Post Incorporation

In Nigeria, for a company to attain legal status, it must be incorporated. Incorporation refers to the registration of a limited company, business name or incorporated trustees with the statutory body legally empowered to do same. In Nigeria, this statutory body is the Corporate Affairs Commission (CAC) created by statute called CAMA (Companies and Allied Matters Act 1990). It should be noted that registration of a company may either be done personally by individual or a group of people seeking to register their businesses or by those accredited with the Commission (CAC). A Chartered Secretary, Chartered Accountant or a Lawyer can be an accredited agent.

A registered company’s duties and obligations do not cease upon incorporation. To this effect, a company has the following post-incorporation duties:

PART A- FILING OF ANNUAL RETURNS

This is a yearly financial statement that gives a view of the company’s performance for the year and its financial position. It is statutorily required that all duly registered business names, limited companies, and incorporated trustees submit their annual returns yearly to the CAC. This allows the Commission (CAC) keeps record of the company/business and confirms it is still in operation and a going concern. The CAMA mandates all businesses, companies and incorporated trustees to submit their annual returns for filing within a prescribed period of time.

BUSINESS NAME

In order to enhance the status of a business carried on under a business name, provisions are made for disclosure of its affairs. Section 670 provides that every firm, company or individual carrying ion business under a registered business name shall not later than the 30th day of June in each year, except the calendar year in which the business name is registered, deliver to the Commission a return in the prescribed form showing the following:

1. Particulars of the firm, company or individuals,
2. The nature of the business carried on in the business name, and
3. The state of the financial affairs of the business carried on in the business name during the preceding period of January 1 to December 31.

The returns shall be signed, in the case of an individual or firm consisting only of individuals, by the individuals; and in the case of a company or a partner who is a company, by a director and the secretary.

Note: Failure of a registered business to file its annual returns attracts a penalty of N2,500 additional fees for each year not filed and if these persist for a longer period then the business name will be removed by the Commission from its register.

LIMITED COMPANIES

Every company must, at least once in every year, make and deliver to the Commission an annual return in the form, but a company need not make a return either in the year of its incorporation, until 18 months after the company’s incorporation and within 42 days after the first Annual General Meeting for the year. Subsequent annual returns must be filed yearly also within 42 days after the company’s AGM.

Except in the case of unlimited companies exempted under section 377 (1), and of small companies, every company must attach the following documents to its annual returns:

1. A copy of every balance sheet and profit and loss account laid before the company in general meeting during the period to which the return relates. The balance sheet must be certified by a director and the secretary as a true copy and should include all documents required to be annexed to the balance sheet; and
2. A copy of the report of the auditors on and the report of the directors accompanying each balance sheet.

Some additional requirements for private companies:

1. A certificate signed by a director and the secretary that the company has not, since the date of the last return, or incorporation as the case may be, issued any invitation to the public to subscribe for its shares or debentures; and
2. Where the annual return discloses that the number of members of the company exceed fifty, a certificate signed by a director and the secretary that the excess consists wholly of persons who under section 22(3) are not included in reckoning the number fifty.

In addition to the documents required to be delivered by a private company, a small company must also deliver to the Commission a certificate signed by a director and the secretary stating:

1. That it is a private company limited by shares;
2. That the amount of its turn-over for that year is not more than N2 million or such amount as may be fixed by the Commission;
3. That its net asset value is not more than N1 million or such amount as may be fixed by the Commission;
4. That none of its members is an alien;
5. That the directors among them hold not less than fifty-one percent of the equity share capital of the company.

Failure or default in filing annual returns

1. Currently attracts a penalty for each year not filed of N3,000 for small private companies with share capitals of less than N2 million
2. N5,000 for larger private companies with share capitals of more than N2 million
3. N10,000 for public companies
4. N5,000 for companies limited by guarantee
5. Unlimited companies are exempted by virtue of section 377 (1).

INCORPORATED TRUSTEES

The trustees of the corporation are required to deliver to the Commission an annual return showing the particulars of the corporation specified in section 607 (1). The return must be submitted not earlier than 30th June or later than 31st December of each year, but no return is required for the year in which the trustees are incorporated.

The return must show, inter alia, the name of the corporation, the names, addresses and the occupations of the trustees, and members of the council or governing body, particulars of any land held by the corporation during the year, and of any change which has taken place in the constitution during the preceding year.

Failure to file annual returns attracts a penalty of N5000 for each year not filed.

PART B. SOME SIGNIFICANT POST-INCORPORATION CHANGES

A company/legal entity continues to grow; hence, there may be significant changes in the company’s structure of which the Commission must be notified.

1. CHANGE IN A COMPANY NAME:

Requirements for change of company name shall include the following –

1. Form of approval for new name
2. Special resolution for change of name signed by a director and secretary or 2 directors
3. Duly signed memorandum and articles of association reflecting new name
4. Application signed by a director and secretary or 2 directors stating reasons for change of name
5. Original certificate of incorporation of the company for Cancellation
6. Updated annual returns
7. Updated section 553, CAMA filing where applicable
8. Payment of filing fees
9. Application for change of company name shall be filed with the Commission within 15 days of the passing of the special resolution for change of name

2. ALTERATION OF THE MEMORANDUM AND ARTICLE OF ASSOCIATION

Requirements for alteration of memorandum and articles of association of a company shall include the following –

1. Special resolution for alteration of memorandum and articles signed by a director and secretary or two directors and stating the altered clauses and or articles
2. Duly stamped memorandum and articles of association marked “as Altered” and reflecting the altered clauses and or articles
3. Updated annual returns
4. Updated section 553 filing where applicable
5. Evidence of payment of FRC annual dues
6. Payment of fees
7. Notice of alteration of memorandum and or articles of association shall be filed with the Commission within 15 days of the passing of the resolution except where the alteration relates to the business or object of the company in which case it must be filed with the Commission within 15 days after the 28 days for application to court for cancellation of the alteration.

3. INCREASE IN AUTHORISED SHARE CAPITAL OF A COMPANY

Requirements for filing of notice of increase in authorised share capital shall include the following –

1. Special resolution for increase in share capital signed by a director and secretary or two directors
2. Duly stamped form for notice of increase in authorized share capital
3. Updated annual return
4. Updated section 553 where applicable
5. Evidence of payment of FRC annual dues
6. Payment of fees
7. Notice of increase in authorised share capital shall be filed with the Commission within 15 days of passing the resolution
8. Increase in authorised share capital shall not take effect unless the directors deliver to the Commission within six months of filing the notice of increase, a statutory declaration that not less than 25% of the share capital (including the increase) has been issued
9. Where the above is not complied with, the increase shall have no effect and the company shall be required to file a new notice of increase in share capital.

4. CHANGE OF DIRECTORS

Requirements for filing of notice of change in directorship of a company shall include the following –

1. Resolution removing or appointing director(s) duly signed by a director and secretary or two directors
2. Duly completed form for notice of changes in particulars of directorship
3. Letter of consent where applicable
4. Residence permit where applicable
5. Resignation letter where applicable
6. Death certificate of deceased director where applicable
7. Updated annual return filing
8. Updated section 553 filing where applicable
9. Notice of removal or appointment of diretcor shall be filed with the Commission within 14 days after the passing of the resolution for same

5. CHANGE OF SECRETARY

Requirements for filing of notice of appointment/change of secretary shall include the following –

1. Resolution of Board of Directors or the company signed by two directors
2. Duly completed form for particulars of person who is secretary of a company
3. Updated annual return filing
4. Updated section 553 filing where applicable
5. Payment of fees
6. Notice of appointment or change of secretary shall be filed with the Commission within 14 days of the passing of the resolution.

6. RETURN OF RE-ALLOTMENT OF SHARES

Requirements for filing return of allotment of shares shall include the following –(a) Special resolution signed by two directors of the company-

1. Duly completed form for return of allotment
2. Resolution of company for forfeiture of shares where applicable
3. Updated annual return filing
4. Updated section 553 filing where applicable
5. Evidence of payment of FRC annual dues
6. Payment of fees
7. Return of allotment shall be filed with the Commission within one month of the allotment.

7. NOTICE OF CHANGE IN REGISTERED OFFICE

Requirements for filing of notice of change in registered office address shall include the following –

1. Resolution for change of registered office address of the company signed by a director and secretary or two directors
2. Duly completed notice of change of registered address
3. Updated annual return filing
4. Updated section 553 filing where applicable
5. Payment of fee
6. Payment of fees
7. Notice of change in registered address shall be filed with the Commission within 14 days of the resolution
8. Office address shall be an address in Nigeria that is physical and traceable

8. APPLICATION FOR COMPANY SEARCH

Requirements for search on a company file shall include the following –

1. Duly completed application form
2. Payment of fees
3. Updated annual return filing if the application is made on behalf of the company or any of its directors or secretary

9. APPLICATION FOR CTC

Requirements for certified true copies (CTC) of filed documents shall include the following –

1. Duly completed application form
2. Payment of fees
3. Updated annual return filing if the application is made on behalf of the company or any of its directors or secretary

10. APPLICATION FOR THE CTC OF A COMPANY CERTIFICATE

Requirements for certified true copies of certificate of incorporation of a company shall include the following –

1. Formal application for CTC of certificate
2. Affidavit duly sworn to by a director of the company explaining the circumstance of the application
3. Updated annual return filing
4. Updated section 553 filing where applicable
5. Payment of fees.

11. REGISTRATION OF MERGER & ACQUISITION

Requirements for registration of notice of merger shall include the following –

1. Special resolution of each company in the merger scheme
2. Court order
3. Evidence of publication of court order in Gazette and at least 1 newspaper
4. Original certificate of incorporation of each dissolved company for cancellation
5. Updated annual return
6. Updated section 553 filing where applicable
7. Payment of fees
8. The special resolution shall be filed with the Commission within 15 days of their passing
9. Notice of the court order sanctioning the scheme shall be filed with the Commission within 15 days of its making.

Gomez Corporate Consult LTD is an all encompassing corporate firm with seasoned legal practitioners & chartered secretaries with in-depth knowledge and experiences in the Nigerian corporate system.

For all corporate post-incorporation applications & filings, contact us via 08107804290 or 0812794272, mail info@gomezconsult.com and our professionals will be there to assist you.