Arab Contractors (O.A.O.) Nigeria Ltd. V. El-raphaal Hospital and Maternity Home Investment Co. Ltd. & Anor (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against an interlocutory decision of the High Court of the Federal Capital Territory, Abuja delivered on the 22nd day of May, 2006 by Salisu Garba J.

The fact of the case briefly is that the Appellant entered into a retainership agreement with the Respondents for the medical treatment of the Appellant’s members of staff in the Respondent’s Hospital. During the course of their relationship, dispute arose between the parties as a result of which the Respondents instituted this action against the Appellant. The Respondents’ commenced their action by a Writ of Summons and Statement of claim, where they claim as follows:

“1. The sum of three million and thirty thousand Naira (N3,030,000.00) only being outstanding medical bills for medical services rendered to the Appellant’s staff in line with the medical retainership agreement between the Appellants and the 1st Respondent.

2. The Respondents claim against the Appellant the sum of five million (N5,000,000.00) only as general damages for failure to pay to the Respondents the said medical bill and for slander, libel and damages to the Respondents reputation and competence in the medical field.”

The Appellant entered appearance and filed its Statement of defence. The Appellant later filed an application before the trial Court to strike out the suit on the ground that the Respondents were not competent to institute the matter. While the application was pending the Respondents applied to amend their writ of summons, the statement of claim and all other Court processes already filed by deleting the words “AND MATERNITY HOME” contained in the name of the 1st Respondent .The Respondent’s application was heard and granted. The Appellant not being satisfied with the Ruling of the trial Court appealed to this Court with a sole ground of Appeal.

One issue was distilled from the lone ground of Appeal. The issue distilled or formulated on behalf of the Appellant reads:

“Whether the lower Court rightly assumed jurisdiction to amend and/or change the 1st Respondent’s name from EL.RAPHAAL HOSPITALS AND MATERNITY HOME INVESTMENT COMPANY LIMITED to read EL-RAPHAEL HOSPITAL INVESTMENT COMPANY LIMITED.”

On behalf of the Respondents a lone issue was also formulated for determination in this Appeal as follows:

“Whether the lower Court was right in granting the Respondents’ application to amend the Respondent’s name and if so, whether the said amendment granted has introduced a stranger to the Appellant. ”

The issue as formulated by the Appellant is adopted for the determination of the Appeal.

In his argument on this issue, learned Counsel for the Appellant Richard S. Baiyeshea submitted that the lower Court wrongly and erroneously assumed jurisdiction to amend, alter and change the 1st Respondent’s name on the ground that the inclusion of the words AND MATERRNITY HOME on the 1st Respondent’s name is a misnomer.

He argued that the inclusion of the said words to the Respondent’s name is not a misnomer neither is it a mistake rather it is a deliberate and conscious act on the part of the Respondents as shown in the Respondents’ statement of claim, where paragraph 1 avers that the 1st Respondent is a “Company Limited by shares and carrys on business of Hospitals and Maternity in Abuja” and the letter headed paper of the 1st Respondent clearly and boldly shows the name of the 1st Respondent as EL-RAPHAAL HOSPITALS AND MATERNITY HOME INVESTMENT COMPANY LTD. Learned Counsel contended that the 1st Respondent used the said name when he applied for medical retainership with the Appellant and all correspondences between Respondent and Appellant are in this unregistered name.

He maintained that the name registered with the Corporate Affairs Commission is EL-RAPHAAL HOSPITAL INVESTMENT COMPANY LTD. while ELRAPHAAL HOSPITALS AND MATERNITY HOME INVESTMENT COMPANY LTD. is a creation of the Respondent and therefore remains a non juristic personality.

Learned Counsel for the Appellant argued that the power of the Court to correct or amend cannot be used to bring into being what does not exist, and that no amount of amendment or correction as done by the lower Court in this matter can bring a non juristic company into existence or cloak the 1st Respondent with a juristic personality. He referred the Court to the cases of: Akas v. Manager & Receiver of Estate Allwadike (2004) FWLR Pt.71 Page 1714 at Pages 1726-1727; Nigerian Nurses Association v. A.G. Federation (1981) I FNLR 55 at 60.