Division 6 of Part X of the Companies Act 1997 treats the company secretary as optional.
Section 169(1) and (2) — optional, but if appointed, resident
(1) A company may have a secretary.
(2) Every secretary shall be a natural person ordinarily resident in the country.
A secretary must be a natural person — a corporate secretarial company cannot itself hold the office, though its staff may. And the secretary must be ordinarily resident in the country, without exception.
Compare the directors: section 128 requires at least one of the directors to be ordinarily resident here, and section 129(3) likewise forbids a body corporate from being a director. For the secretary, every secretary must be resident.
Note that section 13(2)(b) requires the application for registration to state the number of persons (if any) named as secretaries — the words “if any” confirming that the office is optional.
Section 169(3) — who acts when there is no secretary
(a) by or in relation to an assistant or deputy secretary; or
(b) where there is no assistant or deputy secretary capable of acting, by or in relation to a person authorised generally or specifically for the purpose by the board.
So nothing in the Act is blocked by the absence of a secretary. The board can simply authorise someone — generally, or for the particular matter.
Section 169(4) — the secretary has no inherent authority
A secretary shall have only such rights, powers, and duties in relation to the company as are given to him by this Act or by the constitution or board of the company.
The Act confers almost nothing on the secretary directly. Everything else comes from the constitution or from the board. A company appointing a secretary should therefore record the scope of the role by board resolution — typically maintaining the company records and registers, convening meetings and keeping minutes, and filing with the Registrar.
Two points follow for outsiders. First, under section 19(1)(c) and (d) a company cannot assert against a person dealing with it that someone held out as an officer lacked the authority such a person customarily has — so a secretary held out as authorised may bind the company notwithstanding section 169(4). Second, a secretary to whom a board power or duty is directly delegated may become a director for the purposes of sections 112 to 127, 344 and 350, under section 107(1)(c).
Section 170 — appointment, consent and notice
(1) The secretary shall be appointed by the board.
(2) A person shall not be appointed unless he has consented in writing in the prescribed form to be the company’s secretary.
Appointment is a board matter, unlike the appointment of directors, which under section 131(2) is for the shareholders by ordinary resolution unless the constitution provides otherwise. The written consent requirement mirrors section 130 for directors — though for a secretary there is no certification of non-disqualification, because the section 129 disqualifications do not apply to the office.
The board shall ensure that notice in the prescribed form of —
(a) the appointment of a secretary after incorporation; or
(b) a change in the secretary; or
(c) a change in the name or the address or the postal address of the secretary,
is submitted to the Registrar within one month of (i) the change occurring, in the case of a change in the secretary; or (ii) the company first becoming aware of the change, in the case of a change in the name, address or postal address.
A company shall keep at its registered office a signed consent by each new person named as secretary, in the prescribed form, and produce it to the Registrar when required by written request.
Where the board fails to comply with this section, every director commits an offence, penalty as in section 414(2).
The structure exactly parallels section 137 for directors, and section 13A(2) requires the same consent to be held at the registered office for a secretary named at incorporation.
Removal, and what happens then
The Act does not prescribe a removal procedure. Because the secretary is appointed by the board under section 170(1), the board may remove them — subject to the secretary’s contract of employment and to the Employment Act (Chapter 373) where the secretary is an employee.
On removal or resignation the board must file the section 170(3)(b) notice within one month, and may rely on section 169(3) in the interim: the functions may be performed by an assistant or deputy secretary, or by a person the board authorises.
Practical points
- Decide whether you need one. A small company with an active director and an external accountant often does not.
- If you appoint one, define the role by board resolution — section 169(4) gives the secretary nothing by default.
- Check residence. Every secretary must be ordinarily resident in the country, and must be a natural person.
- Obtain the written consent in the prescribed form before appointment, and keep it at the registered office.
- File within one month of appointment or change — the offence falls on every director.
- Do not assume the secretary can sign. Contracting authority comes from section 155 and from the board, not from the office.
- Watch the delegation point. A secretary exercising board powers with the board’s consent or acquiescence may be a director under section 107(1)(c), with all the duties that carries.
Sources
- Companies Act 1997 — ss 13, 13A, 19, 107, 112–127, 128–131, 137, 155, 164, 169, 170, 344, 350, 414
- Employment Act (Chapter 373)
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.