clr/1987/1987_3_121.pdf

(2), 6(l)(a), 6(l)(b),6

(4), 6

(5)and 8 Theapplicantssubmittedanapplication torespondent2forthe registration of a company under the name of «Amencanos College Ltd» Respondent 2 informed counsel for the applicants that for the application to be accepted certainconditionswillhave tobesatisfied Oneof thesaid conditionswas that the name of the company should be changed into «Pnvate Institute Amencanos College Ltd» Asaresulttheapplicantsfiled thepresent recourse Counselfortherespon­ dents submitted, interalia, thatthe Registrar is bound toabide by the provi­ sions of the Pnvate Schools Law anddemand theinsertionof thewords «Pn­ vate Institute»as part of the nameof thecompany inquestion Held, annullingthe subjudice decision

(1)Theapproval of names for pn- 121 Americano· &Another v. Republic

(1987)vate schools is by virtue of vanous provisions of the Pnvate School Laws* (Law5/71 asamended by Law56/83) amatterwithintheexclusive competenceof the Ministerof Education

(2)Whenapnvatecompanyisregistered alegalentitycomesintoexistence and such legal entity can transact business in accordance with its 5 memorandum and articles of association The establishment of a company doesnotbyitself entitlesuch companytooperateaprivateschoolevenifthe operation of such a school is included among the objects set out in the memorandum and articlesofassociation of such company Asinthe caseof individualsa company tobeentitledtooperateapnvate schoolhastoobtain 1 0 apermit from the Ministerof Education

(3)Itfollowsthatthe RegistrarofCompaniesinrelyingontheprovisionsof the Pnvate Schools Laws has acted under a misconception of law as the objects ofsetting upa companyand theoperation ofapnvateschool aredifferent matters forwhich powersare vested indifferent organs 15 Subjudice decisionannulled. No orderastocosts Recourse. Recourse against the refusal of the respondents to accept registrationofthebusinessname«AmericanosCollegeLtd.» 20 A. Haviaras, fortheapplicants St hannidou (Mrs.), fortherespondents. Cur. adv. vult. SAWIDES J. read the following judgment. Applicant 1isthe owner of a pnvate school operating under the business name 25 «Americanos College» registered as such with the Registrar of Companies in accordance with a certficateNo. 5536 dated the 4th January, 1984. On the 7th December, 1985,the applicants submitted tothe Registraran application for the registration ofa company under the name «Amencanos College Ltd.» together 30 withtheMemorandumandArticlesofAssociationoftheproposed company.Theyalsosubmittedthewritten consentofothercompanies registered with similar names and in particular

(1)AmericanosDevelopersLtd.,

(2)AmencanosOffice andEmplov*Seesections3.6(l}(a),6(l)(b), 6

(4),6

(5).4,5(2}and8 ofthesaidLaw 122 3C.L.R. Am«ric«no·ftAnotherv.Republic Sawidee J. mentServices,and

(3)AmericanosAccountancyTutorsLtd.,for theregistrationofthesaidcompany. Respondent2informed counselfortheapplicantsorallyandin writingthatfortheapplicationtobeaccepted:5 (a)thenameofthecompanyshouldbechanged into«Private InstituteAmericanosCollegeLtd.»; (b)the business name «Americanos College»registered inthe nameofapplicant

(1)hadtobestruckout;and (c)certainprintingerrorsIntheArticlesofAssociationshouldbe 10 corrected. Counsel for theapplicantsbyletterdatedthe 18th December, 1985informedtheReqistrarthathehadnodifficulty inaccepting conditions (

1. b)and (
2. c)but that he considered condition (
3. a)as unacceptable,advancinghisreasonsinsupportofhisview. 15 Respondent No,2 by letter dated 30.12.1984 informed the applicants' counsel that he could not accept registration of the proposedname«onthegroundthatthereisasimilarnameregistered»andthathewaspreparedto consider othernames.Inthe courseofthehearingofthisrecourse,however, itbecame appa20 rentthattherefusal oftheRegistrarwasnotforthereason stated inhisletterwhichwaswrittenbyinadvertenceonastandardform ofreplybutforthereasonthattheRegistrarinordertoapprovethe name, required the words«Private Institute» tobe added before suchnameandthatinfactallcommunicationsbetweentheparties 25 weretothat effect. Counselfor theapplicantsconceded thatthe reasonfortherefusalwasasstatedbycounselfortherespondent the contents of such letter should be read as embodying such reasonintherefusal oftheRegistrartoregisterthecompany. Thegroundsoflawonwhichcounsel,for theapplicantsbased 30 hisrecoursewerethatthesubjudicedecisionwastakeninabuse and/orexcessofpower,Isnotdulyreasoned,thereislackofdue. Inquiry, Itiscontrary tothe Companies Law,Cap. 113andwas takenunderamisconceptionoflaw. In expounding on his grounds of law counsel submitted that 35 Law 5/71 as amended byLaw 56/83 does not require that the words«PrivateInstitute»or«School»shouldappearinthenameof theschoolbutonlyonadvertisementsanddocumentswhichare 123 S a w i d e s J. Americanos &Another v. Republic

(1987)being issued by the school and concluded that the respondents accepted, after theenactment oftheabove laws theregistrationof thebusinessname «AmencanosCollege»withoutanyreservation Counsel for the respondents by her written address submitted thatthe Registraracted intheexercise ofhispowersundersection 5 18of the Companies Law, Cap 113 by which he is empowered to refuse registration of a name which, in his opinion, is undesirable Counsel further added that if the words «Pnvate Institute» are not inserted thismight mislead the public atlarge to think that such college issponsored by the Government In clarification counsel for the respondents contended that the Registrar had accepted registration of the business name «Amencanos College» on the4thJanuary, 1984,by inadvertence and mistake as the enactment of Law56/83 did not come to his knowledge and this does not entitle the applicants to have the 15 name ofthe proposed companyregistered without thewords«Pnvate Institute» inserted thereto In any event, counsel submitted thai mthe present case the court isconcerned with the registrationofaprivate company undertheCompaniesLawandsincethe old name willbestruck off andanewcompany willbe formed, the 20 Registrar is bound to abide by the provisions of the Pnvate Schools Laws and demand the insertion of the words «Pnvate Institute» as part of the name ofthe company in question Before embarking on the issuesbefore me, I find itnecessary to refer tothelawsrelevanttothepresent caseandtheirobjects The 25 Companies Law, Cap 113, is a law enacted for the purpose of regulating the registration and operation of companies and the person empowered to carry out the objects of the law is the Registrar of Companies and in respect of registration of companies, the term «Registrar»means «theOfficial Receiver and 30 Registrar and includesanyotherperson appointed bytheCouncil of Ministersto exercise allor anyof the powersand perform allor any of the duties of a Registrar» Under section 18 no company shallberegistered bya name which intheopinion ofthe Registrar is undesirable The operation of pnvate schools is regulated by the Pnvate Schools Law, 1971 (Law5/71)asamended byLaw56/83 Under the provisions of section 3, no pnvate school shall be established and operate without a certificate issued for that purpose by the 124 3 CX.R. Americanos &Another v. Republic S a w i d e s J. Minister of Education All the powers for the establishment and operation ofapnvateschoolarevestedbyvirtueofsuchlawtothe Minister of Education who isthe only competent organ to allow the operation ofsuchschool Undersection 8 fortheoperationof 5 apnvateschoolanapplicationshouldbesubmitted totheMinister containing certain particulars and if the Minister is satisfied that such application complies with the provisions of the law he may proceed with the registration ofsuch school and theissueofacertificate tothatend The provisionsastothename oftheschoolare 10 contained insection 6 Itisprovided therein that the name of the school should not be deceptive astothe type and standard ofthe school {section 6

(1)(a)),itshould be distinctive from the namesof other pnvate or publicschools (section 6

(1)(b)) that every pnvate school or pnvate tutorial centre should bear before its name the 15 words «pnvate school» or «private institute» in all notices, advertisements, certificates and any other documents issued by the school (section 6

(4)Further, under sub-section

(5)of section 6,it isexpresslyprohibited tousethe name of a privateschool before thesubmission ofadeclaration inaccordancewithsection4orthe 20 grant of apermit under sub-section

(2)of section 5 The approval of names for private schools istherefore a matter within the exclusive jurisdiction of the Minister Beanng in mind the above provisions in the law the question poses for consideration whether the name under which a private 25 school is proposed to operate under the Private Schools Laws 1971-1983 is a matter within the powers and discretion of the Registrar ofCompanies When a pnvate company issetupandits registration isapproved by the Registrar, alegal entitycomes into existence, which can transact business in accordance with its 30 memorandum and articles ofassociation which maybe amended from time to time The establishment of a company does not by itself entitlesuch companytooperateapnvateschool inespective of the fact that the operation ofa school isincluded inthe objects setoutinitsmemorandum andarticlesofassociation Forapnvate 35 company, as in the case of pnvate individuals, to be entitled to establish and operate a school, it has to obtain a permit from the Minister of Education whom ithas to satisfy both astothe desirabilityofthenametobeusedand inrespectofallothermattersprovided inthe law 40 Inthepresent case,the RegistrarofCompaniesbyrequiring the 125 Sawides J. Americanos AAnotherv.Republic

(1987)insertion inthename ofthecompany,whichInfact consistedof the surname of the applicants, of the words «Private Institute» relying, inthisrespect, ontheprovisionsofthe PrivateSchools Law,hasacted underamisconception oflawastheobjectofsettingupa company andtheoperationofaprivateschoolaredif- 5 ferent matters for which powers are vested in different organs. Irrespectiveofthedescriptionofaregisteredcompany,theoperation ofaschool isnotamatterwhichhasanythingtodowiththe registration of a company or itsregistered name butisa matter withintheexclusivejurisdictionoftheMinisterofEducationifand 10 when an application for theoperation ofaschool bysuchcompanyissubmitted. Before concludingIwishtoobservethattheexplanationgiven on behalf ofthe Registrarthatwhen he accepted for registration the business name «Americanos College», on the 4th January, 15 1984,thatis,sixmonthsaftertheenactmentofLaw56/83,hedid notrequire theinclusioninsuchbusinessnameofthewords«PrivateInstitute»due toignorance ofthelaw,isaverypoorone.A responsible organ oftheRepublic,suchastheRegistrarofCompanies,isnot expectedtoactinignorance ofthelawon matters 20 whichheconsidersimportantinthedischargeofhisfunctions. Intheresultthesubjudicedecisionisannulled.Therewillbeno orderforcosts. Subjudicedecisionannulled. Noorderastocosts. ^5 126