Constitution - S. 39 - 45

S. 39 - No requirement for company to have constitution
1. May but does not need to
S. 40 - Effect of Act on company having constitution
1. the rights, powers, duties, and obligations of the company, the Board, each director, and each shareholder of the company shall be those set out in this Act
  1. Company having a constitution
    1. restricted, limited or modified by the constitution of the company in accordance with this Act.
2. the form of constitution of a private company shall be in the form set out in the Second Schedule.
  1. May exclude or modify the provisions of its constitution to the extent permitted
S. 41 - Effect of Act on company not having constitution
1. the rights, powers, duties, and obligations of the company, the Board, each director, and each shareholder of the company shall be those set out in this Act.
S. 42 - Form and content of constitution
1. company incorporated under Part III
  1. a document certified by the applicant for registration of the company
2. a private company incorporated under Part III
  1. the constitution set out in the Second Schedule;
3. an existing company
  1. the memorandum and articles of association as originally registered or as altered in accordance with the Companies Act 1984 or the Companies Act 1913
    1. have the effect stated in section 28
      1. Validity of action
4. adopted by the company as its constitution under S. 44
  1. When the company does not have a constitution
5. Document considered as being a new form of constitution
  1. S. 45 refers back to document altered by the company under S. 44 or varied by the Court under S. 178
    1. the Court considers that it is just and equitable to de so, it may make such order as it thinks fit including, altering or adding to the company's constitution
6. S. 27(3) - the provision restricts the capacity of the company or rights, powers, and privileges.
  1. matters that can be included
7. the constitution of a company and any amendment to the constitution shall be certified by a law practitioner, a legal consultant or a law firm and need not be embodied in a notarial deed.
S. 43 - Effect of constitution
1. shall be void to the extent that it contravenes, or is inconsistent with the Companies Act 2001
2. Effect of a contract
  1. as between the company and each member or shareholder
  2. as between the members or shareholders themselves.
3. All money payable by any member to the company under the constitution shall be a debt due from him to the company.
$. 44 - Adoption, alteration and revocation of constitution
1. The shareholders or members of a company may, where the company does not have a constitution, by special resolution, adopt a constitution for the company.
2. the shareholders of a company may, by special resolution, alter or revoke the constitution of the company.
  1. sections 67, 80 and 114
  2. sections 67, 80 and 114
3. An existing company
4. An existing company
  1. shall not alter any of the provisions in its existing memorandum of association or articles of association unless it replaces its memorandum of association and its articles of association by a single document into which it consolidates its constitution.
    1. for dispensation from this requirement - the Registrar is satisfied that undue hardship would be caused to the company by requiring compliance and that it is necessary that the alteration be made promptly, the Registrar may grant the dispensation on such terms and conditions as the Registrar thinks fit.
5. Within 14 days of the adoption of a constitution by a company, or the alteration or revocation of the constitution of a company, as the case may be, the Board shall cause a notice in a form approved by the Registrar to be delivered to the Registrar for registration.
S. 45 - New form of constitution
1. A company may deliver to the Registrar a single document that incorporates the provisions of a document referred to in section 42(1)(f) together with any amendments.
  1. The Registrar may, where he considers that by reason of the number of amendments to a company's constitution it would be desirable for the constitution to be contained in a single document
    1. notice in writing, require a company to deliver to the Registrar a single document that incorporates the provisions of a document referred to in section 42(1)(f), together with any amendments.
      1. the Board shall, within 28 days of receipt by the company of the notice, cause to be delivered to the Registrar
        the document for registration
        On receipt of the document -the Registrar shall register the document.
        a certificate signed by a person authorized by the Board
When is it necessary to have a Constitution?
1. S. 27(3) - The constitution of a company may contain a provision relating to the capacity, rights, powers, or privileges of the company only if the provision restricts the capacity of the company or those rights, powers, and privileges.
2. S. 40 (1) - Where a company has a constitution, the rights, powers, duties, and obligations of the company, the Board, each director, and each shareholder of the company shall be those set out in this Act except to the extent that they are restricted, limited or modified by the constitution of the company in accordance with this Act.
3. S 46(2) - is linked with S. 46(3) which states that - Subject to section 59, the rights specified in subsection (2) may be restricted, limited, altered, or added to by the constitution of the company or in accordance with the terms on which the share is issued under section 51 or 52, as the case may be.
  1. Subject to subsection (3), a share in a company shall confer on the holder - (a) the right to one vote on a poll at a meeting of the company on any resolution; (b) the right to an equal share in dividends authorized by the Board; (c) the right to an equal share in the distribution of the surplus assets of the company.
Constitution of a Private company
1. Second Schedule
  1. Can be altered
    1. S. 42 (2)
    2. S. 42 (3)
      1. The Form of the constitution
    3. S. 46 (2)

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Constitution - S. 39 - 45

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