What is MOA & AOA?
Constitution of the co.
S 16(1) ; person desiring the incorp. of co. shall lodge the Memo & articles of co. with the Registrar together with other documents required & Registrar on payment shall be subject to the Act.
S 34(1) ; Every members entitled to have copy of Memo & articles on request, on a such payment fixed by director (RM5 or less).
Requirements as to MOA
S 16(1) ; every co. must have its MOA before it can be registered.
S 18(1) ; requires MOA of every co. to be printed & divided into numbered paragraphs & dated & must contain certain clauses.
Private co. : its MOA/AOA must also contain the restrictions & prohibitions under S 15
S 122(3) ; requires MOA/AOA contain the names of director of co.
S 16(7) ; Registrar must not register MOA/AOA unless either one of them contain the names of at least the first 2 directors of proposed co.
S 139(1A) ; requires 1st secretary of co. to be named in MOA/AOA
* not expressly provide power to Registrar not to register if no secretary's name.
Requirements as to AOA
S 29(1) ; not all co. must register their own AOA.
-In M'sia, unlimited co., co. limited by guarantee & co. limited by both share and guarantee must lodge their AOA while co. limited by share may elect to lodge AOA or not.
S 30 ; if co. limited by share not lodge its AOA, articles contained in Table A of 4th Schedule are automatically applied & becomes its articles.
S 29(2) ; requires AOA to be printed, divided into numbered paragraphs & signed by each subscriber to MOA with at least 1 witness who must attest the sign & his address.
Unlike MOA, Companies Act does not prescribe the contents of AOA
-up to co. to decide what to include in its AOA as long as it's lawful provision.
Private co. : its AOA normally contain those restrictions, limitation & prohibitions under S 15(1)
S 29(3) ;
Objects & powers(corp. capacity)
Power : legal ability of co. to do something
Object : purpose of the existence of co.
S 18(1) ; MOA must contain a statement of the object / object clause of co.
-observed the meaning of power & object
3 types of powers :
1)explicitly conferred by its MOA.
eg : power to borrow money
2)implicit & incidental to the attainment of its object.
3)implied by law or Act.
eg : S 19(1);provides power of co. to make donation.
Alteration of MOA
Legal effects of MOA & AOA
Alteration of AOA
Ultra vires doctrine
Ultra Vires acts : acts which fall outside the scope of powers defined in the object clause.
Common Law position
The act or transaction that was ultra vires:
-was void
-did not bind the company
-Cannot be ratified by unanimous consent of shareholder to validate it
Malaysian position
S 20(1) ; ultra vires act shall be valid in law and binding upon the company
The act or transaction that was ultra vires:
-may be valid
-binding the company
Circumstances in which doctrine still relevant :
a)In proceeding against the company - S 20 (2) (a)
b)In proceeding against present or former officers of company - S 20 (2) (b)
c)In action by the minister – S 20 (2) (c)
d)Foreign company