⦿ CASE SUMMARY OF:
Iyke Medical Merchandise v. Pfizer Inc. & Pfizer Products Plc (2001) – SC
⦿ LITE HOLDING
Only juristic persons have the inherent right and/or power to sue and be sued in their names. Non-legal persons or entities, again as a general proposition of law, may neither sue nor be sued except, of course, where such right to sue or be sued is created and/or vested by or under a statute.
⦿AREA OF LAW
– Administrative Law.
– Juristic personnel.
Iyke Medical Merchandise
Pfizer Inc. & Pfizer Products Plc
(2001) JELR 44272 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
– Mr. Ogunkeye.
⦿ FACT (as relating to the issues)
This action has its cause in the tort of passing-off. The plaintiffs (now respondents) claim to be entitled to the trademark of a pharmaceutical product, a worm expeller for the treatment of worms in children and adults, known as COMBANTRIN PLUS duly registered under Trade Mark No.31159. There is another pharmaceutical product branded COMBINTERIN put on public sale by the manufacturer/distributor going by the trade name IYKE MEDICAL MERCHANDISE sued as the defendant (now appellant). The said COMBINTERIN is offered for the treatment of worms in both children and adults as though the plaintiffs’ COMBANTRIN.
In the meantime the appellant brought a motion praying that the suit together with the motion for interim injunction be dismissed on a number of grounds. It is enough for me to mention four, namely: (i) that the defendant is a non-legal entity and cannot sue or be sued; (ii) that the 1st plaintiff is a foreign company and cannot sue or be sued in Nigeria; (iii) that the 2nd plaintiff has no reasonable cause of action or locus standi to institute the suit; and (iv) that the court lacks jurisdiction to try the matter as there are no proper parties before the court.
The Trial Court heard the motion and allowed it consequently striking out the defendant’s name for being non-juristic.
The respondent appealed to the Court of Appeal which allowed the appeal; this appeal is herein brought by the defendant.
1. Whether the Court of Appeal was right in holding that Ethel Okonkwo is the person carrying on business as IYKE MEDICAL MERCHANDISE and Order 13 rule 42 of the High Court (Civil Procedure) Rules of Lagos State 1972 applied in the circumstances.
2. Whether the entry of appearance without more is a waiver by Ethel Okonkwo of his right to object to the service of court processes on him and the constitution of the action as to proper parties to the suit.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN THE AFFIRMATIVE.
i. Although actions against partners may be in the name of the firm in which they are partners, the law is that there is no necessity of finding out the names of the individual partners. This is important as will be apparent shortly. The firm has no existence and the name is a mere expression, not a legal entity. It is used as an expedience under the rule. It is a method of expressing the persons (as partners) who made up the firm at the time the cause of action arose. It may therefore be used for the sake of suing and being sued.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Uwaifo
Nothing was explained further particularly as it is obvious that he could not, naturally, be called Iyke Medical Merchandise. In a matter like this, it is enough to effect service on a partner (in the case of partnership firm) or, which is quite appropriate, service on a person having de facto control or management of a business using a business name and at the principal place of business. Obviously, Ethel Okonkwo was such a person. I find no merit in this appeal and accordingly I dismiss it with N10,000.00 costs to the respondents. It is ordered that the action should proceed to trial before another Judge with a minimum of delay since it was filed in 1993 and the issue involved is of utmost public importance.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Partnership firm, of course, presupposes two or more persons who make it up. In the present case, there is some assumption, I suppose, that the appellant is a mere business name; or at any rate, the case has not proceeded on the basis that a partnership is involved. In that circumstance, the Federal High Court (Civil Procedure) Rules have not directly provided whether such a business name can be sued eo nomine. – Uwaifo, JSC. Iyke v. Pfizer (2001)
Order 14, r. 42 of the High Court of Lagos (Civil Procedure) Rules, 1994 states: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm’s name; and so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.”
Juristic persons who may sue or be sued eo nomine have been recognised to include: (i) Natural persons, that is to say, human beings; (ii) Companies incorporated under the Companies Act; (iii) Corporations aggregate and Corporations sole with perpetual succession; (iv) Certain unincorporated Associations granted the status of legal personae by law such as: (a) Registered Trade Unions; (b) Partnerships and (c) Friendly Societies or Sole proprietorships. See – Fawehinmi v. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt.105) 558. – Iguh, JSC. Iyke v. Pfizer (2001)
I think the provision in Order 4 rule 6 of the Federal High Court (Civil Procedure) Rules 1976 is clear that a firm composed of two or more partners may sue or be sued in the firm’s name i.e. eo nomine. The said rule reads: “6. Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the court may direct.” – Uwaifo, JSC. Iyke v. Pfizer (2001)
Similarly an order for discovery against a firm is an order against the partners. – Uwaifo, JSC. Iyke v. Pfizer (2001)
In Fawehinmi v. Nigerian Bar Association (supra) the reason why that Association was regarded as an entity which did not have the capability of being sued eo nomine was that it was not a creation of statute nor was there any law or rule of court recognising it as a suable entity. In the present case, there is a rule of court which makes it possible for the appellant to be sued eo nomine. That should not be overlooked. Learned Counsel for the appellant seems unwilling or unable to recognise this when in fact the language of the rule is very plain and unambiguous. – Uwaifo, JSC. Iyke v. Pfizer (2001)
It could happen that a person may carry-on business in a name other than his name but may fail to register it as required under Part B – Business Names – of the Companies and Allied Matters Act, 1990. Such persons undoubtedly come within those who conceal their names. The solution to such device by that type of persons can be found in the rule that allows suing them in the name in which they carry on business. And this is intended to obviate obstacles against actions against them if their real name had first to be ascertained. So the question of the production of the Certificate of Registration of the business name as submitted by learned Counsel for the appellant would not arise and becomes a non-issue. If it happens that the business name had not in fact been registered, that would be a contravention of s.667 of the Act and there are penalties provided. That does not provide immunity against being sued in that name, whatever its status, in accordance with the said Order 14, r.42 applicable in the Federal High Court. – Uwaifo, JSC. Iyke v. Pfizer (2001)