The Court of Appeal, Lagos Division, has nullified the registration of the business name “KPMG Professional Services” by the Corporate Affairs Commission (CAC), marking a major legal victory for KPMG Nigeria in a two-decade battle over name rights.
The Appellate Court, in its unanimous judgment delivered by Justice Abdullahi Mahmud Bayero, granted all four reliefs sought by KPMG Nigeria, the Appellant, against the CAC (1st Respondent) and KPMG Professional Services (2nd Respondent).
The court held that the registration of the latter’s name was improper and misleading under Section 662(1)(d) of the Companies and Allied Matters Act (CAMA) 1990, now Section 852 of CAMA 2020.
KPMG Nigeria, comprising its audit, tax, and consulting divisions, had initiated the suit in 2002, arguing that the name “KPMG Professional Services” was deceptively similar to its long-established brand.
The company claimed this caused confusion and infringed on its statutory name rights.
It would be recalled that in 2005, the Federal High Court, Ikoyi, Lagos, had dismissed KPMG Nigeria’s claims, citing a purported merger between KPMG Nigeria and Akintola Williams Deloitte.
The lower court also upheld a counterclaim by the 2nd Respondent, ordering the removal of KPMG Nigeria’s name from the CAC register.
However, the Court of Appeal rejected this conclusion, describing the alleged merger as “inadequate and unsubstantiated”.
It ruled that the evidence presented, primarily newspaper articles, was insufficient to prove a legal 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 Appellate Court emphasised that KPMG Nigeria had a prior statutory claim, having registered KPMG Audit in 1969, KPMG Tax Consultants in 1990, and KPMG Consulting.
It held that the CAC acted in breach of CAMA by registering a similar name without first deregistering the existing ones.
“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 court ruled.
Consequently, the court declared that the 2nd Respondent, KPMG Professional Services, had no right to be registered under that name; ordered the CAC to strike off the name from its register and cancel its certificate; issued a perpetual injunction restraining the 2nd Respondent from conducting any business under the contested name; and directed an inquiry into damages and profits wrongfully earned by the 2nd Respondent using the name.
The counterclaim by the 2nd Respondent was also dismissed entirely.
The decision of the Court of Appeal overturned the decision in Suit No. FHC/L/CS/776/2002.
Counsel for the parties included A.T. Oloyede for KPMG Nigeria; Emmanuel Umoren for the CAC; and E.O. Sofunde (SAN), with M.O. Ajana and F.O. Salawu for the 2nd Respondent.
