Who gets paid first when a company goes into liquidation? | Rosemond Phil-Othihiwa
The order in which assets of the company are
to be applied is laid down in both the Companies and Allied Matters Act and the
Companies Winding Up Rules. Certain debts must be paid in priority to all other
debts and they will rank equally among themselves and be paid in full unless
the assets are not sufficient to meet them in which case they will abate in
equal proportions and so far as the assets are insufficient to meet the claims
of creditors, these debts have priority over the other debts and may be paid
out of property subject to a charge.
to be applied is laid down in both the Companies and Allied Matters Act and the
Companies Winding Up Rules. Certain debts must be paid in priority to all other
debts and they will rank equally among themselves and be paid in full unless
the assets are not sufficient to meet them in which case they will abate in
equal proportions and so far as the assets are insufficient to meet the claims
of creditors, these debts have priority over the other debts and may be paid
out of property subject to a charge.
Section 494 of the Companies and
Allied Matters Act C20 LFN, 2004 states:
Allied Matters Act C20 LFN, 2004 states:
(1)
In
a winding up there shall be paid in priority to all other debts –
In
a winding up there shall be paid in priority to all other debts –
(a) All local rates and
charges due from the company at the relevant date, and having become due and
payable within 12 months next before that date, and all Pay-As-You-Earn tax
deductions, assessed taxes, land tax, property or income tax assessed on or due
from the company up to the annual day of assessment next before the relevant
date, and in the case of Pay-As-You-Earn tax deductions, not exceeding
deductions made in respect of one year of assessment and, ion any other case,
not exceeding in the whole one year’s assessment;
charges due from the company at the relevant date, and having become due and
payable within 12 months next before that date, and all Pay-As-You-Earn tax
deductions, assessed taxes, land tax, property or income tax assessed on or due
from the company up to the annual day of assessment next before the relevant
date, and in the case of Pay-As-You-Earn tax deductions, not exceeding
deductions made in respect of one year of assessment and, ion any other case,
not exceeding in the whole one year’s assessment;
(b) deductions under
the National Provident Fund Act 1961;
the National Provident Fund Act 1961;
(c) all wages or salary
of any clerk or servant in respect of services rendered to the company;
of any clerk or servant in respect of services rendered to the company;
(d) All wages of any
workman or labourer whether payable for time or for piece work, in respect of
services rendered to the company;
workman or labourer whether payable for time or for piece work, in respect of
services rendered to the company;
(e) All accrued holiday remuneration becoming
payable to any clerk, servant, workman or labourer (or in the case of his death
to any other person in his rights) on the termination of his employment before
or by the effect of the winding up order or resolution;
payable to any clerk, servant, workman or labourer (or in the case of his death
to any other person in his rights) on the termination of his employment before
or by the effect of the winding up order or resolution;
(f) Unless the company is being wound up
voluntarily merely for the purpose of reconstruction or of amalgamation with
another company or unless the company has at the commencement of the winding up
under such a contract with insurers as is mentioned in section 26 of the
Workmen’s Compensation Decree 1988, rights capable of being transferred to and
vested in the workman, all amounts due in respect of any compensation or
liability for compensation under the Decree aforesaid, accrued before the
relevant date.
voluntarily merely for the purpose of reconstruction or of amalgamation with
another company or unless the company has at the commencement of the winding up
under such a contract with insurers as is mentioned in section 26 of the
Workmen’s Compensation Decree 1988, rights capable of being transferred to and
vested in the workman, all amounts due in respect of any compensation or
liability for compensation under the Decree aforesaid, accrued before the
relevant date.
When the liquidator has collected the
assets, and provided for the costs and expenses of winding-up and for the
preferential debts, he will proceed to distribute the assets among other
creditors.
assets, and provided for the costs and expenses of winding-up and for the
preferential debts, he will proceed to distribute the assets among other
creditors.
The distribution takes the form of
declaration and payment of dividends so that if there are insufficient assets
to meet all the claims of the creditors, they are paid in proportion to the
amount of their claims.
declaration and payment of dividends so that if there are insufficient assets
to meet all the claims of the creditors, they are paid in proportion to the
amount of their claims.
493. In
the winding up of an insolvent company registered in Nigeria the same rules
shall prevail and be observed with regard to the respective rights of
secured and unsecured creditors and to debts provable and to the valuation of
annuities and future and contingent liabilities as are in force for
the time being under the law of bankruptcy in Nigeria with respect to the
estates of persons adjudged bankrupt, and all persons who in any such case
would be entitled to prove for and receive dividends out of the assets of the
company may come in under the winding up and make such claims against the
company as they respectively are entitled to by virtue of this section.
the winding up of an insolvent company registered in Nigeria the same rules
shall prevail and be observed with regard to the respective rights of
secured and unsecured creditors and to debts provable and to the valuation of
annuities and future and contingent liabilities as are in force for
the time being under the law of bankruptcy in Nigeria with respect to the
estates of persons adjudged bankrupt, and all persons who in any such case
would be entitled to prove for and receive dividends out of the assets of the
company may come in under the winding up and make such claims against the
company as they respectively are entitled to by virtue of this section.
Secured Creditors
Any unclaimed share is paid into the
company’s liquidation account and any person entitled may apply to the
Commission which may if the liquidator so certifies, make an order for payment.
company’s liquidation account and any person entitled may apply to the
Commission which may if the liquidator so certifies, make an order for payment.
Section 516 CAMA states
thus:
thus:
6) Any person claiming to be
entitled to money paid into the company’s liquidation account in pursuance of
this section may apply to the Commission for payment and the Commission, if the
liquidator certifies the claim, may make an order for payment accordingly.
entitled to money paid into the company’s liquidation account in pursuance of
this section may apply to the Commission for payment and the Commission, if the
liquidator certifies the claim, may make an order for payment accordingly.
Creditors are divided into two
separate categories:
separate categories:
·
Secured
Secured
·
Unsecured
Unsecured
The question of who gets paid first when
the debtor company becomes insolvent depends on their priority status as a
creditor. The ranking or ‘priority’ of creditors will dictate the dividend in a
winding up of the company or payable under a Deed of Company Arrangement (in
the case of a voluntary administration).
the debtor company becomes insolvent depends on their priority status as a
creditor. The ranking or ‘priority’ of creditors will dictate the dividend in a
winding up of the company or payable under a Deed of Company Arrangement (in
the case of a voluntary administration).
A secured creditor is someone who has a
security interest such as a mortgage or a charge, over some or all of the
company’s assets, to secure a debt owed by the company.
security interest such as a mortgage or a charge, over some or all of the
company’s assets, to secure a debt owed by the company.
In the event that a company defaults on its
obligations under a security interest, a secured creditor can appoint an
independent, qualified receiver to take control of and realise some or all of
the secured assets to satisfy the secured creditor’s debt. The assets must be
sold at market value (or the best reasonably attainable price) .
obligations under a security interest, a secured creditor can appoint an
independent, qualified receiver to take control of and realise some or all of
the secured assets to satisfy the secured creditor’s debt. The assets must be
sold at market value (or the best reasonably attainable price) .
A secured creditor is entitled to:
·
vote
at creditors’ meetings for the amount the company owes them that exceeds the
amount they are likely to receive from realisation of the secured assets;
vote
at creditors’ meetings for the amount the company owes them that exceeds the
amount they are likely to receive from realisation of the secured assets;
·
participate
in any dividend to unsecured creditors on a similar basis.
participate
in any dividend to unsecured creditors on a similar basis.
·
Unsecured Creditors
Unsecured creditors rank lower in priority
than secured creditors as they have no ‘security’ over company assets.
Unsecured creditors may include companies that sold goods or services to the
company, ie, suppliers and the Australian Taxation Office.
than secured creditors as they have no ‘security’ over company assets.
Unsecured creditors may include companies that sold goods or services to the
company, ie, suppliers and the Australian Taxation Office.
If a company goes into liquidation, once a
creditor has lodged a proof of debt, they will need to await the outcome of the
liquidator’s investigations. If there are sufficient funds left in the
liquidation after payment of liquidator’s fees and costs, and payment to
priority creditors (ie, employees and secured creditors), the liquidator will
distribute remaining monies to unsecured creditors as a dividend payment.
creditor has lodged a proof of debt, they will need to await the outcome of the
liquidator’s investigations. If there are sufficient funds left in the
liquidation after payment of liquidator’s fees and costs, and payment to
priority creditors (ie, employees and secured creditors), the liquidator will
distribute remaining monies to unsecured creditors as a dividend payment.
Each category of creditor is paid in full
before the next category is paid. If there are insufficient funds to pay a
category in full, the available funds are paid on a pro rata basis (and the
next category or categories will be paid nothing). Unfortunately, there is no
guarantee that creditors will get paid at all – in certain cases, there will be
no money (or only a percentage) left in the pool to satisfy creditor claims.
before the next category is paid. If there are insufficient funds to pay a
category in full, the available funds are paid on a pro rata basis (and the
next category or categories will be paid nothing). Unfortunately, there is no
guarantee that creditors will get paid at all – in certain cases, there will be
no money (or only a percentage) left in the pool to satisfy creditor claims.
Contributories
When the claims of the creditors have been
met in full, the court will adjust the right of the contributories among
themselves make an order for distributing any surplus among the contributories
entitled. Section 446 of CAMA provides thus:
met in full, the court will adjust the right of the contributories among
themselves make an order for distributing any surplus among the contributories
entitled. Section 446 of CAMA provides thus:
“The court shall adjust the rights
of the contributories among themselves, and distribute any surplus among the
persons entitled thereto.”
of the contributories among themselves, and distribute any surplus among the
persons entitled thereto.”
Priority Unsecured Creditors
So what happens when an employee loses
their job after their employer company becomes insolvent? Facing unemployment
and the unlikely payment of outstanding entitlements is a daunting prospect for
those who have been cast out after a company enters liquidation. Secton 518 of
CAMA provides that upon the winding up of a company, the liquidator may make
any payment which the company has before the commencement of the winding up
under section 566 of CAMA which empowers a company to provide for employees on
cessation or transfer of business.
their job after their employer company becomes insolvent? Facing unemployment
and the unlikely payment of outstanding entitlements is a daunting prospect for
those who have been cast out after a company enters liquidation. Secton 518 of
CAMA provides that upon the winding up of a company, the liquidator may make
any payment which the company has before the commencement of the winding up
under section 566 of CAMA which empowers a company to provide for employees on
cessation or transfer of business.
Employees can, however, take comfort in the
fact that they are a special class of unsecured creditors with priority over
other unsecured creditors to obtain employment entitlements.
fact that they are a special class of unsecured creditors with priority over
other unsecured creditors to obtain employment entitlements.
SECTION 518 OF CAMA provides
thus:
thus:
(1)On the winding up of a company (whether by the court or voluntarily), the
liquidator may, subject to the following provisions of this section, make any
payment which the company has, before the commencement of the winding up,
decided to make under section 566 of this Act.
(3) Any
payment which may be made by a company under this section may be made out of
the company’s assets are available to the members on the winding up.
payment which may be made by a company under this section may be made out of
the company’s assets are available to the members on the winding up.
Unclaimed Funds and Undistributed
Assets
Assets
All money in the hands or under the
contract of the liquidator representing unclaimed dividends, which for six
months from the date which the dividend became payable have remained in the
hands or under the control of the liquidator, shall forthwith on the expiration
of six months be paid into the company’s liquidation account. See Rule
171 See Rule 171 of the Companies Winding Up Rules.
contract of the liquidator representing unclaimed dividends, which for six
months from the date which the dividend became payable have remained in the
hands or under the control of the liquidator, shall forthwith on the expiration
of six months be paid into the company’s liquidation account. See Rule
171 See Rule 171 of the Companies Winding Up Rules.
Associate Counsel at OLATUNDE ADEJUYIGBE
& CO. SAN
& CO. SAN
Ed’s Note – Article was first published here