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The South–South Zone of the Tax Appeal Tribunal holden in Benin has struck out an application for amendment of an Appeal filed by the Bayelsa State Board of Internal Revenue against Lozzy Super Market for lacking merit.
The Panel led by Hon. Anselm Unimna held that neither Lozzy Super Market nor Lozzy Supermarket Enterprise possesses juristic personality capable of suing or being sued, and therefore the defect in the appeal cannot be cured by amendment.
From facts, the Appellant, Bayelsa State Board of Internal Revenue had approached the Tribunal seeking leave to amend its Notice of Appeal and all accompanying processes in order to properly reflect the name Lozzy Supermarket Enterprise trading in the name and style of Lozzy Super Market.
The Bayelsa State Board of Internal Revenue submitted that the respondent was mistakenly described as Lozzy Super Market in the Notice of Appeal and other accompanying processes, and that a subsequent search conducted at the Corporate Affairs Commission revealed that the proper description of the business is Lozzy Supermarket Enterprise trading in the name and style of Lozzy Super Market.
The Bayelsa State Board of Internal Revenue further averred that the mistake complained of is a mere misnomer which does not affect the substance of the appeal, and urged the Tribunal to grant the application.
In opposition, the respondent, Lozzy Super Market, opposed the application and argued that the amendment sought amounts to an admission that the appeal as constituted is incompetent, maintaining that the entity sued does not possess juristic personality recognised by law.
Lozzy Super Market further contended that it is settled law that where a party sued does not exist in law, the entire proceedings become a nullity and cannot be saved by the doctrine of misnomer, as misnomer presupposes the existence of a real legal person whose name was merely wrongly stated.
Lozzy Super Market therefore urged the Tribunal to dismiss the application for lacking merit.
In a well-considered ruling after evaluating the affidavit evidence and submissions of both parties, the tribunal led by Hon. Anselm Unimna as Chairman; Hon. Asoro Elvis Osariuyimen, Hon. Prof. Ofiafoh Eiya and Hon. Sunday A. Aborisade, as members held that a business name registered under Part B of the Companies and Allied Matters Act does not possess a legal personality separate from its proprietor.
The Tribunal maintained that both Lozzy Super Market and Lozzy Supermarket Enterprise are business names which cannot sue or be sued in their own names and that it is only the proprietor of the business name that can maintain or defend an action before a court or tribunal.
The Tribunal affirmed that the defect in the appeal is not a mere misnomer capable of being corrected by amendment but a fundamental issue relating to lack of juristic personality.
The Tribunal held that the application filed by the Bayelsa State Board of Internal Revenue lacked merit and accordingly refused the application for amendment.
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