Incorporated Trustee is simply a corporation held in trust of another. It is commonly used for the formation of non-profit organizations.
The registration of incorporated trustees in Nigeria, is governed by Part C of the Companies and Allied Matters Act (CAMA). According to Section 590 (1) of CAMA, the registration is described as follows:
where one or more trustees are appointed by any community of persons bound together by customs, religion, kinship or nationality or by any body or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may if so authorized by the community, body or association…apply to the Commission in the manner hereafter provided for registration…as a corporate body.”
Unlike the other ways in which a company can be formed, Incorporated Trustees vests the corporate status on the trustees instead of directors and shareholders. Incorporated Trustees do not have any profit sharing objectives and in the case of dissolution, cannot distribute properties amongst themselves. However, Incorporated Trustees like other company formation methods have a legal personality (which means it has a right to sue and be sued), has perpetual succession, capacity to own a common seal and power to hold land.
REGISTRATION OF AN INCORPORATED TRUSTEE
To register an Incorporated Trustee in Nigeria, the following procedures must be followed:
- A name search must be conducted to ascertain the availability of the proposed name;
- Duly completed set of incorporation form (Form CAC/IT 1 Incorporated Trustees Application Form. This form must be completed with the following sets of information:
- Name of the proposed corporate body, which must contain the words ‘Incorporated Trustees of’
- The aims and objects of the association which must be for the advancement of any religious, educational, literary, scientific, social development, cultural, sporting or charitable purpose, and must be lawful.
- The name, address and occupation of the secretary of the association, if any
The Applicant is also required to attach the following to the application:
- Two printed copies of the Constitution of the association;
- Duly signed extracts of the minutes of the meeting appointing the trustees and authorising the application, showing the people present and the votes scored;
- The impression or drawing of the proposed common seal.
Even though Section 590 (4) of CAMA states that the Corporate Affairs Commission (CAC) may require a declaration or other evidence to verify the particulars in the application, however in practice and according to Rule 65 (f) of the Companies Regulation 2012, the declaration of two trustees in a High Court is an essential document to be submitted with the application.
QUALIFICATION OF TRUSTEES
A person shall not be qualified to be appointed as a trustee if he:
- is an infant; or
- is a person of unsound mind having been so found by a court; or
- is an undischarged bankrupt; or
- has been convicted of an offence involving fraud or dishonesty within five years of his/her proposed appointment.
CONSTITUTION OF THE INCORPORATED TRUSTEE
The Constitution of an incorporated trustee shall include the following:
- The name or title of the association (which must not conflict with that of a company or with a business name or trade mark already registered in Nigeria);
- The aims and objects of the association;
- Provisions, in respect of the following:
- appointment, power, duties, tenure of office and replacement of trustees;
- the use and custody of the common seal;
- the meetings of the association;
- The number of members of the governing body, if any, the procedure for their appointment and removal, and their powers; and
- Where subscriptions and other contributions are to be collected, the procedure for disbursement of the funds of the association, the keeping of accounts and the auditing of such accounts.
ADVERTISEMENT AND OBJECTIONS
If the CAC is satisfied that the application has complied with the above provisions,
- It shall cause the application to be published in two daily newspapers circulating in the area where the corporation is to be situated, and at least one of the newspapers shall be a national newspaper;
- The advertisement shall invite objections, if any, to the registration of the body.
- The objection must state the grounds on which it is made, and should reach the CAC within 28 days of the date of the last of the publications in the newspapers.
- If any objections are made, the CAC shall consider them and may require the objectors and applicants to provide further information and explanation. It may uphold or reject the objections as it considers fit and inform the applicant accordingly.
REGISTRATION AND CERTIFICATION
After the advertisement has been executed and no objection is received within 28 days of the publication, the Commission may assent to the application after having regard to all the circumstances. The Commission may also withhold its assent if an objection is duly received.
It is important to note that the assent or lack thereof is solely at the discretion of the Commission after putting to consideration all facts and circumstances.
If the Commission assents to the application, then the trustees will be duly registered and a certificate is issued.
EFFECT OF REGISTRATION
From the date of registration, the association:
- becomes a body corporate with the name described in the certificate. It has perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustee or trustees. It has power to acquire and transfer property for the purpose of the community, body or association of person.
The certificate of incorporation when granted becomes a prima facie (on the surface) evidence that all requirements needed for the incorporation have been meet.