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.

2. 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.
3. 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.
4. $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.
5. $20,000,000.00 (Twenty Million United States Dollars Only) exemplary damages.
6. The cost of filing this action.
7. 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.

2. 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.
3. 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.