Maersk Line & Anor V. Addide Investments Limited & Anor (2002)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal arose out of two interlocutory decisions of the Federal High Court. Addide Investments Ltd, as plaintiff, and is hereinafter referred to as plaintiff, had claimed from MAERSK LINE and MAERSK NIGERIA LIMITED as defendants:

“1. The sum of 80,000 US dollars being the value of the 400 bags of Gum Arabic grade one, destroyed due to the defendants negligence in allowing water to soak the goods which had been loaded dry and sound, into the container numbered APMU 2730074, “while being shipped on board the vessel MV “CHRISTIAN MAERSK 9506”, under a contract of carriage of goods by sea, evidenced by bill of lading No. LOSE 11576, issued and dated in Apapa, Lagos, on the 23rd of February, 1995.

2. The sum of 50,000 US dollars being the amount of damages claimed against the defendants for the latter’s breach of contract, by their failure to keep the terms of same, that is to say, that the goods be delivered in the same sound and merchantable condition in which they were loaded on board the vessel MV “CHRISTIAN MAERSK 9506″.
3. The cost borne by the plaintiff for the increased charges paid for the extra time it took to discharge the goods at the port of destination owing to their damaged state. The said sum amount to 92 US dollars.
4. The sum of 100,000 US dollars for the loss the plaintiff suffered in being deprived of the benefit that would have accrued to him had the goods been sold at the prevailing market rate of 5 US dollars per kilo. The total value of accruing profit that the plaintiff thereupon lost and which is thus claimed against the defendant is 20,000 US dollars.
5. Interest at the rate of 6% per annum from the date of default in delivery of the said goods in a sound and merchantable condition, till the date of judgment and thereafter 8% per annum, till the whole sum is fully liquidated or repaid.
6. The sum of 100,000 US dollars as general damages.”

On being served with the writ of summons, the defendants through their counsel, moved the trial court for an order –

“striking out the name of the 1st defendant from the suit and for such further order or orders as this honourable court may deem just or appropriate AND TAKE FURTHER NOTICE that the ground for this application is that the 1st defendant, Maersk Line being not a juristic entity lacks the capacity to sue or be sued.”

In the affidavit of Joseph Olawuyi in support of the motion, the deponent deposed, inter alia, as follows:

“4. That Maersk Line is not a juristic entity but a trademark.

5. That the carrier is the Dampskibsselskabet of 1912, Aktieselskab and Aktieselskabet Dampskibsselskabet Svendborg as carrier which is the steamship company of 1912 and steamship company Svendborg.
6. That attached and marked exhibit “JO1″ is a copy of the bill of lading.
7. That I am advised by Babajide Koku and I verily believe that the 1st defendant lacks capacity to sue or be sued.”

In a counter affidavit in opposition to the motion Toyin Akinsanya, a legal practitioner in the firm of legal practitioners acting for the plaintiff, deposed as hereunder:

“9. That the defendants have disclosed in their affidavit in support of the motion that the carrier is the Dampkibsselskabet Svendborg which is the steamship company of 1912 and steamship company Svendborg which is the owner of the trademark MAERSK.

10. That the 1st defendant is a shipping company whose trade name and business contacts, subsidiaries and bill of lading bear the name MAERSK LINE with an international reputation and there could not (be) any misrepresentation as to who is the carrier of the Gum Arabic. Maersk Line is a notorious trade mark and trade under the Madrid Convention.
11. That the bill of lading issued to the plaintiff in respect of this case bears the name MAERSK LINE and infact the 1st defendant’s London subsidiary letter head paper clearly shows that MAERSK LINE is its registered name. The copies of the said bill of lading and MAERSK LINE letter head paper are hereby attached and marked exhibit TAI.
12. That the prayer now being sought by the defendants/applicant is clearly a delay tactic which is an attempt to set the hands of the clock backward and deny the plaintiffs the right to the expeditious hearing of the suit.

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15. That the defendants application be struck out on the grounds that it is an abuse of the process of the court and lacks merit in its entirety” (italics are mine for emphasis).

There is a further affidavit by one Victor Omeike, an officer in the employment of the 2nd defendant. To this affidavit were annexed two documents in proof of the fact that MAERSK LINE and LOGO is a trade mark.

There was a second motion filed by the plaintiffs seeking the following orders –

“1. An order of court for the joinder of the 3rd, 4th and 5th defendants as defendants in this suit.

2. An order of court granting leave to the plaintiffs/applicants to amend their particulars of claim and to deem as properly filed and served the amended particulars of claim annexed hereto and marked exhibit TAI.
3. An order deeming as properly filed and served all motions and court processes previously filed and served in this matter on the 3rd, 4th and 5th defendants more particularly the motion dated 9th day of February, 1996.”

Upon the following grounds:

“(a) The defendant’s counsel’s contention that the 1st defendant MAERSK LINE, is not a juristic person.

(b) The 3rd, 4th and 5th defendants are necessary parties to whom the plaintiffs have claim.

(c) That the matter before the court may not be successfully resolved without the 3rd, 4th and 5th defendants being made parties.

(d) The cause or matter is liable to be defeated by the non-joinder of the 3rd, 4th and 5th defendants.

(e) The 3rd, 4th and 5th defendants are parties who ought to have been joined as parties in the first instance.

(f) The 3rd, 4th and 5th defendants are parties whose presence are necessary as parties to the action.

(g) The joinder of the 3rd, 4th and 5th defendants is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.

(h) That the joinder of the 3rd, 4th and 5th defendants will make them to be bound by the result of the suit.”

The 3 defendants sought to be joined are:

“1. THE OWNERS OF THE VESSEL “CHRISTIAN MAERSK”

2. THE MASTER OF THE VESSEL “CHRISTIAN MAERSK”
3. DAMPSKIBSSELSSKABET AT 1912, AKTIESELSKAB AND AKTIESSELSKABET”

In the supporting affidavit Toyin Akinsanya, a legal practitioner deposed thus:

“3. The plaintiffs instituted this action against the 1st and 2nd defendants in their registered name with which they carry on business and by which they are generally known and referred to by their business associates, partners and customers.

4. That the plaintiffs/applicants brought a motion dated 9th February, 1996 for an order that the defendants/respondents furnish security/guarantee or alternatively that the caveat imposed on the plaintiffs at the instance of the defendants be lifted which was to come up for argument on 9th April, 1996.
5. That surprisingly, counsel for the defendants filed and served on the plaintiff’s counsel an application dated 4th day of April, 1996, asking for an order striking out the name of the first defendant from the suit on the ground that the said first defendant is not a juristic person.
6. That because of this new development, it is now necessary that the 3rd, 4th and 5th defendants be joined as defendants from whom the plaintiffs can make claims.
7. That it is also necessary for the plaintiffs to amend their particulars of claim to conform with the new development.
8. The amended particulars of claim is hereby, annexed and marked exhibit TAI.
9. That the first defendant, MAERSK Line is a liner company that can sue and be sued and the 2nd defendant is a subsidiary/associated company of the 1st defendant.
10. That 1st defendant did not raise the issue of its status until a motion dated 9th February, 1996, was brought wherein the plaintiffs prayed this honourable court to order the 1st defendant to furnish a bank guarantee in the sum of USD 350,000.00 (Three hundred and fifty thousand U.S$) or in the alternative, that an order of caveat imposed on the plaintiffs at the defendant’s instance be lifted.
11. That the defendants have a company in the United Kingdom with its letter head called Maersk Line, a subsidiary of the 1st defendant (a copy of which is herein attached marked exhibit TA2).
12. That in order not to prolong the case, the plaintiffs have deemed it fit to join the 3rd, 4th and 5th defendants as parties to this suit with a view to putting an end to any and or all technicalities which the defendants may wish to employ in order to further delay the proceedings.
13. That the joinder of the 3rd, 4th and 5th defendants is necessary in order to enable the court effectually and completely adjudicate and settle all the questions involved in the suit.
14. That the joinder of the 3rd, 4th and 5th defendants will make them to be bound by the result of the suit.
15. That it is just and equitable to join the three (3) defendants.” (italics are mine)

The two motions came up for hearing together before Belgore, CJ. In his ruling given on 27th September, 1996, the learned Chief Judge found:

1. “In his submission, counsel for the plaintiff stated that the defendants were not denying that the vessel that carried the relevant goods was not Maersk Line as shown in the Bill of Lading which they tendered as exh. JO1, and that they made anybody dealing with 1st defendant to believe that the vessel’s name is Maersk Line. The defendant had given themselves out as such.

The trade mark as defined in law is a mark used for goods for the purpose of indicating a connection in the course of trade between the goods or chattel and some people having the right as proprietor or as a registered user to use the mark whether with or without any indication of the identity of that person. With this definition I find it hard to accept that a trade mark is not a juristic entity.”

2. “I do not find that the Maersk Line which the defendant used in the Bill of Lading – exh. J01 is not a juristic name or that it does in anyway cause a doubt to whom it refers to than the defendant.”
3. “At any rate, leave to correct the name of a party can be sort (sic) and given in motion to amend pleadings under order 32 of the rules of this court. The effect of such an amendment might be to substitute a new party or new name once the court is satisfied that the mistake was genuine and was not misleading or such as to cause a reasonable doubt as to the identity of the person intended.”
4. “In this case, I find the defendant was not misled by the plaintiff using its trade name which the defendant is known in his business. Order 32 empowers the court upon his own motion to effect an amendment and I found this is a proper case to invoke the power.”

On these findings he ordered “the plaintiff to change the plaintiff’s (sic) trade name to its real name.”

On the second motion, the learned Chief Judge said:

“The issue in this case is whether the new parties to be joined in this suit will lose their rights of limitation. This is the view in the case of Cospania Colombia de Seguros v. Pacific Steam Navigation Co. cited where cargo owner, therefore, wanted to sue the demise charterers, but the contract incorporated under Article III Rule 6 of the Hague Rules, which allowed one year from the date of delivery of the goods for an action to be brought. To join the demise charterers at this later stage would therefore deprive them of their time bar defence under the Hague Rules. It was held that cargo owners believed honestly and reasonably throughout the period that the ship owners were the people who accepted responsibility and therefore the demise charterers were allowed to be joined. Here in this case, there is no misconception as to the identity of the defendant. The name whether trade name or actual name was used and from the beginning of the transaction and action the identity of the defendant was known. I do not think the cases cited fall in all fours with the present case, This application is refused.”

The defendants appealed against the order of the trial court amending the name of the 1st defendant “to its real name”. Plaintiffs, however, did not appeal against the refusal of their own motion.

Earlier on 2nd January, 1996, the plaintiff had filed a motion on notice praying the court for –

“An order amending the particulars of claim to include Abex Trading Limited being the consignee as the 2nd plaintiff in this suit.”

In the affidavit in support of the motion, Taiwo Afonja, a legal practitioner in the firm of solicitors appearing for the plaintiff deposed thus:

“3. That the plaintiffs/applicants have filed their particulars of claim in this honourable court.

4. That at the time of filing the said document, Abex Trading Limited was not included in the said document.
5. That I am informed by Chief Idowu of counsel and I verify believe him, that it is necessary to include the said Abex Trading Limited as 2nd defendants/applicants in this matter.
6. That further to the above it is necessary to include the said Abex Trading in this matter as they are consignees of the goods which are the subject matter of this suit.
7. That it is in the interest of justice that Abex Trading be included as 2nd plaintiff/applicants in this matter.”

The court’s minutes of the proceedings of the hearing of this motion as on page 155 of the record of appeal before us and they read:

“BETWEEN:

ADDIDE INVESTMENTS LTD.

vs.

1. MAERSK LINE
2. MAERSK NIGERIA LTD.

Chief E. O. Idowu Esq. for the plaintiff.

Court: The defendants are absent and unrepresented.

Idowu: I saw my learned friend Mr. Koku who told me that he would be engaged in another matter in another court today. He said he would not oppose the motion. The motion dated 21st December, 1995 is for amendment of particulars of claim as put in the motion.

Court: The application is granted. The particulars of claim is to be amended to include Abex Trading Ltd, the consignee as the 2nd plaintiff. ”

The defendants by a motion on notice moved the trial court for an order –

“setting aside the order of this honourable court made on the 29th day of January 1996 for the joinder of Abex Limited as the 2nd plaintiff in this suit…”

In the affidavit in support of this motion one Joseph Olawuyi deposed as hereunder:

“3. That on the 29th of January, 1996, this honourable court made an order for the joinder of Abex Trading Limited as plaintiff in this suit in the absence of the defendant and its counsel.

4. That I am informed by Mr. Quasim Odunmbaku of counsel and I verily believe him that on the 26th of January, 1996 he was given the case file on this matter with instructions to attend to the same in court on the 29th of January, 1996 as leading counsel in the matter. Mr. Babajide Koku would otherwise be engaged in the Court of Appeal, Lagos.
5. That this matter was hitherto on the 29th of January, 1996 listed before the Honourable Justice Aina, who did on the 4th of December, 1995, as a result of the non attendance of the plaintiff in court adjourned (sic) the same to the 31st of January, 1996 for mention to enable the parties take dates for the completion of pleadings.
6. That subsequently, the defendant was served with a motion to join Abex Trading Limited as plaintiff in this action, which was to come up for mention on the 29th day of January, 1996.
7. That Mr. Quasim Odunmbaku informed me and I verily believe him that on the 29th day of January, 1996, he was duly present at the Honourable Justice Aina’s court to oppose the motion on the instructions of the defendants herein.
8. That the said Mr. Quasim Odunmbaku informed me and I verily believe him that on the said date, the matter was not listed before the Honourable Justice Aina’s court, and as a result of the delay in the production of the official cause list for the week, he could not ascertain to which court the matter had been transferred on time.
9. That consequently, by the time he discovered that the matter was to come up before the Honourable Justice Belgore, the matter had infact been heard and the order for joinder made in chambers, as the court room was on that date used by the Honourable Justice Bello and the Honourable Justice Belgore had to sit in chambers.
10. That the defendants had every intention to oppose the application and had infact briefed counsel to oppose same.
11. That it is in the interest of justice that this application be granted and that the order for joinder made on the 29th of January” 1996 be set aside.”

There was a counter affidavit sworn to by one Bridget Gold in which she deposed, inter alia, as follows:

“3. I am informed by Chief E.O.A. Idowu and I verily believe him that prior to the filing of the motion, he had notified and discussed with Mr. Babajide Koku the issue of the joining of Abex Trading Limited as second plaintiff because they are the consignees of the damaged Gum Arabic. There were three discussions on the issue and the first of such discussion was in December at the National Judicial Institute Workshop for Judges. The other two occasions were in Lagos.

4. I am further informed by Chief E.O.A. ldowu and I verily believe him that Mr. Babajide Koku affirmed to Chief ldowu that Abex Trading Limited could be joined as second plaintiffs since the rules of court makes provisions for the amendment of particulars of claim and joinder of parties where the parties have the same interest.
5. I am further informed by Chief E.O.A. ldowu and I verily believe him that he relied on Mr. Babajide Koku’s seemingly positive indication that there would be nothing to gain by opposing such motion for joinder.
6. I am informed by Chief E.O.A. Idowu and I verily believe him that prior to the 29th of January, 1996, he had a telephone conversation with Mr. Babajide Koku wherein Mr. Koku was informed that as a result of the transfer of Dr. Justice Aina to Port-Harcourt the case had now been transferred to court no. 1.
7. That on the 29th of January, 1996, when the motion came before the court, I was informed by Chief E.O.A. ldowu and I verily believe him that he informed this honourable court that Mr. Babajide Koku was not opposing the motion, and he honestly and innocently and faithfully believed that, that was the understanding reached between the parties as a result of their various discussions.
8. That I was informed by Chief E.O.A. Idowu and I verily believe him that pleadings have not been ordered in this suit and the defendants are not in any way prejudiced by the order of the court of 29th January, 1996.
9. That I was informed by Chief E.O.A. Idowu and I verily believe him that the defendants tactics in indicating an intention to oppose the application is an effort to delay the timeous trial of this case.
10. That I was informed by Chief E.O.A. Idowu and I verify believe him that the joinder of Abex Trading Limited does not in any way affect the defendants case.
11. That I was informed by Chief E.O.A. Idowu and I verily believe him that the defendant, not having furnished any security or guarantee are interested in a prolonged trial. If the defendants application is granted it would entail getting a new date to move the motion for joinder, and with the attendant consequences, that the case will be delayed by at least another two to three months.
12. That I was informed by Chief E.O.A. Idowu and I verify believe him that in answer to paragraphs 7 and 8 of the defendants affidavit, the defendant’s counsel did not exercise sufficient diligence and skill on the 29th January 1996, because if he cared to check from the court list or from the registrar or at the registry, he would have been informed that the case had been transferred to court 1. The counsel ought to have known that his case was not in Dr. Justice Aina’s court, when he failed to see his clients name in the counsel signing register sheet which is available at every court in the Federal High Court. He did not make sufficient enquiry.
13. That I was informed by Chief E.O.A. Idowu and I verify believe him that the defendants’ counsel decided to oppose the motion because the first defendants are embittered that the motion was granted unopposed.”

It does not appear from the records before us that this motion was ever taken by the trial court. The defendants, however, with leave, appealed to the Court of Appeal against the order joining the 2nd plaintiff. And the motion to set aside the order was, by order of the Court of Appeal, made part of the record of appeal before that court.

The two appeals were by order of the Court of Appeal, consolidated. The parties filed and exchanged their respective written briefs of argument in respect of each appeal. And on 8th February, 2000, learned counsel for the parties proffered oral arguments.

In the lead judgment of Oguntade JCA (with which Galadima and Sanusi, JJ.CA agreed), the court found:

1. “With respect to the learned Chief Judge, I am satisfied that he was wrong in his conclusion that an action could be brought against a trade name. It is, I believe, a proposition that is as clear as daylight and now more or less immutable that only a juristic person can sue or be sued in court. There is a plethora of judicial authorities and I gratefully refer to those cited by appellants’ counsel- Abu v. Qgli (1995) 8 NWLR (Pt.413) 353 at 372, Peat Marwick, Ani Ogunde & Co. v. Okike (1995) 1 NWLR (Pt. 169) 71 at 72”
2. “On principle it seems to me that only the registered proprietor of a ‘Trade Mark’ can sue or be sued. See section of Trade Mark Act, Cap. 436, 1990, Laws of the Federation. The lower court should therefore have upheld the objection of the defendants.”
3. “The provisions of the above order (Order 32 of the Federal High Court Rules Cap. 134, 1990, Laws of the Federation) permit the trial Judge to make any amendment suo motu as he did on this occasion. I do not therefore see that it is open to the appellant to complain against the exercise by the trial Judge of his powers derived from under Order XXXII above. The trial Judge had obviously been swayed by the fact that the mistake made by the plaintiffs was innocuous and could be corrected without causing any injustice to the appellants. The argument that the lower court has no jurisdiction on the ground that the 1st appellant was not a juristic person overlooks the fact that even if the name of the 1st appellant was struck out of the suit, the suit would still remain properly constituted since the surviving 2nd defendant/appellant and the plaintiffs are juristic persons. This matter did not therefore raise the issue of jurisdiction at all. This appeal would have succeeded, had not the lower court exercised its undoubted powers under Order XXXII of the Federal High Court Rules.” (words in brackets are mine)
4. “Even if the argument of the appellants’ counsel is sound and cannot be assailed for the principle the argument projected, regret to observe that the argument did not have my evidential support. From the record of proceedings, there was nowhere where it was shown that the lower court sat in chambers when it heard arguments and made a ruling on the motion for rejoinder. The drawn up order before us which is all we have before us does not indicate that the order was made in chambers. Appellant’s counsel never sought leave and was not granted one to call further evidence on appeal. Nowhere is the evidence upon which to decide the propriety of the order supposedly in chambers. This issue must therefore be decided against the appellant.”

On these findings the Court of Appeal dismissed the appeals of the defendants who have now further appealed to this court.

Pursuant to the rules of this court the parties filed and exchanged their respective briefs of arguments and, at the oral hearing of the appeal, proffered arguments in expatiation of the submissions in their briefs.

The defendants raise the following three issues as calling for determination in this appeal, to wit:

“1. Whether the Court of Appeal, having held that the lower court ought to have upheld the objection of the appellants being a non juristic person lacks capacity to sue or be sued, was right to have further held that the provisions of Order 32 of the Federal High Court (Civil Procedure) Rules permits the court to make an amendment suo motu.

2. Whether upon a proper interpretation of the provisions of Order 32 of the Federal High Court (Civil Procedures) Rules, 1976, the provisions of the said order can be resorted to in justifying the amendment of a writ by substituting a juristic person for a non-juristic person improperly sued as a party to suit.
3. Whether evidence of the fact that the proceedings of the 29th January, 1996, wherein a motion on notice for joinder was heard and granted in chambers in the absence of the appellants and their counsel was not borne out by the record of appeal.”

The plaintiffs, for their part, formulate five issues, that is to say:

“(a) Whether the description of the appellants on the writ of summons was a mere misnomer. In other words, ‘was there a mistake in name, giving incorrect name to person in accusation, indictment, or a misdescription of an entity’

Alternatively,

(b) Whether the name MAERSK LINE has any relationship to any other entity different from the owner (i.e., DAMPKIBSSELABET AT 1912, AKTIESELSKAB AND AKTIESELSKABET DAMPSKIBSSELKABET) as supplied by the appellants.

(c) If the answer to (a) or (b) is in the affirmative, can a Judge of the Federal High Court by virtue of the power conferred on him cause the misnomer to be corrected by a ruling made suo muto to that effect

(d) Whether the grounds of appeal filed by the appellants are grounds of mixed law and facts If they are, whether the proper leave had been sought and been granted

(e) Whether issues for determination flowing from the grounds of appeal that had been struck out on 2/07/97 on grounds admitted by the appellants as being incompetent can become the subject matter for adjudication at the Court of Appeal and the Supreme Court without them having been resurrected”

Having regard to the judgment appealed against and the grounds of appeal, the issues as formulated by the defendants are to be preferred. Issues (d) and (c) in the plaintiffs’ brief do not arise out of any ground of appeal.

ISSUES 1 & 2

As these two issues relate to the propriety or otherwise of the exercise by the trial court, of the power of amendment given it by Order 32 of the Federal High Court (Civil Procedure) Rules, then in force, I consider it appropriate to take them together.

The defendants claimed that as MAERSK LINE is a trade mark, it is not a juristic person and was therefore, wrongly sued as 1st defendant in the suit. The plaintiffs did not deny that MAERSK LINE is a trade mark, but they contended that it was rightly sued as defendant. The learned trial Chief Judge defined what a trade mark is and went on to say that “with this definition I find it hard to accept that a trade mark is not a juristic entity.” He specifically found:

“I do not find that Maersk Line which the defendant used in Bill of Lading – exh. JO1 is not a juristic name or that it does in anyway cause a doubt to whom it refers to than the defendant.”

This finding, notwithstanding, the learned trial Chief Judge exercised suo motu the power to amend conferred on him by Order 32 of the Rules of Court. Order 32 provided:

“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”

In exercise of that power, he ordered –

“…the plaintiff to change the plaintiffs (sic) trade name to its real name.”

On appeal to the Court of Appeal, the defendants complained that that order was wrongly made in that it was not open to the court to substitute a juristic person for a non-juristic person. The Court of Appeal, per Oguntade, JCA, held, and quite rightly in my respectful view, that the trial court was wrong in its conclusion that an action could be brought against a trade name.

I pause here to observe that it was the learned trial Chief Judge that introduced trade name into the matter. The case of the defendants which the plaintiffs seemed to agree with, is that MAERSK LINE is a trade mark. Of course, if it is a trade mark, it cannot sue or be sued as it is not a juristic person. It is its proprietor that can sue or be sued.

The Court of Appeal, per Oguntade, JCA, after holding that in principle only the registered proprietor can sue or be sued, held that the trial court should, therefore, have upheld the objection of the defendants. Rather than stop there and strike out the name of the 1st defendant, the learned Justice of the Court of Appeal went on to consider the propriety or otherwise of the order of amendment made by the trial court. He held the view that the learned trial Chief Judge exercised the powers conferred on him by order 32 correctly and concluded that the appeal would have succeeded had not the lower court exercised its undoubted powers under order 32. This is what is now on attack in this appeal.

The argument of the defendants is to the effect that the Court of Appeal having held that the 1st appellant is not a juristic person ought to have struck out the name from the suit in that naming a non-juristc person as a party is not a misnomer and a writ cannot be amended to substitute a juristic person. Learned counsel for the defendants relies on the following cases in support of his submissions – Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. (1961) 1 All NLR 116; (1961) 2 SCNLR 317; Emecheta v. Ogueri (1996) 5 NWLR (Pt.447) 227 at 231; Manager SCOA Benin City v. Momodu (unreported) suit no. SC.23/1964. Learned counsel also argued that the learned trial Chief Judge was wrong to have made the order of amendment which was never asked for by any of the parties. In recognising the power of the court to amend proceedings suo motu learned counsel submitted that order 32 envisaged the elimination of statements which might tend to prejudice, embarrass or delay the fair trial of a suit uncontroversial defects and not fundamental issues affecting the rights of the parties.

It is learned counsel’s view that capacity is a fundamental issue and, therefore, the court should not have exercised suo motu its power under order 32.

That a trial court could, under order 32, make an order of amendment suo motu is supported by a number of authorities and is not in dispute in this case. What is in dispute is the circumstance under which the court would exercise that power suo motu. It is not in dispute that the order made by Belgore CJ was not asked for by either party. Was he right to have made the order suo motu The court below, unfortunately, did not advert its mind to the circumstances of the case. It merely concluded that as order 32 allowed the trial court to make an order of amendment suo motu, the order would not be disturbed.

I think the submission of learned counsel for the defendants that an amendment could not be made to substitute a juristic person for non-juristic person is untenable, In Olu of Warri v. Chief Sam Warri Esi & Anor. 3 FSC 94 at 96; (1958) SCNLR 384 where in circumstances not too dissimilar to the present case, the trial Judge had struck out the case on the defendants’ objection to the plaintiff being not a juristic person, the Federal Supreme Court (as this court was then known), on appeal to it, held, per Ademola FCJ (as he then was):

“When the objection was raised about a misnomer, he had the opportunity of asking the court for leave to amend, especially when the Judge ruled there was a misnomer.

The cases Establishment Baudelot v. R.S. Graham and Co. Ltd. (1953) 1 All E.R. 149 and Alexander Mountain and Co. v. Rumere Ltd. (1948) 2 All E.R. 483 cited by counsel are authorities to show that in a case of misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.”

In the often-quoted Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (supra) Dixon 1 who decided the case, recognized that if application had been made for an amendment (as it was a case of misnomer) it would have been granted. But in that case, as in the case on hand, the plaintiff maintained that the 1st defendant, as sued, was a legal entity. And so he struck out the case against that defendant having held that he was not a legal entity.

The case of Njemanze v. Shell BP, Portharcourt (1966) 1 ANLR 8 at 10-11 lays down the circumstances under which a court may grant an application for amendment in a case of misnomer. In that case the plaintiff had sued “The Shell BP Portharcourt”; counsel for the defendant objected that “there is no company known as Shell BP Port-harcourt”, counsel for plaintiff asked for leave to amend, but the Judge refused leave and struck out the claim. On appeal, this court held that the plaintiff had a duty to show that there were reasonable grounds of excuse in his naming the defendant wrongly and that the misnomer could not have given rise to any reasonable doubt as to which company was being sued, but he did not do so. Bairamian, JSC giving the reasons for the court’s decision dismissing the appeal said:

“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.23(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 plaintiffs 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….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.”

See also Ode & Ors. v. The Registered Trustees of the Diocese of Ibadan (1966) 1 ANLR 287 where the defendants having lost at the trial objected, on appeal, that the plaintiff’s had sued in the wrong name; the plaintiffs moved the Supreme Court to amend the title on the writ of summons with affidavits showing that the misnomer was due to a mistake on the part of their solicitor; and the defendants agreed that the amendment would not prejudice them. This court held that the misnomer was a bona fide mistake and could be corrected.

In Emecheta v. Ogueri (1996) 5 NWLR (Pt.447) 227 at 240. Rowland, JCA, delivering the lead judgment of the Court of Appeal, with which Katsina-Alu, JCA as he then was and Okezie JCA agreed, had stated:

“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 or be sued. In Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. & Ors. (1961) 1 All NLR 116; (1961) 2 SCNLR 317 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, SCOA Benin City v. Momodu (unreported) suit no. SC.23/1964 delivered on 17th November, 1964, it was held that a non-juristic person, cannot sue or be sued.”

Learned counsel for the defendants relied on this dictum in support of his submission that a juristic person cannot be substituted for a non-juristic person. With respect to learned counsel, I think he read the dictum out of con. For the learned Justice of the Court of Appeal had earlier observed:

“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. On the face of the record before the court below, the 3rd respondent is the assistant chief registrar, High Court, Aba.”

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.

The plaintiffs did not apply for amendment even after counsel for the defendants had raised objection to the 1st defendant being sued in the name of a trade mark.

Rather, in their counter affidavit they insisted that the 1st defendant was rightly sued. They did not admit there was a misnomer. It was in these circumstances that the learned trial Chief Judge, suo motu, made an order directing the plaintiffs to amend the name of the 1st defendant “to its real name”. And what that “real name” is does not appear in the ruling of the learned Chief Judge. I think this is a wrong exercise of the power, under order 32, to amend suo motu. The power to amend, like all other judicial powers, must be exercised judicially and judiciously. The power must not be exercised in vacuo but based on relevant materials placed before the court by the parties. In this case, the learned Chief Judge had ruled, though erroneously, that the 1st defendant was a juristic person. Why then the order to amend

True enough, order 32 empowers the trial court to order an amendment to be made of its own motion. This, however, is a power that is very rarely exercised. In this country, as in England, the function of a court in a civil case, is not inquisitorial – see Fallon v. Calvert (1960) 1 All E.R. 281 at 282, per Pearce, LJ. The court’s function is to act as a kind of umpire. And it is not the duty of the court to force upon the parties amendments for which they do not ask – see Cropper v. Smith (1884) 26 Ch. D 700 at 715, per Fry, L.J. When counsel for the defendants took objection to the joinder of 1st defendant on the ground that it is not a juristic person, it was open to counsel for the plaintiffs to apply for amendment, on the ground of misnomer. He did nothing of the sort. Rather he argued, and the learned Chief Judge agreed with him, that the 1st defendant was a juristic person. Clearly, this was a course of argument totally inconsistent with asking for amendment of the name of the 1st defendant.

What the learned Chief Judge, with respect to him, appeared to have done in this case was to force an order of amendment on the parties who did not ask for it. And the order is inconsistent with the learned Chief Judge’s finding that the 1st defendant was a juristic person. On the authorities, an order of amendment is not just made; reasonable excuse must be given by the offending party why the error was made in the first instance. No such excuse was given in this case and could not have been given having regard to the stance of the plaintiffs.

It is instructive to observe that rather than the plaintiffs applying to amend the name of the 1st defendant, they applied to join 3 other defendants namely, The owners of the vessel “Christian Maersk”; “The master of the vessel “Christian Maersk” and Dampskibsseisskabet at 1912 etc. Curiously, the learned Chief Judge dismissed the application on the ground that –

“Here in this case, there is no misconception as to the identity of the defendant. The name whether trade name or actual name was used and from the beginning of the transaction and action the identity of the defendant was known. I do not think the cases cited fall in all fours with the present case.”

The refusal of this application appears to me to be in contradiction of the order to amend that he made on his own motion, and not on the application of either party.

If their Lordships of the court below had properly adverted their minds to the circumstances of the case highlighted above they would not have affirmed the order of amendment on the ground solely that order 32 empowered the Chief Judge to suo motu make the order. I, therefore, resolve issues 1 and 2 in favour of the defendants.

Issue 3

The complaint of the defendants here is that the 1st plaintiff’s application to join the 2nd plaintiff was taken in chambers thus rendering the proceedings null and void. There is nothing in the rules of the Federal High Court permitting it to take such an application in chambers. The court below in dismissing a similar complaint made before it said, per Oguntade JCA:

“Even if the argument of the appellants’ counsel is sound and cannot be assailed for the principle the argument projected, I regret to observe that the argument did not have any evidential support. From the record of proceedings, there was nowhere it was shown that the lower court sat in chambers when it heard arguments and made a ruling on the motion for joinder. The drawn up order before us which is all we have before us does not indicate that the order was made in chambers. Appellant’s counsel never sought leave and was not granted one to call further evidence on appeal. So where is the evidence upon which to decide the propriety of the order supposedly made in chambers, this issue must therefore be decided against the appellant.”

I think their Lordships of the court below, with respect to them, were being unduly technical in their approach. It was with the leave of their Lordships given on 14th April, 1999 (see page 259 of the record) that the defendants’ motion on notice dated 30th January, 1996 and the affidavit in support were made part of the record of appeal before the court below. I have already in this judgment set out the penultimate paragraphs of the said affidavit. But for ease of reference I quote below paragraph 9 once again. It reads:

“9. That consequently, by the time he discovered that the matter was to come up before the Honourable Justice Belgore, the matter had infact been heard and the order for joinder made in chambers, as the court room was on that date used by the Honourable Justice Bello and the Honourable Justice Belgore had to sit in chambers.”

The plaintiffs did not controvert the above averment nor even react to it in any way. That is not all. In the appellant’s brief of argument filed in the court below, the following appears (see page 119 of the record):

“The 1st respondent by its particulars of claim dated 21st of September, 1995 commenced the present action against the appellants. The 1st respondent, the shipper on the 2nd of January, 1996, filed an application seeking an order amending the particulars of claim to include Abex Trading Company Limited the consignee as co-plaintiff. This application was granted in chambers on the 29th day of September, (sic) 1996.” (Italics mine)

There was no reaction to this either by the plaintiffs in their respondents’ brief.

Again, the defendants filed a motion in the court below, dated 26th February, 1998, praying that court for orders for extension of time within which to seek leave to appeal against the decision of the Federal High Court Lagos (No.1) delivered on the 29th of January, 1996, leave to appeal, extension of time to appeal against the said decision and an order consolidating the appeal with appeal no. CA/L/342/96 (see pages 141-143 of the record). Paragraph 3(a) of the affidavit in support of the motion reads:

“3. That I am informed by Babajide Koku Esq. of counsel and I verily believe the same to be true as follows:-

(a) that the Federal High Court No.1, Lagos, per Belgore, FCJ (sic) delivered a ruling granting an amendment of the plaintiff’s originating processes in chambers on the 29th January, 1996, by adding and/or joining additional parties to the suit without recourse to the defendant/appellants. (italics mine)

The plaintiffs did not at any time controvert the allegation in all these documents that the proceedings of 29th January, 1996 in the Federal High Court were taken in chambers. That allegation being of fact, must be taken as undisputed – see First African Trust Bank Ltd. & Anor. v. Basil O. Ezegbu & Anor. (1994) 9 NWLR (Pt.367) 149; Okangwu v. NNPC (1989) 4 NWLR (Pt.115) 309, per Nnaemeka-Agu JSC – “For every material point canvassed in an appellant’s brief which is not countered in the respondent’s is deemed to have been conceded to the appellant.”That the proceedings of 29th January, 1996 were taken in chambers is a material fact upon which the success of the appeal against the decision taken that day is hinged. That fact was averred in an affidavit before the trial court and in another affidavit filed in the court below. The allegation was also made in the defendants’ appellants’ brief. The plaintiffs did not controvert the allegation. The allegation must be deemed to have been accepted by them as correct. What further evidential support is the court below looking for

I pause here to observe that in their brief in this court, the, plaintiffs at page 17 submitted:

“(4) There is no proof that the joinder of the 2nd respondent was done in chambers or done surreptitiously or clandestinely as obliquely or discreetly insinuated by the appellants. There is no rule that forbids an interlocutory application of this nature being heard in chambers, assuming for the sake of argument that the matter was heard in chambers.”

Even at this later stage, the plaintiffs still did not controvert the fact alleged by the defendants that the proceedings of 29th January, 1996 were in chambers. That must be because they knew that the said proceedings were in fact, and in truth, taken in chambers. I think on the materials before it the court below ought to have proceeded on the basis that the proceedings for 29th January, 1996 were taken in chambers. And that being so, the proceedings were clearly invalid. The order made thereat is equally null and void Nigeria Arab Bank Ltd. v. Barri Engineering Nigeria Ltd (1995) 8 NWLR (Pt.413) 257.

I resolve issue 3 in favour of the defendants. All the issues canvassed in this appeal, having been resolved in favour of the defendants, their appeal succeeds and it is hereby allowed by me. I set aside the decisions of the Court of Appeal given in this matter on 20th April, 2000 and of the Federal High Court (Court No.1) given on 29th January, 1996 joining the 2nd plaintiff in this suit and on 27th September, 1996 amending the name of the 1st defendant to its “real name”. I substitute thereof orders striking out the name of the 1st defendant and that of the 2nd plaintiff, from the suit.

I award N10,000.00 costs of this appeal to the defendants to be paid by the 1st plaintiff.

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SC.248/2000