Dear Mr. Nik :
Few years back, I was invited by a cousin to open up a trading business – now a Sdn. Bhd. I have been appointed as the Director to this company and holding some shares in the company as well. My cousin’s friend was the other Director. My willingness to provide my name as a Director was done on a ‘family basis’ and ‘trust’.
On the other hand, my job title is Manager for this trading company and was paid a monthly salary. During my tenure and service in the company, I have signed many documents. I have never questioned or doubted my cousin’s intention and never really bothered to check whatever documents that were being given to me for signing. The trading business has greatly expanded.
Later due to some personal brawls and my observations on some ‘doubtful transactions’, I decided to give up my job and my holdings. I sent a resignation letter to the company secretary but was rejected due to :
I can only resign as a Director when there is another Director to replace me.
The Company Secretary mentioned to me that I cannot simply release the share until the audit/account/annual return has been submitted to the SSM (at the point of my resignation)
The Company Secretary also told me that my name is still listed in the e-perolehan/MOF and it would pose some trouble if there is no declaration given on the changes of Directors.
After my cousin (who is actually not the Director/Shareholder of the company) replaced my name with his wife, I resent the letter to the Company Secretary. My letter stated clearly that as a result of such resignation, all jobs, assignments, shares, liabilities etc. are deemed relinquished but was again rejected and the Company Secretary has altered the letter by stating that I have resigned only as a Director and I’ve signed it.
Together with the letter, there is also a form of 32A – Transfer of Share to the new Director which in this case – is my cousin’s wife. (This form has also been signed by me in the Company Secretary’s presence)
Later, I thought of forming up a Sdn. Bhd. to do another business but before doing so, I consulted another legal practitioner and expressed my problems to him on my previous business. At that time, I just couldn’t shake the feeling that something is wrong and there could be a conspiracy between the Company Secretary and my cousing.
I was told that I should get the printout from SSM to check my status in my previous cousin’s company which I did. To my greatest surprise, I found out that my name as a shareholder has not been dropped except my position a Director.
Encik Nik, what would be your advice on my next action?
Before I go on providing you with my opinion, you must be first be foretold that I am NOT a qualified (chambered) legal practitioner. Despite I do have certain legal backgrounds on paper (cert(s) level(s)) but alas my knowledge of law (including Company Law) has been attributed to my vast experience in many industries, (it also runs in the family as most of my close relatives are renowned legal practitioners as well) besides than having connected to a vast network of consultants including legal practitioners. Thus, you can’t take 100% of my ‘so-called legal opinion’ presented herein as ‘gospel’. You should be referring my answer to your friend lawyer or contact SSM to get more official details.
First of all, I have great sympathy towards your woes. I have many friends that have jumped into this kind of ‘family pits’ and formed up a company based on trust, giving in their names voluntarily as Directors/Shareholders, signing documents without proper checking, not having knowledge on the Company Law, never knowing what are the rights and privileges thereto or the risks and consequences that are incorporated together etc.
But MOST of these cases will likely always end up in big and critical conflicts. And that’s not all, having resigning, innocent people like you may end up in courts for cases that you may not be aware off as well. I’m sad that even close relatives would play tricks on their own family line – brothers and sisters that have caused many great difficulties even have lead to divorces, fights etc. It is pointless to have a PhD or MBA or 20 years corporate experience if you use them (abuse) to cheat/swindle your own kind and to serve only your own ends while other people suffer because of your ‘smart wrongdoings’ (it's like I used to tell off crazy indiscriminate drivers of big cars "You have a big car but you have a SMALL mind - I have a small car but I have a BIG mind")
I will have to go slowly in giving my views :
Although you didn’t mentioned in your mail, I would presume that you have also resigned as the Manager of the company as well. Your resignation in the capacity of Manager is not a problem as this is being referred to the Employment Act 1955, Industrial Relations, your terms and conditions of employment etc.
Unless there is a breach in this case, then you should be referring your case to IR office (I presume your salary scale is > RM1500.00) Alas, I won’t go too far on this one but it is OK for you to check against these Laws and your Terms and Conditions in case of any possible breach (you should also look into other angles e.g. during your tenure and service with the company, has there been statutory deductions like EPF or SOCSO being made)
Your resignation in the capacity of Director and Shareholder is governed by Company’s Act, 1965.
As you didn’t tell me clearly what were the nature of ‘personal brawls’ (it helps to know cos’ sometimes the brawls may be interrelated to company matters) that you have undergone and also what kind of ‘doubtful transactions’ that have raised suspicion to you, then I would provide a general answer to match your queries but again I should remind you that you must refer to the right parties.
Yes, it is true that there must be another Director (at least 2 of them) when you talk about Sdn. Bhd. So is the next and explanation on relinquishing the shares on the condition that annual return must be submitted first AND the MOF/e-perolehan issue.
What I don’t understand are :
a. Why did your Company Secretary accepted and altered your resignation letter contents (as a Director) which he ‘devised’ to take out the relinquishment of shares as well when the 32A Form (Actually – it’s called Transfer of Securities) has also been signed in his presence?
b. And that when you got the SSM printout, you found out that your position as a shareholder has never been dropped? This can only mean one thing, the Company Secretary NEVER submitted the 32A.
c. I also need to know – in usual case – when you got the printout, there should also be some statements on status of annual return/audit submission. Can you tell me exactly, the date/year, what are the contents – anything would help.
In my personal opinion, the Company Secretary is the person at fault.
a. It is a must that the Company Secretary provides adequate training on issues of Directorship for new Directors – things like, what are their rights, what are their risks etc. It is clear; based on your letter; that the Company Secretary did not find enough time to train you on these matters and that you only knew when you have resigned. He’s a Company Secretary alright but he’s not ethical and not transparent (not to mention your cousin)
b. Find ALL the Company Resolutions that you may have signed (without checking) and clearly write to me ALL the contents of the resolutions (remember, ALL Resolutions no matter how insignificant they maybe)
c. I’m so sure that you have been given (certified) copies of all documentations related to you being one of the Director/Shareholder of the Company. If NOT, bring the printout to the Company Secretary and INSIST him to provide you with the print out. If he start giving you the old lame 'technical' excuses or trying to 'extort'/'frighten' you with some 'latin terminologies', you should consider taking up legal actions against both the Company Secretary and your cousin. It would also help if you could do a declaration of what really transpired and use this in case you have to go to the court to settle the issue. (May the force be with you!)
d. What I’m really concerned is ONE unknown possibility that might befall you in the future as ‘still as a shareholder’ of your cousin’s company - You must be able to access transactions especially those related to BANK LOANS, see the bank statements etc. I’m sorry to say that my hunch says that your cousin & the company secretary ARE really ‘up to no good’
e. Try to get some background information of your cousin (as it is funny that he didn’t use his name as a Director)
f. There is also a possibility that you should postpone your plan to incorporate a new Sdn. Bhd. company as the above issues may affect your application/approval of your future company…trust me…go one by one first.
I reckon that you have NEVER been really told about all these things during the tenure and service as a Director/Shareholder. It is a potential severe case and you MUST seek legal help as soon as possible – taking into account getting SSM’s assistance as well.
You should also write to MOF telling them your situation.
I know these actions are very hard to do due to the fact that it may jeopardize family relationships that you have with your cousin, your aunts/uncles etc. But you MUST act fast as your and your family’s future may depend on it.
Your case also reminded me of something :
I have been egoistically told by a Company Secretary once that Corporate Governance training only involved Public Listed/Berhad companies and not meant for Sdn. Bhd. (Pte. Ltd.) – as if that I don’t know. I gave him a long lecture as my response among others:
“So, you are promoting a ‘small mind’ for Sdn. Bhd. directors that they should stay put as Sdn. Bhd. and prohibited to a vision to be ‘Public Listed’ one day (to expand maybe)
“And that you are implying that Sdn. Bhd. Directors’ should NOT know corporate governance or a guy like me should not touch on the issue as it is NOT related to me?
“And that my inquisitiveness to gain knowledge should be limited and blocked because Corporate Goverance has nothing to do with me – What a typical mindset – no wonder your business NEVER expands!!”
I would like to take the opportunity to tell all Global Malaysians esp. those in Malaysia to be aware when it comes to this kind of dealings. Be careful. Always know your rights, buy legal books, read them – don’t be too naïve or too trusty even when it comes to family members. And; less but not least; remember - YOU are paying the Company Secretary for his/her services making YOU automatically reserve every rights as customers/clients TO KNOW EVERYTHING and the Company Secretary MUST oblige to your instructions and not vice-versa.