S.A. ABDULAZEEZ INTL RESOURCES LTD & ANOR v. FBN & ANOR
(2020)LCN/15197(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/K/86/M/2019(R)
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
- S. A. ABDULAZEEZ INTERNATIONAL RESOURCES LTD 2. ALHAJI ABDUL WAHEED ABDULAZEEZ APPELANT(S)
And
- FIRST BANK NIGERIA PLC 2. ALHAJI SIDIKATU ABEBI ABDULAZEEZ (Trading Under The Name And Style Of S. A. Abdulazeez General Enterprises) RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “MISNOMER”
A “misnomer” has been defined in the case of Maersk Line v Addide Invest. Ltd (2002) 11 NWLR Part 778 Page 317 at 322 Para.. per Ayoola JSC to mean “a wrong use of name. It is all about mistake as to name and not mistake about identity”.
In Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 the same Court, per Okoro JSC held at Page 31 Para D-H:
“A misnomer can be said to be a mistake in name i.e giving an incorrect name to a person in a writ of summons. It occurs when a mistake is made 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… A misnomer occurs when the correct person is brought to Court in a wrong name….When both parties are quite familiar with the entity envisaged in a Writ of Summons, and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, there can be no problem of mistaken identity as to justify striking out the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.” PER ADEFOPE-OKOJIE, J.C.A.
WHETHER OR NOT THE COURTS DECIDE CASES ON TECHNICALITIES RATHER THAN ON MERITS
The Courts have gone way beyond deciding cases on technicalities rather than on the merits. See Brittania U (Nig) Ltd v. Seplat Petroleum Development Co. Ltd (2016) 4 NWLR Part 1503 Page 541 at 590 Para E per Ngwuta JSC; Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 577 Para B per Sanusi JSC.
It is trite that in civil litigations, Courts have a duty to aim at and to do substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. See Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 30 Para A; (2015) All FWLR Part 762 Page 1786 at 1802 Para F-G per Okoro JSC; Compagnie Generale De Geophysique (Nigeria) Limited v. Idorenyin (2015) 13 NWLR Part 1475 Page 149 at 174 Para A-C per Kekere-Ekun JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): Both the Appellants and the 1st Respondent have filed Motions before this Court. Since they are both Applicants in their various motions, they shall be addressed by their designations as in the substantive Appeal in order to avoid confusion in their descriptions.
I note that the Appellants’ Motion was filed before that of the 1st Respondent. The Appellants’ Motion, being to amend its name, which name the 1st Respondent is attacking by its Motion, among other prayers, shall be taken first. The reasoning being that an application seeking to vivify a process which the opponent seeks to void, should be given precedence.
As held in Savannah Chemical Industries Limited V. Economic And Financial Crimes Commission (2019) LPELR-47648(CA) per Tijani Abubakar JCA Page 16-17:
“It is an age long principle of law that where there are two Applications before the Court, one seeking to rectify the defect in the process and the other seeking to nullify the process, the Court will in the interest of justice consider the Application seeking to correct the defect first, it is a matter of common sense, prudence, justice and equity, this is an established principle in priority of applications.”
See also Akiti v Oyekunle (2018) 8 NWLR Part 1620 Page 182 at 192 Para D-E per Rhodes-Vivour JSC and Mobil Producing Nig Unltd. v. Monokpo (2003) 18 NWLR Part 852 Page 346 at 432 Para G per Tobi JSC.
I shall accordingly take the 1st Respondent’s Motion first.
The 1st Respondent’s Motion filed on 11/7/19 is for the following:
1. An order of this Honourable Court granting leave to the 1st Respondent/Applicant to amend its name on record by substituting “PLC” and replacing it with “LTD”.
2. AN Order of Court amending the name of the 1st Respondent/Applicant on Record to reflect First Bank of Nigeria Ltd.
3. An Order of Court deeming this amendment from “PLC” to “LTD” to reflect on all processes properly filed and served in this Court and the Court below in this Suit No. KDH/KAD/400/2017.
4. And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.
The Grounds for the application, as therein endorsed, are the following:
GROUNDS FOR APPLICATION
1. That the 1st Respondent/Applicant was formally known and referred to as First Bank of Nigeria Plc. (The name on record).
2. That the 1st Respondent was incorporated as First Bank of Nigeria Ltd in 1969 but was registered as First Bank of Nigeria Plc in 1991 before again being re-registered as First Bank of Nigeria Ltd.
3. That a re-registration of a Public Company to a Private Company such as that of the 1st Respondent/Applicant does not affect its juristic nature.
4. That at all material times, First Bank of Nigeria Plc has been a juristic person but merely changed its name to First Bank of Nigeria Ltd in compliance to the Central Bank directive to all banks to change operations from Plc to Ltd.
5. That the mis-description of the 1st Respondent/Applicant as a PLC and not a LTD was an honest mistake/typographical error of its Counsel and not that of the 1st Respondent.
6. That this honest mistake/typographical error did not affect any substance of the case answered by the Appellants at the Court below or before this Court.
7. That the Appellants were never mistaken as to the identity of the 1st Respondent and the case made against them.
8. That all the documents/exhibits between the parties at the Court below and in this Court were made out in the name of First Bank of Nigeria Ltd.
9. That the Appellants have not filed their Appellants brief since they filed their Notice of Appeal on 13th June, 2017.
10. That any change of name of a company does not affect the validity of its contracts, agreements or proceedings pursuant to Section 31(6) of CAMA.
11. That this amendment sought at Law (Section 31(6) of CAMA) does not render defective any legal proceedings by or against the Company.
12. That it is in the interest of Justice to grant this application.
In support is an affidavit deposed to by Habu Sambe Danjuma, Legal Practitioner, in the law Firm of Intellegal Partners, Counsel to the 1st Respondent, First Bank of Nigeria Plc, exhibited to which are some documents.
Opposing the application, the Appellants filed a Counter Affidavit deposed to by Rehema Joseph, Litigation Secretary in the law firm of Messrs Mohammed & Co, Counsel to the Appellants. Also exhibited are a number of documents. The 1st Respondent, in response, filed a Further Affidavit deposed to by Habu Sambe Danjuma Supra.
In compliance with the order of this Court, the parties filed written addresses. In the 1st Respondent’s Written Address filed by Emmanuel Aghedo Esq., on 30/9/19, a sole issue was distilled for determination, namely:
Whether an error or misnomer as to the name of a party to a suit can be corrected by an amendment and whether an amendment sought can be granted at this stage of the proceedings.
The Appellants’ issue, as formulated by their Counsel, Abu Usman Abdulsalam Esq. in the Appellant’s Written Address filed on 7/10/19, is:
Whether the 1st Respondent/Applicant has made out a case for grant of the reliefs sought.
The 2nd Respondent filed a Reply on Points of Law, formulating the issue for determination, thus:
Whether the 1st Respondent who had admitted that he is dead (sic) can approach (sic) this Court for any application such as the instant one i.e. by substituting the name First Bank of Nigeria PLC with First Bank of Nigeria PLC.
The issues formulated by both Counsel are similar and simply is:
Whether this Court should grant the application for amendment?
The arguments of the 1st Respondent’s Counsel are that the 1st Respondent simply seeks to substitute the word “PLC” with the words “LTD”. This, he said, is a misnomer and does not affect the rights and liabilities of the parties and does not prejudice the Appellant. He explained that the 1st Respondent was initially known as “First Bank of Nigeria PLC” but changed its name to “First Bank Ltd”. He exhibited both the initial Certificate of Incorporation and the latter one dated 16/4/13 showing the change of name from “First Bank PLC” to “First Bank Ltd”. He argued that being a misnomer, the Court should grant the application.
The response of the Appellants and the 2nd Respondent is that the name, “First Bank of Nigeria PLC” was no longer in existence as at 5th day of April 2017 when the suit was filed at the trial Court. Having refused to disclose these facts, he is guilty of suppressing and misrepresenting facts. Where an applicant is guilty of this, the application should not be granted. In consequence, the 1st Respondent, in its institution of the suit before the lower Court was non juristic and its name can thus not be amended.
These, in summary, are the arguments of Counsel.
The genesis of this case is that the suit by the 1st Respondent against the Appellant and 2nd Respondent was concluded at the lower Court, culminating in a judgment awarded against the Appellants and the 2nd Respondent. The Appellants and the 2nd Respondent have appealed against the judgment to this Court.
The question is whether the amendment of the name of the 1st Respondent should be granted.
What the 1st Respondent seeks to do, by correction of its name, is what is referred to as “a misnomer”.
A “misnomer” has been defined in the case of Maersk Line v Addide Invest. Ltd (2002) 11 NWLR Part 778 Page 317 at 322 Para.. per Ayoola JSC to mean “a wrong use of name. It is all about mistake as to name and not mistake about identity”.
In Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 the same Court, per Okoro JSC held at Page 31 Para D-H:
“A misnomer can be said to be a mistake in name i.e giving an incorrect name to a person in a writ of summons. It occurs when a mistake is made 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… A misnomer occurs when the correct person is brought to Court in a wrong name….When both parties are quite familiar with the entity envisaged in a Writ of Summons, and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, there can be no problem of mistaken identity as to justify striking out the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.”
In Maersk Line v Addide Invest. Ltd Supra, the Supreme Court, in the lead judgment of Ogundare JSC distinguished the oft quoted cases of Olu of Warri v. Chief Sam Warri Esi & Anor. 3 FSC 94 at 96; (1958) SCNLR 384 and Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd (1961) ANLR Page 116 observing, with respect to the appeal before them as follows:
“The capacity in which the 3rd respondent is sued, has been challenged, that is, that the 3rd respondent in this appeal is not a legal personality known in law. There was no application of amendment brought by the appellant before the lower Court to insert the real name of the 3rd respondent…Surely, if an application to amend had been brought and sufficient reasons given for naming the party wrongly, it might have been granted and there would have been no need for the dictum.”
It is thus clear from these authorities that describing the 1st Respondent as “First Bank PLC” instead of “First Bank Ltd” is a mere misnomer and has not misled the Appellants or the 2nd Respondent, all of whom concluded the suit before the lower Court in the former name without any objection.
Good reasons, I hold, have been given by the 1st Respondent’s Counsel for so naming the 1st Respondent, as being an oversight, in view of its former name.
The Courts have gone way beyond deciding cases on technicalities rather than on the merits. See Brittania U (Nig) Ltd v. Seplat Petroleum Development Co. Ltd (2016) 4 NWLR Part 1503 Page 541 at 590 Para E per Ngwuta JSC; Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 577 Para B per Sanusi JSC.
It is trite that in civil litigations, Courts have a duty to aim at and to do substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. See Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 30 Para A; (2015) All FWLR Part 762 Page 1786 at 1802 Para F-G per Okoro JSC; Compagnie Generale De Geophysique (Nigeria) Limited v. Idorenyin (2015) 13 NWLR Part 1475 Page 149 at 174 Para A-C per Kekere-Ekun JSC.
The Appellants and the 2nd Respondent will not be prejudiced, I hold, as, by the amendment, no further evidence will be called. The Respondents to this application also, as aforesaid, fought this case at the lower Court without objection to the name of the 1st Respondent. This appeal should and will be heard on the merits.
The 1st Respondent’s Motion is meritorious, I hold, and is allowed.
The effect of an amendment is that it dates back to when the originating process was filed. See Okafor v. Bende Divisional Union, Jos Branch (2017) 5 NWLR Part 1559 Page 385 at 407 Para B-C per Kekere-Ekun JSC; Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 29 Para F-G per Okoro JSC; Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR Part 1466 Page 171 at 197 Para B-D per M.D. Muhammad JSC.
The prayer of the 1st Respondent is accordingly granted in the following terms:-
1. Leave is granted to the 1st Respondent to amend its name on the record by substituting “PLC” with the words “LTD”.
2. An order is granted deeming the name of the 1st Respondent on the Record to read the duly amended name “First Bank of Nigeria Ltd”.
3. An order is granted deeming the processes filed and served in this Court and the Court below as reflecting the duly amended name of the 1st Respondent, “First Bank of Nigeria Ltd”.
4. All future processes including the Amended Notice of Appeal and the Briefs of Argument shall reflect the amended name “First Bank of Nigeria Ltd”.
The 2nd Motion was filed on 21/5/19 by the Appellants, seeking the following prayers:
1. An order of this Court granting the Appellants leave to raise fresh point or issue for the first time in the Court of Appeal which was not raised before the trial Court to wit: the point or issue concerning want of jurisdiction of the trial Court occasioned by non juristic persons who initiated the originating processes filed by the 1st Respondent as well as a condition precedent was not fulfilled before filing the suit upon which the suit was heard and determined i.e (Grounds 4 and 5) of the Schedule of Amendment and also Grounds 4 and 5 in the Proposed Amended Notice of Appeal.
2. An order of this Honourable Court granting the Appellants leave to file three (3) additional Grounds of Appeal to the three (3) existing grounds contained in the Original Notice of Appeal (Exhibit A) already filed in this Appeal.
3. An order granting the Appellants leave to amend their Original Notice of Appeal by the inclusion of three (3) Grounds of Appeal numbered as Grounds (4, 5 and 6) both in the Schedule of Amendment (Exhibit B) and in the Proposed Amended Notice of Appeal (Exhibit C).
4. An order granting leave to the Appellants to argue the fresh issues of want of jurisdiction of the trial Court to adjudicate on the suit at the trial Court.
5. Upon the grant of prayers 1 to 4 above, an order deeming the Proposed Amended Notice of Appeal embodying the original Grounds 1, 2, 3 and the three (3) new Grounds (Grounds 4, 5 & 6) as contained in the Proposed Amended Notice of Appeal as duly filed and served.
6. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The Grounds for bringing the application, as therein endorsed, are as follows:
a. There is need to amend the Notice of Appeal to include the jurisdictional issue on non juristic person who initiated the proceedings at the trial Court and failure to fulfill a condition precedent before filing the suit before the trial Court.
b. The Amendment will meet the end of justice and enable all issues to be resolved on the merit.
c. The Appellants are desirous of exercising their Constitutional rights by appealing against the judgment of the Kaduna State High Court delivered on the 8th May, 2017 being issue relating to competency of the suit by reason of failure to comply with condition precedent before instituting of the suit at the trial Court and lack of jurisdiction on the trial Court over a non juristic person who initiated the proceedings at the trial Court. (See Exhibit B which is the Schedule of Amendment).
d. That it will serve the interest of justice to grant the application and the Respondents shall not be prejudiced, as they will have the opportunity to respond to the case of the Appellant on the merit.
In support of the application is an affidavit deposed to by Samuel Ologbondiyan, Legal Practitioner in the law firm of Messrs Mohammed & Co.
The Appellant filed in support a Written Address on 2/10/19 by Abu Usman Abdulsalam Esq. Also filed by the Appellants are a Further Affidavit in Support by Rehema Joseph Supra and a Reply on Point of Law filed on 9/9/19.
Opposing the application, the 1st Respondent filed a Counter Affidavit deposed to on 11/7/19 by Habu Sambe Danjuma Supra, a Further Counter Affidavit by the same deponent on 20/9/19 and A Reply on Point of Law on 4/10/19 by Emmanuel Aghedo.
Both parties filed written addresses for and against the Application.
The additional grounds of appeal sought to be added are three and as contained in the schedule of amendment as grounds four to six, are the following:
“GROUND FOUR
The learned trial judge erred in law when he assumed jurisdiction over this case as the condition precedent to the exercise of the jurisdiction has not been met by the 1st Respondent before instituting this action at the lower Court on the 4th April, 2017.
PARTICULARS OF ERROR
a. That by the offer letter dated 25th April 2016, it was the agreement of the party that in the event of any default of repayment of the facilities to demand from the defaulting party via written notice after 14 days thereafter.
b. That the offer letter of extension of the facilities dated 8th March 2017 granted to the Appellants requires the 1st Respondent to demand for payment in the event of a default before an action can be commenced.
c. That by the 1st Respondent letter dated 15th March 2017 requesting the Appellants to know that by virtue of extension and restructure supersedes demand letter.
d. That there is no demand letter served on the Appellants as required by law and or the agreement of the parties before this suit was filed at the lower Court on the 4th day of April, 2017.
e. It is therefore wrong for the trial Court to assume jurisdiction over this matter when condition precedent to the exercise of same has not been met.
GROUND FIVE
The learned trial judge erred in law when it found for the 1st Respondent (A non- juristic personality) when it held thus:
“In that regard, I answer the one (1) question raised/formulated by the Applicant in the affirmative and in consequence hereby grant all the reliefs sought in the terms prayed. I enter judgment in favor of Applicant and against the Respondents by way of Declaration 1 and 2 and grant Order 3, 4, 5, 6 as prayed.”
PARTICULARS OF ERROR
a. The originating summons upon which the trial Court found for the 1st Respondent against the Appellants was initiated by the 1st Respondent under the name of First Bank of Nigeria Plc.
b. The offer letter of the 1st Respondent to the Appellants dated 25th April 2016 address the 1st Respondent as FIRST BANK OF NIGERIA LIMITED.
c. EXH FBN KD4 which is the crux of the parties relationship (Tripartite Legal Mortgage), the 1st Respondent bears itself out as First Bank of Nigeria Limited.
d. All other exhibits relied upon by the trial Court in finding for the 1st Respondent against the Appellants carries the name of First Bank of Nigeria Limited.
e. The corporate name of the 1st Respondent to which it transacted with the Appellants all through their relationship.
f. The corporate name of the 1st Respondent to which it transacted with the Appellants at all material time is in the name: First Bank of Nigeria Limited as against First Bank Plc. (a non-juristic) person.
g. The trial Court ought not to have assumed jurisdiction let alone found for the 1st Respondent as there is no nexus between the 1st Respondent and the supporting documents (exhibits) relied upon by the trial Court in finding for the 1st Respondent against the Appellants.
GROUND SIX
The learned trial judge erred in law when he entered judgment for the 1st Respondent without making specific finding on the issue of law raised and without giving reasons for his decision.
PARTICULARS OF ERROR
a. The Appellants was sued by the 1st Respondent before the lower Court and judgment was entered in favor of the 1st Respondent originating summons alone.
b. That the learned trial judge did not give any reason for his decision as to how he arrived at the conclusion in favor of the 1st Respondent.
c. The learned trial judge ought to have evaluated and scrutinized the evidence of the 1st Respondent as contained in the affidavit attached to the originating summons of the 1st Respondent even in the absence of the counter affidavit of the Appellants before making her findings and conclusion.”
I shall confine my consideration of this application to the proposed additional grounds numbers 4 and 6. This is because by the grant of the 1st Respondent’s application above for the amendment of its name, it is no longer necessary to consider Ground 5 proposed.
This is because, as aforesaid, an amendment dates back to the inception of the case. It is thus deemed that the 1st Respondent bore its duly amended name from the commencement of the proceedings before the lower Court.
The proposed Ground is therefore merely academic and of no utilitarian value, which Courts cannot entertain. See Dahiru v APC (2017) 4 NWLR Part 1555 Page 218 at 244 Para E-G per Rhodes-Vivour JSC; FRN v. Dairo (2015) 6 NWLR Part 1454 Page 141 at 170-181 Para H; (2015) All FWLR Part 776 Page 486 at 521 Para F-G per Nweze JSC.
Having so held, I note, however that all the averments in the affidavits of both parties and their arguments in their Written Addresses are in respect of Ground 5, which this Court has held not to be a live ground. No arguments have been proffered in respect of the other grounds.
Rather than refuse this application in its entirety in respect of the remaining grounds, I shall grant the reliefs sought, confining myself, however to proposed Grounds 4 and 6.
In consequence this application is granted in part as follows:
1. Prayer No 1 is refused for leave to raise a fresh point for the first time not raised in the trial Court with regard to the proposed Ground 5.
2. Leave is granted to the Appellant to raise a fresh issue for the first time in this Court with regard to the proposed Ground 4.
3. Leave is granted for amendment of the Notice of Appeal to include the proposed Grounds 4 and 6.
4.The amended Notice of Appeal shall be filed within 14 days of today, also to bear the amended name of the 1st Respondent.
The parties shall bear their respective costs.
SAIDU TANKO HUSSAINI, J.C.A.: The motion presented by the 1st Respondent sought to amend name “First Bank of Nigeria Plc” to read First Bank of Nigeria Ltd”. The question now is whether the application made is grantable in the circumstances it was made.
The 1st respondent had at different times been known, called and was registered as “First Bank of Nigeria Ltd”, “First Bank of Nigeria Plc” and lately reverted to “First Bank of Nigeria Ltd” and was so registered in that name. However, in the action instituted by it, the name: “First Bank of Nigeria Plc” was used as the name of the Bank, a case of wrong use of name, commonly referred to as “misnomer”.
This being the question raised in the application before us seeking as it were, the leave to correct this anomaly, the application should in my view be granted without much ado so as to reflect on the name of the existing outfit.
It is for this and the fuller reasoning as contained in the lead Ruling delivered by my lord Oludotun Adebola Adefope-Okojie JCA, that I too, am disposed to granting the application of the 1st Respondent. I also abide by other orders contained in the lead Ruling.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Ruling delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA.
I agree with reasoning and conclusion reached in the Ruling. I have nothing to add.
Appearances:
Suleiman Yusuf Esq. holding the Brief of Abu Usman Abdulsalam Esq. For Appellant(s)
S. David Esq. – for 1st Respondent.
M. M. Yusuf Esq. – for 2nd Respondent. For Respondent(s)
