Jul 10, 2016

Jamiu Akolade - Can the draft National Code of Corporate Governance be made applicable to all private companies?




By: Jamiu Akolade MCIArb


Purpose of the FRCN                                             
                                                                
1.     The FRCN was created under the Financial Reporting Council of Nigeria Act 2011 with the legislative intent to establish a body to be ‘charged with the responsibility for, among other things, developing and publishing accounting and financial reporting standards to be observed in the preparation of financial statement of public entities in Nigeria[1]. The duties of the FRCN are stated under section 8 of the Act[2]. With regards to the powers of the FRCN, it is clear that it has been empowered to among other powers, enforce and approve enforcement of compliance with accounting, auditing, corporate governance and financial reporting standards in Nigeria.[3]Ostensibly for the purpose of exercising this power, a Directorate of Corporate Governance was created under the Act to, among other duties, develop principles and practices of corporate governance.[4]


Coverage of the FRCN’s powers: Eko Hotels v FRCN
2.     However, with regards to the extent of the applicability of the Act and the powers of the FRCN, it is clear from the Act that such are restricted to ‘public interest entities’[5] which by the meaning ascribed to that phrase under the Act excludes private companies that routinely file returns only with the Corporate Affairs Commission and the Federal Inland Revenue Service. The extent of the powers of the FRCN has been tested in court in the case of Eko Hotels v Financial Reporting Council of Nigeria[6]. In that case, the FRCN had sought to enforce its powers against Eko Hotels Limited (EHL). EHL instituted an action at the Federal High Court challenging the application of the Act to it as a private company on the ground that it was excluded from the operations of the Act. The FRCN had written to EHL requesting for evidence of compliance with the registration requirements of the Act and payment of statutory and renewal dues. EHL responded by informing the FRCN that it was a private company and that it only filed returns with the FIRS and CAC and was therefore not a public interest entity as contemplated by the Act. The FRCN however contended that EHL was a public interest entity because it filed returns with the Nigerian Tourism Development Corporation.

3.     The court ruled in favour of EHL on the grounds that there is no provision in the Act which requires private companies to be registered with the FRCN as the registration can only be extended to public companies and public interest entities and that FRCN cannot seek to exercise implied, incidental or consequential powers where there are no express provisions in the Act empowering it to do so. Crucially, the court also held that the functions and powers of the FRCN can only be exercised over public interest entities, public companies, professional accountants and other professionals engaged in the financial reporting process and the FRCN cannot enlarge its regulatory powers beyond the limit provided in the statute. Although FRCN has appealed this decision, it is still the position of the law until it is set aside by a superior court[7].

Our opinion
4.     It is our opinion that in view of the decision of the court in Eko Hotels, the question of the applicability of the provisions of the Act to private companies that only file returns with the CAC and FIRS is not in doubt. Therefore, the applicability of the Code should also be viewed within that prism. In this regard, we hold the view that the Code is in the nature of a subsidiary legislation because it was made pursuant to the powers of the FRCN donated by the Act[8]. As a subsidiary legislation, the law is clear that it cannot contain provisions which are contrary to the provisions of the enabling statute. In Barclays Bank of Nigeria Limited v Alhaji Ashiru[9], the Supreme Court held that:

   “Subordinate legislation is invalid if it is repugnant to the general law of the    country or if it is repugnant to the provision of a statute which delegates to the         body or person making it, the powers so to do.” It is, however, not bad merely         because it deals with something which the general law does not deal with or because it makes unlawful something which the general law does not make unlawful, but it must not, expressly or by necessary implication, profess to alter the general law by making something unlawful which the general law makes lawful, or vice versa, or by adding something inconsistent with the provisions of a statute creating the same offence”, (see on the subject of Bye Law: Halsbury Laws of England Vol. 26, 3rd Edition, P. 516 Para 950). Accordingly, subordinate legislation ‘is prima facie ultra vires if it is inconsistent with the substantive provisions of the statute by which the enabling power is conferred” (which is not the case here) “or of any other statute” (which is alleged or submitted to be the case here) “and equally, of course, if it purports to affect existing statutes expressly” (see Volume 36 Halsbury, Laws of England, 3rd Edition, Pages 491-492, Paragraph 743).” Per Idigbe, J.S.C. (Pp.19-20, Paras.G-E)”

5.     Adopting the test laid down by the Supreme Court in Barclays Bank above, the provisions of section 2 of the Code which purports to make the Code applicable to (a) All public companies (whether listed or not); (b) All private companies that are holding companies or subsidiaries of public companies; and (c) All regulated private companies would appear to be beyond the powers of the FRCN under the Act since the Act which is the principal legislation has excluded private companies which only routinely file returns with the CAC and FIRS[10]. Another provision of the Code which conflict with the Act is Section 40.1.12 which creates the concept of a ‘regulated private company’ which is defined as ‘private companies that file returns to any regulatory authority other than the Federal Inland Revenue Service and the Corporate Affairs Commission’ whereas no such definition exists in the Act;

 The Code contradicts CAMA
6.     Also, apart from the fact that the Code contravenes the Act, it is also ultra vires the powers of the FRCN because it conflicts with another statute – the Companies and Allied Matters Act[11] (CAMA) which regulates the operation of companies in Nigeria. For instance, the entire provisions of section 6 of the Code regarding the election of directors and chairman of boards of directors as well as regulating meetings of the board are either conflicting with CAMA or alter its provisions. This would amount to an implicit amendment or repeal of the provisions of CAMA which is beyond the powers of FRCN.

7.     In view of the foregoing, we are of the view that the application of the Code to all private companies without taking cognisance of the exceptions under the Act is unlawful and beyond the powers of the FRCN. Also, even if the Code were applicable to all private companies the provisions of the Code which are contrary to CAMA are likely to be declared null and void by a court of law. The FRCN therefore needs to engage with all stakeholders with a view to revising the Code to identify the conflicting provisions highlighted above.

Disclaimer: This piece represents the view of the writer and does not constitute legal opinion. We welcome comments and questions regarding the issues raised.
[1] See the Long Title to the Act.

[2]These are:
“a.   Develop and publish accounting and financial reporting standards to be observed in the preparation of financial statement of public interest entities;
1.     Review, promote and enforce compliance with the accounting and financial reporting standards adopted by the Council;
2.     Receive notices of non-compliance with approved standards from preparers, users, other third parties or auditors of financial statements;
3.     Receive copies of annual reports and financial statements of public interest entities from preparers within 60 days of the approval of the Board;
4.     Advise the Federal Government on matters relating to accounting and financial reporting standards;
5.     Maintain a register of professional accountants and other professionals engaged in the financial reporting process;
g   Monitor compliance with the reporting requirements specified in the adopted code of corporate governance;
h    Promote compliance with the adopted standards issued by the International Federation of Accountants and International Accounting Standards Board;
i     Monitor and promote education, research and training in the fields of accounting, auditing, financial reporting and corporate governance;
j   Conduct practice reviews of registered professionals ;
k Review financial statements and reports of public interest entities;

l Enforce compliance with the Act and the rules of the Council on registered professionals and the affected public interest entities;

m  Establish such systems, schemes or engage in any relevant activity, either alone or in conjunction with any other organization or agency, whether local or international, for the discharge of its functions;

n Receive copies of all qualified reports together with detailed explanations for such qualifications from auditors of the financial statements within a period of 30 days from the date of such qualification and such reports shall not be announced to the public until all accounting issues relating to the reports are resolved by the Council;

o Adopt and keep up-to-date accounting and financial reporting standards, and ensure consistency between standards issued and the International Financial Reporting Standards;

p. Specify, in the accounting and financial reporting standards, the minimum requirements for recognition, measurement, presentation and disclosure in annual financial statements, group annual financial statements or other financial reports which every public interest entity shall comply with, in the preparation of financial statements and reports;

q      Develop or adopt and keep up-to-date auditing standards issued by relevant professional bodies and ensure consistency between the standards issued and the auditing standards and pronouncements of the International Auditing and Assurance Standards Board; and

r     Perform such other functions which in the opinion of the Board are necessary or expedient to ensure the efficient performance of the functions of the Council. [2]
[3] Section 7(2) (a) Ibid.
[4] Sections 49 and 50 Ibid.
[5] “Public Interest Entities” under the Act means governments, government organizations, quoted and unquoted companies and all other organizations which are required by law to file returns with regulatory authorities and this excludes private companies that routinely file returns only with the Corporate Affairs Commission and the Federal Inland Revenue Service.
[6] (Unreported: Suit No. FHC/L/CS/1430/2012 delivered on 21/03/2014)
[7] See Vaswani v. Savalakh (1972) 12 SC 77.
[8]In Njoku v Iheanatu (2008) LPELR-3871(CA) the Court of Appeal held that:

 “A subsidiary legislation or enactment is one that was subsequently made or enacted under and pursuant to the power conferred by the principal legislation or enactment. It derives its force and efficacy from the principal legislation to which it is therefore secondary and complimentary’. 

[9] (1978) 6-7 S.C
[10] See section 2.1 of the Code viz Section 77 of the Act
[11] Cap C20 LFN 2004.

Ed’s Note: This article was originally published here.
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1 comment:

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