BE IT ENACTED by His Excellency The Lord High Chancellor, with the Advice and Consent of His Excellency’s Council, and by the authority of the same, as follows—

Chapter 1 Preliminary

1 Short title

This Act may be cited as the Government and Private Corporations Act 2019.

2 Prohibition

No association, partnership, society, body or other group consisting of more than two persons may be formed for the purpose of carrying on any trade or business for gain unless it is incorporated under this Act or formed under some other enactment.

Chapter 2 Corporations law

Part 1 Types of corporations

3 Limited and unlimited corporations

1. A corporation is a limited corporation if the liability of its members is limited by its articles.
2. A limited corporation may be limited by shares or limited by guarantee.
3. If the liability of a corporation's members is limited to such amount as the members undertake to contribute to the assets of the corporation in the event of its being wound up, the corporation is limited by guarantee.
4. If there is no limit on the liability of its members, the corporation is an unlimited corporation.

Part 2 Formation of corporations

4 Method of forming corporation

A corporation is formed under this Act by two or more persons—

1. by subscribing their names to an Articles of Incorporation; and
2. complying with the requirements of this Act as to registration.

5 Requirements of registration

To register a corporation, a corporation must lodge with the registrar—

1. its Articles of Incorporation; and
2. evidence that the Lord's Council has assented to those articles.

6 Articles of Incorporation

1. A corporation must have Articles of Incorporation (articles) prescribing regulations for the corporation.
2. Articles for a corporation must—
   1. be contained in a single document; and
   2. be divided into paragraphs numbered consecutively.
3. Articles for a corporation must set out—
   1. the corporation's name;
   2. the corporation's registered address;
   3. the amount the members undertake to contribute to the assets of the corporation in the event of its being wound up;
   4. the number of directors; and
   5. restrictions (if any) on the business that the corporation may carry on.

7 Amendment of articles

A corporation may amend its articles by special resolution.

8 Entrenched provisions of the articles

1. A corporation’s articles may contain provision (provision for entrenchment) to the effect that specified provisions of the articles may be amended or repealed only if conditions are met, or procedures are complied with, that are more restrictive than those applicable in the case of a special resolution.
2. Provision for entrenchment may only be made—
   1. in the corporation’s articles on formation; or
   2. by an amendment of the corporation’s articles agreed to by all the members of the corporation.
3. Provision for entrenchment does not prevent amendment of the corporation’s articles—
   1. by agreement of all the members of the corporation; or
   2. by order of a court or other authority having power to alter the corporation’s articles.
4. Nothing in this section affects any power of a court or other authority to alter a corporation’s articles

9 Notice to registrar of existence of restriction on amendment of articles

1. Where a corporation’s articles—

   1. on formation contain provision for entrenchment;
   2. are amended so as to include such provision; or
   3. are altered by order of a court or other authority so as to restrict or exclude the power of the corporation to amend its articles;

   the corporation must give notice of that fact to the registrar.

2. Where a corporation’s articles—

   1. are amended so as to remove provision for entrenchment; or
   2. are altered by order of a court or other authority—
      1. so as to remove such provision; or
      2. so as to remove any other restriction on, or any exclusion of, the power of the corporation to amend its articles;

   the corporation must give notice of that fact to the registrar.

10 Registrar to be sent copy of amended articles

1. Where a corporation amends its articles it must send to the registrar a copy of the articles as amended not later than 15 days after the amendment takes effect.
2. If a corporation fails to comply with this section an offence is committed by—
   1. the corporation; and
   2. every director of the corporation.

Maximum penalty—500 Gabon Francs.

11 Statement of corporation’s objects

1. Unless a corporation’s articles specifically restrict the objects of the corporation, its objects are unrestricted.
2. Where a corporation amends its articles so as to add, remove or alter a statement of the corporation’s objects—
   1. it must give notice to the registrar;
   2. on receipt of the notice, the registrar must register it; and
   3. the amendment is not effective until entry of that notice on the register.
3. Any such amendment does not affect any rights or obligations of the corporation or render defective any legal proceedings by or against it.

Part 3 Corporate provisions

12 Corporate name

A corporation must have the words—

1. if the corporation is a limited corporation—Corporation À Responsabilité Limitée or the abbreviation CÀRL; or
2. otherwise—Unlimited;

as part of its name.

13 Capacity and powers

1. A corporation has the capacity, and, subject to this Act, the rights, powers and privileges of an individual.
2. A corporation has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Gabon to the extent that the laws of Gabon and of that jurisdiction permit.
3. It is not necessary for the articles to confer any particular power on a corporation or its directors.
4. This section does not authorise any corporation to carry on any business or activity in breach of—
   1. any enactment prohibiting or restricting the carrying on of the business or activity; or
   2. any provision requiring any permission or licence for the carrying on of the business or activity.

14 Powers affected by articles

A corporation must not—

1. carry on any business or exercise any power that it is restricted by its articles from carrying on or exercising; or
2. exercise any of its powers in a manner contrary to its articles.

15 Power of directors to bind the corporation

1. In favour of a person dealing with a corporation in good faith, the power of the directors to bind the corporation, or authorise others to do so, is deemed to be free of any limitation under the corporation’s articles.
2. For this purpose—
   1. a person “deals with” a corporation if he is a party to any transaction or other act to which the corporation is a party;
   2. a person dealing with a corporation—
      1. is not bound to enquire as to any limitation on the powers of the directors to bind the corporation or authorise others to do so;
      2. is presumed to have acted in good faith unless the contrary is proved; and
      3. is not to 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 corporation’s articles.

16 Execution of documents

1. A document is executed by a corporation—
   1. by the affixing of its common seal; or
   2. by signature in accordance with the following provisions
2. A document is validly executed by a corporation if it is signed on behalf of the corporation—
   1. by two directors of the corporation; or
   2. by a director of the corporation in the presence of a witness who attests the signature.
3. A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the corporation has the same effect as if executed under the common seal of the corporation.
4. In favour of a purchaser a document is deemed to have been duly executed by a corporation if it purports to be signed in accordance with subsection (2).

17 A corporation’s registered office

A corporation must at all times have a registered office to which all communications and notices may be addressed.

Part 4 Directors

18 Corporations required to have directors

1. A corporation must have at least 2 directors.
2. At least 1 director must be a citizen of Gabon.

19 Corporations required to have at least one director who is a natural person

A corporation must have at least one director who is a natural person.

19A Directors at time of incorporation

The directors of a corporation at the time of its incorporation are the persons whose names are subscribed to the corporation's articles of incorporation.

19B Changing directors

1. This section applies where a corporation's articles of incorporation do not provide a method to appoint or remove directors.
2. The directors may, by resolution, appoint a person as a director of the corporation.
3. The directors may, by resolution attaining a 3/4 supermajority, remove a person as a director of the corporation.
4. To remove any doubt, if a corporation's articles of incorporation provide for a maximum number of directors, subsection (2) does not apply to a corporation that has reached that maximum number of directors.

19C Notifying registrar of changes

1. Where the directors of a corporation change, the corporation must send to the registrar a list of all current directors not later than 5 days after the change takes effect.
2. If a corporation fails to comply with this section an offence is committed by—
   1. the corporation; and
   2. every director of the corporation.

Maximum penalty—500 Gabon Francs.

20 Validity of acts of directors

The acts of a person acting as a director are valid notwithstanding that it is afterwards discovered—

1. that there was a defect in his appointment;
2. that he was disqualified from holding office;
3. that he had ceased to hold office;
4. that he was not entitled to vote on the matter in question.

21 Scope of duties

The duties of directors in this Part are owed by a director of a corporation to the corporation.

22 Duty to act within powers

A director of a corporation must—

1. act in accordance with the corporation’s articles; and
2. only exercise powers for the purposes for which they are conferred.

23 Duty to promote the success of the corporation

1. A director of a corporation must act in the way he considers, in good faith, would be most likely to promote the success of the corporation for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to—
   1. the likely consequences of any decision in the long term;
   2. the interests of the corporation’s employees;
   3. the need to foster the corporation’s business relationships with suppliers, customers and others;
   4. the impact of the corporation’s operations on the community and the environment;
   5. the desirability of the corporation maintaining a reputation for high standards of business conduct; and
   6. the need to act fairly as between members of the corporation.
2. Where or to the extent that the purposes of the corporation consist of or include purposes other than the benefit of its members, subsection (1) has effect as if the reference to promoting the success of the corporation for the benefit of its members were to achieving those purposes.

24 Duty to exercise independent judgment

1. A director of a corporation must exercise independent judgment.
2. This duty is not infringed by his acting—
   1. in accordance with an agreement duly entered into by the corporation that restricts the future exercise of discretion by its directors; or
   2. in a way authorised by the corporation’s articles.

25 Duty to exercise reasonable care, skill and diligence

1. A director of a corporation must exercise reasonable care, skill and diligence.
2. This means the care, skill and diligence that would be exercised by a reasonably diligent person with—
   1. the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the corporation; and
   2. he general knowledge, skill and experience that the director has.

26 Duty to avoid conflicts of interest

1. A director of a corporation must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the corporation.
2. This applies in particular to the exploitation of any property, information or opportunity (and it is immaterial whether the corporation could take advantage of the property, information or opportunity).
3. This duty does not apply to a conflict of interest arising in relation to a transaction or arrangement with the corporation.
4. This duty is not infringed—
   1. if the situation cannot reasonably be regarded as likely to give rise to a conflict of interest; or
   2. if the matter has been authorised by the directors.
5. Authorisation may be given by the directors where nothing in the corporation’s articles invalidates such authorisation, by the matter being proposed to and authorised by the directors.
6. The authorisation is effective only if—
   1. any requirement as to the quorum at the meeting at which the matter is considered is met without counting the director in question or any other interested director; and
   2. the matter was agreed to without their voting or would have been agreed to if their votes had not been counted.
7. Any reference in this section to a conflict of interest includes a conflict of interest and duty and a conflict of duties.

27 Breach of duties

A director must not in respect of a corporation breach his duties to the corporation.

Maximum penalty—2,000 Gabonese Francs.

Part 5 Registrar for Corporations

28 Establishment of registrar

There is a registrar called the Registrar for Corporations.

29 Appointment and removal

1. The Lord's Council may appoint any citizen of Gabon as the registrar.
2. The Lord's Council may remove the registrar.

30 Functions of registrar

The functions of the registrar are the following—

1. to collect and make publicly available information about all corporations;
2. to ensure corporations comply with this Act;
3. to commence proceedings against corporations to enforce this Act.

31 Powers of registrar

The registrar may do anything reasonably necessary or convenient to carry out the functions of the office.

Endnotes:

This Act was originally tabled to His Excellency's Council on 21 November 2019.

This Act was enacted by His Excellency with the advice of the Lord's Council, and entered into force, on 22 November 2019.

This Act was amended by the Justice Legislation Omnibus Amendment Act 2020 on 9 November 2020:

• amd s 1
• sub s 12
• amd s 18 ins sub-s (2)
• ins s 19A
• ins s 19B
• ins s 19C
• ins ch 2 pt 5 (ss 28, 29, 30, 31)