A foreign company not registered in Nigeria but has outstanding
claims against a business partner or a company incorporated in Nigeria is
allowed under Nigerian company law and jurisprudence to sue such a business
partner or company in Nigeria in the foreign company’s own name.
Thus, it is wise for such a foreign company to resort to
litigation on time lest it be distracted with unending negotiations until its
claims become statute barred by Nigerian limitation laws.
The Nigerian law which empowers a foreign company not
registered in Nigeria to sue and be sued in its name in Nigeria
is Section 60(b) of the Companies and Allied Matters
Act, 2004 which provides as follows:
"Nothing in this chapter shall be construed as affecting the rights or liability of a foreign company to sue or be sued in its name or in the name of its agent"
The locus standi (right) of a foreign company to sue and be
sued in Nigeria has been considered and determined in a number of Nigerian cases
by both the Court of Appeal and the Supreme
Court. One of such cases is the case of Bank of Baroda v.
Iyalabani Co. Ltd. (2002) 13 NWLR (Pt.785) 551, where
in answering the question whether foreign companies not registered in
Nigeria can sue in Nigeria, Ogundare, J.S.C expounded
at page 588, para. C thus:
"It is a principle of common law, and this is accepted in this country, that a corporation incorporated in a foreign country may sue or be sued in our courts."
In fact such a foreign company it has been held does not
necessarily need to sue in the name of its agents in Nigeria. See Ritz
&Co. KG v. Techno Ltd (1999) 4 NWLR (Pt 598) 298,
where Muntaka-Coomassie,JCA at 306,paras.
E-F, puts it this way:
"A foreign company not registered in Nigeria can sue in its name without necessarily suing in the name of its agents in Nigeria. It can never be just and fair approach to say that a foreign company cannot sue to claim its legitimate right in Nigeria because it has not yet been registered. Suing or being sued in Nigeria does not mean "carrying on business" in Nigeria
Likewise, in the case of Watanmal (Singapore) v. Liz
Olofin & Co (1998)1 NWLR (PT 533) 311 at 319,. It was observed
that the intent of section 54 of the Companies and
Allied Matters Act is only to prohibit a foreign company from running
business in Nigeria without incorporation. In this case, the Court of
Appeal, Per Uwaifo JCA (as he then was) expounded
that:
"I wish to emphasize that as pointed out in the leading judgement, section 54 of the Companies and Allied Matters Act, 1990 does not apply to the present case. It deals with the conditions a foreign company must fulfill before carrying on business in Nigeria. Section 60(b) makes it clear that a foreign company can sue or be sued in Nigeria in its name or in the name of its agent. Had the learned trial judge's attention been drawn to that provision, he would no doubt have come to the conclusion that the plaintiff/appellant, a foreign company, is entitled to sue here in its name"
Akintunde Esan is a Legal
Practitioner/Consultant, a Chartered Mediator and a top and leading
Legal Blogger on Nigerian laws and jurisprudence.
If you need further illumination you may contact Akintunde Esan
No comments:
Post a Comment
Chat with me on WhatsApp @ +234 08073828487