⦿ CASE SUMMARY OF:
Adekola Mustapha v. Corporate Affairs Commission (2008) – CA
– Similarity of names;
– Registration of names;
Corporate Affairs Commission
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abdu Aboki, J.C.A.
* FOR THE APPELLANT
– Mr Adekola Mustapha.
* FOR THE RESPONDENT
– Mr. Emmanuel Okonkwo Ashuaje;
⦿ FACT (as relating to the issues)
This is an Appeal against the decision of the Federal High Court; Abuja delivered on the 25th day of May, 2004 by S.J. Adah J.
The facts of the case are briefly stated as follows: The Plaintiff presented the names of three proposed Companies to the Defendant for Registration/Reservation but the Defendant refused to reserve the names on the grounds that there were in existence registered Companies with identical or similar names.
The Plaintiff not satisfied with the decision of the Respondent filed a writ of certiorari in the lower Court dated 10th October, 2002 seeking for the following reliefs:
“i. An Order quashing the decision of the Registrar General Corporate Affairs Commission dated 30/5/2002 not to accept the following names sent to him for reservation pursuant to section 32(1) of the Companies and Allied Matters Act, 1990 viz, A.A. Investment Nigeria Limited and A.A. Concerns Limited and a further decision not to accept Blue Sea Resources Limited for registration, which decision is contained on the form for availability check and reservation of name dated 26/9/2002.
ii. An Order compelling him to accept and reserve the names for registration.”
The lower Court heard the matter and gave a judgment on the 25th day of May, 2004 dismissing the claims of the Plaintiff. The Plaintiff being dissatisfied with the decision of the lower Court appealed to this Court. The Appellant’s Brief of Argument dated the 17th day of May 2006 was filed on the same date. The Respondent’s Brief of Argument dated 21st July, 2006 was filed on 21st November, 2006.
The Appellant’s Reply Brief dated 22nd November, 2006 was filed on the same date. At the hearing of the Appeal both parties adopted their respective Briefs of argument.
Whether the trial judge was right in holding that the names sought to be registered by the Plaintiff/Appellant were identical or similar to the names of companies already in existence and were properly refused by the Respondent acting pursuant to the provisions of Section 30 of the Companies and Allied Matters Act, 1990 (herein CAMA)?
⦿ ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
i. He submitted that the word “Ayida” is a name of a person, therefore no particular person can claim the exclusive use of that name. Counsel referred the Court to the computer print out in page 56 of the Record of Appeal which shows that several companies were registered in the name of Ayida and Ayinde…Mr. Adekola Mustapha maintained that with regards to A.A. Concerns Limited, the Name Availability on the Computer print out at pages 45 – 47 showing list of previously registered companies, reveals that none of the companies listed in the computer print out is similar or near similar to the company sought to be registered, He argued that even if A.A. Associates Limited registered as RC No. 305410 on 31st December, 1996 existed before the Appellant’s application, A.A. Associates Limited and A.A. Concept Limited cannot be said to be similar either as seen, pronounced or in meaning…He argued that the ones previously registered, which the lower Court assumed were similar are Blue Sea International Limited and Blue Sea Services Limited and submitted that these two Companies and indeed none of the names contained in the Computer print out are similar either as seen, pronounced or in meaning to the name submitted for registration.
*FOR THE RESPONDENT
i. He maintained that registration of Companies with similar or identical name is prohibited by the CAMA and referred the Court to Section 30(1)(a) of the CAMA. Learned Counsel for the Respondent submitted that Section 30(1)(a) of the CAMA does not give the Respondent any discretion to exercise when an Applicant proposes name or names which are identical or similar to existing name or names.
ii. Learned Counsel argued that the names need not be exactly the same in this regard but the impression they make is of essence. He maintained that “A.A. Concerns Ltd.” and “A.A. Concept Ltd.”, “Blue Sea Resources Ltd.”, and “Blue Sea International Ltd.” and “Ayida Investments (Nig.) Ltd.” and “Ayida Ventures Nig. Ltd.” are in near or close resemblance respectively because the names all have similar identification words and thus failed the test of similarity as envisaged by the CAMA.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is clear from the provisions of Section 30(1)(a),(b),(c) and (d) that the Respondent is under a mandatory duty to refuse to register any company in Nigeria with a name identical or so resembling another company already registered. In carrying out this duty, the Respondent is required to compare names from the list of companies already registered and stored in its data bank with the proposed names seeking to be registered. Where in the course of such comparison it is discovered that there are already names registered which have semblance or identical features with the proposed names, the Respondent has the responsibility to refuse to register such names.
ii. The Statute did not place any duty on the Respondent to undertake an etymology of the words used in formulating the names to be registered in ascertaining whether they are identical as to mislead or deceive people as to the identity of the names already registered. All that is required of the Respondent by law is a comparative analysis of the names from the ways they look or sound in the mouth and ears of ordinary citizens on the street of Nigerian towns and cities and in particular those doing business in markets in the commercial cities who may be potential business customers of these companies.
iii. In the instant case, there is no compelling reason to interfere with the finding of fact of the trial Court on the issue of resemblance of the names submitted for registration by the Appellant and those already registered by the Respondent. I have also carefully examined and compared the names as invited by learned Counsel for the Appellant, it is my opinion that from their looks in my eyes and their sounds in my ears, they are capable of confusing an unsuspecting citizen.
⦿ SOME PROVISIONS
Section 30(1) of Companies and Allied Matters Act LFN 1990 stipulates as follows: “No Company shall be registered under this Act by a name which: (a) Is identical with that by which a company in existence is already registered, or so nearly resembles that name as to be calculated to deceive, except where the company in existence is in the cause of being dissolved and signifies its consent in such manner as the Commission requires; or (b) Contains the words “Chamber or Commerce” unless it is a company limited by guarantee; or (c) In the opinion of the Commission is capable of misleading as to the nature or extent of its activities or is undesirable, offensive or otherwise contrary to public policy; or (d) In the opinion of the commission would violate any existing trade-mark or business name registered in Nigeria unless the consent of the owner of the trade mark or business name has been obtained.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
An Appellate Court will not interfere with the finding of fact in the trial Court unless when it is clear that the finding is perverse and not flowing from the facts relied upon or is not a proper exercise of judicial discretion. – Abdu Aboki, JCA. Mustapha v. CAC (2008)
I am of the opinion that in determining whether a name sought to be registered bears a similarity with an already registered name, regard should be heard to the look at the name or its sound in the mouth and to the ears and also the possibility of such a name being capable of confusing or misleading or being used to deceive an unsuspecting citizen. – Abdu Aboki, JCA. Mustapha v. CAC (2008)
The provisions of Section 30 (1) & (2) of the Act regarding the prohibition and restriction of names of companies are very clear and unambiguous. The criteria for such do not include consideration and application of English meanings of the words used in names of proposed companies. All that need be established is similarity in “names as are likely to cause confusion in the mind of the public. – Omoleye, JCA. Mustapha v. CAC (2008)