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Development Financial Institutions Act 2002 · Updated to 6 Oct 2023 · Part IX · Miscellaneous

109. Offence by body corporate

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(1)

Where an offence is committed by a body corporate or an association of persons, a person—

(a)

who is its director, controller, officer, or partner; or

(b)

who is concerned in the management of its affairs, at the time of the commission of the offence, is deemed to have committed that offence unless that person proves that the offence was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.

(2)

An individual may be prosecuted for an offence under subsection (1) notwithstanding that the body corporate or association of persons has not been convicted of the offence.

(3)

Subsection (1) shall not affect the criminal liability of the body corporate or association of persons for the offence referred to in that subsection.

(4)

Any person who would have committed an offence if any act had been done or omitted to be done by him personally commits that offence and shall on conviction be liable to the same penalty if such act had been done or omitted to be done by his agent or officer in the course of that agent’s business or in the course of that officer’s employment, as the case may be, unless he proves that the offence was committed without his knowledge or consent and that he took all

134

reasonable precautions to prevent the doing of, or omission to do, such act.

Terms defined in s 3

business
Defined · s 3
“business” means any activity carried on for the purpose of gain or profit and includes all property derived from, or used in, or for the purpose of, carrying on such activity and all rights and liabilities arising from such activity;
Open s 3
controller
Defined · s 3
“controller”, in relation to an institution, means a person who— (a) has an interest in more than fifty per cent of the shares of the institution; (b) has the power to appoint or cause to be appointed a majority of the directors of the institution; (c) has the power to make or cause to be made decisions in respect of the business or administration of the institution, and to give effect to such decisions or cause them to be given effect to; or (d) in accordance with whose directions, instructions or wishes the directors, chief executive officer or senior officers of the institution are accustomed or under obligation, whether formal or informal, to act, and the word “control” shall be construed accordingly;
Open s 3
director
Defined · s 3
“director” includes any person who occupies the position of a director, and includes a person in accordance with whose directions and instructions the directors or officers are accustomed to act and an Development Financial Institutions 19 alternate or substitute director, and without prejudice to the foregoing, in the case of— (a) a co-operative society, means a member of the board, or other governing body, of the co-operative society; (b) a statutory body, means a member of the board, committee, council or other governing body of the statutory body; (c) a partnership, means a partner; (d) a sole proprietorship, means the sole proprietor; and (e) any other body, association or group of persons, whether corporate or unincorporate, means a person having the direction and control of the management of its business or affairs;
Open s 3
individual
Defined · s 3
“individual” means a natural person;
Open s 3
officer
Defined · s 3
“officer”, in relation to an institution, means any of its employees and includes its Chief Executive Officer;
Open s 3
person
Defined · s 3
“person” includes an individual, any corporation, statutory body, local authority, society, trade union, co-operative society, partnership and any other body, organization, association or group of persons, whether corporate or unincorporate;
Open s 3

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Read on from s 110

109. Offence by body corporate

Terms defined in s 3

Schedules