Change of name is a usual alteration in a company’s
Memorandum and Articles of Association. A company may change its corporate name
(the name by which it is incorporated) under two main circumstances:
(a)
Compulsory Change of name following a directive by the
Corporate Affairs Commission pursuant to section
31(4) of CAMA; and
(b)
Voluntary Change of Name.
A. COMPULSORY CHANGE OF NAME
A company may be directed by the Corporate Affairs
Commission to compulsorily change its name under any of the circumstances
enumerated in Section 31(1) & (4) of
CAMA as follows:
(1) If a company
through inadvertence or otherwise on its first registration or on its
re-registration by a new name is registered under a name identical with that by
which a company in existence is previously registered or so nearly resembling
it as to be likely to deceive, the first mentioned company may with the
approval of the commission, change its name; and if the commission directs
within six months of its being registered under that name, the company
concerned shall change its name within a period of six weeks from the date of
the direction or such longer period as the commission may allow.
(4) Nothing in this Act shall prelude the
commission from requiring a company to change its names if it is discovered
that such a name conflicts with an existing trade mark or business name
registered in Nigeria prior to the registration of the company and the consent
of the owner of the trade mark or business name was not obtained.
Again, after a successful ‘Passing-Off Action’, the court can direct the
newly registered Company/Association to change its name.
The steps towards securing a compulsory change of name are as follows:
1.
A company which discovers that its corporate name
or registered trade mark/name/brand is being copied or infringed on by
subsequent registration of the corporate name of another company, may write a Letter
first to the erring company
requesting it to voluntarily change its name because of the infringement of the
company’s name with the existing name of the aggrieved company.
2.
If the erring company fails to make the change
within reasonable time as may be directed/indicated in the letter, the
aggrieved company can then formally do a petition to the Corporate Affairs Commission
by writing a Letter of Protest requesting the Corporate Affairs Commission to
direct the erring company to change its infringing name within 6 weeks of the
letter or such period as the Corporate Affairs Commission would deem fit to
grant in the circumstances.
3.
If after the time specified in the letter (not less
than 6 weeks) expires and Corporate Affairs Commission fails to give the
direction or the erring company fails to comply with a direction given, the
aggrieved company can file an action against the erring company along with the Corporate
Affairs Commission to compulsorily change its name and damages for unlawful
infringement.
In drafting the Letter of Protest and Request
to the Corporate Affairs Commission to direct the Infringing Company to Change its
Name, the following guidelines is helpful:
(a)
Use the company’s letter headed paper showing the
company’s name and address and RC No or use the solicitor’s letter headed paper
addressed to the Corporate Affairs Commission.
(b)
Title: “Protest and Request to Compel Xyz Ltd/Plc
to Change its name Pursuant to Section
31(4) of CAMA”.
(c)
Preamble: state the history of both companies’
registration with their dates of registration and RC number.
(d)
Explain in the body of the letter, the adverse consequence
of allowing both companies’ name to co-exist and formally request Corporate Affairs
Commission to invoke its powers under section
31(4) of CAMA to compel the
subsequently registered company to change its name.
(e)
Conclusion and signature by director or solicitor
(if it was outsourced to an external solicitor).
B. VOLUNTARY CHANGE OF NAME
A company may on
its own volition, depending on its circumstance, resolve to change its
corporate name. Thus, by section 31(3)
of CAMA, any company may be
Special Resolution and with the approval of the Corporate Affairs Commission signified
in writing, change its name; provided that no such approval shall be required
where the only change in the name of a company is the substitution of the
words, “Public Limited Company” for the word “Limited” or vice versal on the
conversion of a private company into a public company or a public company into
a private company in accordance with the provisions of the Companies and Allied
Matters Act.
Voluntary change
of name may be as a result of re-structuring exercise to reflect the true
desire of the new investors or merging partners, or for re-branding purpose to
deal with bad incident or loss of goodwill or dwindling profit margin and loss
of greater market share to its competitors.
The procedural
steps for voluntary change of name are as follows:
(a)
Board Resolution to propose the name change with
suggestion of new names.
(b)
Conduct Availability Check and Reservation to
confirm the availability of the proposed new names using Form CAC 1
(Availability Check and Reservation of name – pursuant to section 32(1) of CAMA).
(c)
Pass Special Resolution, usually at Extraordinary
General Meeting for change of name.
(d)
Write application for change of name with attached
documents to Corporate Affairs Commission for consent to the change of name.
The attached
documents to be submitted are:
1)
Duly signed copy of the Special Resolution delivered
within 15 days to the Corporate Affairs Commission.
2)
Application Letter for Consent of Corporate Affairs
Commission for the proposed name change.
3)
Original certificate of incorporation.
4)
Memorandum and Articles as altered to reflect the
new name.
5)
Duly Approved Form CAC 1,
6)
Evidence of filing of Annual returns up to date,
and
7)
Evidence of payment of necessary fees (receipt).
Upon grant of
the request/application, Corporate Affairs Commission shall do the following:
i.
Advertise the change in the official gazette of the
Federation;
ii.
Issue a new certificate bearing the new name;
iii.
Enter the new name in place of the old name since
there is a new RC No.
The company thereafter
complies with post incorporation formalities.
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