MADONA v. EDDY-CLEMS CO. (WA) LTD
(2022)LCN/17047(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/AW/193/2014
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
EMEKA MADONA APPELANT(S)
And
EDDY-CLEMS COMPANY (WA) LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT ONCE AN AMENDMENT IS GRANTED, WHAT STOOD BEFORE THE AMENDMENT IS STILL MATERIAL BEFORE THE COURT
The settled position of the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs. SAIBU (Supra); NWOKORO vs. ONUMA (Supra) cited by learned Counsel for the Respondent. See the case of REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA vs. NANA (2014) LPELR- 22372 SC, where the apex Court per OKORO, JSC had this to say on the subject;
“The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the Court. See Katto Vs CBN (1999) 6 NWLR (Pt.607) 390 AT 412 D – E, Rotimi Vs. MacGregor (1974) 11 SC 133 AT 152. It is also settled law that an amendment takes effect from the date of the original document sought to be amended. Once the amendment is made, the action will continue as if the amendment had been inserted from the beginning. See A.G. Ekiti State Vs Adewumi & Anor (2002) 1 SC 47 AT 63 lines 31 – 41, Sneade vs. Watherton (1904) 1 K.B. 295 AT 297, Oguma Associated Companies (Nig.) Ltd. vs. I.B.W.A. (1988) 1 NWLR (Pt. 73) 658 AT 673 C – D.” PER OHO, J.CA.
THE POSITION OF LAW ON EXERCISING THE JURISDICTION VESTED IN THE COURT
The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of Court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure for the time being in force in the High Court of Lagos State.” See Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 2 SCNLR 118 in which a similar provision made it possible to resort to the English Rules of Court. There is the provision in Order 13, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1972, then applicable when this suit was filed and the trial Court gave its ruling (but now Order 14, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1994 and in pari materia) which states: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” The first point to note is that such a person coming within the said Rule 42 may be sued, but cannot sue in his trade name. See Mason v. Mogridge (1892) 8 TLR 805. The rule is similar to the Rules of the Supreme Court, 1965 of England (as amended), Order 81 Rule 9. That rule was taken from RSC (Rev.) 1962, Ord. 81 R. 9, formerly Ord. 48A R. 11 which itself is in fact in pari materia with our Rule 42, Order 14. As far as applicable, says Ord. 81 R.9, the rules relating to partnership shall apply to business name as if it were a firm. That is why I said it was important to note, in the case of partnership, that there is no necessity of ascertaining the names of the individual partners for the purpose of suing the firm. The same applies to business name. I therefore agree with Mr. Ogunkeye, learned Counsel for the respondents, when in the respondents’ brief of argument, he submits: “If Order 4 Rule 6 (FHC) enables a firm which is a partnership to be sued eo nomine and Order 13 Rule 42 (LHC) enables an individual doing business in a name other than his own to be sued in that name, then the general proposition can be asserted that an unincorporated business enterprise, regardless of the nature of its ownership can be sued eo nomine, because the ownership can only be either sole or plural, which is covered by both rules. If that proposition is valid, then it means that there is no need to first ascertain the nature of ownership of an unincorporated business enterprise before determining whether it can be sued eo nomine. The reality is that whether it is a partnership or solely owned it can be so sued.” PER OHO, J.CA.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the final decision of the High Court of Justice, Anambra State sitting at Onitsha Judicial Division (hereinafter referred to as: “the Court below”) Coram: P. C. OBIORA, J. in Suit No: O/390/2004 delivered on the 26th day of February, 2014 wherein the Respondent sued the Appellant for recovery of debt, storage fee and interest on judgment sum. The learned trial Court after considering the evidence of both parties granted the Respondent’s reliefs.
ISSUES FOR DETERMINATION:
The Appellant has formulated three (3) issues for determination of this appeal. Thus:
1. Whether the learned trial Court was right when he granted Relief 16(1) & (2) of the Statement of Claim of the Respondent where there are no facts in the Respondent’s pleadings nor was there any evidence adduced in support or proved of that relief. See grounds 3 and 4 of the Appellant’s Notice and Ground of Appeal.
2. Whether the learned trial Court was right when he held that the Appellant is the only necessary party before him in the determination of the dispute that arose in the transaction leading to this suit at the Court below. See ground 2 of the Appellant’s Notice and Grounds of Appeal.
3. Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person ‘Emeka Madona’ instead of Emeka Ikueze or Remss Global Ltd. See ground 1 of the Appellant’s Notice and Grounds of Appeal.
The Respondent formulated four (4) issues by adopting issues Numbers 1 and 3, as formulated by the Appellant with modifications as issues Numbers 1 and 4 respectively and thereafter formulated fresh issues as issues Numbers 2 and 3, thus:
1. Whether the learned trial Judge was right when he granted Reliefs 16(1) and (2) of the Amended statement of claim in favour of the Respondent?
2. Whether EMEKA MADONA is a business name or natural person who has capacity to sue and be sued in that name?
3. Whether REMS GLOBAL CO. a non-juristic person has legal capacity to transact business in Nigeria?
4. Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued EMEKA MADONA, instead of EMEKA IKUEZE or Rems Global Co. or REMESS GLOBAL LTD?
A careful perusal of the issues nominated by the parties across board is clearly identical except for minor issues of semantics. This appeal shall therefore be determined based on the issues nominated by the Appellant. Learned Counsel addressed this Court extensively, citing plethora of decided cases in support of their submissions.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the learned trial Court was right when he granted Relief 16(1) & (2) of the Statement of Claim of the Respondent where there is no fact in the Respondent’s pleadings nor was there any evidence adduced in support or proof of that relief?
In arguing this issue, Counsel submitted that it is one thing to claim a relief and it is another to prove it. See SKYE BANK PLC vs. AKINPELU (2010) 9 NWLR (PT. 1198) 179, 197, PARA. G, ADIGHIJE vs. NWAOGU (2010) 12 NWLR (PT. 1209) 419, 459, PARA. A. He drew attention to the fact that the Respondent’s claim against the Appellant under the undefended list at all material time in this suit was for the payment of the sum of N1,250,300.00 being the outstanding balance owed to him. The Respondent asserted that the basis for the claim was the services rendered by the Respondent to the Appellant as per Invoice No. 0053 of 15/11/2002 (Exhibit B2). See Pages 3 and 5 of the Records.
It is the further submission of Counsel that Exhibit B2, which is the basis under which the trial Court awarded payment of the sum of N1,563,974.00 to the Respondent clearly stated the balance to be N1,250,300.00. Counsel submitted that this documentary evidence corroborated the initial affidavit evidence of one Ben Okafor (Administrative Officer in the Plaintiff’s company). Counsel argued that there is no other evidence adduced to show that what the Appellant owed the Respondent is N1,563,974.00 as found by the trial Court. To Counsel, it is the law that witnesses are not permitted to give oral evidence as to the content of a document except in special circumstance; that documents themselves are the best evidence. Counsel cited the case of NEPA vs. EI-FANDI (1986) 3 NWLR (Pt. 32) P 884 Ratios 1 & 2.
Counsel stated that the Appellant in his Statement of Defence and Counter-Claim, particularly at paragraph 24 of his Statement of Defence stated that the Respondent sold the balance of his (Appellant’s) goods in his possession. And thus, there are no goods being stored by the Respondent. See page 35 of the Records of Appeal. Counsel argued that Paragraph 16(2) of the Respondent’s pleading is incompetent. There is no place in all the pleadings of the Respondent either their Statement of Claim or Reply to Statement of Defence and Counter-Claim where the Respondent pleaded either the fact that they stored the goods in a warehouse, which is being paid for neither was there a place they plead or produce a receipt showing the amount they paid for the purported storage. Counsel stated that it was only at paragraph 15(3) of the reliefs sought by the Respondent in their Statement of Claim that they prayed the Court for storage fee of N1,000.00 per day. Counsel cited the case of ISHOLA vs. U.B.N. LTD. [2005] 6 NWLR (PT. 922) 422, 38-439, PARAS. E-H
It is the contention of Counsel that the Respondent did not lead any evidence to show how he arrived at the sum of N396,000:00 which he claimed from the Appellant. Counsel therefore contended that it is not the duty of the trial Court to grant any relief where no cogent and concrete evidence was led in proof of the claim and that a judgment not predicated on a fair assessment or evaluation of all the evidence in Court is perverse. See the case of NWOSU vs. MBADUGHA (2000) 1 NWLR (PT. 641) 459 AT PARAGRAPH H. According to Counsel, a thorough perusal of the trial Court’s judgment will disclose that there was nowhere in the entire judgment where the Court evaluated the evidence of the Respondent that led to the conclusion that the Respondent is entitled to the grant of relief 16(2) of the amended statement of claim.
Counsel contended that a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale of justice and see which one between the evidence adduced by the plaintiff and the defendant to see which one outweighs the other. Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted. See the cases of ABISI vs. EKWEALOR (1993) NWLR (PT. 302) AT 64, EIGBE vs. EIGBE (2012) LPELR 19690 (CA).
Counsel argued that in the instant case, the trial Court never considered any evidence on the issue of relief 2 of the Respondents’ claim because there was no evidence adduced before the Court which the Court will place on the imaginary scale yet the Court in his final judgment held that the defendant shall pay to the plaintiff the sum of N396,000.00 being storage fee paid for the storage of the defendant’s goods at the rate of N1000.00 per day from 24th June, 2003 to 23rd July, 2004.
Again, Counsel argued that it is the law that evaluation of evidence by a trial Court cannot be said to have been properly done by mere statements of “belief’ without the record of actual assessment and reasons supporting or which form the basis for the belief or most honest view of any of the sides in the case. Such blank and unsupported statements do not amount to any evaluation of the evidence at all and so does not relieve a trial Court of its primary duty to evaluate evidence adduced before it before arriving at its decision one way or another for reasons that should clearly appear on its record. See the case of KWAJAFFA vs. BANK OF THE NORTH (2004) 5 SC (PT.1) 103, HASSOM NIG. LTD vs. TRADE BANK LTD (2006) ALL FWLR (PT. 310) 1730.
In addition, Counsel submitted that it is a well-established principle of law that fact not pleaded goes to no issue since it is only evidence adduced in proof of the pleadings that needs to be relied upon by Courts during trial. Counsel referred this Court to the case of AGBOOLA vs. UNITED BANK FOR AFRICA PIC. [2011] 11 NWLR (PT. 1258) 375, 397- 398.
In summary and considering the above argument canvassed, Counsel urged this Court to resolve issue one in favour of the Appellant by setting aside paragraphs 1 & 2 of the judgment order of the Court below with respect to the fact that the Defendant shall pay to the plaintiff the sum of N1,563,974.00 being the balance of debt and N396,000.00 being storage fee paid for the storage of the defendant’s goods at the rate of N1,000.00 per day from 24th June, 2003 to 23rd July, 2004.
ISSUES TWO & THREE:
Whether the learned trial Court was right when he held that the Appellant is the only necessary party before him till the determination of the dispute that arose ill the transaction leading to this suit at the Court below?
Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person ‘Eureka Madona’ instead of Emeka Ikueze (trading under the name and style of Emeka Madona); and/or Remss Global Co.; and/or Remss Global Ltd?
It is the submission of Counsel that in a letter dated 23/05/2003 (Exhibit C), written before the institution of this suit at the Court and written by the Respondent’s solicitor, one Ifeanyi Ojibah, he addressed the Appellant as ‘Mr. Emeka Ikueze, Alias Emeka Madona’. See pages 23 and 174 (lines 27) of the Records. In a reply letter dated 30/05/2003 addressed to the Managing Director of the Respondent the Appellant’s Counsel stated the name of the Appellant as “Mr. Emeka lkueze, M/D Remss Global Ltd”. See page 24 of the Records. Counsel argued that however, the Respondent in his Application for issuance of writ of summons in respect of Undefended List and his claim filed on 23/07/2004, sued the Appellant as “Emeka Madona” and not “Emeka Ikueze” (Trading under the name and style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ See pages 2-4 of the Records.
Counsel further submitted that the Appellant in his Affidavit in Support showing his intention to defend, particularly at paragraphs 1 to 8 protested and stated his name as “Emeka Ikueze,” and that his company name is Remss Global Ltd., that as a partner with Madona International he transacted business with the Respondent under the name and style of ‘Emeka Madona’. Meanwhile, after the breakup of the partnership, he incorporated a company called Remss Global Ltd with which he dealt with the Respondent resulting in the present dispute. And it was Emeka Ikueze that deposed to the said affidavit. See pages 10 -14 of the Records.
According to Counsel, upon transferring the matter to the general cause list, the Respondent particularly at paragraphs 4 and 7 of her Statement of Claim averred that the Respondent has transacted business with the Appellant in the name of Rems Global Co., and also signed letters as ‘Rems Global (Emeka Madona)’. See pages 25 – 26 of the Records. Counsel stated that the Respondent before the institution of this case at the Court below as highlighted above, knew that the name (‘Emeka Madona’ which is a business name) he sued is a nonlegal person and is defective and the proper party or parties he ought to sue is: ‘Emeka Ikueze (trading under the name and Style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ But, the Respondent went headlong and insisted on suing the said Emeka Madona instead of bringing an application to join the necessary party/parties or application to amend the name of the defendant to reflect the proper name of the defendant as disclosed in the pleading for a complete and final adjudication and determination of all the issues involved in this case.
It is the contention of Counsel that the Appellant upon receipt of the Respondent’s writ of summons and claim, statement of claim and written deposition bearing “Emeka Madona” promptly raised the issue of proper party and further challenged the Respondent’s suit. See pages 10 and 11 of the Records. The Respondent by his own showing admitted that the real name of the Defendant is Emeka Ikueze. At paragraph 7, Line 13 of the statement on oath of Chief Edwin Nwizu (Respondent’s sole witness). See pages 50, 84, 89, 130 (paragraph 4 of amended statement of claim) and 137 of the Records.
Counsel argued that notwithstanding the obvious admission of the Respondent in his pleadings that the real name of the Appellant is Emeka Ukueze, the trial Court still went ahead to hold thus: “Again, the attempt by the defence to say that the plaintiff knew the real name of the defendant is neither here nor there. The Exhibit C which is a letter from plaintiff’s Counsel carries both names of “Emeka Ikueze” and “Emeka Madona. Furthermore, the defendant who pleaded that Emeka Madona was his business name failed to prove the fact”. It is the further submission of Counsel that the Appellant having ab initio challenged the propriety of the Respondent’s action and in view of the Respondent’s admission that the Appellant’s real name is Emeka Ukueze, the Appellant need not prove that Emeka Madona is a business name same having been admitted by the Respondent. It is a trite law that fact admitted need no further proof. Counsel cited the case of AYOKE vs. BELLO (1992) 10 NWLR (PT. 218) P. 380, RATIO 2. Counsel contended that the Appellant having joined issues with the Respondent with respect to the non-legal personality which the Respondent sued, it was incumbent on the Respondent to either withdraw his action or apply to amend his pleadings to reflect the proper parties; instead, he threw caution to the wind and continued to prosecute the action in the name of Emeka Madona in spite of the issues joined. From the above, Counsel submitted that it is a trite law that a business name cannot sue or defend an action in a Court of law since in law, a business name is not recognized as a legal person. Counsel referred this Court to the Supreme Court decision in the case of NIGERIAN ARMY vs. SAMUEL [2013] 14 NWLR (PT. 1375) 466, 482, PARAS. E-F.
Furthermore, Counsel submitted that it is a trite law that it is the duty of a plaintiff (in the instant appeal, the Respondent) to bring to Court, a party whose presence is crucial to the resolution of the case and where he fails to do so as in the instant appeal, his action will be struck out because the proper defendant was not made party. Counsel referred this Court to the case of EKPERE vs. AFORIJE [1972] ALL NLR (PT. 1) 220.
In addition, Counsel stated that it is a correct principle of law that necessary party must be joined in a suit for effectual and complete adjudication of all the questions involved in the case so that parties will be bound by the outcome of the case. In the case of G. & T. INVESTMENT LTD vs. WITT & BUSH LTD. [2011] 8 NWLR (PT. 1250) 500, 538, PARAS. F-H, the proper parties were not sued even when parties have joined issued as to the proper parties before the Court. See also the case of EHIDIMHEN vs. MUSA [2000] 8 NWLR (PT. 669) 540, 569, PARAS. C-D.
It is the further submission of Counsel that the trial Court misconstrued the essence of proof when he held thus: “From every indication the defendant held himself out as “Emeka Madona” and answered that name in the documents he signed as per Exhibits B, B1, B2, F and G. The issue of a person’s name is a personal fact known to him and where he has related with people under a particular name, he cannot be heard to say that such name is not his real name because of a Court case against him … I hold from the actions of the defendant as shown from Exhibits 8-82, F and G that he called himself “Emeka Madona” and cannot be allowed in this proceeding to deny the truth of that name. I therefore conclude that the defendant was rightly sued as the person who transacted the business that gave rise to the cause of action with the plaintiff.” Counsel argued that the Appellant has never denied the name Emeka Madona. What the Appellant said is that Emeka Madona is a business name and not his real name. The Respondent equally admitted knowing the name Emeka Madona as a business name and not the real name of the Appellant. Despite the admission by the Respondent as per paragraph 4 of his amended statement of claim (Page 130 of Records) and paragraphs 5 and 7 of the Statement on Oath of Chief Edwin Nwizu (Director of the Respondent Company) at pages 49 and 50 of the Records. Counsel contended that in view of the admission of the Plaintiff/Respondent, the onus of proof that the Emeka Madona is a business name is completely discharged. Counsel urged this Court to hold same as the correct position of the law. In summary, considering the issues canvassed above, Counsel urged upon this Court to resolve issues two and three in favour of the Appellant.
RESPONDENT:
ISSUE ONE:
Whether the learned trial Judge was right when he granted Relief 16(1) and (2) of the Amended statement of claim in favour of the Respondent?
In arguing this issue, learned Respondent Counsel answered this question in the affirmative submitting that the trial Court was right in granting the Reliefs in paragraph 16(1) and (2) of the amended statement of claim in favour of the Respondent. Counsel argued that the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs. SAIBU (1998)10 NWLR (PT. 571) 534 AT 548 PARAS “E – F, NWOKORO vs. ONUMA (1990) 3 NWLR (PT. 136) 22, where the Courts stated that: “Once an amendment of Court process has been ordered, the effect is that what stood before amendment is no longer material before the Court and no longer defines the issue in contention”. Counsel contended that the claim of N1,250,300.00 in the undefended list as canvassed by the Appellants’ Counsel in page 3 and 5 is of no moment since amendment of the statement of claim ordered by the trial Court on 18/11/2008 supersedes the aforesaid undefended list. See page 172 of Records.
It is the argument of Counsel that the Court should look at the plaintiff’s claim in order to determine whether it has jurisdiction to entertain a matter. See the case of EGBUONU vs. B.R.T.C. (1997) 12 NWLR (PT. 531) 29, TYONZUGHUL vs. A.G. BENUE STATE (2005) 5 NWLR (PT. 918) 226. Counsel stated that the statement of defence is not one of the relevant materials for that purpose. See the case of USMAN vs. BABA (2005) 5 NWLR (PT. 917) 113. Counsel urged upon this Court to discountenance the argument of Appellant’s Counsel in paragraph 4.3, 4.4 and 4.5 of his brief of argument and look at the Respondent’s claim as per paragraph 16(1) of the Amended statement of claim, which the Appellant and his Counsel never opposed. Also, Counsel disclosed to this Court that no counter-affidavit was filed in opposition to the motion for the Amendment of the statement of Claim. See page 172 of Records.
Counsel submitted that the trial Court was right when he granted Reliefs 16(1) and (2) of the said Amended statement of claim in favour of the Respondent. The facts relating to the claim of N1,563,974.000, stipulated in paragraph 16(1) above was pleaded by the Plaintiff and receipt No-00053 dated 15/11/2002, Exhibits B and G, was issued and signed by the defendant without complaint. See pages 70 and 100 of the Records. By paragraph 9 of the said Amended statement of claim at page 131 of Records, the plaintiff averred the payment of N2,000,000.00, on 15/11/2002 by the defendant thereby reducing their outstanding debts to $2,273.00 and N1,250,300.00. The sum N313,674.00 (Naira equivalent of $2,273.00 at exchange rate of W138.00 per $1.00), added to (+) plus N1,250,300.00 will amount to N1,563,974.00, claimed by the plaintiff in paragraph 16(1) of the said Amended statement of claim.
According to Counsel, even paragraph 21 (page 34 of the Records of Appeal), of the statement of defence and counter-claim filed by the defendant on 9/9/2015 and statement on Oath of EMEKA MADONA filed 13/03/2003 (paragraph 15 at page 104 of the Records of Appeal), the defendant acknowledged and corroborated the indebtedness of whopping sum of N3,563,974.00 (Three million, five hundred and sixty-three thousand, nine hundred and seventy four Naira). However, he said that by subtracting the sum of N2,000,000.00 paid by the defendant to the plaintiff on 15/11/2002, from the total debt of N3,563,974.00, agreed by both parties, the remainder sum/balance/debt/unpaid money is N1,563,974.00 claimed by the plaintiff, which is the said Amended statement of claim paragraph 16(1).
Again, Counsel contended that the sum of N396,000.00 as per Judgment of the trial Court as in paragraph 16(2) was right. The periods/time the plaintiff stored the defendant’s goods in the rented warehouse from 24th June, 2003 to the 23rd day of July, 2004 is 396days, multiplied/times(x) by N1000.00per day is N396,000.00. The said N1000.00 per day was pleaded by the plaintiff at paragraph 8 page 135 of the Records of Appeal in the Amended Reply to counter-claim and statement of defence dated 7/11/2008 and filed on 13-11-2008. Counsel drew the attention of this Court to the fact that the evidences of payment of N1000.00 per day and N30,000.00 per month for the rented warehouse was given by Chief Edwin Nwizu in his further statement of oath filed on 13/11/2008, at paragraph 16, on page 139 and page 178 of the Records of Appeal and under cross-examination on Tuesday, 21/4/2009.
Learned Counsel urged this Court to discountenance paragraph 4.4 of the Appellant’s Counsel’s brief as same is incorrect. Counsel stated that the Appellant’s Counsel with respect should not alter or purposefully omit the content of a document, which speaks for itself. Apart from the sum of N1,250,300.00 contained in Exhibit B2 dated 15/11/2002. See page 70 of the Records. He said that a Careful perusal of the column written balance will disclose two columns of balance of $2,273, written on left hand side and another balance of N1,250,300.00, written on right hand side of Exhibit B2. The $2,273 equivalent to Naira at the then prevailing exchange rate of N138.00 for $1.00; is N3,674.00 (Three hundred and thirteen thousand, six hundred and seventy-four Naira); By addition of N1,250,300.00 plus (+) N313,674.00 is One million, five hundred and sixty-three thousand, Nine hundred and seventy-four naira (N1,563,934) as per paragraph 16(1) of the said Amended Statement of Claim.
Counsel further submitted that the Court was indeed right when judgment was given to the Respondent as per paragraph 16(1) and (2) of the Amended statement of claim. Counsel urged upon this Court to resolve issue one in favour of the Respondent and uphold the judgment of the lower Court.
Counsel contended that the case of ISHOLA vs. U.B.N LTD (2005) 6 NWLR (PT. 922) 422, 438-439, PARAGRAPH E-H cited by the Appellant’s Counsel in paragraph 4-6 of his Brief of Argument did not apply to the present Appeal. Contrary to the argument canvassed by the Appellant’s Counsel, paragraph 16(2) of the Amended statement of claim was not just a relief, but its facts were pleaded in paragraph 12 of the said amended statement of claim (page 132 of the Records of Appeal), And also paragraph 8, page 135 of the Records in the Amended Reply to Counter-Claim and Statement of defence filed on 13/11/2008, where the Plaintiff pleaded inter alia “The plaintiff relies on the invoice of 15/11/2002, the plaintiff denied that he sold defendant’s goods. The said goods are still in the warehouse and storage fee for their safe keeping still being paid by the Plaintiff being N1000.00 per day since 24th June, 2003. Furthermore, “The plaintiff had stored the defendant’s goods in a rented warehouse”, as pleaded by the plaintiff on paragraph 12 of Amended statement of claim. See page 132 of the Records.
Counsel urged this Court to disregard the Appellant’s Counsel’s brief of argument in paragraphs 4.4; 4.5; 4.6; 4.7; 4.8; 4.9; 4.10 and 4.11, as same are frivolous, incorrect and does not apply to the present appeal. The trial Court recorded, evaluated, examined and put into consideration, the pleadings and evidence of the plaintiff and the defendant placed before him, and thereafter arrived at an impeccable judgment in favour of the Respondent as per paragraph 16(1) and (2) of the Amended Statement of Claim. See pages 174 to 179; 130 to 133; 134 to 135; 137 to 140; 61, 62, 63, 64, 65, 66, 67, 68, 69; 70 to 80; 95; 100 and 118 and also pages 30 to 36; 103 to 106; 183 to 188 of the Records.
Also, Counsel submitted that the trial Judge put into consideration the balance of $2,273.00, which is unpaid balance/debts, in Exhibit B2 dated 15-11-2002. The sum of N313, 674.00, (which is Naira equivalent of $2,273.00) plus another balance/debt of N1,250,300.00, their total sum is N1,563,974.00 as claimed by the Respondent in paragraph 16(1) of the Amended statement of claim. (See pages 70, 63 and 95 of Records of Appeal, dated 18/7/2002, for conversion of $2,273X 138 = N313, 674.00).
In specific reaction to paragraph 4.7 of the Appellant’s Brief of Argument, Counsel further submitted that the Respondent lead evidence to show how she arrived at the sum of N396,000.00, when the Respondent’s witness, Mr. Edwin Nwizu, stated that the cost of the rented warehouse is N30,000.00 per month (page 178 of the Records of Appeal). And also N1000.00 per day; at paragraph 16 (page 139 of the Records of Appeal. The PERIODS/NUMBER OF DAYS involved from the 24th day of June, 2003 to 23rd day of July, 2004, is Three Hundred and Ninety six days (396 days). The 396 days multiplied (X) N1000.00 is Three hundred and Ninety-six thousand Naira (N396,000.00). Therefore, the Respondent having stated the number of periods/days involved (396 days) from 24th June, 2003 to 23rd July, 2004 in the rented warehouse at the rate of N1000.00 per day. Again, Counsel submitted that the trial Court was right, when he awarded the sum of N396,000.00 in favour of the Plaintiff as per paragraph 16(2) of the Amended statement of claim.
Counsel argued that the Respondent does not require further evidence to prove scientific computation/calculation of 396 days at the rate of N1000.00 per day from 24th day of June, 2003 to 23rd day of July, 2004. Counsel contended that contrary to the Appellant’s brief of argument in paragraph 4.7, the trial Court recorded and evaluated the evidence of Respondent’s witness on page 178 of the Records where the sum of N30, 000.00 per month was stated by the said witness as the cost of the rented warehouse and also in paragraph 16 at page 139 of the Records where the Plaintiff’s witness Chief Edwin Nwizu in his additional statement on Oath filed on 13/11/2008 said that the defendant’s goods are packed at rented warehouse at the cost of N1000.00 everyday from 24th June, 2003 till date. In summary, Counsel urged this Court to resolve issue number one in favour of the Respondent who have proved its claim in paragraph 16(1) and (2) of the Amended statement of claim, on balance of probability. Furthermore, Counsel urged upon this Court to uphold the judgment of the trial Court and order the Appellant to pay the sum of N1,563,974.00 to the Respondent as balance/debt unpaid and N396,000.00 for the storage of the Appellant’s remaining goods at the rate of N1,000.00 per day from 24th June, 2003 to 23rd July, 2004.
ISSUE TWO:
Whether “EMEKA MADONA” is a business name or Natural person, who has capacity to sue and be sued in that name?
Learned Counsel in arguing this issue, submitted that in the ordinary course of business between the parties the Respondent (as the plaintiff) knew the Appellant (the then defendant) as “EMEKA MADONA”. On June 23rd, 2001 EMEKA MADONA with a PACKING LIST containing more than (14) items in a container No: SCMU 2052386, handed over the said PACKING LIST to the plaintiff, captioned EDDYCLEMS by EMEKA MADONA, to forward and clear the goods thereto after shipping same into Nigeria through PT. FRIEND SHIPPRIMA ABADI. See pages 64 and 130 of Records. According to Counsel, after clearing the said goods, in container No: SCMU 2052386, on the 13th day August, 2001 the Respondent issued EMEKA MADONA with receipt invoice Number 000409 (Exhibit B) which he signed without compliant. Furthermore the Appellant, brought another PACKING LIST with Container No: BENU 2317486, with EMEKA MADONA as item 8 in the group pairing of goods transported by a shipping company known as PT. BINTANG PRIBUMI KARSAUDARA and also another PACKING LIST with more than 8 items belonging to EMEKA MADONA and handed over same to the plaintiff, the aforesaid goods was shipped by PT. FRIEND SHIPPRIMA ABADI and thereafter receipts No: 000972 dated 14/12/2001 (Exhibit B1) was issued to EMEKA MADONA, which he signed without complaint, leaving a balance of N1,13,900.00, as unpaid debt. See pages 65, 66, and 72 of the Records.
Also, Counsel stated that the Defendant in the course of his business with the plaintiff handed over another PACKING LIST of Phinisi cargo, dated 14-05-02 with more than 10 items, in container No: TTNU 4968312, to the plaintiff, captioned: “To EDDY CLEMS BY REMS GLOBAL CO”. On the basis of the said Phinisi Cargo’s PACKING LIST, the plaintiff cleared the said goods thereto and paid for the cost of freight, loading and security of the said goods with total cost of N3,563,974.00 (for old debts of N1,139,000.0 as in Exhibits B1 and new debt of N2,136,400.00 (cost of clearing the disputed goods in container No TTNU: 4968312) and later issued receipts No: 00053 dated 15/11/2002 to the defendant who signed same as EMEKA MADONA (Exhibits 132 and G). Counsel further submitted that, prior to the issuance of the said receipts No: 00053, the defendant wrote and signed a letter dated 31-07-2002, (Exhibit F) which he signed as EMEKA MODONA in connection with the dispute business transaction which led to suit no: O/390/2004. The Appellant also signed documents in pages 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 and 100, of the Records. EMEKA MADONA, in all these documents/receipt evidencing transaction between him and the Respondent (EDDY-CLEMS (WA) LTD), yet the Appellant denies EMEKA MADONA as his Name. See pages 70, 71, 95 and 100 of the Records.
Counsel drew attention of this Court to Order 13 Rule 28 of the Anambra State High Court (civil procedure) Rules 2006, which has come into effect as at 18/11/2008, when the Amended Statement of Claim filed by the Plaintiff on 13/11/2008 was ordered by the presiding Judge, Hon. Justice P. C. Obiorah, states that: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style.” See also the case of IYKE MED MERCHANDISE vs. PFIZER INC. (2001) 10 NWLR (PT. 722) 540, where the Court said that partners may sue or be sued in the name of the partnership or in their individual names.
Assuming without conceding that if EMEKA MADONA is a business name in partnership with MADONA INTERNATIONAL as averred by the defendant in paragraph 2 page 30 of the records is correct, then the suit No: O/390/2004, is instituted against the right person EMEKA MADONA in view of Iyke Med Merchandise case (supra). It is the contention of Counsel that the Appellant who held himself out and represented himself as EMEKA MADONA in writing and by conduct through signing of Exhibits B, B1, B2 and G which misrepresentation, misled the Respondent in carrying out business with him in that name (EMEKA MADONA) since the year 2000, could not turn around to deny that name. Counsel cited the cases of ROURAFRIC & FAR EASTERN LTD vs. CHIEF JOHN AVBENAKE (1958) WRNLR 92, IGA vs. AMAKIRI (1976) 11 SCI, pages 304-305. See SECTION 169 OF EVIDENCE ACT, 2011.
Counsel disclosed that throughout business transaction with the Appellant since the year 2000, the Respondent knew him as EMEKA MADONA and he has executed and signed all the receipts aforesaid in that name or capacity; and as such, the Appellant is estopped from asserting the contrary, he cannot renege. Counsel urged this Court to resolve the Appellant’s issue two in favour of the Respondent. The Appellant EMEKA MADONA is the only necessary person and material witness in the disputed transaction at the trial Court.
In reaction to paragraph 5.1, 5.2, 5.3, 5.4, in the Appellant’s Brief of Argument Counsel submitted that the letter dated 23/05/2003, (Exhibit C) addressed to the Appellant as: “Mr. EMAKA IKUEZE, Alias EMEKA MADONA”, does not portray EMEKA MADONA as a business name. “Alias EMEKA MADONA” does not in any way suggest that it is a business name rather it shows him as a Natural person with multiple names vis-a-vis EMEKA IKUEZE OR EMEKA MADONA, same is one and refers to one person in multi-dimension. He further argued that the word: “Alias EMEKA MADONA” shows that the Appellant is a Natural person with flesh and blood; who can sue and be sued in that name.
Counsel argued that the Appellant by paragraph 2 of the statement of defence filed on 9/9/2005 stated that EMEKA MADONA was a business name but throughout the proceedings in the lower Court, no certificate of registration of a business name: “EMEKA MADONA” was either pleaded exhibited, tendered or presented to the trial Court. No evidence of such name “EMEKA MADONA” with Corporate Affairs Commission was given. Counsel further argued that the burden of proof that EMEKA MADONA is a business name lies with the Appellant who has not discharged same. By the provision of SECTION 132 OF EVIDENCE ACT, 2011; “the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side. Counsel submitted that the Appellant has failed to prove that EMEKA MADONA is a business name.
Counsel submitted that it is pertinent to point out that SECTION 656(1) OF COMPANIES AND ALLIED MATTERS ACT (CAMA) 2004, made it mandatory that: “Every individual firm or corporation having a place of business in Nigeria and carrying on business under business name shall be registered. Yet the Appellant has not exhibited the certificate of registration of business name with “EMEKA MADONA”.
Furthermore, Counsel picked holes in the submissions of the Appellant Counsel in paragraph 5-9 of the Brief of Argument and the cases thereto cited. AYOKE vs. BELLO (1992) 10 NWLR (PT. 218) 380 ratio 2, does not apply, there are exceptions to the rule in the aforesaid case, especially where the party is bound to prove his Claim (as in the instant case) even if the facts alleged are admitted by the opponent party. See VINCENT BELLO vs. MAGNUM EWEKA (1981) 1 S.C 101. Counsel contended that “HE WHO ASSERTS MUST PROVE”. If EMEKA MADONA is a business name, the Appellant ought to tender certificate of registration of that business name, which he has failed to do: “Alias EMEKA MADONA” suggests more of a Natural person with multiple names, such as EMEKA IKUEZE, it is not artificial name or business name.
Finally on this issue, Counsel argued that if EMEKA IKUEZE or Rems Global CO or Remess Global Ltd, transacted the disputed business now on Appeal, receipts, letters, and necessary documents would have been issued to the Appellant in that name or capacity but no receipts was tendered to show that the Respondent transacts business with defendant in the name of EMEKA IKUEZE or Remss Global Co, unlike the receipt/Exhibits in B, B1, B2; F and G, in the Court’s record. Counsel urged this Court to resolve Appellant’s issue two against the Appellant and affirm the judgment of the trial Court that EMEKA MADONA is the only necessary party before the trial Court.
ISSUE THREE:
Whether REMS GLOBAL CO. a non-juristic person has legal capacity to transact business in Nigeria?
In arguing this issue, Counsel answered this issue number three, in the Negative (NO). The Appellant in paragraph 2 of the statement of defence and counterclaim stated that the name with which he transacted business with the plaintiff is REMESS Global Ltd, which is contrary to the contents of the Phinisi Cargo’s PACKING LIST Exhibit D. In container No: TTNU 4968312 where the defendant handed over the PACKING LIST to the plaintiff captioned “TO EDDY CLEMS BY REMS GLOBAL CO. See 67 of the Records. Counsel submitted that REMS GLOBAL CO. is not a juristic person and as such cannot legally transact business in Nigeria. It lacks the requisite legal capacity or status to do so. See the case of NKPORNWI vs. EJIRE (2009) 9 NWLR (PT. 1145)131. Furthermore, REMESS Global Ltd is not the same thing as REMS GLOBAL CO in the PACKING LIST. See page 67 of the Record.
By SECTION 133(1) OF EVIDENCE ACT 2011 (AS AMENDED), He who asserts has the burden to prove his assertion. Now that issue of who carries out the present business in dispute arose between the parties right from the trial Court; common sense, should make the Appellant to show that REMESS GLOBAL LTD (In whose name he claimed that packing list Exhibit D was made as averred in paragraph 2 of the aforesaid page 30 is a body corporate and has the capacity to transact business in Nigeria by his pleadings or tendering or presenting the certificate of incorporation as EXHIBIT before the trial Court to show that REMESS GLOBAL LTD is an existing company and is a juristic person clothed with ability to do transactions in Nigeria.
Counsel argued that the Appellant did not take step to show or establish that REMESSO GLOBAL LTD is a juristic person with capacity to sue or be sued in its registered/incorporated name. Counsel stated that the burden of proof placed on the Appellant to show that REMESS GLOBAL LTD is a corporate soul or juristic person; who has legal capacity to transact business in Nigeria has not been discharged. By Section 133(1) E.A. 2011(as amended) the burden of first proving existence or non-existence of a fact lies on the party against whom judgment of the Court would be given if no evidence were produced on either side.
It is submission of Counsel that REMESS GLOBAL LTD did not transact any business with the Plaintiff. Counsel further contended that REMS GLOBAL CO; in the said PACKING LIST is not a juristic person in the eyes of the law; No certificate of incorporation was pleaded or tendered in the trial Court. The assertion by the Appellant that he transacts business with the Respondent in the name of REMESS GLOBAL LTD is of no moment. The failure of the Appellant to produce the company’s certificate of incorporation of REMESS GLOBAL LTD, or REMS GLOBAL CO, is fatal to his case. Counsel cited the cases of SPASCO VEHICLE AND PLANT HIRE CO. LTD vs. ALRAINE (NIGERIA) LTD (1995) 8 NWLR (PT. 416) 655, ISHOLA vs. SOCIETE GENERALE (NIGERIA) LTD (1997) 2 NWLR (PT. 488) 405.
Again, Counsel submitted that the issue of who transacted the business now in dispute, clearly indicated that EMEKA MADONA who signed Exhibits B, B1, B2, F and G for himself without denying his signature’s and writing’s as it appeared on page 184 of the Records where the Appellant signed it as EMEKA MADONA. Counsel urged this Court to so hold that REMESS GLOBAL LTD is not the same person as REMS GLOBAL CO., A non- juristic person and it lacks the legal capacity to transact business in Nigeria. Counsel urged upon this Court to resolve this issue three in favour of the Respondent.
ISSUE FOUR:
Whether the action instituted by the Respondent at the Court below is competent wherein the Respondent sued a non-legal person “Emeka Madona”, instead of Emeka ikueze (trading under the name and style of Emeka Madona); and/or Remss global co; and/or Remss global ltd?
In arguing this issue, Counsel affirmatively submitted that the Respondent herein stated that the action instituted by the Respondent against EMEKA MADONA in the Court below is competent; EMEKA MADONA is a Natural person with flesh and blood, who can sue and be sued in that name. It is the argument of Counsel that the letter of 23/05/2003 (Exhibit C) written by Respondent’s Solicitor, IFEANYI OJIBAH, Esq., addressing the Appellant as Mr. EMEKA KUEZE, Alias EMEKA MADONA solely relied upon by the Appellant’s Counsel in paragraph 5.2 of the Appellant Brief of Argument, is of no moment. Counsel argued that the word: “Alias” EMEKA MADONA did not in any connote that EMEKA MADONA is a non-juristic person; rather it showed that EMEKA KUEZE and EMEKA MADONA is one and the same person, answering multiple names.
Counsel contended that the Appellant’s argument in paragraph 5.3 of his brief is wrong as the Respondent has repeatedly stated that as far as the business of freighting and clearing of goods for the Appellant is concerned, it has been dealing with EMEKA MADONA and issued documents and receipts to him as EMEKA MADONA, and has been transacting business with the Appellant since year 2000 without protest or complaint from the Appellant. See paragraph 4 of Amended statement of claim at page 130 of the Records, Exhibit B, B1, B2 F and G in pages 70, 71, 72, 61, 62, 96, 97 and 100 of the Records. According to Counsel, this protest over EMEKA MADONA only came up because of Court case, but in the course of ordinary business at pages 70-8, 61, 62, 64, 65, 66, 96, 97 and 100, he never protested. However, it will look absurd on part of the Respondent whom EMEKA MADONA loaded goods in container Number: SCMU 2052386 on the 23rd day of June, 2001 and container No: BENU 2317486, dated 05/05/01 item 8 of page 64 and 66 of Records of Appeal and invoice receipts Exhibits B1 and B and a debt of N1,113,900.00 on the said Exhibit B 1, to leave such huge sum of money (N1,113,900.00) and institute undefended list action against EMEKA IKUEZE or REMS GLOBAL CO. (non-juristic person) or Remess Global Ltd who are not parties/owners of goods contained in the aforesaid containers. See pages 64, 65, 66, 71 and 72 of Records. To Counsel, the law is that it is only the parties to a transaction that can sue and be sued in matters/actions related thereto. Counsel cited the case of AKINSULE vs. OGUNYANJU (2011) 12 NWLR (PT. 126) 264.
Counsel further argued that the Appellant’s argument in paragraph 5.4, 5.5, 5.6 and 5.7 of his brief respectfully is deceptive. The same defendant who knew that his name is EMEKA IKUEZE and has a company with the name REMESS GLOBAL LTD on June 23rd, 2001, brought a PACKING LIST with the name EMEKA MADONA, boldly written and handed over to the Plaintiff (EDDYCLEMS); and on 5/5/2001 brought another PACKING LIST as contained in CONTAINER NO: BEND 2317486, with item No: 8 and also another PACKING LIST dated 14-05-02, at page 66 of the Records of Appeal BOLDLY WRITTEN EMAKA MADONA. See pages 64, 65 and 66 of the Records of Appeal.
Counsel drew attention to the fact that receipts viz Exhibit B (page 72) and Exhibit B1 (page 71) of the Records, with CONTAINER NO:2052386, boldly written on top these receipts and same were issued to EMEKA MADONA and he signed same evidencing the transaction in the aforesaid PACKING LIST (supra), WITHOUT PROTEST. In addition Exhibit B1 (page 71 of the Records of Appeal). Clearly shows that the Appellant is indebted to the Respondent to the tune of N1,113,900.00 before importing the goods now in dispute. Counsel contended that in view of the aforesaid PACKING LIST and the receipts issued thereto in the said transaction, the Appellant in equity is estopped from asserting that he is not EMEKA MADONA.
Again, Counsel submitted that the Appellant’s Argument in paragraphs 5.8; 5.9, 5.10 and 5.11 of his Brief is a misconception. The quotation in paragraph 5.8 is quoted out of context as these cheques were written in his real name EMEKA UKUEZE because according to him, EMAKA MADONA is a business name; without conceding CHIEF EDWIN NWIZU was only stating or quoting what the Appellant told him on 12-1-2001 and 13-2-2001 before the aforesaid First Bank Cheques were issued to him. See pages 81 and 82 of the Records. These cheques respectively were not part of the transactions in dispute. This phrase, EMEKA UKUEZE and EMEKA MADONA is a business name was never pleaded by the Respondent. See page 130 of the Records.
It is the contention of Counsel that the law is that “WHERE evidence is adduced or attempted to be adduced on facts not pleaded such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. Counsel cited the cases of OTARU SONS LTD vs. IDRIS (1999) 6 NWLR (PT. 606) 330, ONAMADE vs. A.C.B. LTD (1997) 1 NWLR (PT. 480) 123 at 145 paragraph C-D. Counsel urged this Court to expunge the aforesaid evidence of Chief EDWIN NWIZU.
Also, Counsel submitted that the disputed transaction was not carried out by EMEKA IKUEZE nor REMESS GLOBAL LTD, rather EMEKA MADONA a known person and customer to the Respondent was the person who handed over packing list, dated 14-05-2002, to the Respondent and not EMEKA IKUEZE. See page 67 of the Records. The said PACKING LIST with REMS GLOBAL Co, is a ploy by the defendant to evade the service of Eddyclems company and dodge the payment of N1,113,900.00 being debt he owed the plaintiff before importation of the goods in July 2002, the subject matter of this litigation. See page 138 of the Records.
Counsel submitted that packing list Exhibit D and other previous packing lists are documents forming part of the same transaction between the parties. The change in name to REMS Global CO. is to evade the payment of old debts of N1,133,900.00. See pages 64-67 and 138 of the Records. Counsel further contended that the Appellant’s Argument in paragraph 5.14 of his brief is bereft of the law. EMEKA MADONA has been transacting business with the Plaintiff by first submitting packing list as appeared in pages 64, 65, 66 and 67 of the records and invoice receipts were issued to him with regard to the packing lists submitted to the Plaintiff. See pages 70 to 80 and 100 of the Records. See also Exhibit F. It is the further submission of Counsel that the Appellant never submitted packing list bearing the name EMEKA IKUEZE; or REMESS GLOBAL LTD. How can the Plaintiff sue a person who is not a party or owner of these packing lists in (pages 64, 65, 66 and 67 of the Records)? The Respondent earlier in paragraph 3 of the Amended statement of claim page 130 of the Records, stated that, the Plaintiff will clear goods for a principal in any name appearing on the documents presented to it or in any name given to it by its customer: Perusal of the packing lists shows that the name EMEKA IKUEZE and REMESS GLOBAL LTD, are strangers as far as ownership of these goods in the aforesaid pages are concerned.
According to Counsel, the argument of REMS GLOBAL CO (a non-juristic person) as it so appeared on the packing list at page 67 is not feasible. The law is that both the Plaintiff and the Defendant as at the time of transacting the business or institution of the action before Court must be persons with legal capacity to sue and be sued. See the case of ADMINISTRATORS/EXECUTORS OF ESTATE OF SANI ABACHA vs. EKE SPIFF (2009) 7 NWLR (PT. 1139) 97. Again, Counsel disclosed that throughout the proceedings the Appellant never pleaded, that the REMSS GLOBAL CO., has metamorphosed to REMESS GLOBAL LTD, neither did he present or tender the certificate of incorporation or Registration bearing REMESS GLOBAL LTD in the trial Court.
Learned Counsel argued that EMEKA MADONA who held himself out, answered and signed documents in their capacity/name EMEKA MADONA as per Exhibit B, B1, B2, F and G renege that EMEKA MADONA is not his name even the Phinisi cargo Packing lists dated 14-05-02 has a container Number TTNU 4968312; the same container Number TTNU 4968312 was boldly written on Invoice No: 00053 dated 15/11/2002, Exhibit B2, G denies that he is not EMEKA MADONA. The Appellant is estopped from asserting the contrary see Section 169 of Evidence Act, 2011 (as Amended).
In summary, Counsel urged this Court to resolve issue four (4) (which is issue No 3 of the Appellant) in favour of the Respondent and uphold the judgment of the trial Court in that regard. EMEKA MADONA is a natural person with flesh and blood and can sue and be sued in that name.
On the whole, Counsel contended that EMEKA MADONA is not a Business name, no certificate of Registration as a business was tendered before the trial Court. Also REMS GLOBAL CO is a non-juristic person and it lack capacity to sue or be sued in that name. EMEKA IKUEZE as a name as far as packing list and invoice receipts issued to the Defendant is concerned; he never protested the aforementioned documents, except in the Court’s case. Counsel urged this Court to disregard the argument that EMEKA IKUEZE is the proper party; he is not privy to any of the above transactions.
RESOLUTION OF APPEAL
The clear facts of this case are that the Plaintiff, who is the Respondent herein, as a freight forwarding and clearing agent has been transacting business with the Defendant/Appellant since the year 2000 by the name of “EMEKA MADONA” and the defendant never complained to the Plaintiff that the name is not his name and has been signing documents and Invoice receipts evidencing transactions between the parties in the name of “EMEKA MADONA”. While the Appellant all the time was partnering with his master, the said Mr. Madonna, he was commonly called: “Emeka Madonna” by all. However, after the breakup of the partnership business, the Appellant whose natural name is ‘Emeka Ikueze’, and his company’s name, “Remss Global Ltd” commenced business with the Respondent in the name of his company called Remss Global Ltd. The Respondent knew and dealt with the Appellant as Emeka Ikueze and his company as “Remss Global Ltd” even before the commencement of this action. See pages 15 – 17 of the Records.
However, when dispute arose between the parties over incurred clearing charges and sundry transaction expenses, the Respondent sued ‘Emeka Madona’ who is not a natural person at the Court below instead of suing Emeka Ikueze or Remss Global Ltd. The action was initially commenced under the Undefended List Procedure. See pages 1 – 4 of the Records. The Appellant timeously raised the issue of proper parties but the Respondent ignored it. The Respondent failed to amend his processes to reflect the proper parties and the matter proceeded into trial and subsequently, judgment delivered. See pages 10, 11 (paragraphs 1 to 11), 30 and 31 of the records.
The Respondent’s initial claim as per paragraph 8(i) was for the sum of N1,250,300.00 being the outstanding balance. However, when the Court transferred the case to the general cause list, the Appellant claimed that the Respondent suo motu changed his claim to the sum of N1,563,974.00 as the balance debt and N390,000:00 as storage fee paid. See page 27 of the Records. But the Respondent opined that the Amendments was done by an order of the Court and referred Court to appropriate records to that effect. However, the matter proceeded to hearing and eventually judgment was entered in favour of the Respondent as Plaintiff. See page 3 of the Records.
The first issue nominated for the determination of this appeal deals with the question of whether the learned trial Court was right when he granted Reliefs 16(1) & (2) of the statement of claim of the Respondent where there is no fact in the Respondent’s pleadings nor was there any evidence adduced in support or proof of these reliefs? The contention of learned Appellant’s Counsel under this issue is that the Respondent’s claim against the Appellant under the undefended list at all material time in this suit was for the payment of the sum of N1,250,300.00 being the outstanding balance owed to him, that the Respondent had all along asserted that the basis for the claim was for the services rendered by the Respondent to the Appellant as per Invoice No. 0053 of 15/11/2002 (Exhibit B2). See Pages 3 and 5 of the Records.
Counsel therefore contended that Exhibit B2, which is the basis under which the trial Court awarded payment of the sum of N1,563,974.00 to the Respondent clearly stated the balance to be N1,250,300.00 and that the documentary evidence corroborated the initial affidavit evidence of one Ben Okafor (Administrative Officer in the Plaintiff’s company) and no other evidence was adduced to show that what the Appellant owed the Respondent is N1,563,974.00 as founded upon by the trial Court.
However, at page 119 – 122 of the printed records can be found a motion on notice to have the Appellant’s Statement of Claim amended. It is equally on record that this motion was heard and granted by the Court below more so when there was no opposition to the grant of that motion. It will be recalled that it was in the process of these amendments that the said Reliefs 16 (1) and (2) were amended on the orders of the Court below. The settled position of the law is that amendments date back to the date of inception or institution of the action in the Court. See the cases of AGBABIAKA vs. SAIBU (Supra); NWOKORO vs. ONUMA (Supra) cited by learned Counsel for the Respondent. See the case of REGISTERED TRUSTEES OF THE AIRLINES OPERATORS OF NIGERIA vs. NANA (2014) LPELR- 22372 SC, where the apex Court per OKORO, JSC had this to say on the subject;
“The law is settled that once an amendment is granted, what stood before the amendment is no longer material before the Court. See Katto Vs CBN (1999) 6 NWLR (Pt.607) 390 AT 412 D – E, Rotimi Vs. MacGregor (1974) 11 SC 133 AT 152. It is also settled law that an amendment takes effect from the date of the original document sought to be amended. Once the amendment is made, the action will continue as if the amendment had been inserted from the beginning. See A.G. Ekiti State Vs Adewumi & Anor (2002) 1 SC 47 AT 63 lines 31 – 41, Sneade vs. Watherton (1904) 1 K.B. 295 AT 297, Oguma Associated Companies (Nig.) Ltd. vs. I.B.W.A. (1988) 1 NWLR (Pt. 73) 658 AT 673 C – D.”
Based on the foregoing, all the hullaballoo made by learned Counsel to the Appellant about the claim for the sum of N1,250,300.00 in the undefended list later amended by the Respondent is therefore clearly of no moment after all since amendment of the statement of claim ordered by the trial Court on 18/11/2008 supersedes the aforesaid Undefended list. See page 172 of Records. This Court therefore finds and holds that the Court below was right when the Court granted Reliefs 16(1) and (2) of the said amended statement of claim in favour of the Respondent. The facts relating to the claim of N1,563,974.000, stipulated in paragraph 16(1) above was pleaded by the Plaintiff and receipt No-00053 dated 15/11/2002, Exhibits B and G, was issued and signed by the defendant without complaint. See pages 70 and 100 of the Records. By paragraph 9 of the said Amended statement of claim at page 131 of Records, the plaintiff averred the payment of N2,000,000.00, on 15/11/2002 by the defendant thereby reducing their outstanding debts to $2,273.00 and N1,250,300.00. The sum N313,674.00 (Naira equivalent of $2,273.00 at exchange rate of N138.00 per $1.00), added to (+) plus N1,250,300.00 will amount to N1,563,974.00, claimed by the Plaintiff in paragraph 16(1) of the said amended statement of claim.
In arguing the issues 2 and 3 of the issues nominated by the Appellant, learned Appellant’s Counsel made a heavy weather of the fact that the Respondent in his Application for issuance of writ of summons in respect of Undefended List and his claim filed on 23/07/2004, sued the Appellant as “Emeka Madona” and not “Emeka Ikueze” (Trading under the name and style of Emeka Madona); and/or ‘Remss Global Co.; and/or ‘Remss Global Ltd.’ See pages 2 – 4 of the Records.
Without having to pore over dusty volumes on this issue, Order 13 Rule 28 of the Anambra State High Court (Civil Procedure) Rules 2006, tends to hold the key to the puzzle under consideration. It would be recalled that when the Amended Statement of Claim filed by the Plaintiff on 13/11/2008 was ordered by the presiding Judge, P. C. OBIORAH, J was of the clear view that: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style.” See also the case of IYKE MED MERCHANDISE vs. PFIZER INC. (2001) 10 NWLR (PT. 722) 540, where the Apex Court PER UWAIFO, JSC had this to say on the subject:
“In the present case, there is some assumption, I suppose, that the appellant is a mere business name or at any rate, the case has not proceeded on the basis that a partnership is involved. In that circumstance, the Federal High Court (Civil Procedure) Rules have not directly provided whether such a business name can be sued eo nomine. But Section 9 of the Federal High Court Act creates a window for looking to other sources by providing that: “9. The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of Court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure for the time being in force in the High Court of Lagos State.” See Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 2 SCNLR 118 in which a similar provision made it possible to resort to the English Rules of Court. There is the provision in Order 13, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1972, then applicable when this suit was filed and the trial Court gave its ruling (but now Order 14, Rule 42 of the High Court of Lagos (Civil Procedure) Rules, 1994 and in pari materia) which states: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” The first point to note is that such a person coming within the said Rule 42 may be sued, but cannot sue in his trade name. See Mason v. Mogridge (1892) 8 TLR 805. The rule is similar to the Rules of the Supreme Court, 1965 of England (as amended), Order 81 Rule 9. That rule was taken from RSC (Rev.) 1962, Ord. 81 R. 9, formerly Ord. 48A R. 11 which itself is in fact in pari materia with our Rule 42, Order 14. As far as applicable, says Ord. 81 R.9, the rules relating to partnership shall apply to business name as if it were a firm. That is why I said it was important to note, in the case of partnership, that there is no necessity of ascertaining the names of the individual partners for the purpose of suing the firm. The same applies to business name. I therefore agree with Mr. Ogunkeye, learned Counsel for the respondents, when in the respondents’ brief of argument, he submits: “If Order 4 Rule 6 (FHC) enables a firm which is a partnership to be sued eo nomine and Order 13 Rule 42 (LHC) enables an individual doing business in a name other than his own to be sued in that name, then the general proposition can be asserted that an unincorporated business enterprise, regardless of the nature of its ownership can be sued eo nomine, because the ownership can only be either sole or plural, which is covered by both rules. If that proposition is valid, then it means that there is no need to first ascertain the nature of ownership of an unincorporated business enterprise before determining whether it can be sued eo nomine. The reality is that whether it is a partnership or solely owned it can be so sued.”
Apart from the foregoing, it will be recalled that in every turn of events the Appellant as Defendant held himself out and represented himself as EMEKA MADONA in writing and by conduct through signing of Exhibits B; B1; B2 and G which misrepresentation, misled the Respondent in carrying out business with him in that name (EMEKA MADONA) since the year 2000. He cannot at this stage be allowed to turn around to deny that name. See SECTION 169 OF EVIDENCE ACT, 2011. Throughout a history of business transaction with the Appellant since the year 2000, the Respondent knew the Appellant as EMEKA MADONA and he has executed and signed all the receipts aforesaid in that name or capacity; and as such, the Appellant is estopped from asserting the contrary, as he cannot renege.
Based on the foregoing, this Appeal fails and it is accordingly dismissed. Consequently, the judgment of the Court below delivered on the 26th day of February, 2014 is hereby affirmed. There shall be cost of N200,000.00 in favour of the Respondent against the Appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading in draft a copy of the leading judgment prepared by my learned brother, F. O. OHO, JCA.
I agree that the appeal should be dismissed and I endorse the order as to costs made by Oho, JCA, in the leading judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the judgment of my learned brother, FREDERICK OHO, JCA in this appeal. I am in complete agreement with the reasoning and conclusion that this appeal lacks merit and should be dismissed. I also will and hereby dismiss the appeal. The judgment of the lower Court is hereby affirmed.
The Appellant should pay N200,000 as costs to the Respondent.
Appearances:
C. I. OKOYE, ESQ. For Appellant(s)
B. I. ANIJAH, ESQ. For Respondent(s)
