Kerian Ikpara Obasi V. Mikson Establishment Industries Ltd. (2004)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
This is an appeal against the ruling of the Kano State High Court of Justice delivered on 16-7-1999 in suit No. K/M/137/99.
The respondent in this appeal was a judgment creditor in a judgment it obtained in a court at Maradi in Niger Republic in Trial No. 45/98 against the appellant who was the Defendant in that court. By an application Ex-Parte, the respondent had applied before the court below for an order under section 10 of the Foreign Judgments (Reciprocal Enforcement) Act CAP 152 Laws of the Federation of Nigeria 1990, to register the foreign judgment in that court for the purpose of execution in Nigeria. After hearing the application, the court below on being satisfied that the application met the requirements of the law for the purpose of being registered granted the same. The relevant part of this ruling state:-
“I want to say that I agree with the submissions of Mr. Igwe learned counsel to the applicant that all the requirements of law had been fulfilled by the applicant to get the judgment registered as to judgment of this court. Consequently therefore I found merit in the application and I made the following order:
- That a judgment delivered in Niger Republic against the judgment debtor/Respondent known and called KIRIAN IKPARA ABASI who is now resident here in Kano within the jurisdiction of this court in suit NO. TRIAL 45/98 is hereby registered as the judgment of this court.
- The said judgment should be enforced as the judgment of this court.”
Consequent upon the above order registering the foreign judgment against the appellant which was made on 29 – 6 – 99, the foreign judgment was duly registered as a judgment of the Kano State High Court and an order of that court was made for its enforcement. Execution was accordingly levied against the moveable properties of the appellant herein who was the judgment debtor.
The appellant who was not happy with the steps taken to enforce the foreign judgment against him brought a motion before the lower court for a number of reliefs. The motion on notice dated 2 – 7 – 99 sought for the following orders-
“To set aside the registration of the foreign judgment between the above named parties as shown above.
To set aside the execution carried” out on 29/6/99 and 1/7/99 against the above named judgment Debtor/Applicant and seizing his moveable personal properties including any other Execution which the registered court may carry out after the filing of this Motion on Notice.
An order compelling the bailiffs of the registering court to release forthwith all moveable properties of the named judgment Debtor applicant to him.”
After hearing the parties on this motion the lower court in its ruling delivered on 16 – 7 – 99 dismissed the application to set aside the registration of the foreign judgment and made the following order-
“That it is hereby ordered that the name of the plaintiff being described as MIKSON ESTABLISHMENT INDUSTRIES LTD in the Motion paper dated 28th June 1998 be Substituted with the name MIKSON INDUSTRIES LTD as the proper and authentic name of the plaintiff as contained in the foreign judgment registered by this court on 29 – 6 – 99.”
Not satisfied with the ruling of the lower court of 16 – 7 – 99 and in particular with the above order correcting the name of the Respondent judgment creditor on the motion paper, the defendant/judgment debtor now appellant had appealed to this court. The appellant filed 4 grounds of appeal to challenge the ruling and order of the lower court. From these 4 grounds of appeal the following 2 issues for the determination of the appeal were distilled in the appellant’s brief of argument. The issues are-
“(i) Whether the registering court can suo motu under the guise of doing substantial justice, make an order amending or correcting the names of the parties (especially that of the plaintiff or applicant) by substituting the name of a known or an existing person for that of unknown or non-existing person and vice versa without any application from the party in error.
(ii) Whether the failure of the Registering court to set aside the registration of the foreign judgment did not amount to a violation of the provision of s.6 (1) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act Cap 152 Laws of the federation of Nigeria 1990, to warrant the judicial intervention of this court.”
In the respondent’s brief of argument however the following 2 issues were identified-
“1. Whether the parties as they stood in the lower court are the same parties as of fact in the foreign judgment delivered in Maradi in Niger Republic which was registered by Honourable Justice Saka Yusuf of Kano High Court in July 1999 and if the Appellant was misled and a miscarriage of justice thereby occasioned by the way their names were registered by the court in Kano as defendant/judgment debtor.
- Whether the said High Court Kano was wrong to have in its ruling corrected the apparent mistake as (sic) he so did without abnormal application from the Respondent or ought to have out rightly set aside the entire registration and execution/sale carried out.”
For the effective determination of this appeal having regard to the 4 grounds of appeal filed by the appellant, I shall proceed to determine the appeal on the 2 issues formulated in the appellant’s brief of argument. The first issue for determination therefore is whether the lower court was right in exercising its power to amend the name of the appellant on the Motion paper to reflect the correct name without any of the parties applying for the amendment.
In the appellants brief of argument and the appellants reply brief, his learned counsel relying on a number of cases particularly the decision of this court in Nkwocha v. F.U.T. (1996) 1 NWLR (Pt.422) 112 at 114, 121 – 122, submitted that amendment of parties name can be granted in appropriate cases but only on application duly placed before the court for consideration in exercise of its discretion. That even the case of Njemanze v. Shell BP Port Harcourt (1966) All NLR 10 – 11 cannot be relied upon by the lower court” in suo motu making the amendment in the present case because the Supreme Court had said in that case that such an amendment of the title of an action cannot be had merely for the asking. Learned counsel pointed out that even where the mistake in naming parties was treated as a misnomer such amendments were only granted on application to avoid situations which such amendment could be prejudicial to the other parties as was in the case of Alhaii Mailafiya Trading and Transport Company Limited v. Veritas Insurance Company Limited (1986) 4 NWLR (Pt.35) 807 at 812.
As for relying on the provisions of order 11 Rule 2 of the Kano State High Court (Civil Procedure) Rules 1988 by the lower court, learned counsel argued that the rule does not give the lower court unrestricted power of substitution and that the power thereby conferred should not be exercised without due regard to Order 8 Rule 1 and 26 Rule 3 of the same High Court Rules. Learned counsel further referred to the case of Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt.632) 557 at 654 and stressed the need for an application for amendment even where the mistake in the naming of the parties in this case was a misnomer.
For the respondent, it was pointed out in the respondent’s brief of argument that the parties before the lower court were the same parties at the foreign court, the Regional Court Tribunal in Maradi Niger Republic in suit No. 45/98/ and Judgment No 56/99. That the inclusion of the word “establishment” in the English translation of the proceeding of the said foreign court judgment was merely a human error or misnomer leaving neither the original parties in doubt or misled. Learned counsel to the respondent maintained that the same judgment creditor in the foreign judgment is still the same person referred to in the English interpretation as Mikson Establishment Industries limited particularly when the correct names of the parties are contained in the original foreign judgment and other documents that emanated from the foreign court as contained in the record of this appeal.
The first issue for resolution is whether the lower court was right in making the order substituting the correct name of the appellant in the motion paper to correspond with the correct name of the appellant in the foreign judgment registered and partly executed by the same lower court. Taking into consideration the time this order of amendment was made on 16 – 7 – 99 after dismissing the appellant’s application to set aside the lower court’s order registering the foreign judgment on 29/6/99, the aim of the lower court in making the order was no doubt to correct the record and to prevent the occurance of substantial injustice. The Supreme Court had decided in Metal construction (W.A.) Ltd & ors. v. D.A. Migiliore & Anar. (1979) 6 – 9 SC 163 that it has an inherent power to amend the record of the trial court so as to comply with the facts proved before the court and decision given by it. See also Kode v. Yusuf (2001) 4 NWLR (Pt.703) 392. In Joseph Afolabi v. John Adekunle (1983) 2 SCNLR 141; (1983) 8 S.C. 98, the plaintiff, a head of family, apparently sued in his personal capacity but in fact his action was meant to establish his family’s title to family property. He was non-suited by the trial court for suing in his personal, instead of his representative capacity. On appeal to the Supreme Court, the court amended the plaintiffs’ capacity in the writ of summons in the record of appeal to reflect his representative capacity. Similar amendment ‘was made by the Supreme Court to correct obvious misnomer of the names of State functionaries of Ekiti State who were parties in the case on appeal as functionaries of old Ondo State in the recent case of Osasona v. Ajayi (2004) 14 NWLR (Pt.894) 527 at 543 – 544. This was also the position held by the West African Court of Appeal in Gbogbolulu of Vakpo v. Hodo (1941) 7 WACA 164. Such power of amendment is usually exercised to prevent the occurrence of substantial injustice. I think the facts of the present case fall within this principle of the prevention of the occurance of substantial injustice.
In the instant case, by the process of an Ex-parte motion dated 3- 5 – 99 by which the respondent in the present appeal applied at the court below for the registration of the foreign judgment, the parties were correctly named. In other words the respondent which was the judgment creditor in the foreign judgment was correctly named on the motion paper at page 109 of the record which named the parties as follows:-
“Mikson Industries Ltd …Plaintiff/Applicant
AND
Kerian Obasi …Defendant/Respondent.”
Also the affidavit in support of the Ex-parte motion at page 110 of the record of this appeal, the plaintiff/applicant was correctly named “Mikson Industries Ltd”. It is also clear from the same record of the court below that the parties before it in this matter were the same parties in suit No. 45/98 which was heard by the foreign court in Maradi Niger Republic and judgment NO.56/99 delivered against the appellant as defendant in favour of the respondent as the plaintiff. There is no doubt whatsoever how the word “Establishment” found its way into the name of the plaintiff/judgment creditor through the English translation of the proceedings of the foreign court at the court below.
A closer look at the arguments of the learned counsel to the appellant in this appeal shows that the contention in the final analysis was not so much as to the power to amend the names of the parties to correct a misnomer, but whether such power of amendment should have been exercised suo motu by the lower court. Order 11 Rule 2 of the Kano State High Court (Civil Procedure) Rules 1988 under which the lower court made the substitution of correct name of the plaintiff/judgment creditor now respondent reads-
“Where an action has been commenced in the name of the wrong person as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a judge in chambers, may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms may be just.”
There is nothing in the above provision of the rule showing that the power cannot be exercised suo motu by a court most especially as in the present case where the correction of the mistake in naming the party merely involved the deletion of the word “establishment” from the name of the plaintiff/respondent.
Misnomer does not lie in giving the name of the “wrong person” but in mistakenly giving a “wrong name” to the right person intended to be sued. In the instant case it is quite clear that what happened was that a wrong name was given to the right person, which was already before the court.
A proper statement of the law in this respect is that where the description of the party (whether plaintiff or defendant) on a court process was a mere misnomer, such could be put right by amendment provided that the person misnamed and intended to be sued is a juristic person and is in existence. This was the decision of this Court in The Owners of the MN Lupex v. Nigeria Overseas Charterina & Shipping Ltd. The Lupex (No.22) Vol.5 (1993 – 1995) Nigerian Shipping Cases 311 and A.B. Mann & Co (Nig) Ltd v. Costain (W.A.) Ltd (1994) 8 NWLR (Pt.360) 112 at 121.
In the present case therefore, the lower court in exercising its jurisdiction to amend the names of parties was only bound to consider the limit of the exercise of such jurisdiction where its jurisdiction was invoked merely to correct a mistake in the name of a party. A mistake as to the name of a party intended to be sued is a misnomer, which can be put right by amendment while a mistake as to the identity of the party to be sued is not a misnomer which can be put right by amendment. I think in the present case the learned judge of the court below applied the law correctly in making the simple amendment.
I have no doubt in my mind that the lower court in the instant case was faced with a case of a mere misnomer. The only question left for my resolution is whether the learned judge should have, on his own motion, corrected the mistake. What is important when an issue is made of the exercise of such power is whether the exercise of the power had occasioned a miscarriage of justice. Learned counsel to the appellant had urged strongly that the substitution of the correct name of the respondent had brought a new party to the matter thereby affecting the rights of the appellant. This line of thinking is of course not correct because it is not in all cases where an amendment is made to correct a mistake in the name of a party, that a new party is being substituted. Although in the present case in making the amendment the lower court used the word “substitution” in correcting the name of the party, the same result could have been achieved by merely using to words “deleting” or “removing” the word “establishment” from the name of the plaintiff/respondent. Be that as it may, I fail to see any substance in the argument that a miscarriage of justice had been occasioned by the lower court in making the order complained of suo motu. This is particularly so when the order being complained of was made after dismissing the appellant’s application to set aside the order registering the foreign judgment made by the lower court. In other words the order at the time it was made, did not have any effect in influencing the lower court in arriving at its decision to dismiss the appellant’s application to set aside the order registering the foreign judgment at the court below. On the whole on this issue, I think the learned judge of the court below exercised his discretion correctly under the law in making the order correcting the name of the parties.
The second issue is whether the failure of the court below to set aside the registration of the foreign judgment in the name of a stranger to that judgment did not amount to a violation of the provision of section 6 (1) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act Cap 152 laws of the Federation of Nigeria 1990 to warrant the judicial intervention of this court. Let me observe here and now that since this second issue is predicated on the alleged refusal to set aside the registration of the foreign judgment by the lower court in the name of a stranger, having resolved the first issue that the respondent whose name was corrected could not have been regarded as a stranger to the foreign judgment, this second issue is half resolved.
In support of this issue, learned appellant’s counsel referred to section 6 (1) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act and argued that the rights under the judgment are not vested in the respondent in this appeal by whom the application for registration was made. That the learned judge of the lower court in his ruling having found that the person named in the motion paper under which the judgment was registered as the applicant was not the same as the judgment creditor who obtained judgment against the applicant judgment debtor, ought to have applied the provisions .of section 6(1 ) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act to set aside the registration of the foreign judgment. That in inviting the court to set aside the registration of a foreign judgment, all the judgment debtor needed to do was to scrutinize the materials on which the registration was based with a view to seeing whether all antecedent legal requirements had been complied with by the Judgment Creditor. The case of Macaulay v. Raiffeisen Zentral Bank Osterreich AK Engesel Schaff (RZB) of Austria (1999) 4 NWLR (Pt. 600) 599 at 612, was cited in support of this submission. Learned counsel concluded by pointing out that the appellant as applicant before the court below having satisfied the requirements of the law that the right party was not before the court, that court should have set aside the registration of the foreign judgment rather than engage in an amendment exercise.
However, learned counsel to the respondent in responding to the appellant’s argument in support of this issue stressed that the lower court having been convinced that the insertion of the word “establishment” in the name of the respondent was a mistake or misnomer, was right in proceeding under Order 11 Rule 2 of the Kano State High Court (Civil Procedure) Rules 1988, to correct the names of the parties as it did. That action, according to the counsel, was in line with the powers of court under Order 47 Rule 1 of the Kano State High Court (Civil Procedure) Rules 1988, with regard to the need to do justice in any particular case. The case of Asafa Foods Factory Limited v. Alraine Nigeria Limited & Anor. (2002) 5 SCNJ 53 at 67 was cited as one of such cases where justice was achieved in making amendment in the name of parties. On the need to do substantial justice in any given case. Learned counsel finally concluded that the lower court having found in its ruling that the judgment creditor/Respondent was correctly mentioned in the certified true copy of the original judgment itself, that court correctly exercised its powers under Order 11 Rule 2, and Order 42 Rule 1 of the Kano State High Court (Civil Procedure) Rules 1988, in making the amendment.
As I have already observed before I embarked on the consideration of the appellant’s second issue, since this issue is founded on the allegation that the foreign judgment was registered in the name of a stranger to that judgment who had no vested rights in it, issue one which relates to the status of the Respondent which was the Respondent/Judgment Creditor at the court below having been resolved, the present issue does not arise for determination any more. All the same, I shall proceed to resolve the issue as it relates to section 6(1) (a) (vi). Section 6(1) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act 1990 Laws of the Federation of Nigeria states-
“6(1) on the application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment-
(a) Shall be set aside if the registering court is satisfied
(i)
(ii)
(iii)
(iv)
(v)
(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made.”
The burden on the appellant as the applicant at the court below to set aside the foreign judgment in his capacity as the judgment debtor is quite clear under the law. That is, in calling on the court to set aside the registration of a foreign judgment, all an alleged judgment debtor is required to do is to examine the materials on which the registration was based to see if all the antecedent legal requirements had been satisfied notwithstanding that the application for the registration was made ex-parte see Macaulay v. R.Z. B of Austria (1999) 4 NWLR (Pt.600) 599 at 612. As the ground upon which the appellant was relying at the court below to have the registration of the foreign judgment set aside was that the rights under the judgment were not vested in the respondent which applied to register the foreign judgment, the burden was on the appellant as applicant at the court below to prove that requirement. However, having regard to the finding of the lower court in its ruling refusing to set aside the registration of that judgment at page 8 of the record where the learned judge said-
“I have no slightest doubt in my mind that the mistake made in the name of the judgment creditor/Respondent was by the Interpreter who interpreted the French to English. It is not only genuine mistake made in good faith but one not misleading as to the true identity of the judgment creditor/Respondent Company since its name is correctly mentioned in the certified true copy of the original judgment itself.”
I have no reason to believe that that burden was discharged. Certainly, from the materials placed before the lower court, there is nothing to support the claim of the appellant that the rights under the foreign judgment registered at the lower court were not vested in the person by whom the application for registration of the foreign judgment was made.
The provisions of Section 6(1) (a) (vi) of the Foreign Judgments (Reciprocal Enforcement) Act 1990 Laws of the Federation of Nigeria, cannot therefore apply to provide the basis for the setting aside of the registration of the foreign judgment. The second issue for the determination of this appeal must also fail.
Finally, I find no merit at all in this appeal which I hereby dismiss. There shall be N5000.00 costs to the Respondent against the appellant.
Other Citations: (2004)LCN/1655(CA)
