By Lukman Olabiyi
The Court of Appeal in Lagos has nullified the registration of the business name “KPMG Professional Services” by the Corporate Affairs Commission (CAC), siding with KPMG Nigeria in a protracted legal battle over name rights and corporate identity.
Delivering a unanimous judgment, Justice Abdullahi Mahmud Bayero granted all four reliefs sought by KPMG Nigeria in its suit against the CAC (1st Respondent) and KPMG Professional Services (2nd Respondent).
The court ruled that the registration of the disputed name was misleading and unlawful under Section 662(1)(d) of the Companies and Allied Matters Act (CAMA) 1990, now Section 852 of CAMA 2020.
KPMG Nigeria, which operates in auditing, tax, and consulting, had initiated the case in 2002, challenging the CAC’s decision to register a new entity under a name it said was deceptively similar to its own long-standing brand.
The Federal High Court had earlier dismissed the suit in 2005, citing what it interpreted as a merger between KPMG Nigeria and Akintola Williams Deloitte, concluding that KPMG Nigeria could no longer assert exclusive rights to the name.
The same court also upheld a counterclaim from the 2nd respondent, ordering that KPMG Nigeria’s name be struck from the register.
However, the Court of Appeal overturned that decision, ruling that the supposed merger lacked legal proof. It ruled that media reports relied on by the lower court were insufficient to establish a binding merger or the dissolution of KPMG Nigeria.
“It is only a merger agreement that can determine the nature and scope of the purported merger. What exists here at best is a functional collaboration or partial merger of only a component, KPMG Audit, and even that is not proven by binding legal documents,” Justice Bayero stated.
The court also emphasised that KPMG Nigeria had clear precedence, having registered its entities well before the disputed name appeared. It highlighted the incorporation of KPMG Audit in 1969, KPMG Tax Consultants in 1990, and KPMG Consulting, underscoring that the CAC had no authority to register a confusingly similar name.
“The registrar cannot assign a business name already held by another entity. One cannot give what one does not have—nemo dat quod non habet,” the judgment read.
In its final ruling, the Court of Appeal declared that the second respondent, KPMG Professional Services, was not entitled to be registered with that name; ordered the CAC to remove the second respondent from its registry and cancel its certificate of registration; issued a perpetual injunction restraining the second respondent from operating under the name; and directed an inquiry into potential damages and profits earned while trading under the contested name.
The counterclaim by the second respondent was dismissed in its entirety.
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