Emmanuel Anemene & Anor V. H. A. Obianyido & Ors (2006)
LawGlobal-Hub Lead Judgment Report
RAPHAEL OLUFEMI ROWLAND, J.C.A.
This is an appeal against the decision of Keazor, J. sitting at the Onitsha Judicial Division of the Anambra State High Court. In the course of the hearing of the case by the trial court, the plaintiffs/applicants brought a motion on 11/2/99 praying for an order amending the summons, the claim and the Statement of Claim already filed in the suit by substituting the word “Plc” with the word “Ltd.” Wherever the word “Plc” occurs after the word “Diamond” in the summons, claim and statement of claim.
The applicants filed an affidavit in which it is deposed that what they wish to amend is a clerical error or slip.
The defendants filed a counter-affidavit in which it is deposed that the plaintiffs/applicants did not make a clerical error or slip and that they actually intended to sue Diamond Bank Plc which is a non-existent Company.
On 11th May, 1999 the lower court granted the amendment hence this appeal by the appellants.
It should be noted that the defendants/appellants brought an application dated 20/4/05 filed on 22/4/05 to the Court of Appeal that the appeal be heard on the defendants/appellants/applicants brief alone as the respondents failed to file the respondents’ Brief in compliance with the rule of this Court. The application was granted by this Court on 16/6/05.
As I have said above the lower court granted the Respondents’ application brought before it.
From the grounds of appeal, the appellants raised three issues for the determination of this court. They are:-
“1. Whether the decision of the learned trial judge is based on evidence before him?
- Whether the learned trial judge was right to substitute a juristic person for a non-juristic person?
- Whether the defendants/appellants were given a fair hearing at the court below?”
Facts relevant to the application at the court below run thus:-
The plaintiffs now respondents sued two defendants now appellants one of whom is Diamond Bank Plc. Diamond Bank Plc however does not exist in law so an application was brought seeking to strike out the name. As borne by the records, official searches conducted at the Corporate Affairs Commission confirmed that Diamond Bank Plc is not an incorporated company. This fact was deposed to in an affidavit and filed in support of the application to strike out the name. It is manifest from the records that the non-existence of Diamond Bank Plc was never challenged or controverted by the plaintiff/respondents at the court below.
Subsequently, the plaintiffs/Respondents in an attempt to remedy the situation filed an application seeking to amend the name to Diamond Bank Ltd. The sole ground/reason for seeking the amendment was that it was a clerical/typographical error.
The first issue which is whether the decision of the learned trial judge is based on the affidavit evidence placed before him. It was submitted that in support of their application to amend the name of the Bank, plaintiffs/respondents relied on only one ground that is, that the error was a clerical error or slip. They did not aver any other fact suggesting that the name was a bona fide error. It should be noted that the learned trial Judge concluded his ruling thus:-
“The plaintiff filed an affidavit in this case and I am satisfied from the plaintiffs’ affidavit that this is a genuine and bona fide error. In keeping with the decision in Commerce Assurance Ltd vs. Alhaji Alli supra, the motion succeeds and the application is granted.”
It seems to me that there is no basis for the learned trial judge to ….. ‘Satisfied from the plaintiffs affidavit that this is a genuine and bonafide error’.
In Agbayi vs State (1995) 1 NWLR (Pt.369) 1, this court held that the use of expressions like ‘I believe or disbelieve or ‘I am satisfied’ will not bar an appellate court from inquiring into the basis of such opinion.
In the case on hand, there was material before the lower court as borne by the records in the form of unchallenged and uncontroverted evidence that Diamond Bank Plc is not an existing person. The learned trial Judge was bound in the circumstances to accept it as true and proved. See WAEC vs. Obisesan (1998) 4 NWLR (Pt.547) 66.
I now move on to issue No.2, that is, whether the learned trial judge was right to regard the name of a non-juristic person, Diamond Bank Plc, as a misnomer and substitute it with a juristic person.
The appellants contend that the effect of the order of amendment granted by the learned trial judge is to substitute a non-juristic person with a juristic person.
It seems to me that unchallenged and uncontroverted affidavit evidence before the learned trial judge showed that Diamond Bank Plc is not an existing person. I have no doubt in my mind that the learned trial judge was bound to accept the fact of the non-existence as true and proved. See Agbaje vs. Ibru Sea Foods Ltd (1972) 5 S.C. 50; Busari vs. Oseni (1992) 4 N.W.L.R. (Pt.237) 557; Bedding Holdings Ltd VS. NEC (1992) 8 N.W.L.R. (Pt. 260) 428; WAEC vs. Obisesan (supra).
In Emecheta vs. Ogueri (1996) 5 N.W.L.R (Pt.447) 227 at 240, I said as follows:-
“It was contested at the court below by the counsel for the 3rd respondent, that the 3rd respondent is not a juristic person. The law is settled that a non-juristic person, generally, cannot sue and be sued. In Agbonmagbe Bank Ltd vs. General Manager G.B. Ollivant Ltd & Ors (1961) 1 All N.L.R. 116, it was held that “General Manager G.B. Ollivant Ltd” is not descriptive of a juristic person. The defendant so named, was struck out of the action on a preliminary objection. It was further held that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. See also Manager S.C.O.A. Benin City vs. Momodu (unreported) suit No. SC 23/1994 delivered on 17th November, 1996, it was held that a non-juristic person, cannot sue or be sued.”
In the case on hand, as Diamond Bank Plc is not an existing person, I have no doubt in my mind that there was no misnomer in law. It was wrong for the learned trial judge to make an order substituting Diamond bank Plc, a non-existing and non-juristic being with Diamond Bank Ltd, a juristic person. See Njoku VS. V. U.A.C. Foods (1999) 12 N.W.L.R. (Pt.632) 587; Solanke vs. Somefun (1974) 1 S.C.141.
The third and last issue for determination in this appeal is whether the Defendants/Appellants were given a fair hearing at the court below. Learned counsel for the appellants submitted that the appellants’ application to strike out the name Diamond Bank Plc was neither decided nor considered by the learned trial judge.
I hold the strong view that it is not enough merely to acknowledge that a motion was filed seeking the prayer to strike out Diamond Bank Plc, nor does it suffice to couch the issues for determination to touch upon it without infact considering the application.
In General Oil Ltd vs. Ogunyade (1997) 4 N.W.L.R. (Pt.501) 613, it was held as follows:-
“The principle of fair hearing demands that every application must be heard on its merits.”
See also Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria on fair hearing.
It is manifest from the records that what the learned trial judge did to the appellants breached their constitutional right to fair hearing.
It must be mentioned also that every material point canvassed in an appellant’s brief which is not countered in the respondent’s brief is deemed to have been conceded to the appellant. I said earlier in this judgment that the respondents did not file their respondents’ brief. It means they have accepted the appellants’ case. See Maersk Line & Anor vs. Addide Investment Ltd & Anor (2002) 4 S.C.N.J. page 433.
In the final analysis I hold that this appeal is meritorious and I allow it. I strike out the name of the 2nd defendant/Appellant – Diamond Bank Plc from this suit.
I make no order on costs.
Other Citations: (2006)LCN/1914(CA)
