Wednesday 19 March 2014

company law

COMPANY LAW- THE VEIL OF INCORPORATION THE MEANING & ORIGIN OF “VEIL OF INCORPORATION”
  The case of Salomon v Salomon Ltd. laid down the legal principle of corporate personality. What this means in law is that once a Company is registered, it is given an artificial personality. Subsequent to registration the Company can sue or be sued as a person. Further the Company and its members are separate and distinct from one another. If the Company owes money to the bank or its creditors, the creditors cannot sue its members but can only recover their debts from the Company. If the Company is unable to meet its debts, it goes into insolvency(closed down). Even if the Company’s owners are rich, the creditors are barred from sueing its Directors or shareholders. To summarize the above principle- the legal principle established by the case of S v S Ltd. is the separate legal entity principle. A Company is separate and distinct from its members and directors. This principle is also known as the “veil of incorporation.” Cases which applied this principle include Lee v Lee’s Air Farming Ltd. & Macaura v Northern_Assurance Co. Both these cases held that sole owners of a Company were separate persons and are distinct from the Company itself.
 WHEN A COMPANY IS INCORPORATED THE FOLLOWING PRINCIPLES WILL EMERGE. 1. Limited liability- The Company is liable for its own debts, but it obtains its capital from its members to conduct its business and when the Company makes a profit, it distributes the profits to its members in proportion to the number of shares each member holds.
 2. Sucession- When any member sells his shares in the Company, there is no change in the Company itself. Although the shareholders change, the Company does not because of its separate legal personality. A person can buy and sell shares on the stock exchange, but the corporate personality does not change.
3. Shareholdings- A persons interest in the Company is represented in the amount of shares he holds.
4. Assets, rights and liabilities.- All assets which are held by the Company belong to the Company and not to the members. In Salomon v Salomon Ltd (1897), it was held that a Company had a legal existence separate from its members so Mr. Salomon could be a creditor of the Company and the Company had to pay him in spite of the fact that he was literally the owner of the business.
 5. Capital- members of a Company make a payment to the Company in return for the shares issued. These payments are described as the Company’s capital.
6. Appointment of Directors- since the Company is an artificial person, clearly there must be someone to manage the Company. Members have the power to vote and appoint individuals to manage the Company. Such persons appointed are described as Directors.
7. Board of Directors.- The Company will be managed by Directors who will act as a group through a Board of Directors. The members will meet in a General Meeting where matters not delegated to the Board will be discussed.
 8. Company’s Constitution- There are 2 main documents on which the Company is founded. One is the MA (Memorandum of Association) and the other is the AA (Articles of association)
 9. Registration- In Malaysia, the Company is birthed into existence when it is registered under the Companies Act 1965.Thereafter it retains its separate legal personality until it is either struck off the Register at the CCM or liquidated by the process of winding up.( usually in cases of bankruptcy)
 INSTANCES WHEN A COURT OF LAW HAVE LIFTED THE VEIL OF INCORPORATION.
In times of war- Daimler Co. Ltd v Continental Tyre & Rubber Co. This case was decided during the time when England was at war with Germany. Continental sued Daimler for money due in respect of goods supplied. Daimler claimed that the Company was actually owned by German Nationals and paying them was illegal under the Trading with the Enemy Act. The Court lifted the Corporate veil to discover if this was so, and found as a fact that it was the Germans who were operating the business. D was therefore successful in its defence. To Prevent a fraud from being perpetrated Gilford Motors v Horne [1933] Horne was at one time the Managing Director of Gilford Motors. One of the terms of his employment contract was that, in the event that he leaves the Company, he will not solicit the customers of the Company. Eventually Mr. Horne left the Company and setup his own Company by the name of JM Horne & Co Ltd. through which he had business dealings with the previous Company’s clients. Gilford Motors sued Mr. Horne. Horne’s claimed that it was not him that was doing the business but the Company and that under Company Law they were 2 different people. However the Court was not convinced and lifted the veil of incorporation. In this instance, Mr. Hornes was just trying to hide behind a Corporate veil to steal business from his former employer. Where a fraud is perpetrated, the Court will lift the Corporate veil. Aspatra Sdn. Bhd. v Bank Bumiputra Malaysia Bhd. (1988) It was held that the Court could lift the veil to determine whether the assets of the Company were really owned by them or whether there was an abuse of the principal that a Company is a separate legal entity. To enforce a legal obligation Jones v Lipman. [1962] Lipman contracted with Jones to sell him a house. But for some reason he later changed his mind. To avoid being sued by Jones he quickly set up a Company named Alamed Ltd. and transferred the title of the house to the Company. Jones sued him but Lipman claimed that the house was already sold to Alamed Ltd and therefore he was no more the legal owner of the house. The judge who heard the case was Russell L. After hearing Lipman’s story of the Corporate veil –the judge rejected it. He stated, “Alamed Ltd. is a creature of Lipman’s device and a sham, a mask which he holds before his face in an attempt to avoid the eyes of equity.” Mr. Lipman was ordered to sell the house to Mr. Jones. When a Court order anyone to do something- it is known as specific performance. When A Court prohibits anyone from doing something it is known as an Injunction. Where a group of Companies is regarded as a Single Corporate Entity. Hotel Jaya Puri Bhd v National Union of Hotel,Bar or Restaurant Workers [1980] Although technically a person working for the restaurant was an employee of the restaurant , the reality was that the workers were employees of the hotel. The Court unveiled the corporate veil and concluded that the workers were in fact and in law, the employees of the hotel. STATUTORY EXCEPTIONS 1) S36(4) Companies Act 1965 By this section if the number of members falls below 2 and the Company carries on business for longer than 6 months while it is so reduced, the remaining member who is cognisant of the fact that it is so carrying business will be personally liable for the debts of the Company incurred after 6 months. RESPONSIBILITY FOR FRAUDULENT TRADING In Re Williams C.Leitch Brs. Ltd.( No.1) [1932]All E.R. 892 at 895 the Company was insolvent but its Directors continued to carry on business and purchased further goods on credit . Maugham declared one of the Directors personally liable for the price of the goods, citing: “…..if a Company continues to carry on business and to incur debts at a time when there is knowledge of the Directors on reasonable prospect of the creditors ever receiving payment of those debts, it is, in general, a proper inference that the Company is carrying on business with intent to defraud.” DIFFERENT TYPES OF COMPANIES Business is usually done by a group of people except in the case of sole proprietors where one man runs the whole show. To set up a business, one needs to know the different kinds of Companies which is permitted by the law. Section 14 (1) of the CA 1965 –“… any two or more persons associated for any lawful purpose may, by subscribing their names to a memorandum and complying with the requirements as to registration , form an incorporated Company. 14(2) A Company may be 1. limited by shares. 2. limited by guarantee 3. limited both by shares and guarantee 4. an unlimited Company Company limited by shares This is the most safest kind of business arrangement. In situations like this, a person’s liability is only limited to the amount of shares he holds. If the value of the shares increases, he makes a profit. Many people have become rich by buying and selling shares on the Stock Exchange. However many people have also become poor by investing in the wrong Company. A Company is a person separate from its members. It can sue or be sued in its own name. Needs to be registered with the Registrar of Companies under the Companies Act 1965. One must deposit the MA and the AA with the ROC. Shares are transferable The MA and the AA of a Company (Ma & AA)usually include in their objects clause an express power to borrow. There is no limit to membership. There must be a Company constitution. Members to not play a practical role in the daily operation of the business. Company can use the Companys assets for borrowing $$ from the Bank. A Company can be wound up following certain procedures. Companies are required to supply certain information to the public. A members liability is limited to the amount of shares that person holds. In the event the Company goes bankrupt, creditors are barred from going after the members due to the concept of corporate personality. Question- Write short notes on the borrowing powers of the Company. Suggested Answer Companies are set up to conduct business and this includes the power to borrow money from outsiders- usually the Banks. The Memorandum and Articles of Association will usually include a clause that expressly gives the Company to borrow money. Clause 74 of Table A of the Companies Act 1965 gives powers to the Directors to borrow. But this clause does not place any limitations on the powers to borrow. That is left for the Company itself to decide. Every Company will have its own limitation on the powers to borrow. This is found in the MA and the AA of the particular Company. But this contains a potential problem. What is the legal situation if the Directors exceed or abuse their powers to borrow. Foe example, if the AA states that the Company’s borrowing powers must not exceed RM100,000 but the Directors borrow RM200,000? Or what happens if a printing Company buys land which is beyond the MA? In this situation, it depends on the knowledge of the lender. If the Bank knew about the Company’s limitation, than the Company cannot in law, recover the loan. But how are innocent outsiders to know what are the borrowing powers of the Company? In such a situation the rule in Turquand’s case will apply. This is known as the indoor management rule. Here the Company will be bound even though it exceeds its borrowing powers because outsiders cannot be held liable for the illegal acts of the Company and are not expected what goes on within the Company. Further Sect 20 of the Companies Act states, “No act of purported act of a Company … and no conveyance or transfer or property … to by a Company shall be invalid by reason only of the fact that the Company was without capacity or power to do the act to execute or take the conveyance or transfer” Lenders are advised to request a copy of the MA & AA and verify for themselves if there are any limitations as to the borrowing powers of the Company. In order to legalize acts which would otherwise be ultra vires, a Company may by special resolutions alter the articles in its MA with respect to the objects of the Company Section 28(1) Company’s ACT 1965. The effect of Section 20 is that the Company is estopped from claiming that a contract is ultra vires when the ultra vires contract is fully performed. This section is meant to protect outsiders and also holds the Company liable for its acts. Factors for courts to consider • Absence or inaccuracy of corporate records; • Concealment or misrepresentation of members; • Failure to maintain arm's length relationships with related entities; • Failure to observe corporate formalities in terms of behavior and documentation; • Failure to pay dividends; • Intermingling of assets of the corporation and of the shareholder; • Manipulation of assets or liabilities to concentrate the assets or liabilities; • Non-functioning corporate officers and/or directors; • Significant undercapitalization of the business entity (capitalization requirements vary based on industry, location, and specific company circumstances); • Siphoning of corporate funds by the dominant shareholder(s); • Treatment by an individual of the assets of corporation as his/her own; • Was the corporation being used as a "façade" for dominant shareholder(s) personal dealings; alter ego theory; It is important to note that not all of these factors need to be met in order for the court to pierce the corporate veil. Further, some courts might find that one factor is so compelling in a particular case that it will find the shareholders personally liable. • Berkey v. Third Avenue Railway, 244 N.Y. 602, 155 N.E. 914 (1927). Benjamin Cardozo decided there was no right to pierce the veil for a personal injury victim. • Perpetual Real Estate Services, Inc. v. Michaelson Properties, Inc. 974 F.2d 545 (4th Cir. 1992). The Fourth Circuit held that no piercing could take place merely to prevent "unfairness" or "injustice", where a corporation in a real estate building partnership could not pay its share of a lawsuit bill • Fletcher v. Atex, Inc., 68 F.3d 1451 (2d Cir. 1995) Ultra vires Ultra vires is a Latin phrase meaning literally "beyond powers", and slightly less literally (from interpolating the definite article "the", not found in Latin) "beyond [the] powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires (nearly literally "within [the] powers", after interpolating "the"; standard legal translation and substitute, "within power"). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid". Ultra vires is a Latin term meaning "beyond powers". The term is usually used to refer to acts taken by a corporation or officers of a corporation that are taken outside of the powers or authority granted to them by law or under the corporate charter. Some states have enacted laws to prevent the use of the defense of ultra vires action to unfairly avoid obligations under otherwise valid contracts. The concept of acting "under color of law" means acts are done while a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. This is a similar concept that refers to the apparently authorized status of the action, as distinguished from the unauthorized status of their actions, which ultra vires refers to. The following is an example of a state statute dealing with the concept of ultra vires: a. "Except as provided in subsection (b), the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act. A corporation's power to act may be challenged: 1. In a proceeding by a shareholder against the corporation to enjoin the act; 2. In a proceeding by the corporation, directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee, or agent of the corporation; or 3. In a proceeding by the Attorney General under Section 10-2B-14.30. b. In a shareholder's proceeding under subsection (b)(1) to enjoin an unauthorized corporate act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss (other than anticipated profits) suffered by the corporation or another party because of enjoining the unauthorized act. "
 DOCTRINE OF ULTRA VIRES-EFFECTS AND EXCEPTIONS CONCEPT
 The object clause of the Memorandum of the company contains the object for which the company is formed. An act of the company must not be beyond the objects clause, otherwise it will be ultra vires and, therefore, void and cannot be ratified even if all the members wish to ratify it. This is called the doctrine of ultra vires, which has been firmly established in the case of Ashtray Railway Carriage and Iron Company Ltd v. Riche. Thus the expression ultra vires means an act beyond the powers. Here the expression ultra vires is used to indicate an act of the company which is beyond the powers conferred on the company by the objects clause of its memorandum. An ultra vires act is void and cannot be ratified even if all the directors wish to ratify it. Sometimes the expression ultra vires is used to describe the situation when the directors of a company have exceeded the powers delegated to them. Where a company exceeds its power as conferred on it by the objects clause of its memorandum, it is not bound by it because it lacks legal capacity to incur responsibility for the action, but when the directors of a company have exceeded the powers delegated to them. This use must be avoided for it is apt to cause confusion between two entirely distinct legal principles. Consequently, here we restrict the meaning of ultra vires objects clause of the company’s memorandum. Basic principles included the following: 1. An ultra vires transaction cannot be ratified by all the shareholders, even if they wish it to be ratified. 2. The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party 3. A fortiori, a transaction which was fully performed by both parties could not be attacked. 4. If the contract was fully executory, the defense of ultra vires might be raised by either party. 5. If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for recovery of benefits conferred was available. 6. If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.
 ORIGIN AND DEVELOPMENT
 Doctrine of ultra vires has been developed to protect the investors and creditors of the company. The doctrine of ultra vires could not be established firmly until 1875 when the Directors, &C., of the Ashbury Railway Carriage and Iron Company (Limited) v Hector Riche, (1874-75) L.R. 7 H.L. 653 was decided by the House of Lords. A company called “The Ashbury Railway Carriage and Iron Company,” was incorporated under the Companies Act, 1862. Its objects, as stated in the Memorandum of Association, were “to make, and sell, or lend on hire, railway carriages and waggons, and all kinds of railway plant, fittings, machinery, and rolling-stock; to carry on the business of mechanical engineers and general contractors ; to purchase, lease, work, and sell mines, minerals, land, and buildings; to purchase and sell, as merchants, timber, coal, metals, or other materials, and to buy and sell any such materials on commission or as agents.” The directors agreed to purchase a concession for making a railway in a foreign country, and afterwards (on account of difficulties existing by the law of that country), agreed to assign the concession to a Société Anonyme formed in that country, which société was to supply the materials for the construction of the railway, and to receive periodical payments from the English company. The objects of this company, as stated in the Memorandum of Association, were to supply and sell the materials required to construct railways, but not to undertake their construction. The contract here was to construct a railway. That was contrary to the memorandum of association; what was done by the directors in entering into that contract was therefore in direct contravention of the provisions of the Company Act, 1862 It was held that this contract, being of a nature not included in the Memorandum of Association, was ultra vires not only of the directors but of the whole company, so that even the subsequent assent of the whole body of shareholders would have no power to ratify it. The shareholders might have passed a resolution sanctioning the release, or altering the terms in the articles of association upon which releases might be granted. If they had sanctioned what had been done without the formality of a resolution, that would have been perfectly sufficient. Thus, the contract entered into by the company was not a voidable contract merely, but being in violation of the prohibition contained in the Companies Act , was absolutely void. It is exactly in the same condition as if no contract at all had been made, and therefore a ratification of it is not possible. If there had been an actual ratification, it could not have given life to a contract which had no existence in itself; but at the utmost it would have amounted to a sanction by the shareholders to the act of the directors, which, if given before the contract was entered into, would not have made it valid, as it does not relate to an object within the scope of the memorandum of association. Later on, in the case of Attorney General v. Great Eastern Railway Co.4, this doctrine was made clearer. In this case the House of Lords affirmed the principle laid down in Ashbury Railway Carriage and Iron Company Ltd v. Riche5 but held that the doctrine of ultra vires “ought to be reasonable, and not unreasonable understood and applied and whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorized, ought not to be held, by judicial construction, to be ultra vires.” The doctrine of ultra vires was recognised in Indian the case of Jahangir R. Mod i v. Shamji Ladha and has been well established and explained by the Supreme Court in the case of A. Lakshmanaswami Mudaliar v. Life Insurance Corporation Of India8. Even in India it has been held that the company has power to carry out the objects as set out in the objects clause of its memorandum, and also everything, which is reasonably necessary to carry out those objects.9 For example, a company which has been authorized by its memorandum to purchase land had implied authority to let it and if necessary, to sell it.However it has been made clear by the Supreme Court that the company has, no doubt, the power to carry out the objects stated in the objects clause of its memorandum and also what is conclusive to or incidental to those objects, but it has no power to travel beyond the objects or to do any act which has not a reasonable proximate connection with the object or object which would only bring an indirect or remote benefit to the company. To ascertain whether a particular act is ultra vires or not, the main purpose must first be ascertained, then special powers for effecting that purpose must be looked for, if the act is neither within the main purpose nor the special powers expressly given by the statute, the inquiry should be made whether the act is incidental to or consequential upon. An act is not ultra vires if it is found: (a) Within the main purpose, or (b) Within the special powers expressly given by the statute to effectuate the main purpose, or (c) Neither within the main purpose nor the special powers expressly given by the statute but incidental to or consequential upon the main purpose and a thing reasonably done for effectuating the main purpose. The doctrine of ultra vires played an important role in the development of corporate powers. Though largely obsolete in modern private corporation law, the doctrine remains in full force for government entities. An ultra vires act is one beyond the purposes or powers of a corporation. The earliest legal view was that such acts were void. Under this approach a corporation was formed only for limited purposes and could do only what it was authorized to do in its corporate charter. This early view proved unworkable and unfair. It permitted a corporation to accept the benefits of a contract and then refuse to perform its obligations on the ground that the contract was ultra vires. The doctrine also impaired the security of title to property in fully executed transactions in which a corporation participated. Therefore, the courts adopted the view that such acts were voidable rather than void and that the facts should dictate whether a corporate act should have effect. Over time a body of principles developed that prevented the application of the ultra vires doctrine. These principles included the ability of shareholders to ratify an ultra vires transaction; the application of the doctrine of estoppel, which prevented the defense of ultra vires when the transaction was fully performed by one party; and the prohibition against asserting ultra vires when both parties had fully performed the contract. The law also held that if an agent of a corporation committed a tort within the scope of the agent's employment, the corporation could not defend on the ground that the act was ultra vires. Despite these principles the ultra vires doctrine was applied inconsistently and erratically. Accordingly, modern corporation law has sought to remove the possibility that ultra vires acts may occur. Most importantly, multiple purposes clauses and general clauses that permit corporations to engage in any lawful business are now included in the articles of incorporation. In addition, purposes clauses can now be easily amended if the corporation seeks to do business in new areas. For example, under traditional ultra vires doctrine, a corporation that had as its purpose the manufacturing of shoes could not, under its charter, manufacture motorcycles. Under modern corporate law, the purposes clause would either be so general as to allow the corporation to go into the motorcycle business, or the corporation would amend its purposes clause to reflect the new venture. State laws in almost every jurisdiction have also sharply reduced the importance of the ultra vires doctrine. For example, section 3.04(a) of the Revised Model Business Corporation Act, drafted in 1984, states that "the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act." There are three exceptions to this prohibition: it may be asserted by the corporation or its shareholders against the present or former officers or directors of the corporation for exceeding their authority, by the attorney general of the state in a proceeding to dissolve the corporation or to enjoin it from the transaction of unauthorized business, or by shareholders against the corporation to enjoin the commission of an ultra vires act or the ultra vires transfer of real or personal property. Government entities created by a state are public corporations governed by municipal charters and other statutorily imposed grants of power. These grants of authority are analogous to a private corporation's articles of incorporation. Historically, the ultra vires concept has been used to construe the powers of a government entity narrowly. Failure to observe the statutory limits has been characterized as ultra vires. In the case of a private business entity, the act of an employee who is not authorized to act on the entity's behalf may, nevertheless, bind the entity contractually if such an employee would normally be expected to have that authority. With a government entity, however, to prevent a contract from being voided as ultra vires, it is normally necessary to prove that the employee actually had authority to act. Where a government employee exceeds her authority, the government entity may seek to rescind the contract based on an ultra vires claim.
EFFECT OF ULTRA VIRES TRANSACTIONS
A contract beyond the objects clause of the company’s memorandum is an ultra vires contract and cannot be enforced by or against the company as was decided in the cases of In Re, Jon Beaufore (London) Ltd ., (1953) Ch. 131, In S. Sivashanmugham And Others v. Butterfly Marketing PrivateLtd., (2001) 105 Comp. Cas Mad 763, A borrowing beyond the power of the company (i.e. beyond the objects clause of the memorandum of the company) is called ultra vires borrowing. However, the courts have developed certain principles in the interest of justice to protect such lenders. Thus, even in a case of ultra vires borrowing, the lender may be allowed by the courts the following reliefs: (1) Injunction --- if the money lent to the company has not been spent the lender can get the injunction to prevent the company from parting with it. (2) Tracing--- the lender can recover his money so long as it is found in the hands of the company in its original form. (3) Subrogation---if the borrowed money is applied in paying off lawful debts of the company, the lender can claim a right of subrogation and consequently, he will stand in the shoes of the creditor who has paid off with his money and can sue the company to the extent the money advanced by him has been so applied but this subrogation does not give the lender the same priority that the original creditor may have or had over the other creditors of the company.
 EXCEPTIONS TO THE DOCTRINE OF ULTRA VIRES
There are, however, certain exceptions to this doctrine, which are as follows: 1. An act, which is intra vires the company but outside the authority of the directors may be ratified by the shareholders in proper form.20 2. An act which is intra vires the company but done in an irregular manner, may be validated by the consent of the shareholders. The law, however, does not require that the consent of all the shareholders should be obtained at the same place and in the same meeting. 3. If the company has acquired any property through an investment, which is ultra vires, the company’s right over such a property shall still be secured. 4. While applying doctrine of ultra vires, the effects which are incidental or consequential to the act shall not be invalid unless they are expressly prohibited by the Company’s Act. 5. There are certain acts under the company law, which though not expressly stated in the memorandum, are deemed impliedly within the authority of the company and therefore they are not deemed ultra vires. For example, a business company can raise its capital by borrowing. 6. If an act of the company is ultra vires the articles of association, the company can alter its articles in order to validate the act. CASE NOTES: Eley v The Positive Government Security Life Assurance Company, Limited, (1875-76) L.R. 1 Ex. D. 88 It was held that the articles of association were a matter between the shareholders inter se, or the shareholders and the directors, and did not create any contract between the plaintiff and the company and article is either a stipulation which would bind the members, or else a mandate to the directors. In either case it is a matter between the directors and shareholders, and not between them and the plaintiff. The Directors, &C., of the Ashbury Railway Carriage and Iron Company (Limited) v Hector Riche, (1874-75) L.R. 7 H.L. 653. The objects of this company, as stated in the Memorandum of Association, were to supply and sell the materials required to construct railways, but not to undertake their construction. The contract here was to construct a railway. That was contrary to the memorandum of association; what was done by the directors in entering into that contract was therefore in direct contravention of the provisions of the Company Act, 1862 It was held that this contract, being of a nature not included in the Memorandum of Association, was ultra vires not only of the directors but of the whole company, so that even the subsequent assent of the whole body of shareholders would have no power to ratify it. The shareholders might have passed a resolution sanctioning the release, or altering the terms in the articles of association upon which releases might be granted. If they had sanctioned what had been done without the formality of a resolution, that would have been perfectly sufficient. Thus, the contract entered into by the company was not a voidable contract merely, but being in violation of the prohibition contained in the Companies Act , was absolutely void. It is exactly in the same condition as if no contract at all had been made, and therefore a ratification of it is not possible. If there had been an actual ratification, it could not have given life to a contract which had no existence in itself; but at the utmost it would have amounted to a sanction by the shareholders to the act of the directors, which, if given before the contract was entered into, would not have made it valid, as it does not relate to an object within the scope of the memorandum of association. Shuttleworth v Cox Brothers and Company (Maidenhead), Limited, and Others, [1927] 2 K.B. 9 It was held that • the contract, if any, between the plaintiff and the company contained in the articles in their original form was subject to the statutory power of alteration and • if the alteration was bona fide for the benefit of the company it was valid and there was no breach of that contract; • there was no ground for saying that the alteration could not reasonably be considered for the benefit of the company; • there being no evidence of bad faith, there was no ground for questioning the decision of the shareholders that the alteration was for the benefit of the company; and, • the plaintiff was not entitled to the relief claimed. In Re New British Iron Company, [1898] 1 Ch. 324 It was held that the article is not in itself a contract between the company and the directors; it is only part of the contract constituted by the articles of association between the members of the company inter se. But where on the footing of that article the directors are employed by the company and accept office the terms of art. 62 are embodied in and form part of the contract between the company and the directors. Under the article as thus embodied the directors obtain a contractual right to an annual sum of 1000l as remuneration. It was held also that although these provisions in the articles were only part of the contract between the shareholders inter se, the provisions were, on the directors being employed and accepting office on the footing of them, embodied in the contract between the company and the directors; that the remuneration was not due to the directors in their character of members, but under the contract so embodying the provisions; and that, in the winding-up of the company, the directors were entitled to rank as ordinary creditors in respect of the remuneration due to them at the commencement of the winding-up. Rayfield v Hands and Others, [1957 R. No. 603.] Field-Davis Ltd. was a private company carrying on business as builders and contractors, incorporated in 1941 under the Companies Act, 1929 , as a company limited by shares, having a share capital of £4,000, divided into 4,000 ordinary shares of £1 each, of which 2,900 fully-paid shares had been issued. The plaintiff, Frank Leslie Rayfield, was the registered holder of 725 of those shares, and the defendants, Gordon Wyndham Hands, Alfred William Scales and Donald Davies were at all material times the sole directors of the company. The plaintiff was a shareholder in a company. Article 11 of the articles of association of the company required to inform the directors of his intention to transfer shares in the company, and which provided that the directors “will take the said shares equally between them at a fair value.” In accordance with this the plaintiff so notified the directors, who contended that they need not take and pay for the plaintiff’s shares, on the ground that the articles imposed no such liability upon them. The plaintiff’s claimed for the determination of the fair value of his shares, and for an order that the directors should purchase such shares at a fair value. It was found that the true construction of the articles required the directors to purchase the plaintiff’s shares at a fair price. Article 11 is concerned with the relationship between the plaintiff as a member and the defendants, not as directors, but as members of the company. Guinness v Land Corporation of Ireland, (1883) L.R. 22 Ch. D. 349 The Land Corporation of Ireland, Limited , was incorporated under the Companies Act on the 12th of July, 1882, as a company limited by shares. By the memorandum of association of a company limited by shares it was stated that the objects of the company were, the cultivation of lands in Ireland , and other similar purposes there specified, and to do all such other things as the company might deem incidental or conducive to the attainment of any of those objects. The 8th clause of the articles of association, provided that the capital produced by the issue of B shares shall, so far as is necessary, be applied in making good to the holders of A shares the preferential dividend of £5 per cent., which they are to receive on the amounts paid up on their shares. This action was brought by one of the B shareholders on behalf of himself and the others, to restrain the directors from issuing any A shares on the footing of their being entitled to the benefit of that article, and to restrain the directors from applying in accordance with it the capital arising from the B shares. It was held that the application of the B capital provided for by the articles is not an application of capital to carrying on the business of the company, but is providing an inducement to people to take shares and subscribe capital to carry on the business and that article 8 was invalid, as it purported to make the B capital applicable to purposes not within the objects of the company as defined by the memorandum of association, and in a way not incidental or conducive to the attainment of those objects, and that the directors must be restrained from acting upon it. The articles of association of a company cannot, except in the cases provided for by sect. 12 of the Companies Act, 1862 , modify the memorandum of association in any of the particulars required by the Act to be stated in the memorandum. Understanding The Winding Up of the Company Winding up of Company: Winding up of a company is the process whereby its life is ended and its property administered for the benefit of its creditors and members. An administrator called a liquidator, is appointed and he takes control of the company, collects its debts and finally distributes any surplus among the members in accordance with their rights. Kind of Companies can be wound up: Only a limited company can be wound-up. The term "winding-up" (or "wound-up") bears a similar meaning of "liquidation". It generally means that all the assets of the company would be realized (sold off and converted to cash) through a legal process in order to repay its debts. Winding-up would bring a company to an end. A limited company is a company that is registered under the Companies Ordinance. It is a separate legal entity (i.e. it can sue or be sued in legal proceedings). The liabilities of shareholders are limited to the value of the company's shares held by them (limited by shares). Another situation, which is not common in commercial organizations, is that the liabilities of shareholders are limited to the amount in which the shareholders have agreed to contribute to the company's assets if the company is being wound-up (limited by guarantee). An "unlimited company" or a sole trader is not a "company" in a strict sense. It is a business operated in the form of a sole proprietorship. In other words, the business is owned by an individual. A sole proprietor is solely and personally responsible for the liability of the business. A partnership is a form of business owned by two or more persons (partners). The partners are personally jointly and severally liable (i.e. every partner should be liable) for the liability of the business. An overview of winding-up procedures: You can get a general picture on the winding-up procedures (except "voluntary Winding up) from the following steps: a) Firstly, issuing a written demand for debt repayment to the target company b) Secondly, presenting a winding-up petition to the Court and the company. c) Thirdly, Court hearing for the petition. d) Fourthly, granting of winding-up order by the Court. e) Fifthly, meeting of creditors and other relevant parties. f) Sixthly, appointment of liquidator. g) Seventhly, realization and distribution of company's assets to the creditors. h) Eighthly, release of duties for liquidator. i) Lastly, dissolution of the company. Modes of Winding up of the company: A Company may be wound up in any of the following modes: 1. By the Tribunal i.e. compulsory winding 2. Voluntary winding up, which may be (a) Member's voluntary winding up; (b) Creditor's voluntary winding up; Winding up by the Tribunal:  If the company has, by special resolution, resolved that the companyØ may be wound-up by the tribunal;  If default is made in delivering the statutory report to the registrarØ or in holding the statutory meeting;  If the company does not commence its business within a year from itsØ incorporation, or suspends its business for whole of a year;  If the number of members are reduced then their required number;Ø  If the company is unable to pay its debts;Ø  If the tribunal is of the opinion that it is just and equitable thatØ the company should be wound up;  If the company is in default in filing up with the Registrar itsØ balance sheet and profit and loss account for five consecutive financial years and  If the company has acted against the interests of the sovereignty andØ integrity of India or security of any state, friendly relation with foreign States, public order, decency and morality. Voluntary Winding Up: In case of voluntary winding up, the entire process is done without Court Supervision. When the winding up is complete, the relevant documents are filed before the Court for obtaining the order of dissolution. A voluntary winding up may be done by the members as it may be done by the creditors. The circumstances in which a company may be wound up voluntarily are: - 1. When the period fixed for the duration of the company in its articles has expired 2. When an event on the happening of which the company is to be dissolved as per its articles happens 3. The company resolves by a special resolution at a general meeting to be voluntarily wound up. A voluntary winding up commences from the date of the passing of the resolution for voluntary winding up. This is so even when after passing a resolution for voluntary winding up, the Court presents a petition for winding up. The effect of the voluntary winding up is that the company ceases to carry on its business except so for as may be required for the beneficial winding up thereof. Persons may petition the Court for winding up: -
 1. The Company
2. Any creditor of the Company
3. Any contributory or shareholder. Contributory means every person liable to contribute to the assets of a company in the event of its being wound up and includes holders of its fully paid shares. While every member of a company becomes a contributory, not every contributory is a member. Besides members, any person who ceased to be a member 1 year prior to the commencement of winding up is also a contributory.
 4. The Registrar may petition for winding up in the following circumstances:
- (i) If default is made in delivering statutory report or holding the statutory report.
 (ii) If the company does not commence its business within one year from its incorporation or suspends its business for a whole year.
 (iii) If it appears to him either from the financial position of the company as disclosed in the balance sheet of the company or from the report of a special auditor or an inspector that the company is unable to pay its debts.
 (iv) Where the Registrar is authorized by the Central Government to petition for winding up the company.
 (v) Where the number of members of the company fall below the statutory minimum.
(vi) Where it is just and equitable that the company be wound up.
 5. Any person authorized by the Central Government. Under section 243, if any report of an inspector appointed to investigate the affairs of the company discloses:
- (i) That the business of the company is being conducted to defraud its creditors or members or for a fraudulent or unlawful purpose
 (ii) That the persons concerned in the formation or management have been guilty of fraud, misfeasance, and it appears to the Central Government from such report so to do, then the Central Government may authorize any person including the Registrar to petition for winding up the company on the ground that it is just and equitable to do so
. 6. The Official Liquidator attached to a Court where a company is already being voluntarily wound up and such voluntary winding up cannot be continued with due regard to the interests of the creditors or contributors or both.
Liquidator can be released from the relevant duties in a winding-up proceedings: The liquidator can apply to the Court for the release of the duties once the followings have been accomplished: - all the assets of the company have been realized (i.e. all assets have been sold and converted to cash); - investigations related to the winding-up proceedings are completed; and - a final dividend (if any) has been paid to the creditors to settle the debts The liquidator will send notices, together with a summary of the relevant receipts and payments in the liquidation, to the creditors and contributories of the company of the intention to apply to the Court for release from the duties as liquidator. At this point, any creditor or contributory has 21 days from the date of the notice to raise objection to the intended release of the liquidator. After obtaining the order for release from the court, the liquidator will file a "Certificate of Release of Liquidator" with the Registrar of Companies. The company shall be dissolved two years after the filing of the "Certificate of Release of Liquidator". Conclusion: After analyzing, it is found that the right to apply for winding up is the creature of statute and not of contract. But it should be noted that the winding up proceeding are greatly affected by the facts and circumstances of a particular case. The machinery of winding-up cannot be used as a pressure tactics. It is the stage, where by the company takes its last breath.

company law:piercing the corporate shell

COMPANY LAW- THE VEIL OF INCORPORATION THE MEANING & ORIGIN OF “VEIL OF INCORPORATION” The case of Salomon v Salomon Ltd. laid down the legal principle of corporate personality. What this means in law is that once a Company is registered, it is given an artificial personality. Subsequent to registration the Company can sue or be sued as a person. Further the Company and its members are separate and distinct from one another. If the Company owes money to the bank or its creditors, the creditors cannot sue its members but can only recover their debts from the Company. If the Company is unable to meet its debts, it goes into insolvency(closed down). Even if the Company’s owners are rich, the creditors are barred from sueing its Directors or shareholders. To summarize the above principle- the legal principle established by the case of S v S Ltd. is the separate legal entity principle. A Company is separate and distinct from its members and directors. This principle is also known as the “veil of incorporation.” Cases which applied this principle include Lee v Lee’s Air Farming Ltd. & Macaura v Northern_Assurance Co. Both these cases held that sole owners of a Company were separate persons and are distinct from the Company itself. WHEN A COMPANY IS INCORPORATED THE FOLLOWING PRINCIPLES WILL EMERGE. 1. Limited liability- The Company is liable for its own debts, but it obtains its capital from its members to conduct its business and when the Company makes a profit, it distributes the profits to its members in proportion to the number of shares each member holds. 2. Sucession- When any member sells his shares in the Company, there is no change in the Company itself. Although the shareholders change, the Company does not because of its separate legal personality. A person can buy and sell shares on the stock exchange, but the corporate personality does not change. 3. Shareholdings- A persons interest in the Company is represented in the amount of shares he holds. 4. Assets, rights and liabilities.- All assets which are held by the Company belong to the Company and not to the members. In Salomon v Salomon Ltd (1897), it was held that a Company had a legal existence separate from its members so Mr. Salomon could be a creditor of the Company and the Company had to pay him in spite of the fact that he was literally the owner of the business. 5. Capital- members of a Company make a payment to the Company in return for the shares issued. These payments are described as the Company’s capital. 6. Appointment of Directors- since the Company is an artificial person, clearly there must be someone to manage the Company. Members have the power to vote and appoint individuals to manage the Company. Such persons appointed are described as Directors. 7. Board of Directors.- The Company will be managed by Directors who will act as a group through a Board of Directors. The members will meet in a General Meeting where matters not delegated to the Board will be discussed. 8. Company’s Constitution- There are 2 main documents on which the Company is founded. One is the MA (Memorandum of Association) and the other is the AA (Articles of association) 9. Registration- In Malaysia, the Company is birthed into existence when it is registered under the Companies Act 1965.Thereafter it retains its separate legal personality until it is either struck off the Register at the CCM or liquidated by the process of winding up.( usually in cases of bankruptcy) INSTANCES WHEN A COURT OF LAW HAVE LIFTED THE VEIL OF INCORPORATION. In times of war- Daimler Co. Ltd v Continental Tyre & Rubber Co. This case was decided during the time when England was at war with Germany. Continental sued Daimler for money due in respect of goods supplied. Daimler claimed that the Company was actually owned by German Nationals and paying them was illegal under the Trading with the Enemy Act. The Court lifted the Corporate veil to discover if this was so, and found as a fact that it was the Germans who were operating the business. D was therefore successful in its defence. To Prevent a fraud from being perpetrated Gilford Motors v Horne [1933] Horne was at one time the Managing Director of Gilford Motors. One of the terms of his employment contract was that, in the event that he leaves the Company, he will not solicit the customers of the Company. Eventually Mr. Horne left the Company and setup his own Company by the name of JM Horne & Co Ltd. through which he had business dealings with the previous Company’s clients. Gilford Motors sued Mr. Horne. Horne’s claimed that it was not him that was doing the business but the Company and that under Company Law they were 2 different people. However the Court was not convinced and lifted the veil of incorporation. In this instance, Mr. Hornes was just trying to hide behind a Corporate veil to steal business from his former employer. Where a fraud is perpetrated, the Court will lift the Corporate veil. Aspatra Sdn. Bhd. v Bank Bumiputra Malaysia Bhd. (1988) It was held that the Court could lift the veil to determine whether the assets of the Company were really owned by them or whether there was an abuse of the principal that a Company is a separate legal entity. To enforce a legal obligation Jones v Lipman. [1962] Lipman contracted with Jones to sell him a house. But for some reason he later changed his mind. To avoid being sued by Jones he quickly set up a Company named Alamed Ltd. and transferred the title of the house to the Company. Jones sued him but Lipman claimed that the house was already sold to Alamed Ltd and therefore he was no more the legal owner of the house. The judge who heard the case was Russell L. After hearing Lipman’s story of the Corporate veil –the judge rejected it. He stated, “Alamed Ltd. is a creature of Lipman’s device and a sham, a mask which he holds before his face in an attempt to avoid the eyes of equity.” Mr. Lipman was ordered to sell the house to Mr. Jones. When a Court order anyone to do something- it is known as specific performance. When A Court prohibits anyone from doing something it is known as an Injunction. Where a group of Companies is regarded as a Single Corporate Entity. Hotel Jaya Puri Bhd v National Union of Hotel,Bar or Restaurant Workers [1980] Although technically a person working for the restaurant was an employee of the restaurant , the reality was that the workers were employees of the hotel. The Court unveiled the corporate veil and concluded that the workers were in fact and in law, the employees of the hotel. STATUTORY EXCEPTIONS 1) S36(4) Companies Act 1965 By this section if the number of members falls below 2 and the Company carries on business for longer than 6 months while it is so reduced, the remaining member who is cognisant of the fact that it is so carrying business will be personally liable for the debts of the Company incurred after 6 months. RESPONSIBILITY FOR FRAUDULENT TRADING In Re Williams C.Leitch Brs. Ltd.( No.1) [1932]All E.R. 892 at 895 the Company was insolvent but its Directors continued to carry on business and purchased further goods on credit . Maugham declared one of the Directors personally liable for the price of the goods, citing: “…..if a Company continues to carry on business and to incur debts at a time when there is knowledge of the Directors on reasonable prospect of the creditors ever receiving payment of those debts, it is, in general, a proper inference that the Company is carrying on business with intent to defraud.” DIFFERENT TYPES OF COMPANIES Business is usually done by a group of people except in the case of sole proprietors where one man runs the whole show. To set up a business, one needs to know the different kinds of Companies which is permitted by the law. Section 14 (1) of the CA 1965 –“… any two or more persons associated for any lawful purpose may, by subscribing their names to a memorandum and complying with the requirements as to registration , form an incorporated Company. 14(2) A Company may be 1. limited by shares. 2. limited by guarantee 3. limited both by shares and guarantee 4. an unlimited Company Company limited by shares This is the most safest kind of business arrangement. In situations like this, a person’s liability is only limited to the amount of shares he holds. If the value of the shares increases, he makes a profit. Many people have become rich by buying and selling shares on the Stock Exchange. However many people have also become poor by investing in the wrong Company. A Company is a person separate from its members. It can sue or be sued in its own name. Needs to be registered with the Registrar of Companies under the Companies Act 1965. One must deposit the MA and the AA with the ROC. Shares are transferable The MA and the AA of a Company (Ma & AA)usually include in their objects clause an express power to borrow. There is no limit to membership. There must be a Company constitution. Members to not play a practical role in the daily operation of the business. Company can use the Companys assets for borrowing $$ from the Bank. A Company can be wound up following certain procedures. Companies are required to supply certain information to the public. A members liability is limited to the amount of shares that person holds. In the event the Company goes bankrupt, creditors are barred from going after the members due to the concept of corporate personality. Question- Write short notes on the borrowing powers of the Company. Suggested Answer Companies are set up to conduct business and this includes the power to borrow money from outsiders- usually the Banks. The Memorandum and Articles of Association will usually include a clause that expressly gives the Company to borrow money. Clause 74 of Table A of the Companies Act 1965 gives powers to the Directors to borrow. But this clause does not place any limitations on the powers to borrow. That is left for the Company itself to decide. Every Company will have its own limitation on the powers to borrow. This is found in the MA and the AA of the particular Company. But this contains a potential problem. What is the legal situation if the Directors exceed or abuse their powers to borrow. Foe example, if the AA states that the Company’s borrowing powers must not exceed RM100,000 but the Directors borrow RM200,000? Or what happens if a printing Company buys land which is beyond the MA? In this situation, it depends on the knowledge of the lender. If the Bank knew about the Company’s limitation, than the Company cannot in law, recover the loan. But how are innocent outsiders to know what are the borrowing powers of the Company? In such a situation the rule in Turquand’s case will apply. This is known as the indoor management rule. Here the Company will be bound even though it exceeds its borrowing powers because outsiders cannot be held liable for the illegal acts of the Company and are not expected what goes on within the Company. Further Sect 20 of the Companies Act states, “No act of purported act of a Company … and no conveyance or transfer or property … to by a Company shall be invalid by reason only of the fact that the Company was without capacity or power to do the act to execute or take the conveyance or transfer” Lenders are advised to request a copy of the MA & AA and verify for themselves if there are any limitations as to the borrowing powers of the Company. In order to legalize acts which would otherwise be ultra vires, a Company may by special resolutions alter the articles in its MA with respect to the objects of the Company Section 28(1) Company’s ACT 1965. The effect of Section 20 is that the Company is estopped from claiming that a contract is ultra vires when the ultra vires contract is fully performed. This section is meant to protect outsiders and also holds the Company liable for its acts. Factors for courts to consider • Absence or inaccuracy of corporate records; • Concealment or misrepresentation of members; • Failure to maintain arm's length relationships with related entities; • Failure to observe corporate formalities in terms of behavior and documentation; • Failure to pay dividends; • Intermingling of assets of the corporation and of the shareholder; • Manipulation of assets or liabilities to concentrate the assets or liabilities; • Non-functioning corporate officers and/or directors; • Significant undercapitalization of the business entity (capitalization requirements vary based on industry, location, and specific company circumstances); • Siphoning of corporate funds by the dominant shareholder(s); • Treatment by an individual of the assets of corporation as his/her own; • Was the corporation being used as a "façade" for dominant shareholder(s) personal dealings; alter ego theory; It is important to note that not all of these factors need to be met in order for the court to pierce the corporate veil. Further, some courts might find that one factor is so compelling in a particular case that it will find the shareholders personally liable. • Berkey v. Third Avenue Railway, 244 N.Y. 602, 155 N.E. 914 (1927). Benjamin Cardozo decided there was no right to pierce the veil for a personal injury victim. • Perpetual Real Estate Services, Inc. v. Michaelson Properties, Inc. 974 F.2d 545 (4th Cir. 1992). The Fourth Circuit held that no piercing could take place merely to prevent "unfairness" or "injustice", where a corporation in a real estate building partnership could not pay its share of a lawsuit bill • Fletcher v. Atex, Inc., 68 F.3d 1451 (2d Cir. 1995)

Tuesday 18 March 2014

How does macroeconomics factors affect smes in tanzania

Essay one talked about how macroeconomics factors such as inflation, monetary policy, taxation and international trade affect the economy of Tanzania as a whole. As stated in essay one, this essay will discuss about how these microeconomics factors affect the small and medium enterprises (SMEs) or occasionally known as micro, small and medium enterprises (MSMEs) in Tanzania. In Tanzania (SME Development Policy, 2002), it is at present increasingly recognized that SMEs play an important job in employment contribution, income generation and stimulation of growth in both rural and urban sectors. SMEs can easily be set up given that their requirements in terms of capital, technology, management, etc. are not as demanding compared to large enterprises. SME Development Policy (2002) wrote different countries use different measures of size according to their development level. In the perspective of Tanzania, micro enterprises are those employing up to 4 employees or utilizing capital amounting up to Tshs.5 million. Small enterprises are those that are employing between 5 and 49 employees or with capital investment amounting from Tshs.5 million to Tshs.200 million. Medium enterprises are those employing between 50 and 99 employees or utilize capital investment amounting from Tshs.200 million to Tshs.800 million. The above information can be summarized using the table below: In 2002, the Government of Tanzania (quoted by Aikaeli, 2007) stated that it is estimated that about a third of the GDP originates from the SME sector and employs approximately 20% of the Tanzanian work force. This data shows that SME sector plays a significant role in the economy. According to Morwa (2006), following the privatization drive and the civil and public service reforms which began to take place in the early 1990s in Tanzania, the country observed a considerable increase in the number of SMEs over the last one decade. SME Development Policy (2002) argued that due to the existence of a number of restrictions hindering the development of Tanzania SME sector such as unfavorable legal and regulatory framework, undeveloped infrastructure, poor business development services, limited access of SMEs to finance, ineffective and poorly coordinated institutional support framework etc., the full potential of this sector has yet to be tapped. The anticipated result is to have a considerably increased contribution of the SME sector to economic development of Tanzania. Monetary policy and its contribution to the SMEs in Tanzania: As described in essay one, the Bank of Tanzania is the central bank of Tanzania and in 1995, according to Wikipedia (2010) the bank had one single main objective, which was monetary policy. One of the problems that SMEs in Tanzania face is limited access to finance. The government decided to set up the following schemes to tackle with this problem: Small and Medium Enterprise Credit Guarantee Scheme (SME-CGS): According to BOT (2010), this scheme was set up by the government during the financial year 2004/5. It is executed by the Bank of Tanzania (BOT) in alliance with Financial Institutions. SME-CGS is devised to promote and support SMEs by building up an enabling environment for expansion and making possible access to financial resources, thus speeding up economic growth and job creation. Economic Empowerment Programme (J.K. Fund): In the financial year 2006/7, the government kept aside about Tshs.21 billion. Mkukuta (2008) stated that the motive of the fund is to offer special consideration loans through normal banking practices to empower SMEs, and especially those that are in the rural and urban areas. The execution of the programme is categorized into two phases. The first phase was assigned Tshs.10.5 billion, which were issued under Credit Guarantee Scheme. The CRDB and NMB banks were selected to partake in the first phase. The second phase was also assigned with Tshs.10.5 billion, which were issued to banks and non-bank financial institutions to offer loans mostly to districts that CRDB and NMB banks were not able to cover during the first phase. According to Mkukuta (2008), as of 30th September 2008, loans worth of Tshs.39 billion were issued from the first phase allocation, whereby the CRDB bank issued about Tshs.22.8 billion and 26,384 entrepreneurs profited from this. NMB bank issued about Tshs.16.2 billion and 21,955 entrepreneurs profited from this. In total, the number of entrepreneurs that profited was 48,370. Mwananchi Empowerment Fund: This scheme was commenced in January 2008. According to Mkukuta (2008), since it was launched with limited capital resources of about Tshs.400 million, the government decided to launch the scheme in five regions in the first phase and carry on with other regions subject to the availability of funds. The first phase regions included Lindi, Mtwara, Manyara, Singida and Rukwa. A Memorandum of Understanding (MOU) has been signed between the CRDB Bank and the National Economic Empowerment Council (NEEC), whereby NEEC had agreed to deposit about Tshs.400 million to the CRDB Bank as cash guarantee. The scheme seeks to empower Tanzania citizens to access capital and loans and take part in the economic activities of the country. The following are the objectives of the Fund as given by Mkukuta (2008): Widen investment knowledge among Tanzanians Enhance employment opportunities Offer a connection among institutions, companies and corporations that are registered under the Economic Empowerment Act by bringing coordination in their activities, counseling and developing them Offer loans to private individuals, corporations and institutions under credit guarantee scheme or non-guarantee scheme. Mkukuta (2008) concluded that until 30th September 2008, a total loan worth Tshs.143,770,000 has been issued to two of the first phase regions; Lindi and Mtwara. CRDB BANK LTD – TANZANIA: Masuke (2010) stated in his presentation that CRDB Bank is a private commercial bank that was set up in July 1996. CRDB Bank is one of the banks in Tanzania that cannot escape doing and expanding business with the SMEs sector. This is because of the intense competition for the small corporate market. Because of this predicament, CRDB Bank has been compelled to adjust their traditional banking philosophy and practice and seek out methodologies of dealing with the crisis built-in in financing of SMEs in Tanzania. According to CRDB Bank (Masuke, 2010), SMEs are those with: Number of staff between 1 and 100 in the midst of them are relatives of the entrepreneur Capital investment of between Tshs.5 million to Tshs.800 million Requirement of businesses loan amounting Tshs.1 million to Tshs.100 million Annual sales turnover of Tshs.20 million to Tshs.500 million One of the problems faced by SMEs is getting finance from banks. CRDB Bank carried out a survey to uncover what was hampering SMEs from accessing finance. Masuke (2010) wrote that the following were the results: SMEs sector is viewed as a high risk and costly to finance SMEs have poor auditing and accounting framework Lack of enough guarantee schemes to back-up financing SMEs Inadequate knowledge of business operations Failure of borrowers to organize and present applications/business plan that meets the banks requirements. Failure of SMEs to fulfill collateral requirements. According to Masuke (2010), the following are the initiatives that CRDB Bank took to support SMEs: Devise modified products for SMEs: The bank developed two credit products for SMEs: working capital loan and investment loan. The repayment style developed is by installments. In working capital loan, the minimum repayment period was developed to be 3months and the maximum 12months while in investment loan, the minimum repayment period is 12months and the maximum 60months. Capacity building for CRDB staff and SME customers: In building capacity for CRDB staff, the bank had to hire new staffs who specially deal with SMEs. Furthermore, all employed staffs had to go through an intensive training. In building capacity for SMEs, the bank offers free business and loan management training to SMEs. In addition, after training the trainees are provided with booklet called SME Toolkit, which can be used as a reference. Increase the range of collaterals accepted by the bank: Before CRDB Bank implemented the SMEs concept, it used to call for just traditional collateral. But now, the bank has broadened the range of acceptable collaterals to include non-traditional collaterals e.g. Residential License, properties with offer letters, used motor vehicles and machines etc. Introduction of customer relationship concept at branch level: The bank extended the relationship concept to branch level, which can allow the bank to build a strong relationship with its SMEs. The SME concept was executed as a project in 2005. Since then, the project has been a hit with remarkable growth in terms of portfolio and number of customers. International trade and SMEs: Tanzania’s ability to face global economic challenges depends on the stage of development of its SMEs. According to OECD Bologna conference (2000), there are four requirements for development of competitive SMEs that meet the criteria to get involved in cross-border business: Provision of effective business support services Availability of long-term finance Availability of a good state of information and communication technology infrastructure Existence of appropriate social capital The following are the strategies that SMEs can adopt when involving in international activities (Young, 1987): Exporting Foreign direct investments (FDI) Strategic alliance Joint ventures Licensing, etc. According to Saiguran (2007), some of the problems that SMEs in Tanzania face include: Lack of appropriate information, knowledge and skills Challenge of small and competitive domestic market Inadequate and inefficient infrastructural facilities Multiplicity of taxes The following are some of the initiatives that were set up in order to promote international trade in Tanzania: The Board of External Trade (BET): This scheme was set up in 1978. The scheme is responsible for: International markets searching Synchronizing foreign businesses requiring to trade in Tanzania Sorting out and helping out involvement in overseas trade fairs, exhibitions, and missions Carrying out Research and Development on external trade According to BET (2007), since the time the scheme was set up, it has been synchronizing and carrying out training programmes in all areas of international trade, holding specialized exhibitions and carrying out market research. Mini-Tiger Plan 2020: this scheme is fed into the National Strategy for Growth and Reduction of Poverty (NSGRP). According to Aikaeli (2007), this scheme is responsible for: Promote competitiveness of Tanzanian products on the global markets Promote exports Create special economic zones. The zones that were created included: Tanzania Export Processing Zones, which was set up by the parliament Act of 2002 and Zanzibar Free Trade Economic Zones Authority (ZFTEZA), which was created in 1992 SMEs’ Export Credit Guarantee Scheme: this scheme was set up in 2003 by the government of Tanzania through the central bank. The aim of the scheme is to facilitate export trade. According to BOT (2006), the scheme is geared to support SMEs in line with the National SMEs Development Policy. In order to assist the mentioned above scheme in minimizing problems that are affect by SMEs in relation to international trade, the government in collaboration with private non-governmental organization (NGOs) organizes workshops and seminars to sensitize and educate people on how to cope with the existing global challenges. For example, SMEs Competitive Facility (SCF) of Tanzania organized a course with jingle “Track IT, Trace IT Tanzania: Competitiveness for Tanzania”. According to SCF (2006), SCF grants opportunity for businesses that desire to build up or add to their ability to trade and export. Regardless of all the problems that SMEs face in Tanzania in relation to international trade (Aikaeli, 2007), SMEs still have the potential to effectively compete and gain the benefits of the rapid expending international trade. AMKA: DAR-ES-SALAAM, TANZANIA Tomesen and Gibson (1998) stated that AMKA is a Swahili word meaning awareness or awaken. It is an NGO in Tanzania which specializes in export and marketing-oriented business development services (BDS) to Tanzania SMEs. AMKA was founded in 1994. Its main goal is to: Increase the incomes and numbers of Tanzanians (employees and/or producers) involved in exports… [And] increase the value of agricultural output in Tanzania via exports…. (Tomesen and Gibson, 1998) In other words, Tomesen and Gibson (1998) wrote AMKA’s export/market-focuses technique is to improve business performance by increasing efficiency and turnover through improved access to new markets (domestic and foreign). In quest of the goal, AMKA carries out a variety of activities that target the SME sector. These create a balancing market/export-focused portfolio of services and can basically be categorized into two groups: Training and advisory services – providing training in small business development skills and business planning for export. Trade promotion and intermediary services – AMKA acts as an agent between producers and customers. It offers market information on export, assist producers who need export facilities and eases the connection between the producers and alternative trade organizations, which are the customers. AMKA also helps producers and intermediary organizations to take part in trade fairs and offer ethical and quality standard audits of producers for external customers and carries out market research AMKA’s key income source is the Department for International Development (DFID). In 1994, it endorsed a 4 year funding of $557,053, which was to assist in forming the organization (AMKA). Nevertheless, the awareness strategy of lessening reliance on one donor has been successful. Reliance on DFID funding has lessened from 94% in 1994/5 to 40% IN 1997/8. Important funds from other donors began to enter into the organization. The percentage of internally generated funds has risen from 5% in 1994/95 to 41% in 1997/98. According to Tomesen and Gibson (1998), AMKA successfully serves two groups of customers: SMEs in Tanzania Overseas customers These customers are mainly in two sectors: food-processing and handicraft production. The customer base is extremely different in terms of the organization structure, the number of employees, their activities and main products. The customer enterprises size ranges from 4 to 446 employees. Customer enterprises have a range of structures of ownership, which include: producer groups (groups of self-employed people), co-operative societies, privately limited companies, parastatals, and associations. Originally, AMKA’s focus was to develop intermediaries (co-operatives and associations) who could, in turn, deliver services to producers. Nevertheless, AMKA has shifted deliberately towards to offering more services to producers itself directly mainly because of the weakness of these intermediaries and the complexity in increasing their ability. In general, Tomesen and Gibson (1998) concluded that it is obvious that AMKA has had a positive impact on the economy of Tanzania in general and on producers, SMEs in particular. Because of AMKA, some businesses were rescued; others, for the first time, were introduced to exports, or had export sales increased. Effects of Inflation on SMEs in Tanzania: As described in the first essay, Thompson and Vane (1979) argued that inflation can be caused by a simultaneous fall in the value of money. Inflation had continuously pressure Bank of Tanzania in the year 2009-10 due to its double digit and is expected to remain the same due to government expenditure ahead of October elections, the anticipated dry weather and the deteriorating of the shilling. The rate of inflation affects SMEs’ access to finance. As described in essay one, a high rate of inflation restricts SMEs from access to finance from the banks and other financial institutions while a low rate of inflation widens the SMEs’ chances of accessing funds. Because of this, inflation is considered as one of the factors that get in the way of the growth of SMEs in Tanzania, in a way that it puts off investors. Investors prefer to invest in countries where currencies are stable and rates of inflation are low. In order to help the SMEs sector, the central bank of Tanzania has set up a chain of strict fiscal measures to control inflation. Professor Benno Ndulu, the governor of the Bank of Tanzania (cited by Emerging Markets Business News, 2010), in an exclusive interview in Dar es Salaam said his institution was acting quickly and resolutely to turn around the rising rate of inflation. He said the bank would remain alert against the risk of higher food and fuel prices firing up the inflation’s upward spiral. He continued to say that increasing inflation was a worldwide happening and that the Bank was working round the clock to have power over money liquidity in the economy as one of the measures to deal with the problem. As an economics expert, Prof. Ndulu suggested that Tanzania as a nation requires to produce more food for its rapidly increasing population to trim down reliance on costly imported food products, which add up to inflationary pressures. He challenged regulators such as the Energy and Water Utilities Regulatory Authority (EWURA) and others to make certain that when prices of fuel at the global market drop, such positive changes should be experienced by Tanzania too. The Bank of Tanzania also controls the growth of money in order to control inflation. According to Ballali (2004), controlling the growth of money enables the bank to have influence over the rates of inflation. In controlling the growth of money, the bank targets broad money, M2, which is currency in circulation outside banks, and total deposits detained by commercial banks, not including foreign currency deposits. BANK OF TANZANIA (BOT): The Bank of Tanzania is responsible for controlling the rate of inflation. Ballali (2004) wrote the objective of monetary policy is to attain a low and stable rate of inflation, which has a link with the key objective of the Bank of Tanzania, which is price stability. Therefore, the bank has an obligation of making sure that it sets up monetary conditions that are in agreement with low and stable inflation. According to Ballali (2004), the focus of the Bank of Tanzania is on the Consumer Price Index (CPI), which it uses to determine inflation. The rate of change in the overall CPI is known as the headline inflation rate. The inflation rate, not including food prices is regularly known as the non-food inflation rate. Non-food inflation rate is used to calculate price movements, which are mostly influenced by policy factors, but can also be often affected by external factors. The Bank of Tanzania also keeps an eye on food prices and their index. This is for the reason that food prices are occasionally influenced by non-monetary factors like drought and floods, which can have an effect on inflation significantly in spite of the attitude of monetary policy. The rate of change in food price index is known as the food inflation rate. Ballali (2004) stated that by controlling the growth of money supply, Central Banks have influence over inflation. The Bank of Tanzania targets broad money, M2, which is described as currency in circulation outside banks, and total deposits detained by commercial banks, not including foreign currency deposits. M2 is selected for the reason that it is the monetary aggregate that is estimated to have closest relationship with the rate of inflation. Central Banks usually have influence over reserve money (base money, or central bank money), as stated by Ballali (2004) which is directly connected to money supply in order to control the growth of M2. Reserve money is described as the liabilities of a Central Bank, which consist of currency detained outside banks and banks’ reserves detained by the Central Bank. Taxation and its effect on SMEs: According to Mittah (2009), there are two classifications of SMEs: SMEs formal – these are potential taxpayers who comply with the tax laws, are well structured and keeps records SMEs informal – these are not well structured and have complexities in keeping records. Most of the micro taxpayers fall under informal sector There are advantages in grouping taxpayers, which according to Kimungu and Kileva (2007) include: Simple to manage. Simple to recognize. Simple to educate or counsel on taxation issues. Risk minimization. Higher compliance. The tax system is unfavorable for SMEs development. According to SME Development Policy (2002), the business community has the following perception about Tanzania’s taxes: The rates of taxes are higher in relation to neighboring countries in the region Taxes are many and collected by a variety of authorities including: the Tanzania Revenue Authority (TRA), some Central Government Ministries (e.g. Lands, Natural Resources Environment Tourism Energy and Minerals etc.) and Local government Authorities. These are some of the reasons why entrepreneurs are ignorant of tax matters and the cost of acting in agreement with tax regulations is regarded as high. While taxation of businesses is a requirement for national economic development, the current tax system inflicts a major weight on SMEs. The following are the strategies that are set up in order to promote compliances in paying tax by the SMEs: Simplify tax systems: for SMEs the tax system is considered to be complicated. Simplifying the tax system can promote voluntary compliance in paying tax. Mittah (2009) stated that Tanzania has opted for the introduction of presumptive tax system to reinstate income tax, VAT and stamp duties. Presumptive tax system was set up in July 2004 with the intention of minimizing the problems that are faced by SMEs taxpayers in abiding by with the laws of tax. Introduce tax incentives to foster SMEs: tax incentives like low tax rate to those who comply with the tax laws can encourage SMEs to comply and abide by with the tax laws. The Sustainable Industrial Development Policy - SIDP (1996 - 2020): SME Development Policy (2002) reported that this scheme was set up in order to place specific stress on encouragement of small and medium industries through the following measures: Supporting current and new promotion institutions Simplification of taxation Licensing and registration of SMEs Progress access to financial services. Persuades informal sector businesses to grow and be formalized. TANZANIA REVENUE AUTHORITY (TRA): TANZANIA TRA is one of the government companies that are responsible for the application of the Value Added Tax (VAT) to SMEs in Tanzania. VAT was set up in Tanzania on 1st July 1998. Formerly, VAT was known as Sales Tax, but it was replaced because it was unable to create adequate revenue as it was narrow-based. According to TRA (2010) in Tanzania, there are two valid rates of VAT: Standard rate, which is 20% Zero rate, which is 0%. This is generally valid to exports. TRA (2010) gave the following main reasons for setting up VAT: Widen the tax base Achieve economic neutrality Encourage exports Achieve its administrative advantages According to TRA (2010), small businesses are those with yearly taxable turnover of not more than Tshs.40 million. By 31st December 2004, Tanzania had about 355,750 businesses that were registered as small size businesses. This group contributes about 0.44% to the TRA domestic revenue collections. Medium size businesses are those with the yearly taxable turnover exceeding Tshs.40 million, but whose yearly total domestic tax payments to TRA do not go beyond Tshs.400 million. By 31st December 2004, the businesses that were registered as medium size businesses for VAT were about 6,815. This group contributes about 13.2% to TRA total domestic revenue collection. Businesses whose yearly aggregate tax payments to TRA exceed Tshs.400 million are categorized as large taxpayers. TRA has registered about 200 businesses as large taxpayers, including non VAT registered traders such as banks and insurance companies, which entirely deliver free from VAT services. This group contributes about 18% of TRA total domestic revenue collections. From July to December 2004, about Tshs.2,015.2 million of presumptive tax was accumulated from small businesses. TRA’s target was to accumulated tax amounting to Tshs.2,887.3 million, leading to a performance rate of 70%. The key reason for not accomplishing their target was caused by the administrative complicatedness of monitoring the businesses under the informal sector, who do not keep records. About Tshs.60,084.8 million was accumulated from medium size businesses during the first half of Tanzania’s financial year 2004/5. TRA’s target was to accumulated tax amounting to Tshs.59,212 million, leading to a performance rate of 101%. TRA (2010) stated the following were the reasons for good performance from the medium size businesses: There was close follow-up of monthly tax collections in which the estimated collections are verified by 15th of every month. Recovery of outstanding amount of tax Effective audits Close monitoring of those businesses who do not keep records Tight controls over special free of VAT and VAT repayments Staff training Carrying out of the Departmental Actions Plans The challenges facing Tanzania with respect to taxation of SMEs are in particular to those in the formal sector. Kimungu and Kileva (2007) listed the challenges as: Identification Registration Non compliance Poor of non record keeping Kimungu and Kileva (2007) stated in order to tax SMEs, the TRA has engaged in various activities: Taxpayer education and sensitization Block management system – door to door survey Presumptive approach to taxation Assessment procedures Collection formalities and procedures. Conclusion: An assessment of every feature involved in macro-economy i.e. inflation affects, implications of taxation, role of monetary policy and role of international trade suggest variable results. Research has revealed that the SME sector plays a significant role in the economy of Tanzania. The results showed that a third of the GDP originates from the SME sector and employs approximately 20% of the Tanzanian work force. Research has also shown that SME sector has many challenges, which need to be addressed effectively. Given the significance of the sector and the need to transform it to a vibrant and dynamic one, it is essential to put in place strategies that will ease the elimination of those challenges so that it can achieve the desired results. One of the problems that SMEs in Tanzania face, in relation to monetary policy is limited access to finance. This problem exists because the SME sector is viewed as a high risk and costly to finance sector. In order to try eliminating this challenge, the government in collaboration with other financial institutions developed schemes such as SME-CGS, J.K. Fund, etc. which were set up with a main objective of helping the SME sector to have access finance. SMEs also face challenges with international trade. The challenge is caused by SMEs’ lack of knowledge, information and skills needed to effectively compete in a global environment. Apart from setting up different schemes that tackle this challenge, the government in collaboration with private non-governmental organization (NGOs) also organizes workshops and seminars to sensitize and educate people on how to cope with the existing global challenges. Inflation is considered as one of the factors that get in the way of the growth of SMEs in Tanzania, in a way that it puts off investors. Investors prefer to invest in countries where currencies are stable and rates of inflation are low. The rate of inflation also affects SMEs’ access to finance. A high rate of inflation restricts SMEs from access to finance while a low rate of inflation widens the SMEs’ chances of accessing funds. In order to help the SMEs sector, the central bank of Tanzania has set up a chain of strict fiscal measures to control inflation. The tax system is considered as being unfavorable for SMEs development. Business community perceive the rates of Tanzania taxes as being high, complicated and that taxes are many and collected by a variety of authorities. In order to tackle this problem, the tax system need to be simplified so that the SME sector can understand how the whole system works and introduction of tax incentives to foster the SME sector to comply to tax laws. Read more: http://www.ukessays.com/essays/economics/how-does-macroeconomics-factors-affect-smes-in-tanzania-economics-essay.php#ixzz2wIhEadij