of the
first profit and loss account
drawn up after the commencement of
this Code there shall be shown the
corresponding amount of each item
for the immediately preceding
financial year.
11. Where the amount of any item
shown in the profit and loss
account or included in any amount
shown therein cannot be determined
with substantial accuracy, an
estimated amount described as such
shall be included in respect of
that item and shall be
distinguished, by way of note or
otherwise, together with a
description of the item.
12. No provision of this Schedule
with respect to the information to
be shown in the profit and loss
account shall be deemed to require
the amount of any item that is of
no material significance to be
shown separately.
PART II—PROVISIONS AS TO BALANCE
SHEET
General
13. The assets and liabilities
shall be classified under headings
appropriate to the company's
business, distinguishing between
current and fixed assets, and
between current and other
liabilities, and each class shall
be described in a way adequate to
indicate the general nature of the
assets or liabilities included
therein.
Assets
14. Without prejudice to the
generality of the last foregoing
paragraph, the following classes
of assets shall, so far as they
are appropriate to the company's
affairs, be distinguished, namely,
(a) interests in land,
distinguishing between land owned
absolutely and land held for a
term of years or other period;
(b) goodwill, patents,
trade-marks, development
expenditure, and other intangible
assets of a like nature;
(c) trade investments;
(d) loans and advances;
(e) trading stocks, distinguishing
where practicable between,
(i)
stocks of raw materials and
components;
(ii) work-in-progress;
(iii) stocks of finished products;
(iv) other stocks;
(f) trade debtors;
(g) bills of exchange and
promissory notes;
(h) payments-in-advance;
(i)
marketable securities;
(j) cash in hand and in the bank.
15. No class of assets shall stand
in the balance sheet at a value,
which, after deduction of the
aggregate depreciation or
replacement provision relating
thereto, if any, is in the opinion
of the directors greater than
either,
(a) the value which those assets
could reasonably be expected to
realise in the market after
deduction of any expenses incurred
in order to realise them; or
(b) the value which is reasonably
justified by the expected
contribution of those assets to
the business, whether by sale in
the ordinary course of business or
otherwise:
Provided that in the case of a
company whose sole or main object
is that of carrying on the
business of extracting any mineral
deposit the Registrar may, on the
application of the company, and on
such conditions as he considers
appropriate, authorise any wasting
asset held for the purpose of the
business in question to be shown
in the balance sheet at cost.
16. (1) Assets shall either be
shown at a value after deduction
of the aggregate depreciation or
replacement provision relating
thereto, if any, or at a value
before this deduction, hereinafter
described as the gross value.
(2) If shown at the gross value
the aggregate depreciation or
replacement provision relating
thereto, if any, shall be shown as
a separate item and shall be so
described as to identify it with
the class of assets to which it
refers.
17. (1) There shall be included in
or attached to the balance sheet
in respect of each class of fixed
assets shown therein a statement
containing the following
information, that is to say,
(a) the gross value;
(b) the original costs, if this
differs from the gross value;
(c) the aggregate depreciation or
replacement provision, if any;
(d) if the gross value differs
from the original cost, a
statement explaining how the gross
value has been calculated, and as
at what date;
(e) whether the depreciation or
replacement provision, if any, has
been calculated on the basis of,
(i)
the original cost of the assets;
(ii) the replacement value of the
assets;
(iii) some other basis;
and when the depreciation or
replacement provision is not based
on original cost, the general
principle used in calculating the
replacement cost or other
valuation on which it is based
shall be stated;
(f) a statement reconciling both
the gross value and the aggregate
depreciation or replacement
provision with the equivalent
figures at the end of the
immediately preceding financial
year, and in particular showing
(i)
the amount of any addition to the
gross value and to any
depreciation or replacement
provision relating thereto,
indicating the nature thereof; and
(ii) the amount of any deduction
from the gross value and from the
aggregate depreciation or
replacement provision relating
thereto arising from sale or
otherwise, indicating the reason
for the deduction and showing any
profit or loss arising therefrom.
(2) So far as information required
to be shown by this paragraph
relating to matters arising before
the commencement of this Code
cannot be ascertained without
unreasonable delay or expense, the
said provisions may be modified
with respect to that information
as the directors shall consider
appropriate, and in each such case
the statement in or attached to
the balance sheet in accordance
with the provisions of this
paragraph shall indicate in what
respects the information shown has
been modified as the result of the
operation of this provision.
18. There shall be included in or
attached to the balance sheet
statements reconciling
respectively the amounts stated in
accordance with paragraph 17 (1)
(f) of this Schedule in respect of
additions to and deductions from
the depreciation or replacement
provision with the amount stated
in the profit and loss account for
depreciation or replacement
provision in accordance with
paragraph 1 (f) of Part I of this
Schedule, and reconciling any
profit or loss on the sale,
realisation or disposal of any
fixed assets stated in accordance
with the said paragraph 17 with
the amount stated in the profit
and loss account in accordance
with paragraph 1 (m) of Part I of
this Schedule.
19. For each class of current
assets there shall be provided, by
way of note or otherwise,
information sufficient to indicate
the basis of valuation and in
particular the nature of the
valuation procedure followed in
arriving at the balance sheet
value.
20. Assets in respect of which
different methods or bases of
valuation or of provision for
depreciation or replacement are
used shall for the purposes of
this Schedule be regarded as
assets of different classes.
21. There shall be shown the
aggregate of all amounts due to
the company at the end of the
financial year which are included
in the sums disclosed in
accordance with section 129 of
this Code together with a
statement, by way of note, of the
other information required to be
disclosed by that section.
22. There shall be shown the
aggregate of all amounts due to
the company in respect of advances
made in accordance with paragraph
(d) of section 58 of this code.
23. The amount of any preliminary
expenses, and expenses incurred on
the issue of shares or debentures,
including any sums paid by way of
commission or brokerage on the
issue of shares or debentures,
shall be debited to the profit and
loss account and shall not be
treated as an asset.
Liabilities
24. For the purposes of this Code,
current liabilities are
liabilities due and payable, other
than liabilities the payment of
which may, at the company's
option, be postponed, within
twelve months of the date of the
balance sheet together with such
other liabilities as are under
normal accounting principles
appropriately so classified.
25. Without prejudice to the
generality of paragraph 13 of this
Schedule each of the following
classes of liabilities shall, so
far as they are applicable to the
company's business, be
distinguished, namely,
(a) bank borrowings and
overdrafts;
(b) bills of exchange and
promissory notes payable;
(c) trade creditors;
(d) the net amount payable to
members in respect of dividends
declared or recommended;
(e) any amounts due to directors
and other officers of the company
other than items arising in the
ordinary course of business;
(f) income tax, distinguishing
between different taxes and
between amounts due in respect of
different fiscal periods;
(g) debts secured by debentures,
other than those shown under
sub-paragraph (a), stating in
respect of each class thereof, the
date or dates on or after which
the company has the option of
redemption, and the date or dates
on or before which the company is
under the obligation finally to
redeem the loans or debentures or
any part thereof, specifying in
each case the proportion of the
total issue that may or must be
redeemed, as the case may be, and
the redemption price;
(h) any borrowings other than the
foregoing;
(i)
other accrued liabilities.
26. No liability shall stand in
the balance sheet at a value less
than the amount at which it is
repayable, other than at the
company's option, at the balance
sheet date or, if it is not then
repayable, at the amount at which
it will first become so repayable
thereafter, less, where
appropriate, a reasonable
deduction for discount until that
date.
27. If any liability of the
company is secured otherwise than
by the operation of law on any
assets of the company, the fact
that the liability is so secured
shall be stated, together with a
statement of the assets upon which
it is secured, and, where more
than one class of liabilities is
so secured, their relative
priorities with respect to payment
of interest and redemption.
28. If any of the company's
debentures have been beneficially
acquired by the company, or by a
nominee acting on behalf of the
company, the amount of these,
calculated on the same basis as
the total amount standing in the
balance sheet in respect of the
debentures of that class, shall,
unless and until the debentures so
purchased are cancelled, be shown
as a deduction from that total;
and if the said amount of the
debentures purchased is greater or
less than the amount expended upon
purchase, the difference shall be
shown in the profit and loss
account as if it were a premium or
discount on debentures, as the
case may be.
29. There shall be stated by way
of note or otherwise, particulars
of any debentures of the company
that have been redeemed or
purchased by or on behalf of the
company which the company has
power to re-issue.
30. There shall be included in or
attached to the balance sheet in
respect of each class of
liabilities referred to in
sub-paragraphs (f) and (g) of
paragraph 25 of this Schedule that
is shown in the balance sheet, or
in the balance sheet at the end of
the immediately preceding
financial year, a statement
containing the following
information, namely,
(a) the balance, if any, shown at
the end of the immediately
preceding financial year;
(b) the amounts of additions
thereto and deductions therefrom
during the financial year ending
on the balance sheet date, with
particulars thereof sufficient to
identify clearly the source of
each item; and
(c) the balance, if any, at the
date of the balance sheet.
Surplus
31. There shall be recorded in an
account, to be called the capital
surplus account, the amount, if
any, by which the surplus, as
defined in section 69 of this
Code, exceeds the credit balance,
if any, on the share deals account
plus the balance on the income
surplus account if a credit or
minus that balance if a debit.
32. (1) There shall be shown,
(a) the stated capital of the
company distinguishing between
amounts relating to different
classes of shares;
(b) the amount, if any, standing
to the credit of the capital
surplus account;
(c) the amount, if any, standing
to the credit of the share deals
account;
(d) the balance of the income
surplus account, and if the said
balance is a debit balance it
shall be deducted from the sum of
the three preceding amounts.
(2) There shall be included in or
attached to the balance sheet in
respect of each item referred to
in sub-paragraph (1) of this
paragraph that is shown in the
balance sheet or in the balance
sheet at the end of the
immediately preceding financial
year, a statement containing the
following information, namely,
(a) the balance, if any, shown at
the end of the immediately
preceding financial year;
(b) the amounts of any additions
thereto and deductions therefrom
during the financial year, with
particulars thereof sufficient to
identify clearly the source of
each item; and
(c) the balance, if any, at the
date of the balance sheet.
(3) The aggregate amounts of
dividends paid or recommended, net
of any tax deductible therefrom
distinguishing between dividends
on different classes of shares,
shall be debited to the income
surplus account.
33. There shall be shown in the
balance sheet, or in a schedule
attached thereto,
(a) the amount of stated capital
attributable to each of the items
specified in subsection (1) of
section 66 of this Code,
distinguishing, in the case of
items (a) and (b) between
different classes of shares;
(b) the number of authorised
shares of each class;
(c) the number of issued shares of
each class;
(d) the number of treasury shares
of each class;
(e) the amount of any unpaid
instalments or calls on shares
which are due and payable and the
number and class of shares
concerned;
(f) in the case of a company
limited by shares,
(i)
the amount of any unpaid
liability, on its shares of each
class, which is not yet due for
payment; and
(ii) the amount, if any, of such
unpaid liability which, pursuant
to section 55 of the Code, the
company has resolved shall not be
capable of being called up except
in the event and for the purpose
of the company being wound up;
(g) in respect of any shares on
which there are any arrears of
fixed dividends, the total amount
of the arrears, stating whether
the amount is net or gross of any
tax that may be deducted;
(h) if any issue of shares has
been made in contemplation of the
redemption of preference shares
out of the proceeds of the issue,
a statement to that effect and of
the total amount thereby made
available for use in the
redemption;
(i)
the number of shares which any
person has an option to subscribe
for, distinguishing those in
respect of which the option can be
exercised by directors of the
company, together with the
following particulars of each
option, that is to say,
(i)
The period or periods during which
it is exercisable;
(ii) the price or prices during
each period to be paid for shares
subscribed for under the option.
34. There shall be stated by way
of note any amount standing to the
credit of the income surplus
account which the company is, in
accordance with the provisions of
paragraph 9 of this Schedule or
otherwise, under an obligation not
to distribute by way of dividend.
Supplementary
35. There shall be stated by way
of note or otherwise,
(a) the basis on which foreign
currencies have been converted
into Ghanaian money;
(b) particulars of any charge on
the assets of the company to
secure the liabilities of any
other person, including a
statement of the amount or
estimated amount secured;
(c) the general nature of any
contingent liabilities not
provided for and not otherwise
disclosed and the amount or
estimated amount of those
liabilities;
(d) the general nature of
contracts for capital expenditure
not provided for and the amount or
estimated amount thereof;
(e) the general nature of any
credit facilities available to the
company under any contract, other
than trade credit available in the
ordinary course of business, and
not taken up at the end of the
financial year.
36. Except in the case of the
first balance sheet drawn up after
the commencement of this Code
there shall be shown the
corresponding amount of each item
for the immediately preceding
financial year.
37. Where any item shown in the
balance sheet or included in
amounts shown therein cannot be
determined with substantial
accuracy, an estimated amount
described as such shall be
included in respect of that item
and shall be distinguished, by way
of note or otherwise, together
with a description of the item.
38. No provision of this Schedule
with respect to the information to
be shown in the balance sheet
shall be deemed to require the
amount of any item that is of no
material significance to be shown
separately.
PART III—PROVISIONS APPLICABLE TO
HOLDING COMPANIES
First Sch.
39. This Part of this Schedule
shall apply where the company is a
holding company as defined in the
First Schedule to this Code.
40. There shall be stated by way
of note or otherwise, the total
number of shares held by or on
behalf of the company in each of
its associated companies, and the
total number of the shares and
amount of debentures of the
company, if any, held by or on
behalf of subsidiaries, but
excluding in both cases shares and
debentures held as personal
representative or as trustee of
any trust in which neither the
company nor any of its associated
companies is beneficially
interested otherwise than by way
of security in the ordinary course
of business, distinguishing shares
and debentures of different
classes, and stating the total
number of shares and the amount of
debentures of each class in issue
at the date of the balance sheet.
41. Where it is reasonably
practicable the amount included
under each head of revenue or
expense shown in the profit and
loss account that is received or
receivable from, or paid or
payable to, an associated company
shall be distinguished.
42. The amount included in each
class of assets shown in the
balance sheet in respect of
financial interests in associated
companies shall be distinguished.
43. The amount included in each
class of liabilities shown in the
balance sheet in respect of
indebtedness to associated
companies shall be distinguished.
44. Where group accounts are not
prepared, there shall be attached
to the balance sheet a statement
showing,
(a) the reasons why subsidiaries
are not dealt with in group
accounts;
(b) the net aggregate amount, so
far as it concerns the interests
of the holding company, of the
balances transferred from the
profit and loss accounts of the
subsidiaries to their income
surplus accounts, or the
equivalent amount in the case of
foreign or other subsidiaries not
having income surplus accounts,
(i)
for the respective financial years
of the subsidiaries ending with or
during the financial year of the
company giving, so far as is
practicable the same information
with respect to the said amount as
is required by paragraph 3 of this
Schedule to be given with respect
to the company's profit and loss
account;
(ii) for the total period covered
by their previous financial years
since they respectively became the
holding company's subsidiaries so
far as it has not been dealt with
in the company's accounts of a
previous financial year;
(c) the net aggregate amount so
transferred so far as this amount
is dealt with in the company's
accounts for the financial year;
(d) any qualifications contained
in the report of the auditors of
the subsidiaries on their accounts
for their respective financial
years ending as aforesaid, and any
note or saving contained in those
accounts to call attention to a
matter which, apart from the note
or saving, would properly have
been referred to in such a
qualification, in so far as the
matter which is the subject of the
qualification or note is not
covered by the company's own
accounts and is material from the
point of view of the company's
interest,
or, in so far as the information
required by this paragraph is not
obtainable, a statement that it is
not obtainable.
45. Items (b) and (c) of the last
foregoing paragraph shall apply
only to such amounts as could
properly enter into the
composition of the holding
company's income surplus.
46. There shall be stated by way
of note, in accordance with
subsection (10) of section 127 of
this Code, in relation to
subsidiaries, if any, whose
financial years do not coincide
with that of the company,
(a) the reasons why the company's
directors consider that the
subsidiaries' financial years
should not so coincide; and
(b) the name of each subsidiary
whose financial year does not
coincide with that of the holding
company and the date on which its
relevant financial year ended.
47. The group accounts, if
prepared as consolidated accounts,
shall combine the information
contained in the separate balance
sheets and profit and loss
accounts of the holding company
and of the subsidiaries dealt with
by the consolidated accounts with
such adjustments, if any, as the
directors consider appropriate,
and the consolidated accounts
shall, in giving the said
information comply, so far as is
practicable, with the requirements
of this Code as if they were the
accounts of a single company.
48. Where group accounts are
prepared and the accounts of some
subsidiaries are not incorporated
therein the group accounts shall
incorporate with respect to those
subsidiaries information
equivalent to that required to be
given in the holding company's
accounts when group accounts are
not prepared.
49. Where group accounts are
prepared other than in the form of
consolidated accounts they shall
provide the same information, so
far as is relevant and material,
as would have been provided by
consolidated accounts.
PART IV—EXEMPTIONS FOR SPECIAL
CLASSES OF COMPANIES
50. The provisions of paragraphs
4, 5, 6, 9, 22, 31, 32, 33 and 34
of this Schedule shall not apply
to a company limited by guarantee.
51. (1) A company licensed under
section 24 of the Companies
Ordinance (Cap. 193) or any
statutory re-enactment thereof, to
carry on the business of banking
shall not be subject to the
provisions of Part I or II of this
Schedule other than paragraphs 1
(f), (g), (i), (j) and (o), 2, 3
(a) and (b), 4, 5, 9, 10, 11, 12,
13, 15, 16, 21, 22, 23, 26, 28,
29, 33, 34, 36, 37 and 38.
(2) Where such a banking company
as is referred to in the
immediately preceding
sub-paragraph has reserves which
are not separately stated in its
balance sheet any heading in its
balance sheet stating an amount
arrived at after taking into
account such a reserve or a
transfer thereto or therefrom
shall be so framed or marked as to
indicate that fact, and its profit
and loss account shall indicate by
appropriate words the manner in
which the amount stated for the
company's profit or loss has been
arrived at.
52. (1) If it appears to the
Minister to be desirable in the
national interest, the Minister
may, by legislative instrument,
prescribe that companies of a
class described in the instrument
shall be exempt from any of the
provisions of this Schedule, but a
company taking advantage of this
paragraph shall be subject to any
conditions prescribed in the
instrument as to matters to be
stated in the accounts or by way
of note thereto and as regards
information to be furnished to the
Minister or to the Registrar.
(2) If the Minister is satisfied
that any of the said conditions
has not been complied with in the
case of any company, he may at any
time direct that so long as the
direction remains in force such
company shall be excluded from
such exemption, either wholly or
to the extent specified in the
direction, notwithstanding that
such company is a company of the
class prescribed in the
instrument.
53. Notwithstanding any exemption
conferred by or under this Part of
this Schedule, the accounts of a
company shall give the true and
fair view required by this Code,
but such accounts shall not be
deemed not to give such a true and
fair view by reason only of the
fact that they do not comply with
such of the provisions of this
Schedule from which the company is
exempt by reason of this Part of
this Schedule or any instrument
made hereunder.
54. Where the company entitled to
an exemption under this Part of
this Schedule is a holding
company, the group accounts, if
prepared as consolidated accounts,
shall be deemed to comply with the
requirements of this Code if they
comply with the requirements
applying to the separate accounts
of the company.
FIFTH SCHEDULE
(Section 133)
Matters to be expressly stated in
Auditors' Report
1. Whether they have obtained all
the information and explanations
which to the best of their
knowledge and belief were
necessary for the purposes of
their audit.
2. Whether, in their opinion,
proper books of account have been
kept by the company, so far as
appears from their examination of
those books, and proper returns
adequate for the purposes of their
audit have been received from
branches not visited by them.
3. Whether the company's balance
sheet and, unless it is framed as
a consolidated profit and loss
account, profit and loss account
dealt with by the report are in
agreement with the books of
account and returns.
4. Whether, in their opinion and
to the best of their information
and according to the explanations
given them, the said accounts give
all the information required by
this Code in the manner so
required and give a true and fair
view,
(a) in the case of the balance
sheet, of the state of the
company's affairs at the end of
its financial year, and
(b) in the case of the profit and
loss account, of the profit or
loss for its financial year,
or, as the case may be, give a
true and fair view thereof subject
to the non-disclosure of any
matters, to be indicated in the
report, which by virtue of Part IV
of the Fourth Schedule to this
Code are not required to be
disclosed.
5. In the case of a holding
company submitting group accounts,
whether, in their opinion, the
group accounts have been properly
prepared in accordance with the
provisions of this Code so as to
give a true and fair view of the
state of affairs and profit or
loss of the company and its
subsidiaries dealt with thereby so
far as concerns the interests of
the company or, as the case may
be, so as to give a true and fair
view thereof subject to the
non-disclosure of any matters, to
be indicated in the report, which
by virtue of Part IV of the Fourth
Schedule to this Code are not
required to be disclosed.
SIXTH SCHEDULE
(Sections 273 and 274)
FORM OF STATEMENT IN LIEU OF
PROSPECTUS AND ACCOUNTS AND
REPORTS TO ACCOMPANY THE STATEMENT
PART I—FORM OF STATEMENT AND
PARTICULARS TO BE CONTAINED
THEREIN
Statement in Lieu of Prospectus
delivered for registration by
[insert full name of company]
1. Unless more than two years have
elapsed since the registration of
the company:— 1.
(a) The amount or estimated amount
of the expenses incidental or
preliminary to the promotion and
registration of the
company. (a) £G
(b) By whom these expenses have
been paid or are payable.
(b)
(c) The names of the
promoters. (c)
(d) The amount paid or intended to
be paid to any promoter. (d)
Name of Promoter
...........................................
Amount
£G......................
(e) The consideration for the
payment (e)
(f) Any other benefit given or
intended to be given to any
Promoter. (f) Name of
Promoter
........................................
Nature and value of benefit
.........................................
(g) The consideration for the
giving of that benefit
(g)
(h) Full particulars of the nature
and extent of the interest of
every director and proposed
director of the company in the
promotion of the
company. (h)
2. The name, address and
professional qualification of the
company's auditors, and if no
auditors have yet been appointed a
statement to that effect.
2.
3. The names and addresses of the
company's bankers and legal
practitioners. 3.
4.(a) The names, countries of
incorporation, and nature of the
business of all subsidiaries of
the company and of all bodies
corporate in which the company is
beneficially entitled to equity
shares conferring the right to
exercise more than twenty-five per
centum of the votes exercisable at
a general meeting of the body
corporate:
Provided that, if, on the
application of the directors of
the company, the Registrar is
satisfied that mention of any of
the matters referred to in this
paragraph would be harmful to the
business of the company or any of
its associated companies he may
direct that such matter need not
be stated. 4. (a)
(b) If the company is a
subsidiary, the name, country of
incorporation and nature of the
business of the holding company
and the number of each class of
shares of the company held by the
holding company. (b)
5. Where the company is proposing
to acquire securities in any body
corporate hereinafter in this
Schedule called a proposed
subsidiary which, by reason of the
acquisition or anything to be done
in consequence thereof or in
connection therewith, will become
a subsidiary of the company, the
name, country of incorporation,
and nature of the business of
that proposed
subsidiary. 5.
6. Where the company is proposing
to acquire a business, a full
description of the nature of that
business. 6.
7. Whether in the opinion of the
directors the company's working
capital is sufficient and, if not,
how it is proposed to provide the
additional working capital thought
by the directors to be
necessary. 7.
8. The amount of the company's
stated capital distinguishing
between each of the items
specified in subsection (1) of
section 66 of the Code and, in the
case of items (a) and (b) between
different classes of
shares. 8. (a) £G
(b) £G
(c) £G
Total £G
9. The number and description of
the company's, 9.
(a) authorised shares of each
class (a)
(b) issued shares of each
class (b)
(c) treasury shares of each
class (c)
10. The amount paid on the issued
shares of each class
10.
(a) in cash (a)
(b) otherwise than in cash
(b)
11. The amount, if any, remaining
payable on the issued shares of
each class: 11.
(a) presently due for
payment (a)
(b) not yet due for payment
(b)
(c) which the company has resolved
shall not be capable of being
called up except in the event and
for the purposes of the company
being wound up
(c)
12. (a) The amounts of the
dividends, if any, per share paid
by the company in respect of each
class of share in each of the five
completed financial years of the
company immediately preceding the
date of the statement, and
12. (a)
(b) particulars of any cases in
which no dividends have been paid
in respect of any class in any of
those years. (b)
13. (a) The number of unissued
shares of each class agreed to be
issued and the amount payable
therefor 13. (a)
(b) in cash (b) £G
(c) otherwise than in cash (c)
£G
14. (a) The name of every holder
and, if known, beneficial owner of
more than twenty-five per centum
of the company's shares or any
class of share and 14. (a)
(b) the number and description of
the shares held or owned.
(b)
15. The amount of the outstanding
debentures issued or agreed to be
issued by 15. (a) £G
(a) the company and
(b) any of its subsidiaries and
proposed subsidiaries. (b) £G
16. The amount of any bank
overdrafts of 16. (a) £G
(a) the company and
(b) any of its subsidiaries and
proposed subsidiaries. (b) £G
17. The nature of the
consideration for the issue of any
of the company's shares or
debentures issued or agreed to be
issued otherwise than for
cash 17.
18. Particulars of any shares or
debentures of any of the company's
subsidiaries and proposed
subsidiaries which have, within
the two years immediately
preceding the date of the
statement, been issued or which
are proposed to be issued
otherwise than for cash and the
nature of the consideration.
18.
19. (a) Particulars of any shares
or debentures of the company or
any of its subsidiaries and
proposed subsidiaries which have,
within two years immediately
preceding the date of the
statement, been issued for cash,
stating 19. (a)
(b) the price, and (b)
(c) if not already fully paid, the
dates when any instalments are
payable. (c)
20. Where any shares or debentures
of the company or any of its
subsidiaries and proposed
subsidiaries are under option, or
agreed conditionally or
unconditionally to be put under
option, 20.
(a) the number and description of
such shares, (a)
(b) the amount and description of
such debentures, (b)
(c) the period during which the
option is exercisable,
(c)
(d) the price to be paid for such
shares or debentures, (d) £G
(e) the consideration for the
grant of the option, (e)
(f) the persons to whom the option
was given, or, if given to
existing shareholders or
debenture-holders as such, the
relevant shares or debentures.
(f)
21. Where any property has been
acquired or is proposed to be
acquired by the company or any of
its subsidiaries and proposed
subsidiaries, except where the
contract for its acquisition was
either 21.
(i)
completed and any purchase money
fully paid more than two years
before the date of the statement,
or
(ii) entered into in the ordinary
course of business and there is no
connection between the contract
and the incorporation of the
company or its conversion from a
private to a public
company
(a) the names and addresses of
the vendors (a)
(b) the amount paid or to be paid
in cash, shares, debentures or
otherwise to each vendor stating
(b) Name of Vendor
...................................
(i)
the total purchase price paid or
to be paid, (i) £G
..............................
(ii) the amount paid or to be paid
in cash, (ii) £G
.............................
(iii) the amount paid or to be
paid in shares and the number and
description of such
shares, (iii) Amount
£G.................
Shares
........................
(iv) the amount paid or to be paid
in debentures and the number and
denomination of such
debentures. (iv) Amount
£G...................
Debentures
...................
(v) the nature of, and value
attributed to, other
consideration (v) Nature
..........................
Value...........................
Name of Vendor
.....................................
(i) £G
.................................
(ii) £G
................................
(iii) Amount £G
...................
Shares ..........................
(iv) Amount £G ...................
Debentures ...................
(v) Nature
..........................
Value
£G.......................
(c) The total amount paid or to be
paid in, (c)
(i)
cash (i)
£G..................................
(ii) shares (ii)
£G.................................
(iii) debentures (iii) £G
...............................
(iv) other consideration
(iv) £G
...............................
Total
....................................
specifying (v) the amount paid or
to be paid for
goodwill. (v) £G
.................................
(d) Full particulars of the nature
and extent of the interest, direct
or indirect, of every director or
proposed director of the company
or any of its subsidiaries and
proposed subsidiaries in any such
property. (d)
(e) Short particulars of all
transactions relating to any such
property which were entered into
or completed within the two years
immediately preceding the date of
the statement. (e)
22. (a) The dates of, parties to,
and general nature of every
material contract, other than
contracts entered into in the
ordinary course of business, or
completed more than two years
before the date of this
statement. 22. (a)
(b) The place and time, not being
less than twenty-eight days at
which such contracts or copies
thereof or, in the case of any
contract not reduced into writing,
memorandum giving full particulars
thereof in a language acceptable
to the Registrar, may be
inspected. (b) Address
Between the hours of
and
from
until
(Saturdays, Sundays and public
holidays excepted)
23. Names, and any former names,
addresses and business occupations
of the company's directors or
proposed directors and secretary,
or proposed secretary, and
particulars of any other
directorships held by the
directors or proposed directors,
in the manner prescribed by
section 196 of the Code:
DIRECTORS AND PROPOSED DIRECTORS
Name
Former Names
Address
Business Occupation
Other Directorships Whether yet
appointed or not
SECRETARY OR PROPOSED SECRETARY
Name
Former Names
Address
Business Occupation
Whether yet appointed or
not
24. Names and addresses of
accountants making the 24.
reports, if any, delivered
for registration with this
statement.
(Signatures of the persons
above-named as directors
......................................................
or proposed directors or of their
agents authorised in
.......................................................
writing.)
.......................................................
Date
PART II—ACCOUNTS AND REPORTS TO
ACCOMPANY STATEMENT
25. Where the company has been
incorporated for more than fifteen
months,
(a) copies of the profit and loss
account, balance sheet, group
accounts and reports required to
be circulated to the members and
debentureholders of the company in
accordance with section 124 of
this Code for each of the five
completed financial years
immediately preceding the date of
the statement, or in respect of
each of the financial years since
the incorporation of the company
if this occurred less than five
years before such date:
Provided that such accounts and
reports shall not be required for
any financial year in respect of
which copies of such accounts and
reports shall have been annexed to
the annual return of the company
in accordance with section 296 of
this Code;
(b) unless the auditors reports on
the accounts for all such
financial years have been made by
auditors duly qualified under
section 296 of this Code, to be
appointed auditors of the company
if it had been a public company at
the date of each auditor's report,
a report by accountants duly
qualified under section 296 of
this Code, to be appointed
auditors of the company with
respect to the profits or losses
of the company in each of such
financial years and with respect
to the assets and liabilities of
the company as at the end of the
last financial year, or, if the
company is a holding company, a
like report with respect to the
profits or losses and assets and
liabilities of the company and its
subsidiaries so far as such
profits or losses and assets can
properly be regarded as
attributable to the interests of
the company.
26. Where the company, whether or
not incorporated for more than
fifteen months, at any time within
the five years immediately
preceding the date of the
statement has acquired any
business or any subsidiary, or
where at the date of the
statement, the company proposes to
acquire any business or any
proposed subsidiary,
(a) copies of the profit and loss
account and balance sheet of the
business, or subsidiary or
proposed subsidiary in respect of
each of the five financial years
immediately preceding the date of
the statement, or in respect of
each of the financial years since
the commencement of that business
or the incorporation of that
subsidiary or proposed subsidiary,
if that occurred less than five
years before the date of the
statement:
Provided that it shall not be
necessary to deliver for
registration copies of a profit
and loss account and balance sheet
of a business or subsidiary for
any financial year in respect of
which the profits or losses and
assets and liabilities of the
business or subsidiary are dealt
with in the accounts or group
accounts of the company for that
financial year;
(b) a report by accountants duly
qualified under section 296 of
this Code to be appointed auditors
of the company with respect to the
profits or losses of that business
or subsidiary or proposed
subsidiary in respect of each of
the financial years for which a
profit and loss account shall have
been delivered for registration
pursuant to sub-paragraph (a)
hereof and with respect to the
assets and liabilities of that
business or subsidiary or proposed
subsidiary as at the end of its
last financial year:
Provided that,
(i)
such report shall deal with such
of the profits or losses and
assets and liabilities of a
subsidiary or proposed subsidiary
as can properly be regarded as
attributable to the interests of
the company;
(ii) when the report relates to
any financial year before the
subsidiary became a subsidiary of
the company or relates to a
proposed subsidiary, only such of
its profits or losses and assets
and liabilities shall be regarded
as attributable to the interests
of the company as would have been
properly attributable if the
company had held the securities in
the subsidiary or proposed
subsidiary which it holds at the
date of the statement or proposes
to acquire;
(iii) where any such subsidiary or
proposed subsidiary has itself
subsidiaries, the report shall be
extended to the profits or losses
and assets and liabilities of that
subsidiary or proposed subsidiary
and its subsidiaries so far as the
same can properly be regarded as
attributable to the interests of
the company;
(iv) the report required by this
paragraph need not extend to any
period in respect of which the
profit or losses of that business
or the appropriate part of the
profits or losses of that
subsidiary are dealt with in the
accounts or group accounts of the
company;
(v) the report required by this
paragraph need not extend to the
assets and liabilities of any
business or subsidiary if the same
or the appropriate part thereof
are dealt with in the last balance
sheet of the company.
27. (1) In making any such report
as is required by paragraph 25 or
26 of this Schedule the
accountants shall make such
adjustments, if any, as are in
their opinion appropriate.
(2) Where any such adjustments are
made, the statement shall, in
accordance with subsection (3) of
section 274 of this Code, have
endorsed thereon or attached
thereto a written statement signed
by the accountants setting out the
adjustments and giving the reasons
therefor.
SEVENTH SCHEDULE
(Sections 273, 274, 275, 276, 278
and 279)
CONTENTS OF PROSPECTUS ON GENERAL
INVITATIONS
Pursuant to subsection (11) of
section 279 of this Code, the
prospectus shall state at its
head:—
A
copy of this prospectus has been
delivered to the Registrar of
Companies, Ghana, for
registration. The Registrar has
not checked and will not check the
accuracy of any statements made
and accepts no responsibility
therefor or for the financial
soundness of the company or the
value of the securities concerned.
PART I—MATTERS TO BE SPECIFIED
1. The full name of the company.
2. (1) A full description of the
securities which the public are
being invited to acquire, and of
the terms on which they are being
invited to acquire the same,
including,
(a) the date prior to the
expiration of which applications
will not be accepted or treated as
binding
(b) if securities are being
offered for subscription or
purchase, the total amount payable
for each share or debenture and
the amount thereof payable on
application, allotment, and
otherwise;
(c) the policy which will be
adopted if applications exceed the
shares or debentures on offer.
(2) Where the securities are
unsecured debentures they shall be
described as "unsecured loan
stock", "unsecured notes" or the
like, and not as "debentures" or
"bonds".
3. Whether application has been or
is being made to a stock exchange
for permission to deal in the
securities concerned.
4. If so, whether the stock
exchange is an approved stock
exchange within the meaning of
section 280 of this Code.
5. If not, a statement that there
will not be a market for the
securities and that any holder
wishing to dispose of his
securities may be unable to do so.
6. The full name, address and
business occupations of every
person making the invitation, if
other than the company.
7. The address and the number of
the Post Office Box of the
company's registered office.
8. The full name, address and
business occupation of every
director and proposed director and
of the secretary or proposed
secretary of the company.
9. The name, address and
professional qualification of the
company's auditors.
10. The name and address of the
registration officer, if any.
11. The name and address of any
underwriter of the invitation.
12. The names and addresses of the
company's bankers, stockbrokers
and legal practitioners.
13. If the invitation relates to
debentures, the name and addresses
of any trustees for
debentureholders, the date of the
resolutions creating the
debentures, and short particulars
of the security therefor or, if
the debentures are unsecured, a
statement to that effect.
14. The authorised business or
businesses of the company.
15. A brief summary of the history
of the company and of any
businesses to which it has
succeeded.
16. (a) The names, countries of
incorporation, and nature of the
businesses of all subsidiaries of
the company and of all bodies
corporate in which the company is
beneficially entitled to equity
shares conferring the right to
exercise more than twenty-five per
centum of the votes exercisable at
a general meeting of the body
corporate.
(b) If the company is a
subsidiary, the name, country of
incorporation and nature of the
business of the holding company
and the number of each class of
shares of the company held by the
holding company.
17. Where the company is proposing
to acquire securities in any body
corporate, hereinafter in this
Schedule called a proposed
subsidiary, which, by reason of
the acquisition or anything to be
done in consequence thereof or in
connection therewith, will become
a subsidiary of the company, the
name, country of incorporation,
and nature of the business of that
proposed subsidiary.
18. Where the company is proposing
to acquire a business, a full
description of the nature of that
business.
19. The situation, area, and
tenure, including, where
appropriate, the rent and
unexpired term of any lease or
concession, of the main places of
business of the company and its
subsidiaries and proposed
subsidiaries.
20. A statement as to,
(a) the financial and trading
prospects of the company together
with any material information
which may be relevant thereto; and
(b) any material changes in the
financial or trading position of
the company which may have
occurred since the end of the last
completed financial year of the
company.
21. A statement by the directors
of the company that in their
opinion the company's working
capital is sufficient or, if not,
it is proposed to provide the
additional working capital thought
by the directors to be necessary.
22. The amount or estimated amount
of the expenses incidental and
preliminary to the invitation,
including the expenses of any
application to a stock exchange
for permission to deal in the
securities concerned in the
invitation, and by whom the same
are payable.
23. Particulars of any commissions
paid within the two preceding
years, or payable, as commission
for acquiring any shares or
debentures of the company or of
any of its subsidiaries and
proposed subsidiaries.
24. Where the company is inviting
or, under section 267 of this
Code, is deemed to be inviting,
the public to subscribe for any of
its shares or debentures,
(a) a statement or an estimate of
the net proceeds of the issue and
a statement as to how such
proceeds were or are to be
applied;
(b) the minimum amount which in
the opinion of the company's
directors must be raised by the
issue in order to provide the
sums, or, if part thereof is to be
defrayed in any other manner, the
balance of the sums, required to
be provided in respect of each of
the following matters, namely,
(i)
the purchase price of any property
purchased or to be purchased which
is to be defrayed in whole or in
part out of the proceeds of the
issue;
(ii) any expenses incidental and
preliminary to the invitation and
issue, including the expenses of
any application to a stock
exchange for permission to deal in
the shares or debentures, payable
by the company, and any commission
so payable to any person in
consideration of his agreeing to
subscribe for, or of his procuring
or agreeing to procure
subscriptions for, any shares or
debentures of the company;
(iii) the repayment of any moneys
borrowed by the company in respect
of any of the foregoing matters;
and
(iv) working capital; and
(c) the amounts to be provided in
respect of the matters stated in
sub-paragraph (b) of this
paragraph otherwise than out of
the proceeds of the issue and the
sources out of which these amounts
are to be provided.
25. Where a person other than the
company is inviting the public to
purchase any shares or debentures
of the company, whether or not,
under section 267 of this Code,
the invitation is also deemed to
be made by the company,
(a) if such shares or debentures
were issued by the company for
cash, a statement of the price per
share or debenture at which those
shares or debentures were issued,
and of the total net proceeds of
the issue;
(b) if such shares or debentures
were issued by the company for a
consideration other than cash, a
statement of the nature of the
consideration and an estimate by
the directors of its fair value
and of the price per share or
debenture which it represents;
(c) if the person making the
invitation did not acquire the
shares or debentures directly from
the company on their issues,
(i)
if he purchased them for cash, a
statement of the price per share
or debenture at which he purchased
the same or, if purchased over a
period of time at different
prices, the lowest and highest
prices, and the total purchase
price paid by him;
(ii) if he acquired them for a
consideration other than cash, a
statement of the nature of the
consideration and an estimate by
him of its fair value and of the
price per share or debenture which
it represents.
26. The stated capital of the
company, distinguishing between
each of the items specified in
subsection (1) of section 66 of
this Code, and, in the case of
items (a) and (b), between
different classes of shares.
27. The number and description of
the company's authorised shares of
each class, issued shares of each
class, and treasury shares of each
class.
28. The amount paid on the issued
shares of each class
(a) in cash,
(b) otherwise than in cash.
29. The amount, if any, remaining
payable on the issued shares of
each class, distinguishing between
the amount presently due for
payment and the amount not yet due
for payment and, in the latter
case, stating what amount, if any,
the company has resolved shall not
be capable of being called up
except in the event and for the
purpose of the company being wound
up.
30. The number of unissued shares
of each class agreed to be issued
and the amount payable therefor
distinguishing between the amount
payable in cash and the amount
payable otherwise than in cash.
31. If the company's shares are
divided into different classes,
the rights in respect of voting,
repayment, and dividends and any
other special rights attached to
the several classes and a
statement as to the consents
necessary for the variation of
such rights.
32. The amounts of the dividends,
if any, per share paid by the
company in respect of each class
of share in each of the ten
completed financial years of the
company immediately preceding the
date of publication of the
prospectus and particulars of any
cases in which no dividends have
been paid in respect of any class
of shares in any of those years.
33. If any of the company's shares
are redeemable preference shares,
the earliest date on which the
company has power to redeem the
same.
34. The name of every holder and
beneficial owner of more than
twenty-five per centum of the
company's shares or any class of
shares and the number and
description of the shares held or
owned.
35. The amount of the outstanding
debentures issued or agreed to be
issued by the company and any of
its subsidiaries and proposed
subsidiaries or, if none, a
statement to that effect.
36. Particulars of any bank
overdrafts of the company and any
of its subsidiaries and proposed
subsidiaries as at the latest
practicable date, which shall be
stated, or if there are no bank
overdrafts, a statement to that
effect.
37. The nature of the
consideration for the issue of any
of the company's shares or
debentures issued or proposed to
be issued otherwise than for cash.
38. Particulars of any shares or
debentures of any of the company's
subsidiaries and proposed
subsidiaries which have, within
two years immediately preceding
the publication of the prospectus,
been issued, or which are proposed
to be issued, otherwise than for
cash and the nature of the
consideration.
39. Particulars of any shares or
debentures of the company or any
of its subsidiaries and proposed
subsidiaries which have, within
two years immediately preceding
the publication of the prospectus,
been issued, or which are proposed
to be issued, for cash, the price
and terms upon which the same have
been or are to be issued and, if
not already fully paid, the dates
when any instalments are payable.
40. Particulars of any shares or
debentures of the company or any
of its subsidiaries and proposed
subsidiaries which are under
option, or agreed conditionally or
unconditionally to be put under
option, with the price to be paid
for the securities under option,
the duration of the option, the
consideration for which the option
was granted, and the name and
address of the grantee:
Provided that where the option is
to all the shareholders or
debentureholders or any class
thereof, it shall be sufficient,
so far as names are concerned, to
record that fact without giving
the names and addresses of the
grantees.
41. Where any property has been
acquired or is proposed to be
acquired by the company or any of
its subsidiaries and proposed
subsidiaries, except where the
contract for its acquisition was
either
(i)
completed and any purchase money
fully paid, more than two years
before the date of publication of
the prospectus; or
(ii) entered into in the ordinary
course of business and there is no
connection between the contract
and the invitation,
(a) the names and addresses of the
vendors;
(b) the amount paid or to be paid
in cash, shares, debentures or
otherwise to the vendor and, where
there is more than one separate
vendor or the company or
subsidiary or proposed subsidiary
is a sub-purchaser, the amount so
paid or to be paid to each vendor,
distinguishing between the amounts
paid or to be paid,
(i)
in cash,
(ii) in shares,
(iii) in debentures,
(iv) the nature of, and value
attributed to, any other
consideration, and
(v) the amount, if any, paid or
payable for goodwill;
(c) full particulars of the nature
and extent of the interest, direct
or indirect, of every director or
proposed director of the company
or any of its subsidiaries and
proposed subsidiaries in any such
property;
(d) short particulars of all
transactions relating to any such
property which were entered into
or completed within the two years
immediately preceding the date of
publication of the prospectus.
42. Unless more than two years
have elapsed since the
registration of the company,
(a) the amount or estimated amount
of the expenses incidental or
preliminary to the promotion and
registration of the company and by
whom those expenses have been paid
or are payable;
(b) the names of the promoters of
the company;
(c) the amount of any cash or
securities paid, or benefit given
or proposed to be given, to any
promoter and the consideration for
such payment or benefit;
(d) full particulars of the nature
and extent of the interest of
every director and proposed
director in the promotion of the
company.
43. Where the prospectus includes
a statement purporting to be made
by an expert, a statement that the
expert has given and has not
withdrawn his written consent to
the publication of the prospectus
with the statement included in the
form and context in which it is
included.
44. The dates of, parties to, and
general nature of, every material
contract, other than contracts
entered into in the ordinary
course of business or completed
more than two years before the
date of publication of the
prospectus.
45. A reasonable time, not being
less than twenty-eight days during
which, and place at which, the
following documents, or certified
copies thereof, may be inspected,
namely,
(a) the company's Regulations;
(b) where the invitation relates
to debenture, the debenture trust
deed, if any;
(c) each contract disclosed
pursuant to paragraph 44 hereof
or, in the case of a contract not
reduced into writing, a memorandum
giving full particulars thereof;
(d) the profit and loss account,
balance sheet, group accounts and
reports required to be circulated
to the members and
debentureholders of the company in
accordance with section 124 of
this Code, for the five financial
years of the company immediately
preceding the date of publication
of the prospectus or, if the
company has been incorporated for
less than five years, for the
number of years in respect of
which it has or should, in
accordance with the said section
124, have circulated such accounts
and reports;
(e) the profit and loss account
and balance sheet of every
subsidiary and proposed subsidiary
of the company and of every
business acquired or to be
acquired by the company for each
of its five financial years
immediately preceding the date of
publication of the prospectus, or,
if any subsidiary or proposed
subsidiary has been incorporated
or any business has been carried
on for less than five years, for
the number of financial years
completed since its incorporation
or commencement:
Provided that this sub-paragraph
shall not apply to the profit and
loss accounts and balance sheets
of a subsidiary or business in
respect of any financial years in
which the profits or losses and
assets and liabilities of the
subsidiary or business are dealt
with in the accounts or group
accounts of the company;
(f) all other reports, letters,
balance sheets, valuations and
statements by any expert any part
of which is extracted or referred
to in the prospectus;
(g) a written statement, signed by
the accountants making the reports
required under Part II of this
Schedule, setting out the
adjustments made by them in
arriving at the figures shown in
their report and giving the
reasons therefor:
Provided that if the whole or any
part of any of the above-mentioned
documents is in any other
language, a certified translation
of such document or of the parts
thereof shall be made available in
a language acceptable to the
Registrar for inspection instead
of the original or a certified
copy.
46. The names and addresses of the
accountants making the reports
required under Part II of this
Schedule.
PART II—REPORTS TO BE SET OUT
47. (1) A report by accountants
duly qualified under section 296
of this Code to be appointed
auditors of the company,
(a) with respect to the profits or
losses of the company in respect
of each of the ten completed
financial years immediately
preceding the publication of the
prospectus, or in respect of each
of the financial years since the
incorporation of the company if
this occurred less than ten years
before such publication; and if
the last financial year of the
company ended more than three
months before the date of the
publication of the prospectus,
with respect to the profits or
losses from the end of the last
financial year to the latest
practicable date not being less
than three months before the date
of the publication of the
prospectus;
(b) where the company is a holding
company, in lieu of the report
required by sub-paragraph (a) of
this paragraph, a like report with
respect to the profits or losses
of the company and of its
subsidiaries, so far as such
profits or losses can properly be
regarded as attributable to the
interests of the company;
(c) with respect to the assets and
liabilities of the company as at
the end of its last financial year
or, if the financial year ended
more than three months before the
date of publication of the
prospectus, as at the latest
practicable date not being less
than three months before the date
of publication of the prospectus;
(d) where the company is a holding
company, in lieu of the report
required by sub-paragraph (c) of
this paragraph, a like report with
respect to the assets and
liabilities of the company, and of
its subsidiaries so far as such
assets can properly be regarded as
attributable to the interests of
the company;
(e) with respect to the aggregate
emoluments paid by the company to
the directors of the company or
any associated company during the
last period for which the accounts
have been made up, and the amount,
if any, by which such emoluments
would differ from the amounts
payable under any arrangements in
force at the date of publication
of the prospectus;
(f) with respect to any other
matters which appear to the
accountants to be relevant having
regard to the purpose of the
report.
(2) In making any such report the
accountants shall make such
adjustments, if any, as are in
their opinion appropriate for the
purposes of the prospectus.
48.(1) Where at any time within
the ten years immediately
preceding the publication of the
prospectus the company has
acquired any business or any
subsidiary, or where at the date
of the publication of the
prospectus the company proposes to
acquire any business or any
proposed subsidiary, a report in
manner hereinafter appearing by
accountants duly qualified under
section 296 of this Code to be
appointed auditors of the company,
(a) with respect to the profits or
losses of that business or
subsidiary or proposed subsidiary
in respect of each of the ten
financial years immediately
preceding the publication of the
prospectus, or in respect of each
of the financial years since the
commencement of that business or
the incorporation of that
subsidiary or proposed subsidiary
if that occurred less than ten
years before the publication of
the prospectus; and if the last
financial year of that business,
subsidiary or proposed subsidiary
ended more than three months
before the date of the publication
of the prospectus, with respect to
the profits, or losses from the
end of the last financial year to
the latest practicable date not
being less than three months
before the date of the publication
of the prospectus:
Provided that,
(i)
such report shall deal with such
of the profits or losses of a
subsidiary or proposed subsidiary
as can properly be regarded as
attributable to the interests of
the company;
(ii) where the report relates to
any financial year before the
subsidiary became a subsidiary of
the company or relates to a
proposed subsidiary, only such of
its profits or losses shall be
regarded as attributable to the
interests of the company as would
have been properly so attributable
if the company had held the
securities in the subsidiary or
proposed subsidiary which it holds
at the date of publication of the
prospectus or proposes to acquire;
(iii) where any such subsidiary or
proposed subsidiary has itself
subsidiaries the report shall be
extended to the profits or losses
of the subsidiary or proposed
subsidiary and its subsidiaries so
far as the same can properly be
regarded as attributable to the
interests of the company;
(iv) the report required by this
paragraph need not extend to any
period in respect of which the
profits or losses of that business
or the appropriate part of the
profits or losses of that
subsidiary are dealt with in the
report required under paragraph
47;
(b) where a business or subsidiary
has been acquired since the latest
date to which the accounts of the
company have been made up, or
where the company proposes to
acquire a business or a proposed
subsidiary, with respect to the
assets and liabilities of that
business or that subsidiary or
proposed subsidiary as at the end
of its last financial year or, if
the financial year ended more than
three months before the date of
publication of the prospectus, as
at the latest practicable date not
being less than three months
before the date of publication of
the prospectus:
Provided that,
(i)
such report shall deal with the
assets and liabilities of the
subsidiary or proposed subsidiary
so far as such assets and
liabilities can properly be
regarded as attributable to the
interests of the company;
(ii) in relation to a proposed
subsidiary only such assets and
liabilities shall be regarded as
attributable to the interests of
the company as would have been
properly so attributable if the
company had held the securities in
the proposed subsidiary which it
proposes to acquire;
(iii) where any such subsidiary or
proposed subsidiary has itself
subsidiaries the report shall be
extended to the assets and
liabilities of that subsidiary or
proposed subsidiary and its
subsidiaries so far as the same
can properly be attributable to
the interests of the company;
(c) with respect to any other
matters which appear to the
accountants to be relevant having
regard to the purpose of the
report.
(2) In making any such report the
accountants shall make such
adjustments, if any, as are in
their opinion appropriate for the
purposes of the prospectus.
EIGHTH SCHEDULE
(Section 329)
PART I—TABLE OF FEES
Type of Service Rate
1. For registration of a company
limited by shares
¢500,000.00
2. For registration of a company
limited by guarantee
¢500,000.00
3. On conversion of a company by
shares to a company limited by
guarantee for registration of the
conversion, including any change
of name and the issue of a
certificate to that
effect. ¢400,000.00
4. (1) On change of name otherwise
than on conversion of company
limited by shares to a company
limited by guarantee for
registration of new name and issue
of certificate to that
effect. ¢250,000.00
(2) For reservation of a name
under subsection (12) of section
15 of this Code.
¢100,000.00
5. For registration of notice of
any increase of stated capital to
an amount exceeding five thousand
cedis and for each five thousand
cedis or part of it, of stated
capital in excess of five thousand
cedis. ¢25.00
6. For registering any annual
return under section 122 of this
Code. ¢150,000.00
7. For registering any statement
in lieu of prospectus insider
section 274 of this Code.
¢500,000.00
8. For registration of any
prospectus under section 279 of
this Code.
¢1,000,000.00
9. To obtain the consent of the
Registrar to make the invitation
for deposits cinder section 289 of
this code, including the
registration of any advertisement
or circular in connection with
it.
¢1,000,000.00
10. For registration of documents
delivered by an external company
under section 303 of this
Code. cedi equivalent
of $500.00
11. For registration of accounts
of an external company under
section 307 of this Code.
cedi equivalent of
$200.00
12. For registration of any
document other than a document
registered in connection with any
of the above.
¢50,000.00
[As substituted by the Companies
Code (Amendment) Act, 2001 (Act
609) s. (1), and further amended
by the Companies Code (Amendment)
Act, 2002 (Act 627) ].
PART II—EXEMPTION
Where it is shown to the
satisfaction of the Registrar that
the stated capital of a company
has been increased by reason of
the issue of shares in
consideration of the acquisition
of the undertaking, assets or
shares of another company or
companies,
(a) under such an arrangement or
amalgamation as is referred to in
section 230 or 231 of this Code;
(b) under such a sale as is
referred to in subsection (7) of
section 230 of this code; or
(c) as a result of such an offer
as is referred to in subsection
(2) of section 234 of this Code;
the fees payable under paragraph 5
of Part I of this Schedule shall
not be payable in respect of such
increase.
NINTH SCHEDULE
(Section 3)
TRANSITIONAL AND OTHER PROVISIONS
WHICH MAY REQUIRE IMMEDIATE
ACTION BY EXISTING COMPANIES
Section
Subject Matter
11 Conversion of company
limited by shares to company
limited by guarantee
15 (1) Names of
companies; cessation of licences
to dispense with
"limited"
19 Adoption of Regulations in
lieu of Memorandum and
Articles
28 (2) Minimum
Capital
32 (5) Notice of
Situation of register of
members
40 Conversion to no par
shares
65 (2) Shares of
holding company held by a
subsidiary
110 (1) Registration of
particulars of existing charges
(2) Statutory declaration
regarding charges
120 (4) Notice of
number of Post Office Box
125 (1) proviso(a) Period to
be covered by profit and loss
account
134 (3) Appointment of
auditors
(7) Notice of
names of auditors
180 (2) Number of
directors
194 Remuneration of
directors
196 Register of directors and
secretary
197 Registration of
particulars of directors and
secretary
215 Register of directors'
holdings
274 Publication of statement
in lieu of prospectus.
TENTH SCHEDULE
(Section 340)
REPEALS
Enactment
Extent of Repeal
The Companies Ordinance (Cap.
193) .. The whole Ordinance
except sections 23 to 29, and 57
and Schedule 4.
The Companies (Preferential
Creditors)
Ordinance (Cap. 194) .. .. ..
.. .. ..
The whole Ordinance.
The Companies and Registration of
Business
Names (Amendment) Act, 1959 ..
.. .. .. Part I.
amended by
SECURITIES INDUSTRY LAW , 1993 (PNDCL
333)2
THE COMPANIES CODE (AMENDMENT)
ACT, 1994 (ACT 474)3
THE COMPANIES CODE (AMENDMENT)
ACT, 1997 (ACT 531)4
THE COMPANIES CODE (AMENDMENT)
ACT, 2001 (ACT 609)5
THE COMPANIES CODE (AMENDMENT)
ACT, 2002 (ACT 627)6
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