The process for the removal of a director prior to the expiration of the period of office is provided for in section 178 of the Companies Law, Cap. 113. The removal will need to be decided by an ordinary resolution of the members, regardless any agreement with the director or the provisions of the articles of association. However, certain steps need to be followed beforehand:
- special notice (i.e. notice of not less than twenty-eight days) shall be required of any resolution to remove a director or to appoint somebody in replacement of a director so removed at the meeting at which he is removed; and
- on receipt of such intended resolution to remove a director, the company must send a copy of the intended resolution to the director concerned; and
- the director, whether or not he is a member of the company, shall be entitled to be heard on the resolution at the meeting.
The director concerned may, if he/she wishes, make representations in writing to the company, not exceeding a reasonable length, and request their notification to members of the company. The company is obliged to (unless these are received by it too late for it to do so):
- state the fact of the representations having been made in any notice of the resolution given to members of the company; and
- send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company);
- if a copy of the representations is not sent because it was received too late or because of the company's default, the director may require that the representations shall be read out at the meeting (without prejudice to his right to be heard orally).
A court may order that any representations need not be sent out and need not be read out at the meeting if it is satisfied that the abovementioned rights conferred to the director are being abused to secure needless publicity for matters which would be deemed as defamatory.
Commonly, the articles of association replicate the statutory requirements as regards the removal of a director and in certain cases they may provide for supplementary provisions. In case of conflict the statutory provisions will prevail.
The removal of the secretary is not regulated in the Companies Law, Cap.113. This matter would be addressed in the articles of association which usually give competence to the board of directors.