Adekola Mustapha V. Corporate Affairs Commission (2008)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
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 anti 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.
‘The Appellant from his two Grounds of Appeal distilled two issues for determination as follows:
“1. Whether all the 3 names submitted for reservation by the Appellant are similar in the way they sound, the way they look and or in meaning with the ones the Respondent marked against them as a result of which the appellant’s application was refused.
- Whether or not the Respondent can make use of interpretation aids/Dictionaries in arriving at its decision on similarity of names.”
The Respondent raised only one issue for determination in this Appeal which reads as follows:
“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)”
In the instant case, having carefully perused the issues for determination formulated by the parties, I observe that the issue formulated by the Respondent has properly and adequately accommodated the two issues formulated by the Appellant and it is capable of finally determining the dispute between the parties. It is for this reason that I find the issue formulated by the Respondent preferable and same is adopted for the determination of this Appeal.
Learned Counsel for the Appellant, Mr Adekola Mustapha informed the Court that he submitted three names of Companies for registration and they are – Ayida Investment (Nigeria) Limited, A.A. Concerns Limited and Blue Sea Resources Limited at different dates in 2002 to the Respondent for reservation pursuant to Section 32(1),(2) of the Companies and Allied Matters Act.
He maintained that the Respondent did not approve the names, even after he wrote a letter of complaint to the Respondent urging it to reconsider its position.
Learned Counsel for the Appellant invited the Court to examine the existing company names marked asterisk to see whether or not they resemble or are similar to the Appellant’s names.
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.
With respect to Blue Sea Resources Limited, learned Counsel maintained that the Name Availability on the Computer print out at pages 60 – 66 of the Record shows that no company was previously registered in that name. 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.
Mr. Adekola Mustapha argued that though the learned trial Judge admitted the correct principle applicable in the determination of cases of this nature as enunciated by the Appellate Courts which is that of conducting a comparative assessment of the names as it sounds in the mouth, heard to the ears or appears to the eyes, refused to apply the same principles to the case before him.
He submitted further that if the learned trial Judge had done so, he would have come to the conclusion that none of those names submitted for registration is identical or similar to any of the previously registered Companies. He referred the Court to the cases of:
Ferodo Ltd. v. Ibeto Industries Limited (2004) 5 NWLR Pt. 866 Page 317;
Beecham Group Limited v. Seedee Food Products Nigeria Limited (1985) 3 NWLR Pt. 11 Page 112;
Alban Pharmacy Ltd. v. Sterling Products International Inc. (968) All NLR 300;
Coca Cola Company of Canada Ltd. v. Pepsi-Cola of Canada Ltd. (1942) 1 All ER 615.
Learned Counsel for the Appellant maintained that none of the names submitted for registration is identical with any of the previously registered company nor so nearly resemble them as to be calculated to deceive an average person dealing with any of those companies.
He submitted that since the learned trial Judge did not make a finding or at least gave reasonable grounds which informed his decision that the names were similar and therefore not registrable, this Honourable Court has a duty to intervene and set aside that decision.
Learned Counsel for the Appellant referred the Court to Section 30(1)(a),(d) of the CAMA and submitted that the Law which placed an obligation on the Respondent to consider names submitted for registration does not expect the Respondent to act arbitrarily or without giving due consideration to application submitted to it before taking decision. He referred the Court to Section 10(2) of Interpretation Act Cap 192 Laws of the Federation 1990.
Mr. Adekola Mustapha maintained that the Respondent is under an obligation to act reasonably and not arbitrarily in the course of forming an opinion as to whether a name ought to be registered or not.
Learned Counsel for the Appellant further submitted that consideration or application of English meaning of the words used in the names submitted to it for registration should be a factor to be given consideration.
He argued that it will therefore be erroneous to assume that the Respondent was under no obligation to process, consider or be influenced by the meaning of words or phrases used or put together as name(s) in an application for registration of company.
Learned Counsel for the Respondent, Mr. Emmanuel Okonkwo Ashuaje in his reply submitted that the Appellant had applied for reservation of the following names for registration as Companies:
Ayida Investment (Nigeria) Limited, A.A. Concerns Limited and Blue Sea Resources Limited and that these names closely resembled names of Companies already in existence such as Ayida Ventures Nigeria Limited incorporated on 7th March, 1995 with registration number 267315, AA. Associates Limited incorporated on 31st December, 1996 with registration number 305410 and Blue Sea Resources Limited incorporated on 18th April, 1992 with registration number 366812.
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. He referred the Court to its argument before the lower Court on 4th March, 2002.
Learned Counsel, Mr. E. O. Ashuaje argued that Appellant’s submission in paragraph 6 of page 3 of his Brief that, the word “Ayida” is a name of a person and in that respect no particular person can claim exclusive use of that name, is a new issue which was not raised or determined by the lower Court. See Buhari v. Yusuf (2003) 14 NWLR Pt. 841 page 446.
He further argued that even if the Appellant had raised this issue at the lower Court and the Court did not make pronouncement on it, such issue cannot be argued on appeal except with the leave of this Honourable Court and referred to the following cases:
Ogbaide v. Osula (2003) 15 NWLR Pt. 843 Page 275;
Nwangu v. Ofoegbu (2003) 7 NWLR Pt. 820 Page “503;
Kate Ent. Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR Pt. 5 Page 116;
Lebile v. Reg. Trustees of C & S (2003) 2 NWLR Pt. 804 Page 399.
Learned Counsel for the Respondent maintained that a test of similarity in names is determined by placing the names side by side of each other to see whether there is or could be any major difference or mark of distinction between the names.
He submitted 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.” mean the same thing.
Mr. E. O. Ashuaje further submitted that the operational phrases in the names i.e. “A.A.”, “Blue Sea” and “Ayida” have made the identical elements in the proposed names too strong to be ignored.
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.
He submitted that the circumstances where any similar or identical name can be registered is prescribed in Section 30(1)(a) of the CAMA.
Learned Counsel for the Respondent further argued that none of the existing companies had signified that it was in the course of being dissolved. He maintained that the Appellant had not shown that the requisite consent was obtained from the previously registered Companies showing that the Companies were and still engaged in active business. Therefore, their registered names are thereby protected from being duplicated or infringed by Applicants.
Mr. E. O. Ashuaje submitted that the cases of Ferodo Ltd. v. Iheto Industries Limited (supra) and Beecham Group Limited v. Seedee Food Products Nigeria Limited (supra) other cases cited by the Appellant are cases decided on issues of Trademarks. Learned Counsel maintained that these cases are absolutely irrelevant in terms of the jurisprudence and inconsistent in terms of the facts with the present case and therefore extraneous and ought not to be countenanced as precedents in this case.
He argued that the issue in this case is not whether the names proposed by the Appellant violate any existing trade mark or business name, therefore the issue of trademark does not arise here and ought not to be raised or considered.
Learned Counsel for the Respondent argued that the essence of a name in company jurisprudence is the use of words or combination of words to identify a company from any other company.
He maintained that for the purpose of registration of a company, our Law prescribes that such name should not be similar or identical with that of any company already registered. Thus, each company’s name should be distinct from any other.
Learned Counsel, Mr. E. O. Ashuaje further submitted that the function to identify and reject similar or identical names placed on the Respondent by Law, does not include the academic task of voyaging into the “etymology” of names proposed for reservation. He maintained that the issue of dictionary meaning of words is tantamount to inserting into the provision of the Law that which is not there.
He argued that the Appellant has a remedy other than this Appeal which he has not exhausted and that is the option of submitting other names for consideration and reservation by the Respondent. The Respondent in the instant case is conferred with the responsibility of registering Companies operating in Nigeria by Statute, and under the said Statute it can prohibit and restrict certain names sought to be registered.
The Companies and Allied Matters Act LFN 1990 stipulates as follows:
“Section 30(1). 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.”
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.
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.
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.
In Niger Chemists Ltd. v. Nigeria Chemists & Anor. (961) All NLR Page 180, it was that:
“In an action to refrain the Defendant from using a business name similar to that of the Plaintiff it is not necessary to prove either intent to deceive or actual deception. The Plaintiff need only prove that the name used by the Defendant is so similar to his own as to be likely to cause confusion in the mind of the public.”
I agree with the opinion of the learned trial Judge when he said in his judgment at page 88 of the Record of Appeal thus:
“The learned Counsel for the Applicant referred the Court to ordinary meanings of the words used in names to show that they mean different things. This I must say with respect is a misconception of the import and dictate of the law. The law in that Section 30 CAMA did not put any responsibility on the 2nd Respondent. ”
A perusal of the list of already registered companies with the Respondent shown on Pages 53-66 of the Record of Appeal will reveal that the names: “A.A. CONCERNS LIMITED”, “AYIDA INVESTMENTS (NIGERIA) LIMITED” and “BLUE SEA RESOURCES LIMITED” filed on behalf of the Appellant bear striking resemblance with A.A. CONCEPT LTD., BLUE SEA INTERNATIONAL LTD. and AYIDA VENTURES NIG. LTD. already registered with the Respondent.
The trial Court in its Ruling on page 87 of the Record of Appeal made a finding of fact confirming this observation as follows:
“In the instant case, three names were submitted to the Defendants. These names were turned down because they resemble other names already registered. From the availability check and reservation of name check filed in this case the following is disclosed:
A. “A.A. Concerns Ltd.” Similar name in existence is “A.A. Concept Ltd.”
B. “Blue Sea Resources ltd.: Similar name in existence is “Blue Sea International Ltd.”
“Ayida Investment (Nig.) Ltd.” Similar name in existence is, “Ayida Ventures Nig. Ltd.”
At page 88 of the Record of Appeal, the learned trial Judge also said:
C. “A look at the names proposed in the instant case no doubt reveals out rightly some semblances with the names already in existence as highlighted by the Respondent in this case. I hold therefore that the 2nd Respondent was right in rejecting the three names proposed by the Applicant.”
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. See:
Amasike v. Registrar-General C.A.C (2006) 3 NWLR Pt 968 page 462 at 493-5 ,Agunbiade v. State (1999) 4 NWLR Pt. 599 page 391.
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.
I find no merit in this Appeal and I affirm the decision of the learned trial Judge, No cost is awarded.
Other Citations: (2008)LCN/3016(CA)
