To understand how nominee directors are appointed, it is incumbent on me to define who is a nominee director . A nominee director is a non-executive director and when appointed stands apart by virtue of being nominated by a shareholder or other stakeholder of a company to represent particular interest.
There are several types or classes of Directors allowed under Cameroon law, which include Executive Directors, Alternate Directors, Managing Directors, Shadow Directors, Life Directors, and Nominee Directors among others.The focus of this write-up is to briefly examine and evaluate the proprietary and how nominee directors are appointed in Cameroon. The article will also look into the legality of the appointment of nominee shareholders in Cameroon.
The question on how nominee directors are appointed is clearly encapsulated in The OHADA Uniform Act Relating to Commercial Companies and Economic Interest Groups, which is the principal Act for the incorporation of companies and other incidental matters.
To register a company in Cameroon with The Trade and Personal Property Rights Registry (TPPRR), the company must provide a minimum of 1 director for public liability company and a shareholder for a private limited liability company.
The provision of the Law under OHADA defines Directors as “persons duly appointed by the company to direct and manage the business of the company” and also defines how nominee directors are appointed.It should be noted that only individuals can be appointed as members of the board of Directors of a company in Cameroon.
HOW NOMINEE DIRECTORS ARE APPOINTED
The power to appoint directors of a company is vested in the shareholders of the company at the annual general meeting. A nominee director, also referred to as a resident director or representative director is appointed to the board of the company to represent the interest of his appointee on the board. The rights and powers of the nominee director are determined by the shareholders.
Nominee directors owe the same duties to the company as other directors do while representing the company through legal duty and expectation of loyalty to the interest of the appointee. The Nominee director stands in a fiduciary relationship with the company and must observe the utmost good faith towards the company in any transaction with the company or on behalf of the company.
Consequently, any foreign-owned or local company may appoint a nominee director in Cameroon to act in full capacity as a director of the company. A nominee local director may be extremely helpful for an international company seeking to set up its operation on time and require a director to carry out immediate duties such as the opening of a bank account and among others.
The nominee director may not exercise any unilateral power in the company unless his or her appointer sanctions it. Like any other director, a nominee director can be appointed as one of the first directors of the company during the incorporation or by the virtue of a company resolution duly filed with the Trade and Personal Property Rights Register after incorporation. However, it is important that the nominee director is given a director agreement detailing his or her terms of service in the company. A nominee director can also be removed in accordance with the process provided by OHADA.
HOW NOMINEE SHAREHOLDERS ARE APPOINTED
Under Cameroon law, every limited liability company must have a minimum of one shareholder when incorporated with the Trade and Personal Property Rights Register. The members of a private limited liability company must not exceed 50.
A shareholder in a limited liability company is an owner of the company through shares and has vested rights in the interest of the company. The first shareholders are known as the subscribers of the company and they have their names listed in the Memorandum of the Company.
A shareholder of a company can be an individual or a corporate body. Shareholders, when appointed, have liabilities limited to the nominal value of their shares; this means that when the company goes into debt, the shareholders will be responsible to the extent of the value of the shares taken up in the company.
It is worth noting that a shareholder can also be a director of a company; nothing precludes shareholders from taking up the dual position of a director except the article of association of the company restricts it.
Although the holding of shares in a nominee capacity is not expressly disallowed in a private company under the OHADA, such a scheme is also not backed by any law in Cameroon. In fact, the law mandates the full disclosure of every person holding any shares in the company, and as such, a company is mandated to keep the register of shareholders in its office.
However, since Cameroon law permits any foreign individual to hold shares in any Cameroon company, there may be no basis or need for any prospective shareholders in Cameroon company to appoint a nominee shareholder, although such personal agreement is not expressly prohibited by law. However, where any person has been appointed in a nominee capacity to hold shares in a company for another person or organization, such person shall be liable to contribute any unpaid share capital to the extent of shares subscribed in his or her name in case of the winding up of the company on the petition of creditors.
In conclusion, nominee directors can be appointed by the shareholders or stakeholders of a company. A nominee director is usually not expected to take up shares except it is permitted by the articles of the company. Here we see the role of nominee directors and shareholders.
Shareholders of a company can also take up a dual position of a directorship in a company even though the two roles are completely different and separate.
Article by Barr. Mafany Victor Ngando
“The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances