IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORTHARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/PHC/56/2019
DATE: MAY 29, 2020
ENGR. BENJAMIN OKAFOR - CLAIMANT/
OAS HELICOPTERS LEASING & CHARTER SERVICES - DEFENDANT/
E.N Efiom, Esq., -for the Claimant/Applicant;
E.C Obasi Esq.,(Holding brief for C.C Ekemezie,Esq.)
-for the Defendant/Respondent.
1. The Claimant/Applicant, an engineer, served as director of maintenance with the Defendant, an aviation services company. He approached this court, vide General Form of Complaint dated and filed on 7th May 2019, basically challenging his employment termination as unlawful, and claims for recovery of his outstanding unpaid salaries and entitlements, inclusive of other sundry reliefs, against his former employer. He sued the Defendant in the name of OAS HELICOPTERS LEASING & CHARTER SERVICES.
2. Reacting to the suit, the Defendant through its counsel, filed a Conditional Memorandum of Appearance dated and filed on 12th July 2019, along with Notice of Preliminary Objection, challenging the jurisdiction of the court on the ground that the originating process were served along a Hearing Notice to mention the case instead of awaiting 14 day period between service of the originating process and filing of defence/response by the Defendant. It was contended that the service was said to have been done on 22nd May 2019 along with a Hearing Notice dated 22nd May 2019 fixing the suit for Mention on 30th May 2019.The Defendant also denied receiving service of the originating process despite the averment of the Bailiff in paragraphs 2 and 3 of the Affidavit of Service stating that he called the Managing Director who instructed him to drop the processes with the security men at the Defendant’s gate.
3. Both counselexchanged processes and joined issues on the objection.However, at the proceedings of 30th May 2019 and 22nd October 2019, the court had directed the Claimant’s counsel to ensure service of the process, as the Defendant’s counsel stated that the Defendant was served with only Hearing Notice, even though there was an Affidavit of service of both the Hearing Notice and the General Form of Complaints, through the security men as instructed by the Defendant’s Managing Director. Also, at the proceedings of 22nd October 2019, the learned Claimant’s counsel drew the court’s attention to his Motion on Notice dated and filed on 21st October 2019, for Amendment of the originating processes, to reflect the correct name of the Defendant, which was indicated in the Defendant’s said Notice of Preliminary Objection. The Application was set down for hearing at the proceedings of 3rd March 2020. Moving the Application, learned Claimant’s counsel, E.N Efiom, Esq., pointed that the said Application prays for:
“1. An Order granting the Claimant/Applicant leave to amend the name of the Defendant/Respondent on General Form of Complaints and Statement of Facts and all other processes in line with the underlined portions of the ‘Proposed Amended General Form of Complaints, Witness Statement on Oath, Statement of Facts and all other processes, attached as exhibit ‘C’”.
2. An Order of this Honourable Court deeming the proposed amended General Form of Complaints and Statement of Facts and all other processes including Witness Statement on Oath as filed separate as properly filed and serve[d].
3. And for such further and other Order(s) this Honourable Court may deem fit to make in the circumstance”.
4. In support of the Application is a 16-paragraph Affidavit deposed to by the Claimant/Applicant himself. Attached are three exhibits, marked as ‘exhibits A, B and C’. Counsel also filed a Written Address dated and filed on 21st October 2019, wherein he raised a sole issue- “whether this court can allow the Claimant/Applicant to amend an error which was induced by the Defendant/Respondent having regard to the entire facts and circumstances of this case?” Canvassing arguments, learned counsel submitted that the error is a mis-description of the Defendant’s name in the court processes, which was induced by the Defendant, and such constitutes misnomer, of which court can correct by an amendment of the affected processes.
5. Counsel further submitted that the Claimant/Applicant has deposed in his Affidavit in Support to the effect that the Defendant/Respondent itself used the name ‘OAS Helicopter Leasing and Charter Services’ in all its correspondence with him, including his employment and termination letters, which were attached as Exhibits “A” and “B”. Counsel also pointed that the Claimant/Applicant also deposed to the effect that even the signpost of the Defendant/ Respondent at its NAF Base office in PortHarcourt bears the said wrong name. Counsel contended that such publishing of wrong corporate name is contrary to the provisions of Companies and Allied Matters Act (CAMA) which made it compulsory for a company to affix its corporate name in its offices. Counsel finally submitted that the purpose of the amendment is to amend the name of the Defendant. To anchor his submissions that what happened was misnomer that can be corrected by amendment to reflect the correct corporate name of the Defendant, counsel cited and relied on a plethora of case law authorities, particularly- Maersk v. Addide Investment Ltd 4S.C (PT.11) P.157; Olu of Warri v. Chief Sam Warri Esi (1958)3FSC 94.
6. On the part of the Defendant/Respondent, its counsel, filed and served a 10-paragraph Counter-Affidavit deposed to by one John Ochokwunu, the Chief Security Officer of the Defendant Company, on 5th November 2019 at the Court’s Registry. Also filed and served is a Written Address dated 31st October 2019 and filed on 5th November 2019, wherein Defendant’s counsel also raised a lone issue for determination- whether an amendment will be allowed to substitute a non-juristic person with a juristic person? Learned counsel for the Defendant, E.C Obasi, Esq, in opposing the Application for amendment contended that there is no misnomer and the proposed amendment is not valid as it would amount to substituting a non-juristic party in a suit, which is not allowed, even under the concept of misnomer. It is counsel’s stout submission that the Claimant erroneously brought an action against ‘OAS Helicopters Lease & Charter Services’, a non- juristic party, and having discovered his error now seeks to amend the originating processes filed in this suit by substituting this non-juristic party with ‘Odengene Air Shuttle Services Limited’, a juristic party, whereas an action against a non-juristic person is irredeemable.
7. Counsel cited and relied on a host of authorities, particularly the Court of Appeal’s decisions in Federal College of Education (Technical) Gusau& Anor v. Umar Abubakar (2013) LPELR-22203(CA); Anemene& Anor v. Obianyido&Ors. (2006)LPER-11635 (CA); Zain NigeriaLtd v. Ilorin (2012) LPELR-9249(CA), all to the effect that a suit against a non-juristic party cannot be cured by amendment, and there is nothing a trial court can do to remedy the anomaly since the Appellate court has laid down the precedent as espoused in the cited cases, and this court being a trial court is bound to obey the decisions of the Appellate Court, pursuant to the hallowed and time-honoured doctrine of stare decisis.
8. To sure-foot his vociferous arguments in opposition, particularly on effect of stare decisis, learned Defendant’s counsel, cited and relied on Obikoya v. Wema Bank Ltd 5NWLR (Pt.239)28 para.D-E, wherein Niki Tobi JCA (as he then was, later JSC, now of blessed memory) in line with the doctrine of stare decisis, held thus: “I entirely agree with the position taken by the Supreme Court. Even if I do not agree, I have no option than to follow the decision. The rules of stare decisis are so compelling that this court can hardly do otherwise”. Concluding, counsel contended that the issue borders on jurisdiction and called upon the court to respect judicial precedent and uphold his submissions.
9. I have reviewed the processes in the case file as they relate to this Application as well as the submissions of both counsel filed and exchanged, in advancing each divide of the argument, hotly contested between counsel, as to- whether the name of the Defendant can be amended to reflect its correct name in the court processes, to properly bring it within the ambit of the court’s jurisdiction in respect of the claims against it as a Defendant in this suit. In my view, the sole issue for determination is whether the error in the Defendant’s name in the Suit herein is a misnomer that can be corrected to bring the name of the Defendant properly in the processes before the court?
10. Let me state right away that I agree with the part of the submission of the learned counsel for the Defendant/Respondent, to the effect that a suit cannot be validly maintained against a non-juristic party; that only legal persons- natural persons (qualified human beings) or artificial person (corporate entity) can be parties to litigation in court. But then, is this general rule absolute and not admit of any exception?
11. From the line of submissions of the learned Defendant’s counsel, he holds absolute view that this principle does not admit of any exception. To my mind, the crux of arguments of both counsel in this Application, is as to whether the general rule that a suit cannot be maintained against a non-juristic party admits of an exception by way of application of the concept of misnomer, which allows an amendment of such court process to bring in properly the legal person originally intended to be a party but which name was mistaken. Accordingly, the core of the discourse in resolving the sole issue set out for determination in the Application revolves around the nagging question- whether or not this concept of misnomer which allows a non-juristic party to be substituted in the circumstance where an error is found to be a ‘mistaken name of a legal entity’ even described as a non-juristic person, is correct and judicially approved by the Appellate Courts?
12. The pattern of arguments posited by both counsel confirms the extreme views held by each of the divide. On one hand, the learned Defendant’s counsel took the extreme position that a suit against a non-juristic party is incurable. On the other hand, the Claimant’s counsel took the other extreme and argues that misnomer can be corrected by amendment. Interestingly, both sides parade judicial authorities, even commonly decided by the Court of Appeal. Learned counsel for the Defendant/Respondent has however waved a kite of caution and reminded the court of the judicial obligation to follow judicial precedent. Again, I agree with his submission that a lower court is bound to follow judicial precedent acting under the hallowed principle of stare decisis. But then, that is after it becomes clear which precedent is established in event of conflicting precedents, as in the instant case. Nevertheless, this calls for closer scrutiny of the authorities and principles underpinning them within the context of the facts and circumstances of the case at hand.
13. Going forward, since the issue as to existence of misnomer is a question of fact, I need to find as a fact if, from the facts and circumstances of this suit, there is a misnomer, and if so, resolve the question, if it can be used as a ground to amend and revive a pending suit constituted against a non-juristic party.
14. It has been held in S.S.T.W Tech Ltd v. Ayinoluwa 5NWLR (Pt.1401)CA 551(So Safe Table Water’Case) @ 561, para.G-H that: “whether an error in the name is a misnomer or not is a question of fact and depends on the attitude of a reasonable man confronted with the writ in the circumstances of the case”.
15. What is misnomer? The concept of misnomer has been clarified in A.B Manu & Co. v. Costain (WA) Ltd 8NWLR (Pt.360); (1994) LPELR 14550(CA), wherein it was held that “Misnomer can be said to be a mistake in name- giving incorrect name to person(s) in the Writ of Summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. See the English Supreme Court Practice (White Book) 1988 Or.15 R.6- 15/6/13”.
16. I have taken a deeper review of the processes filed in this suit as it relates to the Application under consideration; in search of factual occurrence of misnomer in the circumstance of the suit. Two exhibits by the Claimant/Applicant came in handy- ‘Exhibits A and B’ attached to the Affidavit in Support of the Motion for Amendment of the court processes filed, as well as other averments in the Affidavit and Counter-Affidavit, for and against the Application, along with submissions of both counsel.The ‘Exhibit A’ is the Contract of Service made on 2nd November 2012, said to be “BETWEEN: OAS HELICOPTER LEASING & CHARTER SERVICES AND ENGR.BENJAMIN OKAFOR”. The ‘Exhibit B’ is the Termination Letter dated 7th September 2018, was written in the letter headed paper bearing and described as: “OAS HELICOPTERS: HELICOPTER LEASING & CHARTERSERVICE”.The Claimant also averred in paragraphs 8 and 9 of his Affidavit in Support of the Application, to the effect that he was deceived into believing that the OAS Helicopters was the correct name of the Defendant. In paragraph 8, he states: “That notwithstanding the Defendant/Respondent’s registration with Corporate Affairs Commission as Odengene Air Shuttle Services Limited, the Defendant /Respondent dealt with me formally for six years with the name ‘OAS Helicopter Leasing /Charter Services even though they knew that, is not their registered name’. In paragraph 9, he states “That OAS Helicopter Leasing & Charter Services is just a fictitious creation of the Defendant/Applicant(sic) which they used in deliberately misleading me about their true name and identity”.
17. On the contrary, in the Defendant’s Counter-Affidavit, the Defendant brushed aside the averment of the Claimant that he was deceived. Without disputing exhibits A and B, still asserted that the Claimant ought to know the correct name of the Defendant in line of his duty relating with Regulatory Authority in his capacity as Director of Maintenance. The Defendant even asserted that the Claimant ought to have conducted search at the Corporate Affairs Commission to ascertain the correct name of the Defendant if he was in doubt.(See: paragraphs 7 and 8 of the Defendant’s Counter-Affidavit).
18. Let me quickly restate that a company duly registered with Corporate Affairs Commission (CAC) with a given corporate name, is required to use its corporate name in conducting legal business including litigation, as a company’s legal personality resides in its corporate name (See: S.37 CAMA). Nevertheless,a company can also use a trade name as catchy/easy to identify name for brand enhancement of its products/services. Thus, using such catchy name is not calculated to deceive or prohibited, but that the law imposed a duty on the company to publish its corporate name in its corporate documents, such as business letter headed papers and affix a sign post bearing its real corporate name (See: S.548(1) CAMA). According to a learned Author, “A corporate body usually operates with two names: Corporate Name and Trade Name. While Corporate Name is the Name with which the organization is registered with Corporate Affairs Commission (CAC) and Certificate of Incorporation bears, Trade Name is the name style by which the organization conducts its affairs/business. It is its ‘alias name’ and Brand Name. It is often short, easy going and catchy to enhance recognition and identification of the organization and its product..” (See: Nelson C.S Ogbuanya, ‘Essentials of Corporate Law Practice in Nigeria’ 2nd Ed., Lagos: Novena Publishers Ltd, p.256).
19. Going by the provisions of Section 548(1)(c) CAMA, publication of corporate name in a business letter head and affixing sign post indicating corporate name of a Nigerian company is a mandatory requirement, yet I find that exhibit B(letter of termination issued by the Defendant in its purported official letter headed paper)fall short of this mandatory legal requirement.
20. I find noevidence that the Defendant complied with the legal requirement to indicate its corporate name(Odengene Air Shuttle Services Limited) , even along its trade name (OAS Helicopter Leasing & Charter Services), always used, even in its sign post as averred by the Claimant. I will deal with the legal consequence of this breach in the later part of this Ruling.
21. At this point, from the records, I find that the mistaken name of the Defendant was induced by the Defendant who used the name severally while relating with the Claimant, right from the inception and end of their employment relationship. (See: exhs. A and B). I find that, in the circumstance, the Claimant genuinely believed same as a correct corporate name of the Defendant, and he clearly was not mistaken as to who he intends to sue as the Defendant in the suit, but merely made a wrong description of the Defendant using its trade name as frequently used by the Defendant. In my view, it would have been different if the Claimant sued a different entity which existed side by side with that of Defendant, thereby raising issue as to who actually among the two or more entities the Claimant would properly sue on his matter. Such a case would be that of suing a wrong party, and a challenge of the suit on ground of lack of proper parties can succeed. However, in the instant case, I find that by the Defendant’s own admission, both names belong to the Defendant, and there are no two or more entities, and the Claimant was not mistaken as to the actual Defendant he intends to sue, which in the instant case, is one and the same entity, but merely wrongly described in this suit. What more is a case of misnomer?
22. In the So Safe Table Water ‘Case (supra) the Court of Appeal, per my LordIyizoba, JCA @P.561, para.H, made a finding of fact on misnomer and held thus: “Given that the respondent is in business circle generally referred to as ‘So Safe Table Water’, it would have no doubt on being confronted with writ that it is the one sued. It is a clear case of misnomer”. I similarly find in the instant case that this is a clear case of misnomer. I so hold.
23. In my considered view, the thrust of arguments of the learned Defendant’s counsel that the Defendant named in the suit is a non-juristic person did not change the narrative and legal implication thereto, which is as to whether a wrong description of a name given to a party as Defendant in a suit is a misnomer, and if so, can it be corrected by amendment? This brings to the fore the core contention of the Defendant’s counsel.
24. In the course of research for this Ruling, I have noticed a trend of conflicting decisions of the Court of Appeal on the issue as to whether a non-juristic person can be substituted with a juristic person to save a suit affected by misnomer. What is however a common ground among the authorities on the issue, is that a misnomer can be corrected by way of amendment, but the tiny line of conflicting decisions were on whether in the course of the amendment, whether a non-juristic party can be substituted by a juristic party, even though satisfying the concept of misnomer that allows an amendment to make a correction of the original wrong name. Thus, the point of conflict is on whether misnomer applies to a non-juristic party for the purposes of substitution by amendment. I also foresee an ideological dilemma of clash of legal principles; where one principle seeks to save a case by allowing amendment of wrong name but the other seeks to strike it out on ground that it was not properly constituted originally.
25. Navigating through judicial precedents enmeshed in conflicting decisions of the Appellate Court is a no mean task. As a way out, I have taken a historical perspective in situating the cases on this pertinent issue, so as to enable me, in the circumstance, coast out of the conflicting decisions and toe a desirable judicial footpath, and survive the foray of the hallowed principle of stare decisis, being trumpeted by the learned Defendant’s counsel.I have noted four major cases allowing the substitution of non-juristic party in the circumstance of misnomer, and also another set of four major cases (in addition to the major ones relied on by the Defendant’s counsel) that disallowed such a substitution.
26. The earliest of the cases was decided in 1986 and the latest in 2015. The first is F.A Akinbobola Sons v. PhissonFisko Ltd 4NWLR (Pt.37) CA621, wherein it was held thus: “While generally speaking a party cannot be substituted for a non-juristic person, a substitution may be allowed if it can be shown that the true plaintiff or defendant who is a juristic person and present in court was wrongly given a non-juristic name”.
27. This principle was followed almost immediately in the same 1986 by another case of Mailafa v. Veritas Insurance 4NWLR (Pt.38) CA 802, wherein it was held that “Generally, a juristic person will not be substituted for a non-juristic person but an order for substitution should be granted on an application of either party if it is clearly shown that the name of the non-juristic person is a misnomer and the amendment is not prejudicial to the opponent”.
28.This position seems to have settled until 1996, when a contrary decision was handed in by the Court of Appeal, without citing and reviewing to repeal the existing principle. Thus, in Emecheta v. Ogueri 5NWLR (Pt.447) CA 227 @ 240 para.G-H, it was held that: “Naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person”. This principle was followed in the 1999 case of Njoku v. U.A.C Foods  12 NWLR (Pt.632)CA 557, @ 565, para.B, whereinthe court was very emphatic,when it held that: “An Amendment for substitution of a juristic person is not feasible and must be refused. There is nothing to substitute. Thus the Amendment to substitute a juristic person for a non-juristic person will not be allowed in the guise of a misnomer”.
29.However, in 2002, the Supreme Court in Maersk Line v. Adide Investment Ltd 11 NWLR (Pt. 778) 317; (2002)4 SC (PT.11)P.157(Maersk line’ Case), toed a different line and held along the line of earlier cases that allowed substitution of non-juristic person in circumstance of misnomer.The apex court held thus: “…However, that a person sued is not a legal person does not preclude the court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the court that it was a misnomer, such power of amendment is covered by the provision of Order 32 and such other enactments”. This is the core authority relied on by the learned Claimant’s counsel in support of his Application for the Amendment.
30. But inexplicably, in 2006, the Court of Appeal in Anaemene& Anor v. Obianyido&Ors.(2006)LPELR-11635 (CA), per Rowland JCA, while not following the Supreme Court decision in the Maersk line’Case (supra)approving substitution, went extreme against substitution, and again followed the Court of Appeal decision inNjoku v. UAC. It was held that “In the case on hand, as Diamond Bank Plc is not an existing person, I have no doubt in my mind that there was no misnomer in law. It was wrong for the learned trial judge to make an order substituting Diamond Bank Plc, a non-existing and non-juristic being with Diamond Bank Ltd, a juristic person”. This is one of the cases heavily relied on by the learned Defendant’s counsel.
31.In 2009 however, the earlier version in support of substitution came out again from the Court of Appeal in Arab Contractors (O.A.O.) Nigeria Ltd v. El-Rapael Hospital and Maternity Home Investment Co. Ltd & Anor (2009) LPELR-8733(CA), wherein it was held that:
“Where there is a mistake in the name of a party to litigation, such a mistake is described as a misnomer. It is a mistake as to name and not a mistake as to the identity of the party to the litigation. In cases of a misnomer an application can be made to amend the writ to substitute a juristic person for a non-juristic person but the Plaintiff seeking the amendment has a duty to show there were reasonable grounds of excuse in his use of the wrong name or in naming the Defendant wrongly. The Court has the power to amend the title of an action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it is a case of misnomer.”(emphasis mine).
32. Nevertheless, in 2011, another drift occurred. The Court of Appeal, in U.U.U.V, Isuofia v. U.V.Union 6NWLR (Pt.1243) CA394, although acknowledged the meaning and application of misnomer, yet held that it does not apply for substitution of non-juristic person. The court @ P.414, para.D-F, held thus: “A misnomer will arise where a party is sued in the wrong name, and the court will usually grant amendment to correct the mistake even on appeal. However, naming a non-juristic person as a party is not a misnomer and amending same to substitute a juristic person is out of it. This is because there cannot be a valid amendment of the title of a suit since there never was a legal person who was brought before the court by the action. Thus, the only option open to the court in such a situation would be to strike out the name of the non-juristic person”.
33. This principle and pattern disapproving amendment to substitute non-juristic person with juristic person in circumstance of misnomer was again followed in the two other 2012 and 2013 Court of Appeal, decisions of which were heavily relied on by the learned Defendant’s counsel- Zain Nigeria Ltd v. Ilorin (2012) LPELR-9249(CA) (Zain’Case)and Federal College of Education (Technical) Gusau& Anor v. Umar Abubakar (2013) LPELR-22203(CA)(FCE, Gusau’Case).In the Zain’Case, the court, while emphasizing that a non-juristic party cannot be substituted, held that even entering appearance by the Defendant would not cure the error. In FCEGasau’Case, although the court acknowledged occurrence of misnomer, yet disapproved substitution, holding that there was nothing to amend since the original party was a non-juristic person.
34. Interestingly, in 2014, the earlier version of the principle approving substitution of non-juristic person came on board and has remain the latest of the authorities on the issue at the Court of Appeal. In S.S.T.W Tech Ltd v. Ayinoluwa 5NWLR (Pt.1401) CA 551(So Safe Table Water’Case), the Court of Appeal per Iyizoba JCA, acknowledged and applied the Supreme Court’s decision inMaerskline’Caseapproving substitution of non-juristic person in circumstance of misnomer, and @ p.563, paras. F-G, held thus: “In the case of misnomer, an application can be made to amend the writ to substitute juristic person for a non-juristic person. However, the plaintiff seeking the amendment has a duty to show that there were reasonable grounds of excuse in his use of the wrong name or in naming the defendant wrongly”. The court further held @Pp.561-562, paras. A-C, that: “ where a person sued is not a legal person, it does not preclude the court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the court that it is a case of misnomer”. While ordering amendment of the wrong non-juristic name to reflect the correct name, the court held @ p.562, para.C, thus: “There is no doubt that in this case the correct entity ‘So Safe Table Water Technologies Ltd’ was taken to court under a wrong or incorrect ‘So Safe Table Water’. Therefore it is clearly a misnomer which can be corrected by an amendment”.
35. In 2015, the Supreme Court again considered the issue of substitution of non-juristic person by amendment in the circumstance of misnomer. In Omisore v. Aregbesola 15 NWLR (Pt.1482) SC205 (Omisore’Case), the apex court while referring to its earlier 2002 decision in the Maersk line’ Case (supra), @ p. 256, paras.A-H, held thus:“Where a description of a party on a process in a litigation is a mere misnomer, an amendment would suffice to put it right provided that the person mis-named is a juristic entity and is in existence. The essence of such an amendment is to ensure at all times that substantial justice is accorded to all parties to the dispute before them. In the instant case, the Supreme Court exercised its power to correct the slip in the name of the 2nd respondent as it was a case of misnomer”.
36. It is to be noted that none of the cases cited and relied on by learned Defendant’s counsel and all other similar ones which disapproved substitution neither cited nor reviewed any of the earlier or any of the Court of Appeal cases that approved of substituting non-juristic party with juristic person, which were earlier in time, including the Supreme Court’s decision in the Maersk Line’Case. Also, none of such cases recognized the ranging conflicting decisions of the Court of Appeal and failure to follow judicial precedent laid by the Supreme Court in line with the principle of stare decisis. Learned Defendant’s counsel also seems not to be interested in identifying any conflict in the long line of cases on the issue, but was quick to yowl his caution to the court to obey judicial precedents, while on his part, not offering any assistance as an officer in the temple of justice, who is obliged to bring to the attention of the court conflicting decisions or even decision of court not in his favour.
37. In my view, the consistent judicial precedents on this issue remains the latest 2014 decision of the Court of Appeal in the ‘So Safe Table Water’ Case‘(supra),and the 2015 Supreme Court’s decision in Omisore’Case(supra) , which are in accord with the earliest decisions of the Court of Appeal from 1986 and followed by the Supreme Court’s 2002 Maersk line’ Case . Same are in tandem with the facts and circumstances of this instant case, of which I am bound to follow in line with the hallowed principle of stare decisis, as hoarsely canvassed by the learned Defendant’s counsel in his submissions. I so hold.
38. Accordingly, I find that the learned Defendant’s counsel by his posturing that a non-juristic person cannot be substituted for juristic person, seems to have misconceived the concept of misnomer and blurred the power of court to correct such error by way of amendment of the court’s processes. Simply put, misnomer is all about wrong use of a name of a legal entity. That is - mistake as to ‘name’ of an existing legal entity not about its ‘identity’. Once the intended entity to be sued is a juristic person, it is immaterial that it was described with a non-juristic name. I so hold. Conversely, it would be otherwise, if the entity sued is a juristic person yet being a wrong party intended to be sued or to be substituted with a non-juristic entity. That type dealing with suing ‘wrong person’ or ‘substituting juristic with non-juristic person’ cannot be corrected under the concept of misnomer. But that is not the type under consideration in the instant case, as the learned Defendant’s counsel would erroneously want this court to believe.
39. On that note, I find that the instant case is a clear case of giving ‘the right person a wrong name’ and seeking to correct the ‘wrong name to its rightful name’, which is a legal entity imbued with juristic personality. In such a circumstance, I hold a stout view that a corporate entity sued in wrong name can be corrected, as such falls within the confines of the concept of misnomer that allows correction by way of amendment of the court process, as in the instant case. I so hold.
40. That being the case, the issue as to whether an amendment can be allowed to correct an error of misnomer in court process, has been settled by the Supreme Court in Agbule v. W.R & P. Co Ltd (Agbule’s case)  6 NWLR (Pt. 1350) SC 318 @ Pp. 341-342, Paras. D-A, wherein the apex court, relying on the earlier case of Afolabi& 2 Ors.v. Adekunle& Anor (1983) SC98; 2SCNLR 141, heldthat:
“It is the duty of court to aim at and to do substantial justice and allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice and the end of litigation. Although the rules of court should be followed by parties to a suit, justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities to the detriment of the determination of the substantial issues between them. Therefore, the power of courts to correct a misnomer is inherent. The court under its inherent powers has the jurisdiction to correct such inconsequential errors which do not require any formal application to be made. In the instant case, the wrong use of the respondent’s name did not overreach or put the respondent to any form of disdain in absence of any earlier complaint thereof. The use of the name was at best a misnomer which did not occasion any negative effect”.
See also: Olu of Warri v. Esi (1958) SCNLR 384; Maersk Line v. Adide Investment Ltd 11 NWLR (Pt. 778) 317; MTN Communications Ltd v. AkinyemiAluko& Anor (2013)LPELR-20473.
41. I therefore hasten to adopt the reasoning of the Supreme Court in the Agbule’s Case;Marskline’ Case and Omisore’Case, as well as the Court of Appeal’s decision on the issue as held in theSo Safe Table Water’ Case-all of which I find applicable to resolve the sole issue raised for determination in this Application. In the circumstance, this Application succeeds. I so hold.
42. Accordingly, an Order is hereby made correcting the misnomer, that is to say, ‘OAS HELICOPTERLEASING & CHARTERSERVICES’ wherever it appears on all the processes to read ‘ODENGENE AIR SHUTTLE SERVICES LIMITED’, and additionally marked ‘as ordered by this court on 29th May 2020’. The Amended processes shall be re-served on the Defendant through its counsel. This Suit shall so proceed as such. I so hold and direct.
43. I had noted earlier in this Ruling the issue of consequence of breach by the Defendant of the extant law requiring the clear publication of corporate name in all business documents of the company and in its sign posts. The Prayer (3) of the Application seeks for an omnibus relief to be awarded by the court in the circumstance of the case. I find that it is this failure to properly disclose and make use of the corporate name of this Defendant Company as stipulated by S.548 (1) (c) CAMA that led to this Application, which incidentally is being challenged by the same Defendant that is in breach of the extant law. The learned Claimant’s counsel had drawn attention of the court to this anomaly in his submissions.
44. I also find incongruous the hostile opposition by the Defendant to allow the correction of the name by way of amendment as misnomer and concentrate on the substantive matter in dispute between the parties. The Defendant rather, wants to benefit from its own wrong by insisting that the Claimant ought to have conducted search in the Corporate Affairs Commission (CAC) to ascertain the correct name of the Defendant, not minding that it offered its employment to the Claimant and terminated the employment using its said fancy name and not with its corporate name, without offering any explanation. Yet the same Defendant vehemently opposed an Application for Amendment to correct the name to its corporate name embedding its corporate legal personality. A court of law and justice cannot allow this behaviour to continue to thrive and cause more deception and potential litigation even among the insiders of the company not to talk of the outsiders that ought to know at a glance the corporate name of a company they are dealing with if the Defendant complies with the extant law requiring it to publish its corporate name in certain platforms. This in my view is the whole essence of requiring corporate name to be published in relevant places as stipulated by the extant provisions of CAMA.
45. In the circumstance, I hereby invoke the court’s inherent and equitable jurisdiction to grant a consequential /ancillary relief in the circumstance of this case, to curb this mischief. Iam guided by the recent decision of the Supreme Court on application of principle of equity to curb mischief. In Tonimas (Nig)Ltd. v. Chigbu 6NWLR (Pt.1720)SC237, the apex court @ p.250, para.E, held that: “Equity acts in personam and would not allow a party to benefit from his own wrong or mischief”, and @ Pp.251-252, paras.H-A, while emphasizing the role of court in application of the principle of equity, further held that: “ The court of justice is the keeper of conscience and will prevent a person from acting against the dictates of conscience”. I so hold.
46. Accordingly, the Defendant is hereby ordered to comply with the provisions of S.548 (1)(c) CAMA with respect to publication of its corporate name, particularly with its business letter headed papers and sign posts in its offices nationwide, and is hereby restrained from using any such corporate document in relation to employment-related contracts/transactions and onanyworkplace officenot in full compliance with S.548 (1) (c) CAMA, with respect to publication of its corporate name as stipulated therein. The Defendant is hereby further directed to file at the Court’s Registry evidence of compliance with this order, before the trial of this suit.
47. Cost of N100, 000.00 (one hundred thousand naira) is hereby awarded against the Defendant in favour of the Claimant’s counsel.
48. Ruling is entered accordingly.
HON. JUSTICE N.C.S OGBUANYA