LEGAL PRINCIPLE: CIVIL PROCEDURE – Parties – Distinction Between Partnership and Sole Proprietorship Under Rules of Court
PRINCIPLE STATEMENT
A point of distinction is, however, worthy of note from the above Rules. This is the fact that whereas a partnership may sue or be sued in the name of the firm under Order 4 rule 6 as aforementioned, Order 13 rule 42 vests the sole proprietor of the business only with the right to be sued eo nomine.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Iyke Medical Merchandise v. Pfizer Inc & Anor (2001) NLC-291996(SC) at p. 17; Paras A–B.
"A point of distinction is, however, worthy of note from the above Rules. This is the fact that whereas a partnership may sue or be sued in the name of the firm under Order 4 rule 6 as aforementioned, Order 13 rule 42 vests the sole proprietor of the business only with the right to be sued eo nomine."
EXPLANATION / SCOPE
Under the rules of court, a partnership may both sue and be sued in the firm’s name. However, a sole proprietorship may only be sued in the business name—it cannot sue in that name. The sole proprietor must sue in their own personal name. This distinction is critical. The rule recognises that a sole proprietorship is not a separate legal entity with capacity to sue. The sole proprietor is the real party. The business name is merely a trading style. For defence purposes, the business name may be used as a defendant for convenience. The principle prevents sole proprietors from using the business name to sue while avoiding personal liability. The distinction is procedural, not substantive.
