According to article 165 of the OHADA Law of 2014, every company manager shall be individually liable to the company for torts committed in the performance of his duties.
Where several company managers are involved in the commission of torts, the competent court shall determine the contributive share of each of them in apportioning damages to be paid, under the conditions outlined in the uniform Act for each form of company.
A shareholder derivative lawsuit is a lawsuit for damages suffered by the company as a result of torts committed by the company managers in the performance of their duties.
Such lawsuits shall be filed by the company managers under the conditions outlined in the uniform Act of the OHADA Law for each form of company.
One or several members may file a shareholder derivative lawsuit after notice to the competent bodies that remain unanswered within a time limit of thirty (30) days. Petitioners shall be entitled to seek redress for damages suffered by the company. In the event of conviction, damages shall be awarded to the company and not to the petitioner (s).
However, under penalty of inadmissibility of the request, the company shall be regularly cited through its legal representatives.
The company or any member may also petition the competent court to appoint an ad hoc agent to represent it in the lawsuit, where there is a conflict of interest between the company and its legal representatives.
The articles of association may not subject the filing of a shareholder derivative lawsuit to prior notification or authorization of the general meeting, the management body, officers, or the board or waive in advance the right to file such a suit. This provision does not preclude the member or members that sued from reaching a settlement with the individual or individuals against whom the suit was filed to end the dispute.
No decision of the meeting of the members of the management body, officers, or the board shall extinguish a suit for civil liability brought against the company managers for torts while performing their duties. Any contrary decision shall be null.
The competent court to hear a shareholder derivative lawsuit shall be one within the jurisdiction of the company headquarters.
A shareholder derivative lawsuit shall be time-barred after three (3) years following the commission of the tort, or following its disclosure where it was concealed. For crimes, the shareholder derivative lawsuit shall be time-barred after ten (10) years.
Expenses and legal fees relating to the derivative shareholder lawsuit shall be paid by the company where the suit is filed by one or more members.
Filing a derivative shareholder lawsuit shall not preclude a member from suing the company for damages for an injury he might have personally suffered.