TABLE OF CONTENTS
Title page i
Declaration ii
Certification iii
Dedication iv
Acknowledgement v
Table of Contents vi
Table of Abbreviations x
Table of cases xi
Table of statutes xvii
Preface xviii
Abstract xx
CHAPTERONE
INTRODUCTION
1.1 Meaning, nature and scope of a company 1
1.2 Critical analysis 3
1.3 Types of companies 5
1.3.1 Private company 5
1.3.2 Public company 6
1.3.3 Company limited by shares 7
1.3.4 Company limited by guarantee 7
1.3.5 Unlimited company 8
1.3.6 Statutory company 9
1.4 A brief history of company law in Nigeria 9
1.5 The legal implications of incorporation 11
1.6 Registration of a company: the lawyer’s role 11
1.6.1 The effect of incorporation 15
1.7 Doctrine of incorporation 15
1.7.1 Corporate personality and legal responsibility 24
CHAPTER TWO
2.0 Pre-incorporation contracts 25
2.1.1 Pre-incorporation contract at common law 25
2.1.2 Pre-incorporation contracts under the company and allied
matters act, 1990 (CAMA) 29
2.2 Reliefs and ratification 31
2.3 Who is a promoter? 34
2.3.1 Role and duties of promoters 39
2.3.2 Duty of disclosure 41
2.3.3 Duty to account 44
2.3.4 Duty of care and skill 45
2.4 Remedies for breach of promoter’s duties 46
2.4.1 Rescission of the contract 47
2.4.2 Action for recovery of secret profit 50
2.4.3 Other remedies 50
2.5 Remuneration of the promoters 51
CHAPTER THREE
3.0 The concept of the veil of incorporation 53
3.1 Meaning of the concept 53
3.2 Lifting the veil of incorporation 56
3.2.1 Statutory lifting of veil 58
3.2.2 Reduction of membership below the statutory minimum 58
3.2.3 Fraudulent trading 61
3.2.4 Signing of negotiable instruments 63
3.2.5 Misdescription of company 64
3.2.6 Relationship between holding and subsidiary companies 65
3.2.7 Taxation 68
3.3 Judicial lifting of the veil 68
3.3.1 Agency relations 69
3.3.2 Fraud or improper conduct 71
3.3.3 Trust 73
3.3.4 Public policy 74
3.3.5 Other instances 75
CHAPTER FOUR
4.0 The consequences of incorporation 78
4.1 The corporate personality principle 79
4.2 Sue and be sued 82
4.3 Perpetual succession 83
4.4 Limited liability 85
4.5 Power to borrow 86
4.6 Power to transfer shares 88
4.7 Power to contract 91
4.8 Power to own property 93
4.9 Contract of employment 95
4.10 Other consequences 96
CHAPTER FIVE
SUMMARY, CONCLUSION AND RECOMMENDATIONS
5.0 Introductions 100
5.1 Summaries 100
5.2 Conclusions 101
5.3 Recommendations 104
Bibliography 107
TABLES OF ABBREVIATIONS
A.C Appeal Cases
ALL E.R All English Reports
B & Ad Barnwell and Anderson
C.A Court of Appeal
C.A.M.A Companies And Allied Matters Act
C.C.C.H.C.J Selected Judgement of the High Court of Lagos State
C.H. Chancery Report
C.P. Common Plea
E.N.L.R. Eastern Nigeria Law Reports
F.R.C.R. Federal Revenue Court Reports
H.L House of Lords
K.B King’s Bench
L.L.R Lagos Law Reports
L.R Law Reports
L.T Law Times
N.C.L.R Nigerian Constitutional Law Reports
N.W.L.R Nigerian Weekly Law Reports
P.C Privy Council
Q.B.D Queen’s Bench Division
S.C.N.J. Supreme Court of Nigerian Judgements
W.N.L.R Western Nigerian Law Reports
TABLE OF CASES
Abbey Malvern Walis Ltd. V. Ministry of Local Government
and Planning (1951) CH 728 73
Abdulkareem V. Incar Ltd (1986) 32
Akande V. Omisade Suit No. FCA/L/108/80 of 4/5/83, Unrep. 70
Anyagbunam V. Osaka (2000) 76 CR.CN 85
Ashonibare V. Mansour (1963) L.L.R. 10 27
Automatic Self Cleansing Syndicate Company V
Cunninghame (1906) 2 CH 34 97
Bank Voor Handel V Slatford (1953) 1QB 248 atp.278 57
Banque Del’AfricQue Occidentals V Habu Iliasu and
Savage (1964) NNL.R. 30 20
Bolten Engineering Co. Ltd. V. Graham and Son (1957) 1QB159 22
British & Frensh Bank Ltd. V. Akande (1961) WNLR 277 94
Calligora V. Glovanistaori and Co. Ltd (1961) ALL N.L.R 530 28
Containers (Nig) Ltd V. Nigerglassco (1979) 4-6 CCHCJ 92
Cook V Deeks (1919) IAC 554 PC 43
Daimler Company Ltd V. Continental lyre and Rubber Co.
(Great Britian) Ltd (1916) 2 AC 307 74
Dairarn Howver Ltd. V. Christian & Company Ltd.
(1967) WCLR 434 63
DFN Distributors Lt & Tower V. Hamlet London
Borough (1976) 1 WLR 892 67
Dipeherima V. Bornu Holding Co. (1878) 2 App. Cas 12-18 85
DPP V Schildkamp (1971) ACI.HL 61
Dunlop Nigerian Industries Ltd. V. Forward Nigerian Enterprises
Ltd and Fafore (1976) A.L.R. Comm. 243, (1976) NCLR 242 19
Durham Fancy Goods Ltd. V. Michael Jackson Ltd. (1968) 2 QB 839 64
Emmanuel Urhobo V Chief Tarka and Gata (Nig.) Ltd. (1976) I
I CCHCJ 26-29 28
Enahoro V Bank of Africa (1991) ALL NCLR 180 25
Emma Silver Mining Co. Ltd. V. Leinis and Sons (1879) 4 CPD 396 36
Erlanger V. New Sombrero Phosphate Co. Ltd (1878) 3
App Cas 1218 at 1236 40
Firestone Tyre and Rubber Co. V. Ilweling (1957) IWLR 464 66
Foss V Harbottle (1843) 2 Hare 461 16
Gilford Motor Co. V. Horne (1933) CH 935 71
Gluckstein V. Barnes (1900) A. C 240 48
Igboka V. State (1983) I SCI 83
Iro V. Park (1972) 12 SC 93, 102 59
Jacobus Marler Estate Ltd. V. Marler (1971) A.C 793 (PC) 50
Johnson V Driefontein Consolidated Mines Ltd. (1902)
AC 484 at pp.505 96
Jones V. Lipman (1962) I.W.L.R 832 72
Kelner V. Baxter (1866) L.R. 2 CP. 174 26
Lagunas Nitrate Co. V. Lagunas Syndicate (1899) 2 CH 392 at 425 47
Lee V. Lee’s Air Farming Ltd (1960) 3 ALL-E.R. 420 19
Lennard’s Carring Company V. Asiatic Petroleum Co. Ltd. (1915)
AL 705 atpp.7J3-714 23
Little Woodstores V.I.R.C (1969) IWLR 1241 74
Macaura V. Northern Assurance Co. Ltd (1986)
2 NWLR (Pt. 20) pg. 48 53
Marina Nominees V. Board of Inland Revenue (1966) WCLR 389 76
Marina Nominees Ltd. V. Federal Board of Inland Revenue (1966)
2 NWLR (Pt. 20) p. 48 19
Melhado V. Porto Alegnesry (1874) L.R. 9C.P, 503 52
Merchandise Transport Ltd. V British Transport
Commission (1962) 2 QB I 73 76
Nassausteam Ltd. V. Tyler (1894) 70 L. T. 64
Nata Land Co. V. Pauling Colleries Syndicate (1986) 2 NWLR 516 32
Newborne V. Sendold (Great Britian) Ltd. (1954) Q.B. 45,
(1953) 2 WLR 596 33
Niger Chemist Ltd. V Nigeria Chemists (1961)
1 ALL NLR 171 at p.173 12
Nokes V. Doncaster Amalgamated Colleries (1940) A. C 104 95
Oakes V. Turquand and Harding (1867) L.R. ZHL. 325 (HL) 86
Omnium Electrical Palace V Baine (1914) I CH 322 45
Opeyemi V. Esso (W.A) Ltd (1961) WNLR 30 82
Pan Sian African Co. Ltd V National Insurance
Corporation (Nig.) Ltd. (1982) 9 SC I 21
Penrose V. Mactyr (1968) 2 QB 839 64
Philips V. Abou Dinan (1976) 2 FRCR 24 20
Phonogram Ltd. V. Lane (1981) 3 ALL ER 182 CA. 33
Re Bowling and Welby’s (1859) I CH 663 60
Re Bugle Press Ltd (1961) CH 270 CA 72
Re Darby (1911) 1Kb 95 72
Re English V. Colonial Produce Co. Ltd (1906) 2 Ch. 435,
75 L.J, Ch. 831 29
Re English and Colonial Produce Co. (1906) 2 Chd.435 32
Re FG. Film Ltd (1953) IWLR 483 69
Re Heresford V. South Wales Wagon Engineering
Company (1904) AC 120 32
Re Leed & Hanley Theatres of Varieties Ltd (1902) 2 CH, 809 48
Re Maidstone Building Provisions Ltd (1971) 1 W. Lr 1085 62
Re National Motor Mailcoach Co. Ltd (1980) 2 Ch. 228 51
Re Patrick Lyon Ltd. (1932) CH 786, (1933) ALL E.R. Rep. 590 62
Re William C. Leitch Ltd. (1932) 2 Ch. 71, Per Maugham J at p. 77 61
Robbert V. Coventry Corporation (1947) 1 ALL E.R. 308 94
Salomon V. Salomon and Co. Ltd. (1897) AC 22 16
Scholus V. Canadian Meat Processing Corporation (1948)
147 D.L.K.R (3d) 81 54
Smith, Stone and Knight V. Birmingham (1939) 161 LT 371 67
Sotuminu V. Ocean Steadmaship (Nig.) Ltd. (1987) 4 N.W. 83
Sparks Electric Nigeria Limited V. Pommile (1986) MWLR 516 25
Sterney Corporation V. Osofsky (1937) 3 ALL. E.R. 289, 291, CA. 85
Taibatu Adeniji V. Starcola (Nig) Ltd (1972) 1 SC 202; (1972)
1 ALL NL.R. 49 37
Trenco (Nig) Ltd. V Africa Real Estate Ltd (1978) 1 LRN at p.153 23
Turton V. Turton (1899) 42 Ch.d 128 13
Twycross V. Grant (1877) 2 C.P.D. 469, 541 CA 36
Tyrel V. Bank of London (1862) 10 H.L. Case 26 44
Wallerstewer V. Moir (1974) 1 WL.R. 991 73
Wema Bank Ltd. V. NNS.L (1976) 2 F.R.C.R. 83
Whalley Bridge Calico Printing Co. V. Green and Smith (1885)
Q.B.D. 109 at p.11 37
W.N.F.C.V. West Coast Builder (1971) W.L.R. 93 92
TABLE OF STATUTES
The Immigration Act, 1963
The Nigerian Investment Promotion Act No. 15, 1995
The Nigerian Enterprise Promotion Decree No. 54, 1989
The Securities and Exchange Commission, Decree No. 54, 1989
The Industrial Inspectorate Act, 1970
The Industrial Development and Ordinating Committee Decree, 1983
The Companies and Allied Matters Act, 1990
The Companies Income Tax Decree, 1979
Companies and Income Act, 1917
Nigeria Companies Ordinance 1912
Companies Income Tax Decree, 1979
PREFACE
A writer who is offering to the public, a book in respect of a subject matter on which the public is already in possession of a host of others, is required to inform his readers specifically what it is he intends to convey and the improvements he expects to make.
It is in the light of the foregoing, that an attempt is hereby being made to acquaint the readers with a concise summary of what this entire legal research sets out to achieve.
A lot of inspiration for this legal research was derived from the need for a better appreciation of the legal implication of incorporation, and the increasing need for an analysis of the operation of the doctrine of corporate personality and lifting of veil of incorporation, as available under the Nigerian Companies and Allied Matters Act, 1990.
This legal research is divided into five chapters. Chapter one, which for obvious reasons, is the introductory chapter, examines the nature and scope of a company, an a critical analysis to same. This chapter also examined the various stages of the registration of a company, with particular emphasis on the role of the lawyers as well as the effect of incorporation. Moreover an attempt at an expository analysis of the doctrine of corporate personality shall be made in this chapter under discourse.
Chapter two, on the other hand, considers the issue of pre-incorporation contracts, with profound emphasis on the role of the promoter. This chapter comprehensively addresses the vexed question: who is a promoter? It also examines the duties of the promoters and remedies available to the company and innocent shareholders or subscribers in the event of the breach of any of the promoter’s duties. This chapter also deals with the remuneration of promoters; looking at both the English common law position, and the position of the Nigerian Companies and Allied Matters Act, 1990.
In chapter three, the concept of the veil of incorporation is considered. That is, statutory lifting of the veil as well as the instances of judicial lifting of the veil of incorporation.
Chapter four deals with the consequences of incorporation as they relate to both private and public companies, and how the relevant statutory provisions operate.
Finally, the last chapter, which is the fifth, will concentrate on the conclusion, in which the present writer made some general observations and proferred some recommendations. This, by way of summary, covers the main concern of this entire legal research.
ABSTRACT
This is a thesis which discussed the topic “The twin concepts of corporate personality and lifting the veil of incorporation under the Nigerian company law. The indispensability of this aspect of our law has propelled this research so as to enable the readers have some fundamental knowledge about company law and practice in Nigeria. This legal research is divided into five chapters. The first chapter deals basically with the general introduction. Chapter two examines pre-incorporation contracts viz-a-viz pre-incorporation contract at common law and under the CAMA 1990. The role of promoters, the remedies for breach of promoters duties as well as the remuneration of promoters are also examined. Chapter three gives us a proper understanding of lifting the veil of incorporation as well as the various ways in which the veil of incorporation could be lifted. Chapter four reviews the consequences of incorporation as it relates to both private and public companies. Lastly, chapter five deals with the general conclusion and recommendations to solve some of the problems confronting company law and practice with particular emphasis to the subject matter of this research.
CHAPTER ONE
INTRODUCTION
1.1 MEANING, NATURE AND SCOPE OF A COMPANY
A general review of the relevant texts on company law and practice in Nigeria, and indeed within the commonwealth, will reveal that many authors have hold different opinions as to the meaning of the term “Company”. This is because, just as we have many authors on company law and practice around the globe, so also exist different conceptions as to the meaning of a company. Added to this is the fact that certain problems are usually associated with arriving at a universally acceptable definition of some legal terms. It has been observed that the word “Company”, has a variable disposition[1].
L.C.B. Gower[2] opined that a company is an association of number of people for some common object or objects purely for economic reason(s).
A company has also been viewed as an intangible business entity or association formed by people or groups for the purpose of carrying out defined and common objective or objectives usually for gain[3].
Similarly, Oshorn’s Law Dictionary defines a company as incorporated body with separated legal personality.
It is an association of persons formed for the purpose of some business or undertaking, carried on in company’s name.[4]
The foregoing therefore explains why section 18 of the Company and Allied Matters Act (CAMA) 1990 provides thus:- “As from the commencement of the Act, any two or more persons may form and incorporate a company by complying with the requirements of the Act in respect of registration of such company” .
The intendment of this provision is that a company may be regarded as a legal framework whereby at least two persons agree to carryon business whether equally or otherwise with predetermined object (economic gain or charitable reason) be it they practice directly or otherwise in running of the business provided they complied with the provisions of the enabling legislation.[5] for the incorporation of the companies thereby attaining a distinct legal personality which is autonomous of its shareholders or its subscribers.
For the purpose of this research, a company can simply be defined as a legal entity or corporate body which is brought into being by the registration procedures laid down by the Nigerian Companies and Allied Matters Act, 1990.
The Company and Allied Matters Act, 1990 provides that:
“a company or an existing company means company formed and registered under this Act, or as the case may be formed and registered in Nigeria and in existence on the commencement of this Act”.
From the above provision, it is illegal for an association consisting of more than twenty persons to operate a business for profit or gain unless such an association is registered as a company under the Company and Allied Matters Act, 1990 or such company is formed in pursuance of some other enactment in force in Nigeria.
However, a company can be formed for reasons other than profit motive. And a company, whether incorporated or otherwise, can be formed with only two members.
This situation more often than not applies to private companies whereby the minimum members are two while the maximum is fifty.
1.2 CRITICAL ANALYSIS
We have seen in the preceding phase that an attempt to arrive at a definite definition of the word “Company” is unrealizable, it is also very pertinent to note that it is not in all cases that companies are formed for the purpose of profit maximization. This is because there are instances where companies are formed solely for charitable reasons. It is in view of this fact, that the Nigerian Companies and Allied Matters Act[6] 1990 states that:
“Where a company is to be formed for promoting commerce, art, science, religion, sports, culture, education, research, charity or other similar objects, and that the income and property of the company are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the company shall not be registered as a company limited by shares but may be registered as a company limited by guarantee”.
The inference from the above is that a company limited by guarantee is that company that is formed for charitable purposes and not for profit motive.
Moreover, it is worthy to note that a company whether incorporated or not could be brought into an existence by only two members, one of whom may possess an overwhelming majority shares while the others may be a mere dormant or sleeping member. This has however negated the believe that a company can only be formed by many people with equal or at least fairly balanced interest.
Furthermore, a further analysis of the word “company” will show to a great extent that, that there is no clear demarcation between the members of a company and a manager of a company. Therefore for a proper understanding of the term under study, recourse should be had to both the statutory provisions as well as some of the contributions from various authors on company law and practice.
Therefore, this work would be better appreciated if the word “company” could be viewed from the perception of that legal organization where at least two persons have agreed to float a company or business in question, either on an equal proportion or otherwise, to carryon some specific charitable purpose or for other purposes whether or not participate directly or indirectly in the management of the business concerns, and have complied with the relevant requirements of the Act, with regard to registration of a company and afforded itself a distinct legal personality thereby of conducting the business as an artificial person.
1.3 TYPES OF COMPANIES
Having attempted the various ways in which the word “Company” could be defined, it is hyperactive to also look at the different types of companies with particular reference to their structure, purpose and functions as this would help us in further appreciation of the concept – company
Basically, there are five types of companies, namely:
(i) Private Company
(ii) Public Company
(iii) Company Limited by Shares
(iv) Company Limited by Guarantee
(v) Unlimited Company
1.3.1 PRIVATE COMPANY
A private company is a company that restricts the right to transfer its share and limits the number of its member to 50, not including the persons who are in the employment of the company and person who having been formerly in the employment of the company who were while in that employment and having continued after the determination of that employment to be members of the company, and prohibit any invitation to the public to subscribe for any shares or debenture of the company. Minimum share capital of a private company is N10,000.00.
According to section 22 of the Company and Allied Matters Act, 1990, a private company is one which states in its memorandum to be private company. It has the following features among others:
(a) It shall be restricted from transfering its shares without due consultation with other members[7]?
(b) Its members shall not exceed fifty not including person who are bonafide in the employment of the company or were while in that employment and have continued after the determination of that employment to be members of the company[8].
(c) It is not, unless authorized by law to invite the public to subscribe for any shares or debentures of the company or deposit money for fixed period or payable at call, whether or not bearing interest[9].
1.3.2 PUBLIC COMPANY
The Act merely declares that any company other than a private company shall be a public company and its memorandum shall state that it is a public company[10]. The main features of public company are: It can, unlike private company transfer its shares freely to the public without any restriction. Also, there is no seal as to the membership of public companies. Besides, a public company can invite the public subscribers for its shares and debentures. The minimum, capital requirement of a public company is N500,000.00[11].
1.3.3 COMP ANY LIMITED BY SHARES
This is a type of company having the liability of its members limited to the amount if any unpaid on the shares respectively held by them[12]. Here, a member who has paid for his share in full cannot be held liable for the debts of the company unless in particular cases in which the shareholder’s liability is extended.
Conversely, where a shareholder has an outstanding sum on his shareholding, he can be called upon to pay a duly authorized collard and this is so whether or not the company is being wound.
1.3.4 COMPANY LIMITED BY GUARANTEE
A company limited by guarantee is that company which is formed for the promotion of commerce, art, science, religion, sports, culture education, research, charity or other similar objects, and the income and property of the company are to be applied solely toward the promotion of its objects and no portion thereof is to be paid directly or indirectly to the members of the company except as permitted by this Act, the company shall not be registered as a company limited by share, but may be registered as a company limited by guarantee[13].
Moreover, a company limited by guarantee shall not be registered without the authority of the Attorney General of the Federation[14].
In the event of winding up, the liability of members of a company limited by guarantee is limited to such an amount as the members may respectively thereby undertake to contribute to the assets of the company[15].
1.3.5 UNLIMITED COMPANY
An unlimited company is a company where the liability of the members is unlimited. Here, every member is personally liable in full for the debts of the company while still a member. An unlimited company can register with twenty members, but the directors may from time to time register an increased number of members.
An unlimited company under the Nigerian Companies and Allied Matters Act, 1990 must be registered with a share capital and all existing unlimited companies must not later than association so that it becomes an unlimited company having a share capital not below the minimum share capital permitted under section 99 of CAMA.
1.3.6 STATUTORY COMPANY
There are companies brought about by statute. Their power, purpose, management and functions are as stated in the enabling Act. A profit is not the major main aim of setting up these companies but basically for government to provide an important social amenity. These companies’ major or only shareholder is the Government, the Directors and top managers are appointed by Government and they do not have share capital.
1.4 A BRIEF HISTORY OF COMP ANY LAW IN NIGERIA
The history of company law can be traced back to the Joint Stock Companies Act, 1885 which introduced the Principles of Limited Liability Company[16].
With the reception of English Laws into Nigeria due to colonialism, the first legislative attempt was made in 1912 to stem the practice of going to England on the position of the law on controversial company issues.
Although the Companies Ordinance of 1912 was only in force in the Colony of Lagos, the amalgamation of Southern and Northern Nigeria in 1914 brought the extension of the ordinance to the entire country by the Company (Amendment & Extension) Ordinance 1917[17].
Progressively, the Companies Ordinance 1922 repealed both the 1912 and 1917 Ordinances[18].
In 1968, a new Company Decree was promulgated to replace the 1922 companies ordinance[19]. The 1968 Company Act was mainly based on the United Kingdom Companies Act, 1948 and part of the recommendations of the JENKINS COMMITTEE[20].The 1968 Act, being a federal law was listed in the Exclusive Legislative list of the 1979 constitution. Along this part, the Nigerian Enterprise Promotion Act, 1977 and the 1968 Acts made copious provisions for the first time such as mandatory provision for account and greater accountability of directors and part X made foreign companies to be incorporated locally. The Federal High Court was also given original jurisdiction on company matters[21].
However, the companies Act, 1968 was later replaced by companies and Allied Matters Act, 1990[22] which was mainly based on the 1979, 1980 and 1981 United Kingdom Companies Acts. The Act has completely revolutionalized the company matters. The 1990 Act was divided into four main parts namely: Part A, B, C and D. The Act codifies common law principles, Doctrine of equity and Articles of Association into the main body of the Act.
1.5 THE LEGAL IMPLICATIONS OF INCORPORATION
Generally speaking, incorporation is a means to an end. The object clause of a company determines its sphere of operation, otherwise it would act ultra vires. This explains why a company must state its object clause so as to guide its operations.
However, before a company could be issued a certificate of incorporation by the Corporate Affairs Commission, it must first and foremost be registered. It is therefore reasonable at this point to examine the various stages of incorporating a company.
1.6 REGISTRATION OF A COMPANY: THE LAWYER’S ROLE
For a proper and an unquestionable registration of company, a legal practitioner need to put into contemplation, four (4) distinct stages in incorporating a company, to wit:
- The Decisional Stage
- The Instructional Stage
- The Documentation Stage, and
- The Registration Stage
The Decisional Stage: This stage centers on the decision making stage in the incorporation procedure. This stage is for the owners or promoters of the (proposed) company to decide[23]. They must as an initial process of formation, decide the following:
- What type of company do we wish to form? A Limited or unlimited company? A private or public company? If limited, should it be one limited by share or by guarantee?
- What would be the share capital of the proposed company?
- What should be the name of the company?
- Where should it be located?
- What should be its main engagement? This is crucial as it would guide the company against any unnecessary utra vire acts.
The Instructional Stage: It is imperative and indeed pertinent under the instructional stage that the lawyer obtains the names, addresses and occupation(s) of his client(s). At this stage, the legal practitioner must make sure that the proposed name is not in contravention of the provision of the section 30 of Companies and Allied Matters Act, 1990, otherwise the proposed name shall not be registered by the Corporate Affairs Commission (CAC) as this was the decision of the court in the case of NIGER CHEMIST LTD V. NIGERIA CHEMISTS[24] where the court prevented Nigeria chemists from being registered because there has been in existence a company known as Niger Chemists. The position of the court was that the name was too identical with Niger chemists and as such was a calculated attempt to deceive the public.
The common law position was succinctly stated in the English case of TURTON V. TURTON[25] where it was maintained that where a name to be registered has already been so registered, such an application must necessarily be denied, and where done inadvertently, the former may seek an order for the cancellation of such a registration, except of course, where the latter company employs the bonafide surnames of its members. The Nigerian Act is however silent in this respect.
Finally, under the instructional stage, the Lawyer must affirm dates, which will help him plan his work. He must also be informed of the type of company intended: whether a company limited by share or guarantee or an unlimited company[26] The Lawyer’s client must also indicate whether a private or public company is intended.
The Documentation Stage: It requires or involves the Lawyer’s job of preparing the Memorandum and Articles of association on which precedent books and standard form work are easily available[27]. The following are however required to be filed at the Corporate Affairs Commission: two copies of the Memorandum of Association and two copies of the Articles of Association, the list and particulars of the intended Directors together with the consent of these Directors in a prescribed form[28] the statement of the authorized share capital signed by at least one Director, a form containing the notice and situation of the registered office[29], the particulars of the intended secretary in a prescribed form[30], and the return of allotments whereby subscribers take more than one share each, in the prescribed form[31] .
Similarly, the Corporate Affair Commission (CAC) may also deem it necessary that other law relating to Incorporation are also adhered to, such laws include among others; the Immigration Act, 1963, the Nigerian Investment Promotion Act No. 15 1995, Nigerian Enterprises Promotion Decree No.54, 1989, the Securities and Exchange Commission Decree No. 29 1988, the Industrial Development and Co-Coordinating Committee Decree, No.36 1983, the Provisions of the Industrial Inspectorate Act 1970, the Companies Income Tax Decree 1979 etc. These bodies perform one vital role or the other with respect to Incorporation of Company in Nigeria.
The Registration Stage: The final stage which is the registration stage, requires the legal practitioner to register the company with the Commission, whose sole duty is to register the company provided it is satisfied that all the required documents have been properly filed with it (CAC), and the necessary fees and duties have also been paid without any default.
When this has been ascertained by the Corporate Affairs Commission (CAC), the registrar would issue a certificate of Incorporation which is to a large extent, conclusive evidence that the requirements of the Act in respect of the registration have been complied with and that the association is a company authorized to be registered and duly registered under the Act[32].
1.6.1 THE EFFECT OF INCORPORATION
The effects of the Incorporation of a company are clearly set out in Section 37 of the Companies and Allied Matters Act, 1990, CAMA. Where a company is registered under the companies and Allied Matters Act, 1990 or any other previous Act, it continues to retain its status of a legal entity of a company distinct from its shareholders and/or members. This concept of the legal entity of a company distinct from its members became finally established at common law in the elaborated case of SALOMONV. SALOMON & CO. LTD[33].
However, as we shall later see in the course of this research, justice shall be done to the consequences and effects of Incorporation.
1.7 DOCTRINE OF INCORPORATION
A company is a corporation and is therefore a person in the eyes of the law, quite distinct from the individuals who are its members. As a distinct person, the company can own property, have rights and be subject to liabilities and it does not hold its property merely as an agent or trustee for its members, and can not sue individually or collectively to enforce its rights otherwise than in exceptional circumstances[34] nor can they be sued in respect of its liabilities.
The case which clearly established the independent legal personality of the company is that of SALOMON V. SALOMON & CO. LTD[35], which is of such importance to an understanding of this branch of law that it is now proposed to deal with it at some length. The fact of the case was that Aron Salomon, a leather merchant and boot manufacturer in 1882 formed a limited liability company to take over his business.
He and six other members of his family subscribed to its memorandum for one share
each and he and two of his children were appointed directors. The company paid the
sum of £39,000 to Salomon for the business. The mode of payment being to charge on
the company’s assets and £20,000 shares of each, the balance of the sum of £39,000 being to Salomon in cash.
The business did not however prosper and when it was wound up a year later, its
liabilities (including the debenture debts) exceeded its assets by £8,000. The liquidator representing the unsecured creditors claimed that the company’s business was in actual fact still Salomon’s and as such should be ordered to indemnify the company against its debts and payment of the debenture debt to him should be suspended until the company paid the other creditors.
The trial judge, Vaughan William, J, agreed with the liquidator holding that the subscribers of the memorandum other than Salomon held their shares as mere nominees for him and Salomon’s role purpose in forming the company was use it as an agent to his business for him.
The Court of Appeal agreed with the holding of the trial court though it adduced a different reason entirely. According to the judge, the Companies Acts were intended to confer the privilege of limited liability only on genuine independent shareholders who had combined their capital to enable an enterprise to be started, and not upon a man who was really the sole owner of a business and who merely found six members to join with him in going through the formalities of incorporating a company.
On further appeal at the House of the Lords, it was held that Salomon was under no liability to the Company or its creditors and that his debentures were valid against the company. Not surprising therefore when Lord Macnaghten stated the position of the law thus[36]:
“when the memorandum is only signed and registered though, there be only seven shares taken, the subscribers are a body corporate ‘capable forthwith’ of exercising all the functions of an incorporated company. Those are strong words, the company attains maturity on its birth there is no period of minority – no interval of incapacity. I can not understand how a body corporate such as this made capable by statute can loose individuality by issuing the bulk of its share capital to one person, whether he be a subscriber to the memorandum or not. The company is at law a different person altogether from the subscribers to the memorandum … nor are the members (subscribers) liable”.
The house of the Lords further held that:
“The moment a company satisfies the requirements of the Companies Act and it thus Incorporated, it becomes entirely different from its members and it was therefore wrong to equate Salomon with the company”.
The above ratio however settles the doctrine of corporate personality which confers the toga of personal juris on a company. It is able for instance, to’ create a persona jurisdica not previously known as an existing association of natural persons with what may be called co-operative personality so as to give it the status of a persona jurisdica[37].
Although, the above assertions appear fictional, the fiction is necessary for the conveniences of the company in making contracts, holding property, suing and being sued, management of its affairs and preservation of the liability of its shareholders[38]. Also, it enables the company enjoys some rights and subject it (company) to some duties which ordinarily are not the same as those borne or enjoyed by its members. No wonder the Nigerian Companies and Allied Matters Act[39] provides:
“As from the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum capable forthwith of exercising all powers and functions of an incorporated company including the power to hold land and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.
The above principle was enunciated by the Nigerian Supreme Court in the case of MARINA NOMINEES LTD V. FEDERAL BOARD OF INLAND REVENUE[40] where Aniagbolu JSC declares as follows:
“The truth, however is that it is a company registered under the principles enunciated in SALOMON V. SALOMON[41] and must be subject to all incidents of incorporation”.
Similarly in the case of DUNLOP NIGERIA INDUSTRIES LTD V. FORWARD NIGERIA ENTERPRISES LTD AND FAFORE[42] further espoused the doctrine by holding that an incorporated company is regarded in law as a separate and distinct from its members and it makes no difference to this rule that one member own all or substantially all the company’s shares. This decision is similar to the holding of the court in the case of LEE V. LEE’S AIR FARMING LTD[43] where it was also established that a company could enter into a valid contractual agreement with its members. In this case, the appellants husband incorporated a company Lee’s Air Farming Ltd for the purpose of spreading fertilizer from the space. Out of the 3000 shares of the company, he held 2,999 and was also the director of the company. While in the engagement of the company and its Chief pilot, the plane crashed and this led to the death of the appellant’s husband. Consequently, the appellant sued for compensation under the English Act on the ground that her husband was a worker in the company. At the trial court, it was held that Lee could not have been a worker (being the sole employer) as that would amount to making the doctrine of corporate personality as it relates to a company, coterminous with the owner on further appeal, the decision was reversed and the privy council applied the principles in SALOMON V. SALOMON AND CO. LTD[44]. The argument of the court was that Lee was a beneficial owner of factually all the shares and also the “governing director” was nevertheless a separate entity from his company and he, as governing director, could on behalf of the company, give orders to himself as a servant of the company.
Furthermore, the concept of corporate personality was introduced to address instances which tend to accumulate all debts and liabilities upon an individual(s) who own(s) all or substantial shares of the company. In Nigeria, the case of BANQUE DEL’AFRIQUE OCCIDENTALE V. HABUILIASU AND SAVAGE[45] is a good illustration. Here, the court held that the debts of the members are not the debts of the company and vice versa. This case has further affirmed the artificiality of a company as opposed to a human being who is a natural person. It therefore follows that, the company becomes a juristic person and that it is only through registration that it (company) can attain such status.
Equally, it has been held in the Nigerian’s case of PHILIPS V. ABOU DINAN[46] that the shareholders are not the individual owners of the company’s property and have no power as individuals to dispose of the company’s property.
Be that as it may, it has also been decided in the case of PAN ASIAN AFRICAN CO LTD V. NATIONAL INSURANCE CORPORATION (NIG) LTD[47] that a company as a legal entity can occupy residential premises. The fact of the case is to the effect that the appellant company was granted a tenancy in a flat in Lagos for a term of three years with an option for another term of two years. The premise was let as a residence for appellant’s Managing Director.
At the expiration of the second term, the appellant with the consent of the Landlord began negotiating for a new tenancy agreement. Before the new tenancy could be concluded, the landlord sold the property to the respondent company who informed the appellant that it would not grant the new lease, and requested the possession be let to them by vacating the premises within thirty three days. The appellant contended that he was a contractual tenant and he is protected from eviation under the Lagos Ren: control and Recovery of Residential premises Edict 1976.
The respondent contended that being a juristic person, appellant could not be protected under the Rent Law since it cannot occupy premises. In the words of Idigbe[48] JSC,
“There is no question that the appellant who occupies the premises concerned in these proceedings by a member of their staff in actual residential accommodation are at the time of the commencement of these proceedings statutory tenants of the respondents … there is evidence that the appellants Managing Director was in residential occupation of the premises … it seems to me idle to argue that the appellants cannot qualify as statutory tenants because Hillel’s case[49] was so decided in England”.
The above decision of the Supreme Court at this juncture has opened yet another dimension of the doctrine of corporate personality which is to the effect that a company is mere abstraction as it has no mind or organs of its own by which it can operate except its agents, officers and directors[50].
The position was also brought into limelight in the case of BOLTEN (ENGINEERING) CO. LTD. V. GRAHAM AND SON[51] where Denning L.J. stated as follows:
“A company may in many ways be likened to a human body. It has a brain and nerves centre which controls what it does. It also has hands which hold the tools and act in accordance with direction from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will – others are directors and managers who represent the directing mind and will of the company and control what it does …”
The above assertion shows the independent legal personality of the company as fundamental to the whole operation of the business of the company. This legal concept therefore affects the structure, existence, capacity, powers, rights and liabilities of the company. It is in line with the above that the companies and Allied Matters Act, 1990[52] provides thus:
“Any act of the members in general meeting, the Board of directors or of a Managing Director while carrying on in the usual way the business of the company itself and the company shall be criminally, and civilly liable therefore to the same extent as if it were a natural person”
In the same vein, while explaining incorporated company as an abstraction in the case of TRENCO NIG. LTD V. AFRICAN REAL ESTATE LTD[53] Aniogolu quoted Viscount Haldane in the case of LENNARDS CARRING CO. V. ASIASTIC PETROLEUM LTD. Thus:
“A corporation is an abstraction, it has no mind of its own anymore that it has a body of its own, its action and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent but who is really the directing and will of the corporation, the very ego and centre of the personality of the corporation”.
The import from all these as they relate to doctrine of corporate personality is that once a company has been incorporated following the necessary requirements as laid down by the companies and Allied Matters Act, 1990 and other enactments regulating incorporation, the company is said to be a legal entity which is distinct from its shareholders and the Board of Directors.
1.7.1 CORPORATE PERSONALITY AND LEGAL RESPONSIBILITY
The notion of limited liability is sometimes confused with the distinct principle of corporate personality. The implication of liability must be understood to mean the extent to which a person can be made to account at law (that is, the extent of his responsibility at law) towards the company as a shareholder cum member. In this regard, he may either be fully liable, or partially liable. It is pertinent to note however, that only the members’ liability for the company’s debt may be limited, and not the company itself. That is, the artificial legal person is always fully liable and so has unlimited liability.
Furthermore, where a company does not possess enough assets to defray its debts, it will be dissolved by way of liquidation. Where on the other hand, a natural (human) legal person is not able to fulfil his financial obligations to all his creditors, as and when due, such a person would be declared bankrupt. It must be pointed out that this condition of insolvency, is by no means or in no way related to limited liability.
[1] Oliver, MC; Company Law 5th ed (London: Macdonald & Evans 1976)
[2] Gower, L.C.B Modern Company Law 4th ed (Lopndon: Stevens & Sons, 1979) p.3
[3] Emmanuel I.K., Nigerian Company and Partnership, Law and Practice 1st ed (Nigeria: Mikzek Law Publication, 1988) pg.8
[4] Bird R. Osborn’s Concise Dictionary 9th ed (London: Sweet & Maxwell 2001) p.9
[5] Amipitan, J. Lectures Note on Company Law, UNIJOS
[6] Section 26(1)
[7] Section 22 (2) of CAMA, 1990
[8] Section 22 (3) of CAMA, 1990
[9] Section 22 (5) CAMA, 1990
[10] Section 24 CAMA, 1990
[11] Section 27 (2) CAMA 2004
[12] Section 21 CAMA 2004
[13] Section 26(1) CAMA 1990
[14] Section 26(5) CAMA 1990
[15] Section 21 (I) CAMA 1990
[16] Essays on Company Law by E.O. Akanku at p.1
[17] Para 2 p.1
[18] Ibid
[19] Supra @ p.9
[20] Orojo: Nigerian Company Law and practice (2nd ed. Yol.l 1983) p.ll
[21] Ibid
[22] Vol. 1 p.2
[23] Emmanuel I.K., op cit @ 17
[24] (1961) I ALL NLR 171 @ 173
[25] (1889) 42 Ch.d 128
[26] Section 2(1) (a) (b) & (c) respectively, CAMA, 1990
[27] Encyclopedia of forms precedents Vol. 5; Partner, I-V, Tables A-D, CAMA
[28] 28 Form Co7
[29] Form Co6
[30] Form Co7A
[31] Form Co2
[32] Section 36(6) CAMA, 1990
[33] (1897) AL 22
[34] FOSS V. HARBOTTLE (1843) 2 HARE 461
[35] (1897) AC 22
[36] Supra @ 14
[37] Supra @ 15
[38] Ibid
[39] S. 37 CAMA
[40] (1966) 2 NWLR (pt.20) p.48
[41] Supra@ 14
[42] (1976) ALR Comm. 243; (1976) NCLR 242
[43] (1960) 3 ALL E.R. 420
[44] Supra
[45] (1964) NNLR 30
[46] (1976) 2 FRCR 24
[47] (1982) 9 SC 1
[48] @p,2
[49] (1934) 1 KB 57
[50] (1915) AL 705 @ 713-714 – LENNARD’S CARRYING COMPANY V. ASIATIC PETROLEUM CO, LTD
[51] (1957) 1 QB 159
[52] Section 65
[53] (1978) I LRN @p.153
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