Procedural: Business entity as a party.

According to the law, any two or more person, carrying out business under a partnership, may sue and be sued under the name of the firm. This connotes that when a firm is being sued under one name (i.e. the name of the firm), all the partners will be liable despite not having their name stated in the proceeding.

A person carrying out his business in the name or style other than his own name can be sued in that name or style, but he cannot initiate legal proceeding in the firm’s name if he carried his business as a sole proprietor.

According to Order 77 (9) of the Rules of High Court, it is stated that a sole proprietorship may be sued. It does not state whether it can sue under the firm’s name or not.

Thus it is important that, before initiating a summons for a client, the solicitor should start with a company search, to sort the type of his client’s business.

If we come to pass a summons filed against our client (a defendant) by a person who is a sole proprietor, using his firm name, the first thing to do before filing a Statement of Defense, is to file a Notice to Strike Out the Summons supported by an affidavit under Order 18 (19) of The Rules of High Court.

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