Emmanuel Anemene & Anor V. H. A. Obianyido & Ors (2006)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A.

This is an appeal against the decision of Keazor, J. sitting at the Onitsha Judicial Division of the Anambra State High Court. In the course of the hearing of the case by the trial court, the plaintiffs/applicants brought a motion on 11/2/99 praying for an order amending the summons, the claim and the Statement of Claim already filed in the suit by substituting the word “Plc” with the word “Ltd.” Wherever the word “Plc” occurs after the word “Diamond” in the summons, claim and statement of claim.

The applicants filed an affidavit in which it is deposed that what they wish to amend is a clerical error or slip.

The defendants filed a counter-affidavit in which it is deposed that the plaintiffs/applicants did not make a clerical error or slip and that they actually intended to sue Diamond Bank Plc which is a non-existent Company.

On 11th May, 1999 the lower court granted the amendment hence this appeal by the appellants.

It should be noted that the defendants/appellants brought an application dated 20/4/05 filed on 22/4/05 to the Court of Appeal that the appeal be heard on the defendants/appellants/applicants brief alone as the respondents failed to file the respondents’ Brief in compliance with the rule of this Court. The application was granted by this Court on 16/6/05.

As I have said above the lower court granted the Respondents’ application brought before it.

From the grounds of appeal, the appellants raised three issues for the determination of this court. They are:-

“1. Whether the decision of the learned trial judge is based on evidence before him?

2. Whether the learned trial judge was right to substitute a juristic person for a non-juristic person?
3. Whether the defendants/appellants were given a fair hearing at the court below?”

Facts relevant to the application at the court below run thus:-

The plaintiffs now respondents sued two defendants now appellants one of whom is Diamond Bank Plc. Diamond Bank Plc however does not exist in law so an application was brought seeking to strike out the name. As borne by the records, official searches conducted at the Corporate Affairs Commission confirmed that Diamond Bank Plc is not an incorporated company. This fact was deposed to in an affidavit and filed in support of the application to strike out the name. It is manifest from the records that the non-existence of Diamond Bank Plc was never challenged or controverted by the plaintiff/respondents at the court below.

Subsequently, the plaintiffs/Respondents in an attempt to remedy the situation filed an application seeking to amend the name to Diamond Bank Ltd. The sole ground/reason for seeking the amendment was that it was a clerical/typographical error.

The first issue which is whether the decision of the learned trial judge is based on the affidavit evidence placed before him. It was submitted that in support of their application to amend the name of the Bank, plaintiffs/respondents relied on only one ground that is, that the error was a clerical error or slip. They did not aver any other fact suggesting that the name was a bona fide error. It should be noted that the learned trial Judge concluded his ruling thus:-

“The plaintiff filed an affidavit in this case and I am satisfied from the plaintiffs’ affidavit that this is a genuine and bona fide error. In keeping with the decision in Commerce Assurance Ltd vs. Alhaji Alli supra, the motion succeeds and the application is granted.”