BUEA AGRO SARL: an untitled contribution, a pre-registration contract, and a partner who wants out
On 5 May 2024, Mr Ashu and Mr Ngwa sign the statutes of 'BUEA AGRO SARL' with a capital of 500,000 FCFA. Mr Ashu undertakes to pay 300,000 FCFA in cash but has not paid. Mr Ngwa contributes 'his customary right of use over two hectares at Muea', valued by the parties at 200,000 FCFA in the statutes, with no valuation report. The gérant appointed is Mr Ngwa's brother, resident in Douala, who is also the manager of a competing agricultural company. The statutes require the partners' agreement for any transfer of parts. The two men begin trading on 1 June 2024; on 18 June Mr Ngwa signs a supply contract for 6,000,000 FCFA with a Douala supplier, signing 'for BUEA AGRO SARL'. The company is filed at the RCCM only on 20 September 2024, one month after fire destroyed the stock. The supplier, unpaid, sues. The gérant has also bought goods from the company at book value. Mr Ashu wants out and asks for his 300,000 FCFA back.
1. Are the contributions and the appointment of the gérant valid? What are the consequences?
Read the worked answer
Capital. Under the OHADA Uniform Act on commercial companies (revised 30 January 2014), the minimum capital of a SARL is fixed by national law. Cameroon set it at 100,000 FCFA in 2016, so 500,000 FCFA complies. But capital must be subscribed and paid up: Mr Ashu's 300,000 FCFA is a debt to the company, which the gérant must call in. An unpaid subscription makes the capital fictitious as to that amount, and the founders remain answerable for it; the company's creditors cannot treat it as a guarantee that exists.
The in-kind contribution. A customary right of use is not ownership; it is a precarious tenure over community land, not transferable as such and not evidenced by a land certificate. Contributed as it stands, it can only be an apport en jouissance: the company uses the land for the duration of the company but does not become owner, and the asset returns to the contributor at winding-up. If the parties intended an apport en propriété, then the contribution is impossible and the constitution is defective. In either case the statutes must describe the right precisely and value it; the partners are solidarily liable to third parties for the stated valuation for five years, and where the value exceeds the national threshold a commissaire aux apports must report on it. Valuing it at 200,000 FCFA by simple agreement, with no report, exposes both founders.
The gérant. A SARL is managed by one or more natural persons, so the brother's appointment is formally possible. But a gérant owes a duty of loyalty and may not, without authorisation, run a competing business. Managing a rival agricultural company breaches that duty and justifies revocation and damages; the partners should be asked to rule on it, and third-party acts done within the corporate object remain binding on the company notwithstanding the internal breach.
2. Who is liable to the supplier for the 6,000,000 FCFA contract signed on 18 June 2024?
Read the worked answer
The decisive date is the RCCM entry: 20 September 2024. Before registration the company has no legal personality; it is a société en formation. The persons who act in its name before registration are personally and solidarily bound, unless the company, once registered, validly takes over (reprise) the acts concerned.
On 18 June Mr Ngwa signed 'for BUEA AGRO SARL', a company that did not yet exist. He therefore contracted in his own name in reality, and he is liable to the supplier. Mr Ashu is solidarily liable as a founder who participated in the formation and allowed trading to begin; solidarity between founders is the sanction for launching a company into commerce before it exists.
The reprise is the only escape. It may be express (a clause in the statutes or a decision after registration listing the acts to be taken over) or tacit (the registered company performing the contract: accepting deliveries, paying part of the price, issuing invoices in its own name). Here the company registered on 20 September 2024 and the stock burned in August, so there was likely some performance. Counsel for the supplier must therefore: (1) obtain the statutes and the RCCM extract to see what was taken over; (2) check whether the company paid anything or acknowledged the debt; (3) sue Ngwa and Ashu solidarily, and the company in the alternative if reprise is established.
The supplier's negligence is also relevant: it should have demanded the RCCM extract before extending 6,000,000 FCFA of credit to a company that did not yet exist. That does not defeat its claim against the founders, but it may reduce any damages beyond the price.
3. Can Mr Ashu leave the company and recover his 300,000 FCFA? What should be done about the gérant's conduct?
Read the worked answer
Leaving. In a SARL there is no unilateral right of withdrawal: the capital is the company's property and is not repayable on demand. Mr Ashu's only normal route is to transfer his parts, and here the statutes require the partners' agreement (agrément). If the other partner refuses, the refusal must be reasoned and cannot be arbitrary; but a refusal does not give a right to repayment.
Two fallback routes exist. First, dissolution for justes motifs: where two equal partners are in deadlock and the company can no longer function, the court may pronounce dissolution. Second, damages against Mr Ngwa if he caused the deadlock or if his brother's management ruined the company. Mr Ashu's 300,000 FCFA was never paid, so he cannot recover what he never disbursed; his claim is limited to the value of his parts as determined by agreement or by an expert.
The gérant's conduct. Buying the company's goods at book value, presumably without the partners' approval and without any competing quotation, is a breach of the duty of loyalty and may amount to abuse of corporate property under the Uniform Act and the Penal Code. The gérant's management of a competing company aggravates it. The partners should: convene a general meeting to revoke the gérant and appoint a replacement; demand an account of the purchases and restitution of the profit made; bring civil proceedings for damages; and, if the facts are serious, lodge a criminal complaint. Mr Ashu should also request the appointment of a mandataire ad hoc to represent the company in any action against the gérant, since the gérant cannot represent the company against himself.