Tanzania

Tanzania - Common Law
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Tanzania taxes

If you are thinking to incorporate in Tanzania, this article will educate you on the tax laws for a LLC, which is the most common legal entity in Tanzania.

Companies in Tanzania are liable to tax on their worldwide income. The prevailing estimated tax rate for offshore income, from our research, but seek professional advice, is 30%. Tanzania does not have known exemptions to remit income earned abroad. Taxes are higher than average in Tanzania as the effective rate of taxation on a LLC entity is 30%. This ranks Tanzania as 136th overall in terms of corp. taxation rate internationally.

The valued added tax rate in TZ is 18.00%, which ranks Tanzania as 116th overall in terms of value added tax rate worldwide. In terms of other taxation, an employer will contribute 25% to the equivalent of a social security fund and an employee will contribute 15%. The overall complexity of the tax system is medium. This is measured by average time to comply with a country's labor tax requirements is as it is 54hours. Contributing to this is the number of yearly labor tax payments, which is 6 in TZ.

Thin capitalization mandates are in play. Thin capitalisation refers to any sort of requirements on a business and the debt-to-asset ratios.
Distribution of dividends are subject to a final withholding tax of 10%. A reduced 5% rate may apply for dividends paid by a resident corporation to a resident corporation holding 25% of the shares and voting rights of the distributor. A 5% withholding tax may also apply for dividends paid by a resident listed company. Dividends received from a foreign entity are usually subject to Corporate Income Tax. Dividends are payments of a company profit, voted by the board of directors, to shareholders. Dividends can be issued as stock, cash, or property.
Capital Gains are treated as business ordinary income and subject to Corporate Income Tax. A capital gains tax is levied on the profits that a corporation or natural person realizes when he or she sells sells a capital asset for a price that is higher than the purchase price.

The interest withholding tax rate is estimated at 10%. Which means that the tax authorities expects legal entities to pay tax at 10% of payments on interests abroad. The dividends withholding tax rate is 10%. This should be interpreted that the tax authorities expects relevant legal entities to automatically withhold 10% of dividends paid to non residents, unless those are paid by a Tanzanian listed company, where a 5% may apply. The royalties withholding tax rate is 15%. This means that the taxman expects legal entities to automatically withhold 15% of royalties remitted abroad. Tanzania has concluded tax treaties with 9 jurisdictions that may reduce withholding tax rates.
There is no known tax on wealth in Tanzania. There are no inheritance and transfer taxes in Tanzania, but there is a real property tax. There are no known inheritance taxes in Tanzania. There are no commonly used R&D initiatives that provide tax incentives in TZ.

The above is not tax or legal advice for your particular circumstances. We can refer you a lawyer in Tanzania who will advise you. Contact us today. Click incorporate now if you are in a hurry, or press the free consultation button above.

It takes approximately 62 hours to file and prepare documents for a Tanzania Common Law.
The corporate tax is approximately 30% which is 136 in the world.

Owners of a company in Tanzania are not allowed to carry back a loss and may be allowed to carry forward a loss for 100 years.

The vat rate in Tanzania is 18% which ranks 116 in the world.

Patent box
RND credit
Wealth tax
Estate tax
Transfer taxes
Asset taxes
Capital duties
9Tax treaties
30%Offshore Tax
30%Corp rate
-Loss carryback years
62Corporate time
18%VAT rate
30%Capital gains
NoAEOI planned

Read this to learn about incorporating a company in
Tanzania

We can help you form a company in Tanzania. Click the button above for a no-obligation quote. We will provide you with all the necessary documents to open a bank account as well as a registered office in Tanzania, which is required by law.

We can help you with your incorporations needs for an initial payment of just $1000.

Easy Step by Step Process:
The standard process typically takes between two (2) to three (3) weeks depending on when we receive all the required information from you. Once we receive your information, we will email you a complete set of documents for your review within 3 working days upon confirmation of payment. After executing the documents, you will need to mail them to us and we will formally submit your application for filing with the Registry. The Registry will then take about 3-8 working days to process the incorporation and produce certificates necessary for opening your bank account.

Applying for Your Bank Accounts:
Incorporations.IO maintains close working relationship within our extensive network of partner banks to help you apply for and receive banking services that are most appropriate to your specific situation. From the time of verification of incorporation it can take (1) one week to (2) two weeks to apply for and receive a bank account. We work primarily with banks that allow for remotely opened accounts to ensure you are ready to do business as soon as possible.

Applying for Payment Processing:
We include introductions to payment processors or merchant accounts with all of our incorporation services. Whether you just need standard credit card processing or specialized services for high risk processing, we have partners that can assist you and are happy to help you with introductions that can empower your business.

Start Online or via Phone:
We can get started for you whenever you are ready via a US$1000 initial payment via credit card. I get notified whenever a payment is made here and would send out the welcome letter and initial forms we would need within 12 hours. If you prefer, we can also process via a phone or Skype call.

Tanzania Tax Treaties

CountryTypeDate signed
Norway
DTC 1976-04-28
South Africa
DTC 2005-09-22
Canada
DTC 1995-12-15
Denmark
DTC 1976-05-06
Mauritius
DTC 2012-08-18
India
DTC 2011-05-27
Sweden
DTC 1976-05-02
Italy
DTC 1973-03-07
Finland
DTC 1976-05-12

Country Info

National Flag of
United Republic of Tanzania (eng)
Jamhuri ya Muungano wa Tanzania (swa)
Currency
TZS
Area Code
+255
Capital
Dodoma
Region
Eastern Africa
Native Languages
English
Swahili

Companies Act of Tanzania

THE UNITED REPUBLIC OF TANZANIA No. 12 OF 2002

An Act to repeal and replace a law relating to companies and other associations, to provide for more comprehensive provisions for regulation and control of companies, associations and related matters.

ENACTED by the Parliament of the United Republic of Tanzania.

PART I PRELIMINARY

1.-( 1) This Act may be cited as the Companies Act 2002.

(2) This Act shall come into operation on such date as the Minister may by notice in the Gazette appoint and the Minister may appoint different dates for the coming into operation of the different provisions or Parts of this Act.

2. In this Act, unless the context otherwise requires: "articles" means the articles of association of a company, as originally framed or as altered by special resolution, including so far as they apply to the company, the regulations contain(:d in Table A in the First Schedule to either of the repealed Ordinances or in Table A in the Schedule to this Act; "bank" means a bank as defined in the Banking and Financial Institutions Act; "book and paper" and "book or paper" include accounts, deeds, writings and documents; "Capital Markets and Securities Authority" means the Authority established by section 6 of the Capital Markets and Securities Act; '' Certified Public Accountant as Act No. 33 defined in the National Accountants and Auditors Act; of 1972 company'' means a company formed and registered under this Act or an existing company; ''the court'', used in relation to a company, means the court having jurisdiction to wind up the company; Act No. 5 ''dealer or investment adviser'' means a dealer or investment adviser as defined in the Capital Markets and Securities Act, 1994; of 1994 "debenture" includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not; ''director'' includes any person occupying the position of director by whatever name called; 'document'' includes summons, notice, order, and other legal process, and registers; existing company'' means a company formed and registered under either of the repealed Ordinances; ''generally accepted principles of accounting'' means such practices, principles, guidelines or accounting and auditing standards, taking into account international practices, principles and standards, as shall be issued by the National Board of Accountants and Auditors; group'' means a parent or holding company and its subsidiaries; ''insolvency practitioner'' means: -

G) a Certified Public Accountant certified by the National Board of Accountants and Auditors or other regulatory body of the profession as having the requisite experience of insolvency;

(ii) a qualified Advocate of the High Court having the requisite experience of insolvency;

(iii) such other persons as may be specified by the Minister in regulations; Act No. 18 ''insurance company'' means a company which is an insurance broker, insurance agent or an insurer as those expressions are defined in the of 1996 Insurance Act 1996; ''limited company'' means a company limited by shares or a company limited by guarantee; ''memorandum'' means the memorandum of association of a company, No. 12 Companies 2002 25 as originally framed or as altered from time to time; ''Minister'' means the Minister for the time being responsible for trade; ''offer document '' means any document, prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company or any interest therein, or any right to acquire any shares or debentures or any interest therein; officer'', in relation to a body corporate, includes a director, manager or secretary; ''open-ended investment company'' means a body corporate:-

(a) which has as its purpose the investment of its funds with the aim of spreading investment risk and giving its members the benefit of the results of the management of those funds by or on behalf of that body; and

(b) the members in which have rights represented by shares of securities of that body which - W those members are entitled to have redeemed or purchase from them by or out of funds provided by that body; or

(ii) the body ensures can be sold by the members on an investment exchange at a price related to the value of the property to which they relate; personal representative'' means:-

(a) in the case of a deceased person to whom the Indian Succession Act, 1865 applies either wholly or in part, his executor or ministrator;

(b) in the case of any other deceased person, any person who, under law or custom, is responsible for administering the estate of such deceased person; ''printed'' means reproduced by original letter press or by laser or other form of printer or by such other means as may be prescribed; registrar'' means the registrar of companies or any deputy or assistant registrar or other officer performing under this Act the duty of registration of companies; ''the repealed Ordinances'' means the Indian Companies Act, 1882 (as applied to Tanzania); ''the repealed Companies Ordinance'' means the Companies Ordinance, Chapter 212 of the Laws of Tanganyika (Revised Edition, 1947); ''share'' means share in the share capital of a company, and includes stock except where a distinction between stock and shares is expressed or implied; ''statutory corporation'' has the meaning given in the Public Corporations Act; ''Table A'' means Table A in the Schedule to this Act; ''Tanzania'' means mainland Tanzania and does not include Tanzania Zanzibar; ''undertaking'' means a body corporate or partnership or an unincorporated association carrying on a trade or business with or without a view to profit; ''wholly-owned subsidiary''- a body corporate shall be deemed to be the wholly-owned subsidiary of another if it has no members except that other and that other's wholly-owned subsidiaries or its nominees.

PART II INCORPORATION OF COMPANIES AND MATTERS INCIDENTAL THERETO

CHAPTER I THE COMPANY'S MEMORANDUM AND ARTICLES

Memorandum of Association

3.-(I) Any two or more persons, associated for any lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the requirements of this Act in respect of registration, form an incorporated company, with or without limited liability.

(2) Such a company may be either -

(a) a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act termed ''a company limited by shares''); or

(b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed ''a company limited by guarantee"); or No. 12 Companies 2002 27 a company not having any limit on the liability of its members (in this Act termed ''an unlimited company'').

(c)

(3) A ''public company'' is a company limited by shares or limited by guarantee and having a share capital, being a company the memorandum of which states that it is to be a public company, and a ''private'' company'' is a company as defined in section 27.

4.-(l)The memorandum of every company shall be printed in the English language and shall state:- name of the company, with ''public limited company'' as the last words of the name in the case of a public company, or with ''limited'' as the last word of the name in the case of a company limited by shares or by guarantee (not being a public company); and

(a) dum

(b) the objects of the company.

(2) The memorandum of a company limited by shares or by guarantee must also state that the liability of its members is limited.

(3) The memorandum of a company limited by guarantee must also state that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges and expenses of winding up, and for adjustment of the rights of the contributories among themselves, such amount as may be required, not exceeding a specified amount.

(4) In the case of a company having a share capital:- the memorandum must also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount;

(a)

(b) no subscriber of the memorandum may take less than one share; there must be shown in the memorandum against the name of each subscriber the number of shares he takes.

(c)

5.-(l) The memorandum shall be dated and shall be signed by each subscriber in the presence of at least one attesting witness. of memorandum

(2) Opposite the signature of every subscriber and attesting witness there shall be written in legible characters his full names, his occupation and postal address.

6. A company may not alter the conditions contained in its memorandum except in the cases, in the mode and to the extent for which express provision is made in this Act.

7. Where the company's memorandum states that the object of the company is to carry on business as a general commercial company:- of company's objects: general commercial-

(a) the object of the company is to carry on any trade or business whatsoever, and

(b) the company has power to do all such things as are incidental or conducive to the carrying on of any trade or business by it.

extent to alter the provisions of its memorandum with respect to the objects of the company;

(a) which memorandum may

(b) in the case of a private company seeking to become a public company, or a public company seeking to become a private company, alter the company's memorandum including by way of the inclusion or, as applicable, the deletion of a statement that the be altered company is to be a public company: Provided that if an application is made to the court in accordance with this section for the respective alteration to the memorandum to be cancelled, it shall not have effect except in so far as it is confirmed by the court.

(2) An application under this section may be made: -

(a) by the holders of not less in the aggregate than ten per cent in nominal value of the company's issued share capital or any class No. 12 Companies 2002 29 thereof or, if the company is not limited by shares, not less than percent of the company's members, or

(b) by the holders of not less than fifteen percent of the company's debentures entitling the holders to object to alterations of its memorandum: Provided that an application shall not be made by any person who has consented to or voted in favour of the alteration.

(3) An application under this section must be made within thirty days after the date on which the resolution altering the company's memorandum was passed and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.

(4) On an application under this section, the court may make an order cancelling the alteration or confirming the alteration either wholly or in part and on such terms and conditions as it thinks fit, and may - if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissenting members, and

(a)

(b) give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangements: Provided that no part of the capital of the company shall be expended in any such purchase.

(5) The court's order may, if the court thinks fit, provide for the purchase by the company of any shares of the members of the company, and for the reduction accordingly of its capital, and may make such alterations in the company's memorandum and articles as may be required in consequence.

(6) An alteration in the memorandum or articles of a company made by virtue of an order under this section is of the same effect as if duly made by resolution, and this Act shall apply accordingly to the memorandum or articles so altered.

(7) The debentures entitling the holders to object to alterations of a company's memorandum shall be any debentures secured by a floating charge which were issued or first issued before the appointed day, or form part of the same series as any debentures so issued, and a special resolution altering a company's memorandum shall require the same notice to the holders of any such debentures as to members of the company. In default of any provisions regulating the giving of notice to any such debenture holders, the provisions of the company's articles regulating the giving of notice to members shall apply.

(8) In the case of a company which is, by virtue of a licence from the Registrar, exempted from the obligation to use the word ''limited'' as part of its name, a resolution altering the company's objects shall also require the same notice to the Registrar as to members of the company.

(9) Where a company passes a resolution altering its memorandum:- if no application is made with respect thereto under this section, it shall within fourteen days from the end of the period for making such an application deliver to the Registrar a printed copy of its memorandum as altered; and

(b) if such an application is made it shall:

(a)

(i) immediately give notice of that fact to the Registrar; and

(ii) within fourteen days from the date of any order cancelling or confirming the alteration wholly or in part, deliver to the Registrar a certified copy of the order and, in the case of an order confirming the alteration wholly or in part, a printed copy of the memorandum as altered. The court may by order at any time extend the time for the delivery of documents to the Registrar under subsection (9)(b) for such period as the court may think proper.

(10) If a company makes default in giving notice or delivering any document to the Registrar as required by subsection (9), the company and every officer of the company who is in default shall be liable to a default fine. No. 12 Companies 2002 31 (I 1) The validity of an alteration of a company's memorandum under this section shall not be questioned on the ground that it was not authorized by subsection (1) except in proceedings taken for the purpose (whether under this section or otherwise) before the expiration of twenty one days after the date of the resolution in that behalf, and where any such proceedings are taken otherwise than under this section, subsections (9) and (I 0) shall apply in relation thereto as if they had been taken under this section and as if an order declaring the alteration invalid were an order cancelling it and as if an order dismissing the proceedings were an order confirming the alteration. (1 2) In relation to a resolution for altering the provisions of a company's memorandum with respect to the objects of the company passed before the appointed day, this section shall have effect as if, in lieu of the proviso to subsection (1) and subsections (2) to (I 1), there had been enacted herein the provisions of subsections (2) to (8) of section 7 of the repealed Companies Ordinance. Memorandum and Articles of Association 9.-(l) There may in the case of a company limited by shares, and Articles prescribe- there shall in the case of a company limited by guarantee or unlimited, be registered with the memorandum and articles of association, which shall be signed by the subscribers to the memorandum and shall containing regulations for companies the regulations for the company.

(2) Articles shall be:

(a) in the English language;

(b) printed; divided into paragraphs numbered consecutively; and signed by each subscriber to the memorandum of association in the presence of at least one witness, who shall attest the signature and add his occupation and postal address.

(c)

10.-(I) In the case of an unlimited company, the articles must state the number of members with which the company proposes to be registered and, if the company has a share capital, the amount of share capital with which the company proposes to be registered.Regulations required in case of unlimited company or company limited by guarantee 32 No. 12 Companies 2002

(2) In the case of a company limited by guarantee, the articles must state the number of members with which the company proposes to be registered.

(3) Where an unlimited company or a company limited by guarantee has increased the number of its members beyond the registered number, it shall, within fourteen days after the increase was resolved on or took place, give to the Registrar notice of the increase, and the Registrar shall record the increase. If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

11.-(I) A public or private company may, as applicable, for its articles of association, adopt all or any of the regulations contained in Table A. In any case where a company adopts all or any of the regulations in Table A, a printed copy of Table A shall be annexed to or incorporated in each copy of its articles of association.

(2) In the case of a company limited by shares and registered after the commencement of this Act, if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table A, Table A shall, so far as applicable, constitute the articles of the company in the same manner and to the same extent as if articles in the form of Table A had been duly registered.

12.-(l) The form of - Statutory and

(a) the memorandum of association of a company limited by articles shares;

(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;

(c) the memorandum and articles of association of a company limited by guarantee and having a share capital;

(d) the memorandum and articles of association of an unlimited company having a share capital, No. 12 Companies 2002 33 shall be respectively in accordance with the forms set out in Tables B, C, D and E in the Schedule to this Act, or as near thereto as circumstances admit.

(2) In any case where a company adopts all or any of the regulations in Table C, a printed copy of Tables A and C shall be annexed to or incorporated in each copy of its articles of association.

13.-(l) Subject to the provisions of this Act and to the conditions contained in its memorandum, a company may by special resolution alter its articles. Alteration of articles

(2) Any alteration so made in the articles shall, subject to the provisions of this Act, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.

14.-(I) The memorandum and the articles, if any, shall be delivered to the Registrar for registration.

(2) With the memorandum there shall be delivered a statement in the prescribed form containing the name and address (or registered office) of.- articles

(a) the person or persons being the first director or directors of the company,

(b) the person or persons being the first secretary or joint secretaries of the company;and in the case of a first director or directors, particulars of any other directorships held during the five years preceding the date on which the statement is delivered to the Registrar.

(3) There shall in the statement be specified the intended address of the company's registered office on incorporation.

(4) The Registrar shall not register a company's memorandum delivered under this section unless he is satisfied that all the requirements of this Act have been complied with.

(5) The Registrar shall not register the memorandum of an open-ended investment company delivered under this section unless he is satisfied that the memorandum and the articles of association delivered with it have previously been approved by the Capital Markets and Securities Authority.

15.-(I) On the registration of the memorandum of a company 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, and, in the case of a public company, that the company is a public company.

Effect of registration

(2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers to the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the functions of an incorporated company, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as provided for in this Act.

16.-(I) A certificate of incorporation given by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with and that the association. is a company authorized to be registered and duly registered un Conclusiveness of certificate of incorporation this Act.

(2) A statutory declaration by an advocate of the High Court engaged in the formation of the company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be produced to the registrar, and the registrar may accept such a declaration as sufficient evidence of compliance.

17.-(I) Subject to the provisions of this section, a company registered as unlimited may register under this Act as limited, but the registration. of an unlimited company as a limited company shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into, by, to, with, or on behalf of the company before the registration.

(2) On registration in pursuance of this section, the Registrar shall close the former registration of the company, and may dispense with the delivery to him of copies of any documents with copies of which he was furnished on the occasion of the original registration of the company, 34 No. 12 Companies 2002 No. 12 Companies 2002 35 but save as above, the registration shall take place in the same manner and shall have effect as if it were the first registration of the company under this Act.

18.-(I) Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by articles each member, and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles.

(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.

19.- (1) In the case of a company limited by guarantee and not having a share capital and being registered after I October 1932, every provision in the memorandum or articles, or any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.

(2) For the purpose of the provisions of this Act relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles, or in any resolution, of a company limited by guarantee and registered on or after the date aforesaid, purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital, not withstanding that the nominal amount or number of the shares or interests is not specified thereby.

20. Notwithstanding anything in the memorandum or articles of a company, no member of the company shall be bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration:- requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or

(a)

(b) in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company: 36 No. 12 Companies 2002 Provided that this section shall not apply in a case where the member agrees in writing, either before or after the alteration is made, to be bound by the alteration.

21.- (1) Subject to the provisions of section 20 and section 233, any condition contained in a company's memorandum which could lawfully have been contained in articles of association instead of in the memorandum may, subject to the provisions of this section, be altered by the company by special resolution: Provided that if an application is made to the court for the alteration to be cancelled, it shall not have effect except in so far as it is confirmed by the court. articles

(2) This section shall not apply where the memorandum itself provides for or prohibits the alteration of all or any of the said conditions, and shall not authorize any variation or abrogation of the special rights of any class of members.

(3) Subsections (2) to (8) of section 8 (except subsection (2)(b)) shall apply in relation to any alteration and to any application made under this section as they apply in relation to alterations and to applications made under that section.

(4) This section shall apply to a company's memorandum whether registered before or after the commencement of this Act.

22.-(I) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any Act or Ordinance which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles of such fee as the Minister may prescribe in regulations, and in the case of a copy of an Act, of such sum not exceeding the published price thereof.

(2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine.

23.-(I) Where an alteration is made in the memorandum of a com party, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.

(2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, it shall be liable to a fine for each copy so issued, and every officer of the company who is in default shall also be liable to a fine.

Membership of Company

24.-(I) The subscribers to the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members. Definition of member

(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.

25.-(l) Except as mentioned in this section, a body corporate cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.

(2) Nothing in this section shall apply where the subsidiary is concemed as personal representative, or as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of business which includes the lending of money.

(3) This section shall not prevent a subsidiary which is, at the appointed day, a member of its holding company, from continuing to be a member but, subject to subsection (2), the subsidiary shall have no right to vote at meetings of the holding company or any class of members thereof. The provisions of this section shall apply to a nominee acting on behalf of a subsidiary as to the subsidiary itself.

(4) In relation to a company, other than a company limited by shares, the references in this section to shares shall be construed as references to the interests of its members as such, whatever the form of that interest. 38 No. 12 Companies 2002

26. If at any time the number of members of a company is reduced below two, and it carries on business for more than six months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those six months and knows that it is carrying on business with fewer than two members, shall be liable (jointly and severally with the company) for the payment of the whole debts of the company contracted during that time. Members severally liable for debts where business carried on with fewer than two members Private Companies Meaning 27.-(I) A ''private company'' means a company which by its articles of ''private company''

(a) restricts the right to transfer its shares; and

(b) limits the number of its members to fifty, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were while in that employment, and have continued after the determination of that employment to be, members of the company, and

(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.

(2) Where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.

28. Where the articles of a company include the provisions which, under section 27 are required to be included in the articles of a company in order to constitute it a private company but default is made in complying with any of those provisions, the company shall cease to be entitled to any privilege or exemption conferred on private companies under any of the provisions of this Act, and thereupon the provisions of this Act shall apply to the company as if it were a public company: Consequences of default in complying with conditions constituting a company a private Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may on the application of the company or any other person interested and on such terms and conditions as seem to the court just company No. 12 Companies 2002 39 and expedient, order that the company be relieved from such consequences as aforesaid.

29.-(I) If a private company alters its articles such that they no longer Company ceasing to include the provisions required under section 27, the company shall, as on the date of the alteration, cease to be a private company and shall amend its memorandum so as to state that it is a public company Within a period of fourteen days, it shall send notification to the Registrar in the prescribed form along with a copy of the memorandum as altered. The Registrar shall then issue a certificate to the effect that the company is a public company.

(2) If default is made in complying with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine.

CHAPTER 11 COMPANY NAMES

30.-(I) The Registrar may, on written application, reserve a name pending registration of a company or a change of name by a company. Any such reservation shall remain in force for a period of thirty days or such longer period not exceeding sixty days, as the registrar may, for special reasons, allow, and during such period no other company shall be entitled to be registered with that name.

(2) No name shall be reserved and no company shall be registered by a name which, in the opinion of the Registrar, is the same as or too like a name appearing in the index of company names or is otherwise undesirable.

31.-(I) A company may by special resolution and, with the approval of the Registrar signified in writing change its name. If the Registrar reftises to give his approval, he shall give his reasons.

Change of name

(2) If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name is registered by a name which, in the opinion of the Registrar, is too like the name by which a company in existence is registered, the first mentioned company may change its name with the sanction of the Registrar and, if he so directs within six months of its being registered by that name, shall change it within a period of six weeks from the date of the direction or such longer period as the Registrar may think fit to allow. 40 No. 12 Companies 2002

(3) Where a company changes its name under this section, it shall within fourteen days give to the Registrar notice thereof and the Registrar shall, subject to the provisions of section 30(2), enter the new name on the register in place of the former name, and shall issue to the company a certificate of change of name, and shall notify such change of name in the Gazette.

(4) A change of name by a company under this section shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.

32.-(I) Where it is proved to the satisfaction of the Registrar that an association about to be formed as a private company is to be formed for promoting commerce, art, science, education, religion, charity or any other useful or social object, and intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Registrar may by licence direct that the association may be registered as a private company with limited liability, without the addition of the word ''limited'' to its name, and the association may be registered accordingly and shall on registration, enjoy all the privileges and (subject to the provisions of this section) be subject to all the obligations of limited companies.

''Limited''

(2) Where it is proved to the satisfaction of the Registrar: -

(a) that the objects of the company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto;

(b) that by its constitution the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members; and

(b) that by its constitution the company is required on its winding up to transfer all the assets which would otherwise be generally available to the members either to another body with objects similar to its own or to another body the objects of which are the promotion of charity or anything incidental or conducive thereto, No. 12 Companies 2002 41 the Registrar may by licence authorize the company to make by special resolution a change in its name including or consisting of the omission of the word ''limited'' and sections 31(3) and 31(4) shall apply to a change of name under this subsection as they apply to a change of name under that section.

(3) A licence by the Registrar under this section may be granted on such conditions and subject to such regulations as the Registrar thinks fit, and those conditions and regulations shall be binding on the body to which the licence is granted, and where the grant is under subsection (1) shall, if the Registrar so directs, be inserted in the memorandum and articles, or in one of those documents.

(4) A company which is exempt from requirements relating to the use of the word ''limited'' and does not include that word as part of its name, is also exempt from the requirements of this Act relating to the publication of its name and the sending of lists of members to the Registrar of companies.

(5) The Registrar may revoke a licence under this section and upon revocation the Registrar shall enter in the register the word ''limited'' at the end of the name of the body to which it was granted, and the body shall cease to enjoy the exemptions granted by this section: Provided that, before any revocation is effected, the Registrar shall give to the body in writing a statement of his intention, and shall afford it an opportunity of being heard in opposition to the revocation.

(6) A body in respect of which a licence under this section is in force may not alter the provisions of its memorandum or its articles with respect to those requirements referred to in subsection (2) without the consent of the Registrar. The Registrar may (unless he sees fit to revoke the licence) vary the licence by making it subject to such condi- tions and regulations as he may think fit, in lieu of or in addition to the conditions and regulations, if any, to which the licence was formerly subject.

(7) If the body makes default in complying with the requirements of this subsection, the body and every officer of the body who is in default shall be liable to a default fine

33.-(I) If in the Minister's opinion the name by which a company is registered gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public, he may direct it to change its name.

(2) The direction must, if not duly made the subject of an application to the court under subsection (3), be complied with within a period of 6 weeks from the date of the direction or such longer period as the Registrar may think fit to allow.

(3) The company may, within a period of 3 weeks from the date of the direction, apply to the court to set it aside; and the court may set the direction aside or confirm it and, if it confirms the direction, shall specify a period within which it must be complied with.

(4) If a company makes default in complying with a direction under this section, it is liable to a fine and, for continued contravention, to a default fine.

(5) Where a company changes its name under this section, the Registrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; and the change of name has effect from the date on which the altered certificate is issued.

(6) A change of name by a company under this section does not affect any of the rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings that might have been continued or commenced against it under its former name may be continued or commenced against it under its new name.

34.-(I) If any person trades or carries on any business or profession under a name or title of which ''limited'', or any contractions or imitation of that word, is the last word, that person, unless duly incorporated with limited liability, is guilty of an offence.

(2) A person who is not a public company is guilty of an offence if he carries out any trade, profession or business under a name which includes, as its last part, the words ''public limited company'' or any contractions thereof etc No. 12 Companies 2002 43

(3) A public limited company is guilty of an offence if in circumstances in which the fact that it is a public company is likely to be material to any person, it uses a name which may reasonably be expected to give the impression that it is a private company.

(4) A person guilty of an offence under subsections (1), (2) or (3) and, if that person is a company, any officer of the company who is in default, is liable to a fine and, for continued contravention, to a default fine.

CHAPTER III A COMPANY'S CAPACITY; FORMALITIES OF CARRYING ON BUSINESS

  • 35.-(l) The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company's memorandum.

(2) A member of a company may bring proceedings to restrain the doing of an act which but for subsection (1) would be beyond the company's capacity; but no such proceedings shall lie in respect of an act to be done in fulfillment of a legal obligation arising from a previous act of the company.

36.-(I) Subject to subsection (5), in favor of a person dealing with a company in good faith, the power of the board of directors to bind the company, or authorize others to do so, shall be deemed to be free of any limitation under the company's constitution.

(2) For this purpose - A person ''deals with'' a company if he is a party to any transaction or other act to which the company is a party;

(a) a person shall not be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors under the company's constitution; and

(b)

(c) a person shall be presumed to have acted in good faith unless the contrary is proved.

(3) The references above to limitations on the directors' power under the company's constitution include limitations deriving - from a resolution of the company in general meeting or a meeting of any class of shareholders, or

(a)

(b) from any agreement between the members of the company or of any class of shareholders.

(4) Subsection (1) does not affect any right of a member of the company to bring proceedings to restrain the doing of an act which is beyond the powers of the directors; but no such proceedings shall lie in respect of an act to be done in fulfillment of a legal obligation arising from a previous act of the company. Nor does that subsection affect any liability incurred by the director, or any other person, by reason of the directors' exceeding their powers.

(5) This section shall not apply in relation to any transaction or other act to which the company is a party where the person dealing with the company is a director of that company or its holding company or a connected person as defined in section 200(4). No duty to 37. A party to a transaction with a company is not bound to enquire as to whether it is permitted by the company's memorandum or as to any limitation on the powers of the board of directors to bind the company enquire as to capacity of company or authority of or authorize others to do so. Directors Company

38. A contract may be made - contracts

(a) by a company, by writing under its common seal, or

(b) on behalf of a company, by any person acting under its authority, express or implied,and any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company.

39.-(I) A document is executed by a company by the affixing of its common seal. A company need not have a common seal, however, and the following subsections apply whether it does or not.

(2) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.

(3) A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed.

(4) In favour of a purchaser, a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the comparty, and where it makes it clear on its face that it is intended by the person or persons making it to be a deed, shall be deemed to have been delivered upon its being executed. A ''Purchaser'' means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

(5) For the purposes of any enactment providing for a document to be executed by a company by affixing its common seal, or referring in whatever terms to a document so executed, a document signed or subscribed by or on behalf of the company in accordance with the provisions of this Act shall have effect as if so executed.

40.-(l) A contract which purports to be made by or on behalf of a company at a time when the company has not been formed has effect, subject to any agreement to the contrary, as one made with the person purporting to act for the company or as agent for it, and he is personally liable on the contract accordingly.

(2) Subsection (1) applies to the making of a deed as it applies to the making of a contract.

41. A bill of exchange or promissory note shall be deemed to have been made, accepted, or endorsed on behalf of a company if made, accepted, or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority, express or implied. 46 No. 12 Companies 2002

42.-(I) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place outside Tanzania.

(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.

43.-(I) A company which has a common seal whose objects require or comprise the transaction of business outside Tanzania may, if authorized by its articles, have for use in any place outside Tanzania, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of every place where it is to be used.

(2) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.

(3) A company having an official seal for use in any such place may, by writing under its common seal, authorize any person appointed for the purpose in that place, to affix the official seal to any deed or other document to which the company is party in that place.

(4) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent's authority has been given to the person dealing with him.

(5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instrument to which the seal is affixed, the date on which and the place at which it is affixed.

44. A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorized officer of the company, and need not be under its common seal.

Authentication of documents No. 12 Companies 2002 47

PART III SHARE CAPITAL AND DEBENTURES

45.-(I) In this part, sections 46-54 and 58 shall apply to public

(2) A private company (other than a company limited by guarantee and not having a share capital) commits an offence if it -

(a) offers to the public (whether for cash or otherwise) any shares in or debentures of the company; or

(b) allots or agrees to allot (whether for cash or otherwise) any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public.

(3) A company guilty of an offence under subsection (2), and any officer of it who is in default, is liable to a fine.

(4) Nothing in this section affects the validity of any allotment or sale of shares or debentures, or of any agreement to allot or sell shares or debentures. Offer documents

46. An offer document issued by or on behalf of a company or in relation to an intended company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the offer document.

Dating of offer document

47.-(I) Every offer document issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, must state the matters specified and contain the reports required to be included from time to time in regulations made by the Minister for the time being responsible for finance, or by the Capital Markets and Securities Authority or such other authority as may be designated by that Minister for the purpose. Matters to be stated and reports to be set out in offer document

(2) A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document or matter not specifically referred to in the offer document, shall be void.

(3) It shall not be lawful to issue any form of application for shares in or debentures of a company unless the form is issued with an offer document which complies with the requirements of this section.

(4) In the event of non-compliance with or contravention of any of the requirements of this section, a director or other person responsible for the offer document shall not incur any liability by reason of the noncompliance or contravention, if - as regards any matter not disclosed, he proves that he had no knowledge thereof; or

(a)

(b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or

(c) the non-compliance or contravention was in respect of matters which in the opinion of the court dealing with the case were immaterial or was otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused.

(5) This section shall apply to an offer document or a form of application whether issued on or with reference to the formation of a company or subsequently.

(6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act.

(7) If any person acts in contravention of the provisions of this section, he shall be liable to a fine.

48.-(I) An offer document inviting persons to subscribe for shares in or debentures of a company and including a statement purporting to be made by an expert shall not be issued unless: -containing he has given and has not, before delivery of a copy of the offer document for registration, withdrawn his written consent to the

(a) statement by him No. 12 Companies 2002 49 issue thereof with the statement included in the form and context in which it is included; and

(b) a statement that he has given and has not withdrawn his consent appears in the offer document.

(2) If any offer document is issued in contravention of this section the company and every person who is knowingly a party to the issue thereof shall be liable to a fine.

(3) In this Part the expression ''expert'' includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him.

49.-(l) No offer document shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the registrar for registration a copy thereof approved by the Capital Markets and Securities Authority and signed by every person who is named therein as a director or proposed director of the company, or by his agent authorized in writing, and having endorsed thereon or attached thereto: Registration of offer document

(a) any consent to the issue of the offer document required by section 48 from any person as an expert; and

(b) a copy of any contract, statement or other document required pursuant to section 47.

(2) Every offer document shall: -

(a) state that a copy has been delivered for registration as required by this section; and

(b) specify, or refer to statements included in the offer document which specify, any documents required by this section to be endorsed on or attached to the copy so delivered.

(3) The Registrar shall not register an offer document unless it is dated, approved by the Capital Markets and Securities Authority, and the copy thereof signed as required by this section, and unless it has endorsed thereon or attached thereto the documents (if any) specified as above.

(4) If an offer document is issued without a copy thereof being delivered in accordance with this section to the registrar or without the copy so delivered having attached thereto the required documents, the company, and every person who is knowingly a party to the issue of the offer document, shall be liable to a fine for every day from the date of the issue of the offer document until a copy thereof is so delivered with the required documents attached thereto.

50.-(l) Subject to the provisions of this section, where an offer doculiability invites persons to acquire shares in or debentures of a company, the following persons shall be liable to pay compensation to all persons who acquire any shares or debentures in reliance on the offer document for the loss or damage they may have sustained by reason of any untrue statement included therein -

(a) the company or, where the company does not offer the shares or debentures, the offeror thereof,

(b) every person who is a director of the company or, as the case may be, the offeror at the time of the issue of the offer document;

(c) every person who has authorized himself to be named and is named in the offer document as a director of the company, or as the case may be, the offer or or as having agreed to become such a director whether immediately or after an interval of time;

(d) every person being a promoter of the company; and every person who has authorized the issue of the offer document or any part thereof*

(e) Provided that where, under section 48, the consent of a person is required to the issue of an offer document and he has given that consent, he shall not by reason of his having given it be liable under this subsection as a person who has authorized the issue of the offer document except in respect of an untrue statement purporting to be made by him as an expert.

(2) A person shall not incur any liability under this section if at the time when the offer document was delivered for registration he reasonably believed, having made such enquiries (if any) as were reasonable, that the untrue statement was true and not misleading or that the matter whose omission caused the loss was properly omitted and -

(a) he continued in that belief until the time when the shares or debentures were acquired; or

(b) they were acquired before it was reasonably practicable to bring a correction to the attention of persons likely to acquire the shares or debentures in question; or

(c) before the same were acquired he had taken all such steps as it was reasonable for him to have taken to secure that a correction was immediately brought to the attention of those persons; or

(d) the shares or debentures were acquired after such a lapse of time that he ought in the circumstances to be reasonably excused and, if the same are dealt in on a stock exchange, that he continued in that belief until after the commencement of dealings therein on that exchange.

(3) A person shall not incur any liability under this section for any loss caused by a statement purporting to be made by or on the authority of another person as an expert which is, and is stated to be, included in the offer document with that other person's consent if at the time when the offer document was delivered for registration he believed on reasonable grounds that the other person was competent to make or authorize the statement and had consented to its inclusion in the form and context in which it was included and -

(a) he continued in that belief until the time when the shares or debentures were acquired; or

(b) they were acquired before it was reasonably practicable to bring the fact that the expert was not competent or had not consented to the attention of persons likely to acquire the shares or debentures in question; or

(c) before the same were acquired he had taken all such steps as it was reasonable for him to have taken to secure that the fact was immediately brought to the attention of those persons; or

(d) the shares or debentures were acquired after such a lapse of time that he ought in the circumstances to be reasonably excused and, if the same are dealt in on a stock exchange, he continued in that belief until after the commencement of dealings therein on that exchange.

(4) A person shall not incur any liability under this section for any loss caused by any such statement or omission if before the shares or debentures were acquired, a correction or, where the statement was such as is mentioned in subsection (3), the fact that the expert was not competent or had not consented had been published in a manner calculated to bring it to the attention of persons likely to acquire the shares or debentures in question; or

(a)

(b) he took all such steps as it was reasonable for him to take to secure such publication and reasonably believed that it had taken place before the shares or debentures were acquired.

(5) A person shall not incur any liability under this section for any loss resulting from a statement made by a public official or contained in a public official document which is included in the offer document if the statement was accurately and fairly reproduced.

(6) A person shall not incur any liability under this section if the person suffering the loss acquired the shares or debentures in question with knowledge that the statement was untrue.

(7) For the purposes of subsection (1), the expression ''promoter'' means a promoter who was a party to the preparation of the offer document, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company. Criminal 51.-(l) Where an offer document issued after the commencement of liability for this Act includes any untrue statement, any person who authorised the mis-stateissue of the offer document shall be liable on conviction to imprisonment, or a fine, or both, unless he proves either that the statement was immaterial or that he had reasonable ground to believe and did, up to the time of the issue of the offer document, believe that the statement was true. in offer document

(2) A person shall not be deemed for the purpose of this section to have authorized the issue of a offer document by reason only of his having given the consent required by section 48 to the inclusion therein of a statement purporting to be made by him as an expert.

52.-(1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed Document containing offer of shares or debentures for sale to to be an offer document issued by the company, and the provisions of this Part and all or any rules of law as to the contents of offer documents and to liability in respect of statements in and omissions from offer documents, or otherwise relating to offer documents, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made in respect of mis-statements contained in the document or otherwise in respect thereof.

(2) For the purposes of this Act, it shall, unless the contrary is proved, be evidence that an allotment of, or an agreement to allot shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown -

(a) that an offer of the shares or debentures or of any of them for sale to the public was made within six months after the allotment or agreement to allot; or

(b) that at the date when the offer was made the whole consideration to be received by the company in respect of the shares or debentures had not been so received.

(3) Section 47 as applied by this section shall have effect as if it is required by an offer document to state in addition to the matters required by or pursuant to that section to be stated in an offer document-

(a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and

(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected, and section 49 as applied by this section shall have effect as though the persons making the offer were persons named in an offer document as directors of a company.

(4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document is signed on behalf of the company or firm by two directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorized in writing.

53. For the purpose of the foregoing provisions of this Part - of provisions relating to (a) a statement included in an offer document shall be deemed to be untrue if it is misleading in the form and context in which it is included; and offer documents

(b) a statement shall be deemed to be included in an offer document if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.

54. Requirements as to allotments of shares or debentures pursuant to the issue of an offer document, the effect of irregular allotments and other related matters shall be as prescribed from time to time in regulations made by the Minister for the time being responsible for finance, or by the Capital Markets and Securities Authority or such other authority designated for the purpose. ents as to allotments

55.-(1) Whenever a company limited by shares or a company limited by guarantee and having a share capital makes any allotment of its shares, the company shall within sixty days thereafter deliver to the registrar for registration - Return as to allotments

(a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses and descriptions of the allottees, and the amount, if any, paid or due and payable on each share; and

(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottees to the allotment together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.

(2) Where such a contract as above-mentioned is not reduced to writing, the company shall within sixty days after the allotment deliver to the Registrar for registration the prescribed particulars of the contract stamped with the same stamp duty as would have been payable if the contract had been reduced to writing, and those particulars shall be deemed to be an instrument within the meaning of the Stamp Duty Act, and the registrar may as a condition of filing the particulars, require that the duty payable thereon be adjudicated under section 37 of that Act.

Act No. 20 of 1972

(3) If default is made in complying with this section, every officer of the company who is in default shall be liable to a default fine. Commissions and Discounts, Financial Assistance

56.-(I) It shall be lawful for a company to pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company if - all other

(a) the payment of the commission is authorized by the articles; commissions,

(b) the commission paid or agreed to be paid does not exceed ten counts, etc. per cent of the price at which the shares are issued or the amount or rate authorised by the articles, whichever is the less;

(c) the amount or rate per cent of the commission paid or agreed to be paid is in the case of shares offered to the public for sub scription, disclosed in the offer document; and

(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in the manner aforesaid.

(2) Save as aforesaid, no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount or allowance, to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares or money be so applied by being added to the purchase money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money be paid out of the nominal purchase money or contract price, or otherwise.

(3) Nothing in this section shall affect the power of any company to pay such brokerage as it has prior to the appointed day been lawful for a company to pay.

(4) A vendor to, promoter of, or other person who receives payment in money or shares from a company shall have and shall be deemed always to have had power to apply any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been legal under this section.

57.-(I) Subject as provided in this section, it shall not be lawful for a company to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company, or, where the company is a subsidiary company, in its holding company: own, or its holding Provided that nothing in this section shall be taken to prohibit -

(a) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business: any of them of the company . or any such other company, including any director holding a salaried employment or office in the company or any such other company; the making by a company of loans to persons other than directors, bonafide in the employment of the company with a view to enabling those persons to purchase or subscribe for fully paid shares in the company or its holding company to be held by themselves by way of beneficial ownership;

(c)

(d) the lawful distribution by a company of any of its assets by way of dividends or otherwise.

(2) If a company acts in contravention of this section, the company and every officer of the company who is in default shall be liable to a fine.

(3) The Capital Markets and Securities Authority may certify that the provisions of subsection (1) shall not apply to a company in respect of any particular transaction.

(4) This section shall not apply to private companies. Construction of References to Offering Shares or Debentures to the Public

58.-Any reference in this Act to offering shares or debentures to the public shall, subject to any provision to the contrary contained therein,Construction of references to be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the debentures company concerned or as clients of the person issuing the offer document or in any other manner, and references in this Act or in a company's articles to invitations to the public to subscribe for shares or debentures to the public shall, subject as aforesaid, be similarly construed. offering shares or

(2) Subsection (1) shall not be taken as requiring any offer or invitation to be treated as made to the public if it can properly be regarded, in all the circumstances, as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation, or otherwise as being a domestic concern of the persons making and receiving it, and in particular a provision in a company's articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be so regarded.

(3) An offer of shares or debentures for subscription or sale to any person whose ordinary business is to buy or sell shares or debentures, whether as principal or agent, shall not be deemed an offer to the public for the purposes of this Part. Issue of Shares at Premium and Discount and Redeemable Shares

59.-(I) Where a company issues shares at a premium whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called ''the share premium account'', and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the company.

(2) The share premium account may, notwithstanding anything in subsection (1), be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares, in writing off -

(a) the preliminary expenses of the company; or

(b) the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company, or in providing for the premium payable on redemption of any redeemable shares or of any debentures of the company.

(3) Where a company has before the appointed day issued any shares at a premium, this section shall apply as if the shares had been issued after the appointed day: Provided that any part of the premiums which has been so applied that it does not at the appointed day form an identifiable part of the company's reserves shall be disregarded in determining the sum to be included in the share premium account.

60.- (1) Subject as provided in this section, it shall be lawful for a company to issue at a discount shares in the company of a class already issued: Power to issue shares at a discount Provided that - the issue of the shares at a discount must be authorised by resolution passed in general meeting of the company, and must be sanctioned by the court;

(a)

(b) the resolution must specify the maximum rate of discount at which the shares are to be issued; not less than one year must, at the date of the issue, have elapsed since the date on which the company was entitled to commence business;

(c)

(d) the shares to be issued at a discount must be issued within one month after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.

(2) Where a company has passed a resolution authorising the issue of shares at a discount, it may apply to the court for an order sanctioning the issue, and on any such application the court may make an order sanctioning the issue on such terms and conditions as it thinks fit.

(3) Every offer document relating to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the offer document.

(4) If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

61.-(I) Subject to the provisions of this section, a company limited by shares may, if so authorised by its articles, issue shares which are, or at the option of the company are to be liable, to be redeemed: Provided that -

(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;

(b) no such shares shall be redeemed unless they are fully paid;

(c) the premium, if any, payable on redemption, must have been provided for out of the profits of the company or out of the company's share premium account before the shares are redeemed;

(d) where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividend be transferred to a reserve fund to be called ''the capital redemption reserve fund'', a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid up share capital of the company.

(2) Subject to the provisions of this section, the redemption of shares may be effected on such terms and in such manner as may be provided by the articles of the company.

(3) The redemption of shares under this section by a company shall not be taken as reducing the amount of the company's authorised share capital.

(4) Where in pursuance of this section a company has redeemed or is about to redeem any shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued, and accordingly the share capital of the company shall not for the purpose of any enactments relating to tax on nominal capital be deemed to be increased by the issue of shares in pursuance of this subsection: Provided that, where new shares are issued before the redemption of old shares, the new shares shall not, so far as relates to tax on nominal capital, be deemed to have been issued in pursuance of this subsection unless the old shares are redeemed within one month after the issue of the new shares.

(5) The capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares.

Miscellaneous Provisions as to Share Capital

62. A company, if so authorised by its articles, may do any one or more of the following things - Power of company to arrange for

(a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares; different amounts being paid on shares

(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;

(c) pay dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.

63. A limited company may by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes aforesaid. Reserve liability of limited company

64.-(1) A company limited by shares or a company limited by guarantee and having a share capital, if so authorised by its articles, may to alter its alter the conditions of its memorandum as follows, that is to say, it may- share capital increase its share capital by new shares of such amount as it thinks expedient;

(a) Power of company

(b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;

(c) convert all or any of its paid up shares into stock, and reconvert that stock into paid up shares of any denomination;

(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;

(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

(2) A cancellation of shares in pursuance of this section shall not be deemed to be a reduction of share capital within the meaning of this Act.

65.-(l) If a company having a share capital has - Notice to registrar of consolidation-

(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or of share capital,conversion

(b) converted any shares into stock; or

(c) re-converted stock into shares; or

(d) subdivided its shares or any of them; or

(e) redeemed any redeemable shares; or of shares into stock, etc. cancelled any shares, otherwise than in connection with a reduction of share capital under section 69, it shall within thirty days after so doing give notice thereof to the registrar specifying, as the case may be, the shares consolidated, divided, converted, sub-divided, redeemed or cancelled, or the stock re-converted.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

66.-(I) Where a company having a share capital, whether its shares have or have not been converted into stock, has increased its share capital beyond the registered capital, it shall, within thirty days after the passing of the resolution authorising the increase, give to the Registrar notice of the increase. Notice of increase of share capital

(2) The notice to be given shall include such particulars as may be prescribed with respect to the classes of shares affected and the conditions subject to which the new shares have been or are to be issued, together with details of the amount of issued share capital of each class at the date of the notice, and there shall be forwarded to the Registrar together with the notice a printed copy of the resolution authorizing the increase.

(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

67. An unlimited company having a share capital may, by its resolution for registration as a limited company in pursuance of this Act, do either or both of the following things, namely - Power of unlimited company to provide for reserve increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up except in the event and for the purposes of the company being wound up;

(a) share capital on reregistration

(b) provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up. Reduction of Share Capital

68. Sections 69-72 inclusive shall not apply to an open-ended investment company whose establishment has been duly authorised under the Capital Markets and Securities Act. Dis application re. opened investment companies Act No. 5 of 1994

69.-(I) A company limited by shares or a company limited by guarantee and having a share capital may, if so authorised by its articles and as provided herein, by special resolution reduce its share capital in any way, and in particular, may Special resolution for reduction of share capital extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or

(a)

(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid up share capital which is lost or unrepresented by available assets; or either with or without extinguishing or reducing liability on any of its shares, pay off any paid up share capital which is in excess of the requirements of the company,

(c) and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.

(2) The notice given of the intention to propose the special resolution to reduce the company's share capital shall be accompanied by a directors' certificate of solvency given in accordance with section 70 and, where appropriate, the auditors' report thereon prepared in accordance with section 70.

(3) Subject to section 71, a special resolution passed reducing the share capital of a company shall not take effect until after the resolution has been filed with the registrar and the resolution shall not, in any event, be filed with the Registrar until thirty five days from the date that it was passed.

(4) A special resolution reducing the share capital of a company shall be advertised in the Gazette and, in the case of a public company, one national newspaper, in each case within five working days of the resolution having been passed. If the company fails to comply with this subsection, the directors shall be liable to a fine. Directors' 70.-(I) Where it is proposed to pass a resolution reducing the share capital of a company, the directors or a majority of them shall certify that they have made a fall inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company certificate of solvency will be able to pay its debts in full within twelve months from the date of the certificate or, if the company is wound up within that period, the date of the commencement of the winding up.

(2) If the company has auditors, the directors' certificate shall be accompanied by a report from the auditors to the effect that they have enquired into the state of the company's affairs and are not aware of anything to indicate that the directors' certificate of solvency is unreasonable.

(3) Any director of a company giving a certificate under this section without having reasonable grounds for his opinion shall be liable to imprisonment or to a fine or to both; and if the company is wound up in pursuance of a resolution passed within the period of twelve months after the giving of the certificate, but its debts are not paid or provided for in full within the period stated in the certificate, it shall be presumed unless the contrary is shown that the director did not have reasonable grounds for his opinion.

71.-(l) In the case of a reduction in the share capital of the company other than for the purpose specified in section 69 (1)(b), any creditor of court by the company may apply to the court to object to the proposed reduction on the grounds that his position as creditor would be materially prejudiced by the reduction.

(2) An application under this section shall be made - within twenty eight days of the advertisement of the special resolution in the Gazette or, where appropriate, national newspaper;

(a) or

(b) in the case of a failure to advertise the special resolution as required by section 69(4), within such further period as the court may think just.

(3) On an application under this section the court may make an order prohibiting the reduction or confirming the reduction either wholly or in part and on such terms and conditions as it thinks fit.

(4) An alteration in the memorandum of a company made by virtue of an order under this section is of the same effect as if duly made by Application to resolution, and this Act shall apply accordingly to the memorandum so altered.

72.-(l) In the case of a reduction in capital that is not effected in accordance with sections 69-7 1, including the case where a certificate is given by directors under section 70 where the directors did not have reasonable grounds to believe in its truth, any creditor of the company that would have been entitled to object to the proposed reduction under section 71 may apply to the court to object to the reduction on the grounds that his position as creditor has been materially prejudiced by the reduction.

(2) On an application under this section the court may make such order as it thinks fit, including an order that every member of the company at the date of the passing of the special resolution reducing the share capital having knowledge of the failure to comply with sections 69-71 and, where appropriate, every director giving a directors' certificate under section 70, shall be liable to:

(a) contribute to the payment of the debt or claim of the creditor, save that in the case of a member this shall be in an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before the date of the passing of the special resolution; or

(b) contribute to the repayment of the sum by which the share capital of the company was reduced as a result of the passing of the special resolution.

(3) Nothing in this section shall affect the rights of the contributories among themselves.

Variation of Shareholders'Rights

73.-(l) If in the case of a company, the share capital of which is divided into different classes of shares, provision is made by the memorandum. or articles for authorising the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of the said provision the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than ten per cent of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled, and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.

(2) An application under this section shall be made by petition within thirty days after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the shareholders entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.

(3) On any such application, the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if it is satisfied, having regard to all the circumstances of the case, that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation, and shall, if not so satisfied, confirm the variation.

(4) The decision of the court on any such application shall be final.

(5) The company shall within thirty days after the making of an order by the court on any such application forward a certified copy of the order to the registrar, and, if default is made in complying with this provision, the company and every officer of the company who is in default shall be liable to a default fine.

(6) The expression ''variation'' in this section includes abrogation and the expression ''varied'' shall be construed accordingly. Transfer of Shares and Debentures, Evidence of Title, etc.

74. The shares or other interest of any member in a company shall be movable property transferable in manner provided by the articles of the company.

75.-(I) An approved stock exchange may establish a depository in which issued securities may be maintained provided that the Authority or other ruling body of such exchange shall prescribe rules relating to safe custody, transfer and reports to be filed with the registrar relating to transactions concerning the deposited securities

(2) The rules prescribed under subsection (1) shall be satisfactory to the registrar.

(3) Transfer of securities deposited in a depository maintained by an approved stock exchange shall be effected in accordance with transfer procedures prescribed under the rules of such exchange.

76. Each share in a company having a share capital shall be distinguished by its appropriate number: - Provided that, if at any time all the issued shares in a company, or all the issued shares therein of a particular class, are fully paid up and rank paripassu for all purposes, none of those shares need thereafter have a distinguishing number so long as it remains fully paid up and ranks pari passu for all purposes with shares of the same class for the time being issued and fully paid up.

77. Notwithstanding anything in the articles of a company, it shall not be lawful for the company to register a transfer of shares in or debentures of the company unless a proper instrument of transfer duly stamped has been delivered to the company: - Provided that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in or debentures of the company has been transmitted by operation of law.

78. A transfer of the share or other interest of a deceased member of a company made by his personal representative shall, although the personal representative is not himself a member of the company, be as valid as if he had been such a member at the time of the execution of the instrument of transfer. Transfer by personal representative

79. On the application of the transfer or of any share or interest in a company, the company shall enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.

80.-(l) If a company refuses to register a transfer of any shares or debentures, the company shall, within sixty days after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

81.-(I) The certification by a company of any instrument of transfer of shares in or debentures of the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transfer or named in the instrument of transfer, but not as a representation that the transfer or has any title to the shares or debentures.

(2) Where any person acts on the faith of false certification by a company made negligently, the company shall be under the same liability to him as if the certification had been made fraudulently.

(3) For the purposes of this section -

(a) an instrument of transfer shall be deemed to be certificated if it bears the words ''certificate lodged'' or words to the like effect;

(b) the certification of an instrument of transfer shall be deemed to be made by a company if -

(i) the person issuing the instrument is a person authorized to issue certificated instruments of transfer on the company's behalf-, and

(ii) the certification is signed by a person authorized to certificate transfers on the company's behalf or by any officer or servant either of the company or of a body corporate so authorized;

(c) a certification shall be deemed to be signed by any person if -

(i) it purports to be authenticated by his signature or initials (whether handwritten or not); and

(ii) it is not shown that the signature or initials was or were placed there neither by himself nor by any person authorized to use the signature or initials for the purpose of certificating transfers on the company's behalf.

82.-(l) Every company shall, within sixty days after the allotment of any of its shares, debentures or debenture stock and within two months after the date on which a transfer of any such shares, debentures or debenture stock is lodged with the company, complete and have ready for delivery the certificates of all shares, the debentures and the certificates of all debenture stock allotted or transferred, unless the conditions of issue of the shares, debentures or debenture stock otherwise provide. The expression ''transfer'' for the purpose of this subsection means a transfer duly stamped and otherwise valid, and does not include such a transfer as the company is for any reason entitled to refuse to register and does not register.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

(3) If any company on whom a notice has been served requiring the company to make good any default in complying with the provisions of subsection (1) fails to make good the default within ten days after the service of the notice, the court may, on the application of the person entitled to have the certificates or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of the company responsible for the default.

83.- (1) A certificate, under the common seal of the company, specifying any shares held by any member, shall be prima facie evidence of the title of the member to the shares.

(2) A depository receipt, issued by a depository established under section 75(1), shall be prima facie evidence of the title to the interest represented by the receipt.

84. The production to a company of any document which is by law sufficient evidence of -

(a) probate of the will, or letters of administration of the estate, of a deceased person having been granted to some person; or

(b) the Administrator-General having undertaken administration of an estate under the Administrator-General's Ordinance (Cap. 27). Provided that a company shall not be bound to give notice under this shall be accepted by the company, notwithstanding anything in its articles, as sufficient evidence of such grant or undertaking.

85.-(l) A company limited by shares, if so authorized by its articles, may, with respect to any fully paid-up shares, issue under its common seal a warrant stating that the bearer of the warrant is entitled to the shares therein specified, and may provide, by coupons or otherwise, for the payment of the future dividends on the shares included in the warrant. ''share warrant''.

(2) Such a warrant is in this Act termed a

(3) A share warrant shall entitle the bearer thereof to the shares therein specified, and the shares may be transferred by delivery of the warrant.

86. If any person falsely and deceitfully impersonates any owner of impersona- any share or interest in any company, or of any share warrant or coupon, issued in pursuance of this Act, and thereby obtains or endeavours to obtain any such share or interest or share warrant or coupon, or receives or endeavours to receive any money due to any such owner, as if the offender were the true and lawful owner, he shall be guilty of an offence, and shall on conviction thereof be liable to imprisonment or to afine or both.

87. -(I) If any person: Offences in

(a) with intent to defraud, forges or alters, or offers, or disposes of, knowing the same to be forged or altered, any share warrant or coupon, or any document purporting to be a share warrant or by means of any such forged or altered share warrant, coupon or document, demands or endeavours to obtain or receive any share or interest in any company under this Act, or to receive any dividend or money payable in respect thereof, knowing the warrant, coupon or document to be forged or altered, he shall be guilty of an offence and shall on conviction thereof be liable to imprisonment or to a fine or both.

(b) Penalty for warrants to bearer

(2) If any person: engraves, prints or makes any share warrant or coupon purporting to be:

(a) a share warrant or coupon issued or made by any particular company in pursuance of this Act; or

(i)

(ii) a blank share warrant or coupon so issued or made; or

(iii) a part of such a share warrant or coupon; or

(b) uses any material for the making or printing of any such share warrant or coupon, or of any such blank share warrant or coupon, or any part thereof respectively; or

(c) knowingly has in his custody or possession any material or equipment for the making thereof, he shall be guilty of an offence, and shall on conviction thereof be liable to imprisonment or to a fine or both. Special Provisions as to Debentures

88.-(I) Every company which, after the appointed day, issues a series of debentures shall keep at the registered office of the company a register of holders of such debentures:

(a) where the work of making up such register is done at some office of the company other than the registered office, such register may be kept at such office; and

(b) where the work of making up such register is by arrangement by the company undertaken by some person on behalf of the company, such register may be kept at the office of that person at which the work is done.

(2) Every company shall give notice to the Registrar of the place where the register is kept and of any change in that place:- subsection if the register has, at all times since it came into existence, been kept at the registered office of the company.

89.-(1) Every register of holders of debentures of a company shall, except when duly closed, be open during business hours to the inspec Rights of debenture holders of the registered holder of any such debentures or any holder of shareholders- shares in the company without fee, and of any other person on payment of a fee not exceeding the amount prescribed by the Minister in regulations.

(2) Every registered holder of debentures and every holder of shares in a company may require a copy of the register of the holders of debentures of the company or any part thereof on payment of a fee not exceeding the amount prescribed by the Minister in regulations.

(3) A copy of any trust deed for securing any issue of debentures shall be forwarded to every holder of any such debentures at his request on payment of a fee not exceeding the amount prescribed by the Minister in regulations.

(4) If inspection is refused, or a copy is refused or not forwarded, the company and every officer of the company who is in default shall be liable to a fine, and further shall be liable to a default fine.

(5) Where a company is in default, the court may by order compel an immediate inspection of the register or direct that the copies required shall be sent to the person requiring them.

(6) For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the articles or in the debentures or, in the case of debenture stock, in the stock certificates, or in the trust deed or other document securing the debentures or debenture stock, during such period or periods, not exceeding in the whole thirty days in any year, as may be therein specified.

90.-(l) Subject to the following provisions of this section, any provision contained in a trust deed for securing an issue of debenture, or in any contract with the holders of debentures secured by a trust deed, shall be void in so far as it would have the effect of exempting a trustee thereof from or indemnifying him against liability for breach of trust where he fails to show the degree of care and diligence required of him Liability of as trustee, having regard to the provisions of the trust deed conferring on him any powers, authorities or discretions.

(2) Subsection (1) shall not invalidate -

(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or

(b) any provision enabling such a release to be given: -

(i) on the agreement thereto of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and

(ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.

(3) Subsection (1) shall not operate -

(a) to invalidate any provision in force at the appointed day so long as any person then entitled to the benefit of that provision or afterwards given the benefit thereof under subsection (4) remains a trustee of the deed in question; or

(b) to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force.

(4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3), the benefit of that provision may be given either:

(a) to all trustees of the deed, present and future; or

(b) to any named trustees or proposed trustees thereof, by a resolution passed by a majority of not less than three-fourths in value of the debenture holders present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the court.

91. A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the appointed day, shall not be invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.

92.-(1) Where either before or after the appointed day a company has redeemed any debentures previously issued, then:

(a) unless any provision to the contrary, whether express or im- in certain cases plied, is contained in the articles or in any contract entered into by the company; or

(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled, the company shall have, and shall be deemed always to have had, power to re-issue the debentures, either by re-issuing the same debentures or by issuing other debentures in their place.

(2) Subject to the provisions of section 93 on a re-issue of redeemed debentures the person entitled to the debentures shall have, and shall be deemed always to have had, the same priorities as if the debentures had never been redeemed.

(3) Where a company has either before or after the appointed day deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures remained so deposited.

(4) The re-issue of a debenture or the issue of another debenture in its place under the power by this section given to, or deemed to have been possessed by, a company, whether the re-issue or issue was made before or after the appointed day, shall be treated as the issue of a new debenture for the purposes of stamp duty, but it shall not be so treated for the purposes of any provision limiting the amount or number of debentures to be issued: Provided that any person lending money on the security of a debenture re-issued under this section which appears to be duly stamped may give the debenture in evidence in any proceedings for enforcing his security without payment of the stamp duty or any penalty in respect thereof, unless he had notice or, but for his negligence, might have discovered, that the debenture was not duly stamped, but in any such case the company shall be liable to pay the proper stamp duty and penalty.

93. Where any debentures which were redeemed before I 11 October 1932, have been re-issued after that day and before the appointed day or Saving, in case of reissued are re-issued after the appointed day, the re-issue of the debentures shall not prejudice and shall be deemed not to have prejudiced any right or priority which any person would have had under or by virtue of any mortgage or charge created before such date.

94. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

95.-(1) The following applies in the case of a company where debentures of the company are secured by a charge which, as created, was a floating charge.

(2) Where either a receiver is appointed on behalf of the holders of any debentures of a company secured by a floating charge, or possession is taken by or on behalf of the holders of any of the debentures of any property comprised in or subject to the charge, and the company is not at that time in course of being wound up, the company's preferential debts shall be paid out of assets coming to the hands of the person taking possession in priority to any claims for principal or interest in respect of the debentures.

(3) ''Preferential debts'' means the categories of debts listed in section 367 and for the purposes of that section ''the relevant date'' is the date of possession being taken as above mentioned.'

(4) Payments made under this section shall be recouped, as far as may be, out of the assets of the company available for payment of general creditors.

PART IV REGISTRATION OF CHARGES

Registration of Charges with Registrar

96.-(1) Subject to the provisions of this Part, every charge created by a company registered in Tanzania and being a charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator or administrator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced are delivered to or received by the Registrar for registration in the manner required by this Part within forty two days after the date of its creation.

(2) Subsection (1) is without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this section the money secured thereby shall immediately become payable.

97.-(1) Section 96 applies to the following charges:

(a) a charge for the purpose of securing any issue of debentures;

(b) a charge on uncalled share capital of the company, a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale;

(c)

(d) a charge on land, wherever situated, or any interest therein;

(e)

(f) a charge on book debts of the company; a floating charge on the undertaking or property of the company;

(g) a charge on calls made but not paid;

(h) a charge on a ship, or aircraft, or any share in a ship;

(i) a charge on goodwill, or on any intellectual property.

(2) The Minister may by regulations amend subsection (1) to add any description of charge to, or remove any description of charge from, the charges which may be registered under section 96.

(3) Where a negotiable instrument has been given to secure the payment of any book debts of a company the deposit of the instrument for the purpose of securing an advance to the company shall not for the purposes of this section be treated as a charge on those book debts.

(4) The holding of debentures entitling the holder to a charge on land shall not for the purposes of this section be deemed to be an interest in land.

(5) In this Part:

(a) the expression ''charge'' includes mortgage;

(b) a charge shall be deemed to be created in the case of an instrument creating a charge on the date of the execution thereof by or on behalf of the company, and in the case of a charge created by deposit of title deeds on the date of the deposit thereof,

(c) the following are intellectual property:- any patent trademark, registered design, copyright or design right;

(i)

(ii) any licence under or in respect of such right.

98.-(I) Where a series of debentures containing, or giving by reference to another instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a company, it shall for the purposes of this section be sufficient if there are delivered to or received by the Registrar within forty-two days after the execution of the deed containing the charge or, if there is no such deed, after the execution of any debentures of the series, the following of registration (debentures)

(a) the total amount secured by the whole series;

(b) the date of the resolution authorizing the issue of the series and the date of the covering deed, if any, by which the security is created or defined;

(c) a general description of the property charged; and

(d) the names of the trustees, if any, for the debenture holders, together with the deed containing the charge or a copy thereof verified in the prescribed manner, or, if there is no such deed, one of the debentures of the series. Provided that, where more than one issue is made of debentures in the series, there shall be delivered to the registrar within forty-two days of each issue for entry in the register particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.

(2) Where any commission, allowance or discount has been paid or made either directly or indirectly by a company to any person in consideration of his:-

(a) subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or

(b) procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued: Provided that the deposit of any debentures as security for any debt of the company shall not for the purposes of this subsection be treated as the issue of the debentures at a discount.

99.-(I) In the case of a charge created out of Tanzania comprising property situated outside Tanzania, the delivery to and the receipt by the registrar of a copy verified in the prescribed manner of the instrument by which the charge is created or evidenced, shall have the same effect for the purposes of this section as the delivery and receipt of the instrument itself, and forty-two days after the date on which the instrument or copy could, in due course of post, and if dispatched with due diligence, have been received in Tanzania shall be substituted for forty-two days after the date of the creation of the charge, as the time within which the particulars and instrument or copy are to be delivered to the registrar.

(2) The instrument creating or purporting to create the charge may be sent for registration under this section notwithstanding that further proceedings may be necessary to make the charge valid or effectual.

100.-(l) It shall be the duty of a company to deliver to the Registrar for registration the particulars of every charge created by the company and of the issue of debentures of a series, requiring registration under this Part, but registration of any such charge may be effected on the application of any person interested therein.

(2) Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the Registrar on registration.

(3) If a company fails for a period of forty-two days, or such extended period as the court may have ordered, to deliver to the Registrar for registration the particulars of any charge created by the company, or of the issue of debentures of a series requiring registration, then, unless the registration has been effected on the application of some other person, the company and every officer or other person who is a party to the default shall be liable to a default fine.

101.-(l) Where after the appointed day a company acquires any property which is subject to a charge of any such kind as would, if it had been created by the company after the acquisition of the property, have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, together with a copy (certified in the prescribed manner to be a correct copy) of the instrument, if any, by which the charge was created or is evidenced, to be delivered to the Registrar for Registration within forty-two days after the date on which the acquisition is completed: Provided that, if the property is situated and the charge was created outside Tanzania, forty-two days after the date on which the copy of the instrument could in due course of post, and if dispatched with due diligence, have been received in Tanzania, shall be substituted for forty two days after the completion of the acquisition as the time within which the particulars and the copy of the instrument are to be delivered to the Registrar.

(2) If default is made in complying with this section the company and every officer of the company who is in default shall be liable to a default fine.

102.-(I) The Registrar shall keep for each company a register in such forn as he thinks fit of charges on property of the company and such register shall consist of a file containing with respect to each charge the following particulars:

(a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, the particulars specified in section 98(l),

(b) in the case of any other charge,

G) if it is a charge created by the company, the date of its creation, and if it is a charge which was existing on property acquired by the company, the date of the acquisition, and

(ii) the amount secured by the charge, and

(iii) short particulars of the property charged, and

(iv) the persons entitled to the charge.

(2) The register kept in pursuance of this section shall be open to any person and any person may require the Registrar to provide a certificate stating the date on which any specified particulars or other information relating to a charge were delivered to him.

(3) The Registrar shall give to the company a certificate of the registration of any charge registered in pursuance of and within any period allowed under this Part, stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part as to registration have been complied with.

103.-(1) The company shall cause a copy of every certificate of registration given under section 102(3) to be endorsed on every debenture or certificate of debenture stock which is issued by the company, and the payment of which is secured by the charge so registered: Provided that nothing in this subsection shall be construed as requiring a company to cause a certificate of registration of any charge so given to be endorsed on any debenture or certificate of debenture stock issued by the company before the charge was created.

(2) If a person knowingly and willfully authorizes or permits the delivery of any debenture or certificate of debenture stock which under the provisions of this section is required to have endorsed on it a copy of a certificate of registration without the copy being so endorsed upon it, he shall, without prejudice to any other liability, be liable to a fine.

104. The Registrar on evidence being given to his satisfaction with respect to any registered charge - (a) that the debt for which the charge was given has been paid or satisfied in whole or in part; or

(b) that part of the property or undertaking charged has been re- charge leased from the charge or has ceased to form part of the company's property or undertaking, may enter on the register a memorandum of satisfaction in whole or in part, or the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and where he registers a memorandum of satisfaction in whole he shall, if required, furnish the company with a copy thereof

105. The court, on being satisfied that the omission to register a charge within the time required by this Act or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfaction was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as seem to the court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or mis-statement shall be rectified.

106.-(1) If a person obtains an order for the appointment of a receiver or manager of the property of a company, or appoints such a receiver or manager under any powers contained in any instrument, he shall, within seven days from the date of the order or of the appointment under the said powers, give notice of the fact to the Registrar, and the Registrar shall enter the fact in the register of charges.

(2) Where any person appointed receiver or manager of the property of a company under the powers contained in any instrument ceases to act as such receiver or manager, he shall, within seven days of so ceasing, give the Registrar notice to that effect, and the Registrar shall enter the fact in the register of charges.

(3) If any person makes default in complying with the requirements of this section, he shall be liable to a fine for every day during which the default continues Provisions as to Company's Register of Charges and as to Copies of Instruments Creating Charges

107.-(1) Every company shall cause a copy of every instrument creating any charge requiring registration under this Part to be kept at the registered office of the company.

(2) In the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient. be kept by company

108.-(1) Every limited company shall keep at its registered office a register of charges and enter therein all charges specifically affecting property of the company and all floating charges on the undertaking or any property of the company, giving in each case a short description of the property charged, the amount of the charge, and, except in the case of securities to bearer, the names of the persons entitled thereto.

(2) If an officer of the company knowingly and willfully authorizes or permits the omission of any entry required to be made in pursuant of this section, he shall be liable to a fine.

109-(1) The copies of instruments creating any charge requiring registration under this Part with the Registrar, and the Register of charges kept in pursuance of section 108, shall be open during business hours to the inspection of any creditor or member of the company without fee, and the register of charges shall also be open to the inspection of any other person on payment of such fee as may be prescribed by the Minister in regulations.

(2) If inspection of the said copies or register is refused - any officer of the company refusing inspection, and every director and manager of the company authorizing or knowingly and willfully permitting the refusal, shall be liable to a fine and a further fine for every day during which the refusal continues, and

(a)

(b) the court may by order compel an immediate inspection of the copies or register.

PART V MANAGEMENT AND ADMINISTRATION

CHAPTER I: REGISTERED OFFICE AND NAME

110.-(I) A company shall, at all times have a registered office to which all communications and notices may be addressed.

(2) If default is made in complying with this section the company and every officer of the company who is in default shall be liable to a default fine.

111.-(l) On incorporation, the situation of the company's registered office is that specified in the statement sent to the Registrar under section

(2) The company may change the situation of its Registered office from time to time by giving notice in the prescribed form to the Registrar and such notice shall be given within fourteen days after the date of the change, and the Registrar shall record the same.

(3) The inclusion in the annual return of a company of a statement as to the situation of its registered office shall not be taken to satisfy the obligations imposed by this section.

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

112.-(I) Every company - Publication of name by shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position, in easily legible letters;

(a) company and form of seal

(b) shall, in the case that it has a common seal, have its name engraved in legible letters on its seal; shall have its name and its registered office mentioned in legible letters in all business letters of the company and in all notices and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all invoices, receipts and letters of credit of the company.

(c)

(2) If a company does not paint or affix its name in manner directed by this section, the company and every officer of the company who is in default shall be liable to a fine and if a company does not keep its name painted or affixed in manner so directed, the company and every officer of the company who is in default shall be liable to a default fine.

(3) If a company fails to comply with subsections (1)(b) or (1)(c), the company shall be liable to a fine.

(4) If an officer of a company or any person on its behalf -

(a) uses or authorizes the use of any seal purporting to be a seal of the company without its name as required by subsection (1); or

(b) issues or authorizes the issues of any business letter of the company or any notice or other official publication of the company, or signs or authorizes to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods wherein its name and registered office are not mentioned in manner aforesaid; or

(c) issues or authorizes the issue of any invoice, receipt or letter of credit of the company wherein its name and registered office is not mentioned in manner aforesaid, he shall be liable to a fine and shall further be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless it is duly paid by the company.

Statement of Amount of Paid-Up Capital

113.-(l) Where any notice, advertisement or other official publication of a company contains a statement of the amount of the authorised capital of the company, such notice, advertisement, or other official publication shall also contain a statement in an equally prominent position and in equally conspicuous characters of the amount of the capital which has been subscribed and the amount paid up.

(2) Any company which makes default in complying with the requirements of this section and every officer who is in default shall be liable to a fine.

Restriction on commencement of Business

114.-(l) Where a public company having a share capital has issued an offer document inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless it has complied with the requirements as included from time to time in regulations made by the Minister for the time being responsible for finance, or the Capital Markets and Securities Authority or such other authority as may be designated for the purpose.

(2) If any public company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, without prejudice to any other liability, be liable to a default fine.

CHAPTER 11 REGISTER OF MEMBERS

115-40 Every company shall keep a register of its members and enter in it the following particulars -

(a) the names and addresses of the members, and in the case of a company having a share capital a statement of -

(i) the shares held by each member, distinguishing each share by its number (so long as the share has a number), and where appropriate by its class, and

(ii) the amount paid or agreed to be considered as paid on the shares of each member;

(b) the date at which each person was entered in the register as a member;

(c) the date at which any person ceased to be a member: Provided that where the company has converted any of its shares into stock, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a) of this subsection.

(2) The register of members shall be kept at the registered office of the company: Provided that: if the work of making it up is done at another office of the com party, it may be kept at that other office; and

(a)

(b) if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, it may be kept at the office of that other person at which the work is done, although it shall not be kept at a place outside Tanzania.

(3) Where the register of members is not kept at the registered office, every company shall send notice to the Registrar of the place where it is kept and of any change in that place.

(4) Where a company makes default in complying with subsection (1) or makes default for fourteen days in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a default fine.

116.-(I) Every company having more than fifty members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within fourteen days after the date on which any alteration is made in the register of members, make any necessary alteration in the index. members

(2) The index shall in respect of each member contain a sufficient indication to enable the account of that member in the register to be readily found.

(3) The index shall be at all times kept at the same place as the register of members.

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.

117.-(I) On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered therein as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely Entries

(a) the fact of the issue of the warrant;

(b) a statement of the shares included in the warrant, distinguishing each share by its number; and

(c) the date of the issue of the warrant.

(2) The bearer of a share warrant shall, subject to the articles of the company, be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members.

(3) The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares therein specified without the warrant being surrendered and cancelled.

(4) Until the warrant is surrendered, the particulars specified in subsection (1) shall be deemed to be the particulars required by this Act to be entered in the register of members, and, on the surrender, the date of the surrender must be entered.

(5) Subject to the provisions of this Act, the bearer of a share warrant may, if the articles of the company so provide, be deemed to be a member of the company within the meaning of this Act, either to the full extent or for any purposes defined in the articles.

118.-(I) Except when the register of members is closed under the provisions of this Act, the register, and index of the names of the members of a company shall during business hours be open to the inspection of any member without charge and of any other person on payment of such fee as the Minister may prescribe in regulations.

(2) Any member or other person may require a copy of the register, or of any part thereof, on payment of such fee as the Minister may prescribe in regulations, and the company shall cause any copy so required by any person to be sent to that person within a period of ten days commencing on the day next after the day on which the requirement is received by the company.

(3) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper period, the company and every officer of the company who is in default shall be liable in respect of each offence to a fine.

(4) In the case of any such refusal or default, the court may by order compel an immediate inspection of the register and index or direct that the copies required shall be sent to the person requiring them. Non- 119. Where, by virtue of section 115(2)(b), the register of members is kept at the office of some person other than the company, and by reason of any default of that person the company fails to comply with section 115(3), section 116(3), or section 118 or with any requirements of this Act as to the production of the register, that other person shall be liable to the same penalties as if he were an officer of the company who was in default, and the power of the court under section I 1 8(4) shall extend to the making of orders against that other person and his officers and servants.

120. A company may, on giving notice by advertisement in a newspaper circulating in the district of Tanzania in which the registered office of the company is situated, close the register of members for any time or times not exceeding in the whole thirty days in each year. the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or rectify

(a) register

(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be member, the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.

(2) The court may either refuse the application or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved.

(3) The court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.

(4) In the case of a company required by this Act to send a list of its members to the Registrar, the court, when making an order for rectification of the register, shall by its order direct notice of the rectification to be given to the Registrar.

122. No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the Registrar.

123. The register of members shall be prima facie evidence of any matters by this Act directed or authorized to be inserted therein.

124.-(I) A company having a share capital may, if so authorized by its articles, cause to be kept in any country outside Tanzania a branch register of members resident in that country (in this Act called a ''branch register'').

(2) The company shall give to the Registrar notice of the situation of the office where any branch register is kept, and of any change in its situation, and if it is discontinued, of its discontinuance, and any such notice shall be given within thirty days of the opening of the office or of the change or discontinuance, as the case may be.

(3) If default is made in complying with subsection (2) the company and every officer of the company who is in default shall be liable to a default fine.

125.-(1) A branch register shall be deemed to be part of the company's register of members (in this section called ''the principal register'').

(2) A branch register shall be kept in the same manner in which the principal register is required to be kept by this Act, except that the advertisement before closing the register shall be inserted in some newspaper circulating in the district where the branch register is kept.

(3) The company shall - transmit to its registered office a copy of every entry in its branch register as soon as may be after the entry is made; and

(a)

(b) cause to be kept at the place where the company's principal register is kept a duplicate of its branch register duly entered up from time to time; and Every such duplicate shall for all the purposes of this Act be deemed to be a part of the principal register.

(4) Subject to the provisions of this section with respect to the duplicate register, the shares registered in a branch register shall be distinguished from the shares registered in the principal register, and no transaction with respect to any shares registered in a branch register shall, during the continuance of that registration, be registered in any other register.

(5) A company may discontinue to keep a branch register, and thereupon all entries in that register shall be transferred to the principal register.

(6) Subject to the provisions of this Act, any company may, by its articles, make such provisions as it may think fit respecting the keeping of branch registers.

(7) If default is made in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a fine; and where, by virtue of section 115(2)(b), the principal register is kept at the office of some person other than the company and by reason of any default of that person the company fails to comply subsection (3)(b) of this section, he shall be liable to the same penalty as if he were an officer of the company who was in default.

126. An instrument of transfer of a share registered in a branch register, shall be deemed to be a transfer of property situated out of Tanzania, and, unless executed in any part of Tanzania, shall be exempt from stamp duty chargeable in Tanzania.

127. If, by virtue of the law in force in any country outside Tanzania, companies incorporated under that law have the power to keep in Tanzania branch registers of their members resident in Tanzania, the Minister may by order published in the Gazette direct that section I 1 5(2) except the proviso thereto and sections 11 8 and 121 shall, subject to any modifications and adaptations specified in the order, apply to and in relation to any such branch registers kept in Tanzania as they apply to and in relation to the registers of companies within the meaning of this Act.

CHAPTER III ANNUAL RETURN

128.-(I) Every company shall deliver to the Registrar, successive annual returns each of which is made up to a date not later than the ''return date'', that is:-

(a) the anniversary of the company's incorporation, or

(b) if the company's last return delivered in accordance with this Chapter was made up to a different date, the anniversary of that date.

(2) Each return shall -

(a) be in the prescribed form,

(b) contain the information required under the provisions of this Chapter,

(c) be signed by a Director or the Secretary of the company.

(3) If a company fails to deliver an annual return in accordance with this Chapter within twenty eight days of the return date, the company and every officer of the company who is in default shall be liable to a fine and, in the case of a continued failure to deliver an annual return, to a default fine. For the purpose of this subsection, the expression ''officer'' shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

129.-(I) Every annual return shall state the date to which it is made up and shall contain the following information: -

(a) the address of the company's registered office;

(b) the type of company whether it is (public/private/open-ended investment company) and its principal business activities;

(c) the name and address of the company secretary;

(d) the name and address of every director of the company, and,

(i) in the case of each individual director, his nationality, date of birth, business occupation and such particulars of other directorships as are required to be contained in the company's register of directors,

(ii) in the case of a corporate director, such particulars of other directorships as would be required to be kept in the company's register in the case of an individual; if the register of members is not kept at the company's registered office, the address of the place where it is kept;

(e) if any register of debenture holders (or a duplicate of any such register or part of it) is not kept at the company's registered office, the address of the place where it is kept.

130.-(I) The annual return of a company having a share capital shall contain the information specified under subsections (2), (3), (4) and (5) with respect to its share capital and members.

(2) The annual return shall state the total number of issued shares of the company at the date to which the return is made up and the aggregate nominal value of those shares.

(3) The annual return shall state with respect to each class of shares in the company -

(a) the nature of the class, and

(b) the total number and aggregate nominal value of issued shares of that class at the date to which the return is made up.

(4) The annual return shall contain a list of the names and addresses of every person who -

(a) is a member of the company on the date to which the return is made up, or

(b) has ceased to be a member of the company since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company); and if the names are not arranged in alphabetical order the return shall have annexed to it an index sufficient to enable the name of any person in the list to be easily found.

(5) The annual return shall also state -

(a) the number of shares of each class held by each member of the company at the date to which the return is made up, and

(b) the number of shares of each class transferred since the date to which the last return was made up (or, in the case of the first return, since the incorporation of the company) by each member or person who has ceased to be a member, and the dates of registration of the transfers.

(6) The annual return may, if either of the two immediately preceding returns has given the full particulars required by subsections (4) and (5), give only such particulars as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred since that date.

(7) Subsections (4) and (5) do not require the inclusion of particulars entered in a branch register if copies of those entries have not been received at the company's registered office by the date to which the return is made up and such particulars shall be included in the company's next annual return after they are received.

(8) Where the company has converted any of its shares into stock, the return shall give the corresponding information in relation to that stock, stating the amount of stock instead of the number or nominal value of shares.

131. Every company not having a share capital shall make an annual return containing the information specified in section 129 and there shall be annexed to the return a statement containing particulars of the total amount of the indebtedness of the company in respect of all mortgages and charges which are required to be registered with the Registrar under this Act, or which would have been required so to be registered if created after 1st December 1920.

132.-(1) There shall be annexed to the annual return: Accounts and other documents in the case of all companies other than private companies exempt from the obligation to appoint auditors under section 171 and unlimited companies exempt from the obligation to prepare accounts under section 169;

(a) to be annexed to annual return a copy, certified both by a Director and by the Secretary of the company to be a true copy, of the accounts laid before the company in a general meeting during the period to which the return relates (including every document required by law to be annexed to the accounts); and

(i)

(ii) a copy, certified as above, of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet; and where any such accounts or document required by law to be annexed thereto is in a foreign language, there shall be annexed thereto a certified translation;

(iii) if any such accounts or document required by law to be annexed thereto did not comply with the requirements of the law as in force at the date of the audit with respect to the form of accounts or documents aforesaid, as the case may be, there shall be made such additions to and corrections in the copy as would have been required to be made in the accounts or document in order to make the same comply with the said requirements, and the fact that the copy has been so amended shall be stated thereon;

(b) in the case of a private company, a certificate signed by a Director of the company that the company has not, since the date of the last return or, in the case of a first return, since the date of the incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company;

(c) in the case of a private company exempt from the obligation to appoint an auditor under section 171, a certificate signed by a Director of the company that the qualifying conditions as to turnover and gross assets as provided for in that section have been satisfied:

(i) in the case of a company's first accounting period, in that period, and

(ii) in any other case, in the last completed accounting period and the preceding period.

(2) If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a fine.

(3) If any certificate required to be given under this section is false in any particular, the company and every officer of the company who is in default shall be liable to a fine.

(4) For the purposes of this subsection, the expression ''officer'' shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.

CHAPTER IV MEETINGS AND RESOLUTIONS

133.-(I) Every company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year, and shall specify the meeting as such in the notices calling it. At the annual general meeting, the company shall, wherever practicable and subject to the provisions of this Act, transact the following business:

(a) to have laid before the members the annual accounts;

(b) to have laid before the members the directors' report;

(c) to have laid before the members the auditors' report;

(d) the appointment of auditors for the period up till the next general meeting at which accounts are laid;

(e) the re-election of any directors retiring and seeking re-election in accordance with any requirement in the company's articles of association; the election or confirmation of appointment of any directors in accordance with any requirement in the company's articles of association.

(f)

(2) So long as a company holds its first annual general meeting within eighteen months of its incorporation, it need not hold it in the year of its incorporation or in the following year.

(3) Not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next.

(4) If default is made in holding a meeting of the company in accordance with subsection (3), the Minister may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential directions as the Registrar thinks expedient, including directions modifying or supplementing, in relation to the calling, holding and conducting of the meeting, the operation of the company's articles; and the directions that may be given under this subsection including a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.

(5) A general meeting held in pursuance of subsection (4) shall, subject to any directions of the Registrar, be deemed to be an annual general meeting of the company; but, where a meeting so held is not held in the year in which the default in holding the company's annual general meeting occurred, the meeting so held shall not be treated as the annual general meeting for the year in which it is held unless at that meeting the company resolves that it shall be so treated.

(6) Where a company resolves that a meeting shall be treated as the company's annual general meeting, a copy of the resolution shall, within fourteen days after the passing thereof, be forwarded to the Registrar for registration.

(7) If default is made in holding a meeting of the company in accordance with subsection (1), or in complying with any directions of the Registrar under subsection (4), the company and every officer of the company who is in default shall be liable to a fine and if default is made in complying with subsection (6), the company and every officer of the company who is in default shall be liable to a default fine.

134.-(l) The directors of a company, notwithstanding anything in its articles, shall, on a members' requisition, immediately proceed duly to convene an extraordinary general meeting of the company.

(2) A members' requisition is a requisition of - members of the company holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up capital of the company as at the date of the deposit carries the right of voting at general meetings of the company, or,

(a)

(b) in the case of a company not having a share capital, members of the company representing not less than one-tenth of the total voting rights of all the members having at the said date a right to vote at general meetings of the company.

(3) The requisition must state the objects of the meeting, and must be signed by the requisitionists and deposited at the registered office of the company, and may consist of several documents in like form each signed by one or more requisitionists.

(4) If the directors do not within twenty-one days from the date of the deposit of the requisition proceed duly to convene a meeting, the requisitionists, or any of them representing more than one-half of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of three months from the said date.

(5) A meeting convened under this section by the requisitionists shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by directors.

(6) Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company, and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.

(7) For the purposes of this section, the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such notice thereof as is required by section 143.

(8) The directors are deemed not to have duly convened a meeting if they convene a meeting more than twenty eight days after the date of the notice convening the meeting.

135.-(I) Any provision of a company's articles shall be void in so far as it provides for the calling of a meeting of the company other than an adjourned meeting by a shorter notice than twenty-one days; and every such notice shall be in writing.

(2) Save in so far as the articles of a company make other provision in that behalf (not being a provision avoided by subsection (1)), a meeting of the company other than an adjourned meeting may be called by twenty-one days notice in writing.

(3) A meeting of a company shall, notwithstanding that it is called by shorter notice than that specified in subsection (2) or in the company's articles, as the case may be, be deemed to have been duly called if it is so agreed: -

(a) in the case of a meeting called as the annual general meeting, by all the members entitled to attend and vote thereat; and

(b) in the case of any other meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than ninety-five per cent in nominal value of the shares giving a right to attend and vote at the meeting, or, in the case of a company not having a share capital, together representing not less than ninety-five per cent of the total voting rights at that meeting of all the members.

136. The following provisions shall have effect in so far as the articles of the company do not make other provisions in that behalf.- provisions and votes

(a) notice of the meeting of a company shall be served on every member of the company in the manner in which notices are required to be served by Table A, (as for the time being in force);

(b) two or more members holding not less than one-tenth of the issued share capital or, if the company has no share capital, not less than five per cent in number of the members of the com party, may call a meeting;

(c) two members personally present shall be a quorum;

(d) any member elected by the members present at a meeting may be chairman thereof,

(e) in the case of a company originally having a share capital, every member shall have one vote in respect of each share or each [two hundred shillings of stock] held by him, and in any other case every member shall have one vote.

137.-(I) If for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in the manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the court thinks fit.

(2) Where any such order is made, the court may give such ancillary or consequential directions as it think expedient; and these may include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.

(3) Any meeting called, held and conducted in accordance with an order under this section shall for all purposes be deemed to be a meeting of the company duly called, held and conducted.

138.-(I) Any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person whether a member or not as his proxy to attend and vote instead of him, and the proxy appointed to attend and vote shall have the same right as the member to speak at the meeting:

Proxies Provided that, unless the articles otherwise provide:-

(a) this subsection shall not apply in the case of a company not having a share capital; and

(b) a member of a company shall not be entitled to appoint more than one proxy to attend on the same occasion; and

(c) a proxy shall not be entitled to vote except on a poll.

(2) In every notice calling a meeting of a company having a share capital there shall appear with reasonable prominence a statement that a member entitled to attend and vote is entitled to appoint a proxy and that a proxy need not also be a member; and if default is made in complying with this subsection as respects any meeting, every officer of the company who is in default shall be liable to a fine.

(3) Any provision contained in a company's articles shall be void in so far as it would have the effect of requiring the instrument appointing a proxy, or any other document necessary to show the validity of or otherwise relating to the appointment of a proxy, to be received by the company or any other person more than forty-eight hours before a meeting or adjourned meeting in order that the appointment may be effective thereat.

(4) If, for the purpose of any meeting of a company, invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the company's expense to some only of the members entitled to be sent a notice of the meeting and to vote thereat by proxy, every officer of the company who knowingly and willfully authorities or permits their issue as aforesaid shall be liable to a fine: Provided that an officer shall not be liable under this subsection by reason only of the issue to a member at his request in writing of a form of appointment naming the proxy or of a list of persons willing to act as proxy if the form or list is available on request in writing to every member entitled to vote at the meeting by proxy.

(5) This section shall apply to meetings of any class of members of a company as it applies to general meetings of the company.

139.-(I) Any provision contained in a company's articles shall be void in so far as it would have the effect

(a) of excluding the right to demand a poll at a general meeting on any question other than the election of the chairman of the meeting or the adjournment of the meeting; or

(b) of making ineffective a demand for a poll on any such question which is made either:- by not less than five members having the right to vote at the meeting; or

(ii) by a member or members representing not less than one tenth of the total voting rights of all the members having the right to vote at the meeting; or

(iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than.one-tenth of the total sum paid up on all shares conferring that right.

(2) The instrument appointing a proxy to vote at the meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsection (1), a demand by a person as proxy for a member shall be the same as a demand by the member.

140. On a poll taken at a meeting of a company or a meeting of any class of members of a company, a member entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

141.-(I) A corporation, whether a company within the meaning of of this Act or not, may:- corporations at

(a) if it is a member of a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company;

(b) if it is a creditor (including a holder of debentures) of a company within the meaning of this Act, by resolution of its directors or other governing body, authorize such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or of any rules made there under, or in pursuance of the provisions contained in any debenture or trust deed, as the case may be.

(2) A person authorized under subsection (1) shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual shareholder, creditor or holder of debentures of that other company.

142.-(1) Subject to the following provisions of this section, it shall be the duty of a company, on the requisition in writing of such number of members as is hereinafter specified:-

(a) to give to members of the company entitled to receive notice of the next annual general meeting or any other general meeting notice of any resolution which may properly be moved and is intended to be moved at that meeting;

(b) to circulate to members entitled to have notice of any general meeting sent to them any statement of not more than one thousand words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting. Provided that, the expense of circulating to members copies of any such resolution or statement shall be borne by the requisitionists unless such resolution or statement is received no less than six weeks from the date of the meeting.

(2) The number of members necessary for a requisition under subsection (1) shall be:- any number of members representing not less than one-twentieth of the total voting rights of all the members having at the date of the requisition a right to vote at the meeting to which the requisition relates; or

(a)

(b) not less than one hundred members holding shares in the company on which there has been paid up an average sum, per member, of not less than two thousand shillings.

(3) Notice of any such resolution shall be given, and any such statement shall be circulated, to members of the company entitled to have notice of the meeting sent to them by serving a copy of the resolution or statement on each such member in any manner permitted for service of notice of the meeting, and notice of any such resolution shall be given to any other member of the company by giving notice of the general effect of the resolution in any manner permitted for giving him notice of meetings of the company: Provided that, the copy shall be served, or notice of the effect of the resolution shall be given, as the case may be, in the same manner and, so far as practicable, at the same time as notice of the meeting or as soon as

(4) A company shall not be bound under this section to give notice of any resolution or to circulate any statement unless:- a copy of the requisition signed by the requisitionists (or two or more copies which between them contain the signatures of all the requisitionists) is deposited at the registered office of the company - in the case of a requisition requiring notice of a resolution, not less than six weeks before the meeting;

(ii) in the case of any other requisition, not less than one week before the meeting; and

(b) subject to subsection (1), there is deposited or tendered with the requisition a sum reasonably sufficient to meet the company's expenses in giving effect thereto: Provided that if, after a copy of a requisition requiring notice of a resolution has been deposited at the registered office of the company, a general meeting is called for a date six weeks or less after the copy has been deposited, the copy though not deposited within the time required by this subsection shall be deemed to have been properly deposited for the purposes thereof.

(5) The company shall not be bound under this section to circulate any statement if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section to be paid in whole or in part by the requisitionists, notwithstanding that they are not parties to the application.

(6) Notwithstanding anything in the company's articles, the business which may be dealt with at the general meeting shall include any resolution of which notice is given in accordance with this section, and for the purposes of this subsection, notice shall be deemed to have been so given notwithstanding the accidental omission, in giving it, of one or more members.

(7) In the event of any default in complying with the provisions of this section, every officer of the company who is in default shall be liable to a fine.

143.-(l) A resolution shall be a special resolution when it has been passed by a majority of not less than three-fourths of such members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been duly given: Provided that, if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority together holding not less than ninety-five per cent in nominal value of the shares giving that right, or, in the case of a company not having a share capital, together representing not less than ninety-five per cent of the total voting rights at that meeting of all the members, a resolution may be proposed and passed as a special resolution at a meeting of which less than twenty-one days' notice has been given.

(2) At any meeting at which a special resolution is submitted to be passed, a declaration of the Chairman that the resolution is carried shall, unless a poll is demanded, be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

(3) In computing the majority on a poll demanded on the question that a special resolution be passed, reference shall be had to the number of votes cast for and against the resolution.

(4) For the purposes of this section, notice of a meeting shall be deemed to be duly given and the meeting to be duly held when the notice is given and the meeting held in the manner provided by this Act or the company's articles.

144.-(I) Where by any provision in this Act, special notice is required of a resolution, the resolution shall not be effective unless notice of the intention to move it has been given to the company not less than twenty-eight days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation or in any other mode allowed by the articles, not less than twenty-one days before the meeting. .(2) If, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date twenty-eight days or less after the notice has been given, the notice though not given within the time required by this subsection, shall be deemed to have been properly given for the purposes thereof.

145.-(l) Two printed copies of every resolution or agreement to which this section applies shall, within thirty days after the passing or making thereof, be delivered to the Registrar for registration.

(2) Where articles have been registered, a printed copy of every such resolution or agreement for the time being in force shall be embodied in or annexed to every copy of the articles issued after the passing of the resolution or the making of the agreement.

(3) Where articles have not been registered, a printed copy of every such resolution or agreement shall be forwarded to any member at his request on payment of such fee as the Minister may prescribe in regulations.

(4) This section shall apply to -

(a) special resolutions;

(b) resolutions or agreements which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions;

(c) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders though not agreed to by all those members;

(d) resolutions requiring a company to be wound up voluntarily, passed under paragraph (a) of section 333(l).

(5) If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine.

(6) If a company fails to comply with subsection (2) or subsection (3), the company and every officer of the company who is in default shall be liable to a fine for each copy in respect of which default is made.

(7) For the purposes of the two last foregoing subsections, a liquidator of the company shall be deemed to be an officer of the company.

146. Where a resolution is passed at an adjourned meeting of - Resolutions

(a) a company; passed at adjourned

(b) the holders of any class of shares in a company; meetings

(c) the directors of a company, the resolution shall for all purposes be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.

147.-(1) Anything which in the case of a company may be done -

(a) by resolution of the company in general meeting, or

(b) by resolution of a meeting of any class of members of the company, may be done, without a meeting and without any previous notice being required, by resolution in writing signed by or on behalf of all the members of the company who at the date of the resolution would be entitled to attend and vote at such meeting: Provided that, nothing in this section shall apply to a resolution under section 193(l) removing a director before the expiry of his period of office or a resolution under section 170(7) removing an auditor before the expiry of his term of office.

(2) The signature need not be on a single document provided each is on a document which accurately states the terms of the resolution.

(3) The date of the resolution means when the resolution is signed by or on behalf of the last member to sign.

(4) A resolution agreed to in accordance with this section has effect as if passed -

(a) by the company in general meeting, or

(b) by a meeting of the relevant class of members of the company, as the case may be; and any reference in any enactment to a meeting at which a resolution is passed or to members voting in favour of a resolution shall be construed accordingly.

(5) A resolution may be agreed to in accordance with this section which would otherwise be required to be passed as a special resolution; and any reference in any enactment to a special resolution includes such a resolution.

148.-(I) Every company shall cause minutes of all proceedings of general meetings, and of all proceedings at meetings of its directors to be entered in books kept for that purpose.

(2) Any such minute if purporting to be signed by the Chairman of the meeting at which the proceedings were held, or by the Chairman of the next succeeding general meeting or meeting of directors, as the case may be, shall be evidence of the proceedings.

(3) Where, in accordance with the provisions of this section, minutes have been made of the proceedings at any general meeting of the company or meeting of directors, then, until the contrary is proved, the meeting shall be deemed to have been duly held and convened, and all proceedings thereat to have been duly transacted, and all appointments of directors or liquidators shall be deemed to be valid.

(4) If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a default fine.

149.-(I) Where a written resolution is agreed to in accordance with section 147 which has effect as if agreed by the company in general meeting, the company shall cause a record of the resolution and of the signatures to be entered in a book in the same way as minutes of proceedings of a general meeting of the company.

(2) Any such record, if purporting to be signed by a director of the company or by the Company Secretary, is evidence of the proceedings in agreeing to the resolution and where a record is made in accordance with this section, then until the contrary is proved, the requirements of this Act with respect of those proceedings shall be deemed to be complied with.

(3) Section 148(4) (shall) applies in relation to a failure to comply with subsection (1) of this section; and section 150 relating to inspection of minute books apply in relation to a record made in accordance with this section as it applies in relation to the minutes of a general meeting.

150.-(l) The books containing the minutes of proceedings of any general meeting of a company shall be kept at the registered office of the company, and shall during business hours be open to the inspection of any member without charge.

(2) Any member shall be entitled to be furnished within fourteen days after he has made a request in that behalf to the company with a copy of any such minutes at a charge not exceeding the fee prescribed by the Minister in regulations for every page copied.

(3) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper time, the company and every officer of the company who is in default shall be liable in respect of each offence to a fine and further to a default fine.

(4) In the case of any such refusal or default, the court may by order, compel an immediate inspection of the books in respect of all proceedings of general meetings or direct that the copies required shall be sent to the persons requiring them.

CHAPTER V ACCOUNTS AND AUDIT

151.-(I) Every company shall keep in English or Swahili proper books of account which are sufficient to show and explain the company's transactions and are such as to -

(a) disclose with reasonable accuracy at any time, the financial position of the company, at that time;

(b) enable the directors to ensure that any balance sheet, profit and loss account and cash flow statement prepared under this Chapter complies with the requirements of this Act.

(2) The books of account shall in particular contain - entries from day to day of all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;

(a)

(b) all sales and purchases of goods by the company;

(c) the assets and liabilities of the company.

(3) The books of account shall be kept at the registered office of the company or at such other place in Tanzania as the directors think fit, and shall at all times be open to inspection by the directors.

(4) The books of account which a company is required to keep under this section shall be preserved by it for six years from the date on which they are made up.

(5) If any person, being a Director of a company, fails to take all reasonable steps to secure compliance by the company with the requirements of this section or section 153, or has by his own willful act been the cause of any default by the company there under, he shall, in respect of each offence, be liable on conviction to imprisonment or to a fine or to both: Provided that - in any proceedings, against a person in respect of an offence under this section, consisting of a failure to take reasonable steps to secure compliance by the company with the requirements of this section, it shall be a defence to provide that, he had reasonable ground to believe and did believe that a competent and reliable person was charged with the duty of seeing that those requirements were complied with and was in a position to discharge that duty; and

(a)

(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the court, the offence was committed willfully.

152. A company's first accounting period shall be the period of more than six months, but not more than eighteen months, beginning with the date of its incorporation. Its subsequent accounting periods shall be successive periods of twelve months beginning immediately after the end of the previous accounting period.

153. The directors of every company shall prepare individual accounts for each accounting period and lay before the company in general meeting in accordance with section 166, and such accounts shall indicate: -

(a) a profit and loss account or, in the case of a company not trading for profit, an income and expenditure account;

(b) a balance sheet as at the last day of the accounting period; and

(c) a cash flow statement.

154.-(l) The balance sheet shall give a true and fair view of the state of affairs of the company as at the end of its accounting period, the profit and loss account of a company shall give a true and fair view of the profit or loss of the company for the accounting period, and the cash flow statement of the company shall give a true and fair view of the sources and uses of funds during the accounting period.

(2) Subject to the provisions of this Act, a company's balance sheet, profit and loss account and cash flow statement shall comply with the requirements specified in regulations prescribed by the Minister, or the National Board of Accountants and Auditors or such other body as the Minister may decide, having regard in either case to generally accepted principles of accounting, and the regulations referred to in this section may make special provision for the following types of company:

(a) open-ended investment companies,

(b) statutory corporations,

(c) private companies exempt from audit under section 171.

(3) If in special circumstances compliance with any requirements pursuant to subsection (2) is inconsistent with the requirement to give a true and fair view, the directors shall depart from such requirement to the extent necessary to give a true and fair view. Particulars of any such departure, the reasons for it and its effect shall be given in a note to the accounts.

(4) If any person, being a Director of a company, fails to take all reasonable steps to secure compliance as respects any accounts laid before the company in general meeting with the provisions of this section and with the other requirements of this Act as to the matters to be stated in the accounts, he shall, in respect of each offence, be liable on conviction to imprisonment or to a fine:

Provided that -

(a) in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that he had reasonable ground to believe and did believe that a competent and reliable person was charged with the duty of seeing that the said provisions or the said other requirements, as the case may be, were complied with and was in a position to discharge that duty; and

(b) a person shall not be sentenced to imprisonment for any such offence unless, in the opinion of the court dealing with the case, the offence was committed willfully.

(5) For the purposes of this section and the following provisions of this Act, except where the context otherwise requires:-

(a) any reference to a balance sheet or profit and loss account or individual accounts shall include any notes thereon or document annexed thereto giving information which is required by this Act and is thereby allowed to be so given; and

(b) any reference to a profit and loss account shall be taken, in the case of a company not trading for profit, as referring to its income and expenditure account, and references to profit or to loss and, if the company has subsidiaries, references to a consolidated profit and loss account shall be construed accordingly

155.-(1) Subject to section 156, where at the end of its accounting period a company is a parent company having subsidiaries, the directors shall as well as preparing individual accounts for the accounting period, prepare group accounts, which shall be laid before the company in general meeting when the parent company's individual accounts are so laid.

(2) The group accounts shall be consolidated accounts comprising -

(a) a consolidated balance sheet dealing with the state of affairs of the parent company and all its subsidiaries to be dealt with in group accounts;

(b) a consolidated profit and loss account dealing with the profit or loss of the parent company and those subsidiaries; and

(c) a consolidated cash flow statement.

(3) The accounts shall give a true and fair view of the state of affairs as at the end of the accounting period, and the profit or loss and the cash flow for the accounting period, of the undertakings included in the group, so far as concerns members of the company.

(4) Where the accounting period of a subsidiary does not coincide with that of the parent company, the group accounts shall, unless the Registrar on the application or with the consent of the parent company's directors otherwise directs, deal with the subsidiary's state of affairs as at the end of its accounting period ending with or last before that of the holding company, and with the subsidiary's profit or loss for that accounting period.

(5) Without prejudice to subsection (2), the group accounts shall comply with the requirements specified in the regulations prescribed pursuant to section 154(2) as to the form and content of the consolidated balance sheet and consolidated profit and loss account and additional information to be provided by way of notes to the accounts. Where compliance with such requirements, and the other provisions of this Act as to the matters to be included in a company's group accounts or in notes to those accounts, would not be sufficient to give a true and fair view, the necessary additional information shall be given in the accounts or a note to them.

(6) If in special circumstances, compliance with any requirements pursuant to subsection (5) is inconsistent with the requirement to give a true and fair view, the directors shall depart from such requirement to the extent necessary to give a true and fair view and the particulars of any such departure, the reasons for it and its effect shall be given in a note to the accounts.

156.-(I) A parent company is exempt from the requirement to prepare group accounts in respect of an accounting period if it is itself a subsidiary of another company that does prepare group accounts.

(2) A parent company need not prepare group accounts for an accounting period in relation to which the group headed by that company satisfies the qualifying conditions set out in section 171 and is not an ineligible group.

157. Where it appears to the Registrar desirable for a holding company or a subsidiary to extend its accounting period so that the subsidiary's accounting period may end with that of the holding company, and for that purpose to postpone the submission of the relevant accounts to a general meeting, the Registrar may on the application or with the consent of the directors of the company whose accounting period is to be extended direct that, in the case of that company, the submission of accounts to a general meeting, the holding of an annual general meeting or the making of an annual return shall be so postponed.

158.-(I) A company's annual accounts shall be approved by the Board of Directors and signed on behalf of the board by a director of the company.

(2) The signature shall be on the company's balance sheet.

(3) Every copy of the balance sheet which is laid before the company in general meeting, or which is otherwise circulated, published or issued, shall state the name of the person who signed the balance sheet on behalf of the Board.

(4) The copy of the company's balance sheet which is delivered to the Registrar shall be signed on behalf of the Board by a director of the company.

(5) If annual accounts are approved which do not comply with the requirements of this Act, every director of the company who is party to their approval and who knows that they do not comply or is reckless as to whether they comply, is guilty of an offence and liable to a fine. For this purpose, every director of the company at the time the accounts are approved, shall be taken to be a party to their approval unless he shows that he took all reasonable steps to prevent their being approved.

(6) If a copy of the balance sheet -

(a) is laid before the company, or otherwise circulated, published or issued, without the balance sheet having been signed as required by this section or without the required statement of the signatory's name being included, or

(b) is delivered to the Registrar without being signed as required by this section, the company and every officer of it who is in default, is guilty of an offence and liable to a fine.

(7) ''Annual accounts'' means the individual accounts required by section 153 and any group accounts required by section 155.

159.-(1) The directors of a company, shall for each accounting period, prepare a report giving a fair review of the development of the business of the company and its subsidiaries during the accounting period and their position at the end of it and the amount, if any, which they recommend should be paid by way of dividend.

(2) The directors' report shall deal, so far as is material with any change during the accounting period in the nature of the company's business or in the company's subsidiaries, or in the classes of business in which the company has an interest, whether as member of another company or otherwise.

(3) If any person, being a Director of a company, fails to take all reasonable steps to comply with the provisions of subsection (1), he shall, in respect of each offence, be liable on conviction to imprisonment or to a fine: Provided - in any proceedings against a person in respect of an offence under subsection (1), it shall be a defence to prove that, he had reasonable ground to believe and did believe that a competent and reliable person was charged with the duty of seeing that the provisions of that subsection were complied with and was in a position to discharge that duty; and

(a)

(b) a person shall not be liable to be sentenced to imprisonment for such an offence unless, in the opinion of the court, the offence was committed willfully.

160.-(I) The Directors' Report shall be approved by the Board of Directors and signed on behalf of the Board by a Director.

(2) Every copy of the Directors' Report which is laid before the company in general meeting, or which is otherwise circulated, published or issued, shall state the name of the person who signed it on behalf of the Board.

(3) The copy of the Directors' Report which is delivered to the Registrar shall be signed on behalf of the Board by a Director or the Secretary of the company.

(4) If a copy of the Directors' Report -

(a) is laid before the company, or otherwise circulated, published or issued, without the report having been signed as required by this section or without the required statement of the signatory's name being included, or

(b) is delivered to the Registrar without being signed as required by this section,the company and every officer of it who is in default, is guilty of an offence and liable to a fine.

161.- (1) A company's Auditors shall make a report to the company's members on all annual accounts of the company of which copies are to be laid before the company in general meeting during their tenure of office.

(2) The Auditors 'Report shall state whether in the Auditors' opinion the annual accounts have been properly prepared in accordance with this Act, and in particular whether a true and fair view is given -

(a) in the case of an individual balance sheet, of the state of affairs of the company as at the end of the accounting period;

(b) in the case of an individual profit and loss account, of the profit or loss of the company for the accounting period; in the case of the cash flow statement, the cash flow of the company for the accounting period;

(c)

(d) in the case of group accounts, of the state of affairs as at the end of the accounting period, and the profit or loss for the accounting period, of the undertakings included in the consolidation as a whole, so far as concerns, members of the company.

(3) The Auditors shall consider whether the information given in the Directors' Report for the accounting period for which the annual accounts are prepared is consistent with those accounts; and if they are of opinion that it is not, they shall state that fact in their Report.

(4) The Auditors' Report shall be read before the company in general meeting and shall be open to inspection by any member.

162.-(l) The Auditors' Report shall state the names of the Auditors and be signed by them.

(2) Every copy of the Auditors' Report which is laid before the company in general meeting or which is otherwise circulated, published or issued, shall state the names of the Auditors.

(3) The copy of the Auditors' Report which is delivered to the registrar shall state the names of the Auditors and be signed by them.

(4) If a copy of the Auditors' Report is laid before the company or otherwise circulated, published or issued without the required statement of the names of the Auditors, or is delivered to the Registrar without the required statement of the names of the Auditors or without being signed by them as required by subsection (3), the company and every officer of it who is in default shall be liable to a fine.

(5) References in this section to signature by the auditors are, where the office of auditor is held by a body corporate or partnership to signature in the name of the body corporate or partnership by a person authorized to sign on its behalf.

163.-(I) A company's auditors shall, in preparing their report, carry out such investigations as will enable them to form an opinion as to - whether proper accounting records have been kept by the company and proper returns adequate for their audit have been received from branches not visited by them, and

(a)

(b) whether the company's individual accounts are in agreement with the accounting records and returns.

(2) If the auditors are of opinion that proper accounting records have not been kept, or that proper returns adequate for their audit have not been received from branches not visited by them, or if the company's individual accounts are not in agreement with the accounting records and returns, the auditors shall state that fact in their report.

(3) If the auditors fail to obtain all the information and explanations which, to the best of their knowledge and belief, are necessary for the purposes of their audit, they shall state that fact in their report.

(4) If the requirements of section 206 relating to disclosure of information emoluments and other benefits of directors and others are not complied with in the annual accounts, the auditors shall include in their report, so far as they are reasonably able to do so, a statement giving the required particulars.

164.-(I) A copy of the annual accounts, in respect of each accounting period, together with a copy of the Directors' Report and the Auditors' Report, shall, not less than twenty-one days before the date of the general meeting at which they are to be laid in accordance with section 166, be sent to every member of the company (whether he is or is not entitled to receive notices of general meetings of the company), every holder of debentures of the company (whether he is or is not so entitled) and all persons other than members or holders of debentures of the company, being persons so entitled: Provided that - in the case of a company not having a share capital, this subsection shall not require the sending of a copy of the documents above to a member of the company who is not entitled to receive notices of general meetings of the company or to a holder of debentures of the company who is not so entitled;

(a)

(b) this subsection shall not require a copy of those documents to be sent to a member of the company or a holder of debentures of the company, being in either case a person who is not entitled to receive notices of general meetings of the company and of whose address the company is unaware;

(ii) to more than one of the joint holders of any shares or debentures none of whom are entitled to receive notices; or

(iii) in the case of joint holders of any shares or debentures some of whom are and some of whom are not entitled to receive such notices, to those who are not so entitled; and if the copies of the documents above are sent less than twenty one days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent if it is so agreed by all the members entitled to attend and vote at the meeting.

(c)

(2) If default is made in complying with subsection (1), the company and every officer of the company who is in default shall be liable to a fine.

(3) Subsection (1) shall not have effect in relation to the accounts of a company laid before it before the appointed day, and the right of any person to be furnished with a copy of any such accounts and the liability of the company in respect of a failure to satisfy that right shall be the same as they would have been if this Act had not been passed.

165.-(1) Any member of a company, whether he is or is not entitled to have sent to him copies of the company's accounts, and any holder of debentures of the company, whether he is or is not so entitled, shall be entitled to be furnished on demand without charge with a copy of the last annual accounts of the company, together with a copy of the Directors' Report and the Auditors' Report.

(2) If, when any person makes a demand for any document that he is entitled to receive pursuant to subsection (1), default is made in complying with the demand within seven days, the company and every officer of the company who is in default, shall be liable to a default fine, unless it is proved that, that person had already made a demand for and been furnished with a copy of the document.

166.-(1) The directors of a company shall in respect of each accounting period, lay before the company in general meeting copies of the company's annual accounts, the Directors' Report and the Auditors' in general

(2) The period allowed for laying and delivering accounts and reports shall be seven months from the completion of the accounting period in the case of a public company and ten months from the completion of the accounting period in the case of a private company.

(3) If the requirements of subsection (1) are not complied with before the end of the period allowed for laying and delivering accounts and reports as set out in subsection (2), every person who immediately before the end of that period was a director of the company, is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

(4) It is a defence for a person charged with such offence to prove that he took all reasonable steps for securing that those requirements would be complied with before the end of that period. It is not a defence to prove that the documents in question were not in fact prepared as required by this Part.

167.-(I) Subject to subsection (2), the directors of a company shall in respect of each accounting period deliver to the Registrar a copy of the company's annual accounts together with a copy of the Directors' Report for that accounting period and a copy of the Auditors' Report on those accounts.

(2) A private company exempt in relation to an accounting period from the requirement to appoint an auditor pursuant to section 171 shall also be exempt from the requirement to deliver copies of the accounts and Directors' Report to the Registrar under subsection (1) in respect of that accounting period.

(3) If the requirements of subsection (1) are not complied with before the end of the period allowed for laying and delivering accounts and reports as set out in section 166(2), every person who immediately before the end of that period was a Director of the company is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

(4) Further, if the directors of the company fail to make good the default within fourteen days after the service of a notice on them requiring compliance, the court may on the application of any member of creditor of the company or of the Registrar, make an order directing the directors (or any of them) to make good the default within such time as may be specified in the order., and the court's order may provide that all costs of and incidental to the application shall be borne by the directors.

(5) It is a defence for a person charged with an offence under this section to prove that he took all reasonable steps for securing that the requirements of subsection (1) would be complied with before the end of the period allowed for laying and delivering accounts and reports. It is not a defence in any proceedings under this section to prove that the documents in question were not in fact prepared as required by this Part.

168.-(1) Where copies of a company's annual accounts have been sent out under section 164, or a copy of a company's annual accounts has been laid before the company in general meeting or delivered to the Registrar, and it appears to the Minister that there is, or may be, a question whether the accounts comply with the requirements of this Act, he may give notice to the directors of the company indicating the respects in which it appears to him that such a question arises, or may arise.

(2) The notice shall specify a period of not less than one month for the directors to give him an explanation of the accounts or prepare revised accounts.

(3) If at the end of the specified period, or such longer period as he may allow, it appears to the Minister that no satisfactory explanation of the accounts has been given and that the accounts have not been revised so as to comply with the requirements of the Act, he may if he thinks fit apply to the court for an order that the company prepare and have audited revised accounts.

169.-(I) The directors of an unlimited company are not required to deliver accounts and reports to the Registrar in respect of an accounting period if the conditions set out under subsection (2) are met.

(2) The conditions are that, at no time during the relevant accounting and reports for period - unlimited has the company been, to its knowledge, a subsidiary undertaking of an undertaking which was then limited, or companies

(a)

(b) have there been, to its knowledge, exercisable by or on behalf of two or more undertakings which were then limited, rights which if exercisable by one of them would have made the company a subsidiary undertaking of it; or

(c) has the company been a parent company of an undertaking which was then limited. The references above to an undertaking being limited at a particular time are to an undertaking (under whatever law established) the liability of whose members is at that time limited.

(3) The exemption conferred by this section does not apply if the company is a banking or insurance company or the parent company of a banking or insurance group.

170.-(1) Subject to section 171, every company shall at each general meeting at which accounts are laid, appoint an auditor or auditors to hold office from the conclusion of that general meeting until the conclusion of the next general meeting at which accounts are laid.

(2) Notwithstanding the provisions of subsection (1), at any general meeting at which accounts are laid, a retiring auditor, however appointed, shall be deemed to be re-appointed without any resolution being passed unless -

(a) he is not qualified for re-appointment; or

(b) a resolution has been passed at that meeting appointing somebody instead of him or providing expressly that he shall not be re-appointed; or he has given the company notice in writing of his unwillingness to be re-appointed:

(c) Provided that, where notice is given of an intended resolution to appoint some person or persons in place of a retiring auditor, and by reason of the death, incapacity or disqualification of that person or of all those persons, as the case may be, the resolution cannot be proceeded with, the retiring auditor shall not be deemed to be automatically reappointed by virtue of this subsection.

(3) Where at a general meeting at which accounts are laid no auditors are appointed or re-appointed, the Registrar may appoint a person to fill the vacancy.

(4) The company shall, within seven days of the Registrar's power under subsection (3) becoming exercisable, give him notice of that fact, and, if a company fails to give notice as required by this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

(5) Subject as hereinafter provided, the first Auditors of a company may be appointed by the directors at any time before the first annual general meeting, and auditors so appointed shall hold office until the conclusion of that meeting: Provided that - the company may at a general meeting remove any such auditors and appoint in their place any other persons who have been nominated for appointment by any member of the company and of whose nomination notice has been given to the members of the company not less than fourteen days before the date of the meeting; and

(b) if the directors fail to exercise their powers under this subsection, the company in general meeting may appoint the first auditors, and thereupon the said powers of the directors shall cease.

(6) The directors may fill any casual vacancy in the office of Auditor, but while any such vacancy continues, the surviving or continuing Auditor or Auditors, if any, may act.

(7) A company may by ordinary resolution at any time remove an auditor from office, notwithstanding anything in any agreement between it and him: Provided that, where such a resolution is passed, the company shall within fourteen days give notice of that fact in the prescribed form to the Registrar, failing which the company and every officer of it who is in default shall be guilty of an offence and liable to a fine and, in the case of continued contravention, to a default fine.

(8) The remuneration of the Auditors of a company -

(a) in the case of an Auditor appointed by the directors or by the Registrar may be fixed by the directors or by the Registrar, as the case may be;

(b) subject to the foregoing paragraph, shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine;

(c) shall be stated in a note to the company's annual accounts.

(9) For the purposes of this subsection, any sums paid by the company in respect of the Auditors' expenses shall be deemed to be included in the expression ''remuneration''

171.-(l) A private company shall be exempt from the requirement to appoint an Auditor under section 170 in relation to an accounting period if the qualifying conditions set out in subsection (2) are met -

(a) in the case of the company's first accounting period, in that period, and

(b) in the case of any subsequent accounting period, in that period and the preceding period.

(2) The qualifying conditions shall be met in an accounting period in which the following requirements are satisfied -

(a) Turnover;

(b) Gross assets. as specified in either case in regulations prescribed by the Minister having regard to generally accepted principles of accounting.

(3) Where a company's accounting period is not a twelve month period, the maximum figures for turnover shall be proportionately adjusted.

(4) Nothing in this section shall apply where - the company is, or was at any time within the accounting period to which the accounts relate -

(a)

(i) a bank or insurance company; or

(ii) dealer or investment adviser; or

(b) the company is, or was at any time during the period, a member of an ineligible group.

(5) A group is ineligible if any of its members is - a public company or a body corporate which not being a company has power under its constitution to offer its shares or debentures to the public and may lawfully exercise that power;

(a)

(b) a bank;

(c) an insurance company; or

(d) a dealer or investment adviser.

(6) A company, which is a member of a group shall not be treated as satisfying the qualifying conditions set out in subsection (2) in relation to an accounting period unless the group is a qualifying group.

(7) A group is a qualifying group in relation to an accounting period if the qualifying conditions are met - in the case of the parent company's first accounting period, in that period; and

(a)

(b) in the case of any subsequent accounting period, in that period and the preceding period;

(8) The qualifying conditions are met by a qualifying group in an accounting period in which it satisfies the following requirements -

(a) Aggregate turnover;

(b) Aggregate gross assets. as specified in either case in regulations prescribed by the Minister having regard to generally accepted principles of accounting.

172.-(l) A company is not entitled to the exemption conferred by section 171 (1) unless its balance sheet contains a statement by the Directors statement and certificate

(a) that for the accounting period in question, the company satisfied the qualifying conditions specified in section 171(2),

(b) that no notice has been deposited under section 173 in relation to its accounts for the accounting period, and

(c) that the directors acknowledge their responsibilities for -

(i) ensuring that the company keeps books of account which comply with section 15 1, and

(ii) preparing accounts which give a true and fair view of the state of affairs of the company as at the end of the accounting period and of its profit and loss for the accounting period in accordance with the requirements of sections 153 and 154 and which otherwise comply with the requirements of this Act relating to accounts, so far as applicable to the company.

(2) A company satisfying the qualifying conditions set out in section 171(2) shall annex the appropriate certificate to its annual return as provided for in section 132.

(3) The directors' statement and certificate under this section shall be submitted for verification by auditors appointed by the company for that purpose no less than once in every five consecutive accounting periods.

(4) Any director of a company making a statement or giving a certificate under this section that is false in a material way without reasonable grounds shall be liable to imprisonment or to a fine or to both.

173.-(l) Any member or members holding not less in the aggregate than I 0 per cent in nominal value of the issued share capital or any class of it of a private company qualifying as exempt under section 171 or, if such company does not have a share capital, not less than I 0 per cent in number of the members of that company, may, by notice in writing deposited at the registered office of the company during an accounting period but not later than one month before the end of that accounting period, require the company to obtain an audit of its accounts for that accounting period. Right to require

(2) Where a notice has been deposited under subsection (1), the company shall be obliged to appoint an auditor in respect of the accounting period to which the notice relates.

174.-(1) Special notice shall be required for a resolution at a general meeting at which accounts are laid -

(a) appointing as Auditor a person other than a retiring auditor; removing auditors

(b) providing expressly that a retiring Auditor shall not be re-appointed;

(c) filling a casual vacancy in the office of Auditor; or

(d) removing an Auditor before the expiration of his term of office.

(2) On receipt of notice of such an intended resolution as above, the company shall immediately send a copy thereof to the retiring Auditor (if any) or, as the case may be, the auditor to be removed.

(3) Where notice is given of such an intended resolution as above and the retiring Auditor or, as the case may be, the auditor to be removed makes with respect to the intended resolution representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so- in any notice of the resolution given to members of the company, state the fact of the representations having been made: and

(a)

(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company), and if a copy of the representations is not sent as above because it has been received too late or because of the company's default, the Auditor may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting: Provided that, copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter, and the court may order the company's costs on an application under this section to be paid in whole or in part by the Auditor, notwithstanding that he is not a party to the application.

(4) Subsection (3) shall apply:

(a) to a resolution to remove the first Auditors by virtue of section 170(5) as it applies in relation to a resolution that a retiring auditor shall not be re-appointed;

(b) to an Auditor who, of his own volition, deposits notice of his resignation at the company's registered office and submits therewith a statement of circumstances which he considers should be brought to the attention of members or creditors of the company.

175.-(1) A person or firm shall not be qualified for appointment as Auditor of a company unless he, or, in the case of a firm, every partner in the firm is a certified public accountant.

(2) None of the following persons shall be qualified for appointment as Auditor of a company -

(a) an officer or employee of the company;

(b) a person who is a partner of or in the employment of an officer or employee of the company. References in this subsection to an officer or employee shall be construed as not including references to an Auditor.

(3) A person shall also not be qualified for appointment as Auditor of a company if he is, by virtue of subsection (2), disqualified for appointment as Auditor of any other body corporate which is that company's subsidiary or holding company or a subsidiary of that company's holding company, or would be so disqualified if the body corporate were a company.

(4) If any person who is not qualified so to act is appointed as Auditor of a company, the company and every officer in default and every such person who acts as Auditor shall each be liable to a fine.

176.-(1) Every Auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the company, and shall be entitled to require from the officers of the company such information and explanation as he thinks necessary for the performance of the duties of the Auditors.

(2) An officer of a company commits an offence if, he knowingly or recklessly, makes to the company's Auditors a statement whether written or oral which conveys or purports to convey any information or explanations which the Auditors require, or are entitled to require, as Auditors of the company, and is misleading, false or deceptive in a material particular. A person guilty of an offence under this subsection is liable to imprisonment or a fine or both.

(3) The Auditors of a company shall be entitled to attend any general meeting of the company and to receive all notices of and other communications relating to any general meeting which any member of the company is entitled to receive and to be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as auditors.

177.-(1) An Auditor of a company may resign his office by depositing a notice in writing to that effect at the company's registered office. The notice is not effective unless it is accompanied by the statement required by section 179.

(2) An effective notice of resignation operates to bring the Auditor's term of office to an end as of the date on which the notice is deposited or on such later date as may be specified in it.

(3) The company shall within fourteen days of the deposit of a notice of resignation send a copy of the notice to the Registrar of companies and if default is made in complying with this subsection, the company and every officer of it who is in default is guilty of an offence and liable to a fine and, for continued contravention, a default fine.

178.-(1) This section applies where an Auditor's notice of resignation is accompanied by a statement of circumstances which he considers should be brought to the attention of members or creditors of the company.

(2) The Auditor may deposit with the notice a signed requisition calling on the directors of the company immediately duly to convene an extraordinary general meeting of the company for the purpose of receiving and considering such explanation of the circumstances connected with his resignation as he may wish to place before the meeting.

(3) The Auditor may request the company to circulate to its members-

(a) before the meeting convened on his requisition, or

(b) before any general meeting at which his term of office would otherwise have expired or at which it is proposed to fill the vacancy caused by his resignation,a statement in writing (not exceeding a reasonable length) of the circumstances connected with his resignation.

(4) The company shall (unless the statement is received too late for it to comply)-

(a) in any notice of the meeting given to members of the company, state the fact of the statement having been made, and

(b) send a copy of the statement to every member of the company to whom notice of the meeting is or has been sent.

(5) If the directors do not within twenty one days from the date of the deposit of a requisition under this section proceed duly to convene a meeting for a day not more than twenty eight days after the date on which the notice convening the meeting is given, every director who failed to take all reasonable steps to secure that a meeting was convened as mentioned above, is guilty of an offence and liable to a fine.

(6) If a copy of the statement mentioned above is not sent out as required because it was received too late or because of the company's default, the Auditor may (without prejudice to his right to be heard orally) require that the statement be read out at a meeting.

(7) Copies of a statement need not be sent out and the statement need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on such an application to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.

(8) An auditor who has resigned has, notwithstanding his resignation, the rights conferred by section 176 in relation to any such general meeting of the company as is mentioned in subsections (3)(a) or (b). In such a case the references in that section to matters concerning the Auditors as Auditors shall be construed as references to matters concerning him as a former Auditor.

179.-(1) Where an Auditor ceases for any reason, to hold office, he shall deposit at the company's registered office a statement of any circumstances connected with his ceasing to hold office which he considers should be brought to the attention of the members or creditors of the company or, if he considers that there are no such circumstances, a statement that there are none.

(2) In the case of resignation, the statement shall be deposited along with the notice of resignation; in the case of failure to seek re-appointment, the statement shall be deposited not less than fourteen days before the end of the time allowed for next appointing Auditors; in any other case the statement shall be deposited not later than the end of the period of fourteen days beginning with the date on which he ceases to hold office.

(3) If the statement is of circumstances which the Auditor considers should be brought to the attention of the members or creditors of the company, the company shall within fourteen days of the deposit of the statement either - send a copy of it to every person who is entitled to be sent copies of the accounts, or

(a)

(b) apply to the court.

(4) The company shall, if it applies to the court, notify the Auditor of the application.

(5) Unless the Auditor receives notice of such an application before the end of the period of twenty one days beginning with the day on which he deposited the statement, he shall within a further seven days send a copy of the statement to the Registrar.

(6) If the court is satisfied that the Auditor is using the statement to secure needless publicity for defamatory matter -

(a) it shall direct that copies of the statement need not be sent out; and

(b) it may further order the company's costs on the application to be paid in whole or in part by the Auditor, notwithstanding that he is not a party to the application; and the company shall within 14 days of the court's decision send to the persons mentioned in subsection (3)(a) a statement setting out the effect of the order.

(7) If the court is not satisfied, the company shall within fourteen days of the court's decision - send copies of the statement to the persons mentioned in subsection (3)(a); and

(a)

(b) notify the Auditor of the court's decision; and the Auditor shall within seven days of receiving such notice send a copy of the statement to the Registrar.

CHAPTER Vl: DIVIDENDS

180.-(1) Subject to this section, a company may, in general meeting, declare dividends in respect of any accounting period or other period.

(2) Where the recommendation of the directors of a company with respect to the declaration of a dividend is rejected or varied by the company in general meeting, a statement to that effect shall be included in the relevant directors' annual report and in the relevant annual return.

(3) A company may pay a dividend:

(a) out of its realized profits less its realized losses, or

(b) out of its realized revenue profits less its revenue losses, whether realized or unrealized, provided the directors reasonably believe that immediately after the dividend has been paid the company will be able to discharge its liabilities as they fall due, and the realizable value of the company's assets will not be less than the amount of its liabilities.

(4) Notwithstanding anything in this section, an open ended investment company may pay such dividends as may be permitted in regulations made by the Minister for the time being responsible for finance, or by the Capital Markets and Securities Authority or such other authority designated for the purpose.

CHAPTER V11 A COMPANY'S MANAGEMENT

Directors and other Officers

181. Subject to any modifications, exceptions, or limitations contained in this Act or in the company's articles, the directors of a company have all the powers necessary for managing, and for directing and supervising the management of, the business and affairs of a company.

182.-(1) Subject to this section, a director of a company, when exercising powers or performing duties, must act honestly and in good faith and in what the director believes to be the best interests of the company.

(2) A director of a company that is a wholly-owned subsidiary may, when exercising powers or performing duties as a director, if expressly permitted to do so by the articles of the company, act in a manner which he believes is in the best interests of that company's holding company even though it may not be in the best interests of the company.

(3) A director of a company that is a subsidiary (but not a whollyowned subsidiary) may, when exercising powers or performing duties as a director, if expressly permitted to do so by the articles of the company and with the prior agreement of the shareholders (other than its holding company), act in a manner which he believes is in the best interests of that company's holding company even though it may not be in the best interests of the company.

(4) A director of a company incorporated to carry out a joint venture between the shareholders may, when exercising powers or performing duties as director in connection with the carrying out of the joint venture, if expressly permitted to do so by the articles of the company, act in a manner which he believes is in the best interests of a shareholder or shareholders, even though it may not be in the best interests of the company.

183.-(1) The matters to which the directors of the company are to have regard in the performance of their functions include, in addition to the interests of the members, the interests of the company's employees.

(2) The duty imposed by this section on the directors is owed by them to the company (and the company alone) and is enforceable in the same way as any other fiduciary duty owed to a company by its directors.

184. A director must exercise his powers for proper purposes.

185. A director owes the company a duty to exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person having both -

(a) the knowledge and experience that may reasonably be expected of a person in the same position as the director, and

(b) any special knowledge and experience which the director has.

186. Every company shall have at least two directors. Number of directors

187.-(I) Every company shall have a Secretary. Secretary

(2) It is the duty of the directors of a public company to take all reasonable steps to secure that the Secretary (or each joint secretary) of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of the Secretary of a public company.

(3) Anything required or authorized to be done by or to the Secretary, may, if the office is vacant or there is for any other reason no Secretary capable of acting, be done by or to any Assistant or Deputy Secretary, if there is no Assistant or Deputy Secretary capable of acting, by or to any officer of the company authorized generally or specially in that behalf by a resolution of the Board of Directors.

188. A provision requiring or authorizing a thing to be done by or to a director and the secretary shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary.

189. The acts of a director or manager shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

190. A person shall not be capable of being appointed director of a company by the articles unless, before the registration of the articles or the publication of the offer document, as the case may be, he has by himself or by his agent authorized in writing signed and delivered to the Registrar for registration a consent in writing to act as such director.

191.-(l) It shall be the duty of every director who is by the articles of the company required to hold a specified share qualification, and who is not already qualified, to obtain his qualification within two months after his appointment, or such shorter time as may be fixed by the articles.

(2) For the purposes of any provision in the articles requiring a director or manager to hold a specified share qualification, the bearer of a share warrant shall not be deemed to be the holder of the shares specified in the warrant.

(3) The office of director of a company shall be vacated if the director does not within two months from the date of his appointment, or within such shorter time as may be fixed by the articles, obtain his qualification, or if after the expiration of the said period or shorter time he ceases at any time to hold his qualification.

(4) A person vacating office under this section shall be incapable of being re-appointed director of the company until he has obtained his qualification.

(5) If after the expiration of the said period or shorter time any unqualified person acts as a director of the company, he shall be liable to a fine for every day that he has been in default.

192.-(I) At a general meeting of a public company a motion for the appointment of two or more persons as directors of the company by a single resolution shall not be made, unless a resolution that it shall be so made has first been agreed to by the meeting without any vote being given against it.

(2) A resolution moved in contravention of this section shall be void, whether or not its being so moved was objected to at the time: Provided that -

(a) this subsection shall not be taken as excluding the operation of section 189; and

(b) where a resolution so moved is passed, no provision for the automatic reappointment of retiring directors in default of another appointment shall apply.

(3) For the purposes of this section, a motion for approving a person's appointment or for nominating a person for appointment shall be treated as a motion for his appointment.

(4) Nothing in this section shall apply to a resolution altering the company's articles.

193.-(I) A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him: Provided that, this subsection shall not authorize the removal of a director holding office for life at the commencement of this Act, whether or not subject to retirement under an age-limit by virtue of the articles or otherwise.

(2) Special notice shall be required of any resolution to remove a director under this section or to appoint somebody instead of a director so removed at the meeting at which he is removed, and on receipt of notice of an intended resolution to remove a director under this section, the company shall immediately send a copy thereof to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.

(3) Where notice is given of an intended resolution to remove a director under this section and the director concerned makes with respect thereto representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so in any notice of the resolution given to members of the company state the fact of the representations having been made; and

(a)

(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company), and if a copy of the representations is not sent as above because it has been received too late or because of the company's default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting: Provided that, copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.

(4) A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.

(5) A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.

(6) Nothing in this section shall be taken as depriving a person removed there under of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director or as derogating from any power to remove a director which may exist apart from this section.

194.-(I) Subject to the provisions of this section, no person shall be capable of being appointed a director of a company which is subject to this section if at the time of his appointment he had not attained the age of twenty-one or he has attained the age of seventy.

(2) Subject as above, a director of a company which is subject to this section shall vacate his office at the conclusion of the annual general meeting commencing next after he attains the age of seventy: Provided that, acts done by a person as director shall be valid notwithstanding that it is afterwards discovered that his appointment had terminated by virtue of this subsection.

(3) Where a person retires by virtue of subsection (2), no provision for the automatic reappointment of retiring directors in default of another appointment shall apply; and if at the meeting at which he retires the vacancy is not filled it may be filled as a casual vacancy.

(4) Subsection (2) shall not apply to a director who is in office at the appointed day so as to terminate his then appointment before the conclusion of the third annual general meeting commencing after the appointed day, but shall apply so as to terminate it at the conclusion of that meeting if he has attained the age of seventy before the commencement of the meeting.

(5) Nothing in the foregoing provisions of this section shall prevent the appointment of a director at any age above the age of eighteen, or require a director to retire at any time, if his appointment is or was made or approved by the company in general meeting, but special notice shall be required of any resolution appointing or approving the appointment a director for it to have effect for the purposes of this subsection and the notice thereof given to the company and by the company to its members must state or must have stated the age of the person to whom it relates.

(6) A person re-appointed director on retiring by virtue of subsection (2), or appointed in place of a director so retiring, shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the retiring director was last appointed before his retirement; but except as provided by this subsection, the retirement of a director out of turn by virtue of subsection (2) shall be disregarded in determining when any other directors are to retire.

(7) In the case of a company first registered after the appointed day, this section shall have effect subject to the provisions of the company's articles; and in the case of a company first registered before the appointed day - this section shall have effect subject to any alterations of the company's articles made after the appointed day ; and

(a)

(b) if at the appointed day the company's articles contained provision for retirement of directors under an age limit or for preventing or restricting appointments of directors over a given age this section shall not apply to directors to whom that provision applies.

195.-(1) Any person who is appointed or to his knowledge proposed to be appointed director of a company subject to section 194 at a time before he has attained the age of twenty-one or after he attained any retiring age applicable to him as director either under this Act or under the company's articles shall give notice of his age to the company: Provided that, this subsection shall not apply in relation to a person's reappointment on the termination of a previous appointment as director of the company.

(2) Any person who -

(a) fails to give notice of his age as required by this section; or

(b) acts as director under any appointment which is invalid or has terminated by reason of his age; shall be liable to a default fine.

(3) For the purposes of subsection (2), a person who has acted as director under an appointment which is invalid or has terminated shall be deemed to have continued so to act throughout the period from the invalid appointment or the date on which the appointment terminated, as the case may be, until the last day on which he is shown to have acted there under.

196.-(I) If any person who has been declared bankrupt or insolvent by a competent court in Tanzania or elsewhere and has not received his discharge acts as director of, or directly or indirectly takes part in or is concerned in the management of, any body corporate except with the leave of the court, he shall be liable on conviction to imprisonment, or to a fine or to both.

(2) The leave of the court for the purposes of this section shall not be given unless notice of intention to apply therefor has been served on the official receiver, and it shall be the duty of the official receiver, if he is of opinion that it is contrary to the public interest that any such application should be granted, to attend on the hearing of and oppose the granting of the application.

(3) In this section the expression ''body corporate" includes a body corporate incorporated outside Tanzania which has an established place of business within Tanzania, and the expression "official receiver" means the official receiver in bankruptcy.

197.-(I) Where -

(a) a person is convicted of any offence in connection with the promotion, formation or management of a company; or

(b) a person has been persistently in default in relation to provisions of this Act requiring any return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the Registrar;

(c) in the course of winding up a company it appears that a person-

(i) has been guilty of any offence for which he is liable (whether he has been convicted or not) under section 3 83; or

(ii) has otherwise been guilty, while an officer of the company, of any fraud in relation to the company or of any breach of his duty to the company; or

(d) the court has made a declaration under section 382, 383 or 384 that a person is liable to make a contribution to a company's assets; or

(e) the court is satisfied that a person is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and that his conduct as a director of that company (either alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be involved in the management of companies, the court may make a disqualification order against that person providing that he shall not, without the leave of the court, be a director of or in any way, whether directly or indirectly, be concerned or take part in the management of a company for such period not exceeding fifteen years with respect to subsections (a), (c), (d) and (e) above, and not exceeding five years with respect to subsection (b) above, as may be specified in the order.

(2) In subsection (1) the expression ''the court'' includes the court before which he is convicted, as well as any court having jurisdiction to wind up the company, and in relation to the granting of leave means any court having jurisdiction to wind up the company as respects which leave is sought.

(3) A person intending to apply for the making of a disqualification order under this section by the court having jurisdiction to wind up a company shall give not less than ten days' notice of his intention to the person against whom the order is sought, and on the hearing of the application the last-mcritioned person may appear and himself give evidence or call witnesses.

(4) An application for the making of a disqualification order under this section by the court having jurisdiction to wind up a company may be made by the official receiver, or by the liquidator or administrator of the company or by a person who is or has been a member or creditor of the company; and on the hearing of any application for an order under this section by the official receiver or the liquidator or administrator, or of any application for leave under this section by a person against whom an order has been made, the official receiver or liquidator or administrator shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.

(5) A disqualification order may be made by virtue of subsection (1)(c)(ii) notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground on which the order is to be made, and for the purposes of the said subsection the expression ''officer''shall include any person in accordance with whose directions or instructions the directors of the company have been accustomed to act.

(6) If any person acts in contravention of an order made under this section, he shall, in respect of each offence, be liable on conviction to imprisonment or to a fine or to both.

198.-(I) A person is personally responsible for all the relevant debts of a company if at any time - company's

(a) in contravention of a disqualification order he is involved in the management of the company, or person acts

(b) as a person who is involved in the management of the company, he while acts or is willing to act on instructions given without the leave of the court by a person whom he knows at that time to be the subject of a disqualification order or to be an undischarged bankrupt.

(2) Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable and for the purposes of this section the relevant debts of a company are -

(a) in relation to a person who is personally responsible under subsection (1)(a), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company; and

(b) in relation to a person who is personally responsible under subsection (1)(b), such debts and other liabilities of the company as are incurred at a time when that person was acting or was willing to act on instructions given as mentioned in that subsection.

(3) For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.

(4) For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given without the leave of the court by a person whom he knew at that time to be the subject of a disqualification order or to be an undischarged bankrupt is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.

199.-(I) It shall not be lawful for a company to pay a director remuneration (whether as director or otherwise) free of any tax assessable on or otherwise by reference to his income, except under a contract which was in force two years before the appointed day and provides expressly, and not by reference to the articles, for payment of remuneration as above.

(2) Any provision contained in a company's articles, or in any contract other than such a contract as above, or in any resolution of a company ora company's directors, for payment to a director of remuneration as above shall have effect as it if provided for payment, as a gross sum subject to any such tax, of the net sum for which it actually provides.

(3) This section shall not apply to remuneration due before the appointed day or in respect of a period before the appointed day.

200.-(I) It shall not be lawful for a company to make a loan to a Prohibition director of the company or a director of its holding company, or in either of loans case a connected person, or to enter into any guarantee or provide any to directors and con- security in connection with a loan made to such a director or connected person as above by any other person: Provided that nothing in this section shall apply either -

(a) to anything done by a subsidiary, where the director is its holding company; or

(b) subject to subsection (2), to anything done to provide any such person as above with funds to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him properly to perform his duties as an officer of the company; or

(c) in the case of a company whose ordinary business includes the lending of money or the giving of guarantees in connection with loans made by other persons, to anything done by the company in the ordinary course of that business.

(2) Proviso (b) to subsection (1) shall not authorize the making of any loan, or the entering into any guarantee, or the provision of any security, except either with the prior approval of the company given at a general meeting at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or

(a)

(b) on condition that, if the approval of the company is not given as above at or before the next following annual general meeting, the loan shall be repaid or the liability under the guarantee or security shall be discharged, as the case may be, within six months from the conclusion of that meeting.

(3) Where the approval of the company is not given as required by any such condition, the directors authorizing the making of the loan, or the entering into of the guarantee, or the provision of the security, shall be jointly and severally liable to indemnify the company against any loss arising therefrom.

(4) For the purposes of this Chapter, a connected person shall mean- -

(a) a director's spouse, child or step-child, or a body corporate in which the director or any such other person has a direct or indirect interest of twenty per cent or more in the share capital;

(b) a trustee, acting as such, of any trust of which the beneficiaries include any one of the persons mentioned in subsection (a);

(c) a partner, acting as such, of the director or any one of the persons mentioned in subsections (a) and (b).

201. It shall not be lawful for a company to make to any director of company the company any payment by way of compensation for loss of office, or requisite for payment to as consideration for or in connection with his retirement from office, director for without particulars with respect to the proposed payment (including the loss of of amount thereof) being disclosed to members of the company and the proposal being approved by the company in general meeting.

202.-(I) It shall not be lawful in connection with the transfer of the company requisite for whole or any part of the undertaking or property of a company for any any pay- payment to be made to any director of the company byway of competent, in sation for loss of office, or as consideration for or in connection with his connection with trans- retirement from office, unless particulars with respect to the proposed payment (including the amount thereof) have been disclosed to the members of the company and the proposal approved by the company in general meeting.

(2) Where a payment which is hereby declared to be unlawful is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.

203.-(I) This section applies where, in connection with the transfer to any persons of all or any of the shares in a company, being a transfer resulting from - for loss of

(a) an offer made to the general body of shareholders; office ete.,

(b) an offer made by or on behalf of some other body corporate with made in a view to the company becoming its subsidiary or a subsidiary of connection with its holding company; transfer of

(c) an offer made by or on behalf of an individual with a view to his shares in company obtaining the right to exercise or control the exercise of not less than one-third of the voting power at any general meeting of the company; or

(d) any other offer which is conditional on acceptance to a given extent, a payment is to be made to a director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office.

(2) It shall in those circumstances be the duty of that director to take all reasonable steps to secure that particulars with respect to the proposed payment including the amount thereof shall be included m or sent with any notice of the offer made for their shares which is given to any shareholders.

(3) If -

(a) the director fails to take reasonable steps on the requirements specified under subsection (2);

(b) any person who has been properly required by any such director to include the said particulars in or send them with any such notice as above fails so to do, he shall be liable to a fine.

(4) If -

(a) the requirements of subsection (2) are not complied with; or

(b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of the said shares, any sum received by the director on account of the payment shall be deemed to have been received by him in trust for any persons who have sold their shares as a result of the offer made, and the expenses incurred by him in distributing that sum amongst those persons shall be borne by him and not retained out of that sum.

(5) Where the shareholders referred to in subsection (4)(b) are not all the members of the company and no provision is made by the articles for summoning or regulating such a meeting as is mentioned in that subsection, the provisions of this Act and of the company's articles relating to general meetings of the company shall, for that purpose, apply to the meeting either without modification or with such modifications as the Registrar on the application of any person concerned may direct for the purpose of adapting them to the circumstances of the meeting.

(6) If at a meeting summoned for the purposes of approving any payment as required by subsection (4)(b), a quorum is not present and, after the meeting has been adjourned to a later date, a quorum is again not present, the payment shall be deemed for the purposes of that subsection to have been approved.

204.-(I) Where in proceedings for the recovery of any payment as having, by virtue of section 202(2) or section 203(4), been received by any person in trust, it is shown that - Provisions supplementary sections

(a) the payment was made in pursuance of any arrangement entered 201,202 into as part of the agreement for the transfer in question, or within one year before or two years after that agreement or the offer leading thereto; and and 203

(b) the company or any person to whom the transfer was made was privy to that arrangement, the payment shall be deemed, except in so far as the contrary is shown, to be one to which the subsections apply.

(2) If in connection with any such transfer as is mentioned in either of sections 202 or 203 -

(a) the price to be paid to a director of the company whose office is to be abolished or who is to retire from office for any shares in the company held by him is in excess of the price which could at the time have been obtained by other holders of the like shares; or

(b) any valuable consideration is given to any such director, the excess or the money value of the consideration, as the case may be, shall, for the purposes of that section, be deemed to have been a payment made to him by way of compensation for loss of office or as consideration for or in connection with his retirement from office.

(3) References in sections 201, 202 and 203 to payments made to any director of a company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, do not include any bonafide payment by way of damages for breach of contract or by way of pension in respect of past services, and for the Purposes of this subsection the expression ''pension'' includes any superannuation allowance, superannuation gratuity or similar payment.

(4) With respect to sections 201, 202 and 203, when a vote is taken by the company in general meeting to approve payments of compensation or otherwise to a director, no votes shall be taken on shares held by the director, or a person connected with him as defined in section 200(4).

205.-(I) Every company shall keep a register showing as respects each director of the company (not being its holding company) the number, class and amount of any shares in or debentures of the company or any other body corporate, being the company's subsidiary or holding company, or a subsidiary of the company's holding company, which are held by or in trust for him or of which he has any right to become the holder (whether on payment or not).

(2) Where any shares or debentures fall to be or cease to be recorded in the said register in relation to any director by reason of a transaction entered into after the appointed day and while he is a director, the register shall also show the date of, and price or other consideration for, the transaction: Provided that, where there is an interval between the agreement for any such transaction and the completion thereof, the date shall be that of the agreement.

(3) The nature and extent of a director's interest or right in or over any shares or debentures recorded in relation to him in the said register shall, if he so requires, be indicated in the register.

(4) The company shall not, by virtue of anything done for the purposes of this section, be affected with notice of, or put upon inquiry as to, the rights of any person in relation to any shares or debentures.

(5) The register shall, subject to the provisions of this section, be kept at the company's registered office and shall be open to inspection during business hours.

(6) The Registrar may at any time require a copy of the register, or

(7) The register shall also be produced at the commencement of the company's annual general meeting and remain open and accessible during the continuance of the meeting to any person attending the meeting.

(8) If default is made in complying with subsection (7), the company and every officer of the company who is in default shall be liable to a fine; and if default is made in complying with subsections (1) or (2), or if any inspection required under this section is refused or any copy required there under is not sent within a reasonable time, the company and every officer of the company who is in default shall be liable to a fine and further to a default fine.

(9) In the case of any such refusal, the court may by order compel an immediate inspection of the register. (I 0) For the purposes of this section -

(a) any person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director of a company;

(b) a director of a company shall be deemed to hold, or to have an interest or right in or over, any shares or debentures if a body corporate other than the company holds them or has that interest or right in or over them, and either -

(i) that body corporate or its directors are accustomed to act in accordance with his directions or instructions; or

(ii) he is entitled to exercise or control the exercise of one third or more of the voting power at any general meeting of that body corporate.

206.-(I) In any accounts of a company laid before it in general meeting, or in a statement annexed thereto, there shall be shown - in accounts

(a) the amount of each of the director's emoluments;

(b) the amount of each of the director's or past director's pensions; and pensions,

(c) the amount of any compensation payable to any director or past director in respect of loss of office. etc.

(2) The amount to be shown under subsection (1)(a) of this section -

(a) shall include any emoluments paid to or receivable by any person in respect of his services as director of the company or in respect of his services, while director of the company, as director of any subsidiary thereof or otherwise in connection with the management of the affairs of the company or any subsidiary thereof, and

(b) shall distinguish between emoluments in respect of services as director, whether of the company or its subsidiary, and other emoluments, and, for the purposes of this section the expression ''emoluments'', in relation to a director, includes fees and percentages, any sums paid by way of expenses allowance in so far as those sums are charged to income tax, any contribution paid in respect of him under any pension scheme and the estimated money value of any other benefits recovered by him otherwise than in cash.

(3) The amount to be shown under subsection (1)(b) -

(a) shall not include any pension paid or receivable under a pension scheme if the scheme is such that the contributions there under are substantially adequate for the maintenance of the scheme, but save as above shall include any pension paid or receivable in respect of any such services of a director or past director of the company as are mentioned in subsection (2), whether to or by him or, on his nomination or by virtue of dependence on or other connection with him, to or by any other person; and

(b) shall distinguish between pensions in respect of services as director, whether of the company or its subsidiary, and other pensions, and for the purposes of this section the expression ''pension'' includes any superannuation allowance, superannuation gratuity or similar payment, and the expression ''pension scheme'' means a scheme for the provision of pensions in respect of services as director or otherwise which is maintained in whole or in part by means of contributions, and the expression ''contribution'' in relation to a pension scheme means any payment (including an insurance premium) paid for the purposes of the scheme by or in respect of persons rendering services in respect of which pensions will or may become payable under the scheme, except that it does not include any payment in respect of two or more persons if the amount paid in respect of each of them is not ascertainable.

(4) The amount to be shown under subsection (1)(c) -

(a) shall include any sums paid to or receivable by a director or past director by way of compensation for the loss of office as director of the company or for the loss, while director of the company or on or in connection with his ceasing to be a director of the company, of any other office in connection with the management of the company's affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary thereof; and

(b) shall distinguish between compensation in respect of the office of director, whether of the company or its subsidiary, and compensation in respect of other offices, And for the purposes of this section references to compensation for loss of office shall include sums paid as consideration for or in connection with a person's retirement from office.

(5) The amounts to be shown under each paragraph of subsection (1) -

(a) shall include all relevant sums paid by or receivable from -

(i) the company; and

(ii) the company's subsidiaries; and

(iii) any other person; except sums to be accounted for to the company or any of its subsidiaries or, by virtue of section 203, to past or present members of the company or any of its subsidiaries or any class of those members; and

(b) shall distinguish, in the case of the amount to be shown under subsection (1)(c), between the sums respectively paid by or receivable from the company, the company's subsidiaries and persons other than the company and its subsidiaries.

(6) The amounts to be shown under this section for any accounting period shall be the sums receivable in respect of that year, whenever paid, or, in the case of sums not receivable in respect of a period the sums paid during that year, so, however, that where -

(a) any sums are not shown in the accounts for the relevant accounting period on the ground that the person receiving them is liable to account, there for as mentioned in subsection(5)(a), but the liability is thereafter wholly or partly released or is not enforced within a period of two years; or

(b) any sums paid by way of expenses allowance are charged to income tax after the end of the relevant accounting period. Those sums shall, to the extent to which the liability is released or not enforced or they are charged as above, as the case may be, be shown in the first accounts in which it is practicable to show them or in a statement annexed thereto, and shall be distinguished from the amounts to be shown therein apart from this provision.

(7) Where it is necessary for the purpose of making any distinction required by this section in any amount to be shown there under, the directors may apportion any payments between the matters in respect of which they have been paid or are receivable in such manner as they think appropriate.

(8) In this section any reference to a company's subsidiary -

(a) in relation to a person who is or was, while a director of the company, a director also, by virtue of the company's nomination, director indirect, of any other body corporate, shall, subject to the following paragraph, include that body corporate, whether or not it is or was in fact the company's subsidiary; and

(b) shall for the purposes of subsections (2) and (3) be taken as referring to a subsidiary at the time the services were rendered, and for the purposes of subsection (4) be taken as referring to a subsidiary immediately before the loss of office as director of the company.

207.-(l) The accounts which are to be laid before every company in general meeting shall contain particulars showing - Particulars in accounts of

(a) the amount of any loans made during the company's accounting

(i) any officer of the company; or

(ii) any person who, after the making of the loan, became during that year an officer of the company, by the company or a subsidiary thereof or by any other person under a guarantee from or on a security provided by the company or a subsidiary thereof (including any such loans which were repaid during that year); and

(b) the amount of any loans made in manner aforesaid to any such officer or person as aforesaid at any time before the company's accounting period and outstanding at the expiration thereof.

(2) Subsection (1) shall not require the inclusion in accounts of particulars

(a) a loan made in the ordinary course of its business by the company or a subsidiary thereof, where the ordinary business of the company or, as the case may be, the subsidiary, includes the lending of money; or

(b) a loan made by the company or a subsidiary thereof to an employee of the company or subsidiary, as the case may be, if the loan does not exceed forty thousand shillings and is certified by the directors of the company or subsidiary, as the case may be, to have been made in accordance with any practice adopted or about to be adopted by the company or subsidiary with respect to loans to its employees, not being, in either case, a loan made by the company under a guarantee from or on a security provided by a subsidiary thereof or a loan made by a subsidiary of the company under a guarantee from or on a security provided by the company or any other subsidiary thereof.

(3) If in the case of any such accounts as above the requirements of this section are not complied with, it shall be the duty of the auditors of the company by whom the accounts are examined to include in their report on the annual accounts of the company, so far as they are reasonably able to do so, a statement giving the required particulars.

(4) References in this section to a subsidiary shall be taken as referring to a subsidiary at the end of the company's accounting period (whether or not a subsidiary at the date of the loan).

208.-(l) It shall be the duty of any director of a company to give notice to the company of such matters relating to himself as may be necessary for the purposes of sections 205, 206 and 207.

(2) Any such notice given for the purposes of section 205 shall be in writing and, if it is not given at a meeting of the directors, the director giving it shall take reasonable steps to secure that it is brought up and read at the next meeting of directors after it is given.

(3) Subsection (1) shall apply as it applies in relation to directors as follows -

(a) for the purposes of section 205, an interest in shares or debentures of a person connected with a director as defined in section 200(4) is to be treated as the director's interest;

(b) for the purposes of section 207, in relation to officers other than directors; and

(c) for the purposes of sections 206 and 207 in relation to persons who are or have at any time during the preceding five years been officers.

(4) Any person who makes default in complying with the foregoing provisions of this section shall be liable to a fine.

209.-(I) It shall be the duty of a director of a company where he or any connected person is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company to declare the nature of that interest at a meeting of the directors of the company.

(2) In. the case of a proposed contract the declaration shall be made - in contracts

(a) at the meeting of the directors at which the question of entering into the contract is first taken into consideration, or

(b) if the director was not at the date of that meeting interested in the proposed contract, at the next meeting of the directors held after he became so interested, and in a case where the director becomes interested in a contract after it is made, the said declaration shall be made at the first meeting of the directors held after the director becomes so interested.

(3) For the purposes of this section, a general notice given to the directors of a company by a director to the effect that -

(a) he is a member of a specified company or firm or acts for the company in a specified capacity and is to be regarded as interested in any contract which may, after the date of the notice, be made with that company or firm or with himself in such specified capacity, or

(b) he is to be regarded as interested in any contract which may after the date of the notice be made with any connected person, shall be deemed to be a sufficient declaration of interest in relation to any contract so made: Provided that, no such notice shall be of effect unless either it is given at a meeting of the directors or the director takes reasonable steps to secure that it is brought up and read at the next meeting of the directors after it is given.

(4) Any director who fails to comply with the provisions of this section shall be liable to a fine.

(5) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with the company.

210.-(I) Every company shall keep at its registered office a register of its directors and secretaries.

(2) The register shall contain the following particulars with respect to each director -

(a) in the case of an individual, his present name and surname, any former name or surname, his usual address, his nationality and, if that nationality is not his nationality of origin, his nationality of origin, his business occupation, if any, particulars of all other directorships held by him and the date of his birth; and

(b) in the case of a corporation, its corporate name and registered office: Provided that, it shall not be necessary for the register to contain particulars of directorships held by a director in companies of which the company is the wholly-owned subsidiary, or which are the wholly-owned subsidiaries either of the company or of another company of which the company is the wholly-owned subsidiary, and for the purposes of this proviso the expression ''company'' shall include any body corporate incorporated in Tanzania.

(3) The said register shall contain the following particulars with respect to the Secretary or, where there are Joint Secretaries, with respect to each of them -

(a) in the case of an individual, his present name and surname, any former name and surname and his usual address; and

(b) in the case of a corporation, its corporate name and registered office: Provided that, where all the partners in a firm are Joint Secretaries, the name and principal office of the firm may be stated instead of the said particulars.

(4) The company shall, within the periods respectively mentioned in subsection (5), deliver to the Registrar for registration a return in the prescribed form containing the particulars specified in the said register and a notification in the prescribed form of any change among its directors or in its Secretary or in any of the particulars contained in the register, specifying the date of the change.

(5) The periods referred to in subsection (4) are the following -

(a) the period, within which the said return is to be delivered shall be a period of fourteen days from the appointment of the first directors of the company; and

(b) the period within which the said notification of a change is to be delivered shall be fourteen days from the happening thereof Provided that, in the case of a return containing particulars with respect to any person who is the company's Secretary on the appointed day, the period shall be fourteen days from the appointed day.

(6) The register to be kept under this section shall during business hours be open to the inspection of any member of the company without charge and of any other person on payment of such fee as the Minister may prescribe in regulations for each inspection.

(7) If any inspection required under this section is refused or if default is made in complying with subsection (1), (2), (3) or (4), the company and every officer of the company who is in default shall be liable to a default fine.

(8) In the case of any such refusal, the court may by order compel an immediate inspection of the register.

(9) For the purposes of this section -

(a) a person in accordance with whose directions or instructions the directors of a company are accustomed to act shall be deemed to be a director and officer of the company;

(b) references to a former name or surname do not include -

(i) in the case of any person, a former name or surname where that name or surname was changed or disused before the person bearing the name attained the age of eighteen years or has been changed or disused for a period of not less than twenty years; or

(ii) in the case of a married woman, the name or surname by which she was known prior to the marriage.

211.-(I) Subject to the following provisions, every company shall keep at an appropriate place - service contracts

(a) in the case of each director whose contract of service with the company is in writing, a copy of that contract:

(b) in the case of each director whose contract of service with the company is not in writing, a written memorandum setting out its terms; and

(c) in the case of each director who is employed under a contract of service with a subsidiary of the company, a copy of that contract or, if it is not in writing, a written memorandum setting out its terms.

(2) All copies and memoranda kept by a company in pursuance of subsection (1) shall be kept at the same place.

(3) The following are appropriate places for the purposes of subsection (1)

(a) the company's registered office:

(b) the place where its register of members is kept (if other than its registered office).

(4) Every company shall send notice in the prescribed form to the Registrar of companies of the place where copies and memoranda are kept in compliance with subsection (1), and of any change in that place, save in a case in which they have at all times been kept at the company's registered office.

(5) Every copy and memorandum required by subsection (1) to be kept shall be open to inspection of any member of the company without charge.

(6) If -

(a) default is made in complying with subsection (1), or

(b) an inspection required under subsection (5) is refused, or

(c) default is made for 14 days in complying with subsection (4), the company and every officer of it who is in default is liable to a fine and, for continued contravention to a daily default fine.

(7) In the case of a refusal of an inspection required under subsection (5) of a copy or memorandum, the court may by order compel an immediate inspection of it.

(8) Subsection (1) shall apply to a variation of a director's contract of service as it applies to the contract.

212.-(I) This section applies in respect of any term of an agreement whereby a director's employment with the company of which he is a director or, where he is the director of a holding company, his employment within the group is to continue, or may be continued, otherwise than at the instance of the company (whether under the original agreement or under a new agreement entered into in pursuance of it), for a period of more than three years during which the

(a) cannot be terminated by the company by notice; or

(b) can be so terminated only in specified circumstances.

(2) In any case where -

(a) a person is or is to be employed with a company under an agreement which cannot be terminated by the company by notice or can be so terminated only in specified circumstances; and

(b) more than 6 months before the expiration of the period for which he is or is to be so employed, the company enters into a further agreement (otherwise than in pursuance of a right conferred by or under the original agreement on the other party to it) under which he is to be employed with the company or, where he is a director of a holding company, within the group, this section applies as if to the period for which he is to be employed under that further agreement there were added a further period equal to the unexpired period of the original agreement.

(3) A company shall not incorporate in an agreement such a term as is mentioned in subsection (1), unless the term is first approved by a resolution of the company in general meeting and, in the case of a director of a holding company, by a resolution of that company in general meeting.

(4) No approval is required to be given under this section by any body corporate unless it is a company within the meaning of this Act, or if it is a wholly-owned subsidiary of any body corporate, wherever incorporated.

(5) A resolution of a company approving such a term as is mentioned in subsection (1) shall not be passed at a general meeting of the company unless a written memorandum setting out the proposed agreement incorporating the term is available for inspection by members of the company both -

(a) at the company's registered office for not less than fifteen days ending with the date of the meeting; and

(b) at the meeting itself

(6) A term incorporated in an agreement in contravention of this section is, to the extent that it contravenes this section, void; and that agreement and, in a case where subsection (2) applies, the original agreement are deemed to contain a entitling the company to terminate it at any time by giving reasonable notice.

213.-(l) Every company shall, in all business documentation on or in which the company's name appears and which is issued or sent by the company to any person in any part of the Territory, state in legible letters with respect to every director being a corporation, the corporate name, and with respect to every director being an individual, the follow Particulars

(a) his present name, or the initials thereof, and present surname;

(b) any former names and surnames: Provided that, if special circumstances exist which render it in the opinion of the Registrar expedient that such an exemption should be granted, the Registrar may by order grant, subject to such conditions as may be specified in the order, exemption from all or any of the obligations imposed by this subsection.

(2) If a company makes default in complying with this section, every officer of the company who is in default shall be liable on conviction for each offence to a fine, and for the purposes of this subsection, where a corporation is an officer of the company, any officer of the corporation shall be deemed to be an officer of the company.

(3) For the purposes of this section -

(a) the expression ''director'' includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act and the expression ''officer'' shall be construed accordingly;

(b) the expression ''initials'' includes a recognized abbreviation of a name; and paragraphs (b) and (c) of subsection (9) of section 21 0 shall apply as they apply for the purposes of that section. Avoidance of provisions in Articles or Contracts relieving Officers from Liability

214. Subject as hereinafter provided, any provision, whether contained in the articles of a company or in any contract with a company or otherwise, for exempting any officer of the company or any person employed by the company as auditor from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach and to him in respect of any negligence, default, breach of duty or breach of auditors Provisions trust of which he may be guilty in relation to the company, shall be void: Provided that -

(a) nothing in this section shall operate to prevent a company from purchasing and maintaining for any such officer or auditor insurance against any such liability; and

(b) notwithstanding anything in this section, a company may, in pursuance of any such provision as above, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal in which judgment is given in his favour or in which he is acquitted or in connection with any application under section 491 in which relief is granted to him by the court.

CHAPTER VIII INVESTIGATION AND INSPECTION

215. Where the Registrar believes and has reasonable cause to believe on perusal of any document which a company submits to him under the provisions of this Act, that the document does not disclose a full and fair statement of the matters to which it purports to relate, he may, by a written order, call on the company concerned to produce all or any of the books of the company or to furnish in writing such information or explanation as he may specify in his order and such books shall be produced and such information or explanation shall be furnished by the company within such time as may be specified in the order.

216.-(I) On receipt of an order under section 215, it shall be the duty of all persons who are or have been officers of the company to produce such books or to furnish such information or explanation so far as lies within their power.

(2) If any such person refuses or neglects to produce such books or to furnish any such information or explanation he shall be liable to a fine in respect of each offence.

(3) If, after examination of such books or consideration of such information or explanation, the Registrar is of the opinion that an unsatisfactory state of affairs is disclosed or that a full and fair statement has not been disclosed, the Registrar shall report the circumstances of the case in writing to the court.

217.-(I) The court may appoint one or more competent inspectors tiol of to investigate the affairs of a company and to report thereon in such companys manner as the court directs affairs on application of

(a) in the case of a company having a share capital, on the application either of not less than one hundred members or of members holding not less than one-tenth of the shares issued; members

(b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company's register of members;

(c) in any case, on application by the company.

(2) The application shall be supported by such evidence as the court may require for the purpose of showing that the applicants have good reason for requiring the investigation, and the court may, before appointing an inspector, require the applicants to give security for payment of the costs of the investigation.

218. Without prejudice to its powers under section 217, the court of company

(a) shall appoint one or more competent inspectors to investigate the affairs of a company and to report thereon m such manner as the court directs, if the company by special resolution declares that its affairs ought to be investigated by an inspector appointed by the court;

(b) may do so, if it appears to the court upon a report from the Minister that there are circumstances suggesting

(i) that the company's business is being conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any part of its members, or that it was formed for any fraudulent or unlawful purpose; or

(ii) that persons concerned with its formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or

(iii) that its members have not been given all the information with respect to its affairs which they might reasonably expect; or

(iv) that it is desirable to do so; and

(c) may do so on receipt of a report from the Registrar under section 216(3).

219. If an inspector appointed under either of sections 217 or 218 to investigate the affairs of a company thinks it necessary for the purposes of his investigation to investigate also the affairs of any other body corporate which is or has at any relevant time been the company's subsidiary or parent company or a subsidiary of its parent company or a parent company of its subsidiary, he shall have power so to do, and shall report on the affairs of the other body corporate so far as he thinks the results of his investigation thereof are relevant to the investigation of the affairs of the first-mentioned company.

220.-(I) It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of section 219 to produce to any inspector all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspector when required to do so and otherwise to give to the inspector all assistance in connection with the investigation which they are reasonably able to give.

(2) If the inspector considers that an officer or agent of the company or other body corporate or any other person is or may be in possession of information relating to a matter which they believe to be relevant to the investigation, they may require him:

(a) to produce to the inspector any documents in his custody or power relating to that matter,

(b) to attend before the inspector,

(c) otherwise to give to the inspector all assistance in connection with the investigation which he is reasonably able to give

(3) An inspector may examine on oath the officers and agents of the company or other body corporate in relation to its business, and may administer an oath accordingly.

(4) If any officer or agent of the company or other body corporate refuses to produce to an inspector any book or document which it is his duty under this section so to produce, or refuses to attend before the inspector when required to do so, or refuses to answer any question which is put to him by an inspector with respect to the affairs of the company or other body corporate, as the case may be, the inspector may certify the refusal under his hand to the court, and the court may thereupon inquire into the case, and after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, punish the offender in like manner as if he had been guilty of contempt of court.

(5) If an inspector thinks it necessary for the purpose of his investigation that a person whom he has no power to examine on oath should be so examined, he may apply to the court and the court may if it sees fit order that person to attend and be examined on oath before it on any matter relevant to the investigation, and on any such examination -

(a) the inspector may take part therein either personally or by advocate;

(b) the court may put such questions to that person examined as the court thinks fit;

(c) the person examined shall answer all such questions as the court may put or allow to be put to him, but may at his own cost employ an advocate, who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him, and notes of the examination shall be taken down in writing and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him: Provided that, notwithstanding anything in paragraph (c) of this sub- section, the court may allow the person examined such costs as in its discretion it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.

(6) In this section any reference to officers or agents shall include past, as well as present, officers or agents, as the case may be, and for the purposes of this section the expression ''agents'', in relation to a comparry or other body corporate shall include the bankers and advocates of the company or other body corporate and any persons employed by the company or other body corporate as auditors, whether those persons are or are not officers of the company or other body corporate.

221.-(I) An inspector may, and, if so directed by the court, shall make interim reports to the court, and on the conclusion of the investigation shall make a final report to the court; any such report shall be written or, if the court so directs, printed.

(2) The court shall order that a copy of any report be forwarded to the Minister and may, in its discretion, order that a copy of any report be forwarded:-

(a) to the company;

(b) on request and on payment of the prescribed fee to any other person who is a member of the company or of any other body corporate dealt with in the report by virtue of section 219, or whose interests as a creditor of the company or any such other body corporate as above appear to the court to be affected, or whose conduct is referred to in the report;

(c) on request to the applicants for the investigation;

(d) to the auditors of the company or body corporate as the case may be, and may also cause the report to be printed and published.

222.-(I) If from any report made under section 221, it appears to the court that any person has, in relation to the company or to any body corporate whose affairs have been investigated by virtue of section 219 been guilty of any offence for which he is criminally liable, the court shall forward a copy of the report to the Attorney-General, and if the Attorney-General considers that the case is one in which a prosecution ought to be instituted, he shall institute proceedings accordingly, and it shall be the duty of all officers and agents of the company, past and present (other than the defendant in the proceedings), to give him all Proceedings assistance in connection with the prosecution which they are reasonably able to give.

220(5) shall apply for the purposes of this subsection as it applies for the purposes of that section.(2) If, in the case of any body corporate that may be wound up under this Act, it appears to the Attorney-General, from any such report as above that it is expedient so to do by reason of any such circumstances as are referred to in sub-paragraphs (i) or (ii) of paragraph (b) of section 218, the Attorney-General may, unless the body corporate is already being wound up by the court, present a petition for it to be so wound up if the court thinks it just and equitable that it should be wound up or a petition for an order under section 233 or both.

(3) If from any report made or information obtained under this Part it appears to the Attorney-General that any civil proceedings ought in the public interest to be brought by any body corporate, he may himself bring proceedings for that purpose in the name of the body corporate.

(4) The Minister shall indemnify the body corporate against any costs or expenses incurred by it in or in connection with any proceedings brought by virtue of subsection (3).

223.-(l) The expenses of and incidental to an investigation by an inspector appointed by the court under this Chapter shall be defrayed in the first instance by the Minister, but the following persons shall, to the extent mentioned, be liable to repay the Minister -

(a) any person who is convicted on a prosecution instituted by the Attorney-General as a result of the investigation or who is ordered to pay damages or restore any property in proceedings brought by virtue of section 222(3), may in the same proceedings be ordered to pay the said expenses to such extent as may be specified in the order;

(b) any body corporate in whose name proceedings are brought as above shall be liable to the amount or value of any sums or property recovered by it as a result of those proceedings; and any amount for which a body corporate is liable by virtue of this paragraph shall be a first charge on the sums or property recovered;

(c) unless as a result of the investigation a prosecution is instituted by the Attorney-General -

(i) any body corporate dealt with by the report, where the inspector was appointed otherwise than under section 218(b), shall be liable, except so far as the court otherwise directs; and

(ii) the applicants for the investigation, where the inspector was appointed under section 217, shall be liable to such extent (if any) as the court directs,

(2) The report of an inspector appointed otherwise than under section 218(b), may, if he thinks fit, and shall, if the court so directs, include a recommendation as to the directions (if any) which he thinks appropriate, in the light of his investigation, to be given under subsection I (c).

(3) For the purposes of this section, any costs or expenses incurred by the Attorney-General in or in connection with proceedings brought by virtue of section 222(3) (including expenses incurred by the Minister by virtue of subsection (4) thereof) shall be treated as expenses of the investigation giving rise to the proceedings.

(4) Any liability to repay the Minister imposed by subsections (1)(a) and (1)(b) shall, subject to satisfaction of the Minister's right to repayment, be a liability also to indemnify all persons against liability under subsection (1)(c), and any such liability imposed by subsection (1)(a) shall, subject as aforesaid, be a liability under subsection (1)(c); and any person liable under subsection (1)(a) or (1)(b) or either sub-paragraph (i) or (ii) of subsection (1)(c) shall be entitled to contribution from any other person liable under the same subsection or sub-paragraph, as the case may be, according to the amount of their respective liabilities there under.

224. A copy of any report of an inspector appointed under the fore- Inspectors' going provisions of this Act shall be admissible in any legal proceedings report to as evidence of the opinion of the inspector in relation to any matter be evidence contained in the report.

225. Regulations may be made by the Minister for the time being responsible for finance, or by the Capital Markets and Securities Authority or such other authority designated for the purpose, for the investigation of the ownership of any company or any shares or debentures or for the purpose of determining the true persons who are or have been financially interested in the success or failure of the company or able to control or materially to influence its policy.

226.-(I) An officer of a company or an insurance company who destroys, mutilates, falsifies or is privy to the destruction, mutilation or falsification of a document affecting or relating to the company's property or affairs, or makes or is privy to the making of a false entry in such a document, is guilty of an offence, unless he proves that he had no intention to conceal the state of affairs of the company or defeat the law.

(2) Such a person as above mentioned who fraudulently either parts with, alters or makes an omission in any document or is privy to fraudulent parting with, fraudulent altering or fraudulent making of an omission in, any such document, is guilty of an offence.

(3) A person guilty of an offence under this section is liable to imprisonment or a fine or both.

(4) In this section, ''document'' includes information recorded in any form.

227. Nothing in the foregoing provisions of this Chapter shall require disclosure to the court or to the Registrar or to an inspector appointed by the court or the Registrar -

(a) by an advocate of any privileged communication made to him in that capacity, except as respects the name and address of his client;or

(b) by a company's bankers of any information as to the affairs of any of their customers other than the company.

228.-(I) The provisions of this Chapter shall apply to foreign com parties and bodies corporate incorporated outside Tanzania that have at any time carried on business in Tanzania, as they apply to companies incorporated under this Act, but subject to the exceptions provided in subsection (2).

(2) The following provisions do not apply to foreign companies and bodies corporate mentioned in subsection (1) -

(a) section 217(l)(a) and (c) (inspections ordered on the application of the company or its members);

(b) section 222(3) (power to bring civil proceedings on the companies' behalf).

(3) The Minister may make regulations applying any provisions of this Part to foreign companies or other bodies mentioned in subsection (1) subject to modifications as may be specified therein.

CHAPTER IX ARRANGEMENTS AND RECONSTRUCTIONS

229.-(l) Where a compromise or arrangement is proposed between a company and its creditors, or any class of them, or between the company and its members or any class of them, the court may, on the application (in a summary way) of the company or of any creditor or member of the company, or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the -members of the company or class of members, as the case may be, to be summoned in such manner as the court directs.

(2) If a majority in number representing three-fourths in value of the creditors or class of creditors or members or class of members (as the case may be), present and voting either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement, if sanctioned by the court is binding on all creditors or the class of creditors or on the members or class of members (as the case may be), and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company.

(3) The court's order under subsection (2) has no effect until an office copy of it has been delivered to the Registrar for registration; and a copy of every such order shall be annexed to every copy of the company's memorandum issued after the order has been made or, in the case of a company not having a memorandum, of every copy so issued of the instrument constituting the company or defining its constitution.

(4) If a company makes default in complying with subsection (3), the company and every officer of it who is in default is liable to a fine.

(5) In this section and the next -

(a) ''company'' means any company that maybe wound up under this Act, and

(b) ''arrangement'' includes a reorganization of the company's share capital by the consolidation of shares of different classes or by the division of shares into shares of different classes, or by both of those methods.

230.-(I) The following applies where a meeting of creditors or any class of creditors, or of members or any class of members, is summoned under section 229. circulated

(2) With every notice summoning the meeting which is sent to a creditor or member, there shall be sent also a statement explaining the effect of the compromise or arrangement and in particular stating any material interests of the directors of the company (whether as directors or as members or as creditors of the company or otherwise) and the effect on those interests of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons.

(3) In every notice summoning the meeting which is given by advertisement, there shall be included either such a statement as above-mentioned or a notification of the place at which, and the manner in which, creditors or members entitled to attend the meeting may obtain copies of

(4) Where the compromise or arrangement affects the rights of debenture holders of the company, the statement shall give the like explanation as respects the trustees of any deed for securing the issue of the debentures as it is required to give as respects the company's directors.

(5) Where a notice given by advertisement includes a notification that copies of a statement explaining the effect of the compromise or arrangement proposed can be obtained by creditors or members entitled to attend the meeting, every such creditor or member shall, on making application in the manner indicated by the notice, be furnished by the company free of charge with a copy of the statement.

(6) If a company makes default in complying with any requirement of this section, the company and every officer of the company who is in default shall be liable to a fine, and for the purpose of this subsection any liquidator of the company and any trustee of a deed for securing the issue of debentures of the company shall be deemed to be an officer of Provided that, a person shall not be liable under this subsection if that person shows that the default was due to the refusal of any other person, being a director or trustee for debenture holders, to supply the necessary particulars as to his interest.

(7) It shall be the duty of any director of the company and of any trustee for debenture holders of the company to give notice to the company of such matters relating to himself as may be necessary for the purposes of this section, and any person who makes default in complying with this subsection shall be liable to a fine.

231.-(l) Where an application is made to the court under section 229 for the sanctioning of a compromise arrangement proposed between a company and any such persons as are mentioned in that section, and it is shown to the court that the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any two Provisions and or more companies, and that under the scheme the whole or any part of malgathe undertaking or the property of any company concerned in the scheme nation of (in this section referred to as ''a transfer or company'') is to be trans- compared to another company (in this section referred to as ''the transferee company''), the court may, either by the order sanctioning the compromise or arrangement or by any subsequent order, make provision for all or any of the following matters -

(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transfer or company;

(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company, which under the compromise or arrangement are to be allotted or appropriated by that company to or for any person;

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transfer or company;

(d) the dissolution, without winding up, of any transfer or company;

(e) the provision to be made for any persons who, within such time and in such manner as the court directs, dissent from the compromise or arrangement;

(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.

(2) Where an order under this section provides for the transfer of property or liabilities, that property shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of, the transferee company, and in the case of any property, if the order so directs, vest freed from any charge which is by virtue of the compromise or arrangement to cease to have effect.

(3) Where an order is made under this section, every company in relation to which the order is made shall cause a certified copy thereof to be delivered to the Registrar for registration within seven days after the making of the order, and if default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

(4) In this section the expression ''property'' includes property, rights and powers of every description, and the expression ''liabilities'' includes duties.

(5) Notwithstanding the provisions of section 229 (5), the expression '''company'' in this section does not include any company other than a company within the meaning of this Act.

232.-(I) Where a scheme or contract involving the transfer of shares or any class of shares in a company (in this section referred to as ''the transferor company'') to another company, whether a company within the meaning of this Act or not (in this section referred to as ''the transferee company''), has, within four months after the making of the offer in that behalf by the transferee company been approved by the holders of not less than nine-tenths in value of the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary), the transferee company may, at any time within two months after the expiration of the said four months, give notice in the prescribed manner to any dissenting shareholder that it desires to acquire his shares, and when such a notice is given the transferee company shall, unless on an application made by the dissenting shareholder within one month from the date on which the notice was given the court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company: Provided that, where shares in the transfer or company of the same class or classes as the shares whose transfer is involved are already held as aforesaid to a value greater than one-tenth of the aggregate of their value and that of the shares (other than those already held as aforesaid) whose transfer is involved, this subsection shall not apply unless-

(a) the transferee company offers the same terms to all holders of the shares (other than those already held as aforesaid) whose transfer is involved, or, where those shares include shares of different classes, of each class of them; and

(b) the holders who approve the scheme or contract, besides holding not less than nine-tenths in value of the shares (other than those already held as aforesaid) whose transfer is involved, are not less than three-fourths in number of the holders of those shares.

(2) Where, in pursuance of any such scheme or contract as aforesaid, shares in a company are transferred to another company or its nominee, and those shares together with any other shares in the first-mentioned company held by, or by a nominee for, the transferee company or its subsidiary at the date of the transfer comprise or include nine-tenths in value of the shares in the first-mentioned company or of any class of those shares, then -

(a) the transferee company shall within one month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holders of the remaining shares or of the remaining shares of that class, as the case may be, who have not assented to the scheme or contract; and

(b) any such holder may within three months from the giving of the notice to him require the transferee company to acquire the shares in question, and where a shareholder gives notice under paragraph (b) of this subsection with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which under the scheme or contract the shares of the approving shareholders were transferred to it, or on such other terms as may be agreed or as the court on the application of either the transferee company or the shareholder thinks fit to order.

(3) Where a notice has been given by the transferee company under subsection (1) of this section and the court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee company shall, on the expiration of one month from the date on which the notice has been given, or, if an application to the court by the dissenting shareholder is then pending, after that application has been disposed of, transmit a copy of the notice to the transfer or company, together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company, and pay or transfer to the transfer or company the amount or other consideration representing the price payable by the transferee company for the shares which by virtue of this section that company is entitled to acquire, and the transfer or company shall thereupon register the transferee company as the holder of those shares: Provided that, an instrument of transfer shall not be required for any share for which a share warrant is for the time being outstanding.

(4) Any sums received by the transfer or company under this section shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by that company on trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received.

(5) In this section the expression ''dissenting shareholder'' includes a shareholder who has not assented to the scheme or contract and any shareholder who has failed or refused to transfer his shares to the transferee company in accordance with the scheme or contract.

(6) In relation to an offer made by the transferee company to shareholders of the transfer or company before the appointed day, this section shall have effect -

(a) with the substitution, in subsection (1), for the words ''the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary)", of the words ''the shares affected'' and with the omission of the proviso to that subsection;

(b) with the omission of subsection (2); and

(c) with the omission, in subsection (3), of the words ''together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company'' and of the proviso to that subsection.

CHAPTER X UNFAIR PREJUDICE AND DERIVATIVE ACTIONS

233.-(I) Any member of a company may make an application to the court by petition for an order on the ground that the company's affairs are being or have been conducted in a manner which is unfairly prejudicial to the interests of its members generally or of some part of its members (including at least himself) or that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. If the court is satisfied that the petition is well founded, it may make such interim or final order as it sees fit for giving relief in respect of the matters complained of.

(2) This section shall apply to a person who is not a member of a company but to whom shares in the company have been transferred by operation of law, as those provisions apply to a member of a company; and references to a member or members are to be construed accordingly.

(3) Without prejudice to the generality of subsection (1), the court's order may:

(a) regulate the conduct of the company's affairs in the future,

(b) require the company to refrain from doing or continuing an act complained of by the petitioner or to do an act which the petitioner has complained it has omitted to do,

(c) authorize civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct,

(d) provide for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital, or otherwise.

(4) If an order under this section requires the company not to make any, or any specified, alteration in the memorandum or articles, the company does not then have power without leave of the court to make any such alteration in breach of that requirement.

(5) Where an order under this section makes any alteration in or addition to any company's memorandum or articles, then, notwithstanding anything in any other provision of this Act but subject to the provisions of the order, the company concerned shall not have power without the leave of the court to make any further alteration in or addition to the memorandum or articles inconsistent with the provisions of the order; but, subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company and the provisions of this Act shall apply to the memorandum or articles as so altered or added to accordingly.

(6) A certified copy of any order under this section altering or adding to, or giving leave to alter or add to, a company's memorandum or articles shall, within fourteen days after the making thereof, be delivered by the company to the Registrar for registration; and if a company makes default in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.

234.-(I) Subject to subsection (2), a person (the ''applicant'') may, for the purpose of prosecuting, defending or discontinuing an action on behalf of a company, apply to the court for leave to bring an action in the name and on behalf of the company or any of its subsidiaries, or intervene in an action to which any such company or any of its subsidiaries is a party.

(2) No action may be brought, and no intervention in an action may be made under subsection (1) unless the court is satisfied that -

(a) the applicant has given reasonable notice to the directors of the company or its subsidiary of his intention to apply to the court under subsection (1) if the directors of the company or its subsidiary do not bring, diligently prosecute or defend, or discontinue, the action;

(b) the applicant is acting in good faith; and

(c) it appears to be m the interests of the company or its subsidiary that the action be brought, prosecuted, defended or discontinued.

(3) The court may, in connection with an action brought or intervened in under this section, make such order as it thinks fit, including an order -

(a) authorizing the applicant, the Registrar or any other person to control the conduct of the action;

(b) giving directions for the conduct of the action;

(c) directing that any amount adjudged by a defendant in the action be paid, in whole or in part, directly to former and present shareholders or debentures holders of the company or its subsidiary, instead of to the company or its subsidiary; or

(d) requiring the company or its subsidiary to pay reasonable legal fees incurred by the applicant in connection with the action.

PART VI MISCELLANEOUS PROVISIONS RELATING TO INSOLVENCY, ETC

235.-(1) Parts VII to VIII contain provisions relating to a situation of Introducing or actual insolvency of a company, or a situation where to provision- company has not satisfied a debt or is unable to satisfy its debts,

(a) the adoption of a company voluntary arrangement (Part VII, ncy etc Chapter 1); in Part VII, Chapter 1, the person conducting the proceedings in the voluntary arrangement is referred to as a ''supervisor'';

(b) the making by the court of an administration order (Part VII, Chapter 11); in Part VII, Chapter 11, the person conducting the ''admin- proceedings in the administration is referred to as an

(c) the winding up of a company by the court (Part VIII, Chapter 11); in Part VIII, Chapter 11, the person conducting the proceedings in winding up a company is referred to as a ''liquidator'' and, where the court appoints the official receiver as liquidator, the ''official receiver and liquidator'';

(d) the voluntary winding up of a company by its members (Part VIII, Chapter 111, especially sections 339-346); in Part VIII, Chapter 111, the person conducting the proceedings in a members'voluntary winding up is referred to as a ''liquidator''-

(e) the voluntary winding up of a company by its creditors (Part VIII, Chapter 111, especially sections 347-355); in Part VIII, Chapter 111, the person conducting the proceedings in a creditors' voluntary winding up is referred to as a ''liquidator'';

(f) the appointment of a ''receiver'' or ''manager'' under the powers contained in an instrument (Part IX, especially sections 405(a) and (b) and 406-415);

(g) the appointment of an ''administrative receiver'' under the powers contained in an instrument (allowing the appointment of a receiver or manager in respect of the whole or substantially the whole of a company's property) (Part IX especially sections 405(c) and 416-423).

(2) Part X contains provisions relating to the winding up of unregistered companies.

236.-(I) Wherein a company, voluntary arrangement is proposed, the nominee must be a person who is qualified to act as an insolvency practitioner in relation to the company, where a company voluntary arrangement is approved, the supervisor must be a person who is so qualified.

(2) Where an administration order is made in relation to a company, the administrator must be a person who is so qualified.

(3) Where a company goes into liquidation, the liquidator must be a person who is so qualified.

(4) Where a provisional liquidator is appointed, he must be a person who is so qualified.

(5) Subsections (3) and (4) are without prejudice to any enactment under which the official receiver is to be, or may be, liquidator or provisional liquidator.

(6) Where an administrative receiver of a company is appointed, he must be a person who is so qualified.

237.-(l) This section applies if an appointment or nomination of administrator, liquidator or provisional liquidator or administrative receiver:

(b) has the effect that the office is to be held by more than one person.

(2) The appointment or nomination shall declare whether any act required or authorized under any enactment to be done by the administrator, liquidator or provisional liquidator, or administrative receiver, is to be done by all or any one or more of the persons for the time being holding the office in question.

238. The acts of an individual as supervisor, administrator, liquidator or provisional liquidator, or administrative receiver of a company are valid notwithstanding any defect in his appointment, nomination or qualifications.

239.-(I) This section applies in the case of a company where - Supplies of gas,

(a) a voluntary arrangement under Part VII, Chapter I has taken water, effect, or electric-

(b) an administration order is made in relation to the company, or etc

(c) the company goes into liquidation, or

(d) a provisional liquidator is appointed, or

(e) an administrative receiver is appointed, and ''the office holder'' means the supervisor of the voluntary arrangement, the administrator, the liquidator or the provisional liquidator, or the administrative receiver, as the case may be.

(2) If a request is made by or with the concurrence of the officeholder for the giving, after the effective date, of any of the supplies mentioned in the next subsection, the supplier -

(a) may make it a condition of the giving of the supply that the office-holder personally guarantees the payment of any charges in respect of the supply, but

(b) shall not make it a condition of the giving of the supply, or do anything which has the effect of making it a condition of the giving of the supply, that any outstanding charges in respect of a supply given to the company before the effective date are paid.

(3) The supplies referred to in subsection (2) are -

(a) a supply of gas by a gas supplier;

(b) a supply of electricity by an electricity supplier;

(c) a supply of water by a water supplier;

(d) a supply of telecommunications by a telecommunications supplier.

(4) ''The effective date'' for the purposes of this section is whichever is applicable of the following dates-

(a) the date on which the voluntary arrangement was approved,

(b) the date on which the administration order was made,

(c) the date on which the company went into liquidation,

(e) the date on which the administrative receiver was appointed (or, if he was appointed in succession to another administrative receiver, the date on which the first of his predecessors was appointed).

PART VII ADMINISTRATION ORDERS AND COMPANY VOLUNTARY ARRANGEMENTS

CHAPTER I COMPANY VOLUNTARY ARRANGEMENTS

The proposal

240.-(I) The directors of a company (other than one for which an administration order is in force, or which is being wound up) may make a proposal under this Chapter to the company and to its creditors for a composition in an satisfaction of its debts or a scheme of arrangement of its affairs (from here on referred to, m either case, as a ''voluntary arrangement'').

(2) A proposal under this Chapter is one which provides for some person (''the nominee'') to act in relation to the voluntary arrangement either as trustee or otherwise for the purpose of supervising its implementation; and the nominee must be a person who is qualified to act as an insolvency practitioner in relation to the company.

(3) Such a proposal may also be made -

(a) where an administration order is in force in relation to the company, by the administrator, and

(b) where the company is being wound up, by the liquidator.

241.-(l) This section applies where the nominee under section 240 is not the liquidator or administrator of the company.

(2) The nominee shall, within 28 days (or such longer period as the court may allow) after he is given notice of the proposal for a voluntary arrangement, submit a report to the court stating - or

(a) whether, m his opinion, meetings of the company and of its creditors should be summoned to consider the proposal, and administrator

(b) if in his opinion, such meetings should be summoned, the date on which, and time and place at which, he proposes the meetings should be held.

(3) For the purposes of enabling the nominee to prepare his report, the person intending to make the proposal shall submit to the nominee -

(a) a document setting out the terms of the proposed voluntary arrangement, and

(b) a statement of the company's affairs containing -

(i) such particulars of its creditors and of its debts and other liabilities and of its assets as may be prescribed, and

(ii) such other information as may be prescribed.

(4) The court may, on an application made by the person intending to make the proposal, in a case where the nominee has failed to submit the report required by this section, direct that the nominee be replaced as such by another person qualified to act as an insolvency practitioner in relation to the company.

242.-(I) Where the nominee under section 240 is not the liquidator or administrator, and it has been reported to the court that such meetings as are mentioned in section 241(2) should be summoned, the person making the report shall (unless the court otherwise directs) summon those meetings for the time, date and place proposed in the report.

(2) Where the nominee is the liquidator or administrator, he shall summon meetings of the company and of its creditors to consider the proposal for such a time, date and place as he thinks fit.

(3) The persons to be summoned to a creditors' meeting under this section are every creditor of the company of whose claim and address the person summoning the meeting is aware.

Consideration and implementation of proposal

243.-(I) The meetings summoned under section 242 shall decide whether to approve the proposed voluntary arrangement (with or without modifications).

(2) The modifications may include one conferring the functions proposed to be conferred on the nominee on another person qualified to act as an insolvency practitioner in relation to the company. But they shall not include any modification by virtue of which the proposal ceases to be a proposal such as is mentioned in section 240.

(3) Subject as follows, if the company is being wound up or an administration order is in force, the court may do one or both of the following, namely -

(a) by order stay all proceedings in the winding up or discharge the administration order;

(b) give such directions with respect to the conduct of the winding up or the administration as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement.

(4) The court shall not make an order under subsection (3)(a) -

(a) at any time before the end of the period of 28 days beginning with the first day on which each of the reports required by section 243(6) has been made to the court, or

(b) at any time when an application under the next section or an appeal in respect of such an application is pending, or at any time in the period within which such an appeal may be brought.

(3) A meeting so summoned shall not approve any proposal or modification which affects the right of a secured creditor of the company to enforce his security, except with the concurrence of the creditor concemed.

(4) Subject as follows, a meeting so summoned shall not approve any proposal or modification under which -

(a) any preferential debt of the company is to be paid otherwise than in priority to such of its debts as are not preferential debts, or

(b) a preferential creditor of the company is to be paid an amount in respect of a preferential debt that bears to that debt a smaller proportion than is borne to another preferential debt by the amount that is to be paid in respect of that other debt. However, the meeting may approve such a proposal or modification with the concurrence of the preferential creditor concerned.

(5) Subject as above, each of the meetings shall be conducted in accordance with the relevant rules.

(6) After the conclusion of either meeting in accordance with the rules, the chairman of the meeting shall report the result of the meeting to the court, and, immediately after reporting to the court, shall give notice of the result of the meeting to such persons as may be prescribed.

(7) References in this section to preferential debts and preferential creditors are to be read in accordance with section 367.

244.-(I) This section has effect where each of the meetings summoned under section 242 approves the proposed voluntary arrangement either with the same modifications or without modifications.

(2) The approved voluntary arrangement -

(a) takes effect as if made by the company at the creditors' meeting; and

(b) binds every person who in accordance with the rules had notice of, and was entitled to vote at, that meeting (whether or not he was present, or represented at the meeting) as if he were a party to the voluntary arrangement.

245.-(l) Subject to this section, an application to the court may be made, by any of the persons specified below, on one or both of the following grounds, namely -

(a) that a voluntary arrangement approved at the meetings summoned under section 242 unfairly prejudices the interests of a creditor, member or contributory of the company;

(b) that there has been some material irregularity at or in relation to either of the meetings.

(2) The persons who may apply under this section are -

(a) a person entitled, in accordance with the rules, to vote at either of the meetings;

(b) the nominee or any person who has replaced him under section 241 or 243; and

(c) if the company is being wound up or an administration order is in force, the liquidator or administrator.

(3) An application under this section shall not be made after the end of the period of 28 days beginning with the first day on which each of the reports required by section 243 has been made to the court.

(4) Where on such an application the court is satisfied as to either of the grounds mentioned in subsection (1), it may do one or both of the following, namely -

(a) revoke or suspend the approvals given by the meetings or, in a case falling within subsection (1)(b), any approval given by the meeting in question;

(b) give a direction to any person for the summoning of further meetings to consider any revised proposal the person who made the original proposal may make or, in a case falling within subsection (1)(b), a further company or (as the case may be) creditors' meeting to reconsider the original proposal.

(5) Where at any time after giving a direction under subsection (4)(b) for the summoning of meetings to consider a revised proposal the court is satisfied that the person who made the original proposal does not intend to submit a revised proposal, the court shall revoke the direction and revoke or suspend any approval given at the previous meetings.

(6) In a case where the court, on an application under this section with respect to any meeting -

(a) gives a direction under subsection (4)(b), or

(b) revokes or suspends an approval under subsection (4)(a) or (5), the court may give such supplemental directions as it thinks fit and, in particular directions with respect to things done since the meeting under any voluntary arrangement approved by the meeting.

(7) Except in pursuance of the preceding provisions of this section, an approval given at a meeting summoned under section 242 is not invalidated by any irregularity at or in relation to the meeting.

246.-1) This section applies where a voluntary arrangement approved by the meetings summoned under section 242 has taken effect.

(2) The person who is for the time being carrying out in relation to the voluntary arrangement the functions conferred - (a) by virtue of the approval on the nominee, or

(b) by virtue of section 240 or 242 on a person other than the nominee, shall be known as the supervisor of the voluntary arrangement.

(3) If any of the company's creditors or any other person is dissatisfied by the act, omission or decision of the supervisor, he may apply to the court; and on the application the court may -

(a) confirm, reverse or modify any act or decision of the supervisor,

(b) give him directions, or

(c) make such other order as it thinks fit.

(4) The supervisor -

(a) may apply to the court for directions in relation to any particular matter arising under the voluntary arrangement, and

(b) is included among the persons who may apply to the court for the winding up of the company or for an administration order to be made in relation to it.

(5) The court may, whenever -

(a) it is expedient to appoint a person to carry out the functions of the supervisor, and

(b) it is inexpedient, difficult or impracticable for an appointment to be made without the assistance of the court, make an order appointing a person who is qualified to act as an insolvency practitioner in relation to the company, either in substitution for the existing supervisor or to fill a vacancy.

(6) The power conferred by subsection (5) is exercisable so as to increase the number of persons exercising the functions of supervisor or, where there is more than one person exercising those functions, so as to replace one or more of those persons.

CHAPTER 11 ADMINISTRATION ORDERS

Making of Administration Order

247.-41) Subject to this section, if the court - Power of court to

(a) is satisfied that a company is or is likely to become unable to pay make order its debts (within the meaning given to that expression by section 280), and

(b) considers that the making of an order under this section would be likely to achieve one or more of the purposes mentioned below, the court may make an administration order in relation to the company.

(2) An administration order is an order directing that, during the period for which the order is in force, the affairs, business and property of the company shall be managed by a person (''the administrator'') appointed for the purpose by the court.

(3) The purposes for whose achievement an administration order may be made are -

(a) the survival of the company, and the whole or any part of its undertaking, as a going concern;

(b) the sanctioning under section 229 of a compromise or arrangement between the company and any such persons as are mentioned in that section; and

(c) a more advantageous realization of the company's assets than would be effected on a winding up; and the order shall specify the purpose or purposes for which it is made.

(4) An administration order shall not be made in relation to a company after it has gone into liquidation, nor where it is: -

(a) an insurer as defined in the Insurance Act 1996, or of 1996

(b) a bank.

248.-4 1) An application to the court for an administration order shall be by petition presented either by the company or the directors, or by a creditor or creditors (including any contingent or prospective creditor or creditors), or by all or any of those parties, together or separately.

(2) Where a petition is presented to the court -

(a) notice of the petition shall be given immediately to any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the company, and to such other persons as may be prescribed, and

(b) the petition shall not be withdrawn except with the leave of the court.

(3) Where the court is satisfied that there is an administrative receiver of the company, the court shall dismiss the petition unless it is also satisfied either: -

(a) that the person by whom or on whose behalf the receiver was appointed has consented to the making of the order, or

(b) that, if an administration order were made, any security by virtue of which the receiver was appointed would: -

(i) be void against the administrator to any extent by virtue of section 96 (registration of company charges),

(ii) be liable to be released or discharged under section 368 or section 369 (transactions at an undervalue and preferences),

(iii) be avoided under section 372 (avoidance of floating charges).

(4) Subject to subsection (3), on hearing a petition, the court may dismiss it, adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.

(5) Without prejudice to the generality of subsection (4), an interim order under that subsection may restrict the exercise of any powers of the directors or of the company (whether by reference to the consent of the court or of an insolvency practitioner).

(6) In this Part, ''administrative receiver'' shall have the meaning set out in section 405(c).

249.-(I) During the period beginning with the presentation of a petition for an administration order and ending with the making of such an order or the dismissal of the petition Effect

(a) no resolution may be passed or order made for the winding up of the company;

(b) no steps may be taken to enforce any security over the company's property or to repossess goods in the company's possession under any hire-purchase agreement, except with the leave of the court and subject to such terms as the court may impose; and

(c) no other proceedings and no execution or other legal process may be commenced or continued, and no distress may be levied, against the company or its property except with the leave of the court and subject to such terms as aforesaid.

(2) Nothing in subsection (1) requires the leave of the court: -

(a) for the presentation of a petition for the winding up of the company,

(b) for the appointment of an administrative receiver of the company, or

(c) for the carrying out by such a receiver (whenever appointed) of any of his functions.

(3) Where: -

(a) a petition for an administration order is presented at a time when there is an administrative receiver of the company, and

(b) the person by or on whose behalf the receiver was appointed has not consented to the making of the order, the period mentioned in subsection (1) is deemed not to begin unless and until that person so consents.

(4) References in this section and the next to hire-purchase agreements include conditional sale agreements, chattel leasing agreements and retention of title agreements.

250.-(I) On the making of an administration order administration order

(a) any petition for the winding up of the company shall be dismissed, and

(b) any administrative receiver of the company shall vacate office Where an administration order has been made, any receiver of part of the company's property shall vacate office on being required to do so by the administrator.

(3) During the period for which an administration order is in force: -

(a) no resolution may be passed or order made for the winding up of the company;

(b) no administrative receiver of the company may be appointed;

(c) no other steps may be taken to enforce any security over the company's property, or to repossess goods in the company's possession under any hire-purchase agreement, except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as the court may impose; and

(d) no other proceedings and no execution or other legal process may be commenced or continued, and no distress may be levied, against the company or its property except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as aforesaid.

(4) Where at any time an administrative receiver of the company has vacated office under subsection (1)(b), or a receiver of part of the company's property has vacated office under subsection (2):-

(a) his remuneration and any expenses properly incurred by him, and

(b) any indemnity to which he is entitled out of the assets of the company, shall be charged on and (subject to subsection (3)) paid out of any property of the company which was in his custody or under his control at that time in priority to any security held by the person by or on whose behalf he was appointed.

(5) Neither an administrative receiver who vacates office under subsection (1)(b) nor a receiver who vacates office under subsection (2) is required on or after so vacating office to take any steps for the purpose Of complying with any duty imposed on him by section 367 (duty to pay preferential creditors).

251.-(I) Every invoice, order for goods or business letter which, at a time when an administration order is in force in relation to a company, is issued by or on behalf of the company or the administrator, being a document on or in which the company's name appears, shall also contain the administrator's name and a statement that the affairs, business and property of the company are being managed by the administrator.

(2) If default is made in complying with this section, the company and any of the following persons who without reasonable excuse authorizes or permits the default, namely, the administrator and any officer of the company, is liable to a fine.

252.-(I) The administrator of a company shall be appointed either by the administration order or by an order under subsection (2).

(2) If a vacancy occurs by death, resignation or otherwise in the office of the administrator, the court may by order fill the vacancy.

(3)An application for an order under subsection (2) may be made -

(a) by any continuing administrator of the company; or

(b) where there is no such administrator, by creditors' committee established under section 264; or

(c) where there is no such administrator and no such committee, by the company or the directors or by any creditor or creditors of the company.

253.-(I) The administrator of a company may do all such things as may be necessary for the management of the affairs, business and property of the company, and in particular shall have the following powers: -

(a) to take possession of, collect and get in the property of the company and, for that purpose, to take such proceedings as may seem to him expedient;

(b) to sell or otherwise dispose of the property of the company by public auction or private contract;

(c) to raise or borrow money and grant security therefore over the property of the company;

(d) to appoint a solicitor or accountant or other professionally qualified person to assist him in the performance of his functions;

(e) to bring or defend any action or other legal proceedings in the name and on behalf of the company;

(f) to bring or defend any arbitration on any question affecting the company;

(g) to effect and maintain insurances in respect of the business and property of the company;

(h) to use the company's seal;

(i) to do all acts and to execute in the name and on behalf of the company any deed, receipt or other document;

0) to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company;

(k) to appoint any agent to do any business which he is unable to do himself or which can more conveniently be done by an agent and power to employ and dismiss employees;

(1) to do all such things (including the carrying out of works) as may be necessary for the realization of the property of the company; (in) to make any payment which is necessary or incidental to the performance of his functions;

(n) to carry on the business of the company;

(o) to establish subsidiaries of the company;

(p) to transfer to subsidiaries of the company the whole or any part of the business and property of the company;

(q) to grant or accept a surrender of a lease or tenancy of any of the property of the company, and to take a lease or tenancy of any property required or convenient for the business of the company;

(r) to make any arrangements or compromise on behalf of the company;

(s) to call up any uncalled capital of the company;

(t) to rank and claim in the bankruptcy, insolvency, sequestration or liquidation of any person indebted to the company and to receive dividends, and to accede to trust deeds for the creditors of any such person;

(u) to present or defend a petition for the winding up of the company;

(v) to change the situation of the company's registered office;

(w) to do all other things incidental to the exercise of the foregoing powers.

(2) The administrator also has power-

(a) to remove any director of the company and to appoint any person to be a director of it, whether to. fill a vacancy or otherwise, and

(b) to call any meeting of the members or creditors of the company.

(3) The administrator may apply to the court for directions in relation to any particular matter arising in connection with the carrying out of his functions.

(4) Any power conferred on the company or its officers by this Act or by the memorandum or articles of association, which could be exercised in such a way as to interfere with the exercise by the administrator of his powers is not exercisable except with the consent of the administrator, which may be given either generally or in relation to particular cases.

(5) In exercising his powers the administrator is deemed to act as the company's agent.

(6) A person dealing with the administrator in good faith and for value is not concerned to inquire whether the administrator is acting within his powers.

254.-(I) The administrator of a company may dispose of or otherwise exercise his powers in relation to any property of the company which is subject to a security to which this subsection applies as if the property were not subject to the security.

(2) Where, on an application by the administrator, the court is satisfied that the disposal (with or without other assets) of. -

(a) any property of the company subject to a security to which this subsection applies, or

(b) any goods in the possession of the company under a hire-purchase agreement, would be likely to promote the purpose or one or more of the purposes specified in the administration order, the court may by order authorize the administrator to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the company.

(3) Subsection (1) applies to any security which, as created, was a floating charge; and subsection (2) applies to any other security.

(4) Where property is disposed of under subsection (1), the holder of the security has the same priority in respect of any property of the company directly or indirectly representing the property disposed of as he would have had in respect of the property subject to the security.

(5) It shall be a condition of an order under subsection (2) that:-

(a) the net proceeds of the disposal, and

(b) where those proceeds are less than such amount as may be determined by the court to be the net amount which would be realized on a sale of the property or goods in the open market by a willing vendor, such sums as may be required to make good the deficiency, shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement.

(6) Where a condition imposed in pursuance of subsection (5) relates to two or more securities, that condition requires the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.

(7) An office copy of an order under subsection (2) shall, within 14 days after the making of the order, be sent by the administrator to the Registrar.

(8) If the administrator without reasonable excuse fails to comply with subsection (7), he is liable to a fine and, for continued contravention, to a default fine.

(9) References in this section to hire-purchase agreements include conditional sale agreements, chattel leasing agreements and retention of title agreements.

255.-41) The administrator of a company shall, on his appointment, take into his custody or under his control all the property to which the company is or appears to be entitled.

(2) The administrator shall manage the affairs, business and property of the company:-

(a) at any time before proposals have been approved (with or without modifications) under section 262, in accordance with any directions given by the court, and

(b) at any time after proposals have been so approved, in accordance with those proposals as from time to time revised, whether by him or a predecessor of his.

(3) The administrator shall summon a meeting of the company's creditors if -

(a) he is requested, in accordance with rules prescribed by the Minister in regulations (in this Part, the ''rules''), to do so by one-tenth, in value, of the company's creditors, or

(b) he is directed to do so by the court.

256.-41) The administrator of a company may at any time apply to the court for the administration order to be discharged, or to be varied so as to specify an additional purpose.

(2) The administrator shall make an application under this section if.-

(a) it appears to him that the purpose or each of the purposes specified in the order either has been-achieved or is incapable of achievement; or

(b) he is required to do so by a meeting of the company's creditors summoned for the purpose in accordance with the rules.

(3) On the hearing of an application under this section, the court may by order, discharge or vary the administration order and make such consequential provision as it thinks fit, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order it thinks fit.

(4) Where the administration order is discharged or varied the administrator shall, within 14 days after the making of the order effecting the discharge or variation, send an office copy of that order to the Registrar.

(5) If the administrator without reasonable excuse fails to comply with subsection (4), he is liable to a fine and, for continued contravention, to a default fine.

257.-1) The administrator of a company may at any time be removed from office by order of the court and may, in the circumstances prescribed in the rules, resign his office giving notice of his resignation to the court.

(2) The administrator shall vacate office if -

(a) he ceases to be qualified to act as an insolvency practitioner in relation to the company, or

(b) the administration order is discharged.

(3) Where at any time a person ceases to be administrator, the following subsections apply.

(4) His remuneration and any expenses properly incurred by him shall be charged on and paid out of any property of the company which is in his custody or under his control at that time in priority to any security to which section 254(l) then applies.

(5) Any sums payable in respect of debts or liabilities incurred, while he was administrator, under contracts entered into by him or a predecessor of his in the carrying out of his or the predecessor's functions shall be charged on and paid out of any such property as is mentioned in subsection (4) in priority to any charge arising under that subsection.

(6) Any sums payable in respect of liabilities incurred, while he was administrator, under contracts of employment adopted by him or a predecessor of his in the carrying out of his or the predecessor's functions shall, to the extent that the liabilities are qualifying liabilities, be charged on and paid out of any such property as it is mentioned in subsection (4) and enjoy the same priority as any sums to which subsection (5) applies. For this purpose, the administrator is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.

(7) For the purposes of subsection (6), a liability under a contract of employment is a qualifying liability if. -

(a) it is a liability to pay a sum by way of wages or salary or contribution to an occupational pension scheme, and

(b) it is in respect of services rendered wholly or partly after the adoption of the contract.

(8) There shall be disregarded for the purposes of subsection (6) so much of any qualifying liability as represents payment in respect of services rendered before the adoption of the contract.

258.-(I) A person who has ceased to be the administrator of a company has his release with effect from the following time: -

(a) in the case of a person who has died, the time at which notice is given to the court in accordance with the rules that he has ceased to hold office;

(b) in any other case, such time as the court may determine.

(2) Where a person has his release under this section, he is, with effect from the time specified above, discharged from all liability both in respect of acts or omissions of his in the administration and otherwise in relation to his conduct as administrator.

(3) However, nothing in this section prevents the exercise, in relation to a person who has had his release as above, of the court's powers under section 382 (summary remedy against delinquent directors, liquidators, etc).

Ascertainment and investigation of company ~ affairs

259.-(I) Where an administration order has been made, the

(a) immediately send to the company and publish in the Gazette or a news-paper widely circulating in Tanzania, a notice of the order, and

(b) within 28 days after the making of the order, unless the court otherwise directs, send such a notice to all creditors of the company (so far as he is aware of their addresses).

(2) Where an administration order has been made, the administrator shall also, within 14 days after the making of the order, send an office copy of the order to the Registrar and to such other persons as may be prescribed in the rules.

(3) If the administrator without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a default fine.

260.-41) Where an administration order has been made, the administrator shall at once require some or all of the persons mentioned below to make out and submit to him a statement in the prescribed form as to the affairs of the company.

(2) The statement shall be verified by affidavit by the persons required to submit it and shall show: -

(a) particulars of the company's assets, debts and liabilities;

(b) the names and addresses of its creditors;

(c) the securities held by them respectively;

(d) the dates when the securities were respectively given; and

(e) such further or other information as may be prescribed.

(3) The persons referred to in subsection (1) are:-

(a) those who are or have been officers of the company;

(b) those who have taken part in the company's formation at any time within one year before the date of the administration order;

(c) those who are in the company's employment or have been in its employment within that year, and are in the administrator's opinion capable of giving the information required;

(d) those who are or have been within that year officers of or in the employment of a company which is, or within that year was, an officer of the company. In this subsection ''employment'' includes employment under a contract for services.

(4) Where any persons are required under this section to submit a statement of affairs to the administrator, they shall do so (subject to subsection (5)) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the administrator.

(5) The administrator, if he thinks fit, may -

(a) at any time release a person from an obligation imposed on him under subsection (1) or (2), or

(b) either when giving notice under subsection (4) or subsequently, extend the period so mentioned; and where the administrator has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it.

(6) If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a default fine.

261.-(l) Where an administration order has been made, the administrator shall, within 3 months (or such longer period as the court may allow) after the making of the order -

(a) send to the Registrar and (so far as he is aware of their addresses) to all creditors a statement of his proposals for achieving the purpose or purposes specified in the order, and

(b) lay a copy of the statement before a meeting of the company's creditors summoned for the purpose on not less than 14 day's notice.

(2) The administrator shall also, within 3 months (or such longer period as the court may allow) after the making of the order, either: -

(a) send a copy of the statement (so far as he is aware of their addresses) to all members of the company, or

(b) publish in the prescribed manner a notice stating an address to which members of the company should write for copies of the statement to be sent to them free of charge.

(3) If the administrator without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a default fine.

262.-(I) A meeting of creditors summoned under section 261 shall approve the administrator's proposals.

(2) The meeting may approve the proposals with modifications, but shall not do so unless the administrator consents to each modification.

(3) Subject as above, the meeting shall be conducted in accordance with the rules.

(4) After the conclusion of the meeting, the administrator shall report the result of the meeting to the court and shall give notice of that result to the Registrar and to such persons as may be prescribed in the rules.

(5) If a report is given to the court under subsection (4) that the meeting has declined to approve the administrator's proposals (with or without modifications), the court may by order discharge the administration order and make such consequential provision as it thinks fit, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.

(6) Where the administration order is discharged, the administrator shall, within 14 days after the making of the order effecting the discharge, send an office copy of that order to the Registrar.

(7) If the administrator without reasonable excuse fails to comply with subsection (6), he is liable to a fine and, for continued contravention, to a default fine.

261-4 1) This section applies where -

(a) proposals have been approved (with or without modification) under section 262, and

(b) the administrator proposes to make revisions of those proposals which appear to him substantial.

(2) The administrator shall -

(a) send to all creditors of the company (so far as he is aware of their addresses) a statement in the prescribed form of his proposed revisions, and

(b) lay a copy of the statement before a meeting of the company's creditors summoned for the purpose on not less than 14 days' notice; and he shall not make the proposed revisions unless they are approved by the meeting.

(3) The administrator shall also either:-

(a) send a copy of the statement (so far as he is aware of their addresses) to all members of the company, or

(b) publish in the prescribed manner a notice stating an address to which members of the company should write for copies of the statement to be sent to them free of charge.

(4) The meeting of creditors may approve the proposed revisions with modifications, but shall not do so unless the administrator consents to each modification.

(5) Subject as above, the meeting shall be conducted in accordance with the rules.

(6) After the conclusion of the meeting, the administrator shall give notice of the result of the meeting to the Registrar and to such persons as may be prescribed in the rules.

Miscellaneous

264.-(I) Where a meeting of creditors summoned under section 261 has approved the administrator's proposals (with or without modifications), the meeting may, if it thinks fit, establish a committee (''the creditors' committee'') to exercise the functions conferred on it by or under this Act.

(2) If such a committee is established, the committee may, on giving not less than 7 days notice, require the administrator to attend before it at any reasonable time and furnish it with such information relating to the carrying out of his functions as it may reasonably require.

265. At any time when an administration order is in force, a creditor or member of the company may apply to the court by petition for an order under this section on the ground -

(a) that the company's affairs, business and property are being or have been managed by the administrator in a manner which is unfairly prejudicial to the interests of its creditors or members generally, or of some part of its creditors or members (including at least himself), or

(b) that any actual or proposed act or omission of the administrator is or would be so prejudicial.

266.-(I) On an application for an order under section 265, the court may, make such order as it thinks fit for giving relief in respect of the matters complained of, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.

(2) An order under this section shall not prejudice or prevent -

(a) the implementation of any compromise or arrangement sanctioned under section 264;

(b) where the application for the order was made more than 28 days after the approval of any proposals or revised proposals under sections 262 or 263, the implementation of those proposals or revised proposals.

(3) Subject as above, an order under this section may in particular: -

(a) regulate the future management by the administrator of the company's affairs, business and property;

(b) require the administrator to refrain from doing or continuing an act complained of by the petitioner, or to do an act which the petitioner has complained he has omitted to do;

(c) require the summoning of a meeting of creditors or members for the purpose of considering such matters as the court may direct;

(d) discharge the administration order and make such consequential provision as the court thinks fit.

(4) Nothing in section 254 is to be taken as prejudicing applications to the court under this section.

(5) Where the administration order is discharged, the administrator shall, within 14 days after the making of the order effecting the discharge, send an office copy of that order to the Registrar; and if without reasonable excuse he fails to comply with this subsection, he is liable to a fine and, for continued contravention to a default fine.

PART VIII WINDING UP

CHAPTER I PRELIMINARY

Modes of Winding Up

267.-41) The winding up of a company may be either - Modes of winding up

(a) by the court; or

(b) voluntary.

(2) The provisions of this Act with respect to winding up apply, unless the contrary appears, to the winding up of a company in any of those modes.

Contributories

268. In the event of a company being wound up, every present and Contributories past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to the provisions of section 269 and the following qualifications -

(a) a past member shall not be liable to contribute if he has ceased to be a member for one year or upwards before the commencement of the winding up;

(b) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;

(c) a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;

(d) in the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member;

(e) in the case of a company limited by guarantee, no contribution shall, subject to the provisions of section 270, be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up,

(f) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted or whereby the funds of the company are alone made liable in respect of the policy or contract;

(g) a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise shall not be deemed to be a debt of the company payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.

269. In the winding up of a limited company, any director or manager, whether past or present, whose liability is, under the provisions of this Act, unlimited, shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to make a further contribution as if he were at the commencement of the winding up a member of an unlimited company:

(a) a past director or manager shall not be liable to make such further contribution if he has ceased to hold office for a year or upwards before the commencement of the winding up;

(b) a past director or manager shall not be liable to make such further contribution in respect of any debt or liability of the company contracted after he ceased to hold office;

(c) subject to the articles of the company, a director or manager shall not be liable to make such further contribution unless the court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company and the expenses of the winding up.

270. In the winding up of a company limited by guarantee which has a share capital, every member of the company shall be liable, in addition to the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up, to contribute to the extent of any sums unpaid on any shares held by him. Contributories:

271. The term ''contributory'' means every person liable to contribute to the assets of a company in the event of its being wound up, and for the Purposes of all Proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory.

272. The liability of a contributory shall create a debt accruing due from him at the time when his liability commenced, but payable at the times when calls are made for enforcing the liability.

273.-(1) If a contributory dies either before or after he has been placed on the list of contributories, his personal representatives shall be liable in a due course of administration to contribute to the assets of the company in discharge of his liability and shall be contributories accordingly.

(2) If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory and for compelling payment there out of the money due.

274- If a contributory becomes bankrupt, either before or after he has been placed on the list of contributories -

(a) his trustee in bankruptcy shall represent him for all the Purposes of member of the winding up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and

(b) there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.

CHAPTER 11 WINDING UP BY THE COURT

Jurisdiction

275. The High Court shall have jurisdiction to wind up any company registered in Tanzania and a body corporate as mentioned in section 279(2).

276. Where the High Court makes an order for winding up a company under this Act, it may, if it thinks fit, direct all subsequent proceedings to be held in a Resident Magistrates' Court and thereupon such court shall for the purpose of winding up the company be deemed to be the court within the meaning of this Act, and shall have, for the purposes of such winding up, all the jurisdiction and powers of the High Court.

277. If during the progress of a winding up in a Resident Magistrates' Court it is made to appear to the High Court that the same could be more conveniently prosecuted in any other Resident Magistrates' Court, the High Court may transfer the same to such other court, and thereupon the winding up shall proceed in such other Resident Magistrates' Court.

278. If any question of law arises in any winding up proceedings in a Resident Magistrates' Court which all the parties to the proceeding, or which one of them and the Magistrate of the court, desire to have decided in the first instance in the High Court, the Magistrate shall state the facts and the question of law which has arisen in the form of a special case for the opinion of the High Court, and thereupon the special case and the proceedings, or such of them as may be required, shall be transmitted to the High Court for the purposes of determination.

279.-(I) A company may be wound up by the court if - Circumstances in

(a) the company has by special resolution resolved that the company be wound up by the court;

(b) the company does not commence its business within a year from its incorporation or suspends its business for a whole year;

(c) the number of members falls below two;

(d) the company is unable to pay its debts;

(e) the court is of the opinion that it is just and equitable that the company should be wound up;

(2) A body corporate may also be wound up by the court if incorporated outside Tanzania and carrying on business in Tanzania and winding up proceedings have been commenced in respect of it in the country of its incorporation or in any other country in which it has established a place of business.

280. A company shall be deemed to be unable to pay its debts -

(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding fifty thousand shillings or such other amount as may from time to time be prescribed in regulations made by the Minister, then due has served on the company, by leaving at the registered office of the company, a written demand requiring the company to pay the sum so due and the company has for twenty-one days thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or

(b) if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

(c) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due; or

(d) if it is proved to the satisfaction of the court that the value of the company's assets is less than the amount of its liabilities, taking into account the contingent and prospective liabilities of the company.

Petition for Winding Up and Effects thereof

281.-(I) An application to the court for the winding up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by an administrator, or by all or any of those parties, together or separately:

(a) a contributory shall not be entitled to present a winding-up petition unless -

(i) either the number of members is reduced below two; or

(ii) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months before the commencement of the winding up, or have devolved on him through the death of a former holder;

(b) the court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor until such security for costs has been given as the court thinks reasonable and until a prima facie case for winding up has been established to the satisfaction of the court;

(c) in a case falling within section 222(2), a winding-up petition may be presented by the Attorney-General; and

(d) a petition for the winding-up of a body corporate on the ground mentioned in section 279(2) may be presented by the official receiver as well as by any other person authorized to do so under the provisions of this subsection, but the court shall not make a winding-up order on a petition presented by the official receiver unless it is satisfied that the liquidator or provisional liquidator of the body corporate in the country where winding-up proceedings have been commenced in respect of it has in the manner prescribed required the official receiver to present the petition.

(2) Where a company is being wound up voluntarily or subject to supervision, a winding-up petition may be presented by the official receiver as well as by any other person authorized in that behalf under the other provisions of this section, but the court shall not make a winding up order on the petition unless it is satisfied that the voluntary winding up or winding up subject to supervision cannot be continued with due regard to the interests of the creditors or contributories.

282.-(I) On hearing a winding-up petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or, any other order that it thinks fit.

(2) Where the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court, if it is of opinion -

(a) that the petitioners are entitled to relief either by winding up the company or by some other means; and

(b) that in the absence of any other remedy it would be just and equitable that the company should be wound up, shall make a winding-up order, unless it is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.

283. At any time after the presentation of a winding-up petition, and before a winding up order has been made, the company, or any creditor or contributory, may -

(a) where any action or proceedings against the company is pending in the High Court or Court of Appeal apply to the court in which the action or proceedings is pending for a stay of proceedings therein; and

(b) where any other action or proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further steps in the action or proceeding, and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.

284. In a winding-up by the court, any disposition of the property of Avoidance of dispo- the company, including things in action, and any transfer of shares, or alteration in the status of the members of the company, made after the commencement of the winding-up, shall, unless the court otherwise

285. Where any company is being wound up by the court, any attachment, sequestration, distress or execution put in force against the assets of the company after the commencement of the winding up shall be void.

Commencement of Winding Up

286.-(I) Where, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the court, on proof of fraud or mistake, thinks fit otherwise to Commencement official receiver a statement as to the affairs of the company in the prescribed form, verified by affidavit, and showing the particulars of its assets and liabilities, the names, addresses and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the official receiver may require.

(2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the Secretary of the company, or by such of the persons hereinafter in this subsection mentioned as the official receiver, subject to the direction of the court, may require to submit and verify the statement, that is to say persons -

(a) who are or have been officers of the company,

(b) who have taken part in the formation of the company at any time within one year before the relevant date;

(c) who are in the employment of the company, or have been in the employment of the company within the said year, and are in the opinion of the official receiver capable of giving the information required;

(d) who are or have been within the said year officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement relates;

(e) who are at the relevant date the receivers or managers of the whole or substantially the whole of the company's property.

(3) The statement shall be submitted within twenty-one days from the relevant date or within such extended time as the official receiver or the court may for special reasons appoint.

(4) Any person making or concurring in making the statement and affidavit required by this section may be allowed, and if so allowed shall be paid by the official receiver out of the assets of the company such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the official receiver may consider reasonable, subject to an appeal to the court.

(5) If any person, without reasonable excuse, makes default in complying with the requirements of this section, he shall be liable to a default fine. direct, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.

(2) In any other case, the winding up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding-up.

Consequences of Winding Up Order

287. On the making of a winding up order, a copy of the order shall immediately be forwarded by the company, or otherwise as may be prescribed, to the Registrar for registration.

288. When a winding up order has been made or an interim liquidator has been appointed under section 295, no action or proceeding shall be proceeded with or commenced against the company except by leave of up order the court and subject to such terms as the court may impose.

289. An order for winding up a company shall operate in favour of Effect of all the creditors and of all the contributories of the company as if made winding up order on the joint petition of a creditor and of a contributory.

Official Receiver in Winding Up

290. For the purposes of this Act so far as it relates to the winding up of companies by the court, the term ''official receiver'' means the official receiver attached to the court for bankruptcy purposes.

291. If, in the case of the winding up of any company by the court it appears to the court desirable, with a view to securing the more convenient official and economical conduct of the winding up, that some officer other than receiver the person who would by virtue of section 290 be the official by court in certain should be the official receiver for the purposes of that winding up, the court may appoint that other officer to act as official receiver in that winding up, and the person so appointed shall be deemed to be the official receiver in that winding up for all the purposes of this Act.

292.-(I) Where the court has made a winding up order or appointed an interim liquidator under section 295, there shall, unless the court thinks fit to order otherwise and so orders, be made out and submitted to the

(6) Any person stating himself in writing to be a creditor or contributory of the company shall be entitled by himself or by his agent at all reasonable times, on payment of the prescribed fee, to inspect the statement submitted in pursuance of this section, and to a copy thereof or extract therefrom.

(7) Any person untruthfully so stating himself to be a creditor or contributory shall be guilty of an offence and shall on conviction be liable to a fine.

(8) In this section the expression ''the relevant date'' means, m a case where an interim liquidator is appointed, the date office appointment, and in a case where no such appointment is made, the date of the winding up order.

291-41) In a case where a winding up order is made, the official receiver shall, as soon as practicable after receipt of the statement to be submitted under section 292, or, in a case where the court orders that no statement shall be submitted, as soon as practicable after the date of the order, submit a preliminary report to the court -

(a) as to the amount of capital issued, subscribed and paid up, and the estimated amount of assets and liabilities; and

(b) if the company has failed, as to the causes of the failure; and

(c) whether in his opinion further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company or the conduct of the business thereof.

(2) The official receiver may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was formed and whether in his opinion any fraud has been committed by any person in its promotion or formation or by any officer of the company in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the court.

(3) If the official receiver states in any such further report that in his opinion a fraud has been committed as aforesaid, the court shall have the further powers provided in section 325.

294. For the purpose of conducting the proceedings in winding up a company and performing such duties in reference thereto as the court may impose, the court may appoint a liquidator or liquidators.

295.-41) The court may appoint the official receiver to be the liquidator at any time after the presentation of a winding up petition and before the making of a winding up order.

(2) Where a liquidator (in this Part referred to as an interim liquidator) is so appointed by the court, the court may limit and restrict his powers by the order appointing him.

296. The following provisions with respect to liquidators shall have effect on a winding up order being made - Appointment, style, etc. of

(a) the official receiver shall by virtue of his office become the liquidators provisional liquidator and shall continue to act as such until he or another person becomes liquidator and is capable of acting as such;

(b) the official receiver shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the court for appointing a liquidator in the place of the official receiver; Provided that, where the court has dispensed with the settlement of a list of contributories it shall not be necessary for the official receiver to summon a meeting of contributories;

(c) the court may make any appointment and order required to give effect to any such determination and, if there is a difference between the determinations of the meetings of the creditors and contributories, the court shall decide the difference and make such order thereon as the court may think fit;

(d) in a case where a liquidator is not appointed by the court, the official receiver shall be the liquidator of the company;

(e) the official receiver shall by virtue of his office be the liquidator during any vacancy;

(f) a liquidator shall be described, where a person other than the official receiver is liquidator, by the style of ''the liquidator'', and, where the official receiver is liquidator, by the style of ''the official receiver and liquidator'', of the particular company in respect of which he is appointed and not by his individual name.

297. Where, in the winding up of a company by the court a person other than the official receiver is appointed liquidator, that person -

(a) shall not be capable of acting as liquidator until he has notified than official receiver his appointment to the Registrar and given security in the prescribed manner to the satisfaction of the official receiver;

(b) shall give the official receiver such information and such access to and facilities for inspecting the books and documents of the company and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.

298.-(l) A liquidator appointed by the court may resign or, on cause shown, be removed by the court.

(2) Where a person other than the official receiver is appointed liquidator, he shall receive such salary or remuneration by way of percentage or otherwise as the court may direct, and, if more such persons than one are appointed liquidators, their remuneration shall be distributed among them in such proportions as the court directs.

(3) A vacancy in the office of a liquidator appointed by the court shall be filled by the court.

(4) If more than one liquidator is appointed by the court, the court shall declare whether any act by this Act required or authorized to be done by the liquidator is to be done by all or any one or more of the persons appointed.

(5) Subject to the provisions of section 387, the acts of a liquidator shall be valid notwithstanding any defects that may afterwards be discovered in his appointment or qualification.

299. Where a winding up order has been made or where an interim liquidator has been appointed, the liquidator or the interim liquidator, as the case may be, shall take into his custody or under his control all the property and things in action to which the company is or appears to be entitled.

300. Where a company is being wound up by the court, the court may on the application of the liquidator by order direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name, and thereupon the property to which the order relates shall vest accordingly; and the liquidator may, after giving such indemnity, if any, as the court may direct, bring or defend in his official name any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.

30 1.- (1) The liquidator in a winding up by the court shall have power with the sanction either of the court or of the committee of inspection -

(a) to bring or defend any action or other legal proceeding in the name and on behalf of the company;

(b) to carry on the business of the company so far as may be necessary for the beneficial winding up thereof,

(c) to appoint an advocate to assist him in the performance of his duties;

(d) to pay any classes of creditors in full;

(e) to make any compromise, or arrangement with creditors, or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable;

(f) to compromise all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, present or future certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and a contributory or alleged contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim and give a complete discharge in respect thereof.

(2) The liquidator in a winding up by the court shall have power without the express sanction of the court -

(a) to sell the movable and immovable property and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company or to sell the same in parcels;

(b) to do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents, and for that purpose to use, when necessary, the company's seal;

(c) to prove, rank and claim in the bankruptcy, insolvency or sequestration of any contributory for any balance against his estate, and to receive dividends in the bankruptcy, insolvency or sequestration in respect of that balance, as a separate debt due from the bankrupt or insolvent, and rateably with the other separate creditors;

(d) to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business;

(e) to raise on the security of the assets of the company any money requisite;

(f) to take out in his official name letters of administration to any deceased contributory, and to do in his official name any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conveniently done in the name of the company, and in all such cases the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself Provided that, nothing in this paragraph shall be deemed to affect the rights, duties and privileges of the Administrator-General;

(g) to appoint an agent to do any business which the liquidator is unable to do himself,

(h) to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets.

(3) The exercise by a liquidator in a winding up by the court of the powers conferred by this section shall be subject to the control of the court, and any creditor or contributory may apply to the court with respect to any exercise or proposed exercise of any of those powers.

302.-(l) Subject to the provisions of this Act, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection.

(2) The liquidator may summon general meetings of the creditors or contributories for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories, as the case may be.

(3) The liquidator may apply to the court in manner prescribed for directions in relation to any particular matter arising under the winding up.

(4) Subject to the provisions of this Act, the liquidator shall use his own discretion in the management of the estate and its distribution among the creditors.

(5) If any person is aggrieved by any act or decision of the liquidator, that person may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.

303. Every liquidator of a company which is being wound up by the court shall keep, in the manner prescribed by the Minister in regulations, proper books in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be so prescribed, and any creditor or contributory may, subject to the control of the court, personally or by his agent inspect any such books.

304.-(I) Every liquidator of a company which is being wound up by the court shall, in such manner and at such times as the official receiver shall direct, pay the money received by him to the official receiver for the credit of the Company's Liquidation Account, and the official receiver shall furnish him with a receipt for the money so paid: Provided that, if the committee of inspection satisfies the court that, for the purpose of carrying on the business of the company or of obtaining advances, or for any other reason, it is for the advantage of the creditors or contributories that the liquidator should have an account with any bank, the court shall, on the application of the committee of inspection, authorize the liquidator to make his payments into and out of such bank as the committee may select.

(2) If any such liquidator at any time retains for more than twenty one days a sum exceeding one thousand shillings, or such other amount as the court in any particular case authorities him to retain, then, unless he explains the retention to the satisfaction of the court he shall pay interest on the amount so retained in excess at the rate of five per cent per annum, and shall be liable to dis allowance of all or such part of his remuneration as the court may think just, and to be removed from his office by the court, and shall be liable to pay any expenses occasioned by reason of his default.

(3) A liquidator of a company which is being wound up by the court shall not pay any sums received by him as liquidator into his private banking account. If he does so he shall commit an offence and shall be liable to imprisonment or a fine or both.

305.-(I)Every liquidator other than the official receiver of a company which is being wound up by the court shall, at such times as may be prescribed but not less than twice in each year during his tenure of office, send to the official receiver, or as he directs, an account of his receipts and payments as liquidator.

(2)The account shall be in the prescribed form, shall be made in duplicate, and shall be verified by a statutory declaration in the prescribed form.

(3) The official receiver shall cause the account to be audited, and for the purpose of the audit, the liquidator shall furnish the official receiver with such vouchers and information as the official receiver may require, and the official receiver may at any time require the production of and inspect any books or accounts kept by the liquidator.

(4) When the account has been audited, one copy thereof shall be filed and kept by the official receiver and the other copy shall be delivered to the court for filing, and each copy shall be open to the inspection of any person on payment of the fee prescribed by the Minister in regulations.

(5) The liquidator shall cause a copy of the account when audited or a summary thereof to be sent by post to each creditor and contributory within thirty days after the completion of the audit: Provided that, the official receiver may in any case dispense with compliance with this subsection.

306.-(I) The official receiver shall take notice of the conduct of liquidators of companies which are being wound up by the court, and, if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules or otherwise with to the performance of his duties or if any complaint is made to the official receiver by any creditor or contributory in regard thereto, the official receiver shall inquire into the matter and take such action thereon as he may think expedient.

(2) The official receiver may at any time require any liquidator of a company which is being wound up by the court to answer any inquiry in relation to any winding up in which he is engaged, and may, if the official receiver thinks fit, apply to the court to examine him or any other person on oath concerning the winding up.

307.-(l) When the liquidator of a company which is being wound up by the court has realized all the property of the company, or so much thereof as can, in his opinion, be realized without needlessly protracting the liquidation, and has distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories among themselves, and made a final return, if any, to the contributories, or has resigned, or has been removed from his office, the court shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the court, shall take into consideration the report and any objection which may be urged by any creditor or contributory or person interested against the release of the liquidator, and shall either grant or withhold the release accordingly.

(2) Where the release of a liquidator is withheld, the court may, on the application of any creditor or contributory or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty.

(3) An order of the court releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4) Where the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office.

308.-41) When a winding-up order has been made by the court, it shall be the business of the separate meetings of creditors and contributories summoned for the purpose of determining whether or not an application should be made to the court for appointing a liquidator in place of the official receiver, to determine further whether or not an application is to be made to the court for the appointment of a committee of inspection to act with the liquidator and who are to be members of the committee if appointed.

(2) The court may make any appointment and order required to give effect to any such determination, and if there is a difference between the determinations of the meetings of the creditors and contributories, the court shall decide the difference and make such order thereon as the court may think fit.

309.-(l) A committee of inspection appointed in pursuance of this Act shall consist of creditors and contributories of the company or persons holding general powers of attorney from creditors or contributories in such proportions as may be agreed on by the meetings of creditors and contributories or as, in the case of difference, may be determined by the court.

(2) The committee shall meet at such times as they may from time to time appoint, and, failing such appointment, at least once a month, and the liquidator or any member of the committee may also call a meeting of the committee as and when he thinks necessary.

(3) The committee may act by a majority of their members present at a meeting but shall not act unless a majority of the committee are present.

(4) A member of the committee may resign by notice in writing signed by him and delivered to the liquidator.

(5) If a member of the committee becomes bankrupt or compounds or arranges with his creditors or is absent from five consecutive meetings of the committee without the leave of those members who together with himself represent the creditors or contributories, as the case may be, his office shall thereupon become vacant.

(6) A member of the committee may be removed by an ordinary resolution at a meeting of creditors, if he represents creditors, or of contributories, if he represents contributories, of which twenty-one days notice has been given, stating the object of the meeting.

(7) On a vacancy occurring in the committee, the liquidator shall immediately summon a meeting of creditors or of contributories, as the case may require, to fill the vacancy, and the meeting may, by resolution, reappoint the same or appoint another creditor or contributory to fill the vacancy: Provided that, if the liquidator, having regard to the position in the winding up, is of the opinion that it is unnecessary for the vacancy to be filled he may apply to the court and the court may make an order that the vacancy shall not be filled, or shall not be filled except in such circumstances as may be specified in the order.

(8) The continuing members of the committee, if not less than two, may act notwithstanding any vacancy in the committee.

310. Where in the case of a winding up there is no committee of Powers of court inspection, the court may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Act authorized or required to be done or given by the committee: Provided that, where the official receiver is the liquidator he may do any such act or thing and give any such direction or permission without application to the court.

General Powers of Court in case of Winding Up by Court

311.-(l) The court may at any time after an order for winding up, on the application either of the liquidator or the official receiver or any creditor or contributory, and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.

(2) On any application under this section the court may, before making an order, require the official receiver to furnish to the court a report with respect to any facts or matters which are in his opinion relevant to the application.

(3) A copy of every order made under this section shall immediately be forwarded by the company to the Registrar for registration.

312.-(I) As soon as may be after making a winding up order, the court shall settle a list of contributories, with power to rectify the register of members in all cases where rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities: Provided that, where it appears to the court that it will not be necessary to make calls on or adjust the rights of contributories, the court may dispense with settlement of a list of contributories.

(2) In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.

313. The court may, at any time after making a winding up order, require any contributory for the time being on the list of contributories and any trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender or transfer immediately, or within such time as the court directs, to the liquidator any money, property or books and papers in his hands to which the company is prima facie entitled.

314.-(I) The court may, at any time after making a winding up order, make an order on any contributory for the time being on the list of contributories to pay, in manner directed by the order, any money due from him or from the estate of the person whom he represents to the company, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act.

(2) The court in making such an order may -

(a) in the case of an unlimited company, allow to the contributory by way of set-off any money due to him or to the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit; and

(b) in the case of a limited company, make to any director or manager whose liability is unlimited or to his estate the like allowance.

(3) In the case of any company, whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.

315.-(l) The court may, at any time after making a winding up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being on the list of the contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding up, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.

(2) In making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

316.41) The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into a specified bank or any branch thereof to the account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator.

(2) All moneys and securities paid or delivered into a specified bank or any branch thereof in the event of a winding-up by the court shall be subject in all respects to the orders of the court.

317.-(I) An order made by the court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.

(2) All other pertinent matters stated in the order shall be taken to be truly stated as against all persons and in all proceedings whatsoever.

318.-(I) Where the official receiver becomes the liquidator of a company, whether provisionally or otherwise, he may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager of the estate or business of the company other than himself, apply to the court and the court may on such application appoint a special manager of the said estate or business to act during such time as the court may direct, with such powers, including any of the powers of a receiver or manager, as may be entrusted to him by the court.

(2) The special manager shall give such security and account in such manner as the official receiver shall direct.

(3) The special manager shall receive such remuneration as may be fixed by the court.

319. The court may fix a time or times within which creditors are to prove their debts or claims or to be excluded from the benefit of any distribution made before those debts are proved.

320. The court shall adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled thereto.

321.-(l) The court may, at any time after making a winding-up order, make such order for inspection of the books and papers of the company by creditors and contributories as the court thinks just, and any books and papers of the company may be inspected by creditors or contributories accordingly, but not further or otherwise.

(2) Nothing in this section shall be taken as excluding or restricting any statutory rights of any department of the Government or of any officer thereof or of any person acting under the authority of any such department.

322. The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the costs, charges and expenses incurred in the winding up in such order of priority as the court thinks just.

323.-(l) The court may, at any time after the appointment of an interim liquidator or the making of a winding up order, summon before it any officer of the company or person known or suspected to have in of having his possession any property of the company or supposed to be indebted property of to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade, dealing, affairs or property of the company.

(2) The court may examine him on oath either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them.

(3) The court may require him to produce any books and papers in his custody or power relating to the company, but, where he claims any lien on books or papers produced by him, the production shall be without prejudice to that lien, and the court shall have jurisdiction in the winding up to determine all questions relating to that lien.

(4) If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, not having a lawful impediment (made known to the court at the time of its sitting and allowed by it), the court may cause him to be arrested and brought before the court for examination.

324. In the winding-up by the court of a company, the court shall Attendance of officers of company at meetings creditors etc have power to require the attendance of any officer of the company at any meeting of creditors or of contributories or of a committee of inspection for the purpose of giving information as to the trade, dealings, affairs or property of the company.

325.-(I) Where an order has been made for winding up a company order by the court, and the official receiver has made a further report under public this Act stating that in his opinion a fraud has been committed by any examinaperson in the promotion or formation of the company or by any officer of the company in relation to the company since its formation, the court may, after consideration of the report direct that such person or officer shall attend before the court on a day appointed by the court for that purpose and be publicly examined as to the promotion or formation or the conduct of the business of the company or as to his conduct and dealings as an officer thereof.

(2) The official receiver shall take part in the examination, and for that purpose may, if specially authorized by the court in that behalf, employ an advocate.

(3) The liquidator, where the official receiver is not the liquidator, and any creditor or contributory may also take part in the examination either personally or by advocate.

(4) The court may put such questions to the person examined as the court thinks fit.

(5) The person examined shall be examined on oath and shall answer all such questions as the court may put or allow to be put to him.

(6) A person ordered to be examined under this section shall at his own cost, before his examination, be famished with a copy of the official receiver's report and may at his own cost employ an advocate, who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him: Provided that, if any such person applies to the court to be exculpated from any charges made or suggested against him, it shall be the duty of the official receiver to appear on the hearing of the application and call the attention of the court to any matters which appear to the official receiver to be relevant, and if the court, after hearing any evidence given or witnesses called by the official receiver, grants the application, the court may allow the applicant such costs as in its discretion it may think fit.

(7) Notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him, and shall be open to the inspection of any creditor or contributory at all reasonable times.

326. The court, at any time either before or after making a winding up order, on proof of probable cause for believing that any person or officer of the company mentioned in section 325(l) or a contributory is about to quit Tanzania or otherwise to abscond or to remove or conceal any of his property for the purpose of evading payment of calls or of avoiding examination respecting the affairs of the company, may cause him to be arrested and his books and papers and movable personal property to be seized and him and them to be safely kept until such time as the court may order.

327. Any powers by this Act conferred on the court shall be in addition to and not in restriction of any existing powers of instituting proceedings against any contributory or debtor of the company or the estate of any contributory or debtor, for the recovery of any call or other sums.

328. Provision may be made by general rules prescribed by the Minister for enabling or requiring all or any of the powers and duties conferred and imposed on the court by this Act to be exercised or performed by the liquidator as an officer of the court in respect of the following matters -

(a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories:

(b) the settling of lists of contributories and the rectifying of the register of members where required, and the collecting and applying of the assets;

(c) the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;

(d) the making of calls;

(e) the fixing of a time within which debts and claims must be proved: Provided that, the liquidator shall not, without the leave of the court, rectify the register of members, and shall not make any call without either the leave of the court or the sanction of the committee of inspection.

329.-(I) When the affairs of a company have been completely wound up, the court, if the liquidator makes an application in that behalf, shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.

(2) A copy of the order shall within fourteen days from the date thereof be delivered by the liquidator to the Registrar for registration.

(3) If the liquidator makes default in complying with the requirements of this section, he shall be liable to a default fine.

Enforcement of Orders and Appeals

330. All orders made by a court under this Part may be enforced in the same manner in which decrees of such court made in any suit pending therein may be enforced.

331. Where any order for or in the course of winding up made by one court is required to be enforced by another court, a certified copy of the order shall be produced to the proper officer of the council required to enforce the same, and the production of a certified copy shall be sufficient evidence of the order and thereupon the last-mentioned court shall take the requisite steps in the matter for enforcing the order in the same manner as if it had been made by that court.

332. Subject to such conditions and limitations as may be prescribed by general rules, an appeal shall lie Appeals

(a) to the High Court from a decision or order given or made by a Resident Magistrates Court in the exercise of any jurisdiction conferred upon it under section 276;

(b) to the Court of Appeal on a matter of law, but not on a matter of fact, from a decision or order given or made by the High Court in the exercise of the appellate jurisdiction conferred upon it by subsection (a);

(c) to the Court of Appeal from a decision or order given or made by the High Court in respect of a special case referred to it under section 278;

(d) to the Court of Appeal from any decision or order given or made by the High Court in the exercise of the jurisdiction conferred upon it by section 275, not being a decision or order of the kind referred to in the two last foregoing paragraphs.

CHAPTER III VOLUNTARY WINDING UP

Resolutions for, and Commencement of Voluntary Winding Up

333.-(I) A company may be wound up voluntarily - Circumstances in

(a) when the period, if any, fixed for the duration of the company by which company the articles expires, or the event, if any, occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily;

(b) if the company resolves by special resolution that the company be wound up voluntarily;

(c) if the company resolves by special resolution to the effect that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up.

(2) In this Act the expression ''a resolution for voluntary winding up'' means a resolution passed under any of the provisions of subsection (1).

(3) A copy of any resolution passed as referred to in subsection (1) must be forwarded to the Registrar within fourteen days of the resolution being passed.

334.-(I) When a company has passed a resolution for voluntary winding up, it shall, within fourteen days after the passing of the resolution, give notice of the resolution by advertisement in the Gazette, and also in some newspaper circulating in Tanzania.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine, and for the purposes of this subsection the liquidator of the company shall be deemed to be an officer of the company.

335. A voluntary winding up shall be deemed to commence at the time of the passing of the resolution for voluntary winding up.

winding up Consequences of Voluntary Winding Up

336. In case of a voluntary winding up, the company shall, from the commencement of the winding up, cease to carry on its business, except so far as may be required for the beneficial winding up thereof Effect provided that, the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in its articles, continue until it is dissolved.

337. Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the members of the company, made after the commencement of a voluntary winding up, shall be void.

Declaration of Solvency

338.-(I) Where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than two directors, the majority of the directors, may, at a meeting of the directors make a declaration in the prescribed form to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within such period not exceeding twelve months from the commencement of the winding up as may be specified in the declaration.

(2) A declaration made under this section shall have no effect for the

(a) it is made within the thirty days immediately preceding the date of the passing of the resolution for winding up the company and is delivered to the Registrar for registration before that date; and

(b) it embodies a statement of the company's assets and liabilities as at the latest practicable date before the making of the declaration.

(3) Any director of a company making a declaration under this section without having reasonable grounds for the opinion that the company will be able to pay its debts in full within the period specified in the declaration, shall be liable to imprisonment or to a fine or to both; and if the company is wound up in pursuance of a resolution passed within the period of thirty days after the making of the declaration, but its debts are not paid or provided for in full within the period stated in the declaration, it shall be presumed until the contrary is shown that the director did not have reasonable ground for his opinion.

(4) A winding up in the case of which a declaration has been made and delivered in accordance with this section or section 226 of the repealed Companies Ordinance, is in this Act referred to as a members' voluntary winding up'', and a winding up in the case of which a declaration of solvency has not been made and delivered is in this Act referred to as ''a creditors' voluntary winding up''

(5) Subsections (1) to (3) of this section shall not apply to a winding up commencing before the appointed day. Provisions Applicable to a Members' Voluntary Winding Up

339. The provisions contained in sections 340 to 345 (inclusive) shall, subject to the provisions of section 346, apply in relation to a members' voluntary winding up.

340.-(l) The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company, and may fix the remuneration to be paid to him or them.

(2) On the appointment of a liquidator all the powers of the directors shall cease, except so far as the company in general meeting or the liquidator sanctions the continuance thereof.

341.-(I) If a vacancy occurs by death, resignation or otherwise in the office of liquidator appointed by the company, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.

(2) For that purpose a general meeting may be convened by any contributory or, if there were more liquidators than one, by any continuing liquidator.

(3) The meeting shall be held in the manner provided by this Act or by the articles, or in such manner as may, on application by any contributory or, by the continuing liquidators, be determined by the court.

342.-(I) Where a company is proposed to be, or is in course of being, wound up voluntarily, and the whole or part of its business or property is proposed to be transferred or sold to another company, whether a company within the meaning of this Act or not (in this section called ''the transferee company''), the liquidator of the first-mentioned company (in this section called ''the transfer or company'') may with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive, in compensation or part compensation for the transfer or sale, shares, policies or other like interests in the transferee company for distribution among the members of the transfer or company, or may enter into any other arrangement whereby the members of the transfer or company may, in lieu of receiving cash, shares, policies or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the transferee company.

(2) Any sale or arrangement in pursuance of this section shall be binding on the members of the transfer or company.

(3) If any member of the transfer or company who did not vote in favour of the special resolution expresses his dissent therefrom in writing addressed to the liquidator, and left at the registered office of the company within seven days after the passing of the resolution he may require the liquidator either to abstain from carrying the resolution into effect or to purchase his interest at a price to be determined by agreement or by arbitration in accordance with the law relating to arbitration for the time being in force in Tanzania.

(4) If the liquidator elects to purchase the member's interest, the purchase money must be paid before the company is dissolved and be raised by the liquidator in such manner as may be determined by special resolution.

(5) A special resolution shall not be invalid for the purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators, but, if an order is made within a year for winding up the company by the court, the special resolution shall not be valid unless sanctioned by the court.

343.-(l) If, in the case of a winding up commenced after the appointed day, the liquidator is at any time of opinion that the company will not be able to pay its debts in full within the period stated in the declaration under section 338, he shall immediately notify the Registrar accordingly and summon a meeting of the creditors, and shall lay before the meeting a statement of the assets and liabilities of the company

(2) Notice of the creditors' meeting referred to in subsection (1) shall be given at least seven days before the meeting is to be held specifying the time, place and object thereof, and such notice shall be advertised in the Gazette and in a newspaper circulating in Tanzania.

(3) If the liquidator fails to comply with this section, he shall be liable to a fine

344.-(l) Subject to the provisions of section 346, in the event of the winding up continuing for more than one year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within three months from the end of the year or such longer period as the Registrar may allow, and shall lay before the meeting an account of his acts and dealings and of the conduct of the winding up during the preceding year.

(2) If the liquidator fails to comply with this section, he shall be liable to a fine.

345.-(l) Subject to the provisions of section 346, as soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving any explanation thereof.

(2) The meeting shall be called by advertisement in the Gazette, and in a newspaper circulating in Tanzania, specifying the time, place and object thereof, and published thirty days at least before the meeting.

(3) Within fourteen days after the meeting, the liquidator shall deliver to the Registrar a copy of the account, and shall make a return to him of the holding of the meeting and of its date, and if the copy is not delivered or the return is not made in accordance with this subsection the liquidator shall be liable to a default fine: Provided that, if a quorum is not present at the meeting, the liquidator shall, in lieu of the return mentioned above make a return that the meeting was duly summoned and that no quorum was present thereat, and upon such a return being made the provisions of this subsection as to the making of the return shall be deemed to have been complied with.

(4) The Registrar on receiving the account and either of the returns mentioned above shall immediately register them, and on the expiration of three months from the registration of the return the company shall be deemed to be dissolved: Provided that, the Court may, on the application of the liquidator or of any other person who appears to the Court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.

(5) It shall be the duty of the person on whose application an order of the court under this section is made, within seven days after the making of the order, to deliver to the Registrar a certified copy of the order for registration, and if that person fails so to do he shall be liable to a default fine.

(6) If the liquidator fails to call a general meeting of the company as required by this section, he shall be liable to a fine.

346. Where section 343 has effect, sections 354 and 355 shall apply to the winding up to the exclusion of sections 344 and 345 as if the winding up were a creditor's voluntary winding up and not a member's voluntary winding up: Provided that, the liquidator shall not be required to summon a meeting of creditors under section 354 at the end of the first year from the commencement of the winding up, unless the meeting held under section 343 is held more than three months before the end of that year.

Provisions Applicable to a Creditors' Voluntary Winding Up

347. The provisions contained in sections 348 to 355 (inclusive) shall apply in relation to a creditors' voluntary winding up.

348.-(I) The company shall cause a meeting of the creditors of the company to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the resolution for voluntary winding up is to be proposed, and shall cause the notices of the said meeting of creditors to be sent by post to the creditors simultaneously with the sending of the notices of the said meeting of the company.

(2) The company shall cause notice of the meeting of the creditors to be advertised once in the Gazette and once at least in a newspaper circulating in Tanzania.

(3) The directors of the company shall -

(a) cause a full statement of the position of the company's affairs together with a list of the creditors of the company and the estimated amount of their claims to be laid before the meeting of the creditors; and

(b) appoint one of their number to preside at the said meeting.

(4) It shall be the duty of the director appointed to preside at the meeting of the creditors to attend the meeting and preside thereat.

(5) If the meeting of the company at which the resolution for voluntary winding up is to be proposed is adjourned and the resolution is passed at an adjourned meeting, any resolution passed at the meeting of the creditors held in pursuance of subsection (1) shall have effect as if it had been passed immediately after the passing of the resolution for winding up the company.

(6) If default is made -

(a) by the company in complying with subsections (1) and (2);

(b) by the directors of the company in complying with subsection

(3);

(c) by any director of the company in complying with subsection (4), the company, directors or director, as the case may be, shall be liable to a fine, and, in the case of default by the company, every officer of the company who is in default shall be liable to a fine.

349.-(I) The creditors and the company at their respective meetings mentioned in section 347 may nominate a person to be liquidator for the of liquidator and purpose of winding up the affairs and distributing the assets of the of directors' powers company, and if the creditors and the company nominate different persons, the person nominated by the creditors shall be the liquidator, and if no person is nominated by the creditors the person, if any, nominated by the company shall be liquidator: Provided that, in the case of different persons being nominated, any director, member or creditor of the company may, within seven days after the date on which the nomination was made by the creditors, apply to the court for an order either directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors or appointing some other person to be liquidator instead of the person appointed by the creditors.

(2) On the appointment of a liquidator, all the powers of the directors shall cease, except so far as the committee of inspection, or if there is no such committee, the creditors, sanction the continuance thereof.

350.-(l) The creditors at the meeting to be held in pursuance of Appointment of section 348 or at any subsequent meeting may, if they think fit, appoint not more than five persons to be members of a committee of inspection, and if such a committee is appointed, the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time subsequently in general meeting, appoint such number of persons as they think fit to act as members of the committee so, however, that the majority of the members of the committee shall be persons appointed by the creditors: Provided that, the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection, and, if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court otherwise directs, be qualified to act as members of the committee, and on any application to the court under this provision, the Court may, if it thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution.

(2) Subject to the provisions of this section and to any general rules made in this behalf, the provisions of section 308 (except subsection (1) thereof) shall apply with respect to a committee of inspection appointed under this section as they apply with respect to a committee of inspection appointed in a winding up by the court.

351. The committee of inspection, or if there is no such committee, the creditors, may fix the remuneration to be paid to the liquidator or liquidators.

352. If a vacancy occurs, by death, resignation or otherwise, in the fill vacancy in office of office of a liquidator, other than a liquidator appointed by, or by the liquidator direction of, the court, the creditors may fill the vacancy.

353. The provisions of section 342 shall apply in the case of a creditors' voluntary winding up as in the case of a members' voluntary winding up, with the modification that the powers of the liquidator under the said section shall not be exercised except with the sanction either of the court or of the committee of inspection in substitution for the sanction of a special resolution.

354.-(I) In the event of the winding up continuing for more than one year, the liquidator shall summon a general meeting of the company and a meeting of the creditors at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within three months from the end of the year or such longer period as the Registrar may allow, and shall lay before the meetings an account of his acts and dealings of the conduct of the winding up during the preceding year.

(2) If the liquidator fails to comply with this section he shall be liable to a fine.

355.-(l) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company and a meeting of the creditors for the purpose of laying the account before the meetings and giving any explanation thereof.

(2) Each such meeting shall be called by advertisement in the Gazette and in a newspaper circulating in Tanzania, specifying the time, place and object thereof, and published thirty days at least before the meeting.

(3) Within fourteen days after the date of the meetings, or, if the meetings are not held on the same date, after the date of the later meeting, the liquidator shall deliver to the Registrar a copy of the account, and shall make a return to him of the holding of the meetings and of their dates, and if the copy is not delivered or the return is not made in accordance with this subsection the liquidator shall be liable to a default fine: Provided that, if a quorum is not present at either such meeting, the liquidator shall, in lieu of the return mentioned above, make a return that the meeting was duly summoned and that no quorum was present thereat and upon such a return being made, the provisions of this subsection as to the making of the return shall, in respect of that meeting, be deemed to have been complied with.

(4) The Registrar on receiving the account and, in respect of each such meeting, either of the returns mentioned above, shall immediately register them, and on the expiration of three months from the registration thereof the company shall be deemed to be dissolved: Provided that, the court may, on the application of the liquidator or any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.

(5) It shall be the duty of the person on whose application an order of the court under this section is made, within seven days after the making of the order, to deliver to the Registrar a certified copy of the order for registration, and if that person fails so to do he shall be liable to a default fine.

(6) If the liquidator fails to call a general meeting of the company or a meeting of the creditors as required by this section he shall be liable to a fine.

Provisions Applicable to Every Voluntary Winding Up

356. The provisions contained in sections 357 to 394 (inclusive) shall apply to every voluntary winding up whether a members' or a creditors'

357. Subject to the provisions of this Act as to preferential payments, the assets of a company shall, on its voluntary winding up, be applied in satisfaction of its liabilities pari passu, and, subject to such application, shall, unless the articles otherwise provide, be distributed among the members according to their rights and interests in the company.

358.-(I) The liquidator may- Powers and duties of

(a) in the case of a members' voluntary winding up, with the sanction liquidator in voluntary- of a special resolution of the company, and, in the case of a creditors' voluntary winding up, with the sanction of the court or the committee of inspection or (if there is no such committee) a meeting of the creditors, exercise any of the powers given by paragraphs (d), (e) and (f) of subsection (1) of section 301 to a liquidator in a winding up by the court;

(b) without sanction, exercise any of the other powers by this Act given to the liquidator in a winding up by the court;

(c) exercise the power of the court under this Act of settling a list of contributories, and the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories;

(d) exercise the power of the court of making calls;

(e) summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution or for any other purpose he may think fit.

(2) The liquidator shall pay the debts of the company and shall adjust the rights of the contributories among themselves.

(3) When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as may be determined at the time of their appointment, or, in default of such determination, by any number not less than two.

(4) Where the liquidator in exercise of the powers conferred on him by this Act disposes of any property of the company to a person who is connected with the company, he shall give notice thereof to the committee of inspection (if one is in existence). For the purposes of this subsection, a person who is connected with the company shall mean a director of the company and any connected person in relation to such director as defined in section 200(4).

359.-(I) If from any cause whatever there is no liquidator acting, the court may appoint a liquidator.

(2) The court may, on cause shown, remove a liquidator and appoint another liquidator.

360.--(I) The liquidator shall, within fourteen days after his Notice by liquidator of his appointment appointment, publish in the Gazette and deliver to the Registrar for registration a notice of his appointment in the form prescribed.

(2) If the liquidator fails to comply with the requirements of this section, he shall be liable to a default fine.

361.-(l) Any arrangement entered into between a company about to Arrangement when be, or in the course of being wound up, and its creditors shall, subject to bindingon the right of appeal under this section, be binding on the company if creditors sanctioned by a special resolution and on the creditors if acceded to by three-fourths in number and value of the creditors.

(2) Any creditor or contributory may, within three weeks from passing of the special resolution or approval by the creditors, as the case may be, in accordance with subsection (1), appeal to the court against it, and the court may thereupon, as it thinks just, amend, vary or confirm the arrangement.

362.-(l) The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a or to exercise, as respects the enforcing of calls or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.

(2) The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it sees fit, or make such other order on the application as it thinks just.

(3) A copy of an order made by virtue of this section staying the proceedings in the winding up shall immediately be delivered by the company, or otherwise as may be prescribed, to the Registrar for registration.

363. All costs, charges and expenses properly incurred in the winding up, including the remuneration of the liquidator, shall be payable out of the assets of the company in priority to all other claims.

364. The voluntary winding up of a company shall not bar the right of Savings for any creditor or contributory to have it wound up by the court, but in the case of an application by a contributory the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up.

CHAPTER IV PROVISioNs APPLICABLE To EVERY MODE OF WINDING UP

Proof and Ranking of Claims

365. In. every winding up (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act of the law of bankruptcy) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as maybe subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.

366. In the winding up of an insolvent company, the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt, and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.

367.-(I) In a winding up, the company's preferential debts shall be paid in priority to all other debts.

(2) The following shall be considered preferential debts:

(a) all Government taxes, local rates and customs and excise duties due from the company at the relevant date and having become due and payable within twelve months next before that date;

(b) all Government rents not more than one year in arrears;

(c) all wages or salary (whether or not earned wholly or in part by way of commission) of any employee not being a director in respect of services rendered to the company during four months next before the relevant date;

(d) unless the company is being wound up voluntarily merely for the purposes of reconstruction or amalgamation with another company, or unless the company has, at the commencement of the winding

Effect of Winding Up on Antecedent and Other Transactions

368.-(l) This section applies in the case of a company where an administration order is made in relation to the company, or the company goes into liquidation.

(2) Where the company has at a relevant time (defined in section 370) entered into a transaction with any person at an undervalue, the administrator or the liquidator, as the case may be, may apply to the court, which may make such order as it thinks fit for restoring the position to what it would have been if the company had not entered into that transaction.

(3) A company enters into a transaction with a person at an undervalue if-

(a) the company makes a gift to that person or otherwise enters into a transaction with that person on terms that provide for the company to receive no consideration, or

(b) the company enters into a transaction with that person for a consideration the value of which is significantly less than the value of the consideration provided by the company.

(4) The court shall not make an order under this section in respect of a transaction at an undervalue if it is satisfied -

(a) that the company which entered into the transaction did so in good faith and for the purpose of carrying on its business, and

(b) that at the time it did so there were reasonable grounds for believing that the transaction would benefit the company.

369.-(I) This section applies as does section 368. Preferences

(2) Where the company has at a relevant time (defined in section 370) given a preference to any person, the administrator or the liquidator, as the case may be, may apply to the court, which may make such order as it thinks fit for restoring the position to what it would have been if the company had not given that preference.

(3) A company gives a preference to a person if -

(a) that person is one of the company's creditors or a surety or guarantor for any of the company's debts or other liabilities, and up, under any contract, rights capable of being transferred to and vested in the employee, all amounts due in respect of any compensation or liability for compensation under any law for the time being in force in Tanzania relating to compensation of employees, being amounts which have accrued before the relevant date.

(3) Notwithstanding anything in subsection (2)(c), the sum to which priority is to be given under that subsection shall not, in the case of any one claimant, exceed such amount as may be from time to time specified in regulations made by the Minister: Provided that, where a claimant under subsection (2)(c) is an employee who has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the year of hiring, he shall have priority in respect of the whole of such sum, or a part thereof, as the court may decide to be due under the contract, proportionate to the time of service up to the relevant date.

(4) Where any compensation under any law for the time being in force in Tanzania relating to compensation of employees is a weekly payment, the amount due in respect thereof shall, for the purposes of subsection (2)(d) be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under such law.

(5) Where any payment has been made to any employee, not being a director, on account of wages or salary out of money advanced by some person for that purpose, the person by whom the money was advanced shall in a winding up have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which the employee would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.

(6) Preferential debts shall -

(a) rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions; and

(b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures under any floating charge created by the company, and be paid accordingly out of any property comprised in or subject to that charge.

(7) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the preferential debts shall be discharged immediately so far as the assets are sufficient to meet them.

(8) Where any person (whether or not a landlord or person entitled to rent) has distrained upon the goods or effects of the company in the period of 3 months ending with the date of the winding-up order, those goods or effects, or the proceeds of their sale, shall be charged for the benefit of the company with the preferential debts of the company to the extent that the company's property is for the time being insufficient for meeting them.

(9) Where by virtue of a charge under subsection (8), any person surrenders any goods or effects to a company or makes a payment to a company, that person ranks in respect of the amount of the proceeds of sale of those goods or effects by the liquidator or (as the case may be) the amount of the payment, as a preferential creditor of the company, except as against so much of the company's property as is available for the payment of preferential creditors by virtue of the surrender or payment.

(I 0) For the purposes of this section -

(a) any remuneration in respect of a period of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period;

(b) the expression ''the relevant date'' means -

(i) in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of an interim liquidator, or, if no such appointment was made, the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date; and

(ii) in any case where sub-paragraph (i) does not apply, means the date of the passing of the resolution for the winding up of the company.

(I 1) This section shall not apply in the case of a winding up where the relevant date as defined in subsection (6) of section 259 of the repealed Companies Ordinance occurred before the appointed day, and in such a case the provisions relating to preferential payments which would have applied if this Act had not been passed shall be deemed to remain in full force.

(b) the company does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the company going into insolvent liquidation, would be better than the position he would have been in if that thing had not been done.

(4) The court shall not make an order under this section in respect of a preference given to any person unless the company which gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (3)(b).

(5) A company which has given a preference to a person connected with the company at the time the preference was given is presumed, unless the contrary is shown to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4). For the purposes of this section and section 370, a person is connected with the company if he is a director or a person connected to a director as defined by section 200(4), and a director shall be deemed to include a person in accordance with whose directions or instructions the directors of a company are accustomed to act.

(6) The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of a preference.

370.-(I) Subject to subsection (2), the time at which a company enters into a transaction at an undervalue or gives a preference is a relevant time if the transaction is entered into, or the preference given -

(a) in the case of a transaction at an undervalue or of a preference 369 which is given to a person who is connected with the company, at a time in the period of 2 years ending with the onset of insolvency (which expression is defined below);

(b) in the case of a preference which is not such a transaction and is not so given, at a time in the period of 6 months ending with the onset of insolvency; and

(c) in either case, at a time between the presentation of a petition for the making of an administration order in relation to the company and the making of such an order on that petition.

(2) Where a company enters into a transaction at an undervalue or gives a preference at a time mentioned in subsection (1)(a) or (1)(b), that time is not a relevant time for the purposes of sections 368 or 369 unless the company -

(a) is at that time unable to pay its debts within the meaning of section 280; or

(b) becomes unable to pay its debts within the meaning of that section in consequence of the transaction or preference; but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a company with a person who is connected with the company.

(3) For the purposes of subsection (1), the onset of insolvency is -

(a) in a case where section 368 or section 369 applies by reason of the making of an administration order, or of a company going into liquidation immediately upon the discharge of an administration order, the date of the presentation of the petition on which the administration order was made; and

(b) in a case where the section applies by reason of a company going into liquidation at any other time, the date of the commencement of the winding up.

371.-(l) Without prejudice to the generality of sections 368(2) and 369(2), an order under either of those sections with respect to a transaction or preference entered into or given by a company may (subject to the next subsection) -

(a) require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the company;

(b) require any property to be so vested if it represents in any person's hands the application either of the proceeds of sale of property so transferred or of money so transferred;

(c) release or discharge (in whole or in part) any security given by the company;

(d) require any person to pay, in respect of benefits received by him from the company, such sums to the office-holder as the court may direct;

(e) provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction, or by the giving of the preference, to be under such new or revived obligations to that person as the court thinks appropriate;

(f) provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the preference; and

(g) provide for the extent to which any person whose property is vested by the order in the company, or on whom obligations are imposed by the order, is to be able to prove m the winding up of the company for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the preference.

(2) An order made by a court pursuant to sections 373 or 374 may affect the property of, or impose an obligation on, any person whether or not he is the person with whom the company in question entered into the transaction or (as the case may be) the person to whom the preference was given; but such an order -

(a) shall not prejudice any interest in property which was acquired from a person other than the company and was acquired in good faith and for value, or prejudice any interest deriving from such an interest; and

(b) shall not require a person who received a benefit from the transaction or preference in good faith and for value to pay a sum to the administrator or the liquidator, as the case may be, except where that person was a party to the transaction or the payment is to be in respect of a preference given to that person at a time when he was a creditor of the company.

372. Where a company is being wound up, a floating charge on the undertaking or property of the company created within twelve months of the commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except to the amount of any cash paid, or the value of any goods and services supplied to the company, or the value of any discharge of any debt of the company, at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate of five per cent per annum or such other rate as may for the time being be prescribed in regulations by the Minister: Provided that, in relation to a charge created more than six months before the appointed day, this section shall have effect with the substitution, for the words ''twelve months'', of the words ''six months''

373.-(I) Where any part of the property of a company which is being wound up consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily sale able, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has endeavored to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the court and subject to the provisions of this section, by writing signed by him, at any time within twelve months after the commencement of the winding up or such extended period as may be allowed by the court, disclaim the property: Provided that, where any such property has not come to the knowledge of the liquidator within one month after the commencement of the winding up, the power under this section of disclaiming the property may be exercised at any time within twelve months after he has become aware thereof or such extended period as may be allowed by the court.

(2) The disclaimer shall operate to determine as from the date of disclaimer, the rights, interest and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person.

(3) The court, before or on granting leave to disclaim, may require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such other order in the manner as the court thinks just.

(4) The liquidator shall not be entitled to disclaim any property under this section in any case where an application in writing has been made to him by any persons interested in the property requiring him to decide whether he will or will not disclaim and the liquidator has not, within a period of twenty-eight days after the receipt of the application or such further period as may be allowed by the court, given notice to the applicant that he intends to apply to the court for leave to disclaim, and, in the case of a contract, if the liquidator, after such an application, does not within the said period or further period disclaim the contract, the company shall be deemed to have adopted it.

(5) The court may on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the nonperformance of the contract or otherwise as the court thinks just, and any damages payable under the order to any such person may be proved by him as a debt in the winding up.

(6) The court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Act in respect of any disclaimed property and on hearing any such persons as it thinks fit, make an order for the vesting of the property in or the delivery of the property to any persons entitled thereto, or to whom it may seem just that the property should be delivered by way of compensation for such liability, or a trustee for him, and on such terms as the court thinks just, and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose: Provided that, where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the company as under lessee or mortgagee except upon the terms of making that person -

(a) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding up; or

(b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date, And in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the court shall have power to vest the estate and interest of the company in the property in any person liable either personally or in a representative character, and either alone or jointly with the company, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company.

(7) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of injury, and may accordingly prove the amount as a debt in the winding

374.-(I) Where a creditor has issued execution against the movable or immovable property of a company or has attached any debt due to the company, and the company is subsequently wound up, he shall not be entitled to retain the benefit of the execution or attachment against the liquidator in the winding up of the company unless he has completed the execution or attachment before the commencement of the winding up:

(a) where any creditor has had notice of a meeting having been called at which a resolution for voluntary winding up is to be proposed, the date on which the creditor so had notice shall, for the purposes of the foregoing provision, be substituted for the date of the commencement of the winding up;

(b) a person who purchases in good faith under a sale by a bailiff on an order of the court any movable property of a company on which an execution has been levied shall in all cases acquire a good title thereto against the liquidator; and

(c) the rights conferred by this subsection on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit.

(2) For the purpose of this section, an execution against movable property shall be taken to be completed by seizure and sale, and an attachment of a debt shall be deemed to be completed by receipt of the debt, and an execution against immovable property shall be deemed to be completed by seizure and, in the case of an equitable interest, by the appointment of a receiver.

(3) In this section and in section 375 the expression ''movable property'' includes all chattels personal, and the expression ''bailiff' includes any officer charged with the execution of a writ or other process.

375.-(I) Subject to the provisions of subsection (3), where any movable property of a company is taken in execution, and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that an interim liquidator has been appointed or that a winding up order has been made or that a resolution for voluntary winding up has been passed, the bailiff shall, on being so required, deliver the movable property including any money seized or received in part satisfaction of the execution to the liquidator; but the costs of the execution shall be a first charge on the goods or money so delivered, and the liquidator may sell the goods, or a sufficient part thereof, for the purpose of satisfying that charge.

(2) Subject to the provisions of subsection (3), where under an execution in respect of a decree for a sum exceeding [four hundred shillings] the movable property of a company is sold or money is paid in order to avoid sale, the bailiff shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for fourteen days, and if within that time notice is served on him of a petition for the winding up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company and an order is made or a resolution is passed, as the case may be, for the winding up of the company, the bailiff shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor.

(3) The rights conferred by this section on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court thinks fit.

Offences Antecedent to or in course of Winding Up

376.-(I) When a company is ordered to be wound up by the court, or passes a resolution for voluntary winding up, any person, being a past or present officer of the company is deemed to have committed an offence, if, within the 12 months immediately preceding the commencement of the winding up, he has -

(a) concealed any part of the company's property or concealed any debt due to or from the company; or

(b) fraudulently removed any part of the company's property to the value of or more; or

(c) concealed, destroyed, mutilated or falsified any book or paper affecting or relating to the company's property or affairs; or

(d) made any false entry in any book or paper affecting or relating to the company's property or affairs; or

(e) fraudulently parted with, altered or made any omission in any document affecting or relating to the company's property or affairs; or

(f) pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for (unless the pawning, pledging or disposal was in the ordinary way of the company's business).

(2) Such a person is deemed to have committed an offence if within the period above mentioned he has been privy to the doing by others of any of the things mentioned in paragraph (c), (d) and (e) of subsection (1); and he commits an offence if, at any time after the commencement of the winding up, he does any of the things mentioned in paragraphs (a) to (f) of that subsection, or is privy to the doing by others of any of the things mentioned in paragraph (c) to (e) of it.

(3) It is a defence -

(a) for a person charged under paragraph (a) or (f) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to defraud; and

(b) for a person charged under paragraph (c) or (d) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to conceal the state of affairs of the company or to defeat the law.

(4) Where a person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1)(f), every person who takes in pawn or pledge, or otherwise receives, the property knowing it to be pawned, pledged or disposed of in such circumstances, is guilty of an offence.

(5) A person guilty of an offence under this section is liable to imprisonment or to a fine, or both.

377.-(I) When a company is ordered to be wound up by the court or passes a resolution for voluntary winding up, a person is deemed to have committed an offence if he, being at the time an officer of the company -

(a) has by false pretences or by means of any other fraud induced any person to give credit to the company; or

(b) has made or caused to be made any gift or transfer of, or charge on, or has caused or connived at the levying of any execution against, the company's property; or

(c) has concealed or removed any part of the company's property since, or within 2 months before, the date of any unsatisfied judgment or order for the payment of money obtained against the company.

(2) A person is not guilty of an offence under this section -

(a) by reason of conduct constituting an offence under subsection (1)(b) which occurred more than 5 years before the commencement of the winding up; or

(b) if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud the company's creditors.

(3) A person guilty of an offence under this section is liable to imprisonment or a fine, or both.

378.-(I) When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company,

(a) does not to the best of his knowledge and belief fully and truly discover to the liquidator all the company's property, and how and to whom and for what consideration and when the company disposed of any part of that property (except such part as has been disposed of in the ordinary way of the company's business); or

(b) does not deliver up to the liquidator (or as he directs) all such part of the company's property as is in his custody or under his control, and which he is required by law to deliver up; or

(c) does not deliver up to the liquidator (or as he directs) all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up; or

(d) knowing or believing that a false debt has been proved by any person in the winding up, fails to inform the liquidator as soon as practicable; or

(e) after the commencement of the winding up, prevents the production of any book or paper affecting or relating to the company's property or affairs.

(2) Such a person commits an offence if after the commencement of the winding up he attempts to account for any part of the company's property by fictitious losses or expenses; and he is deemed to have committed that offence if he has so attempted at any meeting of the company's creditors within the 12 months immediately preceding the commencement of the winding up .(3) It is a defence for a person charged under paragraphs (a), (b) or (c) of subsection (1) to prove that he had no intent to defraud, and for a person charged under paragraph (e) of subsection (1) to prove that he had no intent to conceal the state of affairs of the company or to defeat the law.

(4) A person guilty of an offence under this section is liable to imprisonment or a fine, or both.

379. If any contributory of any company being wound up destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence and be liable to imprisonment.

380.-(I) If any person being a past or present officer of a company which is being wound up under the provisions of this Act, on being required by the official receiver at any time or in the course of his examination by the court under the provisions of section 325 to account for the loss of any substantial part of the company's property incurred within a period of one year next preceding the commencement of the winding up, fails to give a satisfactory explanation of the manner in which such loss occurred, he shall be guilty of an offence and be liable on conviction to imprisonment.

(2) A prosecution shall not be instituted against any person under this section except by or with the consent of the Attorney-General.

381.-(I) If in the course of the winding up of a company it is shown that proper books of account were not kept by the company at any time during the period of two years immediately preceding the commencement of the winding up, or the period between the incorporation of the company and the commencement of the winding up, whichever is the shorter, every officer of the company who is in default shall, unless he shows that he acted honestly and that in the circumstances in which the business of the company was carried on the default was excusable, be liable on conviction to imprisonment or to a fine or to both.

(2) For the purpose of this section, a company shall be deemed not to have kept proper books of account, if it has not kept such books or accounts as are required to be kept by section 151. Penalisation of Directors and Officers

382.-(I) This section applies if in the course of a winding up of a company it appears that a person who Remedy

(a) is or has been an officer of the company, liquidators etc.

(b) has acted as liquidator, administrator or administrative receiver of the company, or

(c) not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company, has misapplied or retained, or become accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company.

(2) The reference in subsection (1) to any misfeasance or breach of any fiduciary or other duty in relation to the company includes, in the case of a person who as acted as liquidator or administrator of the company, any misfeasance or breach of any fiduciary or other duty in connection with the carrying out of his functions as liquidator or administrator of the company.

(3) The court may, on the application of the official receiver or the liquidator, or of any creditor or contributory, examine into the conduct of the person falling within subsection (1) and compel him-

(a) to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks just, or

(b) to contribute such sum to the company's assets by way of compensation in respect of the misfeasance or breach of any fiduciary or other duty as the court thinks just.

(4) The power to make an application under subsection (3) in relation to a person who has acted as liquidator or administrator of the company is not exercisable, except with the leave of the court, after that person has had his release.

(5) The power of a contributory to make an application under (3) is not exercisable except with the leave of the court, but is exercisable notwithstanding that he will not benefit from any order the court may make on the application.

383.-(I) If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the following has effect.

(2) The court, on the application of the liquidator may declare that any persons who were knowingly parties to the carrying on of the business in the manner above-mentioned are to be liable to make such contributions to the company's assets as the court thinks just.

384.-(l) Subject to subsection (3), if in the course of the winding up of a company it appears that subsection (2) applies in relation to a person who is or has been a director of the company, the court, on the application of the liquidator, may declare that person is to be liable to make such contribution to the company's assets as the court thinks just.

(2) This subsection applies in relation to a person if -

(a) the company has gone into insolvent liquidation; and

(b) at sometime before the commencement of the winding up of the company, that person knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation; and

(c) that person was a director of the company at that time.

(3) The court shall not make a declaration under this section with respect to any person if it is satisfied that after the condition specified in subsection (2)(b) was first satisfied in relation to him, that person took every step with a view to minimizing the potential loss to the company's creditors as (assuming him to have known that there was no reasonable prospect that the company would avoid going into insolvent liquidation) he ought to have taken.

(4) For the purposes of subsections (2) and (3), the facts which a director of a company ought to know or ascertain, the conclusions which he ought to reach and the steps which he ought to take are those which would be known or ascertained, or reached or taken, by a reasonably diligent person exercising the duty of care owed to the company under section 185.

(5) The reference in subsection (4) to the functions carried out in relation to a company by a director of the company includes any functions which he does not carry out but which have been entrusted to him.

(6) For the purposes of this section, a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up.

(7) This section is without prejudice to section 383.

385.-(l) On the hearing of an application under section 383 and 384, the liquidator may himself give evidence or call witnesses.

(2) Where under either section the court makes a declaration, it may give such further directions as it thinks proper for giving effect to the declaration; and in particular, the court may -

(a) provide for the liability of any person under the declaration to be a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in a mortgage or charge on assets of the company held by or vested in him, or any person on his behalf, or any person claiming as assignee from or through the person liable or any person acting on his behalf, and

(b) from time to time make such further order as may be necessary for enforcing any charge imposed under this subsection.

(3) For the purposes of subsection (2), ''assignee'' -

(a) includes a person to whom or in whose favour, by the directions of the person made liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created; but

(b) does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.

(4) Where the court makes a declaration under either section in relation to a person who is a creditor of the company, it may direct that the whole or any part of any debt owed by the company to that person and any interest thereon shall rank after all other debts owed by the company and after any interest on those debts.

(5) Sections 383 and 384 have effect notwithstanding that the person concerned may be criminally liable in respect of matters on the ground of which the declaration under the section is to be made.

386.-(I) If it appears to the court in the course of a winding up by the court that any past or present officer, or any member of the company has been guilty of any offence in relation to the company for which he is criminally liable, the court may, either on the application of any person interested in the winding up or of its own motion, direct the liquidator to refer the matter to the Attorney-General.

(2) If it appears to the liquidator in the course of a voluntary winding up that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall immediately report the matter to the AttorneyGeneral and shall furnish to the Attorney-General such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator and relating to the matter in question, as the Attorney-General may require.

(3) Where any report is made under subsection (2) to the Attorney General, he may, if he thinks fit, refer the matter to the official receiver for further inquiry, and the official receiver shall thereupon investigate the matter and may, if he thinks it expedient, apply to the court for an order conferring on him for the purpose with respect to the company concerned all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding up by the court.

(4) If it appears to the court in the course of a voluntary winding up that any past or present officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the Attorney-General under subsection (2), the court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly the provisions of this section shall have effect as though the report had been made in pursuance of the provisions of subsection (2).

(5) If, where any matter is reported or referred to the Attorney-General under this section, he considers that the case is one in which a prosecution ought to be instituted, he shall institute proceedings accordingly, and it shall be the duty of the liquidator and of every officer and agent of the company past and present (other than the defendant in the proceedings) to give him all assistance in connection with the prosecution which he is reasonably able to give. For the purposes of this subsection, the expression ''agent'' in relation to a company shall be deemed to include any banker or advocate of the company and any person employed by the company as auditor.

(6) If any person fails or neglects to give assistance in manner required by subsection (5), the court may, on the application of the Attorney-general, direct that person to comply with the requirements of the said subsection, and where any such application is made with respect to a liquidator, the court may, unless it appears that the failure or neglect to comply was due to the liquidator not having in his hands sufficient assets of the company to enable him so to do, direct that the costs of the application shall be borne by the liquidator personally.

Supplementary Provisions as to Winding Up

387. A body corporate shall not be qualified for appointment as liquidator of a company, whether in a winding up by the court or in a voluntary winding up, and -

(a) any appointment made in contravention of this provision shall be void; and

(b) any body corporate which acts as liquidator of a company shall be liable to a fine.

388. Any person who gives or agrees or offers to give to any member or creditor of a company any valuable consideration with a view to securing his own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself, as the company's liquidator shall be liable to a fine.

389.-(I) If any liquidator who has made any default in filing, delivering or making any return, account or other document, or in giving any notice which he is by law required to file, deliver, make or give, fails to make good the default within fourteen days after the service on him of a notice requiring him to do so, the court may, on an application made to the court by any contributory or creditor of the company or by the Registrar, make an order directing the liquidator to make good the default within such time as may be specified in the order.

(2) Any such order may provide that all costs of and incidental to the application shall be bome by the liquidator.

(3) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a liquidator in respect of any such default.

390.-(I) Where a company is being wound up, whether by the Court Notification voluntarily, every invoice, order for goods or business letter issued by on that , company is or on behalf of the company or a liquidator of the company, or a receiver or manager of the property of the company, being a document on or in which the name of the company appears, shall contain a statement that the company is in liquidation.

(2) If default is made in complying with this section, the company and any of the following persons who knowingly and willfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine.

391.-(I) In the case of a winding up by the court, or of a creditors' voluntary winding up of a company -

(a) every assurance relating solely to freehold or leasehold property or to a right of occupancy or to any mortgage, encumbrance on, or to any estate, right or interest in, any movable or immovable property, which forms part of the assets of the company and which, after the execution of the assurance, either at law or in equity, is or remains part of those assets; and

(b) every power of attorney, proxy paper, writ, order, certificate, affidavit, statutory declaration, bond or other instrument or writing relating solely to the property of any company which is being so wound up, or to any proceeding under any such winding up, shall be exempt from duties chargeable under the enactments relating to stamp duties.

(2) In subsection (1), the expression ''assurance'' includes deed, conveyance, grant, transfer, assignment and surrender.

392. Where a company is being wound up, all books and papers of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

393.-(I) When a company has been wound up and is about to be dissolved, the books and papers of the company and of the liquidators may be disposed of as follows -

(a) in the case of a winding up by the court, in such way as the court directs;

(b) in the case of a members' voluntary winding up, in such way as the company by special resolution directs, and, in the case of a creditors' voluntary winding up, in such way as the committee of inspection or, if there is no such committee, as the creditors of the company, may direct.

(2) Subject to the other provisions of this section, after five years from the dissolution of the company, no responsibility shall rest on the company, the liquidators, or any person to whom the custody of the books and papers has been committed, by reason of any book or paper not being forthcoming to any person claiming to be interested therein.

(3) Provision may be made in rules prescribed by the Minister to prevent, for any period not exceeding five years from the dissolution of the company, the destruction of the books and papers of a company which has been wound up, and for enabling any creditor or contributory of the company to appeal from any direction so given.

(4) If any person acts in contravention of any such rules he shall be liable to a fine.

394.-(I) If, where a company is being wound up the winding up is not concluded within one year after its commencement, the liquidator tion as to pending shall, at [six-monthly] intervals thereafter, until the winding up is concluded, deliver to the Registrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.

(2) If a liquidator fails to comply with this section, he shall be liable to a default fine.

395.--(I) If, where a company is being wound up, it appears either from any statement delivered to the Registrar under section 394 or otherwise that a liquidator has in his hands or under his control any money representing unclaimed or undistributed assets of the company which have remained unclaimed or undistributed for six months after the date of their receipt or any money held by the company in trust in respect of dividends or other sums due to any person as a member of the company, the liquidator shall immediately pay the said money to the official receiver for the credit of the Companies Liquidation Account, and shall be entitled to a receipt for the money so paid, and that receipt shall be an effectual discharge to him in respect thereof.

(2) For the purpose of ascertaining and getting in any money payable in pursuance of this section, the like powers may be exercised, and by the like authority, as are exercisable under section 1 3 6 of the Bankruptcy Ordinance, for the purposes of ascertaining and getting in the sums, funds and dividends referred to in that section. Cap. 25

(3) Any person claiming to be entitled to any money paid in pursuance of this section may apply to the official receiver for payment thereof and the official receiver may, on a certificate by the liquidator that the person claiming is entitled, pay to that person the sum due.

(4) Any person dissatisfied with the decision of the official receiver in respect of a claim made in pursuance of this section may appeal to the court.

396. Where a resolution is passed at an adjourned meeting of any creditors or contributories of a company the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.

397.-(l) The court may, as to all matters relating to the winding up to ascertain wishes of of a company, have regard to the wishes of the creditors or contributories creditors or of the company, as proved to it by any sufficient evidence, and may, if it contribution- thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held and conducted in such manner as the court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the court.

(2) In the case of creditors, regard shall be had to the value of each creditor's debt.

(3) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the articles.

398.-(I) Any affidavit or declaration required to be sworn or made under the provisions or for the purposes of this Part of this Act may be sworn or made in Tanzania before any court, Judge or person lawfully authorised to take and receive affidavits or statutory declarations or before any consuls or vice-consuls appointed by the Government in any place outside Tanzania.

(2) All Courts, Judges, Justices, Commissioners and persons acting judicially in Tanzania shall take judicial notice of the seal or stamp or signature, as the case may be, of any such court, Judge or person attached, appended or subscribed to any such affidavit or declaration, or to any other document to be used for the purposes of this Part.

Provisions as to Dissolution

399.-(I) Where a company has been dissolved, the court may on an court to declare dis- application being made for the purpose by the liquidator of the company solution of or by any other person who appears to the court to be interested, make company an order upon such terms as the court thinks fit, declaring the dissolution avoid to have been void and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.

(2) It shall be the duty of the person on whose application the order was made, within seven days after the making of the order or such further time as the court may allow, to deliver to the Registrar for registration a certified copy of the order, and if that person fails so to do he shall be liable to a default fine.

400.-(I) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he may send to the company by post a letter inquiring whether the company is carrying on business or in operation.

(2) If the Registrar does not within thirty days of sending the letter receive any answer thereto, he shall within fourteen days after the expiration of that period send to the company by registered post a letter referring to the first letter, and stating that no answer thereto has been received, and that if an answer is not received to the second letter within thirty days from the date thereof, a notice will be published in the Gazette with a view to striking the name of the company off the register.

(3) If the Registrar either receives an answer to the effect that the company is not carrying on business or in operation, or does not within thirty days after sending the second letter receive any answer, he may publish in the Gazette, and send to the company by post, a notice that at the expiration of three months from the date of the notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved: Provided that, the Registrar shall not be required to send the letters referred to in subsections (1) and (2) in any case where the company itself or any director or the Secretary of the company has requested him to strike the company off the register or has notified him that the company is not carrying on business.

(4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (3).

(5) At the expiration of the time mentioned in the notice, the Registrar may, unless cause to the contrary is previously shown by the company or the liquidator, as the case may be, strike its name off the register, and shall publish notice thereof in the Gazette, and on the publication in the Gazette of this notice the company shall be dissolved:

(a) the liability, if any, of every director, officer and member of the company shall continue and may be enforced as if the company had not been dissolved; and

(b) nothing in this subsection shall affect the power of the court to wind up a company the name of which has been struck off the register.

(6) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register the Court on an application made by the company or member or creditor before the expiration of ten years from the publication in the Gazette of the notice above may, if satisfied that the company was at the time of the striking off carrying on business or in operation, or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register, and upon a certified copy of the order being delivered to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off, and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.

(7) A notice to be sent under this section to a liquidator may be addressed to the liquidator at his last known place of business, and a letter or notice to be sent under this section to a company may be addressed to the company at its registered office or, if it has no registered office, to the care of some officer of the company, or if there is no officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.

401. Where a company is dissolved, all property and rights whatsoever vested in or held on trust for the company immediately before its dissolution (but not including property held by the company on trust for any other person) shall, subject and without prejudice to any order which may at any time be made by the court under sections 399 and 400 be deemed to be bona vacantia, and shall accordingly belong to the Government.

402.-(I) Where any property vests in the Government under section 401 the Government's title thereto under that section may be disclaimed by a notice signed by the Attorney-General.

(2) Where a notice of disclaimer under this section is executed as respects any property, that property shall be deemed not to have vested in the Government under section 401 and subsections (2) and (6) of section 373 shall apply in relation to the property as if it had been disclaimed under section 373(l) immediately before the dissolution of the company.

(3) The right to execute a notice of disclaimer under this section may be waived by or on behalf of the Government either expressly or by taking possession or other act evincing that intention.

(4) A notice of disclaimer under this section shall be of no effect unless it is executed within twelve months of the date on which the vesting of the property as above came to the notice of the Attorney-general, or, if an application in writing is made to the Attorney-General by any person interested in the property requiring him to decide whether he will or will not disclaim, within a period of three months after the receipt of the application or such further period as may be allowed by the court which would have had jurisdiction to wind up the company if it had not been dissolved.

(5) A statement in a notice of disclaimer of any property under this section that the vesting of the property came to the notice of the Attorney-general on a specified date or that no such application was received by him with respect to the property before a specified date shall, until the contrary is proved, be sufficient evidence of the fact stated.

(6) A notice of disclaimer under this section shall be delivered to the Registrar for registration by him, and copies thereof shall be published in the Gazette and sent to any persons who have given the Attorney-general notice that they claim to be interested in the property.

Companies Liquidation Account

403. An account, to be called the Companies Liquidation Account shall be kept by the official receiver with any of the local commercial banks approved by the Governor, or such other bank as may be prescribed by the Minister in regulations, and all moneys received by the official receiver in respect of proceedings under this Act in connection with the winding up of companies shall be paid to that account.

404.-(I) Whenever the cash balance standing to the credit of the Companies Liquidation Account is in excess of the amount which in the opinion of the official receiver is required for the time being to answer claims against the account, the official receiver may invest the amount not so required or any part thereof in any investment authorised by law for the investment of trust funds, or may place the same or any part thereof on fixed deposit with any bank.

(2) Whenever any money so invested or placed on deposit is, in the opinion of the official receiver, required to answer any claims against the account, the official receiver shall thereupon raise such sums as may be required by the sale of such part of the said securities or by withdrawing such amount from deposit, as may be required and repay the same to the credit of the cash balance of the Companies Liquidation Account.

(3) All interest accruing from any money so invested or placed on deposit shall be paid by the official receiver to the credit of a separate account entitled the Companies Contingency Fund at any of the local commercial banks approved by the Governor, or such other bank as may be prescribed by the Minister in regulations. Where it appears that it is in the public interest to do so and that other funds are not available or properly chargeable, the court may, on the application of the official receiver or the Registrar, authorize the official receiver or the Registrar, as the case may be, to employ money in the Companies Contingency Fund to meet expenditure which it shall consider necessary or advisable to for the purpose of enabling the Registrar to meet any indemnity or to pay any expenses which he is required by this Act to meet or pay. Where an application is made by the Registrar under this subsection, the official receiver shall be heard by the court before such application is granted; and, if the application is granted, the official receiver shall pay to the Registrar, out of the Companies Contingency Fund, the amount authorized by the court.

(4) The court may in its discretion order that the fund be reimbursed in whole or in part of any money so recovered as a result of expenditure so authorized.

PART IX RECEIVERS AND MANAGERS

Preliminary and General Provisions

405. Except where the context otherwise requires - Construction of references, to

(a) any reference in this Act to a receiver or manager of the property receivers, of a company, or to a receiver thereof, includes a reference to a receiver or manager, or (as the case may be) to a receiver, of part only of that property and to a receiver only of the income arising from that property or from part thereof; and

(b) any reference in this Act to the appointment of a receiver or manager under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument; and

(c) any reference in this Act to an administrative receiver means a receiver or manager of the whole or substantially the whole of a company's property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge, or by such a charge and one or more other securities, or a person who would be such a receiver or manager but for the appointment of some other person as the receiver of part of the company's property.

406. A body corporate shall not be qualified for appointment as receiver of the property of a company, and any body corporate which acts as such a receiver shall be liable to a fine.

407.-(l) If any person being an undischarged bankrupt acts as receiver or manager of the property of a company on behalf of debenture holders, he shall, subject to the following subsection, be liable on conviction to imprisonment or a fine or to both.

(2) Subsection (1) shall not apply to a receiver or manager where - manager

(a) the appointment under which he acts and the bankruptcy were both before the appointed day; or

(b) he acts under an appointment made by order of a court.

408. Where an application is made to the court to appoint a receiver on behalf of the debenture holders or other creditors of a company which is being wound up by the court, the official receiver may be so appointed.

409. A receiver or manager of the property of a company appointed under the powers contained in any instrument may apply to the court for directions in relation to any particular matter arising in connection with the performance of his functions, and on any such application the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as the court thinks just.

410. Where the appointment of a person as the receiver or manager of a company's property under powers contained in an instrument is discovered to be invalid (whether by virtue of the invalidity of the instrument or otherwise), the court may order the person by whom or on whose behalf the appointment was made to indemnify the person appointed against any liability which arises solely by reason of the invalidity of the appointment.

411.-(I) Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver or manager has been appointed.

(2) If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and willfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine.

412.-(l) The court may, on an application made to the court by the liquidator of a company, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any application- instrument, has been appointed as receiver or manager of the property of the company.

(2) The power of the court under subsection (1) shall, where no previous order has been made with respect thereto -

(a) extend to fixing the remuneration for any period before the making of the order or the application thereto; and

(b) be exercisable notwithstanding that the receiver or manager has died or ceased to act before the making of the order application; and

(c) where the receiver or manager has been paid or has retained for his remuneration for any period before the making of the order any amount in excess of that so fixed for that period, extend to requiring him or his legal representatives to account for the excess or such part thereof as may be specified in the order:

(3) The court may from time to time on an application made either by the liquidator or by the receiver or manager vary or amend an order made under subsection (1).

(4) This section shall apply whether the receiver or manager was appointed before or after the appointed day, and to periods before, as well as to periods after, the appointed day.

413.-(I) A receiver or manager appointed under powers contained in an instrument (other than an administrative receiver) is, to the same extent as if he had been appointed by order of the court Liability for contracts etc.

(a) personally liable on any contract entered into by him in performance of his functions (except in so far as the contract otherwise provides) and on any contract of employment adopted by him in the performance of those functions, and

(b) entitled in respect of that liability to indemnity out of the assets.

(2) For the purposes of subsection (1)(a), the receiver or manager is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.

(3) Subsection (1) does not limit any right to indemnity which the receiver or manager would have apart from it, nor limit his liability on contracts entered into without authority, nor confer any right to indemnity in respect of that liability.

(4) Where at any time the receiver or manager so appointed vacates office -

(a) his remuneration and any expenses properly incurred by him, and

(