Abstract
The Black’s Law Dictionary defines a “misnomer” to mean, a mistake in name; the giving an incorrect name to a person in a pleading, deed, or other instrument. The debate on whether a plaintiff’s name can be amended comes down to the court's discretion, whether or not the courts consider it a misnomer, and how the courts are willing to exercise their discretion. It is settled law that trial courts, in Uganda are allowed free hand to exercise their discretion to amend pleadings any time before judgment provided no new issues have been introduced thereby.
The Law on a “Misnomer”
When a party sues or is sued in the wrong juristic name such as ROHERM LTD as opposed to ROHERM CO LTD, the courts may consider it a misnomer. A misnomer in law means an error in naming a person, place or thing or the use of a wrong name to refer to a person or thing.
Misnomer occurs when a proper party is incorrectly named, not when there is a mistake in the party’s identity. A defect in the name of the Plaintiff is a curable defect and hence, a court can use its discretion to order for an amendment of such as explained herein below:
Article 126(2) (e) of the Constitution provides as follows;
“In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principle: - (e) substantive justice shall be administered without undue regard to technicalities.”
Order 1 Rule 10(1) of Civil Procedure Rules provides as follows;
“Where a suit has been instituted in the name of the wrong person as Plaintiff, or where it is doubtful whether it has been instituted in the name of the right Plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as Plaintiff upon such terms as the court thinks fit.”
Order 1 Rule 10(2) of Civil Procedure Rules provides that;
“The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
Order 6 Rule 17 of Civil Procedure Rules provides that;
“No technical objection shall be raised to any pleading on the ground of any alleged want of form.”
Exploring The Relevant Court Authorities
Justice Musa Ssekana, in his book Civil Procedure and Practice in Uganda on page 39, states as follows;
“Where the names of the Plaintiff have the same original derivation but different spellings are used, then the use of one for the other is a misnomer which can be corrected. Likewise, a court will grant an amendment where the name is hem sonams (sounding alike) with the correct name.”
More so, Justice Musa Ssekana, in his book Civil Procedure and Practice in Uganda, states that when the name used represents some person or thing in existence, but the party is technically a non-existent person or body because of the incorrect spelling of a corporate name or the use of a trading name etc. the court will treat the error as a misnomer under the rules (Order 1 Rule 10 of CPR).
In AC YAFAENG CONSTRUCTION LIMITED Vs THE REGISTERED TRUSTEES OF LIVING WORD ASSEMBLY CHURCH & UNITED BANK OF AFRICA, HCComm. Division, Misc. Civil App. No. 0001 of 2021 (Arising from Miscellaneous Cause No. 0001 of 2021]; Justice Stephen Mubiru held as follows;
“It is common ground that the applicant by the name stated in its pleadings is a non-existent entity. Whereas counsel for the 1st respondent argued that this is a fatal error, it is contended though by counsel for the applicant that this was the result of a typing error by counsel, which should not be visited on the company and is curable by amendment.”
In the same decision above, Justice Stephen Mubiru explained the aspects of “Misidentification and Misnomer”.
He states and I quote,
"In the instant case, though the applicant claims the non-existence of the plaintiff’s name, the respondent on the other hand states that this is a misnomer, which can be resolved/cured as a technicality by this Honourable court."
He further adds that where a suit is filed by a non-existent party, such an error cannot be cured by an amendment (see The Trustees of Rubaga Miracle Center v. Mulangira Ssimbwa, H.C. Misc Appl. No. 576 of 2006).
On the other hand, an amendment may be allowed in case of a misnomer (see J.B. Kohli and others v Bachulal Popatlal [1964] E.A. 219 and J.B. Kohli and others v. Bachulal Popatal, [1964] EA 219). While one involves a change of identity due to identifying the correct person, the other arises when the person is certain but he or she is given an incorrect name.
The learned judge continues and explains that in short, whereas counsel for the respondent argued a case of misidentification, counsel for the applicant argued a case of misnomer.
Whereas Misidentification occurs when an entirely wrong person is named, different from the one intended. This arises when two separate actually exist and an author mistakenly writes a name similar or identical to that of the correct person.
In contrast, Misnomer occurs when the identity of the person is certain but he or she is given an incorrect name. Cases of a misnomer are such that the person whose name is written is known and is the one whose name is intended to be written incorrectly or an entirely wrong name is written. ( See Ac Yafaeng Construction Limited vs. the Registered Trustees Of Living Word Assembly Church & United Bank Of Africa (supra), on page 3)
The misnomer principle is the process by which a court determines the attribution of a name. For the doctrine of misnomer to apply, it is required that: (1) the author intended to name the subject to whom the name is now being attributed; and (2) a reasonable person would attribute the name to the person to whom it is now intended to be attributed.
Misnomer arises when the author merely misnames the correct person as opposed to not being unable to identify the correct person (See Ac Yafaeng Construction Limited vs. The Registered Trustees Of Living Word Assembly Church & United Bank Of Africa (supra), on page 3).
If any party to the action is improperly or imperfectly named on the writ and no change of identity is involved, the misnomer may be corrected in the statement or claim by inserting the right name with a statement that the party misnamed had been sued by the name or the writ e.g “John William Smythe” sued as “J.M. Smith.”
A Defendant cannot take advantage of such alteration (pleas in abatement of misnomer were abolished as long as 1834), but difficulty may arise in executing a judgment unless the Plaintiff amends the writ.
The author also notes that where a Defendant has executed a deed by the wrong name, it is right to sue him by the name in which he executed it. (See W. Blake Odgers et al, Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, Eleventh edition, at pages 174-175).
Generally, expressions of names should be construed objectively to ascertain whether a reasonable person, with all of the background knowledge that would reasonably have been available to the author, would attribute the name to the individual to whom it is sought to be attributed.
The relevant question is; To which individual would a reasonable person attribute the name?
That attribution must generally be construed by reference to the unknown background facts. The test is whether or not a reasonable person reading the name, in all the circumstances of the case, and looking at it as a whole, may say to himself or herself,
“Of course, it must mean so and so, but they have got his or her name wrong.”
The misnomer doctrine applies to correct inconsequential deficiencies or technicalities in names (See Ac Yafaeng Construction Limited vs. the Registered Trustees Of Living Word Assembly Church & United Bank Of Africa (supra), at page 4)
Justice Stephen Mubiru states that; a classic misnomer is one in which the name contains a minor spelling error of the subject’s name or inclusion of a full middle name rather than merely an initial. If it is a case of a misnomer, the name could be corrected by replacing the erroneous name for the correct name. In misnomer cases, the correct person is identified, even if under the incorrect name (See Ac Yafaeng Construction Limited vs. the Registered Trustees Of Living Word Assembly Church & United Bank Of Africa (supra), on page 5).
“The test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course, it must mean me, but they have got my name wrong,” then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries,” then it seems to me that one is getting beyond the realm of misnomer.
One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.” (See Davies v Elsby Ltd [1960] 3 ALLER 672).
In the instant case, considering that “AC Yafeng Construction Limited” doesn’t exist in fact, this is not a case of misidentification, hence no change of identity is involved. The identity of the company that was contracted by the 2nd respondent is certain but was inadvertently given an incorrect name by omission of the word “Company” from its true name.
As a result, a reasonable person would attribute the applicant’s name to “AC Yafeng Construction Company Limited,” to whom it is now sought to be attributed.
This is a situation of a mere misnomer. This is not a case in which the notice of motion was filed by a nonexistent person, but one of mere misnomer for which the court ought to allow an amendment. I am therefore inclined to follow the decision in J. B. Kohli and others v. Bachulal Popatlal, [1964] EA 219 to find so and order that the applicant’s name be and hereby deemed corrected by amendment, from “AC Yafeng Construction Limited” to “AC Yafeng Construction Company Limited,” the party to the construction agreement from which the dispute has arisen (SeeAc Yafaeng Construction Limited Vs The Registered Trustees Of Living Word Assembly Church & United Bank Of Africa (supra), at page 5).
In the case of W. Hills & Sons vs. Tanner Hill [1944] 1 KB 472, it was held that;
“If a party is sued in an assumed name or one acquired by usage or reputation, an amendment will be allowed to correct such a misnomer.”
In Corp. of Township of North Shore v Grant, 2018 ONSC 503, it held by Master Graham;
“That where a Plaintiff seeks to amend or substitute another entity for itself, the issue is whether the “new” Plaintiff when the action was commenced and the Defendant reasonably ought to have been aware of which entity was pointing its litigating finger in its direction [emphasis in original].”
In circumstances where a Plaintiff seeks to correct its own name in the title of proceedings, the test is that; the “new” Plaintiff must have been an intended Plaintiff when the action was commenced, and the Defendant reasonably ought to have been aware of which entity was pointing the litigating finger in its direction.
In Trust Ventures Ltd v Powerfoam (U) Ltd (Civil Suit No. 669 of 2017) [2019] UGCommC 25 (3 September 2019), Justice David Wangutusi (as he then was) held that;
“It is my view that a misnomer refers to a mistake in naming a person, place or thing in a legal instrument which can be corrected by an amendment to the pleadings. It is also a well-established principle that a misnomer can under certain circumstances be rectified by an amendment replacing the name appearing on the Plaint with what the parties believe to be the right litigant;
In Attorney General vs Sanyu Television (1998) CS No. 614 of 1998, Kyaninga Royal Cottages Limited vs Kyaninga Lodge Limited HCMA 551 of 2018.”
Such correction of name however is only possible where the Plaint or Written Statement of Defence speaks the truth and the misnomer was done out of good faith.
It was ruled on admission that what makes it more credible that the name Trust Ventures Inc Limited is a misnomer is the fact that the Defendant made payments to Trust Ventures Inc. Limited as clearly admitted by her in paragraph 9 of the Written Statement of Defence.
In paragraph 9 of the Defendant’s Written Statement of Defence the Defendant admits making payment to the plaintiff in these words: “The Defendant partially admits the content of paragraph 4(i) to the extent of making a payment totalling to USD 3,187.” Furthermore, in paragraph 5 of the Written Statement of Defence the Defendant does admit transacting with the Plaintiff Trust Ventures (U) Limited. Justice David Wagutusi held that;
“The Defendant’s Counsel contended that the Defendant dealt with Trust Ventures Inc. and payments were made to her, was it to a non-existent entity? Interestingly, in a reply to the Notice of intention to sue, the Defendant writes to the M/D Trust Ventures Limited acknowledging indebtedness and requesting for time within which to settle the debt.”
Justice Wagutusi, ruled that the anomaly in the Plaintiff’s name was a bonafide mistake because the Defendant knew who she was dealing with from the onset of the arrangement between the parties. Secondly, the mistake was not misleading such as to cause reasonable doubt as to the identity of the person suing the Defendant. In light of the above, the learned judge ruled that the name Trust Ventures (U) Ltd was a mere misnomer and is curable. (See Trust Ventures Ltd v Powerfoam (U) Ltd (supra))
The above provision has been considered in a number of cases. In Utex Industries Ltd vs Attorney General, SCCA No. 52 of 1995, the Supreme Court emphasized that Article 126(2)(e) was not intended to wipe out the rules of procedures.
Furthermore, the Article reflects the saying that rules of procedure are handmaids to justice and should be applied with due regard to the circumstances of each case.
The approach of Nigerian courts when there is a misnomer has been to grant leave to amend so that issues in controversy between the parties can be properly determined. Thus, a misnomer can be corrected by an amendment. SEE PFIZER INCORPORATED V MOHAMMED (2023) 16 NWLR (PT.1379) 155 AT 174.
Courts would rather not impose sanctions merely for mistakes by parties. This has been decided in a plethora of cases MINISTRY OF COOPERATIVE & COMMUNITY DEVELOPMENT GOMBE STATE & ANOR (2018) LPELR-44091 (CA) ALSTHOM S.A. V CHIEF SARAKI (2000) 14 NWLR (PT. 687) P. 415; ALHJ MOHAMMED YUSUFUB & ANOR V CHIEF OLUSEGUN AREMU OLAKIOLA OBASANJO & 56 ORS (2003) 9-10 SC 53.
It is therefore important that in deciding whether or not a misnomer can be amended, the court focuses on the rights and substance of the parties and their case. This is more likely to achieve justice rather than punitively striking out cases with substance for mere mistakes of parties.
CONCLUSION
Whilst the above is the law, courts in exercising their discretion in this regard must look closely at the facts particularly, courts must consider the intention of the party that made the error – that is the fact the name intended to sue or be sued is a juristic person.
However, the party who is prejudiced must bring to the attention of the court and show that he has suffered an injustice as a result of the inelegance and mistake of the offending party.
Courts in exercising their judicial discretion must strive to do substantial justice when considering whether or not juristic/corporate names are misnomers. This must be done without giving in to technicalities occasioned by mere human errors.
By Rodrick Aryamanya
(Lawyer and a Legal Writer at Law Point Uganda)
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