Prince Desmond Osawaru & Anor V. Fay-dessy Catering (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T.O. AWOTOYE, JCA (Delivering the Leading Judgment)

This is the appeal against the ruling of Rivers State High Court CORAM: Iragunima J. delivered on 6/7/2000. The parties to this action at the High Court as per the writ of summon are FAY-DESSY CATERING, PRINCE DESMOND OSAWARU (DESMOND HOTEL LTD.) (DEFENDANTS).

On 25/2/99 the trial court ordered that the suit be entered for hearing on the undefended list and the writ of summons to be marked accordingly. The order of court was served on the defendants.

The defendants through their counsel E.B. Ukiri entered conditional appearance in this suit on 18/5/99.

The plaintiff later applied to amend the writ of summons by deleting the word “catering” in the word appearing as plaintiff and substituting the same with the following “company Limited.”

The application was argued. The trial court delivered the ruling on 6/7/2000 and granted the prayers of the plaintiff/applicant.

It is against this decision of the trial court that the defendants filed an appeal on 11/7/2000.

After transmission of the record of appeal, the appellants filed their brief on 10/11/2004. When the Respondent failed to file the Respondent’s brief’ the appellants sought and obtained the leave of court for the appeal to be heard on appellant’s brief of argument alone.

The appellants formulated two issue for determination in their brief.

They are:

1) whether an amendment may be granted to substitute a non-juristic person with a juristic person and thereby foist on the new court a new entity as a party.

2) Whether where the basis of a defence to a suit brought under the undefended list is the lack of capacity of the plaintiff, it is not prejudicial to the defendant to grant an amendment substituting the non-juristic personality even where as in this case the contract was purportedly between the appellant and non-juristic person.

On Issue 1 learned counsel for the appellants submitted that a party who should commence on action must be a person known to law. He referred to AGBONMAGBE BANK v. G.M. G. B. OLIVANT (1961) 1 ALL NLR 116.

He submitted further that there could not be a valid amendment of the title of the suit because there was never a legal person who was brought before the court by the action or writ. He cited MAILAFIA v. VERITAS INSURANCE (1986) 4 NWLR (PT.38) 802; NJOKU V. VAL FOODS (1999) 12 NWLR (pr.632) 557 at 565.