If you sue a Defendant in a Wrong Name, is the suit Void or does it nees Correction?

When a defendant's name is wrong

The Court of Appeal in the recent case of ENGINEER EMMANUEL CHUKWUEMEKA OKEKE v. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781(CA) had to decide on this issue.

Engr. Okeke sued Nnamdi Azikiwe Teaching Hospital over a contract. The matter went to arbitration and the hospital participated. The Arbitrator gave an award in favour of Engr, Okeke. When Engr. Okeke approached the High Court for the enforcement of the Award, the University raised an objection at this point and contended that the proper party to be sued was the Nnamdi Azikiwe University Teaching Hospital Board of Management in accordance with the law setting it up.

Their Lordships made the following pronouncements, which I consider very just and equitable and fully underscores the need for lawyers to pursue justice, instead of technicalities:

“Granted that the name used to describe a legal or juristic person may not be correctly or fully descriptive of that person, it does not detract from the fact that the person is nonetheless a legal or juristic person. I have to say that it is not the specific name under which is a person sued that decides whether or not the person is a juristic person. What determines that issue is whether or not a natural person exists who bears that name or a similar name or had in fact hitherto bore that name. If it is a creation of statute, it is the recognition of that artificial person under an extant law that is relevant. See Bank of Baroda v. Iyalabani Co. Ltd (2002) 13 NWLR Pt. 785 Pg. 551.

It is my humble view that there appears here to be a general error regarding the issue of juristic personality and one of misnomer of parties especially in a legal process. A misnomer has been described as occurring where the natural or legal person actually exists but a wrong name is used to sue. See Emespo Continental v. Corona S. MBH (2006) 11 NWLR Pt. 991 Pg. 365 at 378. Looking at the initiating process of the suit, there is no doubt that the Respondent would be in no doubt that it was the Management Board that was sued being the name that the Appellant ought to have used. The Appellant merely got the appropriate name wrong. This to me is a case of misnomer. See Mailafia v. Veritas Insurance (1986) 4 NWLR Pt. 38 Pg. 802 at 812.

The most important and relevant ratio in that case pertinent also to this case is that the Respondent never denied the existence of a contract between the parties by their pleadings before the Arbitral Tribunal, and their affidavit evidence to strike out the suit at the trial Court and the brief of arguments filed in this Court, neither did the Respondent deny that the Appellant had performed part of the contract between the parties and that the Respondent benefitted from the consultancy services of the Appellant. Their main argument has been that the “body” which contracted with the Appellant is not a juristic person.

In Sosan v. HFP Engineering (Nig) Ltd (2004) 3 NWLR Pt. 861 Pg. 546, Onalaja JCA went to town on how a Court of equity should deal with this type of situation. His Lordship stated unequivocally at page 573 as follows:-

“Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. In pursuance of the principle that law should serve public interest, the Courts have evolved the technique of construction in bonampartem”.

In Sosan v. HFP Engineering (Nig) Ltd (supra), the Appellant after benefitting from a contract, sought to declare the contract void because the Governor’s consent was not obtained before the sub-lease agreement was executed by the parties. The contract between the parties was one which would otherwise be unlawful.

I am also of the firm view that Section 169 of the Evidence Act 2011 on estoppel is very apt to the circumstances of this case. It states as follows:-

When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

I cannot agree with the argument of the Respondent’s counsel that the Appellant should have joined the Nnamdi Azikiwe University Teaching Hospital Management Board for the enforcement of his Arbitration award because the Respondent is not a juristic person.

In the circumstances of this case, I have to interpret the contract between the parties as one in bonampartem or bonafide. How was the Appellant to know the minute provisions of the Nnamdi Azikiwe University Teaching Hospital Act, when the Principal Officer of the Teaching Hospital namely the Chief Medical Director no less at the time entered a contract with him in the name of the Teaching Hospital simplicita and not in the name of the Board.

Bona fide means good faith, that is the standard of conduct expected from a reasonable person especially in making contracts and similar actions, acting without fraudulent intent or malice. It seems to me that the argument put up by the Respondent and accepted by the learned trial judge that the contract is void because the Respondent as named is not a legal entity smacks of an overt show of bad faith at best.

The interpretation of the contract must be done in such a way that we are bound by equity to ignore a literal interpretation of the name of the Respondent without the phrase “Management Board” and to assume that Teaching Hospital an aphorism of saying Teaching Hospital Management Board which had mobilised the Appellant to commence consultancy services, part paid contract sums and submitted itself to arbitration and even paid arbitration fees, cannot turn around to resile from the contract agreement and the arbitral proceedings it had submitted to and participated in.”Per OGUNWUMIJU, J.C.A. (Pp. 18-22, Paras. D-F).

“In this case, there is no doubt that the wrong description of the Respondent has not misled the Respondent. Also, hearing and determining the case with the name of the Teaching Hospital used in entering the contract between the parties instead of the Teaching Hospital Management Board would not have caused miscarriage of justice in the circumstances of this case. See Ajadi v. Ajibola (2004) 16 NWLR Pt. 898 Pg. 91; Bajoda v. Government of Nigeria (2007) All FWLR Pt. 394 Pg. 273.”Per OGUNWUMIJU, J.C.A. (Pp. 11-16, Paras. A-E)”

I hope this case gets the Supreme Court and that the Supreme Court will affirm this more liberal and less technical approach. Some of our judgments in the past have been based more on technicalities than justice. I have recently written on some decisions in matrimonial causes where a Petition for Divorce is dismissed because the verifying affidavit was made on a separate page instead of same being made “on the body of the petition”.

This case should represent the modern approach to litigation. Judges and Lawyers should put justice above any other consideration. We are all officers in the temple of justice and not in the temple of Technicality. Recently, a Counsel raised an objection to the service of a court process on the ground that DHL that made the service is not a juristic person capable of serving a process. This is despite the fact that in the same affidavit they admitted receiving the process and stating that the Managing Director of the company was out of town and could not brief the Lawyers, hence the delay in filing their response. So, here was a company that was served a process by substituted means pursuant to a valid court order, received same and briefed a lawyer and now the lawyer seeks to truncate the suit because DHL is not a juristic person.

We need a new approach to litigation that focuses more on justice than technicality.


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