So Safe Table Water Technologies Limited V. Obafunmilayo Ayinoluwa Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Coker J. of the Lagos state High Court in Suit No. LD/167/04 delivered on 27/1/05 granting the Respondents’ application to amend the Appellants name from So Safe table water to so Safe Water Technologies Limited.

The Respondents by a writ of summons, dated 23/1/04 commenced an action against the Appellant at the Lagos High Court. Upon service of the Originating processes on the Appellant, the Appellant filed its Statement of Defence and thereafter filed a Motion on Notice praying the court to strike out the suit on the ground that a non juristic person was sued.

The Respondent then in turn filed an application to amend. Both applications were taken together. The learned trial Judge in her ruling granted the amendment. The Appellant being dissatisfied with the ruling appealed to this court. Two issues were formulated in the Appellant’s brief of argument viz:

1. Whether the court below was right when it refused to strike out the suit and amended the writ of summons by substituting the name of the Appellant with another.
2. Whether changing a non-juristic personality to juristic personality is a mere technicality.

In their brief of argument, the Respondents formulated the following issue:

Whether given the circumstances of this case the lower Court was right to have granted the Respondents leave to amend their Writ of Summons and other Court processes when it held that:-

1. This is a case of the right person sued in a wrong name.
2. That indeed the law has moved away from not just issue of technicalities… but from barring a claimant from trying his case on the merit because of such.

The issues formulated by the Respondent are more or less the same as those of the Appellant. I shall adopt the Appellant’s issues in the determination of the appeal.

APPELLANT’S ARGUMENTS:

On issue one, whether the court below was right when it refused to strike out the suit and amended the writ of summons by substituting the name of the Appellant with another, it was submitted for the Appellant relying on the case of Onyekwulunne v. Ndulue (1997) 7 NWLR (Part 512) 250 @ 270 – 271 H – A that a non-juristic person cannot sue or be sued, and a fortiori no order of the court can be imposed on it. Counsel referred also to the case of Njoku v. U.A.C. Foods (1999) 12 NWLR (part 632) 557 where Mohammed J.C.A. at 565 Para B-C observed as follows:

“An amendment for the substitution of a non-juristic person by a juristic person is not at all feasible and must be refused. There was nothing to substitute. See Fawehinmi v. NBA (2) (1993) 4 N.W.L.R. (Part 290) 719.”

The dominant judicial view is that when a court is approached with a prayer for the amendment sought by the appellant and it refused same, it proceeds not only to strike out the name of the non existing party but also the suit in its entirety. See Okechukwu v. B.S.A Ndah (1967) N.M.L.R. 386.

Learned counsel further relied on the observation of Galadima J.C.A in his own contribution at 565 F-H where he said:

“It is well settled by a long line of cases that a non-juristic person cannot sue or be sued” United African Company Foods’ is not juristic person. As such it cannot be sued. It will be wrong as well to substitute it by a juristic person in the guise of a misnomer. Amendment will be allowed only where a juristic or natural person is sued and the name is incorrectly and incompletely written.

See Carlen Nig. Ltd. v. Unijos (1994) 1 NWLR (part 323) 631 @ 655, Fawehinmi v. NBA (2) (1989) 2 NWLR (part 105) 58. In other words, where there is an error as to correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. Court should not be allowed to hang on to technicalities in cases where to allow minor amendment will justify. In the instant case, the writ taken out by the appellant was against “United African Company Foods”; while the defendant sought to be joined was “U.A.C Nig. Plc” This amendment, I think is not a misnomer.”