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Majority rule and minority protection in private corporations : a comparative appraisal of the problems and remedies under the Canadian and Nigerian jurisdictions

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This thesis examines, in comparative terms, Canadian and Nigerian laws relating to the concept of corporate majority rule and minority protection from majority opportunism and oppression in private corporations. The key shareholder remedies of derivative actions and oppression are comparatively discussed, with highlights of the similarities and differences in both remedies under Canadian and Nigerian laws. From theoretical perspectives, this thesis examines the theory that considers the corporation a nexus for a set of contracting relationships among parties. It also considers the proprietary conceptualisation of the corporation. Another theory sees the corporation as an agency relationship between two individuals with differing goals and interests. Lastly, the legal personality theory of the corporation, which considers the corporation a legal person capable of acquiring rights and assuming obligations, is discussed. Understanding of these theories gives better insights into reasons why conflicts arise amongst corporate stakeholders. A comparative appraisal of the key minority shareholder remedies of oppression and derivative actions under Canadian and Nigerian corporate laws reveals certain areas of convergence and other areas of uniqueness. This work demonstrates that the shareholder remedies available in the two jurisdictions are very similar in nature and, in most cases, known by the same names. However, there are some differences bordering on, among others, proper parties to commence shareholder litigations, length of pre-action notice, and the codification of common law rules into the corporate statute. For instance, while Nigeria statutorily incorporates the common law rule in Foss v. Harbottle and its exceptions into its corporate law, Canada only utilises the rule for historical and analytical purposes. This thesis advocates a reconsideration of the minority shareholder remedy of derivative actions with regard to close corporations, and the absence of a principled test for determination of liability under the oppression remedy. The attitude of the courts has always been to treat each case according to its peculiar facts. It is further suggested that the courts could, in the exercise of their discretion, liberally interpret the provisions of current corporate statutes to include discretionary, non-traditional corporate stakeholders, such as the environment, as beneficiaries of the dynamic remedy of oppression.
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  MAJORITY RULE AND MINORITY PROTECTION IN PRIVATE CORPORATIONS: A COMPARATIVE APPRAISAL OF THE PROBLEMS AND REMEDIES UNDER THE CANADIAN AND NIGERIAN JURISDICTIONS by Charles Onyehinim Eluromma LL.B (Hons), University of Lagos, 2006  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) October 2014 © Charles Onyehinim Eluromma, 2014  ii Abstract This thesis examines, in comparative terms, Canadian and Nigerian laws relating to the concept of corporate majority rule and minority protection from majority opportunism and oppression in private corporations. The key shareholder remedies of derivative actions and oppression are comparatively discussed, with highlights of the similarities and differences in both remedies under Canadian and Nigerian laws. From theoretical perspectives, this thesis examines the theory that considers the corporation a nexus for a set of contracting relationships among parties. It also considers the proprietary conceptualisation of the corporation. Another theory sees the corporation as an agency relationship between two individuals with differing goals and interests. Lastly, the legal personality theory of the corporation, which considers the corporation a legal person capable of acquiring rights and assuming obligations, is discussed. Understanding of these theories gives better insights into reasons why conflicts arise amongst corporate stakeholders.  A comparative appraisal of the key minority shareholder remedies of oppression and derivative actions under Canadian and Nigerian corporate laws reveals certain areas of convergence and other areas of uniqueness. This work demonstrates that the shareholder remedies available in the two jurisdictions are very similar in nature and, in most cases, known by the same names. However, there are some differences bordering on, among others, proper parties to commence shareholder litigations, length of pre-action notice, and the codification of common law rules into the corporate statute. For instance, while Nigeria statutorily incorporates the common law rule in Foss v. Harbottle  iii and its exceptions into its corporate law, Canada only utilises the rule for historical and analytical purposes. This thesis advocates a reconsideration of the minority shareholder remedy of derivative actions with regard to close corporations, and the absence of a principled test for determination of liability under the oppression remedy. The attitude of the courts has always been to treat each case according to its peculiar facts. It is further suggested that the courts could, in the exercise of their discretion, liberally interpret the provisions of current corporate statutes to include discretionary, non-traditional corporate stakeholders, such as the environment, as beneficiaries of the dynamic remedy of oppression.  iv Preface This thesis is the srcinal, unpublished and independent intellectual work of the author, Charles Eluromma. The documents, cases and literature cited in this work are all publicly available. No literature or document cited in this thesis required prior approval or consent of any person or authority for its use.
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