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  • 2001-10-21
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Maersk Line v. Addide Invest. Ltd.

MAERSK LINE

MAERSK NIGERIA LIMITED

V

ADDIDE INVESTMENT LIMITED

ABEX TRADING LIMITED

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC ( Read the Lead Judgment )

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Dissented )

SC. 248/2000

FRIDAY, 26TH APRIL, 2002

ACTION - Title of an action - When the court may amend to substitute name of a legal person for a non-legal person

APPEAL - Brief - Material facts in appellant’s brief - When deemed conceded

APPEAL - Departure from the rules to enable party compile record of appeal -  Application therefor - Grant of by Court of Appeal - Effect

APPEAL - Issue - Issue of law raised by one party  - Failure of the other party to respond thereto  - Attitude of appellate court thereto

APPEAL - Issues of facts in substantive appeal - Whether can be determined at the interlocutory stage

APPEAL - Record of appeal - Materials placed before the Court of Appeal therein which can be taken cognizance of as evidence - Description of

COURT - Amendment - Power of court in respect thereof - How exercised COURT - Departure from the rules to enable party compile record of appeal -  Application therefor - Grant of by Court of Appeal - Effect

COURT - Duty of to act as an umpire in civil cases

COURT - Issue of law raised by a party - Failure of one party to respond to such issue of law raised - Attitude of appellate court thereto

COURT - Supreme Court - Need to be empirical in administration of justice COURT - Technicalities - Need for court to eschew same

LEGAL PERSONALITY - Party to an action shown not to be a legal person -  Effect

LEGAL PERSONALITY - Person who can be made party to an action - Need to be a legal person or be vested with power to sue or be sued

NOTABLE PRONOUNCEMENT - Need for the court to eschew technicalities

PARTIES - Party to an action shown not to be a legal person  - Effect

PARTIES - Person who can be made party to an action - Need to be a legal person or be vested with power to sue or be sued

PRACTICE AND PROCEDURE - Amendment - Power of court to amend suo motu under Order 32 of the Federal High Court (Civil Procedure) Rules, 1976 - How exercised

PRACTICE AND PROCEDURE - Amendment - Power to amend proceedings - Need to exercise judicially and judiciously

PRACTICE AND PROCEDURE - Amendment - Proceedings of court Amendment thereto - Power of court to suo motu grant

PRACTICE AND PROCEDURE - Amendment or correction of misnomer or misdescription of party - Whether involves substitution of a new party

PRACTICE AND PROCEDURE - Departure from the rules to enable party compile record of appeal - Application therefor - Grant of by Court

of Appeal - Effect

PRACTICE AND PROCEDURE - Misnomer - Essence of as involving mistake as to a name, not as to identity

PRACTICE AND PROCEDURE - Misnomer - Test for determining when it occurs

PRACTICE AND PROCEDURE - Misnomer in the description of a party on the writ - Need for person misnamed to be a juristic person

PRACTICE AND PROCEDURE - Misnomer or misdescription - Basis of correction of - Right party being sued in a wrong name - Whether involves introducing a new party into the proceedings

PRACTICE AND PROCEDURE - Record of appeal - Materials placed before the Court of Appeal therein which can be taken cognizance of as evidence - Description of

PRACTICE AND PROCEDURE - Technicalities - Need for court to eschew same

PRACTICE AND PROCEDURE -Title of an action - When the court may amend to substitute name of a legal person for a non-legal person

STATUTE - Federal High Court (Civil Procedure) Rules 1976, Order 32 thereof  - Purpose of

TRADE MARKS - ‘Trade Mark’ and ‘Trade Name’ - Distinction between Whether a trade mark can also be a trade name

Issues:

1.             Whether the Court of Appeal, having held that the lower court ought to have upheld the objection of the appellants being a non-juristic person lacks capacity to sue or be sued, was right to have further held that the provisions of order 32 of the Federal High Court Civil Procedure Rules permits the court to make an amendment suo motu.

2.             Whether upon a proper interpretation of the provisions of Order 32  of the Federal High Court Civil Procedures Rules 1976, the provisions of the said order can be resorted to in justifying the amendment of a writ by substituting a juristic person for a non-juristic person improperly sued as a party to suit.

3.             Whether evidence of the fact that the proceedings of the 29th January 1996, wherein a motion on notice for joinder was heard and granted in chambers in the absence of the appellants and their counsel was not borne out by the record of appeal.

Facts:

The plaintiff entered into a contract of carriage of goods by sea with the defendant. The contract was evidenced by a bill of lading on which was boldly written “MAERSK LINE”; unknown to the plaintiff the said name is the trade name of the defendant while its real name is Dampskibsselskabet etc. The plaintiff, however, instituted their action against the “MAERSK LINE” as the defendant. Subsequently, the defendant filed an application praying the court to strike out the name “MAERSK LINE” from the suit, not being a juristic person. The plaintiff then filed an application praying the court to join Dampskibsselskabet etc. and two other parties as 3rd, 4th and 5th defendants to the suit. The two motions came up for hearing on the same day. After hearing submissions of counsel, the trial court invoked Order 32 of the Federal High Court (Civil Procedure) Rules and suo motu granted an amendment to change the defendant’s trade name to its real name. On the second motion to change the defendant’s trade mark name to its motion, the trial court refused the application for joinder. The defendant appealed against the order of the trial court amending the name of the 1st defendant to its real name.

The defendant also filed another appeal against an order earlier made by the trial court joining Abex Trading Ltd. as the 2nd plaintiff. According to the defendant, that order was made in chambers in the absence of the defendant. The two appeals were consolidated by the order of the Court of Appeal.

The Court of Appeal dismissed the appeals of the defendant.

Aggrieved the defendant further appealed to the Supreme Court. The Supreme Court considered the extent of the power of the Federal High Court under Order 32 of the Federal High Court (Civil Procedure) Rules.

Order 32 provides thus:

“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 costs or otherwise as shall seem just.”