P a g e | 1 1 CURRENT APPROACHES TO SEPARATE LEGAL PERSONALITY OF A COMPANY IN IRELAND, THE STATE OF DELAWARE IN THE UNITED STATES OF AMERICA AND NIGERIA Franco Jombo University of Limerick, [email protected] SCHOOL OF LAW, UNVERSITY OF LIMERICK, LL.M BY RESEARCH THESIS _____________________________________________________________________________ Recommended Citation: Jombo .F, ‘Current Approaches to Separate Legal Personality of a Company in Ireland, the State of Delaware in the United States of America and Nigeria’ [2018] Vol.1. P a g e | 2 Thesis submitted for the award of LL.M Degree School of Law, University of Limerick, Ireland Supervisor: Barrister Sinead Eaton November 2017 ‘Current Approaches to ‘Separate Legal Personality’ of a Company in Ireland, the State of Delaware in the United States of America and Nigeria’. Franco Jombo, Dip. Bus. Comp, BBL & T [BLGLM] I hereby attest that this thesis, which I now submit for appraisement on the programme of research for the award of LL.M, is unreservedly my personal work. I have taken justifiable diligence to make certain that the work is entirely original. This thesis does not to the most excellent of my comprehension violate any copyright law. The thesis has not been extracted from the work of others save and to the extent that such work has been referenced and recognised at the footnotes of my thesis. Signed: Franco Jombo ID Number 15088138 Date: November 2017 P a g e | 3 APPRECIATION FOR THE DEGREE OF LL.M BY RESEARCH I, in every respect, wish to express my genuinely gratitude to Barrister Sinead Eaton, Lecturer in Law, School of Law at University of Limerick for her invaluable help, guidance and advice over the past two years. As this LL.M degree would not have been feasible without her expertise supervision work and dedication to the research. Barrister Sinead Eaton went extra miles and gave me her personal Law Book to ensure that I would excel in this LL.M research. I am inveterately indebted to my beloved wife - Blessing C Jombo and son Victor C Jombo, whose husbandly and fatherly care was infringed upon as they put up with me while undertaking this LL.M research. Extraordinary gratitude to my elder brother, chairman Innocent U. Jombo Emeahara who inculcated in me the zeal for academics. Conclusively, I would like to dedicate this LL.M Thesis to my late parents - Eteh Iroamachi Jombo & Nmma Grace Chijiago Jombo who brought me into this world and directed me towards the path of Education. “Education begins, like charity, at home” a quote by Susan Ferraro, New York Times/Hers, March 26, 1987. P a g e | 4 ABSTRACT: This my Postgraduate LL.M studies by research focusing on the concept ‘Separate Legal Personality’ of a company’. It is a Company Law topic. The Thesis explores and analyses the creation of ‘Separate Legal Personality’ of companies and the ‘Disregarding’ of same in Ireland, United States of America (Delaware) and Nigeria in the 21st Century. The researcher was motivated to research on ‘Separate Legal Personality’ of a company when he realised the inconsistencies and controversies surrounding the topic since 1897 when the topic’s pioneer case Salomon v Salmon & Co. Ltd 1897 AC 22 was overturned by the United Kingdom House of Lords (HL). Also, the Researcher realised that there are comparative exceptions in the Disregarding of ‘Separate Legal Personality’ of a Company still exist in Ireland, United States of America and Nigeria. The researcher utilised the Qualitative Research Approach Method and Case Studies which were researched from multiple sources, including Law Books and Legal Journal Articles. The ‘Separate Legal Personality’ of a Company is a significant and household concept in Company Law, therefore figuring out the comparative exceptions which still exist in the aforestated jurisdictions seems to be a worthwhile research. This, I believe would enable the legislators to harmonise and update laws for ‘Separate Legal Personality’ of a Company in the 21st Century as there has been no proactive measures to abolish these inconsistencies and controversies. Keywords: Law; Company Law; Corporate Law; Separate Legal Personality; Limited Liability; Disregarding the Corporate Veil; Legal Entity, Salomon v Salomon & Co Ltd P a g e | 5 TABLE OF CONTENTS Contents Pages CHAPTER 1………………………………………………………………………… 1 INTRODUCTION & OVERVIEW…………………………………………………… 3-13 1.1 Literature review of the Separate Legal Personality Doctrine in Ireland, the State of Delaware, USA & Nigeria……….……………………………………………………. 13-27 1.2 Creation of separate legal personality of Company in Ireland ………………….. 27-28 CHAPTER 2 Disregarding Separate Legal Personality of a Company in Ireland …...... 28-32 2. 1 Instances Where the Structure or the Incorporated Company is disregarded …….. 33-35 2. 2 With whom will the company be identified? …………………………………35-36 2. 3 The situations in which Separate Legal Personality may be disregarded ……….. 36-37 2. 4 The situations in which Separate Legal Personality may be disregarded – Agency ... 37-48 2. 5 Misuse/Abuse/Improper Use of the Corporate Form ………………………………48-51 2. 6 Evasion of existing legal obligations ……………………………………… 51-58 2. 7 Irish Cases & Avoidance of future liabilities ……………………………………… 58-59 2. 8 The Single Economic Entity ……………………………………………… 59-65 CHAPTER 3 Statutory & Judicial Exceptions/Provisions for Disregarding of Separate Legal Personality in Irish Ltd Company ………………………………………………… ... 65-70 3.1 Other Legislation ……………………..……………………………………………….. 70-73 3.2 Characterisation …………………….……………………………………………… 73-77 3.3 Statutes ….................................................................................................................... 78 -89 3.4 Other Legislation ……………...……………………………………………………. 89-93 CHAPTER 4 Separate Legal Personality of a Company (Corporation) in the State of Delaware USA ……………………………………………………………………………… 93 4.1 Origin of Incorporated Companies (Corporations) ..…………………………..……… 94 4.2 Types of Companies (Corporations) ……………………………………94-95 4.3 Creating an Incorporated Company (Corporation) ………………………………… 95-96 4.4 State of Delaware, small State but a tremendous hub of Companies ……..…………. 97 4.5 Key Players Behind an ‘Incorporated Company’ (Corporation) …...……………… 98-100 4.6 Shareholders and Directors Fiduciary Obligation …………………………… 100-102 4.7 Separate Legal Personality of a company in the State Of Delaware USA ……… 102-104 4.8 Limited liability in United States of America corporate law ...……………… 104-107 4.8a Judicial Cases of Disregarding Separate Legal Personality & Statutory examples of Disregarding SPL in the United States of America .……………...…………………... 107-112 4.8b Applicability of the "disregard doctrine" in favor of contractual creditors ……… 113-114 4.8c Asymmetry of information ……………….……………………………………… 114-115 CHAPTER 5 Separate Legal Personality of a Company in Nigeria …………………… 115-116 5.1 Development of Company Law in Nigeria ... ...………………………………… 116-120 5.2 Creation of Companies - Business Organisations in Nigeria ……………… ... 120-121 5.3 Separate Legal Personality Principle under Nigerian Company Law ….……….. 121-126 5.4 Concept of Disregarding Separate Legal Personality …….………………….….. 126-129 5.5 Disregarding the ‘Separate Legal Personality’ By the Court …………..………… 129-132 5.6 Disregarding the ‘Separate Legal Personality’ under Statute ……………… 132-137 CHAPTER 6 Comparisons of the ‘Separate Legal Personality Doctrines in Ireland, Delaware USA & Nigeria ………………………………………………………………… 137-140 6.1 Limited Liability Companies (LLCs), CAMA Types of Businesses …………… 140-142 6.2 Comparing Statutory provisions in Disregarding ‘Separate Legal Personality’ of an Incorporated Company .......…………………………………...……………………… 142-144 6.3 Comparisons of when the Courts may Disregard Separate Legal Personality ….... 144-151 6.4 Summary ………………………………………………………………………….. 151-154 6.5 Conclusion …………………………………………………………… 154-160 Bibliography ……………………………………………………………………… 161-167 P a g e | 6 CHAPTER 1 INTRODUCTION “At first glance, there seems to be an unbridgeable gulf between the corporate veil doctrines on the two sides of the Atlantic”1 Digesting and paraphrasing this quote from my thesis perspective, I would say “At first glance, there seems to be an unbridgeable gulf between the Separate Legal Personality doctrine (Corporate veil doctrine) across Ireland, United States of America and Nigeria” In view of this, my research on ‘Current Approaches to the Separate Legal Personality of a Company’ in Ireland, United States of America and Nigeria would analyse the ‘Separate Legal Personality Doctrine’ in Ireland, United States of America and Nigeria in the contemporary period in focus. Irrefutably, there is the gulf between the circumstances in which the courts disregard the ‘Separate Legal Personality’ of a Company in the three jurisdictions since the inception of the doctrine in Salomon v Salomon & Co Ltd2 case. Therefore, this thesis would analyse the comparative exceptions that still exist in the ‘Separate Legal Personality Doctrine’ (‘Corporate Veil Doctrines’) between these jurisdictions and compare same. Disregarding the ‘Separate Legal Personality’ of a Company is the stripping off the ‘Separate Legal Personality’ of a ‘limited liability’ Company and imposing personal obligations on the Shareholders, Directors, Executives or Officers of the ‘Limited Liability’ Company beyond the amount they invested in the Company. It is the stripping off the ‘limited liability’ status the Shareholders, Directors, Executives or Officers of the ‘Limited Liability’ Company enjoy. In