Bernard Amasike V. The Registrar General Corporate Affairs Commission & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Abuja Division, which affirmed the decision of the Federal High Court Abuja. The plaintiff/applicant who is now the appellant in the appeal before this court initiated the action by way of Originating Summons seeking the following issues to be resolved:-

1. Whether having regard to Part C of the Companies and Allied Matters Act 1990 it was proper for the defendants to reject as ‘Not Registrable” the following names proposed by the plaintiffs, to wit: “INSTITUTE OF CORPORATE GOVERNANCE,” BUREAU OF CORPORATE GOVERNANCE” and/or “INSTITUTE OF COMPETITION POLICY & CORPORATE GOVERNANCE”
2. Whether the defendants have a discretion to reject the Plaintiff’s application for ‘name availability’ applied for by the plaintiff and if the answer is in the affirmative, whether in relation to the rejection of the corporate names proposed by the plaintiff, the defendants’ discretion was exercised judicially and/or judiciously.
3. Whether the rejection by the defendants of the Plaintiff’s application for “name availability” was proper and in accordance with the law
4. Whether the defendants response rejecting the “name availability” of the applicant was vague, ambiguous and/or imprecise, to wit: ‘Not Registrable” and if the answer is in the affirmative, whether the defendants are justified to give such vague responses’
5. Whether under Part C of the Companies and Allied Matters Act 1990, the names “INSTITUTE and/or “BUREAU” are prohibited as a matter of law and if the answer is in the negative whether the defendants were justified in refusing the names as “Not Registrable”
6. Whether the defendants can as a matter of corporate policy reject the proposed corporate names embodying “Institute” and/or “Bureau” and if the answer is in the negative whether the defendants are justified under the circumstances of this case and based on their corporate policy to reject the corporate names proposed by the Plaintiff. “Thereafter, the plaintiff sought the following reliefs:-

“(i) “A declaration that the defendants’ rejection of the plaintiff’s proposed corporate name- “Institute of Corporate Governance”, by designating same as ‘Not Registrable” under Part C of CAMA is improper, ultra vires and not in accordance with CAMA Provisions.

(ii) A declaration that the defendants’ rejection of the plaintiff’s proposed corporate name – “Bureau of Corporate Governance” by designating same as “Not Registrable” under Part C of CAMA is improper, ulta vires and not in accordance with CAMA Provisions’

(iii) A declaration that the defendants’ rejection of the plaintiff’s proposed corporate name – “Institute of Competition Policy & Corporate Governance” by designating same as “Not Registrable” under Part C of CAMA is improper’ ultra vires and not in accordance with CAMA provisions.

(iv) A declaration that the defendants’ exercise of its discretion by rejecting the plaintiff’s proposed corporate names to wit: “INSTITUTE OF CORPORATE GOVERNANCE” “BUREAU OF CORPORATE GOVERNANCE” and/or INSTITUTE OF COMPETITION POLICY & CORPORATE GOVERNANCE” is invalid in that the said discretion was not judiciously and/or judicially exercised.

(v) A declaration that the rejection by the defendants of the plaintiff’s applications for “name availability” with respect to the proposed corporate names, was improper and not in accordance with the provisions of CAMA 1990.

(vi) A declaration that the defendants’ response in rejecting the plaintiff’s application for “name availability” by making same “Not Registrable” was vague and ambiguous and thus an abuse of discretion.

(vii) A declaration that the names “INSTITUTE” and/or “BUREAU” are not prohibited names under the Act and that the defendants were not justified in refusing same as “Not Registrable”.

(viii) An order of perpetual injunction restraining the defendants from rejecting the plaintiff’s proposed corporate names’ to wit: “INSTITUTE OF CORPORATE GOVERNANCE” “BUREAU OF CORPORATE GOVERNANCE” and/or “INSTITUTE OF COMPETITION POLICY & CORPORATE GOVERNANCE”.

(ix) An order directing the defendants to immediately process and approve the names as available and registrable under Part C and to proceed to register and incorporate the same’ to wit: “INSTITUTE OF CORPORATE GOVERNANCE” “BUREAU OF CORPORATE GOVERNANCE” and/or “INSTITUTE OF COMPETITION POLICY & CORPORATE GOVERVANCE”.

The appellant had filed three successive applications for the approval of the above corporate names by the respondents’ who processed the appellant’s applications for name availability and rejected them by merely writing ‘not registrable’. According to the appellant the respondents did not give grounds for their decision that the proposed names were not registrable, inspite of several demands by the appellant. Consequent upon this and the dissatisfaction of the appellant, he instituted this suit by way of Originating Summons. The respondents however posited that the 2nd respondent did earlier inform the appellant on the types of organizations that are registrable. An affidavit in support of the originating summons was sworn to by a Mr. Pomise Onyegbula, and a counter affidavit to counter the said affidavit was sworn to by one Mukasa Onoja. The supporting affidavit has attached therewith some documents. Both learned counsel addressed the court on the originating summons and the documents exhibited before the court’ and at the end of her consideration of all materials before her the then Chief Judge of the Federal High Court Ukeje J, dismissed the application and pronounced that the reliefs fail. Dissatisfied, the plaintiff appealed to the Court of Appeal, which found no merit in the appeal and dismissed it. Again the plaintiff was dissatisfied and has appealed to this court on five grounds of appeal from which he distilled four issues for determination in his brief of argument. As is the practice in this court both learned counsel exchanged briefs of argument which were adopted at the hearing of the appeal. The four issues raised for determination in the appellant’s brief of argument are:-

1. Whether the Lower Court was right to have raised, considered and relied on new issues that were neither contained nor distilled from the grounds of appeal and on that basis dismissed the appeal.
2. Whether the lower court was right in dismissing the appeal on the basis that the substantive suit was commenced by originating summons instead of judicial review.
3. Whether the lower court was right in not reversing the decision of the trial court on the ground that the trial court, suo motu, raised and considered material issues in dismissing the substantive suit without affording the appellant the opportunity of being heard.
4. Whether the lower court was right in upholding the decision of the trial court that the respondents were justified in their decision that the corporate names proposed by the appellant are unregistrable by virtue of the provisions of the companies and Allied Matters Act, 1990.

In their own brief of argument the respondents raised the following two issues:-

“1. Whether the lower court was right in affirming the decision of the trial court that the names i.e “INSTITUTE OF CORPORATE GOVERNANCE” “BUREAU OF CORPORATE GOVERNANCE” and “INSTITUTE OF COMPETATIVE POLICY AND CORPORATE GOVERNANCE” were not registrable under Part C of the CAMA.