SO SAFE TABLE WATER TECHNOLOGIES LIMITED v. OBAFUNMILAYO AYINOLUWA ANOR
(2013)LCN/6627(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of December, 2013
CA/L/176/2007
RATIO
WHETHER A NON-JURISTIC PERSON CAN SUE OR BE SUED
The law is settled that a non-juristic person generally cannot sue or be sued. In Agbonmagbe Ltd v. General Manager, G.B. Ollivant Ltd & Ors. (1996) 1 ALL N.L.R. 116, it was held that General Manager, G.B. Ollivant Ltd. is not descriptive of a juristic person. The defendant so named, was struck out of the action on a preliminary objection. It was further held, that naming a non-juristic person as a Defendant is not a misnomer and cannot be amended to substitute a juristic person. See also Manager S.C.O.A. Benin City v. Momodu (unreported) Suit No. S.C. 23/1964 delivered ON 17th November 1964, it was held that a non-juristic person cannot sue or be sued. In N.B.C. 1 Ltd. v. Europa Traders (U.K.) Ltd (1990) 1 N.W.L.R. (Part 154) 36 @ 41, it was held that when once it is established that there is no proper Defendant before the court, it is not necessary to examine whether there is a proper cause of action, because the nexus between a cause of action and the parties is not there. Thus, if a person, who is not a legal person, is a party to an action, the person should be struck out. If it is the plaintiff, then action itself should be struck out. Per CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
SO SAFE TABLE WATER TECHNOLOGIES LTD Appellant(s)
AND
1. OBAFUNMILAYO AYINOLUWA
2. MRS. OMOWUNMI AYINOLUWA
(Suing for themselves and as the Guardian of Obadamilola Awoyinfa ? an infant) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Coker J. of the Lagos state High Court in Suit No. LD/167/04 delivered on 27/1/05 granting the Respondents’ application to amend the Appellants name from So Safe table water to so Safe Water Technologies Limited.
The Respondents by a writ of summons, dated 23/1/04 commenced an action against the Appellant at the Lagos High Court. Upon service of the Originating processes on the Appellant, the Appellant filed its Statement of Defence and thereafter filed a Motion on Notice praying the court to strike out the suit on the ground that a non juristic person was sued. The Respondent then in turn filed an application to amend. Both applications were taken together. The learned trial Judge in her ruling granted the amendment. The Appellant being dissatisfied with the ruling appealed to this court. Two issues were formulated in the Appellant’s brief of argument viz:
1. Whether the court below was right when it refused to strike out the suit and amended the writ of summons by substituting the name of the Appellant with another.
2. Whether changing a non-juristic personality to juristic personality is a mere technicality.
In their brief of argument, the Respondents formulated the following issue:
Whether given the circumstances of this case the lower Court was right to have granted the Respondents leave to amend their Writ of Summons and other Court processes when it held that:-
1. This is a case of the right person sued in a wrong name.
2. That indeed the law has moved away from not just issue of technicalities… but from barring a claimant from trying his case on the merit because of such.
The issues formulated by the Respondent are more or less the same as those of the Appellant. I shall adopt the Appellant’s issues in the determination of the appeal.
APPELLANT’S ARGUMENTS:
On issue one, whether the court below was right when it refused to strike out the suit and amended the writ of summons by substituting the name of the Appellant with another, it was submitted for the Appellant relying on the case of Onyekwulunne v. Ndulue (1997) 7 NWLR (Part 512) 250 @ 270 – 271 H – A that a non-juristic person cannot sue or be sued, and a fortiori no order of the court can be imposed on it. Counsel referred also to the case of Njoku v. U.A.C. Foods (1999) 12 NWLR (part 632) 557 where Mohammed J.C.A. at 565 Para B-C observed as follows:
“An amendment for the substitution of a non-juristic person by a juristic person is not at all feasible and must be refused. There was nothing to substitute. See Fawehinmi v. NBA (2) (1993) 4 N.W.L.R. (Part 290) 719.”
The dominant judicial view is that when a court is approached with a prayer for the amendment sought by the appellant and it refused same, it proceeds not only to strike out the name of the non existing party but also the suit in its entirety. See Okechukwu v. B.S.A Ndah (1967) N.M.L.R. 386.
Learned counsel further relied on the observation of Galadima J.C.A in his own contribution at 565 F-H where he said:
“It is well settled by a long line of cases that a non-juristic person cannot sue or be sued” United African Company Foods’ is not juristic person. As such it cannot be sued. It will be wrong as well to substitute it by a juristic person in the guise of a misnomer. Amendment will be allowed only where a juristic or natural person is sued and the name is incorrectly and incompletely written. See Carlen Nig. Ltd. v. Unijos (1994) 1 NWLR (part 323) 631 @ 655, Fawehinmi v. NBA (2) (1989) 2 NWLR (part 105) 58. In other words, where there is an error as to correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. Court should not be allowed to hang on to technicalities in cases where to allow minor amendment will justify. In the instant case, the writ taken out by the appellant was against “United African Company Foods”; while the defendant sought to be joined was “U.A.C Nig. Plc” This amendment, I think is not a misnomer.”
Counsel submitted that in the instant case the writ taken out by the claimant was against “So Safe Table Water” while the defendant sought to be substituted by amendment is “So Safe Table Water Technologies Ltd”. He argued that the amendment is not a misnomer. Learned counsel also placed reliance on the cases of Abike Int. v. Ltd. v. Ayi Teletronic Ltd. (2005) 15 NWLR (pt. 948) 362; Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521; N.N.B. PLC v. Dencelag Ltd. (2005) 4 NWLR (pt. 916) 549 at 58S paras B-C
On issue two, whether changing a non-juristic personality to juristic personality is a mere technicality, it was submitted for the appellant that the issue of changing non-juristic personality to a juristic personality is not mere technicality but jurisdictional because judicial powers as vested in the Courts by virtue of section 6 (6) (b) of the 1979 constitution are exercised and extend to all matters between persons or between government and any person in Nigeria. It was submitted that such person is either a natural person or juristic person. The writ sought to be amended was not in respect of a person within the contemplation of the Constitution. The writ as well as the entire action envisaged by it is therefore incompetent. Njoku v. U.A.C Foods (Supra).
Learned counsel submitted that the complaint is jurisdictional and not a matter of technicality. He argued that a misnomer is a mistake in name and occurs when there is a mistake as to the name of a person who sued or was sued or when an action was instituted by or against a wrong name of a person. In other words, the correct person is taken to court under a wrong name or incorrect name is given to person in a writ and in such a situation the error can be corrected by an amendment. Se Njoku v. U.A.C. Foods (supra). Learned counsel argued that naming a non-juristic person as a defendant as in the instant case is not a misnomer and cannot be amended to substitute a juristic person. He referred to Emecheta v. Ogueri (1996) 5 NWLR (part 447) 227 where the Appellant sued the 3rd Respondent, the Assistant Chief Registrar High Court, Abia and the 3rd Respondent brought a preliminary objection to strike out its name on the ground that the 3rd Respondent is not a juristic person. The High Court in a considered Ruling struck out the 3rd Respondent name. Being dissatisfied with the Ruling, the Appellant appealed to the Court of Appeal. Rowland J.C.A. held at 240-241 G-A as follows:
“On the face of the record before the court below; the 3rd Respondent is the Assistant Chief Registrar High Court Abia. It was contested at the court below by counsel to the 3rd Respondent that the 3rd Respondent is not a juristic person.
The law is settled that a non-juristic person generally cannot sue or be sued. In Agbonmagbe Ltd v. General Manager, G.B. Ollivant Ltd & Ors. (1996) 1 ALL N.L.R. 116, it was held that General Manager, G.B. Ollivant Ltd. is not descriptive of a juristic person. The defendant so named, was struck out of the action on a preliminary objection. It was further held, that naming a non-juristic person as a Defendant is not a misnomer and cannot be amended to substitute a juristic person. See also Manager S.C.O.A. Benin City v. Momodu (unreported) Suit No. S.C. 23/1964 delivered ON 17th November 1964, it was held that a non-juristic person cannot sue or be sued. In N.B.C. 1 Ltd. v. Europa Traders (U.K.) Ltd (1990) 1 N.W.L.R. (Part 154) 36 @ 41, it was held that when once it is established that there is no proper Defendant before the court, it is not necessary to examine whether there is a proper cause of action, because the nexus between a cause of action and the parties is not there. Thus, if a person, who is not a legal person, is a party to an action, the person should be struck out. If it is the plaintiff, then action itself should be struck out. The learned trial judge in part of his ruling had this to say about the 3rd Respondent in this Appeal:
“In the light of the authorities here in above referred to, I hold that the 3rd Respondent/Applicant is not a juristic person. It is a post and therefore, not a proper party in this suit. It is not a misnomer and accordingly, is struck out of the suit.”
“The above statement of the learned trial judge in respect of the 3rd Respondent cannot be faulted as it is manifest from the legal authorities on this matter and the 3rd respondent is not a juristic person and the court below was right to have struck out the name of f Respondent from the suit…..”
Counsel submitted that the instant case is not a misnomer as a misnomer occurs when the correct person is brought under a wrong name which is not the case in the instant case. Emespo J. Continental Ltd. v. Corona S & CO. (2006) 11 NWLR (pt. 991) 365.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent on his part submitted that in an attempt at determining the issue at hand, two questions readily call for answers:
1. Is the Appellant (So Safe Water Technologies Ltd) the right person sued but in a wrong name? (So Safe Table Water) – MISNOMER.
2. Does the Law still rely on technicalities to bar parties from trying their case on the merit?
Counsel submitted that there have been various definitions of the term “Misnomer”. The Merriam Collegiate Dictionary 10th Edition defines it as “the misnaming of a person in a legal instrument; use of a wrong name” Counsel argued that the Courts have also variously defined the word. In the case of ALHAJI MAILAFIA TRADING & TRANSPORT COMPANY LTD v. VERITAS INSURANCE COMPANY LTD (1986) 4 NWLR (Pt. 38) 802 @ 813; the court referring to the Concise Oxford dictionary 5th edition P 774 defined it to mean “USE OF WRONG NAME.” Learned counsel submitted that the Court in the above referred case at page 812 proffered a test for determining whether the title on a Writ of Summons is a misnomer or not:-
“How would a reasonable person receiving the document (Writ) take it? If in all the circumstances of the case and looking at the document as a whole, he would say to himself, of course it must mean me, but they have quoted my name wrong, I cannot tell from the document (Writ) itself whether they mean me or not, and I shall have to make enquires; then it seems to me one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document (Writ) and which operate in this case is whether he is or not another entity to whom a description of the writ might refer.”
From the above, counsel contended that the question that will immediately follow will be what was the reaction of the Appellant on the receipt of the writ was it that of certainty that it was the person sued but in a wrong name or that of doubt as to the true person sued. It was submitted that on the receipt of the writ, the Appellant had no doubt that it was the person named in the writ but wrongly named. Counsel submitted that it is trite law that Misnomer is all about mistakes as to name and not mistake about identity. Counsel contended that the identity of the Appellant was never in issue, but the name of the Appellant.
Counsel referred to Mailafia v. Veritas Insurance (supra) where the court held:
“The law is that “a juristic person will not be substituted for a non juristic, but an order for substitution should be granted on an application of either party if it is clearly shown that the name of the non juristic is a Misnomer and the amendment is not prejudicial to the opponent.”
Learned counsel submitted that the Supreme Court in Maersk v. Addide Investment Ltd. (2002) 4 SC (Pt. 11) page 157 @ 197 finally put this issue of the amendment of a non legal person in a writ in its proper perspective when it held that:
“A person who is made a party to an action either as a Plaintiff or as a Defendant must be a legal person or, if not a body vested by law with power to sue or be sued.”
See Agbomagbe Bank Ltd v. General Manager, G.B. Ollivant Ltd. & Or (1961) ALL NLR 116)
And further referring to the case of Okechukwu & Sons v. Ndah (1967) NMLR 368 at 370 it was held:
“If it is successfully shown that a party to an action is not a legal person, that party should be struck out of the suit and if such party was expressed to be the plaintiff the action should be struck out.”
However that a person sued is not a legal person does not prelude the Court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it was a case of Misnomer, such power of amendment is covered by the provisions of order 32 and such like enactments. The exercise of such power of amendment has been acknowledged in several cases.”
Learned counsel further submitted that the Respondents actually sued the right person they intended to sue which is a juristic entity and is in existence but sued in a wrong name. This did not cast any doubt in the mind of the Appellant on the receipt of the writ as the Appellant is known by such name in the course of its business – “So Safe table Water!”
On the second question, counsel submitted that reliance on technicalities by the Courts is old fashioned and has been jettisoned for substantial justice on the merits of the case. He cited the cases of OKPALA v. OKPU (2003) 1 SC (Pt. 111) 25 at 44 Paragraph 40; SHUAIB v. NIGERIA – ARAB BANK LTD (1998) 4 SC P.170 at 181; JOSEPH AFOLABI & 2 ORS. v. JOHN ADEKUNLE & 1 OR (1983) 2 SCNLR 141; ALIU BELLO & 13 ORS v. A.G. OYO STATE (1986) 5 NWLR (Pt. 45) Page 828; NALSA AND TEAM ASSOCIATION v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 @ 668; LONG-JOHN v. BLAKK (1998) 5 SC 83 @ 98/99; DUKE v. AKPABUYO LOCAL GOVERNMENT (2005) 12 SC (Pt. 1) P1 @ 5; NWOSU v. IMO STATE ENVIRONMENT (1990) 2 NWLR (Pt. 135) 668 @ 717; FUGUNWA v. ADIBI (2004) 7 SC (Pt. 11) P.99 @ 108.
Learned counsel finally urged the court to dismiss the appeal on the ground that the Appellant is the right person sued but in the wrong name and that the law has moved away from the realm of technicalities to that of doing substantial justice.
RESOLUTION:
I have read carefully the submissions of counsel. Most of the arguments of learned counsel for the Appellant, to my mind, in a way support the case of the Respondents. The appellants had relied heavily on Njoku v. U.A.C. (supra), where the court referred to the definition of the word ‘misnomer’ thus:
“A misnomer as defined by Mozley and Whitely’s Law Dictionary 10th Ed. P.295 which definition is what Appellant counsel submits is a mistake in name. Incorrect name is given to a person in a writ; it occurs when a mistake as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. The correct person in other words is brought to court under a wrong name. Where there is an error only as to the correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. It is usual to allow amendment in such a con……… Indeed that is the import of the decision in Nkwocha v. Federal University of Technology supra in which my learned brother Muntaka Coommasie stated thus:-
‘Corporate personality of the Respondent is not in doubt. It is therefore a legal person. It can sue or be sued in its corporate name as a juristic person i.e. artificial person. Consequently, if such a name has been identified, that name shall be the name of the proposed defendant or plaintiff. However the law allows some room for human error. Where a limb or part of the name of the defendant is advertently omitted and the purported defendant is not misled, then that court an always allow the plaintiff in a proper manner to amend what the court think is a misnomer.”
There is no doubt in this case that the correct entity “So Safe Water Technologies Ltd” was taken to court under a wrong or incorrect name “So Safe Table Water”. Therefore it is clearly a misnomer which can be corrected by an amendment. The Appellant had argued that “So Safe Table Water” is a non juristic person and cannot be substituted by a juristic person. In arguing thus, counsel again relied on Njoku v. U.A.C. Foods (supra). The facts of Njoku v. U.A.C., with respect are not the same with the facts of the instant case. The entity sued in Njoku’s case is a non juristic person “United African Company Foods” which is clearly not the same as United African Company Nig Ltd. The question is whether looking at the name; the defendant on seeing the writ would be certain that they are the one sued. I do not think in the circumstances a reasonable person would immediately without further enquiry come to the conclusion with certainty that UAC Foods is same as UAC Nig Ltd. The Court was therefore right in holding that it is not a case of misnomer. The position is quite different in the present case. There was no intention here to sue a non juristic person. The intention was to sue a juristic person “So Safe Water Technologies Ltd” but as a result of human error and the fact that that the company is generally referred to as “So Safe Table Water,” the action was instituted in that wrong name. Whether an error in the name sought to be amended is a misnomer or not is a question of fact and depends on the attitude of a reasonable man confronted with the writ in the circumstances of the case. Given that the Respondent is in business circle generally referred to as ‘So Safe Table Water;’ it would have no doubt on being confronted with the writ that it is the one sued. It was a clear case of misnomer.
The issue whether a non juristic person can be substituted by a juristic person in the circumstances as hereunder was as submitted by the Respondent put to rest by the Supreme Court in the case of Maersk v. Addide Investment Ltd (2002) 4 SC (Pt. 11) Page 157 @ 197. The relevant quotation has been reproduced above. For the avoidance of doubt, I once again reproduce it.
“……. However that a person sued is not a legal person does not preclude the Court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it was a case of Misnomer, such power of amendment is covered by the provisions of order 32 and such like enactments. The exercise of such power of amendment has been acknowledged in several cases.”
That is why it is regarded as undue reliance on technicality to argue against amendments such as was made by the lower court in the instant case. In the case of NALSA AND TEAM ASSOCIATION v. NNPC (1991) 8 NWLR (Pt. 212) 652 @ 668, Nnaemeka-Agu, JSC observed:-
“…… the erring appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. When such is the case, although, in the hay days of technicalities, the practice was to take the motion which sought to strike out the appeal as incompetent first, leaving the appellant to seek to commence another appeal if he liked, I am of the view that, that does not accord with the present inclination of Court to do Substantial justice, for the days of technicality are gone”.
The learned trial Judge was right in her brief Ruling that this is a case of a right person sued in a wrong name and that the court has moved away from technicalities to doing substantial justice. I hold that this appeal lacks merit. It is hereby dismissed. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, J.C.A.
I agree with the reasoning and conclusion reached therein, that the learned trial judge was right in her brief Ruling that this is a case of a right person sued in a wrong name and that the court has moved away from technicalities to doing substantial justice.
This appeal lacks merit. I abide by the order as to costs contained in the lead Judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have the privilege of reading in draft the lead judgment just delivered by my learned brother Chinwe Engenia Iyizoba JCA. I am in agreement with the reasoning and conclusion contained therein.
I am inclined to add that a misnomer is said to occur when the correct person is brought to court under a wrong name. It follows therefore, that, for there to be a misnomer, there must be a misdescription of an entity as has happened in the instant case. See C.S. MBH & CO. v. EMESPO J. CONTINENTAL LTD (2002) 3 NWLR (Pt. 753) 205. In ARAB CONTRACTORS (OAO) NIG LTD v. EL RAPHAAL HOSPITAL & MATERNTY HOME INVESTMENT CO. LTD (2009) LPELR – 8735 at page 19 – 20 this court relying on the Supreme court case of MAERSK LINE v. ADDIDE INVESTMENT LTD (2002) 11 NWLR (Pt. 778) 317 held inter alia that:-
“Where there is a mistake as to the name of a party to litigation, such mistake is described as a misnomer. A misnomer simply means the wrong use of name.
It is a mistake as to the name and not a mistake as to the identity of the party to the litigation. In case of a misnomer, an application can be made to amend the writ to substitute a juristic person for a non-juristic person but the plaintiff seeking the amendment has a duty to show that there were reasonable grounds of excuse in his use of the wrong name or in naming the defendant wrongly.
In the instant case a misnomer occurred due to the fact that the word (Technologies Ltd) was omitted from the name “so safe Table water” wherein it would have properly read “SO SAFE TABLE WATER TECHNOLOGIES LTD”. It seems to me that such an omission leading to a misnomer can be corrected upon a proper application being made to the court as was done by the Respondent in the lower court.
For this and the fuller reasons detailed in the lead judgment, I also hold that this appeal lacks merit and is hereby dismissed. I equally abide by the consequential orders made in the lead judgment.
Appearances
Edwin Anikwen Esq.For Appellant
AND
G. T. Agberen Esq.For Respondent
