Dennis Njemanze V Shell Bp Port Harcourt (1966)

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BAIRAMIAN J.S.C.

This appeal by the plaintiff was dismissed on the 1st November last; the court then said that reasons would be given later, and they are given now.

The defendant named in the writ of summons was “The Shell BP Port Harcourt.” When the case was called on in the High Court (E.N.) at Port Harcourt, counsel for the defendants’ company stated that “there is no company known as Shell BP.”; he cited Agbonmagbe Bank Limited v. General Manager. G. B. Ollivant Ltd. and another [1961 ] 1 All N.L.R. 116, and submitted that the case should be struck out. Thereupon counsel for the plaintiff asked that an amendment be ordered. The Learned judge ruled that he would follow that case and struck out the claim.

The 1st ground of appeal is that the trial judge erred in following the case cited to him; the 2nd reads as follows:

“Error in law: The learned trial judge was wrong in law to refuse an application for amendment when the defendant appeared in court and stated that it has now assumed a new name viz: The Shell-BP Petroleum Development Company of Nigeria Limited and no longer answers The Shell BP”

As to the first ground, whether it was right or not to strike out the first defendant in the case cited would not be decisive: for each case must be decided upon its own facts.

The second ground of appeal is the important one; and we note that it makes an averment of fact on what the company’s counsel stated. There is no evidence for that averment of fact: we have quoted the learned judge’s note of what counsel for the defendants’ company stated; he stated that “there is no company known as Shell BY.”. The ground of appeal plainly means that the company’s counsel told the court below that earlier the company was named “The Shell BP” and later it changed its name to “The Shell-BP. Petroleum Development Company of Nigeria Limited.” If that had been true, it would not have mattered: see s.10(5) and (6) of the Companies Act (cap. 37 in the 1958 Laws of the Federation etc.).

Before us, learned counsel for the plaintiff did not argue on the lines notified in the second ground of appeal: his argument was that the defendant put in an appearance; that there were magazines issued by Shell BP; that letters were addressed to Shell BP; and that they held themselves out as Shell BP Port Harcourt: therefore they could be sued as that.

It was true that the company put in an appearance; but that did not prevent it from objecting that the defendant named in the writ of summons was not a legal person. An officer of the company must have been served with the writ, and it was right that the company should appear and object, as it wished to do, that the action was not properly constituted. As for the other arguments, they were statements of fact made by counsel to us for which there was no evidence. This the learned counsel admitted in reply-that he had added facts not on record, and he asked for leave to put in an affidavit, which we did not think he ought to have. We should also like to note that counsel ought not to have argued on lines different from those notified in his ground of appeal.

This appeal illustrates the need for care in bringing an action. It is common knowledge, or ought to be, that a company is registered under the Companies Act and has a registered name: s.18(2). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to section 65(1); and it can be ascertained under s. 231(5) of the Companies Act from the Registrar. There is little excuse, if any, for a plaintiff who sues for wrongful dismissal not suing the company by its registered name. If there was any excuse for the mistake, no affidavit of the facts was prepared; the need for it would have been realised if the authorities had been looked up.

Learned counsel for the company referred to Alexander Mountain & Co. (suing as a firm) v. Rumere Ltd. [1948] 2 K.B. 436. There the plaintiff was wrongly named. The plaintiff’s solicitors applied on an affidavit to amend in the High Court, but amendment was refused. They prepared an affidavit of more facts and put it in on appeal, presumably by leave. They were diligent in explaining the circumstances, and that case is useful on the need for diligence to explain.

In the present case the plaintiff rushed to sue. Apparently it did not occur to his solicitor that there was anything wrong in suing the company merely as Shell BP; he did not look up the law before or after suing. Even after he appealed, it did not occur to his solicitor to look up cases in the White Book for guidance on how to go about the matter on appeal: he did not prepare an affidavit to explain how the mistake arose and state the registered name of the company which had been his employer and which he wished to sue; he did not give notice that he would apply for leave to put in an affidavit and also for leave to amend his second ground of appeal, which was apparently drawn up in haste; and when the appeal came up for hearing, his learned counsel was content to argue it without citing any authorities on thepractice of the courts and without any evidence of the facts he wished to rely upon.

It was not enough to complain of the trial judge’s refusal to amend: it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name of Shell BP could not have given rise to any reasonable doubt as to which company was being sued. An amendment of the title of an action cannot be had merely for the asking, and an appeal needs preparation. None was made either on the law or on the facts and, as no case was presented to show that an amendment ought to be allowed, the appeal was dismissed.

There is one observation we must make: the record does not give the name of the company for whom counsel appeared in the High Court; it merely states “Nwonodi for defendants’ company.” Counsel, if he did not give the name of the company, ought to have been asked to give it, and it should have been noted by the judge.

It may be helpful hereafter to add that the cases can be found in the White Book under ‘Mistake as to plaintiff or defendant-Misnomer or Substitution’ below Rule 6 in Order 15 of the English Supreme Court Rules.

Other Citation: (1966) LCN/1357(SC)