By Benedict Olutan, Associate (Corporate Advisory & Energy)
The Corporate Affairs Commission (CAC) by a Public Notice dated the 31st of July, 2023 expressed its intention to delist or strike-off names of companies who have neglected or failed to file annual returns, from its register. The Commission says companies that fail to take steps to file its annual returns within 90 days of publication shall have their names struck off from the Register. In this article, we shall bring to light the legal implication of failure to file Annual Returns by companies and the legal remedy in the event of non-compliance.
FILLING OF ANNUAL RETURNS
By Section 417 of Companies and Allied Matters Act (CAMA), 2020, every company shall, once in every year, make and deliver to the Commission an annual return in the form stipulated by the Act. Let it be quickly stated that a company need not file Annual Returns in the (first) year of its incorporation, nor in the following year if it is a small company or a company having a single shareholder. Clearly, filing of Annual Returns is a statutory obligation on duly registered companies, business names and incorporated trustees aimed at confirming to the Commission that they are still a going concern and to update their records.
By Section 421 of CAMA, 2020, the annual returns shall be completed and signed by the Director and the Secretary of the company and must be delivered to the Commission not later than 42days after the Annual General Meeting of the company. However, the company may apply to the commission for extension of time within which to file its annual return for any given calendar year.
LEGAL IMPLICATION OF FAILURE TO FILE ANNUAL RETURNS
By Section 425(1) of CAMA, where a company fails to file annual returns as mandated, such company and every director in that company are liable to a penalty as may be prescribed by the Commission. Importantly, any company which fails to make annual returns to the commission is at the risk of having its name being struck off from the Register of Companies. Further, any post-incorporation filing at the CAC by a defaulting-company may not be processed by the Commission unless and until the arrears of annual returns are filed.
STRIKING OFF THE NAME OF A COMPANY
Where the Commission does not, within 90 days of the last publication of names of (10 years consecutive) defaulters, receive any response from the company that it is carrying on business or in operation, it may strike off the name of the company from the Register of companies.
The poser that comes to mind at this juncture is, if a company’s name is struck off from the register of companies, does it have same effect as the company being wound up? It is our considered view that by Section 571(b) (f) of CAMA, a company whose name has been struck off by the Commission might have itself dance to the tune of compulsory winding up by a Court. A struck off company is therefore a dying company which is at the risk of being given a befitting burial by the Court, especially where such company has failed, refused and/or neglected to make annual returns to the commission for a consecutive period of 10 years.
Interestingly, striking off the name of a company does not divest the directors or managing officers of their liabilities incurred prior to the company’s name being struck off. By Section 692(5)(a) of CAMA, 2020, the existing liability, if any, incurred by directors, managing officers and member of the company shall continue and may be enforced as if the company has not been struck off.
RESTORATION OF A STRUCK-OFF COMPANY: HOW?
First, upon the publication of the Notice to Delist, the first aid is for the company to inform the Commission that it is an ongoing concern and to duly file all necessary annual returns. In the event that this was not quickly done within 90 days of publication and the Commission goes ahead to strike-off the company’s name, it is our considered view that this does not immediately escort the company into extinction.
Instructively, Section 692(6), CAMA 2020 empowers any company or its member or creditor aggrieved or concerned about the striking off of its company’s name from the register, to apply to the Court for an order to restore the name of such company to the register of companies, at any time before the expiration of 10 years from the date of striking off the name of such company. The applicant must satisfy the court that at the time of the striking off, the company was carrying on business or was in operation or that, it is just and expedient to restore it to register of companies.
Upon granting of the order to restore such company to the Register of companies, the court may make in addition, such order or directions the Court deems fit to make in the circumstances and provisions may be made therein for placing the company and all other persons in the same position, as nearly as possible, as if the name of the company had not been struck off the register. Finally, the court order shall be delivered to the Commission for registration and re-listing of the company’s name to the Register of Companies.
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