Afribank Nigeria Plc. V. Medical Consultant Services Ltd. & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice Y.A. Adesanya sitting at the High Court of Lagos state, delivered on the 25th of January, 2002. The Respondents as Plaintiffs in the lower court commenced an action against the Appellant by a specially endorsed writ of summons and statement of claim dated 19th March, 2001 claiming the sum of N2,329,970.50 being unpaid medical bills for medical services rendered to the staff of the Appellant under an agreement for medical services made between the Respondents and the Appellant dated 1st January, 1994.

The Appellant, through its counsel entered a conditional appearance to the suit and filed a statement of defence dated 11/4/2001 and 15/6/2001 respectively. Thereafter, the Respondents filed a summons for Judgment under order 11 of the High court of Lagos state (Civil Procedure) Rules 1994 dated 16/10/2001. In response, the Appellant filed an affidavit showing cause dated 5/11/2001 and an amended statement of Defence.

On the 11th of December, 2001, the lower court heard argument on the summons for Judgment and on the 25th of January, 2002 delivered its ruling refusing to grant leave to the Appellant to defend the action and entered final judgment in favour of the Respondents. The Appellant is aggrieved and has appealed against that ruling and upon 4 grounds of Appeal. By leave granted for a departure from the Rules of this court the Appellant filed his brief of Argument along with the records of appeal compiled by the Registrar of the lower court as record of appeal and it was deemed as properly filed and served.

The Respondents’ brief of Argument was filed out of time and deemed filed and served on 19/2/07.

The Appellant raised 4 issues for determination, whilst the Respondents raised 2 issues. The Appellant’s issues are encapsulated in the 2 issues raised by the Respondents and I shall therefore treat this appeal on the basis of the 2 issues of the Respondents. Before then, I shall reproduce the Appellant’s issues for the purpose of clarity. They are as follows:

Issue No. 1

Whether the trial Judge properly in his Judgment held

“that the defendant has been properly described or referred to as “Afribank Nigeria Plc” in subsequent processes for example in the further Affidavit and Reply and orally during argument on this application more so the proper name of the defendant in the subsequent affidavit filed by the Plaintiffs has not been challenged by the Defendant and so it is deemed admitted to the extent of the subsequent affidavit, I therefore hold that the reference to – “Afribank Plc” is merely a misnomer which has been remedied and that case of AGBONMAGBE V. GENERAL MANAGER GB OLLIVANT (supra) does not apply.”

Issues No. 2

Whether the learned trial Judge was right in omitting or neglecting to determine whether or not the 2nd Plaintiff “Maryland Medical Centre” is a juristic person.

Issue No. 3

Whether the trial Judge was right in holding that there is no lack of privity of contract as to prevent the 1st Plaintiff from instituting this action.

Issues No. 4