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Government Of The Midwest State (Now Bendel State) & Anor V Mid-motors Nigeria Company Ltd (1977) LLJR-SC

Government Of The Midwest State (Now Bendel State) & Anor V Mid-motors Nigeria Company Ltd (1977)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC. 

By writ dated 23rd July, 1974, the Mid-Motors Nigeria Company Ltd. (as Plaintiffs) claimed against the Midwest Lines and Armels Transport Limited (as Defendants) the sum of N8,000,000.00 (Eight Million Naira) as damages for breach of contract in respect of an Agreement in writing dated the 1st day of October, 1971, made between the plaintiffs, the Midwest Lines and Armels Transport Ltd. (the defendants), and the Toyo Menka Kaisha Limited of Japan (who acted on behalf of Hino Motors Ltd.).

Under the said agreement, the plaintiffs also claimed the defendants agreed to standardise the fleet of their buses and trucks by acquiring Hino vehicles under the terms and conditions specified in the Agreement; they (the Defendants) also placed an irrevocable order for 1,120 “Hino” vehicles and some spare parts as specified in Clause IV of the said Agreement.   Pleadings having been ordered, the plaintiffs duly filed and delivered their Statement of Claim on 21st September, 1974. Before the Statement of Defence was filed and delivered, the plaintiffs applied to the court, on notice to the defendants, for an order that – (a.) Midwest Lines Ltd; and (b.) Armels Transport Ltd., be substituted as defendants in place of the original Defendants. The Plaintiffs also asked that the Writ of Summons and all subsequent proceedings therein should be amended accordingly. Paragraphs 2 – 5 of the affidavit in support of the application read –  

“2. That the contract the subject matter of this action was made between Midwest Lines Limited and Armels Transport Limited who executed the same as “Midwest Lines and Armels Transport Limited”, although there is no company incorporated in that name. 3. That I have personal knowledge that in many documents between the Plaintiffs and the said two companies, the said two companies (who have been operating for some time as a single entity) refer to themselves as “Midwest Lines and Armels Transport Limited”.

4. That the Plaintiffs at the time they instituted the action herein and until recently were of the opinion that the said two companies have amalgamated into one company under the said name “Midwest Lines and Armels Transport Limited.” 5. That I have advised the Plaintiffs of the true position and of the need to substitute the new Defendants in place of “Midwest Lines and Armels Transport Limited” which is not a legal entity at all.”   In granting the application, the court ordered as follows: – “The application to strike out the “Midwest Lines & Armels Transport Limited” as Defendants and substitute therefor the name “Midwest Lines Limited and Armels Transport Limited” as Defendants is hereby granted, as there is no doubt in my mind that the Plaintiffs were misled by the defendants into using that name.

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The Writ of Summons and all subsequent proceedings are hereby amended accordingly. The Writ of Summons and Statement of Claim having been served and appearance made thereon, the Writ of Summons and Statement of Claim now amended are deemed to have been served on the substituted Defendants.’    Eventually, the two defendants filed a joint statement of defence, paragraph 3 of which reads: – “3. The defendants admit paragraph 2 of the statement of claim with the qualification that the defendants were not at all material times and at present trading generally and jointly under the style and joint name of Midwest Lines and Armels Transport Limited. The defendants are two separate and independent companies trading separately and independently of each other.”   After the close of the plaintiffs’ case and before calling the witnesses for the defence, the learned counsel for the defendants observed in court as follows: – “AZINGE Perhaps I might bring another difficulty to the notice of the court, before I go on.

Mainly for guidance of the court I refer to the fact that although the Writ of Summons was originally in the name of Midwest Lines & Armels Transport Ltd., pursuant to an order made by this court (Obaseki, J.), two other Defendants were substituted for the original Defendants. We found that as of now the names we have is Midwest Lines Limited and Armels Transport Limited. The later point may not be so significant.

The clients I represent are Midwest Line Company Limited and Armels Transport Limited. My difficulty is that I have advised the representatives of these companies to appear to show respect to the court. And what is more important to watch – the interest of their Companies just in case at any stage it is decided that their interests are really at stake. Court to clarify the issues.”  

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To this request, the learned trial judge replied as follows: – “I am clarifying nothing. It is not my business to clarify anything. I am an umpire. If you say you are not the Defendants and so you wish to go away, please do so. If you say you have an interest in the case to watch and defend, please do so. If you say there is a misnomer that goes to the root of the case and that the case be thrown out, so contend.” (The underlining is ours).  

It is, therefore, not without significance, that after the first defence witness had testified and he had been duly cross-examined, learned counsel for the plaintiffs informed the court that he had filed an application to amend the names of the parties.

The application dated 25th May, 1976, with notice to the existing defendants asked the court for the leave of the court to amend the writ of summons and the statement of claim as follows: –   “(a) to correct the name of the first Defendant from ‘Midwest Lines Limited’ to ‘The Government of Midwestern State (now Bendel State) trading under the name and style Midwest Line’; and (b) to amend the Statement of Claim by substituting therefor the ‘Amended Statement of Claim’ exhibited to the affidavit of this motion.”

The Plaintiffs, in the same application, also asked the court to order that the amended statement of claim already filed in court be deemed to have been duly filed. Paragraphs 2 – 5 of the affidavit filed in support of the application read: – “2. That on the 11th, 12th and 13th March, 1976 and 28th, 29th and 30th April, 1976 hearing took place in the above mentioned suit and the Plaintiff closed its case on the last day mentioned.

3. That it is necessary having regard to the evidence led at the trial and the documents admitted in evidence that the Writ of Summons and Statement of Claim be amended as stated in the motion paper herein and set out in Exhibit ‘A’. 4. That the amendment relating to the name of the 1st defendant is necessary as evidence has shown that there is no limited company of that name but that the Government of Midwestern (now Bendel) State carries on a trade in the name ‘Midwest Line’ now ‘Bendel Line’.

5. That the mistake in name sought to be corrected is a genuine mistake and was not misleading or such as to cause any doubt as to the identity of the person intended to be sued as 1st Defendant.”   Contrary to the facts stated in paragraph 4 of the above affidavit, there is, in fact, a limited company known as Midwest Line Company Ltd., as shown by the Certificate of Incorporation dated 16th December, 1971. Consequently, on 26th May, 1976, learned counsel for the defendants called the 4th defence witness who tendered the Certificate of Incorporation of the Midwest Line Company Limited (Exhibit 43). He thereafter closed the case for the defendants without any objection either by the court or by learned counsel for the plaintiffs.   The following day, that is on 27th May, 1976, learned counsel for both parties addressed the court.

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Before addressing the court, however, learned counsel for the plaintiffs observed –   PAGE| 5   “I had on 25/5/76 filed an application for leave to amend the Writ of Summons and Statement of Claim as set out in my motion paper dated 25th May, 1976. As I am now called upon to address the court on the Plaintiffs’ case I would like to apply formally to move the motion aforesaid before proceeding with my address I apply accordingly to move.”  

In spite of the vigorous objection of learned counsel for the defendants, the learned trial Judge allowed learned counsel for the plaintiffs to make the application notwithstanding the erroneous assertion in paragraph 4 of his affidavit. The points urged in support of the application were the same as those stated in the affidavit. Learned counsel then explained the cause of the delay as follows: –   “The delay in making this application is that it


Other Citation: (1977) LCN/1870(SC)

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