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Consolidated Acts of Samoa 1996 |
LAWS OF WESTERN SAMOA
INDUSTRIAL AND PROVIDENT SOCIETIES ACT 1966
ANALYSIS
TITLE
PART I
PRELIMINARY
1. Short title
2. Interpretation
3. Registrar of Industrial and Provident Societies
4. Deputy Registrar of Industrial and Provident Societies
5. Registers to be kept
PART II
REGISTRATION OF SOCIETIES AND MATTER INCIDENTAL THERETO
6. Purposes of societies which may be registered
7. Limitation on registration of societies
8. Name of society
9. Registration of societies and rules
10. Appeals against refusal to register a society or any rules
11. Cancelling and suspension of registration
12. Rules
13. Registration of amendments to rules and appeals against refusal to register
14. Duties and obligations of societies
15. Offences
16. Form and deposit of returns and documents
17. Privileges of societies
18. Nominations and payments or transfers on death
19. Transfer of assets on disability of trustee
20. How contracts may be made
21. Property and funds of societies
22. Protection of bona fide lenders
23. Officers in receipt and charge of money
PART III
REGISTRATION OF CHARGES WITH REGISTRAR
24. Interpretation
25. Registration of charges created by societies
26. Unregistered charges to be void in certain cases
27. Duty of society to register charges existing on property acquired
28. Register of charges to be kept by Registrar
29. Endorsement of certificate of registration on debentures
30. Entries of satisfaction and release of property from charge
31. Rectification of register of charges
32. Registration of enforcement of security
SOCIETY TO KEEP COPIES OF INSTRUMENTS CREATING CHARGES
AND REGISTER OF CHARGES
33. Copies of instruments creating charges to be kept by society.
34. Society's register of charges
35. Right to inspect copies of instruments creating charges and society's register of charges
PART IV
DEBENTURES
36. Rights of inspection of register of debenture holders and to copies of register and trust deed
37. Liability of trustees for debenture holders
38. Perpetual debentures
39. Prohibiting reissue of redeemed debentures
40. Specific performance of contracts to subscribe for debentures
41. Payment of certain debts out of assets subject to floating charge in priority to claims under the charge
PART V
MISCELLANEOUS
42. Disputes
43. Inspection of affairs
44. Special resolutions
45. Change of name, amalgamation, transfer of engagements or conversion of society into company
46. Conversion of company into society
47. Application of Companies Act to winding up and dissolution of societies
48. Further offences and penalties
49. Where proceedings may be taken
50. Procedure on application to Magistrate's Court
51. Appointment of auditors
52. Regulations as to fees
53. Other regulations
54. Evidence of documents
Schedules
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THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT 1968
1968, No. 6
AN ACT to provide for the registration, status, control and administration of Industrial and Provident Societies.
(29 July 1968
PART I
PRELIMINARY
1. Short title - This Act may be cited as the Industrial and Provident Societies Act 1968.
2. Interpretation - In this Act, unless the context otherwise requires:
"Act" includes Ordinance.
"Amendment of rule" includes a new rule and a resolution rescinding a rule.
"Bill of exchange" means an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person or to bearer:
PROVIDED THAT an instrument that does not comply with these conditions, or that orders any act to be done in addition to the payment of money, is not a bill of exchange:
PROVIDED also an order to pay out of a particular fund is not unconditional within the meaning of this definition but an unqualified order to pay, coupled with:
(a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be debited with the amount; or
(b) a statement of the transaction giving rise to the bill, is unconditional.
"Committee" means the committee of management or other directing body of a society.
"Department" means the Department of Justice.
"Land" includes hereditaments and chattels real.
"Meeting" includes (when the rules of a society so allow) a meeting of delegates appointed by members.
"Minister" means the Minister of Justice.
"Officer" includes any trustee, treasurer, secretary and member of the committee, of a society, and any manager and servant of a society, other than a servant appointed by the committee of a society.
"Persons claiming through a member" include the executors, administrators and assigns of a member and also his nominees where nomination is allowed.
"Prescribed" means prescribed by this Act or the regulations.
"Promissory note" means an unconditional promise in writing made by one person to another, signed by the maker engaging to pay on demand, or at a fixed or determinable future time; a sum certain in money to or to the order of a specified person or to bearer:
PROVIDED THAT an instrument in the form of a note payable to maker's order is not a note within the meaning of this definition unless and until it is endorsed by the maker:
PROVIDED also a note is not invalid by reason only that it contains also a pledge of collateral security, with authority to sell or dispose thereof.
"Property" means all real and personal estate (including books and papers).
"Registered society" means a society registered under this Act.
"Registrar" means the Registrar of Industrial and Provident Societies appointed pursuant to section 3 of this Act, and includes any person lawfully from time to time acting as the Registrar.
"Regulations" mean regulations made under this Act.
"Rules" mean rules for the time being of a society.
3. Registrar of Industrial and Provident Societies - (1) For the purposes of this Act there shall from time to time be appointed by the Public Service Commission of Western Samoa as an officer of the Department a Registrar of Industrial and Provident Societies.
(2) The office of Registrar may be held in conjunction with any other office in the Department.
(3) This Act shall be administered by the Registrar and the Department under the control of the Minister.
4. Deputy Registrar of Industrial and Provident Societies - (1) There may also from time to time be appointed by the Public Service Commission of Western Samoa as an officer of the Department a Deputy Registrar of Industrial and Provident Societies, who shall, under the control of the Registrar, perform such official duties as he is called upon to perform by the Registrar.
(2) On the occurrence from any cause of a vacancy in the office of the Registrar (whether by reason of death, resignation or otherwise), and in case of the absence from duty of the Registrar (from whatever cause arising), and so long as any such vacancy or absence continues, the Deputy Registrar shall have and may exercise all the powers, duties and functions of the Registrar.
(3) The fact that the Deputy Registrar exercises any power, duty or function as aforesaid shall be conclusive evidence of his authority to do so, and no person shall be concerned to inquire whether the occasion has arisen requiring or authorising him to do so.
5. Register to be kept - The Registrar shall cause to be kept such registers as are prescribed and subject thereto as he considers necessary, in which shall be recorded all matters required by this Act or by the regulations to be recorded by the Registrar.
PART II
REGISTRATION OF SOCIETIES AND MATTERS INCIDENTAL THERETO
6. Purposes of societies which may be registered - Subject to section 7 of this Act, a society which may be registered under this Act (herein called "an industrial and provident society") is a society for carrying on any industry, business or trade, whether wholesale or retail, specified in or authorised by its rules, including dealings of any description with land, but excepting the business of banking.
7. Limitation on registration of societies - (1) In this section the term "co-operative society" does not include a society which carries on, or intends to carry on, business with the object of making profits mainly for the payment of interest, dividends or bonuses on money invested or deposited with, or lent to, the society or any other person.
(2) Notwithstanding anything to the contrary in section 6 of this Act, a society may not and shall not be registered under this Act unless it is shown to the satisfaction of the Registrar:
(a) That the society has at least 7 members; and
(b) That no member other than a registered society has or claims any interest in the shares of the society exceeding a nominal value of $600; and either
(c) That the society is a bona fide co-operative society; or
(d) That there are special reasons why the society should be registered under this Act, rather than as a company under the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ), in the fact that the business of the society is being, or is intended to be conducted:
(i) Mainly for the purpose of improving the conditions of living, or otherwise promoting the social well being of members of the working classes; or
(ii) Otherwise for the benefit of the community.
8. Name of society - (1) No society shall be registered under a name which is identical with that of any other society registered under this Act, or of a company carrying on business in Western Samoa (whether registered in Western Samoa or not), or of any other body corporate established or registered in Western Samoa under any Act, or which so nearly resembles that name as to be calculated to deceive, except where that other society or company or body corporate, as the case may be, signifies its consent in such manner as the Registrar requires, and the Registrar is satisfied that registration of the society by the proposed name will not be contrary to the public interest.
(2) The words "Society Limited" shall be the last words in the name of every society registered under this Act.
(3) Where it is shown to the satisfaction of the Registrar that a society is a bona fide co-operative society, the name by which the society may be registered under this Act may include the word "Co-operative", but that word shall be deleted from the name of the society if.
(a) The society has its registration cancelled; or
(b) The Registrar notifies the society that, in his opinion, it has ceased to be a bona fide co-operative society.
9. Registration of societies and rules - (1) Any society desiring to have itself and its rules registered under this Act shall send to the Registrar an application to register the society, signed by 7 members and the secretary, and 3 written or printed copies of the rules.
(2) The Registrar, on being satisfied that a society has complied with the provisions as to registration of itself and its rules under this Act, shall issue to that society an acknowledgement of registration in the form numbered (1) in the Third Schedule hereto.
(3) If the refusal or registration is overruled on appeal, the Registrar shall thereupon register the society or rules, as the case may be, and give acknowledgement of registration to the society.
10. Appeals against refusal to register a society or any rules - (1) If the Registrar refuses to register a society, or any rules, the society may appeal from such refusal to the Supreme Court by filing a notice of appeal in that Court stating shortly the grounds of appeal and serving a copy thereof on the Registrar, within 14 days after receiving notice of the Registrar's refusal, or within such further period as that Court may allow, on application made before or after the expiration of that period of 14 days.
(2) Rules as to the form of appeals and the trying thereof and otherwise relating thereto may be made in the manner set out in section 40 of the Judicature Ordinance 1961.
(3) An acknowledgement of registration shall be conclusive evidence that the society therein mentioned is duly registered, unless it is proved that the registration of the society has been suspended or cancelled.
11. Cancelling and suspension of registration - (1) The Registrar may cancel the registration of a society by writing under his hand:
(a) If he thinks fit, at the request of a society, to be evidenced in such manner as he from time to time directs; or
(b) With the approval of the Head of State, acting on the advice of the Minister, on proof to his satisfaction that an acknowledgement of registration has been obtained by fraud or mistake, or that a society exists for an illegal purpose, or has wilfully, and after notice from the Registrar, violated any of the provisions of this Act; or
(c) If he has reasonable cause to believe that the society has ceased to exist.
(2) The Registrar, in any case in which he might, with the approval of the Head of State, acting on the advice of the Minister, cancel the registration of a society, may suspend the same by writing under his hand for any term not exceeding 3 months, and may, with the approval of the Head of State, acting on the advice of the Minister, renew such suspension from time to time for the like period.
(3) Not less than 2 months' previous notice in writing, specifying briefly the ground of any proposed cancelling or suspension of registration, shall be given by the Registrar to a society before the registration of the same can be cancelled (except at its request) or suspended; and notice of every cancelling or suspension shall be published in some newspaper circulating in Western Samoa, as soon as practicable after the same takes place.
(4) A society may appeal from the cancelling of its registration or (when the same has been suspended for 2 consecutive periods not exceeding 6 months in the whole) against any renewal of suspension, in manner herein provided for appeal from the Registrar's refusal to register.
(5) A society whose registration has been suspended or cancelled shall, from the time of such suspension or cancelling (but, if suspended, only while such suspension lasts, and subject also to the right of appeal hereby given) absolutely cease to enjoy as such the privileges of a registered society, but without prejudice to any liability actually incurred by that society; which may be enforced against that society as if such suspension or cancelling had not taken place.
12. Rules - (1) The miles of every society sent for registration shall contain provisions in respect of all the several matters mentioned in the First Schedule hereto, and shall not be valid until the same have been registered under this Act.
(2) The rules of every society shall bind the society and all members thereof, and all persons claiming through them respectively, to the same extent as if each member has subscribed his name or set its seal thereto, and there were contained in such rules a covenant on the part of himself, his executors or administrators, to conform thereto, subject to the provisions of this Act.
13. Registration of amendments to rules and appeals against refusal of register - (1) Three written or printed copies of any amendment of a rule made by a registered society, signed by 3 members and the secretary, shall be sent to the Registrar, and no such amendment shall be valid until it has been registered under this Act.
(2) The Registrar shall, on being satisfied that any amendment of a rule is not contrary to the provisions of this Act, issue to the society an acknowledgement of registration of the same in the form numbered (2) in the Third Schedule hereto, which shall be conclusive evidence that the same is duly registered.
(3) The provisions contained in section 10 of this Act as to an appeal from a refusal of registration of a society or its rules shall apply to a refusal to register an amendment of a rule.
14. Duties and obligations of societies - Every society shall:
(a) Have a registered office, to which all communications and notices may be addressed, and shall send to the Registrar notice of the situation of such office, and of every change therein; and
(b) Paint or affix, and keep painted or affixed, its name on the outside of every office or place in which the business of the society is carried on, in a conspicuous position in letters easily legible, and have its name engraved in legible characters on its seal, and have its name mentioned in legible characters in all notices, advertisements, and other official publications of the society; and in all bills of exchange, promissory notes, endorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of the society, and in all invoices, receipts, and letters of credit of the society; and
(c) Deliver a copy of its rules to any person, on demand, on payment of a sum not exceeding 50 sene; and
(d) Once at least in every year submit a general statement (to be called the annual return) comprising at least an income and expenditure account of the society, which shall show separately the expenditure in respect of the several objects of the society, and a balance sheet of the society, both of which shall be made out to the date of the annual balance, for audit, either to an auditor or auditors appointed under section 51 of this Act or to 2 or more persons appointed as the rules of the society provide, who shall have access to all the books and accounts of the society, and shall examine the annual return, and verify the same with the accounts and vouchers relating thereto, and shall either sign the same as found by them to be correct, duly vouched and in accordance with law, or specially report to the society in what respects they find it incorrect, unvouched, or not in accordance with law, and
(e) Within 3 months after the date of the annual balance of the society's accounts send to the Registrar the annual return as audited, and state whether the audit has been conducted by an auditor or auditors appointed under section 51 of this Act, and by whom, and, if any person other than an auditor so appointed, state the name address, and calling or profession of each such person, and the manner in which and the authority under which he is appointed and together therewith send a copy of the auditor's report; and
(f) Allow any member or person having an interest in the funds or effects of the society to inspect the books and names of the members at all reasonable hours at the registered office of the society, or at any place where the same are kept, subject to such regulations as to the time and manner of such inspection as may be made from time to time by the general meetings of the society, except that no such member or person, unless he is an officer of the society, or is specially authorised by a resolution thereof, shall have the right to inspect a loan or deposit account of any other member without the written consent of that other member; and
(g) Supply gratuitously to every member or person interested in the funds or effects of the society, on his application, a copy of the last annual return of the society for the time being; and
(h) Keep a copy of the last balance sheet for the time being, together with the report of the auditors, always hung up in a conspicuous place at the registered office of the society.
15. Offences - (1) If any person, with intent to mislead or defraud, gives to any other person a copy of any rules, or other documents, other than rules for the time being registered under this Act, on the pretence that the same are existing rules of a registered society, or that there are no other rules of that society, or gives to any person a copy of any rules on the pretence that those rules are the rules of a registered society when that society is not registered, the person so offending commits an offence, and is liable to a fine not exceeding $100, or to imprisonment for any term not exceeding one year.
(2) It shall be an offence against this Act if any registered society:
(a) Fails to give any notice, send any return or document, or do or allow to be done any act or thing which the society is by this Act required to give, send, do, or allow to be done; or
(b) Wilfully neglects or refuses to do any act or to furnish any information required for the purposes of this Act by the Registrar or other person authorised under this Act, or does any act or thing forbidden by this Act; or
(c) Makes a return, or wilfully furnishes information, in any respect false or insufficient.
(3) Every offence by a society against this Act shall be deemed to have been also committed by every officer of the society bound by the rules thereof to fulfil the duty whereof of such offence is a breach, or if there is no such officer, then by every member of the committee of the society, unless such member is proved to have been ignorant of or to have attempted to prevent the commission of such offence; and every act or default under this Act constituting an offence, if continued, shall constitute a new offence in every week during which the same continues.
16. Form and deposit of returns and documents - (1) Every return and other document required for the purposes of this Act shall be made in such form and shall contain such particulars as are prescribed and subject thereto as the Registrar requires.
(2) All returns and documents required by section 14 of this Act to be sent to the Registrar shall be deposited by the Registrar with the rules of the society to which the same respectively relate, and shall be registered, or recorded by the Registrar, with such observations thereon (if any) as the Registrar directs.
17. Privileges of societies - Registered societies shall be entitled to the following privileges:
(a) The registration of a society shall render it a body corporate by the name described in the acknowledgement of registration, by which it may sue and be sued, with perpetual succession and a common seat, and with limited liability, and shall vest in the society all property for the time being vested in any person in trust for the society; and all legal proceedings pending by or against the trustees of any such society may be prosecuted by or against the society in its registered name without abatement;
(b) Stamp duty shall not be chargeable upon any of the following documents:
(i) Power, warrant or letter of attorney granted by any person as trustee for the transfer of any money of the society invested in his name in any debentures, bonds, or Treasury bills issued under any Act;
(ii) Order for money contributed to the funds of the society by virtue of its rules or of this Act;
(iii) Bond given to or on account of the society, or by the treasurer or other officer thereof;
(iv) Draft or order, or appointment or revocation of appointment of agent, or other document required or authorised by this Act or by the rules of the society;
(c) All money payable by a member to the society shall be a debt due from that member to the society, and recoverable as such in the Magistrate's Court, either in or nearest to the locality in which the registered office of the society is situated or in which that member resides, at the option of the society;
(d) A person under the age of 21 but aged 16 or more, may be a member of a society, unless provision is made in the rules of the society to the contrary, and may, subject to the rules of the society, enjoy all the rights of a member (except as herein provided), and execute all instruments and give all acquittances necessary to be executed or given under the rules but shall not be a member of the committee of management, or a trustee, manager or treasurer of the society;
(e) Any other body corporate may, if its regulations permit, hold shares by its corporate name in a society;
(f) Any register or list of members or shares kept by any society shall be prima facie evidence of any of the following particulars entered therein:
(i) The names, addresses, and occupations of the members, the number of shares held by them respectively, the numbers of such shares if they are distinguished by numbers, and the amount paid up or agreed to be considered as paid up on any such share; and
(ii) The date at which the name of any person, company, or society was entered in such register or list as a member; and
(iii) The date at which any such person, company, or society ceased to be a member.
18. Nomination and payments or transfers on death - (1) A member of a society, not being under the age of 16 years, may, by writing under his hand delivered at or sent to the registered office of the society, nominate any person, not being an officer or servant of the society (unless such officer or servant is the husband, wife, father, mother, child, brother, sister, nephew, or niece of the nominator), to whom his shares in the society (provided that the paid up value thereof does not exceed $600) shall be transferred at his death; and may from time to time revoke or vary such nomination by a writing under his hand similarly delivered or sent, but not otherwise.
(2) Every such society shall keep a book wherein the names of all persons so nominated shall be regularly entered.
(3) The shares comprised in any such nomination shall be transferable to the nominee although the rules of their society declare its shares to be generally not transferable.
(4) On receiving satisfactory proof of the death of a nominator, the committee of the society shall at its option either transfer the shares in manner directed on such nomination, or pay to every person entitled thereunder the full paid up value of his interest, unless the shares if transferred to any such nominee would raise his nominal interest in the shares of the society to an amount exceeding $600, in which case the committee shall pay to him the full paid up value of such shares not exceeding $600.
(5) If any member of a society entitled to shares in the society of a paid up value not exceeding $600 dies without having made any nomination under this Act which remains unrevoked at his death, such interest shall be transferable, without probate or letters of administration, to or among the persons who appear to a majority of the committee, upon such evidence as they may deem satisfactory, to be entitled by law to receive the same.
(6) Whenever the committee, after the death of any member, makes any payment, or transfer to any person who at the time appears to them to be entitled under this section, the payment or transfer shall be valid and effectual against any demand made upon the committee or the society by any other person.
19. Transfer of assets on disability of trustee - (1) When any person in whose name any funds, debentures, securities or money belonging to a society are standing vested, as a trustee therefor, either jointly with another or others, or solely is absent from Western Samoa, or becomes bankrupt, or executes any deed for liquidation of his affairs by assignment or arrangement, or for composition with his creditors, or whose estate is liquidated under any Act for the relief of debtors, or becomes a mentally defective person, or is convicted of a crime for which the maximum penalty provided by law exceeds one year's imprisonment, or is dead, or has been removed from his office of trustee, or if it is unknown whether such person is living or dead, the Registrar, on application in writing from the secretary and 3 members of the society, and on proof satisfactory to him, may direct the transfer of such funds, debentures, securities or money to the society or into the names of any other persons appointed by the society as trustees; and such transfer shall be made by the surviving or continuing trustees; and if there are no such trustees, or if such trustees refuse or are unable to make such transfer, the Registrar may direct that where such funds, debentures, securities or money:
(a) Are standing in the books of the Minister of Finance, or are under his control, such transfer be made by the Minister of Finance, or some officer of the Government to be named in the order;
(b) Are standing in the books of or are in the control of any bank or banking corporation, or other corporation or body, such transfer be made by some officer of such bank or banking corporation or other corporation or body to be named in the order;
(c) Are standing in the books or are in the hands or control of any other person or persons, such transfer be made by such other person or persons.
(2) The Minister of Finance and every such bank and banking corporation, and all corporations, companies, and persons, and their officers and servants respectively, are hereby indemnified against any claim or demand of any person injuriously affected by anything done by him or them, or any of his or their officers, in pursuance of any direction of the Registrar under the provisions of subsection (l) of this section.
20. How contracts may be made - (1) Contracts on behalf of the society may be made, varied, or discharged as follows:
(a) Any contract which if made between the private persons would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the society in writing under the common seal of the society, and may in the same manner be varied or discharged;
(b) Any contract which if made between private persons would be by law required to be in writing, and signed by the persons to be charged therewith, may be made on behalf of the society in writing either under the common seal or signed by any person acting under the express or implied authority of the society, and may in the same manner be varied or discharged;
(c) Any contract under seal which if made between private persons might be varied or discharged by a writing not under seal signed by any person interested therein may be similarly varied or discharged on behalf of the society by writing not under seal signed by any person acting under the express or implied authority of the society;
(d) Any contract which if made between private persons would be by law valid though made by parol only, not reduced into writing, may be made by parol on behalf of the society by any person acting under the express or implied authority of the society, and may in the same manner be varied or discharged.
(2) A signature purporting to be made by a person holding any office in the society attached to a writing whereby any contract purports to be made, varied or discharged by or on behalf of the society, shall prima facie be taken to be the signature of a person holding at the time when the signature was made the office so stated.
(3) A promissory note or bill of exchange shall be deemed to have been made, accepted or endorsed on behalf of a society if made, accepted or endorsed in the name of the society, or by or on behalf or on account of the society by any person acting under the authority of the society.
(4) All contracts which may be or have been made, varied or discharged according to the provisions herein contained shall so far as concerns the form thereof, be effectual in law and binding on the society and all other parties thereto, their executors or administrators, as the case may be.
21. Property and funds of societies - (1) A society may (if its rules do not direct otherwise) invest the funds of the society or any part thereof, to any amount, in any of the following ways:
(a) In the purchase or lease, in its own name, or any land or buildings, and may hold, sell, exchange, mortgage, lease or build upon the same (with power to alter and pull down buildings and rebuild); and no purchaser, assignee, mortgagee or tenant shall be bound to inquire as to the authority for any sale, exchange, mortgage or lease by the society, and the receipt of the society shall be a discharge for all money arising from or in connection with such sale, exchange, mortgage or lease;
(b) In the Post Office Savings Bank, or in the Bank of Western Samoa Savings Bank, or in such other bank or banks as the Head of State, acting on the advice of Cabinet, may from time to time direct;
(c) In any debentures, bonds or Treasury bills issued by or on behalf of the Government under the authority of any Act;
(d) Upon any other security expressly directed by the rules of the society.
(2) The rules may provide for the advancing of money by the society to members on the security of real or personal property or without security.
(3) The society may, if its rules so allow, invest any part of its capital in the shares or on the security of any other society registered under this Act or of any company registered under the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ) or incorporated by any Act:
PROVIDED THAT:
(a) No such investments shall be made in the shares of any society or company other than one with limited liability; and
(b) A society so investing may make such investment in its registered name, and shall be deemed to be a person within the meaning of the Companies Act aforesaid.
(4) In the rules or any schedule thereto may be set forth the forms of conveyance, surrender, mortgage, transfer, agreement, bond or other instrument necessary for carrying the purposes of the society into effect.
(5) The profits of the society may be applied to any lawful purpose.
(6) A receipt under the hands of 3 members of the committee, countersigned by the secretary, in the form numbered (2) in the Second Schedule hereto, or in any form specified by the rules of the society or any schedule thereto, for all money secured to the society by any mortgage or other assurance shall vacate the same, and vest the property therein comprised in the persons entitled to the equity of redemption of the same without reconveyance or resurrender.
(7) Every society shall from time to time forward to the Registrar of Land appointed pursuant to the Samoa Land Registration Order 1920 (NZ) a return setting forth the names of every member of the committee and of the secretary; and also notice in writing of the death, resignation or removal of existing, and the appointment of new, members and secretary respectively; and also a copy of the rules and of every amendment thereof. Every such return and notice shall be accompanied by a statutory declaration made by the secretary or a member of the committee stating that the declarant is the secretary or a member of the committee and verifying the statement contained in such return or notice. When any instrument is presented for registration affecting the land included in any mortgage or encumbrance registered under the Samoa Land Registration Order 1920 (NZ) and purports to be signed by 4 persons, 3 of whom appear to the Registrar of Land to be members of the committee and the other the secretary, of the society at the time of the execution of such instrument, he shall register the same, and no person claiming under any such instrument shall be affected by notice, direct or constructive, that the persons signing the same were not such members or secretary respectively, nor that such instrument was executed in contravention of the rules of the society or the terms of the mortgage or encumbrance.
(8) If any person obtains possession by false representation or imposition of any property of a society, or having the same in his possession withholds or misapplies the same, or wilfully applies any part thereof to purposes other than those expressed or directed in the rules of the society and authorised by this Act, he shall, on the complaint of the society, or of any member authorised by the society or committee, or of the Registrar, be liable to a fine not exceeding $100, and to be ordered to deliver up all such property or to repay all money applied improperly, and in default of such delivery or repayment, or of the payment of any fine and costs, to be imprisoned for any term not exceeding 6 months, but nothing herein shall prevent any such person from being proceeded against by way of information under any other Act if not previously convicted of the same offence under the provisions of this Act.
22. Protection of bona fide lenders - A member or other person who in good faith lends money to or deposits money with a registered society shall not be bound to see to the application thereof or that the society has not exceeded its borrowing limit.
23. Officers in receipt or charge of money - (1) Every officer, if the rules of the society require, shall, before taking upon himself the execution of his office, become bound with one sufficient surety at the least in a bond in the form numbered (l) in the Second Schedule hereto, or give the security of a guarantee society, in such sum as the society directs, conditioned for his rendering a just and true account of all money received and paid by him on account of the society at such times as its rules appoint, or as the society or committee requires him to do so, and for the payment by him of all sums due from him to the society.
(2) Every officer, his executors or administrators, shall, at such times as by the rules of the society he should, render account, or, on demand made or notice in writing given or left at his last or usual place of residence, give in his account, as may be required by the society or committee, to be examined and allowed or disallowed by the society or committee; and shall, on the like demand or notice, pay over all money and deliver all property for the time being in his hands or custody to such person as the society or the committee appoints; and in case of any neglect or refusal to deliver such account, or to pay over such money or to deliver such property in manner aforesaid, the society may sue upon the bond or security aforesaid, or may apply to the Magistrate's Court in or near to the locality in which the registered office of the society is situated, and the order of such Court shall be final and conclusive.
PART III
REGISTRATION OF CHARGES WITH REGISTRAR
24. Interpretation - (1) In this Part of this Act, unless the context otherwise requires:
"Charge" includes a mortgage.
"Debenture" includes debenture stock, bonds, and any other securities of a registered society, whether constituting a charge on the assets of the society or not.
(2) For the purposes of this Part of this Act, land held by a registered society under an agreement for sale and purchase shall be deemed to be the property of the society subject to a charge created by the agreement, and securing the balance of the purchase money for the time being unpaid.
25. Registration of charges created by societies - (1) This section applies to the following charges:
(a) A charge for the purpose of securing any issue of debentures;
(b) A charge on uncalled share capital of the society;
(c) A charge created or evidenced by an instrument which, if executed by an individual, would require registration under the Chattels Transfer Act 1975;
(d) A floating charge on the undertaking or property of the society;
(e) A charge on land, wherever situated, or any interest therein owned by the society;
(f)A charge on book debts of the society;
(g)A charge on calls made by the society but not paid;
(h) A charge on a ship or any share in a ship, owned by the society;
(i) A charge on goodwill, on a patent or a licence under a patent, on a trade mark, or on a copyright or a licence under a copyright, owned by the society.
(2) Where a registered society creates any charge to which this section applies, it shall be the duty of the society, within the time prescribed by subsection (3) of this section, to cause a copy of the instrument by which the charge is created or evidenced to be delivered to the Registrar for registration in manner required by this Part of this Act. Every such copy shall be accompanied by a statutory declaration as to the execution of the instrument and verifying the copy as a true copy:
PROVIDED THAT is the instrument by which the charge is created or evidenced is registered under any Act other than this Act it shall be sufficient compliance with the requirements of this subsection if, within the time prescribed as aforesaid, particulars of the instrument sufficient to identify it, and such other particulars (if any) as may be prescribed, are delivered to the Registrar for registration.
(3) Instruments required to be registered in accordance with the foregoing provisions of this section shall, in the case of instruments executed in Western Samoa be so registered within 21 days after the date of the execution thereof; and, in the case of instruments executed outside Western Samoa, within 3 months after the date of execution.
(4) Where a charge is created in Western Samoa but comprises property situate outside Western Samoa, a copy of the instrument creating or purporting to create the charge must be sent for registration under this section notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.
(5) Where a negotiable instrument has been given to secure the payment of any book debts of a registered society the deposit of the instrument for the purposes of securing an advance to the society shall not for the purposes of this section be treated as a charge on those book debts.
(6) The holding of debentures entitling the holder to a charge on land shall not for the purposes of this section be deemed to be an interest in land.
(7). Where a series of debentures containing, or giving by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a registered society, it shall for the purposes of this section be sufficient if there are delivered to or received by the Registrar within 21 days, or 3 months, as the case may be, after the execution of the deed containing the charge, or, if there is no such deed, after the execution of any debenture of the series, the following particulars:
(a) The total sum secured by the whole series; and
(b) The dates of the resolutions authorising the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and
(c) A general description of the property charged; and
(d) The names of the trustees, if any, for the debenture holders,-
together with a copy of the deed containing the charge, or, if there is no such deed, a copy of one of the debentures of the series, in either case accompanied by a statutory declaration as required by subsection (2) of this section.
PROVIDED THAT, where more than one issue is made of debentures in the series, there shall be sent to the Registrar for entry in the register, particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.
(8) Where any commission, allowance or discount has been paid or made either directly or indirectly by a registered society to any person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally, for any debentures of the society, or procuring or agreeing to procure subscriptions whether absolute or conditional, for any such debentures the particulars required to be sent for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount or allowance so paid or made, but permission to do this shall not affect the validity of the debentures issued:
PROVIDED THAT the deposit of any debentures as security for any debt of the society shall not for the purposes of this subsection be treated as the issue of the debentures at a discount.
(9) Registration of any charge under this section may be effected on the application of any person interested therein. Where registration is effected on the application of some person other than the society, that person shall be entitled to recover from the society, the amount of any fees properly paid by him to the Registrar on the registration.
(10) If any registered society makes default in sending to the Registrar for registration a copy of the instrument creating or evidencing any charge created by the society, or the particulars of the issues of debentures of a series, requiring registration as aforesaid, then unless the registration has been effected on the application of some other person, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding $50 for every day during which the default continues.
(11) Save as provided in subsection (13) of this section, all persons shall be deemed to have notice of a security granted wholly or partly upon chattels by a society registered under this Act, and of the contents of such security so far as it relates to chattels, immediately upon the registration of that security in the manner provided by this Part of this Act.
(12) Except as provided in subsection (11) of this section, registration under this Part of this Act of any instrument shall not of itself constitute notice to any person of the contents of that instrument.
(13) Registration under this Part of this Act of any instrument to which subsection (11) of this applies shall not in itself constitute notice of the existence of that instrument or of its contents to the grantee of any prior registered instrument relating to the same chattels or to any of those chattels.
26. Unregistered charges to be void in certain cases - (1) This section applies to every charge created and required to be registered under section 25 of this Act, other than charges registrable under any Act other than this Act.
(2) Subject to the provisions of this Act, every charge to which this section applies shall, so far as any security on a society's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the society, unless the charge is registered in the manner and within the time prescribed by section 25 of this Act or, if the time for registration is extended under section 31 of this Act, then within the extended time, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this subsection the money secured thereby shall immediately become payable.
(3) A charge created outside Western Samoa and registered more than 21 days after the execution of the instrument creating or evidencing the charge, but within 3 months after the execution thereof shall, as to the property in Western Samoa, take effect subject to any rights acquired before the registration thereof:
27. Duty of society to register charges existing on property acquired - (1) Where a registered society acquires any property which is subject to a charge of any kind as would if it had been created by the society after the acquisition of the property, have been required to be registered under this Part of this Act, the society shall cause a copy of the instrument by which the charge was created or is evidenced, accompanied by a statutory declaration as to the date of the acquisition of the property and verifying the copy as a true copy to be delivered to the Registrar for registration in manner required by this Part of this Act within 21 days after the date on which the acquisition is completed:
PROVIDED THAT, if the property is situated and the charge was created outside Western Samoa, 3 months after the completion of the acquisition shall be substituted for 21 days after the completion thereof as the same time within which the copy of the instrument is to be delivered to the Registrar:
PROVIDED ALSO THAT, if the instrument by which the charge is created or evidenced has been already registered with the Registrar, or is registered under any Act other than this Act, it shall be sufficient compliance with the requirements of this subsection if, within 21 days or 3 months, as the case may be, particulars of the instrument sufficient to identify it, and such other particulars (if any) as may be prescribed, are delivered to the Registrar for registration.
(2) If default is made in complying with this section, the society and every officer of the society who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding $50 for every day during which the default continues unless it is proved to the satisfaction of the Court that a copy of the instrument required to be registered was not obtainable by the society.
28. Register of charges to be kept by Registrar - (1) The Registrar shall keep, with respect to each registered society, a register in the prescribed form all the charges requiring registration under this Part of this Act, and shall, on payment of the prescribed fee, enter in the register with respect to each such charge the following particulars:
(a) In the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in subsection (7) of section 25 of this Act;
(b) In the case of any other charge:
(i) If the charge is a charge created by the society, the date of its creation, and if the charge was a charge existing on property acquired by the society, the date of the acquisition of the property; and
(ii) The amount secured by the charge; and
(iii) Short particulars of the property charged; and
(iv) The persons entitled to the charge.
(2) The Registrar shall, on payment of the prescribed fee, give a certificate under his hand of the registration of any charge registered in pursuance of this Part of this Act, stating the amount thereby secured; and the certificate shall be conclusive evidence that the requirements of this Part of this Act as to registration have been complied with.
(3) The register kept in pursuance of this section and all documents registered under this Part of this Act shall be open to inspection by any person on payment of a prescribed fee.
29. Endorsement of certificate of registration on debentures - (1) The society shall cause a copy of every certificate of registration given under section 28 of this act to be endorsed on every debenture or certificate of debenture stock which is issued by the society on or after the creation of the charge which is registered and the payment of which is secured by the charge so registered.
(2) If any person knowingly and wilfully authorises or permits the delivery of any debenture or certificate of debenture stock which under the provisions of this section is required to have endorsed on it a copy of a certificate of registration without the copy being so endorsed on it, he shall, without prejudice to any other liability, be liable to a fine not exceeding $100.
30. Entries of satisfaction and release of property from charge - (1) The Registrar, on evidence being given to his satisfaction with respect to any registered charge:
(a) That the debt for which the charge was given has been paid or satisfied in whole or in part; or
(b) That the property or undertaking charged or any part thereof has been released from the charge or has ceased to form part of the society's property or undertaking,-
and on payment of the prescribed fee shall enter on the register:
(i) A memorandum of satisfaction in whole on in part; or
(ii) A memorandum of the fact that the property or undertaking or any part thereof has been released from the charge; or
(iii) A memorandum of the fact that the property or undertaking or any part thereof has ceased to form part of the society's property or undertaking,-
as the case may be and where he enters any such memorandum he shall, if required, and on payment of the prescribed fee, furnish the society with a copy thereof.
(2) A Magistrate's Court, on application made to it for that purpose, and on being satisfied as to the fact stated in paragraph (a) or paragraph (b) of subsection (1) of this section, may order that a memorandum as aforesaid, as the case may require, be entered on the register, and the Registrar shall enter than memorandum accordingly.
31. Rectification of register of charges - A Magistrate's Court, on being satisfied that the omission to register a charge within the time required by this Part of this Act, or that the omission or misstatement of any particulars from or in any document or memorandum registered or entered under this Part of this Act was accidental or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the society, or that ,on other grounds it is just and equitable to grant relief, may, on the application of the society or any person interested, and on such terms and conditions as seem to the Court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.
32. Registration of enforcement of security - (1) If any person obtains an order for the appointment of a receiver or manager of the property of a registered society, or appoints such a receiver or manager under any power contained in any instrument, he shall, within 7 days from the date of the order or of the appointment under the said power, give notice of the fact to the Registrar, and the Registrar shall, on payment of the prescribed fee, enter the fact in the register of charges.
(2) Where any person appointed receiver or manager of the property of a society under any power contained in any instrument, ceases to act as such receiver or manager, he shall, on so ceasing, give the Registrar notice to that effect, and the Registrar shall enter the notice in the register of charges.
(3) If any person makes default in complying with the requirements of this section he shall be liable to a fine not exceeding $10 for every day during which the default continues.
SOCIETY TO KEEP COPIES OF INSTRUMENTS CREATING CHARGES
AND REGISTER OF CHARGES
33. Copies of instruments creating charges to be kept by society - Every registered society shall cause a copy of every instrument creating any charge requiring registration under this Part of this Act to be kept at the registered office of the society:
PROVIDED THAT, in a case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.
34. Society's register of charges - (1) Every registered society shall keep at the registered office of the society a register of charges, and enter therein all charges specifically affecting property of the society and all floating charges on the undertaking or any property of the society, giving in each case a short description of the property charged, the amount of the charge, and, except in the case of securities to bearer, the names of the persons entitled thereto.
(2) If any officer of the society knowingly and wilfully authorises or permits the omission of any entry required to be made in pursuance of this section he shall be liable to a fine not exceeding $50.
35. Right to inspect copies of instruments creating charges and society's register of charges - (1) The copies of instruments creating any charge requiring registration under this Part of this Act with the Registrar, and the register of charges kept in pursuance of section 34 of this Act, shall be open during business hours (but subject to such reasonable restrictions as the society in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection) to the inspection of any creditor or member of the society without fee, and the register of charges shall also be open to the inspection of any other person on payment of a fee of 20 sene, for each inspection, or such less sum as may be charged by the society.
(2) If inspection of the said copies or register is refused, every officer of the society who knowingly and wilfully authorises or permits the refusal shall be liable to a fine not exceeding $10, and a further fine not exceeding $2 for every day during which the refusal continues.
(3) In the case of any such refusal, a Magistrate's Court may by order compel an immediate inspection of the copies or register.
PART IV
DEBENTURES
36. Rights of inspection of register of debenture holders and to copies of register and trust deed - (1) Every register of holders of debentures of a registered society shall, except when duly closed (but subject to such reasonable restriction as the society may in general meeting impose, so that not less than 2 hours in each day shall be allowed for inspection), be open to the inspection of the registered holder of any such debenture or any member of the society without fee, and of any other person on payment of a fee of 20 sene or such less sum as may be charged by the society.
(2) Any such registered holder of a debenture or member as aforesaid or any other person may require a copy of the register of the holders of debentures of the society or any part thereof on payment of a fee of 20 sene for every 100 words required to be copied.
(3) A copy of any trust deed for securing any issue of debentures shall be forwarded to every holder of any such debenture at his request on payment in the case of a printed trust deed of a fee of 50 sene or such less sum as may be charged by the society, or, where a printed copy of the trust deed is not available, on payment of a fee of 20 sene for every 100 words required to be copied.
(4) If inspection is refused or a copy is refused or not forwarded, the society and every officer of the society who knowingly and wilfully authorises or permits the default, shall be liable to a fine not exceeding $10 and a further fine not exceeding $2 for every day during which the default continues.
(5) Where a society is in default as aforesaid, a Magistrate's Court may by order compel an immediate inspection of the register, or direct that the copies required shall be sent to the person requiring them
(6) For the purposes of this section, a resister shall be deemed to be duly closed if closed in accordance with provisions contained in the rules of the society or in the debentures or, in the case of debenture stock, in the stock certificates, or in the trust deed or other document securing the debentures or debenture stock, during such period or periods, not exceeding in the whole 30 days in any year, as may be therein specified.
37. Liability of trustees for debenture holders - (1) Subject to the following provisions of this section, any provision contained in a trust deed for securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, shall be void in so far as it would have the effect of exempting a trustee thereof from or indemnifying him against liability for breach of trust where he fails to show the degree of care and diligence required of him as trustee, having regard to the provisions of the trust deed conferring on him any powers, authorities or discretion.
(2) Subsection (1) of this section shall not invalidate:
(a) Any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or
(b) Any provision enabling such a release to be given:
(i) On the agreement thereto of a majority of not less than three-fourths in value of the debenture holders voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and
(ii) Either with respect to specific acts or omissions or on the trustee dying or ceasing to act.
(3) Subsection (1) of this section shall not operate:
(a) To invalidate any provision in force at the commencement of this Act so long as any person then entitled to the benefit of that provision, or afterward given the benefit thereof under subsection (4) of this section, remains a trustee of the deed in question; or
(b) To deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force.
(4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3) of this section, the benefit of that provision may be given either:
(a) To all trustees of the deed present and future; or
(b) To any named trustees or proposed trustees thereof by a resolution passed by a majority of not less than three-fourths in value of the debenture holders voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by a Magistrate's Court.
38. Perpetual debentures - A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the commencement of this Act, shall not be invalid by reason only that the debentures are thereby made irredeemable, or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.
39. Prohibiting reissue of redeemed debentures - (1) A registered society shall have no power to reissue any debenture that it has redeemed.
(2) Where a registered society has, either before or after the commencement of this Act, deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the society having ceased to be in debit whilst the debenture remained so deposited.
40. Specific performance of contracts to subscribe for debentures - A contract with a registered society to take up and pay for any debentures of the society may be enforced by an order for specific performance.
41. Payment of certain debts out of assets subject to floating charge in priority to claims under the charge - (1) Where either a receiver is appointed on behalf of the holders of any debentures of a registered society secured by a floating charge, or possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge, then, if the society is not at the time in course of being wound up, the debts which in every winding up are, under the provisions of Part VI of the Companies Act 1955 (NZ) relating to preferential payments, to be paid in priority to all other debts shall be paid out of any assets coming to the hands of the receiver or other person taking possession as aforesaid in priority to any claim for principal or interest in respect of the debentures.
(2) In the application of the said provisions, they shall be construed as if any provision for payment of accrued holiday pay becoming payable on the termination of employment before or by the effect of the winding up order or resolution were a provision for payment of that holiday pay becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as aforesaid.
(3) The period of time mentioned in the said provisions of Part VI of the Companies Act 1955 (NZ) shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.
(4) Any payment made under this section shall be recouped as far as may out of the assets of the society available for payment of general creditors.
PART V
MISCELLANEOUS
42. Disputes - Every dispute between a member, or person claiming through a member or under the rules of a registered society, and the society or an officer thereof shall be decided in manner directed by the rules of the society if they contain any such directions, and the decision so made shall be binding an conclusive on all parties without appeal, and shall not be removable into any Court, or restrainable by injunction, and application for the enforcement thereof may be made to a Magistrate's Court:
PROVIDED as follows:
(a) The parties to a dispute in a society may, by consent (unless the rules of the society expressly forbid), refer such dispute to the Registrar, who shall, with the consent of the Minister, hear and determine such dispute, and shall have power to order the expenses of determining the same to be paid either out of the funds of the society or by such parties to the dispute as he thinks fit, and such determination and order shall have the same effect and be enforceable in like manner as a decision made in the manner directed by the rules of the society;
(b) The Registrar, on the reference to him of any dispute, may administer oaths, and may require the attendance of all parties concerned, and of witnesses, and the production of all books and documents relating to the matter in question; and any person refusing to attend, or to produce any documents, or to give evidence before the Registrar, shall be guilty of an offence against this Act;
(c) Where the rules of a society direct that dispute shall be referred to a Court of law, the dispute shall be determined by a Magistrate's Court;
(d) When the rules contain no direction as to disputes, or when no decision is made on a dispute within 40 days after application to the society for reference under its rules, the member or person aggrieved may apply to a Magistrate's Court, which may hear and determine the matter in dispute;
(e) A Magistrate's Court or the Registrar may at the request of either party state a case for the opinion of the Supreme Court on any question of law, and may also grant to either party such discovery as to documents and otherwise, or such inspection of documents, as might be granted by any Court, such discovery to be made on behalf of the society by such officer of the same as such Court or Registrar determines.
43. Inspection of affairs - (1) On the application of one-fifth of the whole number of members of a registered society, or of 100 members in the case of a society of 1,000 members or more, the Registrar, with the consent of the Minister, may:
(a) Appoint one or more inspectors to examine into the affairs of the society and to report thereon, who may require the production of all or any of the books and documents of the society, and may administer oaths and examine on oath its officers, members, agents and servants, in relation to its business; or
(b) Call a special meeting of the society in such manner and at such time and place as the Registrar determines, and direct what matters shall be discussed and determined on at such meeting, which shall have all the powers of a meeting called according to the rules of the society, and shall in all cases have power to appoint its own chairman, any rule of the society to the contrary notwithstanding.
(2) The application herein mentioned shall be supported by such evidence as the Registrar requires for the purpose of showing that the applicants have good reason for requiring such inspection to be made or meeting to be called, and that they are not actuated by malicious motives in their application, and such notice thereof shall be given to the society as the Registrar directs.
(3) The Registrar may, if he thinks fit, require the applicants to give security for the cost of the proposed inspection or meeting before appointing any inspector or calling a meeting.
(4) All expenses of and incidental to any such inspection or meeting shall be defrayed either by the members applying for the same or out of the funds of the society, as the Registrar directs.
44. Special resolutions - (1) A special resolution is one which is passed by a majority of not less than three-fourths of such members of a society for the time being entitled under the rules to vote as are present in person or by proxy (where the rules allow proxies) at any general meeting of which notice, specifying the intention to propose such resolution, has been duly given according to the rules, and which resolution is confirmed by a majority of such members for the time being entitled under the rules to vote as are present in person or by proxy at a subsequent general meeting, of which notice has been duly given, held not less than 14 days nor more than one month from the day of the meeting at which such resolution was first passed.
(2) At any meeting mentioned in this section a declaration by the chairman that the resolution has been carried shall be deemed conclusive evidence of the fact.
45. Change of name, amalgamation, transfer of engagements or conversion of society into company - (1) A copy of every special resolution for any of the purposes mentioned in this section, signed by the chairman of the meeting and countersigned by the secretary of the society, shall be sent to the Registrar, and be registered by him, and until such copy is so registered such special resolution shall not take effect.
(2) A society may by special resolution, with the approval in writing of the Registrar, change its name; but no such change shall affect any right or obligation of the society, or of any member thereof, and any pending legal proceedings may be continued by or against the society, or any officer who may sue or be sued on behalf of the society, notwithstanding its new name.
(3) Any 2 or more societies may, by special resolution of both or all such societies, become amalgamated together as one society, with or without any dissolution or division of the funds of such societies or any of them; and any society may by special resolution transfer its engagements to any other registered society which undertakes to fulfil those engagements.
(4) A society may by special resolution determine to convert itself into a company under the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ) or to amalgamate with or transfer its engagements to any such company.
(5) No amalgamation or transfer of engagements shall prejudice any right of a creditor of either or any society party thereto.
(6) If a special resolution for converting a society into a company contains the particulars required by the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ) to be contained in the memorandum of association of a company, and a copy thereof has been registered at the office of the Registrar, a copy of such resolution under the seal or stamp of the Registrar shall have the same effect as a memorandum of association duly signed and attested under the said Order and the said Act.
(7) If a society is registered as, or amalgamates with, or transfers all its engagements to, a company, the registration of such society under this Act shall thereupon become void, and the same shall be cancelled by the Registrar; but no such action shall affect any right or claim for the time being subsisting against the society or any penalty for the time being incurred by the society; and for the purpose of enforcing any such right, claim or penalty the society may be sued and proceeded against in the same manner as if it had not become registered as or amalgamated with a company, or had not transferred all its engagements to a company; and every such right or claim, or the liability to such penalty, shall have priority as against the property of the company over all other rights or claims against, or liabilities of, the company.
46. Conversion of company into society - (1) A company registered under the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ) but eligible to be registered under this Act pursuant to sections 6 and 7 hereof, may, by a special resolution, determine to convert itself into a registered society under this Act, and for this purpose, in any case where the nominal value of its shares held by any member other than a registered society exceeds $600 may by special resolution provide for the conversion of the excess of such share capital over $600 into transferable loan stock, bearing such rate of interest as may thereby be fixed, and repayable on such conditions as are in such resolution determined.
(2) A resolution for the conversion of a company into a registered society shall be accompanied by a copy of the rules of the society therein referred to, and shall appoint 7 persons, members of the company, who, together with the secretary, shall sign the rules, and who may either be authorised to accept any alterations made by the Registrar therein, without further consulting the company, or may be required to lay all such alterations before the company in general meeting for acceptance as the resolution may direct.
(3) With the rules a copy of the special resolution for conversion of the company into a registered society shall be sent to the Registrar who, upon the registration of the society, shall give to it, in addition to the acknowledgement of registration, a certificate similarly sealed or signed that the rules of the society referred to in the resolution have been registered; but in the registered name of the company as a society the word "company" shall not be used.
(4) A copy of the resolution for the conversion of the company into a registered society under the seal of the company, together with the certificate so issued by the Registrar shall be sent for registration to the office of the Registrar of Companies, and upon the registration of such resolution and certificate the conversion shall take effect.
(5) Upon the conversion of a company into a registered society, the registration of the company under the Samoa Companies Order 1935 (NZ) and the Companies Act 1955 (NZ) shall become void, and shall be cancelled by the Registrar of Companies; but the registration of a company as a registered society shall not affect any right or claim for the time being subsisting against the company, or any penalty for the time being incurred by the company, and for the purpose of enforcing any such right, claim, or penalty the company may be sued and proceeded against in the same manner as if it had not become registered as a society. Every such right or claim and the liability to such penalty shall have priority as against the property of the society over all other rights or claims against or liabilities of the society.
47. Application of Companies Act to winding up and dissolution of societies - (1) A society may be dissolved by an order to wind up the society, or a resolution for the winding up thereof, made as is directed in regard to companies by Part VI of the Companies Act 1955 (NZ) the provisions whereof shall apply to any such order or resolution, except as provided in subsection (4) of this section; or by the consent of three-fourths of the members, testified by their signatures to an instrument of dissolution.
(2) Where a society is wound up, the liability of a present or past member of the society to contribute for payment of the debts and liabilities of the society, the expenses of winding up, and the adjustment of the rights of contributories amongst themselves, shall be qualified as follows:
(a) No individual, society or company which has ceased to be a member for one year or upwards prior to the commencement of the winding up shall be liable to contribute;
(b) No individual, society or company shall be liable to contribute in respect of any debt or liability contracted after it ceases to be a member;
(c) No individual, society or company not a member shall be liable to contribute unless it appears to the Court that the contributions of the existing members are insufficient to satisfy the just demands on the society;
(d) No contribution shall be required from any individual, society or company exceeding the amount (if any) unpaid on the shares in respect of which it is liable as a past or present member;
(e) An individual, society or company shall be taken to have ceased to be a member, in respect of any withdrawable share withdrawn, from the date of the notice or application for withdrawal.
(3) Where a society is terminated by an instrument of dissolution, the following provision shall apply:
(a) The instrument of dissolution shall set forth the liabilities and assets of the society in detail, the number of members and the nature of their interests in the societies respectively, the claims of creditors (if any) and the provision to be made for their payment, and the intended appropriation or division of the funds and property of the society, unless the same is stated in the instrument of dissolution to be left to the award of the Registrar;
(b) Alterations in the instrument of dissolution may be made with the like consents as hereinbefore provided, testified in the same manner;
(c) A statutory declaration shall be made by 3 members and the secretary of the society that the provisions of this Act have been complied with, and shall be sent to the Registrar with the instrument of dissolution; and every person who knowingly makes a false or fraudulent declaration in the matter commits an offence, and is liable to a fine not exceeding $100, or to imprisonment for any term not exceeding 2 years;
(d) The instrument of dissolution and all alterations therein shall be registered in manner herein provided for the registration of rules, and shall be binding upon all members of the society;
(e) The Registrar shall cause a notice of the dissolution to be advertised at the expense of the society in some newspaper circulating in Western Samoa; and unless, within 3 months from the date of the newspaper in which such advertisement appears, a member or other person interested in or having any claim on the funds or effects of the society commences proceedings to set aside the dissolution of the society in the Magistrate's Court in or nearest to the locality where the registered office of the society is situated, and such dissolution is set aside accordingly, the society shall be legally dissolved from the date of such advertisement, and the requisite consents to the instrument of dissolution shall be considered to have been fully obtained without proof of the signatures thereto;
(f) Notice shall be sent to the Registrar of any proceedings to set aside the dissolution of society, not less than 7 days before such proceeding is commenced, by the person by whom it is taken, and notice of any order setting it aside shall be similarly sent by the society within 7 days after such order is made.
(4) Subject to subsection (1) of this section all the provisions of Part VI of the Companies Act 1955 (NZ) shall, so far as they are applicable and with the necessary modifications, apply with respect to the winding up of registered societies, except that the Court having jurisdiction in every such winding up shall be a Magistrate's Court.
(5) References in this Act to Part VI of the Companies Act 1955 (NZ) shall be deemed to be references to that Part as for the time being amended so far as the amendments are in force in Western Samoa, and in the event of the repeal of that Act as part of the law of Western Samoa shall be deemed to be references to the corresponding Part of the Companies Act as for the time being in force in Western Samoa:
PROVIDED THAT this subsection shall have effect subject to any saving provision applicable in any case.
48. Further offences and penalties- (1) If any person wilfully makes, orders, or allows to be made any entry of erasure in or omission from any balance sheet of a registered society, or any contribution or collecting book; or any return or document required to be sent, produced or delivered for the purposes of this Act, with intent to falsify the same or to evade any of the provisions of this Act, he shall be liable to a fine not exceeding $100, recoverable on prosecution by the Registrar or any person aggrieved.
(2) If any officer of the society, or any person on its behalf, uses any seal purporting to be a seal of the society whereon its name is not so engraved as aforesaid, or issues or authorises the issue of any notice, advertisement or other official publication of the society, or signs or authorises to be signed on behalf of the society any bill of exchange, promissory note, endorsement, cheque or order for money or goods, or issues or authorises to be issued any invoice, receipt or letter of credit of the society, wherein its name is not mentioned in manner aforesaid, he shall be liable to a fine not exceeding $100 and shall further be personally liable to the holder of any such bill of exchange, promissory note, cheque or order for money or goods for the amount thereof, unless the same is duly paid by the society.
(3) Every society, officer or member of a society, or other person, guilty of an offence under this Act, for which no penalty is expressly provided elsewhere in this Act, is liable to a fine of not less than $2 and not exceeding $10, recoverable on prosecution by the Registrar or any person aggrieved.
(4) Except in the case of offences prosecuted upon information before the Supreme Court, all fines imposed by this Act, or by any regulations, or by the rules of a registered society, are recoverable in a Magistrate's Court.
49. Where proceedings may be taken - (1) All offences and penalties under this Act may be prosecuted and recovered as respects a prosecution against a society or its officers, in the place where the registered office of the society is, or where the offence has been committed; or, as respects any prosecution against any person other than a society or its officers, in the place where the person is resident at the time of the institution of the prosecution, or where the offence has been committed.
(2) In any information under this Act it shall be sufficient to describe the offence in the words of this Act, and no exception, exemption, proviso, excuse or qualification accompanying the description of the offence in this Act need be specified or negatived.
50. Procedure on application to Magistrate's Court - (1) Every application authorised or required to be made to a Magistrate's Court for the settlement of disputes, or for any relief, direction, adjudication or order, shall be made to such Court on motion.
(2) A. Magistrate's Court shall have power to entertain such application, and give such relief, and make such orders and directions in relation to the matter of such application as the case may require.
(3) When the order of a Magistrate's Court is for the payment of money, the same may be enforced in the same manner as the ordinary judgments or orders of that Court are enforced.
(4) Where the order of that Court is for the doing of some act not being the payment of money, the Court may order the party to do such act, and that, in default of his doing it, he shall pay a certain sum of money; and, in case he reuses to do the act required upon demand, the sum of money mentioned in the order may then be recovered and enforced in the same manner as a judgment or order for debt or damages in that Court.
51. Appointment of auditors - (1) Any registered society may from time to time appoint an auditor or auditors of the society.
(2) Whenever any registered society has no auditor the Registrar may, on the application of any member of the society, appoint an auditor of the society. The remuneration of an auditor appointed by the Registrar may be fixed by the Registrar.
(3) No person shall be qualified for appointment under this section as auditor of a registered society unless he is a member of the Western Samoa Society of Accountants.
(4) Nothing in this section shall be construed to limit or affect in any way any provision in the rules of a registered society for the appointment, in accordance with those rules, of 2 or more persons as auditors of the society, and nothing in subsection (3) of this section shall apply to any person so appointed.
52. Regulations as to fees - (1) The Head of State, acting on the advice of Cabinet, may from time to time make regulations prescribing a scale of fees to be paid for matters to be transacted or for the inspection of documents under this Act; but no fee shall be payable on the registration of any society or of the rules of any society or of any amendment of the rules of any society.
(2) All fees received by the Registrar under or by virtue of this Acts shall be paid into the Public Account and shall form part of the Treasury Fund.
53. Other regulations - The Head of State, acting on the advice of Cabinet, may from time to time make regulations respecting registration and procedure under this Act, and the seal and forms to be used for such registration and the duties and functions of the Registrar, and the inspection of documents kept by the Registrar under this Act, and generally for carrying this Act into effect.
54. Evidence of documents - Every instrument or document, copy or extract of an instrument or document, bearing the seal or stamp of the Registrar or the Deputy Registrar shall be received in evidence without further proof; and every document purporting to be signed by the Registrar or the Deputy Registrar or any inspector under this Act, shall, in the absence of any evidence to the contrary, be received in evidence without proof of the signature.
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SCHEDULES
FIRST SCHEDULE
Section 12(1)
MATTERS TO BE PROVIDED FOR BY THE RULES OF SOCIETIES REGISTERED UNDER THIS ACT
1. Object, name, and place of office of the society.
2. Terms of admission of the members, including any society or company investing funds in the society under the provision of paragraph (e) of section 17 or subsection (3) of section 21.
3. Mode of holding meetings, and right of voting.
4. Mode of making, altering, and rescinding rules.
5. The appointment and removal of a committee of management by whatever name, a secretary, and a manager and other officers, and their respective powers and remuneration.
6. Determination of the amount of nominal interest, not exceeding $600, in the shares of the society which any member other than a registered society may hold.
7. Determination whether the shares or any number thereof shall be transferable; and, if it is determined that the shares or any number of them shall be transferable, provision for the form of transfer and for the consent of the committee thereto and registration thereof.
8. Determination whether and how members may withdraw from the society and, if it is determined that the shares or any of them may be withdrawn, provision for paying the members the balance due thereon on withdrawing from the society.
9. Provisions for the claims of executors or administrators of deceased members, or trustees of the property of bankrupt members.
10. Provisions for the payment of nominees.
11. Provisions for the audit of accounts.
12. Mode of application of profits.
13. Provisions for the device, custody and use of the seal of the society, which shall in all cases bear the registered name of the society.
14. Determination whether and by what authority, and in what manner, any part of the capital may be invested.
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SECOND SCHEDULE
(Sections 17(b) (iii), 23 (1)
BOND
Know all men by these presents that we, A.B., of.............. one of the officers of the................. Society Limited, established at.................... Western Samoa, and C.D., of (as surety on behalf of the said A.B.), are jointly and severally held and firmly, bound to the said society in the sum ................. to be paid to the said society or its certain attorney, for which payment well and truly to be made we jointly and severally bind ourselves, and each of us by himself, our and each of our executors or administrators, firmly by these presents.
Sealed with our seals.
Dated the ..... day of ....... one thousand nine hundred and .............
WHEREAS the above-bounden A.B. has been duly appointed to the office of the ............. Society Limited, established as aforesaid, and he and the above-bounden C.D. as his surety, have entered into the above-written bond, subject to the condition herein contained.
NOW, THEREFORE, the condition of the above-written bond is such that if the said A.B. do render a just and true account of all money received and paid by him on account of the said society, at such times as the rules thereof appoint, and do pay over all the money remaining in his hands, and assign and transfer or deliver all property (including books and papers) belonging to the said society in his hands or custody to such person or persons as the said society or the committee thereof appoints, according to the rules of the said society, together with the proper and legal receipts or vouchers for such payments, then the above-written bond shall be void, but otherwise shall remain in full force.
Signed, sealed, and delivered in the presence of:
(L. S.) A.B.
(L. S.) C.D.
E.F.
(Occupation and address)
(2) RECEIPT TO BE ENDORSED ON
MORTGAGE OR FURTHER CHARGE
Section 21(6)
The.......... Society Limited hereby acknowledges to have received all money intended to be secured by the within (or above) written deed (or instrument).
DATED this........ day of ........ 19...
Countersigned (Secretary) ........ Signed: (Three members of the committee).
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THIRD SCHEDULE
Sections 9(2), 13(2)
(1) ACKNOWLEDGEMENT OF REGISTRATION OF SOCIETY AND RULES
THE ......... Society Limited and its rules are registered under the Industrial and Provident Societies Act 1968 this ..... day of ................, 19..
E.F., Registrar
(Seal or Stamp of Registrar)
(2) ACKNOWLEDGEMENT OF REGISTRATION OF AMENDMENT OF RULES
THE foregoing amendment of the rules of the ........... Society Limited is registered under the Industrial and Provident Societies Act 1968 this ........ day of ......... 19...
E.F., Registrar
(Seal or Stamp of Registrar)
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The Industrial and Provident Societies Act 1968 is administered in the Department of Justice
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URL: http://www.paclii.org/ws/legis/consol_act_1996/iaps1968342