KEYSTONE BANK PLC v. MR. JAMES EJEMBI OKEFE
(2014)LCN/6843(CA)
RATIO
WHETHER AN AMENDMENT MAY BE ALLOWED BY THE COURT TO CURE A MISNOMER
A misnomer occurs when the correct person is brought to court under a wrong name. The pertinent poser here is, whether the error on the part of the respondent is a mistake as to the identity of the appellant? The learned trial Judge held that the mistake is not as to the identity of the appellant. That even the appellant itself used the same caption, which they have now turned around to oppose. What is more, both parties have, at different time the trial Court, used Bank PHB (Platinum Habib Bank) Plc and Bank PHB Plc interchangeably. The law is trite that a mistake as to identity is definitely not a misnomer. In the case of: Emespo J, Cont. Ltd. v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) p.365, this court held that, a mistake as to name only is a misnomer, whereas an error as to identity of a party is not a misnomer. See also the cases of: (1) Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt. 632) p.557 at p.564, paras. B – C and (2) Bajaga v. Govt., F.R.N. (2008) 1 NWLR (Pt.1069) p. 85 at pgs. 126 – 127, paras. G – A. In the case of: Njoku v. U.A.C. Foods (Supra), this Court equally held that a misnomer is a mistake in name, it occurs when there is a mistake as to the name of a party who sued or was sued or when an action is instituted by or against the wrong name of the party. In other words when a correct person is taken to court under a wrong or an incorrect name is given to a party in an action, this is purely a misnomer.
On whether amendment may be allowed to cure a misnomer – A corporate entity is a legal person which can sue or be sued in its corporate name as a juristic person. That is, an 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 rooms for human error where a limb or part of the name of the defendant is inadvertently omitted and the proposed defendant is not misled, then the court can always allow the plaintiff in a proper manner to amend what the court thinks is a misnomer. See the case of: Nkwocha v. Federal University of Technology (1996) 1 NWLR (Pt. 422) p. 112. The law is trite that, whether an error in name sought to be amended is a misnomer or not is 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 the error would be that of misnomer. However, 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 scope of misnomer. Per OYEBISI FOLAYEMI OMOLEYE, J.C.A.
WHETHER A TRIAL JUDGE CAN BASE JUDGMENT ON IRRECONCILABLE AFFIDAVIT EVIDENCE WITHOUT CALLING FOR ORAL EVIDENCE
The object of the procedure under which the respondent obtained the default judgment under scrutiny, that is, Order 1 Rule 5 (2) of the Benue State High Court (Civil Procedure) Rules, just as in the undefended list procedure, is to enable a plaintiff to obtain summary judgment without trial but, only in cases where the plaintiff’s case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on its merits. The principle of law is so time-hallowed that it may even be unnecessary to cite any authority in respect thereof. The plethoral of authorities are endless. However, to mention but a few, see the cases of: (1) U.T.C. v. Pamotei (1989) 2 NWLR (Pt. 103) p.244; (2) Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) p.1; (3) G.M.O.N. & S. Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) p. 443 at pgs. 475 – 476, paras. H – D and (a) Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) p. 1 at pgs. 24 – 25, paras. H – D. However, where there is an appearance of any issue which will entail some clarifications, whether “ex facie” the very documents relied upon by the plaintiff or in the case where a defence is being offered by the defendant, or explaining by the plaintiff with regard to his/her claim, such brings the parties within the concept of joining issues. And in such a situation, a triable issue comes into existence. Hence, whenever a “bona fide” issue or a triable issue comes into existence, the case ought to be heard on its merit and parties ought to be ordered to come face to face to thrash out their different and divergent positions. This is in accordance to the principle of fair hearing. See the cases of: (1) Eluimare v. Emhonyon (1985) 1 NWLR (Pt. 2) p. 177 and (2) G.M.O.N. & S. Co. Ltd. v. Akputa (supra) at p. 464, paras. D – G. This is also in line with the principle of law that when affidavit evidence placed before the court by both parties to an action conflict on material facts, oral evidence must be ordered by the court, to be called to resolve the conflict. See the cases of: (1) I. H. Ltd. v. Soneb Ent. Ltd. (2010) 4 NWLR (Pt. 1185) p. 561 at p. 584, paras. F – H, (2) Kabiru v. Ibrahim (2004) 2 NWLR (Pt. 857) p. 326, (3) Eastern Plastics Ltd. v. Synco (W/A) Ltd. (1999) 1 NWLR (Pt. 587) p. 456 and (a) Macaulay v. NAL Merchant Bank Ltd. (Supra). Per OYEBISI FOLAYEMI OMOLEYE, J.C.A.
