Corporate Governance is concerned with practices and procedures for trying to ensure that a company is run in such a way that it achieves its objectives. Its principles set out and allocate responsibility to various stakeholders in the corporate organization. Good corporate governance thrives successfully when anchored upon some guided principles. These principles are as follows: the right of shareholders, the equitable treatment of shareholders, the role of stakeholders in corporate governance, the role of regulators, disclosure and transparency, the responsibilities of the board and the role of auditors and audit committee.
Specific Principles of Corporate Governance in Nigeria
The Companies and Allied Matters Act 2020 has been the major law regulating corporate governance in Nigeria for decades. It provides some mechanisms for good corporate governance among which are appointment of directors by the company, removal of directors by ordinary resolution, duties and liabilities of directors, provisions for auditors and audit committee, disclosure provisions, mandatory
The Companies and Allied Matters Act 2020 has been the major law regulating corporate governance in Nigeria for decades. It provides some mechanisms for good corporate governance among which are appointment of directors by the company, removal of directors by ordinary resolution, duties and liabilities of directors, provisions for auditors and audit committee, disclosure provisions, mandatory involvement of shareholders in some corporate decisions. Simply put differently, it is noteworthy to state that the Companies and Allied Matters Act 2020, in an attempt to codify salient common law principles, explicitly provided for various duties of directors. Prominent sections on this regard provide as follows: that a director owes a fiduciary relationship towards the company; should act in the best interest of the company at all times; exercise his powers for the specified purpose and not collateral purpose; that the duties of a director should not conflict with his personal interest; that a director must discharge his duties honestly and in good faith, with all degree of skill and care which a reasonable and prudent director will exercise in comparable circumstances.
The objects of these statutory admonitions form part of an intricate web whose objective is to establish a code of corporate governance. From the foregoing, it is apparent that standards of corporate governance refer to ideal injunctions, which conformity ensures the protection of the corporate interest of companies, their members, employees, creditors and the public while enhancing the profitability of enterprises. In 2003, at the instance of the Securities and Exchange Commission and the Corporate Affairs Commission, code of best practice on corporate governance in Nigeria was released with the objective set out as follows:
A code to make provisions for the best practice to be followed by public quoted companies and for all other companies with multiples stakeholders registered in Nigeria in the exercise of power over the direction of the enterprise, the supervision of executive actions, the transparency and accountability in government of these companies within the regulatory framework and market and, for other purposes connected therewith.
Subsequently, the Securities and Exchange Commission (SEC) Code 2011; the Central Bank of Nigeria (CBN) Code 2006; the National Insurance Commission(NAICOM) Code and the Pension Commission (PENCOM) Code, were issued and released by the respective regulatory institutions to entrench the observance of the principles of corporate governance by the corporate entities under their watch and regulation. Other sources of corporate governance in Nigeria include: Mortgage Institutions Act; Listing Rules of the Stock Exchange; Code of Corporate Governance for Banks and Discount Houses in Nigeria and Guidelines for Whistle Blowing in the Nigerian Banking Industry; Code of Corporate Governance for Public Companies in Nigeria; Code of Conduct for Capital Market Operators and their Employees; etc. However, it is noteworthy to state that the compliance with the provisions of the SEC Code is merely advisory and not obligatory, whereas the observance of the Central Bank of Nigeria (CBN) Code is mandatory on all banks and financial institutions in Nigeria.
Ensuring that one is answerable for one’s actions.
·Openness/Honesty/Transparency – acting with sincerity, clarity, uprightness and candour.
·Independence – ability to take decisions without influence.
·Responsibility- acting responsibly and taking responsibility for one’s actions.
·Integrity/ Ethical conduct- maintaining conducts that commands the trust and
respect of others. Doing things right even when it appears one can get away
with doing otherwise.
·Reputation/ Reputational Risk- include being perceived as being upright and of
CORPORATE GOVERNANCE UNDER COMPANIES AND ALLIED MATTERS ACT 2020
CAMA 2020, has made intentional efforts to see to the efficient, accountable and transparent management of companies in Nigeria. This can be seen in the areas of directors, secretaries, audit and auditors, meetings, corporate finance. The following sections are to be considered.
Directors: In accordance with the corporate governance code, directors of public companies are now required to disclose not only their age at appointment, but also previous directorships in other public companies before taking up new appointments. A person, cannot be a director of more than five public companies at the same time. Upon nomination as a director, such persons must disclose their existing positions on the board of other public companies before taking on new appointment and anybody who before the enactment of this act was a director in more than five companies, has two years to comply with this provision. Additionally, CAMA 2020, now requires public companies to maintain a minimum of three (3) independent directors at all times. While the foregoing is limited to public companies, small companies are now permitted to have a minimum of one director. A small company being a private company that has an annual turnover of N120, 000, 000 and net asset value of not more than N60, 000, 000, with no foreigner as its member and 51% share capital own by the directors. Also, any person, (shareholder) who nominate candidate for the board who would
comprise a majority of the members of the board shall nominate at least three persons who would be independent directors.
All companies must now keep a register of directors address residential addresses. This register shall state the usual residential address of each director of the company. If a company fails to comply with this provision, it will be on default and liable to a fine as the commission may specify.
Meetings: In keeping with contemporary realities imposed by the outbreak of the global pandemic Covid 19, CAMA 2020, now permits the use of electronic means for meeting purposes so far as such meetings are conducted in accordance with the articles of the company. This is to facilitate attendance of members in a meeting at minimal cost. However, this concession is limited to private companies, as all public companies are still required to hold meetings physically. Also, statutory and annual general must be held in Nigeria.
The ordinary business of a company’s annual general meeting (AGM) has been amended to include the remuneration of its managers. According to the new provision, a company’s ordinary business includes the following:
Examining financial statements
Director appointment and removal
Appointing and compensating auditors (optional for small businesses)
Appoint a member to the audit committee (optional for small companies)
Disclosure of the compensation paid to the company’s executives
Company Secretary: All companies were previously required under CAMA 1990 to appoint a company secretary. This position has since been amended to exempt small companies from the mandatory appointment of a company secretary. In light of the fact that the CAMA, 2020 makes it optional for small companies, it should be stated that the importance of a company secretary cannot be overstated as it ensures the company’s administrative effectiveness.
Public companies are required to appoint a secretary within six months after the commencement of this Act in a situation where there was none. Where a person is appointed secretary of a company, a letter by such person consenting to act in that capacity shall be included in the documents to be filed at CAC.
Restriction on the President/CEO Position in a Private Company: To strengthen the protection of a company’s minority shareholders, the CAMA 2020 prohibits private companies from appointing a director to the position of Chairman and Chief Executive Officer.
Significant Control and Substantial Interest: To further ensure transparency in corporate governance, CAMA 2020 has extended the requirement to notify the company in writing of significant control or divestment of shares. Previously, this obligation applied only to public companies. This is no longer the case, as shareholders with a majority stake in any type of company are now required to make such disclosures. Notably, CAMA 2020 makes no definition of what constitutes significant control.
This is critical because both private and public companies are required to disclose significant controlling interests. The term “significant shareholder” as defined in Section 120 (2) of CAMA, 2020, applies only to public companies. Regardless, it is reasonable to assume that the same should apply to private businesses. Additionally, CAMA 2020 redefines a shareholder’s percentage interest in order to qualify as a substantial shareholder if the shareholder holds at least 5% of total voting rights. This is in contrast to the 10% cap imposed by the now-defunct CAMA 2004.
Shareholders’ Pre-Emptive Rights: In the case of private companies, the transfer of shares is governed by the company’s articles of association. CAMA 2020, on the other hand, now places some restrictions on the manner in which shares may be transferred in relation to existing shareholder rights. Although the term “pre-emptive right of shareholders” is not unfamiliar in Nigeria’s corporate world, it has frequently been left to a company’s discretion.
Progressively, CAMA 2020 now codifies this right by clarifying that a company may not sell the shares without first offering them to existing members in proportion to their existing holdings. This implies that a when a public company wants to issue shares through public or private placement, it has to conduct a right issue to the existing shareholders first. As a result of the foregoing, existing shareholders are protected from undue dilution and are given preference over non-members of the company.
This safeguards shareholders against nefarious acquisitions of the company through third-party arrangements. Additionally, to the foregoing, CAMA 2020 now requires a private company to obtain the consent of all its members prior to making any sale that exceeds 50% of the total value of the company’s assets. Note that this provision may be varied by the articles of association.
Common seal: The CAMA 2020 has now made the usage of common seal optional and when a company decides to have one, the design and use of the seal shall be regulated by the articles and its name shall be engraved in legible latters. Thus, an authorized signature of a company is now sufficient to execute any contract entered into by the business.
Netting: Notably, the introduction of netting is one of the most notable additions to CAMA 2020’s financial contract provisions. The use of netting to help assess and reduce financial obligations was unknown under the repealed CAMA 2004. Thus, this new addition represents a quantum leap in terms of corporate governance in Nigeria, as it is consistent with international best practices. Netting agreements can now be concluded and enforced against
an insolvent party, guarantor, or other person providing security under the provisions of the CAMA 2020.
Audit Obligation: Generally, each company is required to appoint an auditor or auditors to audit its financial records and statements for the preceding fiscal year at its annual general meeting. This is no longer the case, as small companies and businesses that have ceased operations since incorporation (excluding insurance companies and banks) are now exempt from this requirement.
Additionally, public companies must now make their audited financial statements available on their website. Also, debtors of a company to the amount of N500, 000, shareholder or shareholder’s spouse of a company whose employee is an officer of the company, a person who is or whose partner is an employee of a debenture holder of the company and an employee of a consultant to the company who has been engaged for more than one year in the maintenance of any of the company’s financial records or preparation of any of its financial statements are disqualified from being appointed as auditors of the company.
PROBLEMS FACING CORPORATE GOVERNANCE IN NIGERIA
Corporate Governance In Nigeria Under The CAMA 2020 And The Nigerian Code Of Corporate Governance . divorced from the scourge of corruption, greed and avarice in the Nigerian society. To this effect, Denton-West JCA, in Balonwu v Obi, asserted as follows:
We lack good leadership in our body politic. A good leader is someone who is able to lead and has the ability to influence his people positively to attain and achieve greater heights for the good of humanity. A good leader is selfless and has only the interest of the people he is leading at heart. A leader’s action always has a rippling effect on the society. The leadership’s wrong actions can destroy the society and bring it to naught, while the acts of good and seasoned leaders could catapult our country Nigeria to the country we all dream about…a good leader should adhere to law and observe same.
The Issue of Leadership Ethics
It is pertinent to state that a company’s culture comprises of years of history, which includes its successes and failures, good and bad decisions and its individual and collective stories. Thus, the issue of corporate leadership in Nigeria cannot be divorced from the scourge of corruption, greed and avarice in the Nigerian society. To this effect, Denton-West JCA, in Balonwu v Obi, asserted as follows: We lack good leadership in our body politic. A good leader is someone who is able to lead and has the ability to influence his people positively to attain and achieve greater heights for the good of humanity. A good leader is selfless and has only the interest of the people he is leading at heart. A leader’s action always has a rippling effect on the society. The leadership’s wrong actions can destroy the society and bring it to naught, while the acts of good and seasoned leaders could catapult our country Nigeria to the country we all dream about…a good leader should adhere to law and observe same.
The Issue of Separation of Ownership from Control
Corporate governance is evidently a by-product of separation of ownership and control.
Thus, Adam Smith in giving credence to the agency relationship that exist between the members and the board, stated thus:
Directors being managers of other people’s money than their own, it cannot well be expected that they should watch over it with the same anxious vigilance with which the partners in a private company, frequently watch over their own. Negligence and profusion, therefore
The Issue Of Separation Of Ownership From Control Corporate governance is evidently a by-product of separation of ownership and control. Thus, Adam Smith in giving credence to the agency relationship that exist between the members and the board, stated thus: Directors being managers of other people’s money than their own, it cannot well be expected that they should watch over it with the same anxious vigilance with which the partners in a private company, frequently watch over their own. Negligence and profusion, therefore must always prevail more or less in the management of
the affairs of a joint stock company.This has therefore given rise to a number of stakeholder approaches to corporate governance which envisage that the directors and managers have other persons to serve apart from the shareholders. These persons include the employees, suppliers and host communities at large. This is technically referred to as Corporate Social Responsibility (CSR). Hence, a good corporate governance practice aids in reconciling the tension that exist between the shareholders and stakeholders. Accordingly, CSR isa business strategy to make the ultimate goals of a company more achievable and as well more transparent when making long term business decisions.
Ineffective Checks On The Powers Of Directors
It is self-evident that the Companies and Allied Matters Act 2020 makes veritable provisions for corporate checks to curb the arbitrary actions of the board, these checks, in most cases, are inefficacious and therefore inadequate to serve there genuine objectives. Illustratively, the residual duties of the members against the actions and inactions of the board is expressly provided for in section 87 (5) CAMA. These include the power of the members in general meeting to act if the board is disqualified or is unable to act because of a deadlock, the power to institute legal proceedings in the name of and on behalf of the company, power to ratify or confirm any action taken by the board of directors, and the power to make recommendations to the board regarding action to be taken by the board. Superficially, the above provision is highly commendable but in practice it is difficult because the deadlock which can induce the court to exercise its jurisdiction under the just and equitable clause must be a complete deadlock, which, most times, may not exist.
Regulatory Limitations On The Rights And Powers Of The Members Furthermore, the Companies and Allied Matters Act 2020 places several limitations on the rights and powers of the members thereby circumscribing the efficacy of the members in carrying out their oversight functions of monitoring and curbing the excesses of the board in the discharge of their duties. These limitations include the rights of members to attend and vote in meetings which is limited to the extent that the articles may provide that a member shall not be entitled to attend and vote if he has not paid all calls or sums payable by him in respect of the member’s shares in the company, the right to requisition extra ordinary general meetings which can only be exercised by the members having not less than
one-tenth of the paid up capital of the company, the right to approve and declare dividend, the right to demand voting by poll which is only available to members for the election of the chairman of the meeting and adjournment, the right to appoint and remove directors/ auditors.38In a similar vein, with respect to the declaration of dividend, members cannot declare the dividend until same is recommended by the directors. Furthermore, members can only declare what the directors recommend to them and not more. This therefore empowers the directors to frustrate the declaration of dividends for a period of time on the excuse that the payment will not be justified by the profits of the company or that after payment the company would be unable to pay its liabilities as they become due. It is noteworthy that the member’s right to appoint directors is usually not absolute. While they are empowered to appoint first directors,39 the appointment of subsequent directors is most times exploited by the board under the façade of filling a casual vacancy in the board.40The above stated statutory limitations act as a clog in the wheel of good practice of corporate governance in Nigeria.
The Issue of Supremacy and Control
It is a general presumption that the members in general meeting are the supreme organ of a company and that the board of directors are merely agents of the company who are subject to the control of the members in general meeting. However, this position appears to have been changed by subsequent decisions, which are now to the effect that the members in general meeting cannot interfere with the decisions of the directors unless they are contrary to the provisions of the Act or Articles.30
The above stated common law position was adopted in sections 87 (2) to (4) of the CAMA 2020. By sub section (2), the articles of association determines the sharing of powers between the two organs except otherwise stipulated in the Act. By virtue of section 87 (3) of the CAMA 2020, once the management of a company is given to the board of directors, it can exercise the power of management even if the articles of association is silent on the matter. Simply put differently, the board of directors is saddled with the day to day operations of a company.
Nonetheless, what appears to be a sword in the hands of the members in general meeting as evidently seen in section 87(4) CAMA 2020 is akin to a toothless bull dog which merely barks without causing any harm to its victim. This assertion is borne from the fact that the said section empowers the board of directors not to be bound to obey the directions of the members in general meeting except the articles says otherwise or if the board did not act in good faith and with due diligence. Unfortunately, the Act did not define the expression ‘good faith’ and ‘due diligence’. These enormous powers conferred on the directors have become a ground for the abuse of the exercise of their powers and a challenge to corporate governance in
The Issue of Supremacy and Control
It is a general presumption that the members in general meeting are the supreme organ of a company and that the board of directors are merely agents of the company who are subject to the control of the members in general meeting. However, this position appears to have been changed by subsequent decisions, which are now to the effect that the members in general meeting cannot interfere with the decisions of the directors unless they are contrary to the provisions of the Act or Articles.The above stated common law position was adopted in sections 87 (2) to (4) of the CAMA 2020. By sub section (2), the articles of association determine the sharing of powers between the two organs except otherwise stipulated in the Act. By virtue of section 87 (3) of the CAMA 2020, once the management of a company is given to the board of directors, it can exercise the power of management even if the articles of association is silent on the matter. Simply put differently, the board of directors is saddled with the day to day operations of a company. Nonetheless, what appears to be a sword in the hands of the members in general meeting as evidently seen in section 87(4) CAMA 2020 is akin to a toothless bull dog which merely barks without causing any harm to its victim. This assertion is borne from the fact that the said section empowers the board of directors not to be bound to obey the directions of the members in general meeting except the articles says otherwise or if the board did not act in good faith and with due diligence. Unfortunately, the Act did not define the expression ‘good faith’ and ‘due diligence’.These enormous powers conferred on the directors have become a ground for the abuse of the exercise of their powers and a challenge to corporate governance in Nigeria. This has paved way for the emergence of the board of directors as corporate monsters, while subjecting the shareholders to a subservient status in corporate administration.
CORPORATE ACCOUNTABILITY UNDER THE COMPANIES AND ALLIED MATTERS ACT 2020
In August 2020, President Muhammadu Buhari of Nigeria signed the Companies and Allied Matters Act (CAMA), putting in place a new registry that will enhance corporate accountability and transparency by disclosing persons with significant control of companies. According to Registrar General Alhaji Garba Abubakar, who leads the autonomous body responsible for the register, the OGP framework was the single most important platform used to achieve consensus amongst government and civil society stakeholders in support of the new law. Nigeria is also the recipient of the OGP MDTF implementation award, that will support the development of the infrastructure necessary for an effective beneficial ownership registry. This reform could mobilize domestic resources and fight corruption by making it harder for people to use anonymous companies to avoid taxation and contribute to illicit financial flows.
While the innovations to ease business have been reviewed quite exhaustively, the legislative document has not received its due credit on its key contributory role to corporate accountability and private sector governance, which it owes largely to the transparency clause requiring the disclosure of persons with significant control of companies in a register of beneficial owners. By extension, this provision which portends the efficient regulation of business entities, complements efforts towards greatly improving domestic resource revenue in its potential to address the curbing of illicit financial outflows, which costs the country around 17 billion US dollars ($17bn), annually to Nigerian and international companies operating within the Nigerian jurisdiction.
PROBLEM FACING CORPORATE ACCOUNTABILITY UNDER CAMA 2020.
Haven stated the innovations introduced under the CAMA 2020, geared towards making significant development in companies’ corporate accountability, one reoccurring challenge remains the implementation and compliance by companies to these regulations.
Below are some highlighted problems:
There needs to be inclusion by engaging key stakeholders and emphasizing gains and by providing ease of compliance. The integration process commenced two years ago by the Open Government Partnership in Nigeria, between the Corporate Affairs Commission (CAC) and Anti-corruption Agencies (ACAs), Bureau of Public Procurement (BPP), organized private sector (OPS) and other open contract and procurement-saddled institutions, somewhat guarantees the sustenance of the commitment. Also, while a large section of the organized private sector (OPS) is in support of this transparency and accountability drive, others have raised cogent concerns over information rights for public disclosure posing security concerns. This can however be addressed in process implementation by regulators (CAC) who have guaranteed secure accessibility to certain information.
The realization that both the government and the private sector must contribute their quota towards building Nigeria’s economy and drive development is now mainstream and progressive governments globally are designing policies and roadmaps to this end. It is necessary to note that the register will provide both checks and benefits to companies and the mentality that its establishment will benefit the country to the detriment of the OPS and multi-national enterprises (MNEs) should be eschewed. A true ecosystem of open governance must include open collaborative processes and it is imperative that even without a law, private sector operators like the OPS and CSOs should impose on their corporate governance structures, the principles, processes and values that make disclosure a default action and advocacy must be sustained for the paradigm shift for self-regulation by the OPS and CSOs to this effect.
With the establishment of the register, there is a new challenge as existing rules emphasize the need for accurate, reliable and up-to-date beneficial ownership information. According to a 2018 study on how well G20 and guest countries are implementing the G20 High Level Principles on Beneficial Ownership, no governments that collect beneficial ownership information, verify it. However, a paper published by the Tax Justice Network (TJN) proposed a way of checking the validity of data provided: an information technology system combined with advanced analytics to identify red flags.
The verification process involves ensuring that people in the official register are who they say they are (authentication), that those persons have agreed to be involved in a legal entity (authorization), and that all the registered data is valid (for example, the address exists and the purpose of the company is accurate). It also involves checks after the legal entity is set up to ensure information is up-to-date and to identify potential red flags. It proposes a verification process that is fully automated information technology system with human supervision with access to relevant data, held by national and foreign authorities for cross-checking and advanced analysis.
The process could be managed by the beneficial ownership or company register, or another public body that has experience with data analytics, such as financial intelligence units or tax authorities and the responsible body needs to be adequately resourced and empowered to conduct such checks.
This paper hereby strongly recommends as follows:
1. There should be a strict and total compliance with the codes of corporate governance and corporate accountability in Nigeria. Accordingly, the codes as put in place by the CAMA, SEC and other regulatory agencies in Nigeria, as well as the World Bank Corporate Governance Reports and the 1999 Organization for Economic Cooperation and Development (OECD) principles of corporate governance which was revised in2004 should not be allowed to be optional to companies but should be strictly enforced in order to achieve its desired goals;
2. Similarly, there is a dire need to ensure transparency and adequate check on the excesses of the corporate organs. Thus, the provisions of section 87(4) of the CAMA 2020, which excuses the board of directors from obeying the directions or instructions of the members in general meeting where the article does not provide otherwise should be amended. Also, the provisions of Section 280 (b) of the CAMA 2020 which limits the disqualification of appointment of directors for a period of ten years who commits any offence involving fraud, to include those found liable under Sections 668 to 670 of the CAMA 2020, which bothers on fraudulent acts of officers of a company detected in the course of liquidation;
3. Furthermore, the fiduciary duty of directors to act in the best interest of the company, employees and members under Section 305 (4) CAMA 2020 should be expanded to include suppliers, customers, host community and the environment. It is the submission of this paper that such amendment will further serve as a statutory basis for the practice of corporate social responsibility in Nigeria, rather than its present fluid and voluntary state.
In conclusion, these analysis of the concepts of corporate governance and corporate accountability under the Companies and Allied Matters Act would advertently help to improve the Nigerian business landscape by increasing the availability of commercial opportunities and corporate responsibilities both within the country and beyond international borders. However, the challenge faced in the corporate sector in Nigeria it’s the implementation and compliance of these provisions. It is hoped that the CAC’s implementation of the CAMA, 2020 will alleviate the burden of doing business in Nigeria and improve the Corporate governance in Nigeria.
 CAMA (repealed), s. 225 (1); CAMA 2020, s.249 (1).
 CAMA (repealed), s. 225 (5); CAMA 2020, s. 225(5)
 Isle of Wright Railway v Tahourdin 25 Ch.D, 320.
 Automatic Self- Cleansing Filter Syndicate Co v Cuninghame  2 Ch.D, 34; Shaw & Sons (Salford) Ltd v Shaw  2 KB, 113
 1. M. O. Sofowora, ‘Shareholders, Directors, Corporate Managers and the Balance of Power’  4, Law and Business Quarterly, 122
 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (University of Chicago Press: 1976), 264-265
 O. A. Onwumere, ‘The Evolving Interplay between Corporate Governance and Corporate Social Responsibility and its Legal Implications on Multinational Companies’  10, Journal of Corporate Governance, 2111
 CAMA (repealed), ss.211-215; CAMA 2020, ss. 235-240
 CAMA (repealed), s.215; CAMA 2020, s.239
  5 NWLR (Pt. 1028) 488, 561-562, Paras F-D
 J. O. Orojo, Company Law and Practice in Nigeria, (5th edn: Lexis Nexis Group, 2008) 282.
 CAMA (repealed), s. 279 (1) (2); CAMA 2020, s.305 (1) (2).
 CAMA (repealed), s. 279 (3) (4); CAMA 2020, s.305 (3) (4).
 CAMA (repealed), s. 279 (5); CAMA 2020, s.305 (5).
 CAMA (repealed), s. 280; CAMA 2020, s.306
 CAMA (repealed), s. 282; CAMA 2020, s.308