Pfizer Incorporated & Anor V. Professor Idris Mohammed (2006)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
By the civil Summons dated the 11th April, 2008 and the statement of Claim dated 16th April, 2008, the Respondent commenced a civil proceeding against the Appellants and sought for the following reliefs:
“1. An order of injunction directing the Defendants to expunge the offending paragraphs from the purported Statement of Defence.
- An order of this Honourable court directing the Defendants to remove forthwith from their website and any other form of electronic medium the offending paragraphs contained in their purported Statement of Defence.
- An order of this Honourable court directing the Defendants to offer an unreserved apology to the Plaintiff and publish same on their website and in at lease two major Nigerian Newspapers with nationwide circulation.
- $100,000,000.00 (One Hundred Million United States Dollars Only) damages including aggravated damages for libel transmitted to the whole world on http: // www. pfizer. com/files/news/trovan litigation defense.pdf, the defendants’ website accessible on the World Wide Web.
- $20,000,000.00 (Twenty Million United States Dollars Only) exemplary damages.
- The cost of filing this action.
- Legal fees and expenses.”
Then, by a Motion on Notice dated the 18th June, 2008, the Respondent prayed the lower Court for an order granting him leave to amend the Writ of Summons and the Statement of Claim and all other processes by substituting the name of “Pfizer Global pharmaceuticals” sued as the 2nd Defendant with the name “Pfizer Nigeria Limited,” and, for an order granting leave to the Plaintiff to file and serve the amended processes on the Defendants. The motion was supported by the averments contained in an affidavit of four paragraphs deposed to by one Peter Friday, the litigation Secretary in the Law Firm of Dikko & Mahmoud, the Plaintiff’s Counsel. The thrust of the application as portrayed at paragraph 3 sub-paragraphs (c) and (d) of the said affidavit is that the name of the 2nd Defendant was wrongly stated as ‘Pfizer Global Pharmaceuticals’ instead of its correct legally incorporated name of ‘Pfizer Nigeria Limited’. It was further explained that the error on the part of the plaintiff arose from the publications of the 2nd Defendant wherein the 2nd Defendant used the name ‘Pfizer Global Pharmaceuticals ‘to describe itself. A copy of such publications was attached as Exhibit PIM 1″ to the said affidavit.
The Appellants challenged the said application, by filing a counter-affidavit of three paragraphs dated 9/7/08 and sworn to by one Ignatius Anowu, a Litigation Officer in the Chambers of Punuka Attorneys and solicitors, counsel for the Appellants. The said Motion on Notice was heard by the Lower Court on 10/7/08, and, on 14/7/08, the lower court delivered its Ruling granting the prayers sought by the Respondent, despite the Appellants’ grounds of objection. The Appellants were piqued by the ruling that they proceeded to file this appeal which is pivoted on four grounds of appeal’ Then, upon the compilation and transmission of the record of appeal in this appeal to this court, and, service of the same on the parties, they respectively filed their Briefs of Arguments. Bizarrely, the Appellants, filed a Notice of preliminary objection to the Respondent’s Brief of Argument.
However, with judicious application of knowledge, the said Preliminary objection together with the arguments tendered in that respect at pages 1-8 of the Appellants’ Reply Brief were all withdrawn by the Appellants’ Counsel on 5/12/12 at the hearing of this appeal. Also, withdrawn was the Respondent’s unconventional Reply to the Appellants’ Notice of Preliminary Objection. Consequent upon the applications for withdrawal, they were all struck out. Three issues were excogitated by the Appellants for the determination of this Court in their Appellants’ brief of Argument. They read thus:
“1. Whether the learned trial judge was right when he placed upon the Defendants/Appellants the burden of proof to provide sufficient facts and materials to describe the name of the party whom the Plaintiff/Respondent proposed to sue.
- Whether the Appellants misled the Respondent to bring action against “Pfizer Global Pharmaceuticals” or whether in any other way the Respondent fulfilled the conditions for the substitution of names as ordered.
- Whether in the circumstances of this case the learned trial Judge was right when he granted the application to substitute “Pfizer Nigeria Limited” (a non- juristic person) for another non-juristic person “Pfizer Global Pharmaceuticals”.
The Respondent equally raised three issues for consideration in this appeal. They are as follows:
“i. Whether the intended 2nd Defendant was misled by being sued in the name of Pfizer Global Pharmaceuticals, a name, which its Directors had used to describe it, whose address was given as the correct address of the intended 2nd Defendant.
ii. Whether a Defendant appearing in court in protest for being sued by the wrong name was not duty bound to disclose its real identity.
iii. Whether in the circumstances of this case, the learned trial Judge was right when he’ granted the application to substitute Pfizer Nigeria Limited for the name in which the 2nd Defendant was sued as Pfizer Global Pharmaceuticals.”
It was contended on behalf of the Appellant that by the provisions of section 36(6) of the companies and Allied Matters Act (“CAMA”), the burden is on the Respondent in this appeal to prove that “Pfizer Nigeria Limited” is a corporate entity that can be sued. In the Appellants’ Brief of Argument prepared by Chief Anthony Idigbe, S.A.N., but adopted before this court at the hearing of the appeal by Nelson Uzuegbu Esq. appearing with Mrs. Ebele Enedah; it was argued that the Respondent is obligated in law to produce the certificate of Incorporation of “Pfizer Nigeria Limited” to establish that it is a juristic person’ He relied on the decisions in Emenite Ltd vs. Oleka (2005) 6 NWLR Part 921 page 350 at 352; and, ACB Plc vs. Emostrade (2002) 8 NWLR Part 770 page 501 at 504 in support. Learned Senior Counsel, also, quoted the provisions of sections 135(1) and 13G of the Evidence Act, and, the case of Akinyele vs. Afribank Plc (2005) L7 NWLR Part 955 page 504 at 506 which clearly entrenched the principle that he who asserts the existence of a fact must prove the same. The Learned Senior counsel pointed out that the Respondent did not produce the certificate of Incorporation, rather, he presented a document, i.e., the Letterhead with the inscription “Pfizer Global Pharmaceuticals”, the name which the Respondent himself found to be a non-juristic person. Learned Senior counsel further made reference to Nduka vs. Ezenwaku (2001) 4 NWLR Part 709 page 494 at 498, Duru vs. Nwosu (1989) 4 NWLR Part 113 page 24 and Oyewole vs. Oyekola (1999) 7 NWLR Part 612 page 560 at 565 and further stressed that where the juristic status of a defendant company is put in issue, the Plaintiff has the burden of proving the existence or the legal personality of such company’ He submitted that the Respondent did not take any steps to produce the Certificate of Incorporation of “Pfizer Nigeria Limited”, rather, he argued that the Appellants should have given him the correct description of the name of the company he intends to commence an action against in court whereas the documents in his possession particularly, Exhibit PIM 1 clearly showed that the true and legal name of the registered company is “Pfizer Specialties Limited.” He submitted that the Respondent failed to prove the necessary pre-condition for the sustenance of his suit, and that the trial court erred in law when it shifted the burden of proof on the Appellants.
With regard to issue No.2, learned Senior counsel for the Appellants submitted that the decision of the trial Court acceding to the claim of the Respondent that the mistake was a misnomer occasioned by misdescription by the Appellant of itself, conflicts with the decision of the supreme court in Njemanze vs. shell B.P. Port Harcourt (1966) ALL NLR. 11; where the Supreme court held that “the Plaintiff has a duty to show that there are reasonable grounds of excuse in naming the defendant wrongly, and, that the misnomer could not have given rise to any reasonable doubt as to which company is being sued’ but he did not do so. He stated that a close examination of the three names; “Pfizer Global pharmaceuticals”, “Pfizer specialties Limited” and the unregistered name “Pfizer Nigeria Ltd”, shows there is no correlation between the names. He contended that there is clearly a mistake as to who the Respondent had intended to sue, i.e., the identity of the party but, not a mistake as to name as claimed by the Respondent. He argued that the Respondent has not given reasonable excuse as to why the error in suing “Pfizer Global Pharmaceuticals.” He further referred to Dennis Njemanze vs. shell P.B Port Harcourt (supra) and submitted that the said Exhibit PIM 1 clearly has the registered name of the Company as “Pfizer Specialties Ltd” with Reg. No.234198. He asserted that Exhibit PIM 1 was never addressed to the Respondent, and that the 1st Appellant was not under a duty to disclose the name of its Nigerian Subsidiary to the Respondent. Counsel argued that the Respondent was not diligent, otherwise, he would have ascertained the intended 2nd Defendant’s Registered name through its signboard at its place of business or from the Corporate Affairs Commission. He equally, referred to the case of Maersk Line & Anor vs. Addide Investments Ltd & anor (2002) 11 NWLR Part 778 page 317 where the Supreme Court stated that ‘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 place. He submitted that failure of the Respondent to give reasonable excuse as to why the amendment should be allowed is a fundamental flaw having failed to fulfil a condition precedent for an amendment. He then urged that issue No.2 be resolved in favour of the Appellants.
On issue No.3, the Learned Senior Counsel relied on the cases of Agbonmagbe Bank vs. General Manager, G. B. Ollivant (1961) 1 ALL NLR 116; and Hilflow Farm Ltd vs. Unibadan (1993) 4 NWLR Part 290 page 719 and submitted that an action cannot be maintained against a non-juristic person. He argued that it is only a natural person’ that is’ human beings and juristic persons or artificial persons such as bodies corporate that are competent to sue or be sued, therefore, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. He submitted that no Court has the jurisdiction to entertain a suit in which the Plaintiff or Defendant is not a legal juristic person. Also, non-juristic person cannot sue or be sued in a Court of law. He cited Atagbu & Co vs. Gura Nig (2005) 8 NWLR Part 927 page 429; Registered Trustees of P.A.W.A. vs. Registered Trustees of APCC (2003) FWLR part 150 page 1795; Fagbora vs. Titilayo Plastic Industries Limited (2005) 2 NWLR Part 909 page 1, Emecheta vs. Ogueri (1995) 5 NWLR Part 447 (page omitted); ACB Plc vs. Emostrade Ltd (2002) 8 NWLR part 770 page 518-519 and Maersk Line vs. Addide (supra) where it was held that a material error in the name of a party to a suit is fundamental and cannot be readily cured by the Court, and that naming a non-juristic person as a defendant is a misnomer that cannot be amended to substitute a juristic person. He argued that in the instant case a non-juristic person is being sought to be substituted for another non-juristic person. He then urged that this appeal be allowed.
Submitting in respect of issue No.1 presented by the Respondent’ the learned Senior Counsel for the Respondent, A. B. Mahmoud S.A.N., in the Respondent’s Brief adopted by Oseni Sejillahi Esq, during the
hearing of the appeal, contended that the intended 2nd Defendant, “Pfizer Specialties Limited” of Adebola House, 38 Opebi Road, Ikeja, Nigeria described itself as “Pfizer Global pharmaceuticals” in a correspondence emanating from the company signed by it’s Marketing Director. They did not deny that Exhibit PIM 1 at page 167 of the record emanated from them. He stated that no other person in the whole world unrelated to the 1st Appellant bears the name “Pfizer”. He submitted that wrong description is a misnomer and a mistake occasioned partly by mis-description by the 2nd Appellant of itself. Learned Senior Counsel acknowledged that the correct name of the 2nd Defendant as stated in Exhibit PIM 1 is “Pfizer Specialties Limited.” It was in small prints that was why attention was not drawn to it at all. It was written in tiny prints under the heading ‘Board of Directors,’ which made them to assume that everything printed thereunder had to do with the names of Board of Directors of Pfizer Global Pharmaceuticals. He stressed that the Learned Senior Counsel for the Appellants knew the correct name of his clients, he knew that the processes were correctly served at the Corporate Headquarters of the Nigerian Subsidiary of the 1st Appellant, he chose not to disclose the true name of the intended 2nd Defendant, even when counsel for the Respondent had urged him to do so. He argued that no burden was placed by the trial court on the Appellants’ counsel beyond what the law required of him in the circumstance. He submitted that the issue now is not whether the 2nd Appellant was an incorporated entity, but, whether the intended 2nd Defendant was in court. He explained that the Plaintiff intended to sue “Pfizer Specialties Limited” but, rather brought the action in the name of “Pfizer Global Pharmaceuticals”, a name that the 2nd Defendant had used to described itself. When Counsel wanted to amend the name to “Pfizer Nigeria Limited”, the 2nd Appellants’ counsel objected on the ground that it was not the correct name of the intended 2io Defendant, but, he failed to disclose the correct registered name of the intended 2nd Defendant on whose behalf he was raising the objection. He knew that the correct name appeared in small prints on a document before the court. The Learned Senior counsel further submitted that it is not the existence of the 2nd Defendant that was is issue, rather it was the wrong description given to the intended 2nd Defendant that has nothing to do with its existence. He then submitted that the cases of Akinyele vs. Afribank Plc (2005) 17 NWLR Part 955 page 504 at 506, Emenite Ltd vs. Oleka (2005) 6 NWLR Part 770 page 501 at 504, Nduka vs. Ezenwaku (2001) 3 NWLR Part 709 page 494 at 498 and Oyewole vs. Oyekola (1997) 7 NWLR Part 612 page 556 at 565 cited by the Appellants’ counsel are irrelevant and inapplicable to this situation.
With regard to issue No.2, Learned senior counsel contended that the decision in Dennis Njemanze vs. Shell BP. Port Harcourt (1966) ALL NLR page 8 supported the Respondent’s case. He remarked that the reason for naming the 2nd Defendant wrongly was adequately explained, that Pfizer as a Brand name can only describe the 1st Defendant’s affiliates, and thirdly, service was correctly effected at the business premises of the intended 2nd Defendant, and that the 1st Defendant was under no mistake as to who the intended 2nd Defendant was. The learned Senior Counsel referred to the remarks of Bairamian, J.S.C at p.11 of Njemanze’. Case and stated that the counsel appeared for the ‘Company objecting,’ and he refused to give the real name of the Company or even draw the attention of the Court to the fact that the correct name was stated in small prints on a document exhibited by the Respondent. He submitted that it is immaterial that the Plaintiff’s Counsel got the correct name of the 2nd Defendant wrong for the second time. He made reference to Maersk Line vs. Addide Investments Ltd (2002) 11 NWLR part 778 page 317 and stated that the issue of misnomer defined as ‘wrong use of name’ is all about mistake as to the name of a party and not mistake about identity. In Maersk Line’s case, it was stated that such a mistake can be corrected by an amendment, although the Applicant has a duty to show that there are reasonable grounds of excuse in naming the defendant wrongly, provided that the person misnamed and intended to be used is a juristic person and is in existence.
On issue No. 3, it was argued that the issue at stake has nothing to do with jurisdiction of the Court to entertain the action. He submitted that the legal personality of the 1st Appellant, the parent Company of the intended 2nd Defendant is not in doubt. It is correctly named and sued, and the action can be maintained in the name of the 1st Appellant only. He stressed that the misnaming of the 2nd Defendant cannot defeat the action or affect the jurisdiction of the court. The Learned Senior Counsel argued that the identity of the intended 2nd Defendant and its place of business are well known and the processes were all served at the correct addresses. He submitted that misnaming of a party in a court cannot affect the jurisdiction of the court, and that under the Rules, the Court has jurisdiction to correct such mistakes suo motu. He said that the intended 2nd Defendant is the Nigerian Subsidiary of the 1st Appellant which resides at and carries on business at Adebola House, No.38 Opebi Road, Ikeja, Lagos. Counsel further stressed that the learned senior counsel for the 2nd Appellant refused before the lower to disclose the real name or identity of the intended 2nd Defendant even when asked to do so by the lower Court’ As a result of his failure, leave was granted to the Respondent to amend the name to read ‘Pfizer Nigeria Limited,’ The learned Senior Counsel stated that since the learned Senior counsel for the Appellants has admitted the correct name of the 2nd Appellant to be “Pfizer specialties Limited” with Registration No.234198, this court can exercise its powers under section 16 of the court of Appeal Act and substitute the name or refer the matter back to the court below to do so. He cited Lagga vs. Sarhuna (2008) LPELR-SC.133/2002 in support’ He emphasized that there is no doubt about the intended 2nd Defendant, it is the 1st Defendant’s Nigerian subsidiary. He reiterated that there is only one company called “Pfizer” worldwide and, it has just one Nigerian Subsidiary carrying on business at No.38 Opebi Road Ikeja, Lagos Nigeria. He therefore urged that this appeal be dismissed.
The Appellants filed a Reply Brief. The Learned senior counsel reiterated his arguments and some of the cases already cited in the Appellants, main Brief. The cases cited are: Fagbola vs. Titilayo Plastics Industry Limited (supra); Maersk vs. Addide (supra); Maersk Line vs. Addide Investment Ltd (2002) 11 NWLR Part 778 page317; Kayode vs. State (2008) 1 NWLR Part 1068 page 28; Daggash vs. Bulama (2004) 14 NWLR Part 892 page 144; Bamaiyi vs. State (2001) 8 NWLR Part 715 page 270; Emespo J. cont. Ltd vs. Corona s. & Co. (2005) 11 NWLR Part 991 page 355 S.C.; Fagbola vs. Titilayo Plastic Industries Limited (2005) 2 NWLR Part 909 Page 1 C.A.;
The persuation by the Respondent’s Senior Counsel that this Court should invoke its powers under section 16 of the Court of Appeal Act was vigorously attacked by the Appellants’ Senior counsel. He contended that the power under section 16 of Court of Appeal Act, is not unlimited, that an appellate court cannot grant a relief which was not sought at the trial court. He cited the cases of Ordia vs. Piedmonth (1995) 2 NWLR Part 379 page 515, Grauba vs. Kanoh Investments Co. Ltd (2005) ALL FWLR Part 252 page 459. Counsel highlighted that what the Respondent merely sought for at the trial court was an order for substitution of a non-juristic person. He further stressed that this appeal is an interlocutory one emanating from the Appellants Preliminary Objection, therefore, Order 1 Rule 20 (5) of the Rules of the court and section 1o of the court of Appeal Act cannot avail the Respondent. He cited the cases of Ajao vs. Sonola & anor (1973) 5 SC 119, 123; Magbagbeola vs. Sanni (2005) 11 NWLR Part 936 page 239; Bank of Baroda vs. Iyalabani (2002) 13 NWLR Part 785 page 551. He further referred to Ibrahim vs. Osunde (2009) 6 NWLR Part 1137 page 382 at 386; Vinz International (Nig) Limited vs. Morohundiya (2009) 11 NWLR Part 1153 page 562 at 559 where the Maxim “Nullus Commodum capere potest de injuria sua propria” i’e’ “no one shall take advantage of his own wrong” was adopted and endorsed by the apex Court and this Court, and, then submitted that the Respondent cannot be allowed to take advantage of his mistake in naming a non juristic entity in a suit.
The Learned Senior Counsel further emphasized that the Respondent did not file a cross-Appeal or a Respondent’s Notice, therefore, he cannot ask for a variation of the relief which he got from the trial court
and which the Appellants appealed against. By his persuation pursuant to section 16 of the Court of Appeal Act, he is asking for a further amendment. counsel made reference to Lagos City Council vs. Ajayi (1970) IAU NWLR 291; per Coker J.S.C.; Williams vs. Daily Times (1990) 1 NWLR Part 124 page 1 at 55; Zimit vs. Mohmoud (1993) 1 NWLR Part 267 page 71 at 81, and submitted that if the Respondent is asking for variation, he needs to file a Respondent’s Notice.
The Learned Senior Counsel further argued that issues raised by the Respondent are not derived from the grounds of appeal’ therefore’ they do not qualify as issues in this appeal. He relied on Layinka vs. Attorney General, Kwara State (2005) ALL FWLR Part 265 page 1125 at 1135 paragraph E-E, where the word “issue” for the purpose of an appeal is defined. He further urged that this appeal be allowed.
I have meticulously examined the three issues presented for the determination of this Court by the Appellants. They seem jointly connected and can conveniently be considered together. In any case, I think it appropriate to determine them as formulated by the Appellants. In Commerce Assurance Limited vs. Alhaji Buraimoh Ali (1992) NWLR Part 232 page 710, it was stated by Nnaemeka- Agu, J.S.C, that where an amendment sought relates to a mere misnomer, it will be granted almost as a matter of course. It is trite that misnomer arises when the proper party is incorrectly named and not when there is mistake in a party’s identity. Thus, one defendant cannot be substituted for another under the guise of misnomer. A misnomer can be corrected by amendment.
As rightly pointed out by the Appellants’, Senior Counsel, he, who asserts must prove. It behoves the Plaintiff and his Counsel to supply the accurate name of the party or corporation the plaintiff intends to sue or feels he has a right of relief against. This explains why the Supreme Court in Njemanze vs. Shell BP’ Port Harcourt (supra) stated inter-alia that that case illustrates the need for care in bringing an action. The apex court further opined:
“It is common knowledge, or ought to be, that a company is registered under the Companies Act and has a registered name: S.18(2). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to Section 65(1); and it can be ascertained under S.231(5) of the companies Act from the Registrar. There is little excuse, if any, for a plaintiff who sues for wrongful dismissal not suing the company by its registered name.
….In the present case the plaintiff rushed to sue. Apparently it did not occur to his solicitor that there was anything wrong in suing the company merely as Shell BP; he did not look up the law before or after suing. Even after he appealed, it did not occur to his solicitor to look up cases in the White Book for guidance on how to go about the matter on appeal: he did not prepare an affidavit to explain how the mistake arose and state the registered name of the company which had been his employer and which he wished to sue; he did not give notice that he would apply for leave to put in an affidavit and also for leave to amend his second ground of appeal which was apparently drawn up in haste; and when the appeal came up for hearing, his learned counsel was content to argue it without citing any authorities on the practice of the courts and without any evidence of the facts he wished to rely upon. It was not enough to complain of the trial judge’s refusal to amend: it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name of Shell BP could not have given rise to any reasonable doubt as to which company was being sued. An amendment of the title of an action cannot be had merely for the asking, and an appeal needs preparation. None was made either on the law or on the facts and, as no case was presented to show that an amendment ought to be allowed, the appeal was dismissed.”
Further in Ibrahim vs. The Chairman, Kachia Local Government (1998) 4 NWLR Part 545 page 438 Ogebe, J.C.A. (as he then was) said that if a party chooses to consult a Counsel who cannot make that simple distinction and sue the proper party he cannot turn round and easily wriggle out of the blunder of his Counsel.
There is clear illustration in Njemanze’s case that the Plaintiff’s Counsel is under onerous duty to ascertain the registered name of the Company or corporation he wishes to initiate proceedings against. The summation of the remarks of Bairamian, J.S.C., is that the Plaintiff’s counsel needs to be diligent and thorough in his search for the registered name of the company he wants to sue. Certainly, it is not the duty of the Defendant’s Counsel to furnish or supply the Plaintiff with the registered name of the Defendant Company, although, as Bairamian, J.S.C., still observed, there is need for the defendant’s Counsel to state the name of the Company he is appearing for, and where he fails to do so, he ought to have been asked to give it and it will be noted by the Judge. Whatever be the case, I am of the opinion that the Learned Senior Counsel for the Appellants ought not to have been blamed at all by the trial court. Exhibit PIM 1 was there for the Respondent’s Counsel, to scrutinize. He should have microscopically examined it to ascertain the minutest or tiniest print thereon. It ought to have occurred to the Respondent’s Counsel that since the name “Pfizer Global Pharmaceuticals” does not have the word “Limited” or Inc. added at the end of it, thorough search should have been conducted at the Corporate Affairs Commission since it was difficult for him to discern the registered name from Exhibit PIM 1. The Registered name “Pfizer Specialties Limited” has all along been with the Plaintiff’s Counsel and even before the Court via Exhibit PIM 1. It appears that discerning and piercing eyes were needed for it to have been shifted from the tiny prints at the bottom of the said Exhibit under the subhead; ‘Board of Directors.’ The trial court ought not to have hinged its posture on the seeming failure of the Appellants’ counsel to disclose the real name of the Appellant. Suppose, the Appellants’ counsel really failed to disclose the name of the intended 2nd Defendant, the question is; were the feet of the Respondent or his counsel stuck to the ground that they could not move or drive to the corporate Affairs commission or the registered address of Pfizer subsidiary in Nigeria at Adebola House, 38 Opebi Road, Ikeja, Lagos to look at it’s signboard to ascertain it’s correct registered name? With due respect, I do not share the views expressed by the lower Court on this point. The Appellants’ Counsel should not have been vilified for any failure on the part of the Respondent’s counsel to conduct proper search to ascertain the correct name of the intended 2nd Defendant, moreso where the material from which that could have been deciphered was before the court. I, therefore resolve issue No.1, in favour of the Appellants.
Dealing now with issue No. 2 as formulated by the Appellants’ Senior counsel, I would turn to the decision in Maersk Line vs. Addide Investment Ltd & anor (supra), where Ogundare, J.S.C., stated that:
“The case of Njemanze vs. Shell BP, Port Harcourt (1965) 1 ALL NLR page 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 Port Harcourt”; 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.”
The fundamental requirement in cases such as this, is that when there is a misnomer, an affidavit should be filed showing that there are reasonable grounds of excuse in the Plaintiff naming the defendant wrongly. In Obe & ors vs. The Registered Trustees of the Diocese of Ibadan (1966) ALL NLR page 285 the defendants who lost at the trial objected on appeal that the Plaintiffs had sued in the wrong name, the plaintiffs then 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. The Supreme Court held that the misnomer was a bona fide mistake and could be corrected. Also, in Njemanze’s case, the apex Court clearly voiced its frustration at the lack of an affidavit evidence showing reasonable excuse as to why the misdescription of the Defendant occurred. From every indication, the apex Court treated that case as that of misnomer and would have been prepared to allow the amendment had their been reasonable or fair and sensible reasons in the form of an affidavit placed before the Lower Court showing why it wrongly named the Defendant.
I must observe that on the facts before this Court, via the record of appeal, I have no iota of doubt that this is a clear case of misdescription of the intended 2nd Defendant, the Respondent wanted to sue. By the contents of Exhibit PIM 1, there is no doubt about the identity of the intended 2nd Defendant. It was “Pfizer specialties Limited” as a legal entity that is carrying out activities through “Pfizer Global Pharmaceuticals” an unregistered name. Pfizer is a going concern in Nigeria, and, there is only one Pfizer Inc.’s subsidiary in Nigeria. The identity of Pfizer is well known to the 1st Appellant, the parent company of all the Pfizer subsidiaries in the world. As the Respondent rightly stated, there is only one “Pfizer” in the whole world. I must add that the only name close to it, is that of an American Professional basketball player, Darnell Marcus Lamar Fizer. The spelling of his own “Fizer” and that of the Appellants, brand name are totally different, that one cannot mistake one for the other. The moment one sees or hears the name ‘Pfizer’ with the aforestated spelling, the person’s mind would immediately gravitate to this American Multinational Pharmaceutical Corporation. It is a leading Pharmaceutical Company operating in several countries in the world. There is only one ‘Pfizer’, therefore, any wrong description of it with its’ brand name “Pfizer” still inclusive, may be treated as a misnomer, that is correctable. All that the Plaintiff needs to do is to file an application for amendment of the name with an affidavit showing reasonable or fair and sensible reasons or explanation why the error was committed i.e., giving a wrong name to an identified entity.
In the instant appeal, there was an application for amendment of the 2nd Appellants’ name from “Pfizer Global Pharmaceuticals” to “Pfizer Nigeria Limited”. It was averred in the affidavit supporting the application that the name “Pfizer” has become an international brand name known and associated only with the 1st Defendant and its subsidiaries worldwide. It was explained that the error arose from the publications of the 2nd Defendant which showed that the 2nd Defendant had used the name “Pfizer Global Pharmaceuticals” to described itself. To buttress this, Exhibit PIM l was attached to the affidavit.
The Appellants filed a three paragraph counter-affidavit alleging that they would be prejudiced if the amendment is allowed. However, they did not disclose the registered name of the 2nd Appellant in the said counter-affidavit filed on 9/7/08. They did not state there is a different company that has the same name “Pfizer” added to its business name. Further, they did not show how they would be prejudiced. However, a cursory glance at Exhibit PIM 1, a document that emanated from the intended 2nd Defendant, depicts the name “Pfizer Global pharmaceuticals”, with it’s address at Adebola House, 38 Opebi Road, Ikeja, Nigeria. The document was signed for “Pfizer Global Pharmaceuticals” by one Jude Abonu, its Marketing Director. Then, at the bottom of Exhibit PIM 1, where it has the “Pfizer Logo,” is the section for Board of Directors. Again, one may mistake all that were inscribed thereunder as the names of the Board of Directors. It would take only very piercing eyes and meticulous person to discern the Registered Name of the intended 2nd Defendant; printed as “Pfizer Specialties Limited” under the heading, “Board of Directors.”
I must observe that the manner in which, and, the juncture at which the registered name of the intended 2nd Defendant was printed on Exhibit PIM 1 could easily have misled someone. It is very obscure. This, to my mind, constitutes a reasonable excuse, because it looks as if the registered name was squeezed into that small space thereunder. The letterhead could easily have misguided any person. It would take a thorough and microscopic examination of the document to observe where it was printed. As I observed earlier, any one could easily have been misled by the Letterhead i.e., Exhibit PIM 1, except one with an eye for detail. The problem in this case is obviously, the fault of the counsel who prepared the case and where that is so, the Respondent could be allowed to amend the name of the intended 2nd Defendant, just as in the case of Alexander Mountain & co (suing as a firm) vs. Rumere Ltd (1948) 2 K.B. 436, referred to in Njemanze vs. Shell BP Port Harcourt (supra), by the Supreme Court ,where the Plaintiff was wrongly named, their Solicitor applied on an affidavit to amend in the High court, but amendment was refused. They prepared an affidavit of more facts, and presented them on appeal. They were said to be diligent in explaining the circumstances. It should be noted that the amendment sought for in Niemanze’s case (supra) was refused as a result of absence of an affidavit explaining how the mistake occurred. This could be gleaned from the expressions of Bairamian, J.S.C., at p.11, which I repeat thus:
“In the present case the plaintiff rushed to sue. Apparently it did not occur to his solicitor that there was anything wrong in suing the company merely as Shell BP; he did not look up the law before or after suing. Even after he appealed, it did not occur to his solicitor to look up cases in the White Book for guidance on how to go about the matter on appeal: he did not prepare an affidavit to explain how the mistake arose and state the registered name of the company which had been his employer and which he wished to sue; he did not give notice that he would apply for leave to put in an affidavit and also for leave to amend his second ground of appeal which was apparently drawn up in haste; and when the appeal came up for hearing, his learned counsel was content to argue it without citing any authorities on the practice of the courts and without any evidence of the facts he wished to rely upon.”
In Ogboru vs. Ibori (2004) 7 NWLR Part 871 page 192 at 224, Ibiyeye, J.C.A, opined thus:
“it is not in doubt that the respondents were not ignorant of the true identity of the 2nd Respondent because they, in the different processes filed by them, referred to the 2nd Respondent by the inclusion of the word “National” which is apparently reflected in the petition. The omission of the word “National” would have been corrected by the appellant by way of an amendment but he failed to do so. It is settled that where there is an error as to the name of a party to a suit, an amendment properly sought will be allowed by the court. See Njoku vs. UAC Foods (1999) 12 NWLR Part 632 page 557 at 554 and Fawehinmi vs. NBA (No.2) (1989) 2 NWLR Part 105 page 558″‘
In Ajadi vs. Ajibola (2004) 16 NWLR Part 898 page 91, at 188; per Muntaka-Coomassie, J.C.A. (as he then was) it was held that a mistake or misnomer in the name of a party or a court or tribunal will not vitiate a proceedings duly initiated and properly filed. See Ben Njoku vs. UAC Foods (1999) 12 NWLR Part 632 page 557 at 554, Carteen vs. University of Jos (1994) 1 NWLR part 232 page 239 and Nkwocha vs. Federal University of Technology (1996) 1 NWLR Part 422 page 112.
Given the aforementioned principles of law, I am, therefore, of the profound view that reasonable excuse was given by the Respondent regarding Exhibit PIM l that projected the name, “Pfizer Global pharmaceuticals,, and then inscribed in very tiny letters at a very obscure section, towards the end of the document, the registered name “Pfizer Specialties Limited.” consequently, issue No.2 is hereby partly resolved in favour of the Appellants. This now leads me to issue No.3.
It should be noted that the major snag in the Respondent’s application is that he sought to substitute the name ‘Pfizer Global pharmaceuticals’ the mis-described name with an unregistered name, that is to say, “Pfizer Nigeria Limited.” Learned counsel for the Respondent ought to have been circumspect and thorough. This time again, they blundered, since the name “Pfizer Nigeria Limited,’ is not the registered name of the intended 2nd Defendant, the lower court ought to have refused the application, and should not have substituted the mis-described name with an unregistered name since they can neither sue nor be sued. The learned trial Court erred by ordering as prayed. In Obike International Ltd vs. Aji Zeletronics Ltd (2005) 15 NWLR (Part 948) 362, it was held, per Ngwuta J.C.A.; (as he then was) that the name of an entity not in existence at the material time cannot be misnamed and the issue of amendment will not arise. Accordingly, issue No.3 is hereby resolved in favour of the Appellants. Further, in Nwabueze vs. NIPOST (2006) 8 NWLR part 983 page 480 it was stated, per Nzeako, J.C.A., that a suit in the name of a juristic person and non-juristic person may be bad but it need not fail, for the name of the non-juristic person wrongly joined could be struck out retaining the juristic person and sustaining the suit. What this postulates is that since the 1st Appellant is a juristic person, the joinder of non-juristic person as a 2nd
Defendant will not void the action. All that is needed is for the name of the non-juristic person to be struck out’ Further, there is need to highlight that the issue of invoking section 15 of the court of Appeal Act, suggested by the Respondent does not arise in this appeal’ Having found that the lower Court erred, I have no other option than to allow this appeal.
Accordingly, this appeal is meritorious, and the same is hereby allowed by me. The ruling of the lower court delivered on 14/7/08 amending the name of the 2nd Defendant to “Pfizer Nigeria Limited” is hereby set aside. Consequently, the name “Pfizer Nigeria Limited” substituted for the 2nd Defendant is hereby struck out of Suit No.K/155/2008 pending before the Kano state High court thereby leaving the 1st Appellant hereat as the only Defendant presently in the suit.
I make no order as to costs.
Other Citations: (2006)LCN/1991(CA)
