Maersk Line V. Addide Investment Limited (2002)

LAWGLOBAL HUB Lead Judgment Report

M. E. OGUNDARE, JSC. 

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 “CHRITIAN 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:- PAGE| 2 “4. That Maersk Line is not a juristic entity but a trade mark. 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 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 Svendorg which is the owner of the trade mark 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 in fact 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 TA1. 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. XXXXXXXXXXXXXXXXXXX 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 TA1. 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 PAGE| 3 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 Plaintiffs 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 T.A.l. 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 unti1 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 has 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 T.A.2). 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. J01, 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.” PAGE| 3 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 Plaintiffs (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 good for an action to be brought. To join the demise charterers at this late 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 shipowners 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 verily 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 LINLE 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. PAGE| 4 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 Odunmbako 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 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 informs 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 informs 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 in fact 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 in fact 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. 1 am informed by Chief E. O. A. Idown 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 Plaintiffs 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. Idowu and I verily believe him that Mr. Babajide Koku affirmed to Chief Idowu 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. Idowu 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. Idown 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 am 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. PAGE| 5 8. That I was informed by Chief E.O.A. ldowu 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 January1996. 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. Idown and I verily 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 verily 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 verily believe him that the defendants Counsel decides 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 brief 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) 358 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.636, 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 any 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.” PAGE| 6 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 AF 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?

SC. 248/2000