July 7, 1900.]
Ordinance and its relation to the other enact ments dealing with the registration of a company, w
CHINA OVERLAND TRADE REPORT.
The second point that is raised is that, inasmuch as the articles of association of the company were not signed by the subscribers to the memorandum of association, as required by the Ordinance, the Registrar had no jurisdic tion or power to receive and register thein, and therefore his registration of them cannot give them validity. Of course, it may be admitted that the Registrar, on receiving important do- cuments of this kind with a view to their re- gistration, ought to examine them carefully in order to ascertain whether they comply, in form and in substance, with the requirements of the Ordinance. And it is equally clear that he ought not to register the documents unless they do comply with such requirements. This is his duty. But supposing that he fail in his duty, either through negligence or through a mistaken impression as to his power or duty, and gives registration to a document which ought not to have been registered. Then the question arises, is not this the very case provid- ed for by the enactment at the end of section 18 of the Ordinance P Was not that enactment passed with the express object of providing a remedy for mistakes of this kind, and of ensuring that, when once a company has received its certificate of incorporation, it shall not be neces- sary for any person dealing with it to go behind the certificate and inquire whether the proceed ings preliminary to registration have been re- gularly taken? It is true that the certificate of incorporation has been held in a few cases not to be conclusive. But those cases, as was said by Mr. Francis, for the most part turn on the point that the express certificate was given in contravention of the policy of the Ordinance that, in order to be registered, an association must consist of seven persons at least. Or, to put the matter in a broader way, none of those cases does more than decide that the certificate is not conclusive that the company is one capable of being registered under the English Act. But to say that the Registrar has no jurisdiction to create a company by issuing a certificate in such a case is, in my opinion, a very different thing from saying that he has no jurisdiction to register articles of association because they are not duly signed. Further, it may be asked, if the argument is good, how far is it to be carried? Would the Court be invited to hold that the Registrar had no jurisdiction to register articles of association because they were type-written and not printed, as required by the Ordinance, and that therefore his certificate of incorporation could not cure the defect? It appears to me that this argument, if forced to its logical conclusion, leaves us scope for the operation of the provision at the end of section 18 of the Ordinance and therefore that it can. not be allowed to prevail.
The last portion of section 18 of Ordinancs 1 of 1865 enacts that a certificate of the incorporation of any company given by the registrar shall be conclusive evidence that all the requisitions of the ordinance in respect of registration have been complied with.
The first thing to be done, then, is to ascertain what are the requisitions of the ordinance in res- pect of registration.
profuse nor uniform: but from the observations Judicial opinion upon this point is neither of Lord Chelmsford in the case of Oakes v. Tur- quand L.R. 2 H.L. at page 354; of Kekewich J. in the case of In re National Debenture and Assets Corporation (1891) 2 Ch. at page 510, and of Bowen L.J. and Kay L.J. at pages 519 and the requisitions of the Ordinance in respect of 520 respectively of the same case, I gather that registration are set out in sections 6 and 17 of the Ordinance.
It was urged by respondents' counsel referred to in the last portion of section 18 that the requisitions in respect of registration were (1) the registration of the memorandum of association and (2) the registration of the articles of association, by desire, mentioned in the opening sentence of section 18; and that these requisitions were the only requisitions of the ordinance in respect of registration upon which the concluding paragraph of the section operated.
against adopting this view. The words (which There appear to me to be several reasons also occur in Section 6) are the requisitions of this Ordinance not of this Section. Moreover, registration itself is not the same as a requisition in respect of registration; and, and 17 as containing, if not all, yet at least thirdly, judicial opinion points to sections 6
respect of registration. some of the requisitions of the Ordinance in
the present company makes no mention of any articles of association. No doubt that is so, but that the requisites for constituting articles Before proceeding further, I would reme neither does it mention any memorandum of association must be distinguished from the re- Part I of the Ordinance, comprising_sections association. It merely states that the "company quisitions in respect of registration upon
· 6 to 20, both inclusive, deals with the Constitu- is duly incorporated as a company, etc., etc., which alone the certificate of incorporation tion and Incorporation of Companies and As- and is duly registered in accordance with the operates, and the latter again from registration sociations. Sections 6 to 13, both inclusive, Companies Ordinance, 1865." That registration | itself. make provision with respect to the formation had reference, as a matter of fact, not only to a of a company and to its memorandum of asso- memorandum of association but also to articles ciation. There are three kinds of companies of association, and I am of opinion that those recognized by these provisions, a company articles come within the terms of the beneficial limited by shares, a company limited by guar-enactment at the end of section 18, and that the antee, and an unlimited company. In each admitted defect in their execution is cured by case there must be a memorandum of as80- its operation. ciation, and that memorandum must con. tain certain specified things and must be executed in a certain specified manner. Then follow sections 14 to 16, both inclusive, which make provision with respect to the contents and mode of execution of the articles of association of a company. It is enacted that, in the case of a company limited by shares, the memorandum of association may be accompanied when registered, by articles of association, while, in the case of a company limited by guarantee or unlimited, it must be accompanied by such articles. In the case of a company limited by shares, if the memorandum is not accompanied by articles, the regulations contained in Table A in the First Schedule to the Ordinance are to be the regulations of the company, so far as they are applicable. Lastly, there are certain "general provisions," con- tained in sections 17 to 20, both inclusive. Sections 17 and 18, so far as they are material, are in the following terms: "17. The memo- randum of association and the articles of association, if any, shall be delivered to the Registrar, who shall retain and registrar the same. 18. Upon the registration of the memo- randum of association, and of the articles of association in cases where articles of association are required by this Ordinance or by the desire of the parties to be registered, the Registrar shall certify under his hand that the company is incorporated, and in the case of a limited company that the company is limited: the subscribers of the memorandum of association, together with such other persons as may from time to time become members of the company, shall thereupon be a body corporate by the name, etc., etc. A certificate of the incorpora- tion of any company given by the Registrar shall be conclusive evidence that all the re- quisitions of this Ordinance in respect of re- gistration have been complied with.”
Now, it is clear that in the case of two classes of companies, namely, company limited by guarantee and an unlimited com- pany, two documents must be delivered to the Registrar, namely, a memorandum and articles, and both such documents must be regis- tered by him before he grants his certificate of incorporation. If the Registrar were to register a
company of either of these two classes in a case where only a mem-1 orandum of association had been delivered to him, I am inclined to think that the registration would be a mere nullity. And I entertain no doubt that, in the case of a company of either of these two classes, the provision at the end of section 18 applies to the articles of association as well as to the memorandum of association and is conclusive evidence thht all the requisitions [que. requirements] of the Ordinance in respect of the registration of the articles have been complied with, that is, in other words, that they have been duly registered and are the valid and operative articles of the company. Then how does the case of a company limited by shares differ from the case of a company of one of these two classes in respect of the registration of articles of association? Simply, as I think, on a point of evidence. It is, it appears to me, a mere question of fact in the case of a company limited by shares whether or not articles were delivered to the Registrar along with the memorandum, and the moment it is established that they were so delivered, it follows that they must or at any rate ought to have been dealt with in the same way as articles which are re- quired to be delivered! And when they are so delivered and registered, I am unable to read them out of the words at the end of saction 18, which were intended by the Legislature to ensure the validity of all matters connected with the registration of companies. Mr. Slade says that the Registrar's certificate of incorporation of
8
I am of opinion that the judgment appealed from should be affirmed and this appeal be dis missed, with costs.
The Acting Paisne Judge said-In this matter I have the misfortune to differ from the judgment of the Chief Justice. This is an appeal from that judgment which was delivered on 26th July last and discharged an order obtained by the appellant Ho Tung calling upon the Man On Insurance Company, Ld., to show cause why the register of members of the Company should not be rectified by removing the names of certain persons therefrom in respect of two lots of seven and four shares in the company and substituting for such names the name of Ho Tung as the holder of the said shares.
The main conclusion arrived at in the judg. ment-under appeal was that the certificate of incorporation was conclusive as to the due re- gistration of the articles of association of the Company and that the articles which had been put in evidence were the valid and operative articles of association of the Company.
in respect of registration which are to be found Amongst the requisitions of the Ordinance in section 17 is this requisition, viz., that the articles of association, if any, shall be delivered to the registrar.
association, if any, to the registrar is a requisi- In other words, delivery of articles of
tion in respect of registration.
This can in my opinion mean nothing except that the delivery of existing articles of associa tion to the registrar is a requisition in respect of registration.
The words of the section do not admit of being construed to mean that delivery of any thing other than extant articles of association or of any thing merely purporting to be extant articles of association, is respect of registration.
a requisition in
The use of the words if any after the words judgment, that one of the requisitions contem- articles of association makes it clear, in my plated by section 17 may or may not arise: if there been delivered, then the requisistion arises and are existing articles of association which have
the certificate of incorporation is conclusive that the requisition has been complied with: but if there are no existing articles of association, the requisition does not arise and the certificate has nothing to operate upon.
The Court is accordingly free to examine whether articles of association of the Company existed: and this conclusion is supported by the substance of the cases cited in argument and dealing with the subject of the existence of a memorandum of association.
Those cases were :—”
In re Barned's Banking Company, Peel's case 2 Ch. App. 674: Oakes v. Turquard L. R. 2H. L. $25:
Ch. D. 610:
In re Nassau Phosphate Company L. R. 2
In re National Debenture and Assets Cor, poration [1891]-2 Ch. 505 and In re Laxon & Company [1892] 3 Ch..555.
The sum of such cases, it appeaTS that the certificate of incorporation evidence that a document signed qualified persons as a memoran tion is the memorandum Company, but not of the
No comments yet.
Private notes are available after approval.