In the matter of an application by International Construction Corporation for leave to apply for an order of Mandamus
In the Matter of the Companies Act Cap. 37
In re: INTERNATIONAL CONSTRUCTION CORPORATION: ICC (APPELLANT)
REGISTRAR OF COMPANIES (RESPONDENT)
(1964) All N.L.R. 555
Division: High Court, Lagos
Date of Judgment: 30th November, 1964
Case Number: M/171/64
Before: Taylor, C.J.
The Registrar of Companies having refused to accept and file the statutory requirements of the International Construction Corporation, a company incorporated in the United States of America, under section 239 of the Companies Act, Cap. 37, the company applied to the High Court for an order of Mandamous to compel the Registrar to do so.
At the hearing, it was contended on behalf of the company that by virtue of section 239 once a company established outside Nigeria presents the statutory requirement for filing, the Registrar is bound to accept same for filing; the Registrar contended that section 239 must be read subject to section 10 which prohibits the registration of a name which is identical with that of an existing company.
The answer whether section 10 applies to Companies registered outside Nigeria lies in the definition section. 2, where "Company" is defined as: "Company means a company formed and registered under this Act." If one were to interpolate the word "formed and registered under this Act" everywhere the word "Company" appears in section 10 and immediately after it, then it becomes clear that the applicant company not being one either formed or registered under the Companies Act Cap. 37, cannot be affected by the provisions of section 10.
Application granted: Order as prayed.
Case referred to:-
The Queen v. Deverell (1854) 3 Ellis & Blackburn Reports 372.
Acts referred to:-
Companies Act, Cap. 37 sections 2, 10, 239 and 240.
High Court of Lagos Act Cap. 80, section 20(2).
K. Sofola, for the Applicants.
Peters, State Counsel, for the Respondent.
Taylor, C. J. of Lagos: This is an application by the International Construction Corporation of 11 Martins Street, Lagos, a Company incorporated in the United States of America and endeavouring to establish business in Nigeria, for an order of Mandamus directed to the Registrar of Companies ordering him to accept and file the Statutory requirements of the applicants pursuant to section 239 of the Companies Act. Cap. 37.
Section 239(1) provides that:-
"Every Company incorporated outside Nigeria which establishes, or has before the date of the coming into force of this Act established, a place of business within Nigeria, shall within six weeks from the establishment of the place of business or from the date of the coming into force of this Act, file with the Registrar:
It then goes on to set out the statutory requirements which are of no importance for the purposes of the point here in issue. Mr K. Sofola for the applicants drew my attention to the fact that Part VII of this Act, which comprises sections 239 and 240, is followed by the words "Companies established outside Nigeria" and said that the other sections of the Act with particular reference to section 10(1) do not apply to Companies established outside Nigeria; that once a Company established outside Nigeria presents the statutory requirements for filing in pursuance of section 239, the Registrar must accept same for filing.
Mr Peters, State Counsel, representing the Registrar of Companies urged, with little persuasive force, that section 239 must be read subject to section 10, and yet conceded in the same breath that outside Part VII, the other provisions of this Act i.e. Parts I to VI do not apply to Companies registered outside Nigeria.
The answer to whether section 10 applies to Companies registered outside Nigeria is really short and simple. Section 10 provides that:-
"No Company shall be registered 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 course of being dissolved and signifies its consent in such manner as the Registrar requires; or...."
The answer lies in the definition section 2, where "Company" is defined as:-"Company means a company formed and registered under this Act."
If one were to interpolate the words "formed and registered under this Act" everywhere the word "Company" appears in section 10 and immediately after it, then it becomes clear that the applicant Company not being one either formed or registered under the Companies Act Cap. 37, cannot be affected by the provisions of section 10, and I so hold.
No other point of law or fact was raised before me. By virtue of section 20(2) of the High Court of Lagos Act and bearing in mind the case of The Queen v. Deverell (1854) 3 Ellis & Blackburn Reports P. 372 at 376 I do order that the Registrar of Companies shall forthwith accept for filing the applicant's statutory requirements under section 239 of the Companies Act Cap 37. Laws of Nigeria 1958 Edition.
K. Sofola: says his out-of-pocket expenses is £6. 16. 5d and asks for costs.
Peters: says no costs should be awarded. No provision for awarding costs against the Registrar. We have no vote to pay costs at all.
K. Sofola: Nothing to add.
Court: I shall make an order on Wednesday, 2nd December 1964.