Incorporation under the Companies Act 1997 is an administrative process, not a discretionary one. If the application is properly completed, registration follows.
Section 12 — who may apply
Any person may, either alone or together with another person, apply for registration of a company under this Act, despite the contrary in any other Act.
Three points follow. There is no minimum number of promoters — one is enough. “Person” includes a body corporate, so a company may incorporate a subsidiary. And the closing words override contrary provisions in other legislation.
A foreign enterprise must be certified under the Investment Promotion Act 1992 before carrying on business in the country — incorporating the company is one step, certification is another. And under sections 425, 426 and 428, a person may be prohibited from being a director or taking part in the management of a company; incorporating a new company does not cure that.
Section 13 — what the application must contain
(a) in the prescribed form; and
(e) accompanied by a notice reserving a name for the proposed company; and
(f) where the proposed company is to have a constitution, accompanied by a certified copy of the constitution.
(a) the number of persons named as directors; and
(b) the number of persons (if any) named as secretaries; and
(c) the postal address; and
(d) the registered office; and
(e) the address for service.
Paragraph (f) applies only where the proposed company is to have a constitution. Under section 27, a company may, but does not have to, have a constitution. Without one, the Act itself supplies the rules — see section 29.
Section 13A — the consents that stay at the office
(1) a director; and
(2) a secretary; and
(3) a shareholder, or their authorised agent — together with any documents authorising an agent to act on behalf of a shareholder;
and shall produce them to the Registrar when required to do so by written request.
Section 13A does not require the consents to be lodged with the application. It requires them to be held at the registered office and produced forthwith (or, for shareholder consents, immediately) on written request. A company that cannot produce them on demand is exposed under section 413, and its directors under section 414.
Section 130 makes the same point for directors from the other direction: a person shall not be appointed a director unless they have consented in writing and certified that they are not disqualified.
Sections 14 and 15 — registration and the certificate
As soon as the Registrar receives a properly completed application under section 13 (or section 442, for an existing company electing to register), the Registrar shall — (a) register the application; and (b) issue a certificate of incorporation in the prescribed form.
A certificate of incorporation is conclusive evidence that — (a) all the requirements of this Act as to registration have been complied with; and (b) on and from the date of incorporation stated in the certificate, the company is incorporated under this Act.
“Conclusive evidence” means the company’s existence cannot be attacked by showing a defect in the paperwork. From the stated date the company is a separate legal entity under section 16, with full capacity under section 17.
The steps in order
| Step | Provision |
|---|---|
| 1. Reserve the name — the reservation lasts two months unless sooner revoked | ss 21, 23 |
| 2. Decide whether to have a constitution, and settle it if so | ss 27–31 |
| 3. Identify the directors, checking residence and disqualification | ss 128–130, 425, 426, 428 |
| 4. Fix the registered office, postal address and address for service | ss 13(2), 161, 167 |
| 5. Obtain the signed consents and keep them at the registered office | s 13A |
| 6. Lodge the prescribed application with the fee | ss 13, 396, 411 |
| 7. Receive the certificate of incorporation | ss 14, 15 |
| 8. Set the company up — issue shares, open the share register, start the company records | ss 42, 67, 164 |
Shares on registration
Under section 42, shares are issued on registration to the persons named in the application as shareholders, in the numbers stated — and section 46A deals with the consideration for shares issued on registration. So the shareholding is settled at incorporation and does not require a separate board resolution.
- Letting the name reservation lapse. It is available for two months from the date stated in the Registrar’s notice.
- Naming a resident director who does not exist. Section 128 requires at least one director ordinarily resident in the country.
- Adopting a constitution copied from elsewhere. Under section 17(2), capacity provisions may only restrict; and section 31 sets what a constitution may contain.
- Forgetting the consents under section 13A.
- Assuming incorporation is enough for a foreign investor — certification under the Investment Promotion Act 1992 is separate.
Sources
- Companies Act 1997 — ss 11–17, 21, 23, 27–31, 42, 46A, 67, 128–130, 161, 164, 167, 396, 411, 413, 414, 425, 426, 428, 442
- Investment Promotion Act 1992
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.