NBA Abuja Engages CAC, Makes Recommendations On Embargo On Search, Consent To Reserve Name & Dispatch Of Documents By Courier

The Abuja Branch (Unity) of the Nigeria Bar Association has called on the Registrar General of the Corporate Affairs Commission(CAC), Alhaji Garba Abubakar to review the recent policies of the commission.

This was disclosed in a letter signed by the branch chairman and secretary, Bulus .Y. Atsen and Eric Ibe, dated 27th July, 2020, and made available to TheNigeriaLawyer(TNL).

Recall the Commission recently came up with the requirement of applying for consent to reserve names under Part “C” of the Companies and Allied Matters Act. On the 23rd July, 2020, customers woke up to another policy by the Commission requiring documents to be dispatched to customers through courier companies at a cost to be borne by the customers.

Based on this the branch EXCO has at different occasions, engaged the Commission which had the Special Assistance to the Registrar General, Tever Ayua-Jor represent him with the view to probing each of the policies initiated by the Commission and calling for their reversal until the ideas are properly thought out before execution.

The Chairman of the NBA Abuja Branch, Bulus Atsen, in the letter to the Alhaji Garba Abubakar identified three heads of polices which the Branch has called on the Commission to review.

One of the issues raised by the branch is the embargo on company searches by customers.

According to him this has greatly complicated the due diligence process and has led to unforeseen consequences of long delays (up to 3 months) and grievous mistakes in the search reports conducted by the Staff of the Commission.

“With thousands of applications yet to be made due to the delay in the process, this policy has stalled lots of commercial transactions like account openings and loans processing which are dependent on due diligence and company searches.

“More importantly, the embargo runs counter to Section 580 of the Companies and Allied Matters Act which creates an actionable right of access to books, register or file of registered documents for purposes of conducting Due Diligence Searches.

Speaking on the issue of commission’s consent to reserve names under Part “C” of CAMA he said the requirement for Consent as contemplated by the Company and Allied Matters Act is reserved for restricted words or names and cannot be construed to apply to an entire class of Corporate Entities such as Incorporated Trustees. That it is essentially an encroachment on the Right to Freedom of Expression and Freedom of Association.

On the third issue which is dispatching of documents to customers by courier, not totaling agreeing with their mode of dispatching certificates to the customers said contracting the service out means that the commission is delegating their duties to outsiders.

“While appreciating the need for a reorganized dispatch process, the policy of dispatch by courier is tantamount to outsourcing a primary statutory function of the Commission to a 3rd Party. After the first day of operations, we have received complaints of the courier companies either charging outrageous amounts or putting calls across to the directors of the companies, an act which embarrasses the Commission, our members, and their clients.”

The further proffered six vital recommendations on the way forward which include

1. Consent: This requirement be reversed, given that it does not have any statutory basis. Security agencies which have concerns with the names of entities to be registered under Part “C” can make recourse to advertorials made on national dailies for the purpose of raising specific objections as provided by law.
2. Search/Due Diligence: The same protocol which applies to the staff of the Commission should be applied to a restricted number of customers daily to enable them conduct searches within a specific period under strict surveillance pending when registration is made available to the public online.
3. Dispatch: Customers should be allowed to dispatch documents the manner the Commission instituted immediately after resumption from the lockdown. They should have dispatch by courier or return mail as option and should also be able to batch multiple certificates in a single delivery. This batching can be done through an interface on the Customer Registration Portal (CRP) without the need for extensive physical sorting.
a. The process of selecting the courier companies should be in line with the Public Procurement Act.
b. The names of all corporate entities registered from the date of resumption from the lockdown and whose certificates are domiciled at the Customer Service Unit should be saved in a PDF format from the system and made public to enable customers easily identify and dispatch their certificates.
4. Engaging Stakeholders: Despite the restrictions on physical meetings brought about by Covid-19, the Commission can still engage with stakeholders in the administration of CAMA through virtual meeting platforms like Zoom.

The branch, therefore, urged the Registrar to consider the recommendations and act accordingly in the best interest of the general public, the Commission and lawyers.