Decision

Decision on Central Association of Nigerians in the UK

Updated 26 March 2020

Companies Act 2006

In the matter of application No. 1535

For a change of company name of registration No. 10692181

Introduction

1.The Central Association of Nigerians in the United Kingdom (“CANUK”) was established in 2005. According to its constitution, the role of the organisation is:

“…to unite the plethora of Nigerian societies, bodies, unions and organisations under one all-embracing umbrella organisation with a view to ensuring that whenever and wherever appropriate, the welfare, views, and community interests of Nigerians in the United Kingdom are represented in a manner which is harmonious, organised, and cogent thereby giving a common forum and united voice to an expression of pride and hope for a positive Nigeria.”

2.The persons involved in these proceedings are, or have been, closely involved in the activities of CANUK, who appear to have become bitterly divided. Given that the organisation was formed to help unite Nigerian groups in the UK, it is a matter of great regret that this dispute has arisen, and that attempts to settle it by mediation and negotiations have failed.

3.The matter comes before us by way of an application filed on 8th August 2017 (“the relevant date”) by CANUK under section 69 of the Companies Act 2006, which is as follows:

“(1) A person (“the applicant”) may object to a company’s registered name on the ground-

(a) that it is the same as a name associated with the applicant in which he has goodwill, or

(b) that it is sufficiently similar to such a name that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70)

(3) The company concerned shall be the primary respondent to the application. Any of its members may be joined as respondents.

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for the respondents to show

(a) that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

(b) that the company

(i) is operating under the name, or

(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii) was formerly operating under the name and is now dormant; or

(c) that the name was registered in the ordinary course of a company formation business and the company is available for sale to the applicant on the standard terms of that business; or

(d) that the name was adopted in good faith; or

(e) that the interests of the applicant are not adversely affected to anysignificant extent. If none of those is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection (4)(a), (b) or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.”

4.According to the records of Companies House, company number 10692181 was incorporated on 27th March 2017 under the name ‘CENTRAL ASSOCIATION OF NIGERIANS IN THE UK (CANUK)’. Pastor Peter Omoragbon is a director. Mr Godwin Forson is the secretary. They are co-respondents. The company itself is the primary respondent.

5.CANUK’s formal name is ‘Central Association of Nigerians in the United KIngdom (CANUK)’. It is an unincorporated association. This is the organisation whose constitution is mentioned in paragraph 1 above. For ease of reference, we shall call it “the applicant.” We shall call the company it complains about “the primary respondent.”

6.The applicant claims that:

• it was established in 2005 by the Nigerian High Commission;
• it has been operating since its inception;
• it operates on a not-for-profit basis in the field of reconciliation and unity welfare of Nigerians resident in the UK, encouraging regional engagement and providing social activities, legal advice, counselling and cultural activities;
• it is an umbrella organisation of various Nigerian associations based in the UK;
• the officers of the primary respondent were immediate past executive officers of the applicant;
• the officers of the primary respondent were privy to discussions about incorporating a not-for-profit company;
• by incorporating a company with the name of the applicant, the officers of the primary respondent acted in breach of trust, as well as in breach of their fiduciary duty to the applicant;
• the primary respondent was incorporated out of malicious intent to block the applicant from registering the name

7.At the same time as filing the application under s.69 of the Act, the applicant filed a copy of a communication dated 15th June 2017 on CANUK headed notepaper from a party identifying itself as company number 10692181. This was addressed to “delegates” and discussed events at the Nigerian High Commission on 27th May 2017. It complained about breaches of the constitution of CANUK (the unincorporated association) and attacked the legitimacy of elections held at that meeting. It went on to announce, “The Birth of a new CANUK.” The writers claimed to be the custodians of “the AUTHENTIC CANUK REGISTERED with Companies House” and suggested that the “Boma led Executive Committee” lacked the legal right to represent CANUK, partly because it did not have “the instrument of legality.” The communication continued that until what the writers saw as constitutional elections took place they “..would continue to operate a parallel CANUK with all instruments of legality.”

8.The communication further stated that the AUTHENTIC CANUK was busy putting together activities, such as a Family Fun Day for the first week of August 2017, an Immigration Surgery in September 2017, and confirmed that the Disability Fun Day would continue “as usual.”

9.Also attached to the application under s.69 of the Act was a copy of an undated “Public Disclaimer” from CANUK addressed to “All members of the Nigerian Community in the UK.” The communication stated that it had come to CANUK’s attention that “a group of individuals have formed a company and have been trading/operating/posing under the name CANUK, registered company 10692181”, as well as various other names such as CANUK NIGERIA and ANUK. The disclaimer made it clear that CANUK was not responsible for any financial dealings with these organisations. It was signed by the Chairman (Dr Boma Douglas), General Secretary and Legal Adviser to CANUK.

10.The applicant asks for a number of forms of relief, including:

(1) Striking the primary respondent off the register of companies;

(2) Debarring the persons responsible for the company from registering again;

(3) Sanctions for misconduct and intent to mislead the public;

(4) An order for a change of the primary respondent’s name;

(5) An order to cease any affiliation with the applicant and its title;

(6) Costs

11.The adjudicators’ powers under s.73 of the Companies Act are limited to points (2), (4) and (6). Therefore, we have no power to consider claims (1), (3) and (5).

12.The primary respondent filed a defence denying the applicant’s grounds for an order changing the company name etc. We note, in particular, that the primary respondent:

• denied that the applicant is an association, stating that its membership and mandate to make this claim are unknown;
• claimed that the applicant appears to be a group attempting to break away from it and seeking to use the tribunal to destabilise it following a failed attempt by some members to wrest control of the company at an EGM held in May 2017;
• denied that the primary respondent was formed out of malice or with the intention of bringing the applicant into dispute;
• denied being aware of any good work carried out by the applicant since 2005;
• denied that there was an intention to block the applicant from registering the name;
• denied that officers of the primary respondent were previously officers of the applicant, claiming instead that they were officers of the primary respondent, prior to its incorporation as a company;
• denied the claims of breach of trust and fiduciary duty

13.The primary respondent indicated that it also relied on the following defences under s.69(4) of the Act:

(1) That the company name was registered before the commencement of the activities relied on to show goodwill or reputation;

(2) That the company is operating under the name;

(3) That the name was adopted in good faith;

(4) That the interests of the applicant are not adversely affected to any significant extent.

Representation

14.The applicant is represented by J Benson, Solicitors. The respondents are represented by the Chambers of Mr O A Ogunbiyi. A hearing took place on 9th December 2019 at which Dr Anton van Dellen appeared as the applicant’s counsel. Mr Ogunbiyi appeared on behalf of the respondents.

The evidence

15.The applicant’s evidence consists of a witness statement by Dr Boma Douglas dated 23rd January 2018, which has 5 exhibits. Dr Douglas has been Chairman of the applicant’s organisation since May 2017. However, he appears to have been involved in CANUK for longer. He unsuccessfully stood for election to Chairman in April 2015^{[footnote 1]}. On that occasion, Mr Babatunde Loye was elected instead.

16.According to Dr Douglas, Peter Omaragbon, a director of the primary respondent, was the Financial Secretary of the applicant between 2013 and the time of Dr Douglas’ election in May 2017. Another of the primary respondent’s officers, Mr Godson Forson, was the Social Secretary of the applicant’s group. These claims are borne out by copies of the minutes of CANUK’s 2015 and 2016 AGMs in evidence^{[footnote 2]}.

17.Dr Douglas says that prior to the AGM held on 14th May 2016, the previous Chairman and executive committee commissioned a Constitution Review Committee to review the constitution adopted in 2005. He says that this was necessary because the group was growing faster than expected and there was a need for it to have a legal structure which defined its remit and the nature of its business. The matter appears to have been under consideration for some time. A copy of a report dated November 2013 is exhibited to Dr Douglas’ statement^{[footnote 3]}. At that time, the proposal (from the General Secretary) was to register CANUK as a charity, but for it to remain an unincorporated association.

18.Mr Peter Omaragbon is said to have been a member of the Constitution Review Committee. It is Dr Douglas’ understanding that the committee considered registering the group as a charity or a company limited by guarantee. Recommendations were subsequently made to the Executive Committee. He says that the matter was presented to the 2016 AGM, at which he was present. However, because the constitutional rules about timing had not been observed, the matter was put off to a subsequent EGM. Due to internal divisions, there was a delay in organising this EGM.

19.Dr Douglas says that prior to his appointment on 27th May 2017, Mr Omaragbon, Mr Forson and others had secretly registered the primary respondent. This happened without the formal consent of the members and/or a resolution, as required by the constitution. He says that since then they have been holding out to be the same group as the applicant. He points out that in their letter to members of CANUK dated 15th June 2017 (“The Birth of a New CANUK!”) they list the same activities as the applicant carries out^{[footnote 4]} .

20.The respondents filed no evidence of their own.

21.At the hearing mentioned above we directed the applicant to provide us with a copy of the current constitution of its association. The respondents raised no objection to this. The constitution confirms that CANUK was formed as an umbrella organisation and that its members are other Nigerian organisations with at least 20 members based in the UK. The members meet annually at a General Assembly to hold elections for officers, an executive committee, to consider resolutions presented by the executive committee, to receive annual and auditor’s reports, and to generally steer the organisation. Between General Assemblies, the Executive Committee makes decisions, including all decisions on expenditure of £250 or more. It also collects subscriptions from member organisations. The Executive Committee is empowered to enter into legally binding obligations on behalf of the association and to hold money in bank accounts. There is also provision for trustees to hold title to land and investments on behalf of the association.

Applicant’s application to file additional evidence

22.On the last working day prior to the hearing, the applicant made an application to file 4 additional witness statements. The respondents objected to this admission of this evidence. Mr Ogunbiyi told us that if the evidence was admitted the respondents would have to reconsider their decision that it was not necessary to file evidence in response to that of (just) Dr Douglas. On hearing this response, the applicant withdrew its application. Accordingly, we do not have to decide this matter. We mention it purely because it occupied the first hour of the 2.5-hour hearing mentioned above. We will return to this when we come to costs.

Decision

Entitlement and goodwill

23.The first issue is whether the applicant is entitled to bring this application. The respondents’ objection appears to be that the composition of the applicant is too vague and ill-defined for it to claim the sole benefit of any goodwill/reputation generated under the name CANUK.

24.We reject this submission. In our view, the unchallenged evidence of Dr Douglas is sufficient to establish that CANUK has existed since 2005 as an unincorporated association governed by a constitution which sets out its rules about membership and decision-making etc. The nature and membership of the organisation is not so fleeting and/or ill-defined as to call into question its entitlement to enter into legal commitments/obligations. And we accept that this application has been brought by the unincorporated association identified in the constitution provided to us.

25.Section 69(1) of the Act states that “any person” may make an application of this kind. It is true that the applicant is not a natural person. It is not an incorporated body either. However, the Interpretation Act 1978 states that “‘Person’ includes a body of persons corporate or unincorporate”. In our view, the meaning of the words “any person” in s.69 of the Act is wide enough to cover unincorporated associations who, collectively, own goodwill or have acquired a reputation. Indeed, as s.69(1)(a) requires the applicant to have goodwill under the name, interpreting the requirement of s.69(1) more narrowly would exclude unregistered organisations from the protection afforded by ss.69 to 73 of the Act. There is nothing to suggest that this was the intention of the legislature.

26.The second issue is whether the applicant has established that it had goodwill under the name CANUK at the relevant date. According to Dr Douglas’ evidence, the applicant was operating at that time. Exhibits CK1 and CK2 to his witness statement indicate that:

(1) In the 4-year period ending April 2015, the applicant’s organisation had been providing welfare services for Nigerians in the UK;

(2) The CANUK team had attended Court sessions to support Nigerians in crisis with the law;

(3) CANUK represented Nigerians before the Nigerian High Commission in the UK;

(4) At the time of the 2015 AGM, CANUK had 73 registered member associations in England, Scotland and Northern Ireland;

(5) CANUK participated in many Youth against Crime conferences;

(6) As at April 2015, CANUK had a surplus of £4558;

(7) At the 2016 AGM, Peter Omaragbon and Ronke Adeagbo presented accounts to members showing income of around £40k and expenditure of £39.5k.

27.None of this evidence is directly challenged. At the hearing, Mr Ogunbiyi pointed out that some of Dr Douglas’ evidence is hearsay. However, no evidence has been filed on behalf of the primary respondent presenting an alternative account of the facts. Therefore, we do not have to choose between conflicting accounts of whether CANUK has, or has not, been operating under that name since 2005. In these circumstances, we accept Dr Douglas’ evidence. We find that as a result of its activities CANUK had a reputation as an umbrella organisation bringing together various Nigerian groups in the UK, and also providing support services for Nigerians in the UK. We find that, at the relevant date, this reputation existed amongst the member organisations of CANUK, including some of the individual members of those organisations, and amongst a substantial number of Nigerians living in the UK.

28.It is true that CANUK was not trading in the conventional sense of that word, but bearing in mind that s.69(7) of the Act defines goodwill as including “reputation of any description”, we find that, at the relevant date, the applicant had the necessary goodwill to satisfy s.69(1) of the Act.

The names

29.The third question is whether the names are the same. The primary respondent’s corporate name is CENTRAL ASSOCIATION OF NIGERIANS IN THE UK (CANUK). The applicant’s name is CENTRAL ASSOCIATION OF NIGERIANS IN THE UNITED KINGDOM (CANUK). The letters ‘UK’ in the company name are plainly intended to stand for the words ‘United Kingdom’, which appear in the same place in the name of the applicant’s association. These letters/words are so interchangeable in the context of these names that the substitution of the letters for the words is likely to go unnoticed by members of the public. We therefore find that the names are the same. If we are right about that, s.69(1)(a) is satisfied and there is no need to consider whether the parties’ use of the same name would be likely to mislead. If we are wrong about the names being the same, then the test under s.69(1)(b) of the Act is whether the primary respondent’s name is:

“…the same as a name associated with the applicant in which he has goodwill, or…sufficiently similar to [such a name]…. that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the applicant.”

30.There is no distinction in this case between the nature of the applicant’s goodwill and the sorts of activities that the primary respondent could engage in under the registered name. Indeed, the parties appear to be operating, or intending to operate, in exactly the same field. The respondents point out that there is no evidence of confusion or damage to the applicant. However, these matters are not relevant to the application of s.69(1)(a) or (b). This is because neither of those provisions require evidence of confusion and/or damage. The Act places the initial burden on applicants to show goodwill under a name and, if the company name complained about is only similar to that name, that the company name is similar enough to mislead. Once those requirements are satisfied the Act places the burden on the primary respondent to establish one or more of the available defences. The absence of confusion and/or damage may be relevant to the defences, particularly the defence that the interests of the applicant are not adversely affected to any significant extent. However, in a case such as this one, the answer to the question of whether s.69(1)(b) is satisfied depends solely on the degree of similarity between the names. If the names at issue in this case are not the same, then they are virtually so. We therefore have no hesitation in finding that s.69(1)(b) is satisfied, even if s.69(1)(a) is not.

The defences

31.Once s.69(1)(a) or (b) is satisfied, the Act puts the onus on the primary respondent to establish a defence to the application. The Notice of Defence identifies four defences. That the company name was registered before the commencement of the activities relied on to show goodwill or reputation

32.The company name was incorporated on 27th March 2017. CANUK has been operating since 2005. Therefore, this defence is manifestly inapplicable.

That the company is operating under the name

33.The respondents filed no evidence. Ordinarily this would be fatal to establishing this defence. However, the respondents rely on the communication dated 15th June 2017 attached to the applicant’s application and refiled as exhibit CK5 to Dr Douglas’ statement^{[footnote 5]} . This appears to show that the primary respondent was communicating under the contested company name in June 2017 and preparing to operate under the name from August 2017.

34.The primary respondent does not rely on the defence under s.69(4)(b)(ii) of the Act (that the company is proposing to operate under the name and has incurred substantial start-up costs in preparation). And as it has not filed evidence showing any start-up costs, it would not be open to the primary respondent to do so. The question for us, therefore, is whether the communication of 15th June 2017 establishes that the primary respondent was operating at the relevant date (8th August 2017). In our view, it does not. This is because (a) the communication of 15th June 2017 indicates no more than that the primary respondent was proposing to operate under the name, (b) the first of the activities mentioned in the communication was to take place in the “first week of August”, (c) it is not clear whether this means before the relevant date, and (d) it is not clear whether those activities actually took place.

35.We accept that the external marketing of goods/services that are about to become available may itself amount to operating under a name. However, the mere announcement of an intention to provide goods/services in the future is unlikely to constitute ‘operating under a name’ (as opposed to proposing to do so). There is no evidence that the primary respondent actually provided any services during the first week of August 2017, or at all. The significance of this omission is heightened by the fact that it should have been very easy for the primary respondent to show that it was operating under the name at the relevant date, if it was.

36.We note that the applicant’s application stated that “The respondent company presents itself as having connections with the applicant association which causes confusion.” We have considered whether this amounts to an admission that the primary respondent was operating under the name at the time of the application. In our view, it does not. It seems likely that this was no more than a reference to the sort of communication sent out on 15th June 2017. We have already explained why we do not regard this as evidence that the primary respondent was operating under the name at the relevant date. The primary respondent’s decision not to file evidence is therefore fatal to this defence.

That the name was adopted in good faith

37.The onus is on the respondents to show that the contested name was adopted in good faith. This is evident from the wording of s.69(4) of the Act, which reverses the usual persuasive and evidential burdens in civil law cases where good faith will usually be presumed and bad faith must be proven by the person alleging it. The reverse burden is justified by (a) the purpose of the legislation – which is to prevent the opportunistic registration of company names (also known as ‘company name squatting’), and (b) the practical difficulty that applicants would face if they had the burden of showing that a (usually unused) company name was adopted for opportunistic reasons. It should be easy for a respondent to explain its purpose in registering a name and to provide business plans etc. By contrast, it would usually be very difficult for an applicant to establish what the respondent’s motives were in registering the name. The legislature has addressed this difficulty by providing sufficient defences so that anyone acting in good faith can avoid the consequences of adopting a name which is the same as, or similar to, one in which someone else has associated goodwill.

38.The following principles can be extracted from the judgments of the Privy Council in Barlow Clowes v Eurotrust International Ltd^{[footnote 6]}, and the Court of Appeal in England and Wales in Niru Battery Manufacturing v Milestone Trading Ltd ^{[footnote 7]}

(i) Good faith is not displayed by certain kinds of sharp practice which fall short of outright dishonesty or by dishonesty itself – see Niru Battery at para 164.

(ii) There is a combined subjective/objective approach to the honesty of a party’s behaviour. This involves (i) a consideration of what the party knew at the time of a transaction and (ii) how that party’s action would be viewed by applying normally acceptable standards of commercial behaviour - see Barlow Clowes paras 15–18, 28–32.

39.The applicant’s case is, in summary, that those responsible for incorporating the primary respondent were at the time office-holders within the primary respondent’s association and knew that consideration was being given to incorporating the association as a company limited by guarantee. Those responsible therefore acted in breach of their fiduciary duties to the applicant, and in breach of trust in relation to information they obtained through their official roles.

40.The primary respondent’s case is, again in summary, that at its highest this is a factional dispute about control of the company. There is no evidence that a decision had been taken that the company should not be registered, and nor has it been shown that it was registered for any specific group of people, or to exclude anyone. Mr Ogunbiyi also thought it relevant that the primary respondent was incorporated in March 2016, prior to the discussions about the future status of CANUK at its AGM in May 2016 and subsequently. However, as we mentioned earlier, the evidence from Companies House indicates that the primary respondent was incorporated in March 2017. Therefore, the latter point appears to be factually incorrect.

41.Dr Douglas’ evidence is that Mr Omaragbon was a member of the Constitution Review Committee that was actively considering whether CANUK should be registered as a charity or a company limited by guarantee. He says that this was one of the recommendations the committee made to the 2016 AGM. The minutes of the 2016 AGM records discussion about registering CANUK as a charity. The minutes do not record any discussion or decision about registering the association as a company. Dr Douglas does not appear to have been a member of the relevant committee. Nor has a report of that committee’s recommendations been provided as evidence. In these circumstances, we do not consider that the applicant has established that it was actively considering registering as a company. The allegation about a breach of trust in relation to privileged information about the applicant’s plans for incorporation is therefore not established.

42.However, the applicant has established that Mr Omaragbon and Mr Forson were officers of the association in May 2016, and they appear to have still held these roles on 27th March 2017 when the primary respondent was incorporated. It seems clear that these persons, with others, were responsible for the incorporation of the primary respondent. It is also clear that no decision was taken under the constitution of the association, either by the General Assembly or by the Executive Committee, to register CANUK as a company. The persons responsible for registering the company would have known this. There is nothing in evidence, or in the constitution of CANUK, which indicates that individual officers or members of CANUK had authority to change the status of the association. Therefore, in our view, individual officers or members of CANUK registering the association’s name as a company would have been viewed by objective observers as behaviour falling short of normally accepted commercial standards. It makes no difference whether this is viewed as giving corporate form to the existing association or establishing a parallel incorporated CANUK. This finding is sufficient, by itself, to undermine the respondent’s good faith defence.

43.This conclusion is not undermined by the argument that there is no record of a decision by CANUK not to register the association as a company. On the other hand, the respondent’s good faith defence is made more difficult by the fact that those responsible did not inform the Executive Committee, or the general membership of CANUK, of their intention to incorporate the company before they did so or, it appears, until after elections had taken place in May 2017. Such behaviour does not speak of good faith.

44.It appears from the papers we have seen that the incorporation of the company followed the emergence of a deep division within CANUK. It seems possible that those responsible for incorporating the company had concerns about the way the association was being run which they felt justified their actions. We say “possible” because the respondents have filed no evidence. However, even if such evidence had been filed, it is no part of our role to decide whether such concerns were justified. Our role is limited to assessing the application made under the Companies Act against the criteria and defences set out in that Act. This is what we have done. For the reasons we have given, the good faith defence has not been made out.

That the interests of the applicant are not adversely affected to any significant extent

45.We can deal with this shortly. The existence of two CANUKs operating in the same field is self-evidently highly detrimental to the interests of the applicant’s association. If this were not enough, the communication issued on 15th June 2017 by the primary respondent demanded that the “Boma led” Executive Committee should cease to use the name CENTRAL ASSOCIATION OF NIGERIANS IN THE UNITED KINGDOM (CANUK). This was partly because the writers of the communication had secured “all instruments of legality”, i.e. the registered company name. In point of law, a registered company name provides no exclusive rights to use the name (as opposed to registering it). Nevertheless, this statement shows that the incorporation of the primary respondent was clearly intended to affect the applicant’s interests to a very significant extent. There is no possible basis for this defence. We therefore have no hesitation in rejecting it.

Whether the main purpose of the of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name

46.Having rejected all the respondents’ defences under s.69(4), there is strictly no need for us to decide this matter. However, in case we are wrong and should have found that the primary respondent was operating at the relevant date, we will do so. Section 69(5) of the Act places the onus on the applicant to show that the respondents’ main purpose in registering the name was to obtain money or other consideration from the applicant, or to prevent it from registering the name.

47.There is no suggestion that the respondents sought to obtain money or other consideration from the applicant. The sole question under s.69(5) is therefore whether the respondents’ main purpose was to prevent the applicant from registering the name.

48.We note that in its communication dated 15th June 2017, those responsible for registering the contested company name claimed to be the custodians of “the AUTHENTIC CANUK REGISTERED with Companies House” and suggested that the “Boma led Executive Committee” lacked the legal right to represent CANUK, partly because it did not have “the instrument of legality.” In our view, this shows that the respondents considered that the registration of the company name gave those in charge of the company a legal entitlement to conduct affairs under the registered name, which the unincorporated CANUK association consequently lacked. It follows that the respondents would have regarded the registration of the name by the Executive Committee of the unincorporated association as an obstacle to their own plans. In our view, the main purpose of the respondents in registering the name was, therefore, to obtain the rights they believed came with registration and simultaneously to deny the unincorporated association led by Dr Boma the opportunity of registering its name.

49.The absence of evidence from the respondents means that there is nothing to counter or disturb the inferences we have drawn from the communication of 15th June 2017.

50.Therefore, even if the primary respondent was operating under the name at the relevant date, the application would have succeeded under s.69(5) of the Act.

Outcome

51.The applicant has made out its case under s.69(1) and the respondents cannot rely upon any of defences in s.69(4). Therefore, the application is successful. In accordance with section 73(1) of the Act, the following order is made:

(a) CENTRAL ASSOCIATION OF NIGERIANS IN THE UK (CANUK) (company number 10692181), Pastor Peter Omoragbon and Mr Godwin Forson shall change its name within one month of the date of this order to one that is not an offending name^{[footnote 8]};

(b) CENTRAL ASSOCIATION OF NIGERIANS IN THE UK (CANUK), Pastor Peter Omoragbon and Mr Godwin Forson shall:

(i) take such steps as are within their power to make, or facilitate the making, of that change;

(ii) not cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

52.In accordance with s.73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.

53.In any event, if no such change is made within one month of the date of this order, we will determine a new company name as per s.73(4) of the Act and will give notice of that change under s.73(5) of the Act.

54.The respondents have a legal duty under s.73(1)(b)(ii) of the Companies Act 2006 not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court.

Costs

55.The applicant has been successful and is entitled to a contribution towards its costs. The applicant has been legally represented throughout. Therefore, we assess costs as follows using the scale published at paragraph 10 of the Tribunal’s Practice Direction dated 29th October 2014:

Official fee for filing the application: £400
Official fees for filing evidence: £150
Preparing a statement and considering the counterstatement: £400
Preparing evidence: £600
Preparing for and attending a hearing £500

Total £2050

56.We have adjusted the amount awarded in respect of the hearing to reflect the time wasted on the applicant’s application to file additional evidence.

57.CENTRAL ASSOCIATION OF NIGERIANS IN THE UK (CANUK) (company number 10692181), Pastor Peter Omoragbon and Mr Godwin Forson are jointly and severally liable for the above costs. We order them to pay the unincorporated association known as The Central Association of Nigerians in the United Kingdom (“CANUK”) the sum of £2050. This sum is to be paid within 14 days of the period allowed for appeal or, if there is an appeal, within 14 days of the conclusion of the appeal proceedings (subject to any order of the appellate tribunal).

58.Under s.74(1) of the Act, an appeal can only be made in relation to the decision to uphold the application; there is no separate right of appeal in relation to costs.

59.Any notice of appeal must be given within one month of the date of this decision. Appeal is to the High Court in England Wales and Northern Ireland and to the Court of Session in Scotland. The Tribunal must be advised if an appeal is lodged so that implementation of the order is suspended.

Dated this 8th January 2020

Allan James
Company Names Adjudicator

Judi Pike
Company Names Adjudicator

Mark Bryant
Company Names Adjudicator

1. See the penultimate page of the minutes of the 2015 AGM at exhibit CK1. ↩

2. See exhibits CK1 and CK2. ↩

3. See exhibit CK4. ↩

4. See exhibit CK5. ↩

5. See paragraph 7 above. ↩

6. [2005] UKPC 37. ↩

7. [2003] EWCA Civ 1446. ↩

8. An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely to be the subject of a direction under section ↩