On the 14th of March 2022, the Corporate Affairs Commission (CAC) directed its Name Approving Officers to insist that all private schools, academies and other institutions of learning which seek to register their business names be henceforth directed to register as companies.

It justified the directive on the basis that an academic institution is essentially a body corporate with perpetual succession, capable of contracting and (subject to such restrictions as may be imposed by other laws) capable of issuing certificates in its name- attributes which are absent in a business name. This article argues that the directive is ultra vires.

First, every Nigerian citizen who engages in business or trade has the inherent right to determine the form under which to order his business.

In doing this, he would be guided by law, business exigencies, cost, tax, and regulatory considerations. But registration and formalisation are not mandatory unless required by law. Business registration and formalisation have their benefits, but they also carry the load of regulation and the loss of confidentiality. A person may be mandated to carry out his business through a particular form in some limited instances.

For example, the business of petroleum, insurance, and banking, can only be carried out through the company form (see s.70 of the Petroleum Industry Act 2021, s. 3 of the Insurance Act 2003, s.2 of the Banks and Other Financial Institutions Act 1991, for example).

Secondly, a business with more than 20 members must generally be carried out through the company form (s.19 CAMA). But apart from these few instances, it is left for proprietors to determine how to order their businesses, and CAC is bound to register the form they desire. It is not its duty to determine the suitability of a particular form, and it can only refuse registration where there is manifest illegality in its objects: or where there is non-compliance with a clear statute (s.41(1)CAMA).

Furthermore, it may only insist that a proposed entity adopt a particular object if the object itself has a bearing on the entity.

For example, the objects of a company limited by guarantee or the incorporated trustees of an association must comply with ss. 26(1) and 823(1) CAMA. But (at the risk of repetition), in exercising its regulatory mandate, CAC cannot insist that a business be carried out through a particular form.

There have been instances where names submitted for approval for registration as Limited Partnerships have been queried and rejected by CAC, with the directive that the business be carried out as a Limited Liability Partnership and vice versa. That itself is questionable.

The issue is that CAC is now stretching its powers to insist that all private schools should be registered as companies. But it does not have the right to do this.

CAC was established by s.1 of CAMA, and it is mandated to administer CAMA, register companies and allied forms such as Limited Partnerships, Limited Liability Partnerships, Incorporated Trustees, etc., and regulate them (s.8). It is also authorized to approve and reserve names submitted by proprietors (s.852), and register to business names (s.814 CAMA).

Once reserved and registered, a business name cannot be used by another entity without the owner’s consent. In doing so, CAC is guided by s.852, which authorizes it to refuse to register a name that is identical to that of another company or allied form, or one that resembles it to an extent that is capable of deceit.

CAMA also generally prohibits the use of the words ‘Chamber of Commerce as well as names that are misleading regarding the nature or extent of the entity’s activities.

Names that are undesirable, offensive or contrary to public policy or that violate existing trademarks or registered business names are also prohibited, as well as names that may mislead the public as to the nationality, race or religion of the persons by whom the business is wholly or mainly owned or controlled.

A name that is deceptive or objectionable because it refers to or suggests an association with any practice, institution, personage, foreign state or government, international organization or international brand, or one that is otherwise unsuitable is also prohibited.

Lastly, it prohibits a name that can undermine public peace and national security. The consent of CAC must be obtained before a name containing “Federal”, “National”, “Regional”, “State”, “Government”, or any other word that, in the opinion of CAC, suggests or is calculated to suggest that it enjoys the patronage of the Government of the Federation or the Government of a State etc., in Nigeria can be registered. Also restricted are names that suggest or are calculated to suggest some connection with any municipality or other local authority. Some of these names include ‘Municipal’ or “chartered’. Other restricted words include ‘co-operative’, ‘building society’, ‘group’ or ‘holding’.

But while it may approve and register business names (ss. 31, 814 CAMA), CAC is not authorized to insist that a business be carried out through a particular form. A proprietor may thus carry out his business as a company, an LLP, or even as an LP. Whether or not to register a name is not necessarily linked to its objects, unless the name violates s.852. Any name may thus be registered and used to carry out any legitimate business.

In doing so, it is equally essential for CAC to differentiate business forms from business names. LLPs, LPs, Companies, incorporated trustees etc., are forms of associations. But business names are not. A person, partnership or company may choose to register a business name.

A registered business name is an alias-not a form. It is not a legal personality or entity. In its wisdom, CAMA provides that any business whose name is not the same as those of its proprietor(s) should be registered with CAC (s.814).

Thus if Mr. XXX’s school is named ‘Excellent Foundation Nursery and Primary Academy’, he would be required to register the name in order to create a link between the business and himself.

Mandatory name registration is aimed at protecting the public from fraud and wrongdoing and ensuring the proper identification of persons behind it. But name registration is not a pre-requisite to the business.

That much can be gleaned from the fact that the business can be carried on for 28 days before it is registered (s.815). A proprietor may thus choose to carry out the business of farming, transportation, catering, trading etc., in his name. But where he does so via an alias, he must register the name and submit his personal details and address to CAC (ss.814, 815.)

In other words, what the proprietor registers is not the business but its name. It is not for CAC to refuse to register the name and to insist that the business be registered as a company.

It is admitted that the company form is traditionally suited for businesses with perpetual succession and fluctuating members. It is ideal for an entity, which desires to raise funds by issuing securities.

The company’s attractiveness is further bolstered by limited liability protection, which shields its members from its obligations. It is equally conceded that the company form is better suited for schools and businesses that desire to establish branches all over the country.

It is also a fact that some private schools have branches sprawled across the length and breadth of Nigeria, and it may therefore be tidy if they operate as companies. But they should not, and cannot be forced to do so. A business’s size, turnover or nature, does not determine its form. A proprietor whose firm has a turnover of 1 billion naira and 1000 employees may choose to operate as a company, or as an unincorporated sole proprietorship.

The choice of whether to operate, as a company cannot be done carelessly or hurriedly. It should be weighed carefully. This is because, by its unique nature and the protections it confers, the company form is saddled with extensive regulatory obligations that are designed to protect creditors, shareholders, employees and other relevant stakeholders.

Thus, while a person who seeks to order his business, as a company will enjoy several protections, he would also be subjected to regulatory control and would significantly forfeit his confidentiality. And a proprietor who is not ready for all of these is within his rights to settle for an allied form that would be less demanding from a regulatory perspective.

The writer is not unmindful that the CAC directive may be borne out of the desire to shore up revenues for the Federal Government from taxation, filing, and registration fees. But Nigeria’s federating states also have concurrent powers to regulate businesses and to create frameworks for registering partnerships and unincorporated sole proprietorship. And schools have traditionally been within the ambit of the states.

In the spirit of fiscal federalism, it is recommended that the FGN should not infringe on sectors that have been known to shore up revenues for the states. For the most part, state governments regulate private schools, irrespective of the form they assume. And the reality is that states are better placed to monitor and regulate them.

And if schools are to be mandated to register as companies there must be a statutory provision to that effect. It should not be at the whim of CAC. And many schools may opt to operate as unincorporated entities in order to avoid being subjected to CAMA’s extensive provisions.

The decline of the Nigerian educational system and the breakdown of the public school system are being addressed by the rise of private schools at (tertiary, primary, and tertiary levels), most of which provide efficient and effective education while observing international best practices. Although they tend to be expensive, they create jobs for thousands and generate revenues for state governments. All the tiers of government should encourage them.

At a time when it has become imperative that small businesses be encouraged and strengthened in Nigeria, private schools should not be subjected to unnecessary regulatory burdens. It is worth remembering that private schools come in various sizes. Some are located in rural areas where government services are broken down.

Some have as few as 20 students, while others are large conglomerates with multi-campus complexes, which operate across the vertical chain of the educational sector. Some schools generate less than N100 000.00 annually in profits, while others rake in as much as N100, 000,000.

Irrespective of size, private schools are expected to pay taxes, levies, and fees to the states’ governments where they operate. But if they were mandated to be registered as companies, they would also have to pay CIT. This will discourage small private schools and may disrupt the services they provide for poorer Nigerians. A fact that would not only be unlawful as it stands but would also negate the spirit of true federalism.

Subai is a Senior Lecturer, Faculty of Law, Niger Delta University, Wilberforce Island, Bayelsa State.

Inside Stuff With MARTINS OLOJA

“There is not much talking now. A silence falls upon them all. This is no time to talk of hedges and fields, or the beauties of any country. Sadness and fear and hate, how they well up in the heart and mind, whenever one opens pages of these messengers of doom. Cry for the broken tribe, for the law and the custom that is gone. Aye, and cry aloud for the man who is dead, for the woman and children bereaved. Cry, the beloved country, these things are not yet at an end. The sun pours down on the earth, on the lovely land that man cannot enjoy. He knows only the fear of his heart.”
Alan Paton, “Cry, The Beloved Country”

“We do not know, we do not know. We shall live from day to day, and put more locks on the doors, and get a fine fierce dog when the fine fierce bitch next door has pups, and hold on to our handbags more tenaciously; and the beauty of the trees by night, and the raptures of lovers under the stars, these things we shall forego. We shall forego the coming home drunken through the midnight streets, and the evening walk over the star-lit veld. We shall be careful, and knock this off our lives, and knock that off our lives, and hedge ourselves about with safety and precaution. And our lives will shrink, but they shall be the lives of superior beings; and we shall live with fear, but at least it will not be a fear of the unknown. And the conscience shall be thrust down; the light of life shall not be extinguished, but be put under a bushel, to be preserved for a generation that will live by it again, in some day not yet come; and how it will come, and when it will come, we shall not think about at all.”
― Alan Paton, “Cry, The Beloved Country”

“Who indeed knows the secret of the earthly pilgrimage? Who indeed knows why there can be comfort in a world of desolation? Now God be thanked that there is a beloved one who can lift up the heart in suffering, that one can play with a child in the face of such misery. Now God be thanked that the name of a hill is such music, that the name of a river can heal. Aye, even the name of a river that runs no more.
Who indeed knows the secret of the earthly pilgrimage? Who knows for what we live, and struggle and die? Who knows what keeps us living and struggling, while all things break about us? Who knows why the warm flesh of a child is such comfort, when one’s own child is lost and cannot be recovered? Wise men write many books, in words too hard to understand. But this, the purpose of our lives, the end of all our struggle, is beyond all human wisdom.”
― Alan Paton, “Cry The Beloved Country”

“I see only one hope for our country, and that is when white men and black men, desiring neither power nor money, but desiring only the good for their country, come together to work for it.
I have one great fear in my heart, that one day when they are turned to loving, they will find we are turned to hating.”

― Alan Paton, “Cry, The Beloved Country”

I was reflecting on what to write this week when a ‘small still voice’ nudged me to write another message of hope to our people who have been confounded by the incompetence and cluelessness of most of the leaders we elected to manage ‘security and welfare of the people as primary purpose of government’. Yes, they have all failed us and so it is already too late to raise any redemption songs. Their rampaging incompetence has overwhelmed them. And so we need to focus on how to encourage our people to conquer one weapon of mass discontent – fear of the unknown. Yes, fear. We need to say to our people: ‘be not afraid’ at this time. A time to say to our people: do not run away because of Buhari-nomics that has gone awry. Separate the man from the country at this moment and recall that ancient word, which tells us that, ‘Whoever watches the wind will not plant…’

I mean my spirit man tells me to encourage our people with inspirational stories from a 1946 classic by a South African, Alan Paton, “Cry, The Beloved Country”.

It isn’t a book of lamentation, which isn’t a strategy to conquer evil, anyway. I would like to deconstruct the book as you have seen some inspirational words on marble above from the literary work that can speak to our situation at this time. Even the excerpts above are worth reading repeatedly if you can find the time. Why do I say so?

Fear is a prevalent theme in ‘Cry, the Beloved Country’. The fact that ‘fear’ appears in the same passage as the novel’s title phrase testifies to its importance: ‘Cry, the beloved country, for the unborn child that is the inheritor of our fear. Let him not love the earth too deeply…’

It tells the story of a father’s journey from rural South Africa to and through the city of Johannesburg in search of his son. The reader cannot help but feel deeply for the central character, a Zulu pastor, Stephen Kumalo, and the tortuous discoveries he makes in Johannesburg. Just as remarkable discoveries we make now in Lagos and Abuja.

The author, Paton depicts that social problems plague every generation and even though the circumstances change, society continues to suffer from the same problem that plagued us thousands of years ago.

Paton explains that these problems lie rooted in the nature of individuals, and to achieve lasting change one must change how people approach and react to these problems. In that Paton’s 1946 social criticism, “Cry, The Beloved Country”, he uses imagery to emphasise the social problems of broken families and tribe, consequences of poverty, and the repercussions of racism just as we can see clearly in our society today.

In the opinion of the author then in South Africa, the destruction of earth and the family in the enclave is a major problem for the advancement of society. Paton repeatedly describes the intricate relationship between the tribe, earth and man. Paton describes the conditions of Shanty town as “narrow” and “forgotten”. The use of these qualifiers to help build the picture of poverty faced by the black people of South Africa is remarkable.

Poverty is difficult to describe and understand if you have not seen it first hand. Paton describes the “tragic” and “sad” situation in a way we can understand because, he understands poverty is a problem faced by every generation and we can only fix poverty by stopping it at the source. That source of these problems is a broken family and a society with no morals. Arthur Jarvis, a white character in the work communicates Paton’s feelings toward the family with his papers “It is not permissible for us to go on destroying family life when we know that we are destroying it”. Paton tells us that we know in our hearts what causes poverty, but we are often ignorant and reluctant to change it. We must change ourselves to have a chance at changing the society we live…This is important to those who would like to succeed today’s leaders tomorrow ‘if tomorrow comes’.

According to various reviews, one way Paton connects the reader to the racial tension in the novel is through the repetition of the thematic title throughout key events in the novel. He often uses the wording of the title within the text to express the pain inflicted by South Africa’s moral conflict, racial segregation and oppression. Paton uses the repetition to connect events in the story with the overall theme, altering the context slightly each time.At one point, Paton expresses the anguish of the broken African society and the transformation and assimilation into a white man’s society of hatred and separation. He pleads, “Cry for the broken tribe, for the law and the custom that is gone. Aye, and cry aloud for the man who is dead, for the woman and children bereaved. Cry, the beloved country, these things are not yet at an end”.

The Paton’s creative work has been hailed as one of the greatest South African novels. ‘Cry, the Beloved Country’ was first published in the United States, bringing international attention to South Africa’s tragic history. The novel, which captures the extremes of human emotion and Alan Paton’s faith in human dignity in the worst of circumstances, is poignant and uplifting. The novel shows the brutality of apartheid but despite its unflinching portrayal of darkness and despair in South Africa, it still offers hope for a better future.

The novel itself is a cry for South Africa, which we learn is beloved in spite of everything; a cry for its people, its land, and the tentative hope for its freedom from hatred, poverty and fear. And so the great Madiba (Nelson Mandela) manifested to represent a glimmer of hope that has made South Africa as Africa’s most significant nation at this moment.

I also see hope of a great Nigeria from this present debris and darkness. Where is my optimism?
In a country torn by segregation and hatred, one man seeks to rebuild his family and his tribe. ‘Cry, the beloved country’ is a tale of forgiveness, generosity, and endurance. In the story, the main protagonist is helped by a number of characters. A South African man Stephen Kumalo loses his young son, but is still determined to improve the life of his people. In this black man’s country, white man’s law had broken the tribe, divided the people and corrupted the youth. How could these wounds of hatred be healed, when would the youth realise the immorality of their actions, and when would South Africans achieve unity. Father Vincent said, “Fear is a journey, a terrible journey, but sorrow is at least an arriving…”

That is why I said we must banish fear of even election riggers at this time and work hard to elect leaders instead of dealers.

One must be thankful for what one already possesses and work hard to improve. In the classic, Kumalo gets Absalom and the girl married and took the girl home. It also helps him realize Absalom’s condition when he committed the crime. Msimangu said, “I see only one hope for this country and that is when white and black men, desiring neither power nor money, but desiring only the good of their country come together to work for it.”
I also see only one hope for Nigeria and that is when Christians and Muslims desiring neither power nor money but desiring the good of their country, come together and work for it.

South Africa was also plagued with problems of poverty, apartheid, and crime. Kumalo realises that to find some solution people must forgive each other for what has already happened and make a joint effort to provide a new life to the country. Mourning about the past helps nobody: It’s a better future that peoples should strive for. That is another message of hope from Paton’s ‘Cry The Beloved Country’ for all of us who should work and pray for a better and more united country after President Buhari’s eight years of mesmerising us into acting ‘Waiting for Godot’.

By Chidi Anselm Odinkalu

This past week education came to a halt in Abuja, Nigeria’s Federal Capital Territory (FCT). It began with the order by the Minister of Education, Adamu Adamu, on 25 July closing down all six Federal Government Colleges (better known as Unity Schools) in the FCT while the students were in the middle of their end of year examinations. The reason for this order, according to the Minister was “a security breach on Sheda and Lambata villages, suburbs of Kwali Area Council which also threatened FGC Kwali.” He provided no details as to the nature or extent of the “security breach”.

In a separate announcement issued on the same day, the Education Secretariat of the FCT summarily informed “parents and guardians that the 2021/2022 academic calendar for FCT schools will come to an end on Wednesday, July 27th, 2022.” They did not much care to provide any justification for this measure. The assumption that the reason for the closure of all schools in the FCT was the same as that cited by the Minister of Education when he closed down the Unity Schools, does not necessarily explain the two more days of grace given by the FCT Administration to all the other schools in the FCT.

In the same week, the terrorists also forced Veritas University, a tertiary institution established by the Catholic Church in the FCT, to close down indefinitely.

On the same day that the Minister shuttered the Unity Schools in the FCT, by the way, it emerged that terrorists had killed an officer and two men of the elite Brigade of Guards of the Nigerian Army who were “reportedly ambushed after they visited the Nigeria Law School in Bwari following a distressed (sic) call from the authorities of the school.” According to the Daily Trust, “the school management was said to have alerted that terrorists had dropped a letter indicating an imminent attack on the school.” 

These were not the only soldiers killed in the FCT during the week. The day after the FCT Administration shut down all schools in the Federal Capital, around 28 July, armed terrorists reportedly attacked another military unit near Zuma Rock on the border between the FCT and Niger State, killing at least two soldiers in an attack which “lasted for almost one hour” during which no one in the command structure could mobilise assistance or reinforcements for the besieged soldiers.

This latest cascade of insecurity in Nigeria’s Federal Capital began with the attack on the Kuje Medium Security Prison in the capital city on 5 July, in which the Islamic State West Africa Province (ISWAP) killed at least one security personnel and liberated over 900 of the most dangerous terrorists held or convicted by Nigeria in an operation that reportedly lasted over three hours.

Despite being in possession of advance notice of the attack, the administration of General Muhammadu Buhari took no measures to forestall or repel the attack. Instead, it appears they worked hard to encourage it. That is the only way to explain the report that soldiers who on guard around the prison perimeter were inexplicably redeployed away from that duty post less than 24 hours before the attack, a fact which could only have made the attack a lot easier for the perpetrators. No one has explained satisfactorily or at all how terrorism convicts and suspects of the most hardened type managed to end up in a medium security prison, which is what the Kuje prison is.

A few hours after the Kuje prison break, on 6 July, in Dutsinma, Katsina State in north-west Nigeria, a separate band of terrorists attacked General Buhari’s advance team heading to his village to prepare for his arrival for the Eid. On the same day, the police in the state confirmed that “an assistant commissioner of police Aminu Umar and another police officer were killed in a terrorist ambush in Dutsinma the same day.”

The Kuje prison break was the 14th under the watch of President Buhari, without consequences. His first Interior Minister served a full term. The current one remains in position and so does the president. These prison breaks have correlated positively with metastases of insecurity in the states in which they have occurred. Figures from the monitoring group, Nigeria Mourns, clearly demonstrate that the escalation of insecurity in Imo State and south-east Nigeria, for instance, is traceable to the prison break in Owerri, the Imo State capital on 5 April 2021 from which 1,844 dangerous prisoners and detainees escaped.

President Buhari’s response to this deterioration has been to amass Air Miles on an intense scale. The Kuje prison attack occurred exactly two days after President Buhari returned from a down-time visit to Portugal on 3 July. That was his 11th foreign trip in the preceding five months since the end of January, some of them undertaken at less than a whim. During the same period, the security situation in the FCT has gone into a meltdown. 

After the Kuje Prison break, General Buhari decided to attend a meeting of his National Security Council on Friday, 8 July. Predictably, the meeting was worse than inconclusive. The president, a worshipful Muslim, needed to observe his Jummat prayers on the day and, thereafter, had a flight to catch to his village for the Eid holidays. None of those could wait. Serious deliberations, it appears, were deferred until the president had concluded his Eid holidays. That was not to be until 21 July, by which date the terrorists recently freed from the Kuje Prison had time to deploy in and around the FCT. As this meeting took place, it appears, the terrorists unfolded a campaign of renewed terror within the territory.

With no sense of shame or irony, two days after terrorists killed three staff of his Guards Brigade; the day after his Minister of Education shut down leading public schools in the FCT because of insecurity, and the day before his FCT Administration shut down all schools in the same FCT, on 26 July, General Buhari flew off to “Monrovia, Liberia to, among other things, deliver an address bordering on West Africa’s security.”

When Boko Haram abducted 276 students of the Government Girls Secondary School (GGSS), Chibok, in Borno State on 14 April, 2014, it was novel, and unheard of. The incident triggered a high level presidential panel led by a former head of the Directorate of Military Intelligence (DMI), a Safe Schools Initiative, and an international campaign to #BringBackOurGirls. The All Progressives Congress (APC) created in the same year and led by Muhammadu Buhari, launched itself onto the political scene by calling on the National Assembly to “impeach President Goodluck Jonathan now.” The entire narrative of the Buhari presidential campaign was then configured around the promise that as a retired General he knew how to keep the country safe.

On the eighth anniversary of the Chibok Girls abduction in April 2022, a total of 11,536 schools were closed by insecurity and over 1,500 school children were in captivity, victims of mass abduction.  Seven years into his second misadventure in power, Muhammadu Buhari has routinised the mass abduction of school children, democratized insecurity and is now incapable of securing the Federal Capital. The Institute for Security Studies, (ISS) in South Africa now hazards that Nigeria under Buhari is “out of security options” and another article published by Al-Jazeera in the past week said that “Nigeria’s security forces are no longer able to protect themselves, let alone the public.”

At the beginning of the year, General Buhari informed Nigerians that he is tired and could not wait to return to his village. Six months later, in June 2022, he announced that the job of president is “tough” saying “I am eager to go.”

The first job of a president and commander-in-chief is not merely to protect his country; it is, even more, to protect his capital city. Above all, it is to care about his people. It is now clear that as President, Muhammadu Buhari is unable and unwilling to do any of these and is indeed incapable of doing so. In the circumstance, there is no case for him to continue as president. Nigerians should grant him his desire to retire.

The only option left in democratic politics is for the National Assembly to remove him through the process of impeachment. That is their democratic duty under the constitution. The cost of continuing to keep Buhari in office is the destruction of whatever remains of Nigeria. No one, surely not Buhari, is worth the price of the country. It is now time for the National Assembly to fulfill this duty and impeach Muhammadu Buhari as the president of Nigeria.

A lawyer and a teacher, Odinkalu can be reached at [email protected]