CONSOLIDATED ACTS OF SAMOA 2009

INCORPORATED SOCIETIES ORDINANCE 1952

Arrangement of Provisions

1. Short title and commencement
2. Interpretation
3. Incorporated societies
4. Pecuniary gain
5. Rules of incorporated societies
5A. Society may make regulations or by-laws
5B. Penalty for improper use of word "Incorporated"
6. Application for incorporation
7. Registrar to register society if in order
8. Certificate of incorporation to be conclusive evidence of registration
9. Upon issue of certificate members to be a body corporate
10. Separate name of each society
11. Appeal from Registrar to Head of State
12. No liability on members for obligation of society
13. Members have no right to property of society
14. Contracts by society
15. Service of summons, etc., on society
16. Security for costs when society is plaintiff
17. Registered office
18. Restriction of operations of society
19. Society not to engage in operation involving pecuniary gain
20. Alteration of rules
21. Register of members
22. Annual financial statement
23. Voluntary winding up of society
24. Winding up of society by Supreme Court
25. Petition to Court for winding up
26. Division of surplus assets on winding up
27. Dissolution by Registrar
28. Corporate body may become member of society
29. Pecuniary gain received by members of such corporate body
30. Such corporate body to be equivalent to 3 members
31. Registrar and Assistant Registrars
32. Registrar to keep register of incorporated societies
33. Inspection of documents
34. Exemptions from stamp duty
35. Regulations 
36. Savings
 Schedules

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THE INCORPORATED SOCIETIES ORDINANCE 1952
1952 No.6

AN ORDINANCE to make provisions for the incorporation of societies which are not established for the purpose of pecuniary gain. 

(09 September 1952)

1. Short title and commencement - This Ordinance may be cited as the Incorporated Societies Ordinance 1952 and shall come into operation on a date to be appointed for the commencement thereof by the High Commissioner by a notice published in the Gazette.

2. Interpretation - In this Ordinance, unless the context otherwise requires:

"Judge" means a Judge of the Supreme Court of Samoa.

"Member" includes a person or a corporate body joining in the application for the incorporation of a society, and a person or corporate body admitted to membership after incorporation in accordance with the rules of a society.

"Prescribed" means prescribed by this Ordinance or by regulations.

"Registrar" means the Registrar of Incorporated Societies under this Ordinance.

"Regulation" means a regulation made by the Head of State, acting on the advice of Cabinet, under the authority of this Ordinance and gazetted in the Gazette.

"Society" means a society incorporated under this Ordinance.

3. Incorporated societies - (1) Any society consisting of not less than 15 persons associated for any lawful purposes but not for pecuniary gain may on application being made to the Registrar in accordance with this Ordinance become incorporated as a society under this Ordinance.

(2) No such application shall be made except with the consent of a majority of the members of the society.

(3) No society shall be registered without the consent of the Head of State under a name which contains the words "standard" or "Samoa standard" or any abbreviation thereof.

4. Pecuniary gain - Persons shall not be deemed to be associated for pecuniary merely by reason of any of the following circumstances, namely:

(a) That the society itself makes a pecuniary gain unless that gain or some part thereof is divided among or received by the members or some of them;

(b) That the members of the society are entitled to divide between them the property of the society on its dissolution;

(c) That the society is established for the protection or regulation of some trade, business, industry or calling in which the members are engaged or interested, if the society itself does not engage or take part in any such trade, business, industry or calling or any part or branch thereof;

(d) That any member of the society derives pecuniary gain from the society by way of salary as the servant or officer of the society;

(e) That any member of the society derives from the society any pecuniary gain to which he or she would be equally entitled if he were not a member of the society;

(f) That the members of the society compete with each other for trophies or prizes other than money prizes.

5. Rules of incorporated societies - (1) The rules of a society shall state or provide for the following matters, that is to say:

(a) The name of the society with the addition of the word "Incorporated" as the last word of that name;

(b) The objects for which the society is established;

(c) The modes in which persons become members of the society;

(d) The modes in which persons cease to be members of the society;

(e) The mode in which the rules of the society may be altered, added to, or rescinded;

(f) The mode of summoning and holding general meetings of the society or of voting thereat;

(g) The appointment of officers of the society;

(h) The control and use of the Common Seal of the Society;

(i) The control and investments of funds of the society;

(j) The powers (if any) of the society to borrow money;

(k) The disposition of the property of the society in the event of the winding up of the society;

(l) Such other matters as the Registrar may require to be provided for in any particular instance.

(2) The rules of the society may make provision for the imposition on any member of reasonable fines and forfeitures, and for the consequences of non-payment of any subscription or fine.

(3) The rules of the society may contain any other provisions which are not inconsistent with this Ordinance or with law.

(4) The rules of the society and any amendments of those rules shall be printed or typewritten.

5A. Society may make regulations or bylaws - (1) In addition to the matters specified in the last preceding section of this Ordinance, the rules of any society may make provision empowering the society from time to time by resolution in general meeting to make, amend, or rescind regulations or bylaws, not inconsistent with this Ordinance or with the rules of the society, for such purposes as may be specified in that behalf in the rules.

(2) The making, amendment or rescission of any regulations or bylaws pursuant to any rules in accordance with this section shall not be deemed to be an alteration of the rules within the meaning of section 20 of this Ordinance.

5B. Penalty for improper use of word "Incorporated" - If any society, not being a society incorporated under this Ordinance, operates under any name or title of which the word "Incorporated", or any contraction or imitation of that word, is the last word every member of the society shall be liable on conviction to a fine not exceeding 1 penalty unit for every day upon which that name or title has been used.

6. Application for incorporation - Every application for the incorporation of a society shall be made to the Registrar in manner following:

(a) Two copies of the rules of the society having written thereon an application for incorporation in the form of the First Schedule hereto or to the like effect shall be signed by not less than 15 persons being members of the society and each subscriber to the application shall add to his or her signature, his or her occupation and address, and his or her signature shall be attested by a witness who is not a subscriber. When any body corporate is a subscriber its seal shall be affixed to the said application;

(b) The 2 copies of the said rules so signed or sealed shall be delivered to the Registrar with the fees prescribed in the Second Schedule hereto, and together with a statutory declaration made by a solicitor to the effect that a majority of the members of the society have consented to the application and that the rules so signed or sealed are the rules of the society.

7. Registrar to register society if in order - The Registrar, on being satisfied that the requirements of this Ordinance have been observed, shall thereupon do the following things.

(a) Enter the name of the said society in the register kept by the Registrar under this Ordinance, together with such other particulars with respect to the society as the Registrar thinks fit;

(b) Issue under the Registrar's seal a certificate that the society is incorporated under this Ordinance in the form of the Third Schedule hereto;

(c) Register the rules of the society by sealing with the Registrar's seal the said copies thereof;

(d) Return one of those copies to the subscribers and retain the other copy.

8. Certificate of incorporation to be conclusive evidence of registration - Every certificate of incorporation issued under the seal of the Registrar shall be conclusive evidence that all statutory requirements in respect of the registration and all matters precedent and incidental thereto have been complied with and that the society is authorised to be registered, and has been duly registered and incorporated under this Ordinance.

9. Upon issue of certificate members to be a body corporate - Upon the issue of the certificate of incorporation the subscribers to the rules of the society, together with all other persons who are then members of the society or who afterwards become members of the society in accordance with the rules thereof, shall as from the date of incorporation mentioned in the certificate, be a body corporate by the name contained in the said rules having perpetual succession and a common seal, and capable forthwith, subject to this Ordinance and to the said rules, of exercising all the functions of a body corporate and of holding land.

10. Separate name of each society - No society shall be registered under a name identical with that of any other society or body corporate already registered under this Ordinance, or so nearly resembling the same as to be calculated to deceive except where that existing society is in the course of being dissolved, and testifies its consent in such manner as the Registrar requires.

11. Appeal from Registrar to Head of State - An appeal shall lie to the Head of State from any refusal of the Registrar to register a society or any amendment of the rules of a society, and the decision of the Head of State on any such appeal shall be final.

12. No liability on members for obligation of society - Except when otherwise expressly provided in this Ordinance membership of a society shall not of itself impose on the members any liability in respect of any contract, debt or other obligation made or incurred by the society.

13. Members have no right to property of society - Except when otherwise expressly provided by this Ordinance or by the rules of a society, membership of a society shall not be deemed to confer upon the members any right, title, or interest, either legal or equitable, in the property of the society.

14. Contracts by society - (1) Any contract which, if made between private persons, must be by deed, shall when made by a society, be in writing under the common seal of the society.

(2) Any contract which, if made between private persons must be in writing signed by the parties to be charged therewith, may, when made by a society, be in writing signed by any person acting on behalf of and under the express or implied authority of the society.

(3) Any contract which, if made between private persons, might be made without writing, may, when made by a society, be made without writing by any person acting on behalf of or under the express or implied authority of the society.

15. Service of summons, etc., on society - Any summons, notice, order, or other document required to be served upon a society may be served by leaving the same at the society's registered office or by sending it through the post in a registered letter addressed to the society at that office.

16. Security for costs when society is plaintiff - When a society is the plaintiff in any action or other legal proceeding, and there appears by any credible testimony to be reason to believe that if the defendant is successful in the defence the assets of the society will be insufficient to pay his or her costs, the Court or Judge having jurisdiction in the matter may require sufficient security to be given for those costs, and may stay proceedings until that security is given.

17. Registered office - (1) Every society shall have a registered office to which all communications may be addressed.

(2) Notice of the situation of that office and of any change therein, shall be given to the Registrar and recorded by the Registrar.

(3) Until that notice is given the society shall be deemed not to have complied with the provisions of this section as to having a registered office.

(4) If any society carries on its operations without having a registered office every officer of the society and every member of the committee or other governing body of the society shall be liable to a fine not exceeding 1 penalty unit for every day during which those operations are carried on.

18. Restriction of operations of society - (1) If any society carried on or proposes to carry on any operation which is beyond the scope of the objects of the society as defined in its rules, the Registrar may give notice in writing to the society not to carry on that operation.

(2) If after the receipt of that notice the society fails or refuses to conform thereto, every officer of the society and every member of the committee or other governing body of the society shall be liable to a fine not exceeding 1 penalty for every day during which that failure or refusal continues, unless the officer or member or other governing body proves that the failure or refusal has taken place without their authority or consent.

19. Society not to engage in operation involving pecuniary gain - (1) No society shall do any act of such nature that if the doing thereof were one of the objects for which the society was established the members of the society would be deemed to be associated for pecuniary gain within the meaning of sections 3 and 4 hereof.

(2) Every society which does any such act shall be liable to a fine not exceeding 2 penalty units.

(3) Every member who aids, abets, procures, assists or takes part in the doing of any such act by a society shall be liable to a fine not exceeding 1 penalty unit and all such members shall be jointly and severally liable to any creditor for all debts or obligations incurred by the society in or in consequence of the doing of that act.

(4) Every member who derives any pecuniary gain from any act done by the society in breach of this section, shall be deemed to have received the same to the use of the society, and the same may be recovered by the society accordingly.

20. Alteration of rules - (1) A society may from time to time alter its rules in manner provided by the said rules, but subject to the provisions of this Ordinance.

(2) Every such alteration shall be in writing signed or sealed in duplicate by at least 3 members of the society, and the documents so signed or sealed shall be delivered to the Registrar accompanied by a statutory declaration made by a solicitor or at least one member to the effect that the said alteration has been made in accordance with the rules of the society.

(3) The Registrar, if satisfied that the alteration has been duly made, and that the rules as so altered conform in all respects to this Ordinance, shall register the alteration in like manner as in the case of the original rules, and the said alteration shall thereupon take effect according to the tenor thereof. Such registration shall be conclusive evidence that all conditions precedent to the making of the alteration, or the registration thereof, have been duly fulfilled.

(4) No alteration in the objects of a society shall be registered unless the Registrar is satisfied either that the alteration is not of such a nature as to prejudicially affect any existing creditor of the society, or that all creditors who may be so affected consent to the alteration.

(5) In the case of any alteration of the name of a society the Registrar may in his or her discretion refuse to register the alteration until the making thereof has been publicly advertised in such manner as the Registrar thinks fit.

21. Register of members - (1) Every society shall keep a register of its members.

(2) The register shall contain the names, addresses and occupations of those members, and the date at which they become members.

(3) Every society shall from time to time, when required by the Registrar so to do, send to the Registrar a list of the names, addresses and occupations of its members accompanied by a statutory declaration verifying that and made by some officer of the society.

22. Annual financial statement - (1) Every society shall deliver annually to the Registrar in such form and at such times as the Registrar requires an audited statement containing the following particulars:

(a) The income and expenditure of the society during the society's last financial year;

(b) The assets and liabilities of the society at the close of the said year;

(c) All mortgages, charges and securities of any description affecting any of the property of the society at the close of the said year.

(2) The said statement shall be accompanied by a certificate signed by some officer of the society to the effect that the statement has been submitted to and approved by the members of the society at a general meeting.

(3) If any default is made by a society in the observance of the provisions of this section every officer of the society shall be liable to a fine not exceeding 1 penalty unit for every day during which the default continues.

23. Voluntary winding up of society - (1) A society may be wound up voluntarily if the society, at a general meeting of its members, passes a resolution requiring the society so to be wound up, and the resolution is confirmed at a subsequent general meeting called together for that purpose and held not earlier than 30 days after the date on which the resolution so to be confirmed was passed.

(2) Subject to this Ordinance and to any regulation made under the authority thereof, the voluntary winding up of a society shall be governed by the same rules as the voluntary winding up of a company under the Companies Act 2001.

24. Winding up of society by Supreme Court - A society may be wound up by the Supreme Court under the following circumstances:

(a) If the society suspends its operations for the space of a whole year; or

(b) If the members of the society are reduced in number to less than 15; or

(c) If the society is unable to pay its debts; or

(d) If the society carries on any operation whereby any member thereof makes any pecuniary gain contrary to the provisions of this Ordinance; or

(e) If a Judge of the Supreme Court is of the opinion that it is just and equitable that the society should be wound up.

25. Petition to Court for winding up - (1) Any application to the Supreme Court for the winding up of a society shall be by petition presented either by the society, or by a member thereof, or by a creditor thereof or by the Registrar.

(2) All costs incurred by the Registrar in making application for the winding up of a society shall, unless the said Court or a Judge thereof otherwise orders, be a first charge on the assets of the society.

(3) Subject to this Ordinance and to any regulation made under the authority thereof, every application to the Supreme Court for the winding up of a society, and every winding up of a society by the said Court shall be governed by the same rules as in the case of winding up of a company by the Court under the Companies Act 2001.

26. Division of surplus assets on winding up - (1) On the winding up of a society or on its dissolution by the Registrar, all surplus assets after the payment of all costs, debts and liabilities shall, subject to any trust affecting the same, be disposed of in manner provided by the rules of the society or if such assets cannot be disposed of in accordance with the rules, then as the Registrar directs.

(2) If the said surplus assets are subject to any trust they shall be disposed of as the Supreme Court or a Judge thereof directs in the case of winding up by the said Court, or as the Registrar directs in the case of a voluntary winding up or in the case of dissolution by the Registrar, but an appeal shall lie from any such decision of the Registrar to the Head of State at the suit of any person interested. The decision of the Registrar under this or the last preceding subsection shall be final unless notice of appeal therefrom is delivered to the Registrar within one month after the decision had been given.

27. Dissolution by Registrar - (1) If at any time the Registrar is satisfied that a society is no longer carrying on its operations or has been registered by reason of a mistake of fact or law, he or she may make under his or her seal a declaration that the society is dissolved as from the date of declaration, and shall thereupon publish the declaration in the Gazette and make in the Register an entry of the dissolution of the society.

(2) On the making of that entry the society shall be dissolved as from the date of the declaration.

(3) At anytime thereafter the Registrar on being satisfied that the declaration was made in error or ought to be revoked may revoke the same by declaration published in the Gazette and shall thereupon make an entry of that revocation in the Register, and the society shall thereupon be revived from the date of the dissolution thereof as if no such dissolution had taken place.

28. Corporate body may become member of society - Any corporate body, whether incorporated under this Ordinance or in any other manner, may be a member of a society incorporated under this Ordinance, unless the purposes for which the society is established are ultra virus of the said corporate body.

29. Pecuniary gain received by members of such corporate body - When any corporate body is a member of a society incorporated under this Ordinance, any pecuniary gain received by any member of that corporate body shall be deemed for the purpose of this Ordinance to be pecuniary gain received by a member of the society, and in respect of any such pecuniary gain every member of that corporate body shall be deemed to be a member of the society.

30. Such corporate body to be equivalent to 3 members - In estimating the number of subscribers to the rules of a society under section 3 or section 6 of this Ordinance, or the number of members of a society under section 3 or section 24 of this Ordinance, every corporate body which is a subscriber or member shall be taken as the equivalent of 3 subscribers or 3 members, as the case may be.

31. Registrar and Assistant Registrars - (1) The Public Service Commission of Samoa may from time to time appoint some person to be the Registrar of Incorporated Societies.

(2) There may from time to time be appointed such Assistant Registrars of Incorporated Societies as may be required.

(3) The Registrar and Assistant Registrars so appointed may hold such office in conjunction with any other office which the Public Service Commission of Samoa deems not incompatible therewith.

(4) Subject to the direction of the Registrar, or to any regulations under this Ordinance prescribing the duties of Assistant Registrars, every Assistant Registrar shall have and may exercise all the powers, duties, and functions of the Registrar. The fact of any Assistant Registrar exercising any power, duty or functions as aforesaid shall be conclusive evidence of the Assistant Registrar's authority so to do.

32. Registrar to keep register of incorporated societies - (1) The Registrar shall keep a register in which there shall be recorded all matters required by this Ordinance or by any regulations to be recorded by the Registrar.

(2) The Registrar shall keep a seal for the authentication of any documents required for the purposes of this Ordinance.

(3) There shall be paid to the Registrar in respect of the several matters mentioned in the Second Schedule hereto the fees therein specified.

(4) All fees so paid to the Registrar shall be paid by the Registrar into the Treasury and shall be part of the funds of the Government of Samoa.

(5) All expenses incurred in the administration of this Ordinance shall be paid out of money appropriated by the Legislative Assembly of Samoa.

33. Inspection of documents - (1) Every person may on payment of the prescribed fee inspect the register or any documents lodged with the Registrar.

(2) Any person may, on payment of the prescribed fee, require a copy of the certificate of the incorporation of any society, or a copy of or extract from the register or any document lodged with the Registrar, to be certified by the Registrar under his or her seal.

(3) Any such copy or extract purporting to be under the seal of the Registrar shall be received in evidence in all proceedings, civil or criminal.

34. Exemptions from stamp duty - No document required by this Ordinance to be delivered to the Registrar shall be liable to any stamp duty.

35. Regulations - The Head of State, acting on the advice of Cabinet, may from time to time by notice published in the Gazette make such regulations as the Head of State thinks fit for carrying into full effect the provisions of this Ordinance.

36. Savings - A Society shall be deemed not to be a Company for the purposes of the Companies Act 1955 (NZ) and save as herein otherwise expressly provided the provisions of the Companies Act 1955 (NZ) shall not apply to a society.

SCHEDULES

FIRST SCHEDULE Section 6(a)

APPLICATION FOR INCORPORATION

We, the several persons whose names are subscribed hereto being members of the above-mentioned society, hereby make application for the Incorporation of the Society under the foregoing rules in accordance with the Incorporated Societies Ordinance 1952.

SECOND SCHEDULE Section 6 (b)

TABLE OF FEES PAYABLE TO THE REGISTRAR

Fee on application for registration - $ 45.00
Fee for certificate of incorporation - 45.00
Fee for alteration of rules - 24.00
Fee for certified copy or extract - 24.00
(if the copy or extract exceeds 
3 folios of 72 words each an 
additional fee for each additional 
folio or part thereof) - 3.00
Fee for any other document required to be registered - 24.00
Fee for inspection of Register - 12.00
Fee for inspection of any document - 12.00

THIRD SCHEDULE Section 7 (b)

CERTIFICATE OF INCORPORATION

Certificate of Incorporation No....

I hereby certify that the society under the name of ......... has been incorporated as a society under the Incorporated Societies Ordinance 1952, this ............. day of .......... 19 .......

(Seal of Registrar) 					 REGISTRAR.

REVISION NOTES 1997

The Incorporated Societies Ordinance 1952 appearing in this reprint comprised that Ordinance together with a new Second Schedule as substituted by the Omnibus Fees and Charges Amendments Act 1988, section 3.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(c) All references to the male gender have been made gender neutral.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

The following amendments have been made to specific sections of the Act to incorporate amendments made by Act of Parliament passed since the publication of the Western Samoa Statutes Reprint 1978-1996 –

Second Schedule The fees in the Second Schedule were amended by the Miscellaneous Fees Amendment Act 1998 (No. 16). 

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2008 No. 2

This law has been reviewed as provided for by section 5 of the Revision and Publication of Laws Act 2008. There were no changes made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act. 

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2009

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

The Incorporated Societies Ordinance 1952 is administered by the Ministry of Justice and Courts Administration