Commerce Assurance Ltd Vs Alhaji Buraimoh Alli (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is a further appeal by the defendant/company, Commerce Assurance Limited, against the judgment of the Court of Appeal, Ibadan Division, which had dismissed his appeal against the judgment of an Ibadan High Court presided over by Ademakinwa, J. The claim before the learned trial Judge was against Commerce Assurance Co. Ltd. and was for the following reliefs:

(a) A declaration that the Defendant/Company should pay to the plaintiff the sum of N82,019.4lk (Eighty-two thousand and nineteen Naira and forty-one kobo) which said sum of N82,019.41 is the award made on the 19th of March, 1980 in connection with an Arbitration in which Chief H. Ayo Ogunfeibo, Legal Practitioner appointed by both the plaintiff and the defendant in respect of difference/dispute arising from a Comprehensive Insurance Policy No. MV078/IB covering the plaintiffs Trailer No. OD 149A for the period 27/4/76 to 26/4/77 which said vehicle was involved in a road accident at A.T. and P. Round-About, Sapele, Bendel State of Nigeria on the 19th of December, 1976.

In the alternative, that the said award of N82,019.41k and all the interlocutory costs awarded during the Arbitration proceedings be ordered to be the judgment and/or order of this Honourable Court.

(b) The plaintiff also claims 15% interest from the date of the said award (i.e. 19/3/80) till the date of judgment in this case,”

After hearing, the learned trial Judge granted to the plaintiff the declaration he sought but disallowed the claim for interest.

For a completion of the background of the case, I should mention that before the present action was commenced, the plaintiff had commenced proceedings to enforce the award before another High Court Judge, Falade, J., in suit No. M/17/80. The learned Judge, upon an objection by the defendant in that suit, struck it out without going into the merits of the case. He refused to enforce the award; hence the plaintiff commenced this action.

I may further mention that when the present action was commenced, the defendant applied by a motion on notice to set aside the writ of summons on the grounds that:

(i) the defendants sued in the writ of summons is a misnomer, having been sued as Commerce Assurance Company Limited instead of Commerce Assurance Limited; and

(ii) in view of the previous proceeding in suit No. M/17/80 before Falade, J” the learned trial Judge in the instant case had no jurisdiction to entertain the suit.

The plaintiff had, on the other hand by a motion dated 15th December, 1980, applied to amend the name of the defendant from “Commerce Assurance Company Limited” to “Commerce Assurance Limited”, it was supported with an affidavit in which the plaintiff swore that it was a case of a misnomer and a mistake of counsel. In a considered ruling handed down on the 20th day of February, 1981, Ademakinwa. J., ruled against the defendant. On the first issue above, the learned trial Judge, after considering the relevant authorities, held as follows:

“It is clear from the foregoing observations that the principle was endorsed that where a wrong legal entity has been sued, such an error could be rectified by the substitution of the correct legal entity for the one wrongly sued, provided that the correct legal entity is put on notice so as to afford him an opportunity of being heard as to whether he could be properly substituted or not. Where the court is satisfied that a mistake sought to be corrected is genuine and not misleading, an amendment to correct (he name of a party may be allowed, notwithstanding that the effect of the amendment will be to substitute a new party. (See: Jeoba v. Owonifari (1974) 10 S.C. 157 at page 168). It is not contested that the “Commerce Assurance Ltd.” which is (he correct defendant in this case is not a juristic person; neither is it contested that the correct defendant has not been put on notice of the pendency of this suit. It is therefore my view that the misdescription of the defendant/company’s name is a misnomer, which could be cured by an amendment and to that extent the submission of the learned counsel for the defendant/company is untenable and is accordingly rejected,”

On the second issue above, the learned trial Judge held that there are two methods of enforcing an arbitration award, namely:

(i) By application directly to enforce the award; or