Annual
Returns is to be filed once at least in every year at the Corporate
Affairs Commission provided that a company need not make a return under this
section either in the year of its incorporation or, if it is not required by
section 213 of this Act to hold an Annual General Meeting during the following
year, in that year: section 370 of the CAMA.
The time for its filing is within 42
days after the Annual General Meeting (AGM) for the year: section 374 of the CAMA.
Contents
of Annual Returns of a Company having Share Capital other than a Small Company:
(FORM CAC 10)
1. Name and Registered Certificate Number (RC No) of the company.
2. Address of the Registered Office;
3. Situation of the Register of members and Register of Debenture
holders;
4. Summary of Share Capital and Debentures;
5. Particulars of Indebtedness;
6. List of past and present members;
7. Particulars of Directors and Secretary.
Documents
to be Annexed to the Annual Returns of a Public Company
By section 375 of the CAMA, it is stated that subject to the provision
of section 377 of the CAMA exempting unlimited companies and small
companies, the Annual Returns must have annexed to it:
1.
A written copy, certified by a Director and the
Secretary of the company, to be a true copy of every balance sheet and profit
and loss account laid before the company in general meeting held in the year to
which the return relates.
2. A
copy certified by a Director and Secretary of the copy of the Auditors Report and the Report of the
Directors accompanying the balance sheet.
3.
Where the balance sheet contains amendments, the fact
that the copy has been so amended shall be stated on it.
Certificates
to be Annexed to the Annual Returns of a Private Company- section 376(1) of the CAMA.
In the case of a Private
Company, the Annual Return shall be accompanied by:
·
A certificate by a Director and the Secretary to the
effect that the company has not since the date of incorporation or last annual
return, issued any invitation to the public to subscribe for any share or debenture
of the company;
·
A certificate stating that the number of members does
not exceed 50;
·
Directives as to when certain companies are to start
and end their financial year. (Please note that by CBN Directive all Banks end
their financial year on 31st December of every year)
Conditions
for a Small Company: (section
351 of the CAMA)
A company qualifies as a
small company in a year if for that year the following conditions are satisfied:
(a)
it is a private company having a share capital;
(b)
the amount of its turnover for that year is not more
than N2 million or such amount as may be fixed by the Corporate Affairs Commission;
(c)
its net assets value is not more than N1 million or such amount as may be fixed
by the Corporate Affairs Commission;
(d)
none of its members is an alien;
(e)
none of its members is a Government or a Government
corporation or agency or its nominee; and
(f)
the directors between them hold not less than 51 per
cent of its equity share capital.
Certificate
to be Annexed to Annual Returns of Small Companies
For a small company, in addition to the documents required
in section 376(1) of the CAMA, it
shall deliver to the Corporate Affairs Commission, a certificate signed by a director and the secretary
that:
a. It is a private company limited by shares.
b. The amount of its turnover for that year is not more than N2 million
or such amount as fixed by the Corporate Affairs Commission.
c. Its net assets value is
not more than N1 million or such
amount as fixed by the Corporate Affairs Commission.
d. None of its members is an alien.
e. None of its members is a government, a government agent or
nominee.
f. the directors among them hold
not less than 51% of the equity share capital of the company: section 376(2) of the CAMA.
Obligation
to File Annual Returns
The obligation to file
Annual Return starts after incorporation.
The Annual Return shall be completed,
signed by both a director and a Secretary and filed at the Corporate Affairs Commission within 42 days after the Annual
General Meeting for the year, whether or not that meeting is the first or only ordinary general meeting of the
company in that year: section 374 of the CAMA.
Every company must at least once every year make and
deliver to the Corporate Affairs Commission (CAC) an Annual Return or have in
the form and containing the specified matters relating to the company: section 370 of the CAMA, for companies
limited by shares or guarantee.
Forms
of Annual Return by Companies
The Annual Return shall be
in the form stated in the following schedules of PART A of CAMA. Schedule 8 is for a company having share capital other
than small company. Schedule 9 is for a small company. Schedule 10 is for a Company
Limited by Guarantee. Other forms are as follows. Form CAC/BN/7 is for the
Annual Returns of Business Names. Form CAC/IT/4 is for the Annual Returns of
Incorporated Trustees.
Consequences
of Failure to File Annual Returns
i.
Penalty: By section
378(1) of the CAMA, there is a penalty of N1000 for a public company and N100
fine for a private company. Please note that these penalties can be changed
at any time.
ii.
It is an offence and directors are
guilty and liable with the company to the penalty of fine.
iii.
Striking
off a defunct company: By section 525 of the CAMA, the Corporate Affairs Commission can assume
a company’s failure to file Annual Returns as an indication that it is defunct
and no longer a going concern. Accordingly, the Corporate Affairs Commission
complying with the proper procedure, may proceed to strike off the Name of the
company. Please note that in any
case, where any existing liability incurred by the Directors and officers
subsists, the court can still formally
wind up the company.
Proper
Procedure to be Adopted By the Corporate Affairs Commission to Strike-Off
Defunct Company:
section 525 of the CAMA.
1.
The Corporate Affairs Commission sends a letter
inquiring whether the company is carrying on business or in operation
requesting the company to reply within
one month.
2.
If within one
month, no response is made by
the company to the Corporate Affairs Commission, the Corporate Affairs Commission
(CAC) shall within 14 days of expiration
of the one month write a second
letter referring to the first letter and giving another one month to respond and stating that after that one month, the Corporate Affairs Commission (CAC) would
publish a Notice in the Gazette with
a view to striking the name of the company off the Register of companies.
3.
If within one
month, the Corporate Affairs Commission (CAC) receives an answer confirming
that the company is not carrying on business or in operation or the company
fails to respond, after expiration of
the one month (that is to say the 2nd one month), the Corporate Affairs
Commission (CAC) may publish in the
Gazette and notify the company by post that at the expiration of 3 months from the date of the notice, it shall proceed to strike off the
name of the company from the Register and the company shall be dissolved.
Procedure
to Restore a Struck Off Company
By section 525(6) of the CAMA, where a company’s name is struck off
the Register of Companies by the Corporate Affairs Commission (CAC), it can be
restored when;
1.
An application is made to the Federal High Court (by
any company or member or creditor) within
20 years of publishing the Notice to restore the company to the Register.
2.
If the court is
convinced it would make an order restoring the company in the Register of
companies at the Corporate Affairs Commission (CAC), the court may give an
order placing the company and other persons in as nearly the same position as
if the name had not been struck off the Register.
3.
The Restoration takes effect upon delivery to CAC a
Certified True Copy of the court order.
Enforcement
of Return
By section 565 of the CAMA; within
14 days after service on the company by the Corporate Affairs Commission (CAC),
a Notice to file its Annual Return as required, a member, creditor or the Corporate Affairs Commission (CAC) can apply to the Federal High
Court by way of Originating Motion/Summons to Order the company to comply, by
filing its Annual Returns. Please note that it is the duty of the Corporate Affairs
Commission to serve on a company a Notice to File Annual Return.