Maerskline & Anor. V. Addide Investment Limited & Anor. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The first respondent as plaintiff before the Federal High Court, Lagos brought a suit claiming some reliefs against the two appellants. The claims made by the first respondent are not relevant for the purpose of the two appeals under consideration in this judgment. On 2/1/96, the first respondent brought an application to join the present 2nd respondent as the 2nd plaintiff in the suit. On 29/1/96 the application was heard by the learned Chief Judge of the Federal Court and an order was made joining the 2nd respondent as the 2nd plaintiff in the suit.

On 31/1/96, the appellants as applicants brought an application that the order joining the 2nd respondent as 2nd plaintiff be struck out. An affidavit was filed in support of the application. The respondents also filed a counter-affidavit. There is no indication in the record of appeal upon which this appeal is being heard that the application to set aside the order on the joinder of 2nd respondent as 2nd plaintiff has been heard by the lower Court.

This court on 25/5/98 granted to the appellants the leave to appeal against the order made on 29/9/96. The solitary ground of appeal against the said order reads:

“The learned trial Judge erred in law in hearing and granting the application dated 21st December, 1995 in which the 1st plaintiff sought for an order amending the particulars of claim to include Abex Trade Limited, the consignee, as 2nd plaintiff in this suit in chambers on 29th January, 1996.

Particulars

(a) As the 1st plaintiff lacks the locus standi to institute this action, the lower Court lacks jurisdiction to make the order sought.

(b) An application to amend is not a suitable procedure to adopt where a party desires to add a new plaintiff or defendant to an action.

(c) The proceedings of 29th January, 1996 are in contravention of order 47 rule 1 of the Federal High Court Civil Procedure Rules and section 33 of the Constitution of the Federal Republic of Nigeria”.

From the above ground of appeal, it is apparent that the complaint made in the principal ground is that the trial Judge erred in law in hearing and granting the application dated 21st December, 1995 in chambers on 29/1/96. Clearly therefore, the particulars (a) and (b) under the principal complaint are at variance and inconsistent with the principal complaint.

The fact that, 1st plaintiff lacked a locus standi to institute the action could not constitute a particular under a complaint that the trail judge sat in chambers. Nor could the fact that an application to amend was not suitable when a party wished to add a new plaintiff or a new defendant be admissible particular under the same complaint. These particulars ought to be struck out. They are accordingly struck out. See order 3 rule 2(4) of the Court of Appeal Rules 1981 (as amended).

I go back to the occurrences before the lower Court. On 4/4/96, the appellants as the applicants brought an application that the 1st defendant sued in the name ‘Maersk Line’ be struck out from the suit ‘being not a juristic entity’ with the capacity to sue or be sued.

An affidavit and a further affidavit were filed in support of the application.

The respondents filed a counter-affidavit. On 27/9/96, the learned Chief Judge who heard the application dismissed the appellants’ application. The learned Chief Judge at the same time, purporting to act under order 32 of the rules of the Federal High Court made an order permitting the plaintiff ‘to change the plaintiff’s trade name to its real name’.