37.     No requirement for company to have constitution

            Except where required by any other Act, a company including a close company may, but does not need to, have a constitution.

38.     Effect of Act on company having constitution

            (1) If a company other than a close company has a constitution, the company, the Board, each director, and each shareholder of the company shall have the rights, powers, duties, and obligations set out in this Act except to the extent that they are negated or modified, in accordance with this Act, by the constitution of the company.

            (2) If a close company has a constitution, the members of the close company shall have the rights, powers, duties and obligations set out in Part XIX except to the extent that they are negated or modified, in accordance with that Part, by the constitution of the company.

39.     Effect of Act on company not having constitution

            If a public company does not have a constitution, the company, the Board, each director, and each shareholder of the company have the rights, powers, duties, and obligations set out in this Act.

40.     Form of constitution

            The constitution of a company, if it has one, is-

     (a)     in the case of a company registered under Part II, a document certified by the applicant for registration of the company as the company’s constitution;

     (b)     in the case of a private company other than a close company registered under Part II, if no constitution is registered under paragraph (a), the constitution in the First Schedule;

     (c)     in the case of a company registered under the repealed Act, the memorandum and articles of association as originally registered or as altered in accordance with the repealed Act, including so far as they apply to the company the regulations contained in Table A, Table B, Table C or Table D in the First Schedule to the repealed Act:

                      Provided that any statement of objects in the memorandum shall, from the commencement of this Act, have the effect stated in section 25;

     (d)     a document that is adopted by the company as its constitution under section 43;

     (e)     a document described in section 44 of this Act; or

     (f)      a document described in any of the preceding paragraphs of this section as altered by the company under section 43 or varied by the court under section 175.

41.     Contents of constitution

            Subject to section 25(2), the constitution of a company may contain-

     (a)     matters contemplated by this Act for inclusion in the constitution of a company; and

     (b)     such other matters as the company wishes to include in its constitution.

42.     Effect of constitution

            (1) The constitution of a company has no effect to the extent that it contravenes, or is inconsistent with, this Act.

            (2) Subject to this Act, the constitution of a company is binding as between-

     (a)     the company and each shareholder; and

     (b)     shareholders, in accordance with its terms.

43.     Adoption, alteration and revocation of constitution

            (1) The shareholders of a company that does not have a constitution may, by special resolution, adopt a constitution for the company.

            (2) Subject to subsection (3), and without limiting section 104 (which relates to variation of shareholders’ rights) and section 174 (which relates to the right of a shareholder to apply to the court for relief in cases of prejudice), but subject to section 31(6) (which relates to a direction made by the Minister under section 31) and to section 64 (which relates to the reduction of shareholders’ liability), the shareholders of a company may, by special resolution, alter or revoke the constitution of the company.

            (3) An existing company which has, as its constitution pursuant to section 40(c), a memorandum of association and articles of association, shall not alter any of the provisions in its existing memorandum of association or articles of association unless it replaces its memorandum of association and its articles of association by a single document into which it consolidates its constitution.

            (4) Within 10 working days of the adoption of a constitution by a company, or the alteration or revocation of the constitution of a company, as the case may be, the Board shall ensure that a notice in the prescribed form of the adoption of the constitution or of the alteration or revocation of the constitution is delivered to the Registrar for registration.

            (5) If the Board of a company fails to comply with subsection (4) of this section, every director of the company commits an offence and is liable, on conviction, to the penalty set out in section 493 (1).

            (6) A company to which subsection (3) would otherwise apply may apply to the Registrar for dispensation from the requirement in subsection (3) that the memorandum and articles of association be replaced at that time by a constitution into which it consolidates its existing memorandum and articles, and where the Registrar considers that the requirement may impose undue hardship on the company, the Registrar may grant a dispensation to the company from the application of subsection (3) on such conditions as the Registrar considers appropriate. The conditions imposed by the Registrar may include a condition that the company register such a constitution within such period of time as the Registrar may stipulate.

            (7) Notwithstanding the provisions of section 522 and the Eleventh Schedule, the Registrar shall not, during a period of three years from the commencement of this Act, require the payment of any fee which would otherwise be payable on the presentation by a company, registered under the repealed Act, for registration of a constitution which replaces its memorandum and articles.

44.     New form of constitution

            (1) A company may, from time to time, deliver, to the Registrar, a single document that incorporates the provisions of a document referred to in any of the paragraphs of section 40, together with all amendments to it.

            (2) The Registrar may, if he considers that by reason of the number of amendments to a company’s constitution it would be desirable for the constitution to be contained in a single document, by notice in writing, require a company to deliver to him a single document that incorporates the provisions of a document referred to in any of the paragraphs of section 40 together with the amendments to it.

            (3) Within 20 working days of receipt by a company of a notice under subsection (2), the Board shall ensure that the document required by that subsection is received by the Registrar for registration.

            (4) The Board shall ensure that a document delivered to the Registrar under this section is accompanied by a certificate signed by a person authorised by the Board that the document complies with subsection (1) or subsection (2), as the case may be, of this section.

            (5) As soon as the Registrar receives a document certified in accordance with subsection (4), he shall register the document.

            (6) If the Board of a company fails to comply with subsection (3) or subsection (4), every director of the company shall be guilty of an offence and liable to the penalty set out in section 493(1).