PRINCE DESMOND OSAWARU & ANOR v. FAY-DESSY CATERING
(2011)LCN/4429(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2011
CA/PH/275M/2000
RATIO
MISNOMER: WHEN IS AN ERROR IN THE NAME OF A PARTY A MISNOMER WHICH THE COURT WILL PERMIT THE PARTIES TO AMEND
Only natural persons (human beings) and juristic or artificial persons (body corporate) are competent to sue or be sued. See ATAGUBA & CO V. GURA NIGERIA I.TD (2005) 2 SCNJ 139. However when an incorrect name is given in a writ and the parties are not misled in that they know the identity of the person suing or being sued, such is a misnomer which the court will permit the parties to amend. See AGBONMAGBE BANK LTD V. GENERAL MANAGER G.B.OLLIVANT LIMITED & ANO.. (1961) 1 ALL NLR (PT.1) 116; A.B. MANU & CO. V. CONSTAIN (W.A.) LTD (1994) 8 NWLR (Pt.360) 112; SHOKUNBI v. MOSAKU (1969) NMLR 54; NJEMANZE V. SHELL BP (1966) ALL NLR 8; NKWOCHA V. FEDERAL UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (PT. 422) 112 M.D. Muhammad JCA in NJOKU V. UAC FOODS. (1999) 12 NMLR (PT. 632) Page 557 at 564 had this to say on misnomer. “Whether an error in name sought to be amended is a misnomer or not is indeed a question of fact.
It depends on the attitude of the reasonable man confronted with the writ in the circumstances of the case. If his answer on the examination of the writ would be “of course it must mean me but they have quoted my name wrongly”, then of course the error would be that of misnomer. Where enquiries are required on the part of the reasonable man to ascertain if the writ in fact refers to him, then the error has gone beyond the “boundaries” of misnomer. (see Mailafia’s case) supra.” In MAILAFIA V. VERITAS INSURANCE (1986) 4 NWLR (pt.38) page 802 it was held that where it was shown that a part to an action was not a legal person the party should be struck out of the suit, and if such party was the plaintiff the action should be struck out. It was further held that if the true intent of an application for amendment is the correction of the name of a party and NOT the introduction of an entity as a party for the first time in an action such an application should be granted. PER T.O. AWOTOYE, JCA
UNDEFENDED LIST PROCEDURE: ESSENCE OF THE NOTICE OF INTENTION TO DEFEND IN AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
In an undefended list procedure the defence of the defendant comes in terms of Notice of Intention to Defend. ORDER 11 Rule 10 (1) of the Rivers state High court civil I procedure Rules State thus:- “If the party served with the writ of summons and affidavit derivers to the Registrar not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just.” It is the filing of the notice of intention to defend that kickstarts the defence of the defendant. If the defendant fails to file notice of intention to defend, “the suit shall be heard as an undefended suit and judgment given thereon,, See Order 11 Rule 11 of the Rules. PER T.O. AWOTOYE, JCA
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. PRINCE DESMOND OSAWARU
2. DESMOND HOTEL LTD. Appellant(s)
AND
FAY-DESSY CATERING Respondent(s)
T.O. AWOTOYE, JCA (Delivering the Leading Judgment): This is the appeal against the ruling of Rivers State High Court CORAM: Iragunima J. delivered on 6/7/2000. The parties to this action at the High Court as per the writ of summon are FAY-DESSY CATERING, PRINCE DESMOND OSAWARU (DESMOND HOTEL LTD.) (DEFENDANTS).
On 25/2/99 the trial court ordered that the suit be entered for hearing on the undefended list and the writ of summons to be marked accordingly. The order of court was served on the defendants.
The defendants through their counsel E.B. Ukiri entered conditional appearance in this suit on 18/5/99.
The plaintiff later applied to amend the writ of summons by deleting the word “catering” in the word appearing as plaintiff and substituting the same with the following “company Limited.”
The application was argued. The trial court delivered the ruling on 6/7/2000 and granted the prayers of the plaintiff/applicant.
It is against this decision of the trial court that the defendants filed an appeal on 11/7/2000.
After transmission of the record of appeal, the appellants filed their brief on 10/11/2004. When the Respondent failed to file the Respondent’s brief’ the appellants sought and obtained the leave of court for the appeal to be heard on appellant’s brief of argument alone.
The appellants formulated two issue for determination in their brief.
They are:
1) whether an amendment may be granted to substitute a non-juristic person with a juristic person and thereby foist on the new court a new entity as a party.
2) Whether where the basis of a defence to a suit brought under the undefended list is the lack of capacity of the plaintiff, it is not prejudicial to the defendant to grant an amendment substituting the non-juristic personality even where as in this case the contract was purportedly between the appellant and non-juristic person.
On Issue 1 learned counsel for the appellants submitted that a party who should commence on action must be a person known to law. He referred to AGBONMAGBE BANK v. G.M. G. B. OLIVANT (1961) 1 ALL NLR 116.
He submitted further that there could not be a valid amendment of the title of the suit because there was never a legal person who was brought before the court by the action or writ. He cited MAILAFIA v. VERITAS INSURANCE (1986) 4 NWLR (PT.38) 802; NJOKU V. VAL FOODS (1999) 12 NWLR (pr.632) 557 at 565.
On Issue 2, learned counsel submitted that it was prejudicial to the defendants for the court to grant the application for substitution of the non-juristic plaintiff with another especially when it was clear from the documentary exhibits that the contract was indeed between the appellants and FAY-DESSAY CATERING.
He urged the court to allow the appeal, set aside the decision of the High Court of River State and strike out the action on the ground that the writ of summons was void.
I have carefully considered the submissions of learned counsel for the appellants.
Only natural persons (human beings) and juristic or artificial persons (body corporate) are competent to sue or be sued. See ATAGUBA & CO V. GURA NIGERIA I.TD (2005) 2 SCNJ 139.However when an incorrect name is given in a writ and the parties are not misled in that they know the identity of the person suing or being sued, such is a misnomer which the court will permit the parties to amend. See AGBONMAGBE BANK LTD V. GENERAL MANAGER G.B.OLLIVANT LIMITED & ANO.. (1961) 1 ALL NLR (PT.1) 116; A.B. MANU & CO. V. CONSTAIN (W.A.) LTD (1994) 8 NWLR (Pt.360) 112; SHOKUNBI v. MOSAKU (1969) NMLR 54; NJEMANZE V. SHELL BP (1966) ALL NLR 8; NKWOCHA V. FEDERAL UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (PT. 422) 112 M.D. Muhammad JCA in NJOKU V. UAC FOOD
S. (1999) 12 NMLR (PT. 632) Page 557 at 564 had this to say on misnomer.
“Whether an error in name sought to be amended is a misnomer or not is indeed a question of fact.
It depends on the attitude of the reasonable man confronted with the writ in the circumstances of the case. If his answer on the examination of the writ would be “of course it must mean me but they have quoted my name wrongly”, then of course the error would be that of misnomer.
Where enquiries are required on the part of the reasonable man to ascertain if the writ in fact refers to him, then the error has gone beyond the “boundaries” of misnomer. (see Mailafia’s case) supra.”
In MAILAFIA V. VERITAS INSURANCE (1986) 4 NWLR (pt.38) page 802 it was held that where it was shown that a part to an action was not a legal person the party should be struck out of the suit, and if such party was the plaintiff the action should be struck out. It was further held that if the true intent of an application for amendment is the correction of the name of a party and NOT the introduction of an entity as a party for the first time in an action such an application should be granted.
I shall view this appeal in the light of the above.
Who is FAY-DESSY CATERING to the defendant? In answering this question one needs to comb through the uncontroverted and, unchallenged averments in the affidavit of the plaintiff in support of its motion for amendment. Depositions in an affidavit which are not denied by way of a counter-affidavit are generally deemed and admitted and the court is to act thereon. See A.G. ONDO STATE v. A.G. EKITI STATE (2001) 17 NWLR (PT. 743) 706. Paragraphs 4 – 11 of the affidavit sworn to by Ngozi onuoha on 22/7/99 read thus:
“4. That the Plaintiff/Applicant was trading under a style name Fay-dessy Catering.
5. That the Plaintiff/Applicant registered full name is Fay-Dessy Company Limited.
6. That a photocopy of the incorporation certificate is herewith EXHIBIT NO. “A”.
7. That the said company said entered into a contractual agreement with the Defendants in 1997 to feed the Employees of the Defendants.
8. That all payments from the beginning of the contract has been and always been in the name of Fay- Dessy Company Limited.
9. That I hereby exhibit a photocopy of all the previous payments on the Fay-Dessy company Limited and mark same as EXHIBIT NO. “B”.
That a Cheque the subject of this litigation is also made in the Name of Fay-Dessy Company Limited. The said photocopy of the cheque is herewith exhibited and mark EXHIBIT NO. “C”.
11. That the error in stating the correct name Fay-Dessy Company limited was due to the nature of services rendered to the Defendants and the mistake made while giving instructions to the Defendant manager.”
The exhibits referred to in the said affidavit show that Fay-Dessy Company Ltd. is existing as a juristic person. See Exhibit No. “A” which is the certificate of Incorporation Exhibit B shows that Fay-Dessy Company Ltd. does catering services Exhibit “C” is the same with Exhibit No. 2 referred to in the supporting affidavit to the Motion Exparte filed on 21/1/99 praying that the suit be entered in the undefended list.
Paragraph 9 – 11 of the said affidavit states
“9. That sometime in February 1998, the Defendants issued a cheque to the plaintiff/Applicant for the sum of N273,000.00.
10. That the said cheque was presented to the Bank by the Plaintiff/Applicant for payment but was unfortunately dishonoured.
11. That the Plaintiff/Applicant informed the Defendants about the said dishonoured cheque. A photocopy is herewith marked and Exhibited as No. 2.”
The cheque referred to, issued by the defendant is to the credit of FAY-DESSY COMPANY LTD.”
The meaning of all these is that the Defendant knew the plaintiff as FAY-DESSY CO. LTD a juristic person. It also means FAY-DESSY CO LTD is not just coming into the picture. It is not a stranger to the defendants in spite of the agreement between the parties.
I am of the respectful view this is a genuine mistake that is being sought to be corrected. It is a misnomer, the correction of which will not cause injustice to the defendants who are now appellants.
On Issue 2.
was the grant of the amendment prejudicial to the defendant when the basis of the defence under the undefended list procedure was lack of capacity of the plaintiff?
In an undefended list procedure the defence of the defendant comes in terms of Notice of Intention to Defend.
ORDER 11 Rule 10 (1) of the Rivers state High court civil I procedure Rules State thus:-
“If the party served with the writ of summons and affidavit derivers to the Registrar not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just.”
It is the filing of the notice of intention to defend that kickstarts the defence of the defendant. If the defendant fails to file notice of intention to defend, “the suit shall be heard as an undefended suit and judgment given thereon,, See Order 11 Rule 11 of the Rules. In this case from the record of appeal notice of the defendant did not fife intention to defend. True, lack of capacity of the plaintiff is a jurisdictional issue but it is still part of the defence of the defendant. The defendants objection should have been fifed with his notice of intention to defend. That notwithstanding the learned trial judge graciously heard his argument against the application for amendment, rightly considered the objection to be technical and not in the interest of justice, held that the defendant would not be prejudiced if the application was granted and rightly grant same.
I again resolve issue 2 in favour of the Respondent.
I find the ruling of the trial court unimpeachable.
This appeal lacks merit it is accordingly dismissed.
DATTIJO MUHAMMAD (OFR) I read in advance the lead judgment of my brother Awotoye JCA. I agree with his reasonings and conclusion therein that this appeal lacks merit and same should fail.
It is not every error in a case that results in an appeal being allowed. Appeals succeed only on the basis of substantial errors that have occasioned miscarriage of justice. In the instant case, the errors complained of having caused no injustice cannot be the basis of allowing the appeal. see Nwaeze v. state (1996) z NWLR (pt.428) 1 SC.
An amendment was sought by the respondent and granted by the trial court. Appellant has not demonstrated that the grant of the amendment by the court has caused him any injustice. The decision of the court persists. More particularly for the detailed reasons advanced in the lead judgment, I also dismiss the appeal and make the same consequential orders effected in the lead judgment.
EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother, T.O, AWOTOYE, JCA. I agree with his analyses and conclusions on the issues in this appeal.
Let me add a word of my own to the issue whether the Defendant/Appellant, the objector, did not know that FAY-DESSY CATERING and FAY-DESSY COMPANY LIMITED are not one and the same Organisation. The Appellant entered into agreement, Exhibit No.1 with FAY-DESSY CATERING to provide them catering services.
In furtherance of the agreement the Appellant issued its cheque, Exhibit No.2, to FAY-DESSY COMPANY LIMITED being and as payment for catering services rendered. The cheque was for the sum of N273,000.00. The cheque was returned unpaid hence this suit on the undefended list.
I do not think that the Appellant, as the defendant, against whom the claim for recovery of the full value of the cheque was made, was misled or prejudiced in anyway by the amendment sought. Clearly FAY-DESSY CATERING, with whom the agreement Exhibit “No.1” was made with the Defendant/Appellant, was known to the Defendant/Appellant as FAY-DESSY CO LTD. The Defendant/Appellant knew that the said FAY-DESSY co. LTD was the person dealing or trading with them under the name and style as FAY-DESSY CATERING. I agree that this is a case of misnomer.
Holding otherwise, as the defendant, the Appellant, contends will be doing injustice to the Plaintiff/Respondent. The objection and the arguments thereon are mere appeal to arcane technicality as opposed to doing substantial justice that the courts now strive to.
I also dismiss the appeal as lacking in merit.
Appearances
E. B. Ukiri Esq. with him O. Iyayi Esq.For Appellant
AND
Absent.For Respondent
