Maerskline & Anor. V. Addide Investment Limited & Anor. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The first respondent as plaintiff before the Federal High Court, Lagos brought a suit claiming some reliefs against the two appellants. The claims made by the first respondent are not relevant for the purpose of the two appeals under consideration in this judgment. On 2/1/96, the first respondent brought an application to join the present 2nd respondent as the 2nd plaintiff in the suit. On 29/1/96 the application was heard by the learned Chief Judge of the Federal Court and an order was made joining the 2nd respondent as the 2nd plaintiff in the suit.

On 31/1/96, the appellants as applicants brought an application that the order joining the 2nd respondent as 2nd plaintiff be struck out. An affidavit was filed in support of the application. The respondents also filed a counter-affidavit. There is no indication in the record of appeal upon which this appeal is being heard that the application to set aside the order on the joinder of 2nd respondent as 2nd plaintiff has been heard by the lower Court.

This court on 25/5/98 granted to the appellants the leave to appeal against the order made on 29/9/96. The solitary ground of appeal against the said order reads:

“The learned trial Judge erred in law in hearing and granting the application dated 21st December, 1995 in which the 1st plaintiff sought for an order amending the particulars of claim to include Abex Trade Limited, the consignee, as 2nd plaintiff in this suit in chambers on 29th January, 1996.

Particulars

(a) As the 1st plaintiff lacks the locus standi to institute this action, the lower Court lacks jurisdiction to make the order sought.

(b) An application to amend is not a suitable procedure to adopt where a party desires to add a new plaintiff or defendant to an action.

(c) The proceedings of 29th January, 1996 are in contravention of order 47 rule 1 of the Federal High Court Civil Procedure Rules and section 33 of the Constitution of the Federal Republic of Nigeria”.

From the above ground of appeal, it is apparent that the complaint made in the principal ground is that the trial Judge erred in law in hearing and granting the application dated 21st December, 1995 in chambers on 29/1/96. Clearly therefore, the particulars (a) and (b) under the principal complaint are at variance and inconsistent with the principal complaint.

The fact that, 1st plaintiff lacked a locus standi to institute the action could not constitute a particular under a complaint that the trail judge sat in chambers. Nor could the fact that an application to amend was not suitable when a party wished to add a new plaintiff or a new defendant be admissible particular under the same complaint. These particulars ought to be struck out. They are accordingly struck out. See order 3 rule 2(4) of the Court of Appeal Rules 1981 (as amended).

I go back to the occurrences before the lower Court. On 4/4/96, the appellants as the applicants brought an application that the 1st defendant sued in the name ‘Maersk Line’ be struck out from the suit ‘being not a juristic entity’ with the capacity to sue or be sued.

An affidavit and a further affidavit were filed in support of the application.

The respondents filed a counter-affidavit. On 27/9/96, the learned Chief Judge who heard the application dismissed the appellants’ application. The learned Chief Judge at the same time, purporting to act under order 32 of the rules of the Federal High Court made an order permitting the plaintiff ‘to change the plaintiff’s trade name to its real name’.

The defendants were dissatisfied with the ruling of the lower Court. They brought an appeal against it on two grounds of appeal which read:

“1. The learned trial Judge erred in law in refusing to strike out the 1st defendant as a party in this matter.

Particulars

(a) Capacity to sue or be sued as a party lies in the registered user or proprietor of a trade mark and not the trade mark under and by virtue of the Trade Mark Act Cap. 436.

(b) The 1st defendant is incapable of being sued in law.

2. The learned trial Judge misdirected himself when he applied the case of Bombay-Burmah Trading Corporation Limited and Dorabji Cursetji Shroff (1905) A.C at 218 without correctly testing the facts of this case against the ration”.

Thus we now have two appeals before this court. We consolidated both for hearing. In the appellant’s brief filed, the issues for determination were stated to be the following:

1. Whether capacity to sue or be sued lies in a trade mark or its registered user or proprietor.
2. Whether the case of Bombay Burmah Trading Corporation Limited v. Dorabji Cursetji Shroff (1905) A.C 213 at 218 is relevant to this case.
3. Whether the learned trial Judge was right to have ordered an amendment when there was no application of the parties for such a prayer.
4. Whether the entire proceedings of the 29th of January, 1996 including the order of joinder made on that day were not a nullity.
5. Whether the 1st plaintiff has the locus standi to institute this action and the Court jurisdiction to adjudicate over this mater”.

The appellants have distilled five issues for determination out of three grounds of appeal. This is a wrong thing to do. In view of the fact that, the matter raised as the 5th issue for determination was earlier in this judgment struck out as a particular under the only ground of appeal against the ruling of 29/1/96, the said issue must be and is accordingly struck out. The matters set out under issues 1, 2 and 3 all boil down to whether or not the lower Court was right in concluding that ‘Maersk Line’ could be sued in that name as 1st defendant.

In this judgment, I shall consider together the appellant’s 1st, 2nd and 3rd issues. Before the lower Court, the contention of the appellant was that ‘Maersk Line’ was a trade name and that the plaintiffs ought not have brought the suit against it as such.

In the affidavit in support of the motion in support of appellant’s application to strike out the name of the 1st defendant, it was deposed thus in paragraph 3, 4, 5, 6 and 7:

“3. That in this action a claim is made against ‘Maersk Line’ as 1st defendant and Maersk Nigeria Limited as 2nd defendant.

4. That Maersk Line is not a juristic entity but a trade mark.
5. That the carrier is Dampskibaselskabet of 1912, Aktieselskab and Akile Eselskabet Damps Kibasels Kabet Svendbory as carrier which is the steamship company of 1912 and steamship company svendborg.
6. That attached and marked Exhibit ‘JO1’ is a copy of the bill of lading.
7. That I am advised by Babajide Koku and I verily believe that the 1st defendant lacks capacity to sue or be sued”.

The plaintiff in paragraphs 8 to 12 of their counter-affidavit deposed.

“8. That the defendants suddenly brought another application asking for an order to strike out the name of the 1st defendant on the ground that the 1st defendant is not a juristic person.

9. That the defendants have disclosed in their affidavit in support of the motion that, the carrier is the Dampki bsseskabet Svendbory which is the steamship company of 1912 and steamship company svendborg which is the owner of the trade mark – ‘maersk’.
10. That the 1st defendant is a shipping company whose trade name and business contacts subsidiaries and bill of lading bear the name Maersk Line with an international reputation and there could not be any misrepresentation as to who is the carrier of the Gum Arabic. Maersk Line is a notorious trade mark and trade under the Madrid Convention.
11. That the bill of lading issued to the plaintiff in respect of this case bears the name Maersk Line and in fact the 1st Defendant’s London subsidiary letter – head paper clearly shows that Maersk Line is its registered name. The copies of the said Bill of Lading and Maersk Line letter – head paper are hereby attached and marked Exhibit TA1”.

In its ruling on the motion, the Court below at pages 140-41 of the record of proceedings said:

“The Trade Mark as defined in law is a mark used for goods for the purpose of indicating a connection in the course of trade between the goods or chattel and some people having the right as proprietor or as a registered user to use the mark, whether with or without any indication of the identity of that person. With this definition, I find it hard to accept that a trademark is not a juristic entity. Name normally includes any designation and if anybody trades by such name and he is known by it, he puts himself out by that name, it cannot be heard if that name was used to describe, to say that name is not his. As Court of Appeal in England said in the case of Bombay – Burmah Trading Corporation Limited v. Dorabji Cursetji Shroff (1905) A.C 213 at 218 in the name of a name being used as a proxy, Lord Lindley said:-

“Although not named in it, in the strict liberal sense of the word ‘named’ he was sufficiently described in the proxy for all business purposes and in their lordships’ opinion the articles required nothing more”.

“I do not find that the Maersk Line which the defendant used in the bill of lading-Exhibit JO1 is not a juristic name or that it does not in any cause a doubt to whom it refers to than the defendant. At any rate, leave to correct the name of a party can be sought and given in motion to amend pleadings under Order 32 of the rules of this Court. The effect of such an amendment might be to substitute a new party or new name once the court is satisfied that the mistake was genuine and not misleading or such as to cause a reasonable doubt as to the identity of the person intended. In this case, I find that the defendant was not misled by the plaintiff using its trade name which the defendant is known in his business. Order 32 empowers the court upon his own motion to effect an amendment and I found this is a proper case to invoke the power. I order the Plaintiff to change the plaintiff’s trade name to its real name.

The defendant’s objection is dismissed”.

With respect to the learned Chief Judge, I am satisfied that he was wrong in his conclusion that an action could be brought against a trade name. It is, I believe, a proposition that is as clear as daylight and now more or less immutable that only a juristic person can sue or be sued in court. There is a plethora of judicial authorities on the point and I gratefully refer to those cited by appellants’ counsel – Abu v. Ogli (1995) 8 NWLR (Pt. 413) 352 at 372, Peat, Marwick, Ani, Ogunde & Co. v.Okike (1995) 1 NWLR (Pt.369) 71 at 73.

The case referred to by the learned Chief Judge as justification for his conclusion that ‘Maersk Line’ was properly sued as 1st defendant is on its facts completely irrelevant and inapplicable to this case. In that case, Bombay- Burmah Trading Corporation v. Dorabji Curtseji Shroff (supra), a lady shareholder in a company had by a power of attorney constituted some named persons and any others answering a particular description to represent her as a proxy at the meeting of the company in which she had shares. A gentleman appeared as her proxy at the said company meeting. An objection was raised that the gentleman could not be proxy to the lady. The issue then came up for decision whether the gentleman answered the description given of her proxy by the lady in the power of attorney. The Privy Council in England held that the gentleman answered the description. Clearly therefore, the facts in that case could not be relied upon to sustain the conclusion of the learned Chief Judge.

It seems to me that the useful authority on the point is Fawehinmi v. N.B.A (No.2) (1989) 2 NWLR (Pt.105) 558 at 596, where Agbaje, J.S.C., quoted with approval the dictum of Mocata, J. in Knight & Searle v. Dove (1964) 2 All NLR 307 at 309 thus:

“that counsel for the defendants formulated a general proposition as to when in the English Courts an action can be brought by or against a party other than a natural person and gave illustrations of each part of the proposition. Counsel for the plaintiff was prepared to accept the proposition, though he questioned the classification of some of the illustrations. The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by the common law, either (a) a legal persona under the name by which it sues or is sued or (b) a right to sue or be sued by that name. As to (a) namely legal, personae, this may be divided into (1) corporations sole; (ii) corporations aggregate, incorporated by Royal Charter or special Act of Parliament or under the Companies Act; (iii) bodies incorporated by foreign law and (iv) ‘quasi – corporations’ constituted by Act of Parliament, such as the War Damage Commission: see Inland Revenue Commissioners v. Bew Estate Ltd. (2) As to (b) namely, parties which are not legal personae but have a right to sue or be sued by a particular name, these may be sub-divided into (i) partnerships: see R.S.C. Ord.81; (ii) trade unions and friendly societies, both of which types have a membership; and (iii) foreign institutions authorised by their own law to sue and be sued but not incorporated: see for example, Chaff and Hay Acquisition Committee v. Hemphill,(3) a decision of the High court of Australia on appeal from New South Wales”.

On principle, it seems to me that only the registered proprietor of a ‘Trade Name’ can sue or be sued. See: Section of Trade Mark Act, Cap 436, 1990 Laws of the Federation. The lower court should therefore have upheld the objection of the defendants.

But the matter does not end there. The lower Court placed reliance on Order 32 of the Federal High Court Rules and granted the plaintiffs the liberty to amend the proceedings by putting the real name of the 1st defendant. The appellants have argued that the lower Court should not have done this since nobody applied for an amendment. Now order xxxii of the Federal High Court Rules Cap.134, 1990 Laws of the Federation provides:

“The court may at any stage of the proceedings either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit; and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to cost or otherwise as shall seem just”.

The provisions of the above order permit the trial Judge to make any amendment suo motu as he did on this occasion. I do not therefore see that it is open to the appellant to complain against the exercise by the trial Judge of his powers derived from under order xxxii above. The trial Judge had obviously been swayed by the fact that the mistake made by the plaintiffs was innocuous and could be corrected without causing any injustice to the appellants. The argument that the lower Court has no jurisdiction on the ground that the 1st appellant was not a juristic person overlooks the fact that, even if the name of the 1st appellant was struck out of the suit, the suit would still remain properly constituted since the surviving 2nd defendant/appellant and the plaintiffs are juristic persons. This matter did not therefore raise that issue of jurisdiction at all. This appeal would have succeeded, had not the lower Court exercised its undoubted powers under Order xxxii of the Federal High Court Rules.

The only other issue is whether or not the lower Court was right to have made an order in chambers joining the 2nd respondent as 2nd plaintiff. The appellants have argued that the procedure adopted by the lower Court was contrary to order 47 rule 1 of the Federal High Court Rules and Section 33 of the Constitution of the Federal Republic of Nigeria 1979. The appellants’ counsel in his argument placed reliance on N.A.B. Limited v. Barri Engineering Nigeria Ltd (1995) 8 NWLR (Pt.413) 257.

Even if the argument of the appellants’ counsel is sound and cannot be assailed for the principle the argument projected, I regret to observe that the argument did not have any evidential support. From the record of proceedings, there was nowhere where it was shown that the lower Court sat in chambers when it heard arguments and made a ruling on the motion for joinder. The drawn up order before us which is all we have before us, does not indicate that the order was made in chambers. Appellant’s counsel never sought leave and was not granted one to call further evidence on appeal. So, where is the evidence upon which to decide the propriety of the order supposedly made in chambers?.This issue must therefore be decided against the Appellant.

In the final conclusion, this appeal fails. It is dismissed. I make no order as to costs.

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Other Citations: (2000)LCN/0767(CA)