Abstract

The Nigerian Companies and Allied Matters Act (CAMA) 2004 came into force on 2 January 1990. It provides the procedure for the removal of secretaries of public companies for alleged misconduct by the directors of public companies which said procedure accords them an opportunity to defend themselves before they can be removed for alleged misconduct. Thus, the employment of secretaries of public companies is protected by statute in Nigeria. There are, however, no statutory provisions in the CAMA 2004 on the procedure for the removal of secretaries of private companies for alleged misconduct by directors of private companies. In short, the Act is silent on the subject. This lacuna is being abused, as some directors of private companies in Nigeria have sought sanctuary under it to remove secretaries of private companies for alleged misconduct without giving them an opportunity to defend themselves. Although, no statutory procedure is in the CAMA 2004 on the removal of secretaries of private companies for alleged misconduct by directors of private companies, this article examines the power of removal of secretaries of private companies for alleged misconduct by directors of private companies in Nigeria and draws an analogy against the backdrop of the provisions of the CAMA 2004 with respect to the removal of secretaries of public companies for alleged misconduct, the provisions of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, the common law rules of natural justice, case law as well as the provisions of International human rights instruments. It is the view of the writer that the removal of secretaries of private companies for alleged misconduct by directors of private companies in Nigeria without giving them an opportunity to defend themselves is discriminatory and contrary to section 36 of the CFRN 1999, the common-law rules of natural justice, international human rights instruments and international best practices. Notwithstanding the fundamental differences between private companies and public companies, the writer suggests, among other things, the amendment of the Act to provide the procedure for the removal of secretaries of private companies for alleged misconduct by directors of private companies which said procedure must accord them an opportunity to defend themselves before they can be removed for alleged misconduct by directors of private companies. This is in line with the ‘equal protection of the law and non-discrimination’ principle as enunciated in section 42(1)(a) and (b) of the CFRN 1999 and international human rights instruments; right to a fair hearing as guaranteed under the common-law rules of natural justice, section 36 of the CFRN 1999 and international human rights instruments; international best practices; and the rule of law.