The Court of Appeal sitting in Lagos has directed the Corporate Affairs Commission (CAC) to remove the business name “KPMG Professional Services” from its register due to its similarity with that of the audit, tax, and consulting firm KPMG Nigeria.
Justice Abdullahi Mahmud Bayero, who read the unanimous decision on behalf of the panel, also granted a perpetual injunction restraining KPMG Professional Services from conducting any business under that name henceforth.
The appellate court also held that the registration of the second respondent’s name was improper and misleading according to Section 662(1)(d) of the Companies and Allied Matters Act (CAMA) 1990, which is now Section 852 of CAMA 2020.
KPMG Nigeria, which includes its audit, tax, and consulting arms, filed an originating summons in 2002 challenging the CAC’s registration of a new entity named “KPMG Professional Services,” arguing that it was deceptively similar to its long-established identity.
However, in its 2005 ruling, the Federal High Court dismissed KPMG Nigeria’s suit, stating that an alleged merger between KPMG Nigeria and Akintola Williams Deloitte meant the plaintiff could no longer assert rights to the name.
The lower court also upheld the second Respondent’s counterclaim and ordered that KPMG Nigeria’s name be struck off the CAC register.
However, the Court of Appeal rejected this verdict, describing the evidence of a merger as “inadequate and unsubstantiated.”
The appellate court held that the newspaper articles relied upon by the lower court were insufficient proof of a legal merger and did not demonstrate that KPMG Nigeria had ceased to exist or forfeited its rights.
Justice Bayero held, “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.”
The court further ruled that KPMG Nigeria was the first to register its business entities, including KPMG Audit (1969), KPMG Tax Consultants (1990), and KPMG Consulting.
It further ruled that the CAC acted contrary to CAMA by allowing a similar name to be registered without first removing the earlier existing names from the registry.
“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,” stated the court.
