AGBONMAGBE BANK LIMITED (PLAINTIFF)
(1) GENERAL MANAGER, G.B. OLLIVANT LTD
(2) MR JAMESON, THE SALES MANAGER, G.B. OLLIVANT LTD. (DEFENDANTS) (1961) All N.L.R. 125
Division: High Court of Lagos
Date of Judgment: 7th March, 1961
Case Number: Suit No. LD/29/1960
Before: Dickson, J.
Action-Preliminary objection-Defendant non-juristic person-Misnomer-Defendant struck out of action.
In Statement of Claim first defendant was named as "General Manager, G.B. Ollivant Limited" Preliminary objection that such name was not of a person known to the law; such a person could not be sued, and ought to be struck out of the action.
(1) that as "G.B. Ollivant Limited" is by itself a legal entity the words "General Manager" were merely descriptive of the person representing that company.
(2) That the description of first defendant was a misnomer which could be amended by leave.
(1) First defendant was not a juristic person, and as such could not be sued.
(2) There was no misnomer of first defendant as this was not a case where the defendant had been sued in a wrong name. The cases cited by plaintiff dealt only with instances where actions were commenced in the name of the wrong person, and this was not the case here.
First defendant struck out of the action.
Cases referred to:-
Walters v. Green (1899) 2 Ch. 696; 68 L.J. Ch. 730; 81 L.T. 151; 63 J.P. 742; 48 W.R. 23; 15 T.L.R. 532.
London Association for Protection of Trade v. Greenlands Limited (1916) 2 A.C. 15. 85 L.J.K.B. 698; 114 L.T. 434; 32 T.L.R. 281; 60 Sol. Jo. 272.
Olu of Warri v. Chief Sam Warri Esi (1958) 3 FSC 94.
Adewale Thompson (with him Awogboro) for Plaintiffs.
Okorodudu for Defendants.
Dickson, J.:-By his writ of summons the plaintiff claims against the defendants, jointly and severally, the sum of £5,000-0s-0d being general damages for libel and slander.
When the suit came on for hearing on the 2nd day of March, 1961, Chief Okorodudu, Counsel for the defence, raised a preliminary objection, which was argued. At the conclusion of the argument he suggested that in order to save time the court could proceed directly to hear evidence, and give its ruling at a later date-either during, or at the end of the hearing. Mr Thompson, plaintiffs' Counsel, agreed to this course.
In consequence of Mr Okorodudu's submission, amendments were there and then made to certain paragraphs of the Statement of Claim, and ruling was reserved on one aspect only, which I now propose to deliver. In the meanwhile some evidence had been taken.
It is necessary and convenient to review briefly the history of the proceedings:
Pleadings were ordered on the 22nd February, 1960. Statement of Claim was filed on the 11th March and Statement of Defence on the 29th April. Paragraphs 1 and 2 of the defendants' pleading read:
1. The defendants will object by way of a preliminary point, that the first defendant as sued is not a legal person and that consequently the first defendant be struck out of the action. Thereafter, and in the alternative, the defendants plead as hereinafter appearing.
2. The first defendant will object that paragraph 5 of the Statement of Claim be struck out as disclosing no cause of action.
It is on the matters contained in the above paragraphs of the Defence that my ruling is now given.
On the 8th June, Mr Awogboro filed a motion containing two prayers. The first asked that the names of the parties be amended by adding the letters and words "R.P. Sumner" to the first defendant; and the second, that certain words be added to paragraph 5 of the Statement of Claim.
I am constrained to believe that had it not been for the matters raised in paragraphs 1 and 2 of the Defence, at least, the first prayer would not have been before the court. It seems to me that plaintiffs' Counsel was put on his guard by the defendants' pleading.
The motion came before Bennett, J., on the 25th June, who dismissed it in the following terms:
In view of pleadings motion dismissed. It has been urged before me by defendants' Counsel that the first defendant, as named, is not a juristic person. It is a post and except there is a statute making it a legal person it cannot bring or defend an action.
Mr Thompson, who now appears with Mr Awogboro for the plaintiffs, submits that "G. B. Ollivant limited" is a legal entity and "General Manager" is descriptive of the person representing that Company.
To my mind it is patent that the General Manager of G. B. Ollivant Limited is not a legal person. The post is subject to succession-it is not a partnership nor a corporate body nor is it a creation of statute.
It seems to me that the plaintiffs have resided from the position they took before Bennett, J. There, it would appear from paragraph 2 of the Affidavit in support, that they realized that it was very necessary to amend the name of the first defendant, and it implies that they were aware that the "General Manager G. B. Ollivant Limited" was not a legal person. Before me, it is being propounded that the "General Manager G. B. Ollivant Limited" is a legal entity.
It has also been submitted for the plaintiff (but it could hardly have been with conviction), that the defence should have come by way of what is commonly called demurrer for an order of dismissal under Order 28, if it is desired to have the first defendant struck out. In my view that contention is not sound. It is stated in the Annual Practice 1961, at 351, that at the trial or hearing, preliminary objections as to the Constitution of the action in respect of parties are often taken. The case of Walters v. Green (1899) 2 Ch. 696 is cited.
It has been contended, as another reason for refusing the application, that the first defendant has by delivering pleadings joined issue. The principle involved in this matter cannot be a matter of waiver: see London Association for Protection of Trade v. Greenlands Limited (1916) 2. A. C. 15, at 38, per Lord Parker of Waddington.
With respect to the learned judge, it would appear from the authorities that, if leave to amend the writ is sought in a case of misnomer, it should be granted: see Olu of Warri v. Chief Sam Warri Esi (1958) 3 FSC 94. In that case Ademola, F.C.J. said:
The cases Establishment Baudelot v. R.S. Graham and Co. Limited, and Alexander Mountain and Co. v. Romere Limited cited by Counsel are authorities to show that in case of misnomer, if application is made to amend the writ by substituting the proper names it should be granted.
Admittedly, those cases deal only with instances where the actions were commenced in the name of the wrong person, i.e., there was misnomer of the plaintiffs; but, I do not think the principle established is limited to that category of party.
Be that as it may, it is observed that the order dismissing the application was made on the 20th June, 1960, and there has been no appeal against it. It was an interlocutory order, and though not conclusive of the main dispute, is conclusive as to the subordinate matter with which it deals: 19 Halsbury, 2nd edition208 footnote (i).
As this is clearly a case where according to the writ the first defendant as sued is not a legal person the first defendant is accordingly struck out of the action, and as a natural and logical consequence paragraph 5 of the Statement of Claim must also be struck out.
First Defendant struck out.