NIGERIA – Trade mark proprietors forced to turn to Federal High Court to object to company names, as Administrative Proceedings Committee is declared unconstitutional

In the recent case of Ekpenyong v The National Assembly & 2 Others, the Federal High Court of Nigeria declared the existence of the Administrative Proceedings Committee (APC) unconstitutional. The APC was established in 2020 as an administrative tribunal intended to resolve disputes arising from the operation of the Companies and Allied Matters Act or its regulations. The APC is entitled to adjudicate on issues relating to the names of corporate entities and other businesses (i.e. company name objections), amongst other things.

The hope with the creation of the APC was to simplify and expedite the company name objection process. In practice, however, the APC was not entirely functional. The Board of the Corporate Affairs Commission is required to confirm decisions of the APC within 14 days, however, the Board has not yet been constituted. It was during these efforts to constitute the Board that the Ekpenyong judgment was handed down.

The plaintiff instituted action in the Federal High Court against the National Assembly, the Corporate Affairs Commission, and the Attorney-General and Minister of Justice of the Federation, on the basis that the section of the Companies and Allied Matters Act which establishes the APC, is inconsistent with the constitutional right of access to the Court. According to the plaintiff, the section ousts the exclusive jurisdiction of the Federal High Court to determine matters on the administration of the Companies and Allied Matters Act.

The Court found that the section was indeed inconsistent with the Constitution of Nigeria and declared the establishment of the APC void. Even though the case does not specifically deal with trade marks or company names, the decision has an impact on company and business name objections, as the APC cannot be constituted until the judgment is overturned. Therefore, all pending objections before the APC will remain in abeyance and no new proceedings can be brought before the APC until the judgment is set aside on appeal and the APC is officially constituted.

The decision has been met with criticism and the Corporate Affairs Commission has taken it on appeal. While we await the outcome of the appeal, not all hope is lost as it is still possible to object to infringing company names in Nigeria through the Corporate Affairs Commission and the Federal High Court. Please contact us if you require assistance.