IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 6th November 2018                       

SUIT NO: NICN/ABJ/54/2018

 

Between:             

 

Dr. Terry Ehiorobo

(Suing by his Attorney Mr. Innocent Ofili)                    -                       Claimant

 

And

 

1.      American International School

2.      Mrs. Hauwa Maina Lawan                                     -                       Defendants

 

Representation:

Ayodele Arotiowa, with him, I. A. Nnanna for the Claimant

E. O. Adekwu, with him, Godwin Abarike and E. A. Okoro for the 1st Defendant

Iyaji Bisong with Imaculata Williams and Beatrice Neeka for the 2nd Defendant

 

RULING

This Ruling is on three separate applications filed by the parties. They are the 1st and 2nd Defendants’ respective notices of preliminary objection and the Claimant’s motion for amendment. The applications were heard together on 24th September 2018. I will also consider these applications together in this ruling.

 

The 1st Defendant sought in its Notice of Preliminary Objection, an order striking out the suit for want of jurisdiction or an order striking out the name of the 1st Defendant from the suit. The grounds for seeking the prayer are as follows:

i.          The 1st Defendant is not a juristic person and cannot sue or be sued.

ii.         The originating processes were not served on the 1st Defendant in accordance with law and practice

iii.       The suit cannot be maintained by Mr. Innocent Ofili, an Attorney, on behalf of the named Claimant.

 

Paul Daniel, a litigation clerk in the law office of 24 Law Chambers, who deposed to the affidavit in support of the Preliminary Objection averred that the 1st Defendant is not a juristic person and it lacks the capacity to sue and be sued. It was also averred that the originating processes were not served on the 1st Defendant in accordance with the rules of this court. Furthermore, it was stated that the contract, subject matter of the suit, was personal to Dr. Terry Ehiorobo and Mr. Innocent Ofili did not have any interest in the subject matter of the suit. Dr. Terry Ehiorobo is not an infant or incapacitated as to prevent him from maintaining this suit personally. The deponent also stated that the Power of Attorney appointing Mr. Innocent Ofili is limited to one year, as such, it will be unable to sustain this suit or any appeal therefrom. In the written address filed in support of the Preliminary Objection, counsel for the 1st Defendant argued along the lines of the 3 grounds of the objection.

 

The Claimant filed a counter affidavit to the NPO. It was deposed therein that the 1st Defendant is a legal person, but a mistake was made in describing the 1st Defendant. An application has been filed to correct the description of the 1st Defendant. The counter affidavit also stated that the originating processes were served on the 1st Defendant through its counsel on the direction of the 1st Defendant. By the service, the originating processes were brought to the attention of the 1st Defendant. Counsel for the Claimant filed a written address to support the counter affidavit. The 1st Defendant filed a further affidavit and a reply on points of law. I have examined these processes.

 

The 1st ground of the 1st Defendant’s Preliminary Objection is that the 1st Defendant is not a juristic person. Hence, it prayed for an order striking it out from the suit. It is the law that only natural or juristic persons can sue or be sued. The name of a competent party to a suit must be the real name by which he is known in the case of a natural person or its corporate name in the case of a non natural juristic person. Therefore, an action cannot be maintained against a Defendant who is not a juristic person. Where it is clear that a Defendant or any party to a suit is not a legal person, the party must be struck out. See THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) ALL FWLR (Pt. 467) 1 at 31; ABUBAKAR vs. YAR’ADUA (2009) All FWLR (Pt. 457) 1 at 136.

 

From the submissions of the learned counsel for the 1st Defendant, it is clear to me that the basis for contending that the 1st Defendant is not a juristic person is that the name with which the 1st Defendant is sued is not the registered name of the 1st Defendant. The Claimant must have realised that the 1st Defendant was right in this ground of its objection because the Claimant, besides filing a counter to the 1st Defendant’s NPO, promptly filed a motion seeking to amend the name of the 1st Defendant. It has been the general practice of the courts that where there are two competing applications in a suit, one seeking to destroy the suit and the other seeking to correct or regularise the suit, the latter one should be taken first so that if it succeeds there will be no need to visit the former application. See NALSA & TEAM ASSOCIATES vs. N.N.P.C (1991) 8 NWLR (Pt.212) 652; ATTORNEY GENERAL, FEDERATION vs. A.I.C. LTD. (1995) 2 NWLR (Pt.378) 388. I think it is proper to consider the Claimant’s said motion at this point before concluding on this ground of the 1st Defendant’s NPO.

 

In the Claimant’s motion, which was brought under Order 26 Rules 1, 2, 3 and 4 of the Rules of this court, he sought the following main prayers:

1.         An order granting leave to the Claimant to amend the processes filed by the Claimant in the suit by adding the words “Incorporated Trustees of the” before the name of the first Defendant and the words “of Abuja” after the name of the 1st Defendant to reflect the proper name of the 1st Defendant which is “Incorporated Trustees of the American International School of Abuja”.

2.         An order deeming as regular the filing and service of the amended processes of the Claimant.

 

In the affidavit in support of the motion, it was deposed that at the time of filing of the suit, the name of the 1st Defendant was erroneously stated as “American International School”. But in the 1st Defendant’s statement of defence, it disclosed its correct name as “Incorporated Trustees of the American International School of Abuja”. In view of the error in the name of the 1st Defendant in all the processes filed by the Claimant, it is necessary that the Claimant’s processes be amended to reflect the correct name of the 1st Defendant. The 1st Defendant opposed the motion and filed a counter affidavit to that effect where it was reiterated that the 1st Defendant is not a juristic person neither is the name with which the 1st Defendant was sued the name of a registered or natural person. The Claimant, having admitted in his motion that the name sued as the 1st Defendant is not the correct name, it implies that the person sued is non-juristic, and the Claimant cannot amend his processes to substitute a non-juristic person with a juristic person.

 

I have read the submissions made by counsels for the parties in the written addresses filed in support of the Claimant’s motion and the 1st Defendant’s counter affidavit. The Claimant’s reply on points of law has also been examined. I will also not waste time going over the addresses. The points canvassed by counsels are noted.

 

The Claimant’s instant application is simply to amend the name of the 1st Defendant to reflect its proper name and to effect consequential amendments in the name of the 1st Defendant on all processes filed by the Claimant. The name of the 1st Defendant sued is “American International School”. However, I have seen the 1st Defendant’s statement of defence where the 1st Defendant’s proper and correct name is stated to be “Incorporated Trustees of the American International School of Abuja”. The Claimant has taken advantage of that revelation to now seek to amend the name of the 1st Defendant to show its correct name. From the affidavit of the parties and submissions of counsels in their written address in respect of the Claimant’s motion, it is clear to me that the name “Incorporated Trustees of the American International School of Abuja” is a registered body and a juristic entity. But the name sued is “American International School”. It was explained in the Claimant’s affidavit that it was an error as the person the Claimant intended to sue is “Incorporated Trustees of the American International School of Abuja”.

 

The fact that the name of the person sued is not the name of a juristic person does not preclude amendment of the title of the action to show the correct name of the party sued if it is clear to the court that it was a case of misnomer. A misnomer arises where a party is sued in the wrong name. In other words, misnomer occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. Better still, misnomer occurs when the correct person is brought to court under a wrong name. Where the description of a party on the writ was a misnomer, such can be corrected by amendment provided that the person misnamed and intended to be sued is a juristic entity and it is in existence. See MAERSK LINE vs. ADDIDE INVESTMENT LTD (2002) FWLR (Pt. 125) 608 at 655-656; NWABUEZE vs. NIPOST (2006) 8 NWLR (Pt. 983) 480. Order 13 Rule 5 of the Rules of this court equally provided that where the name of a party has been incorrectly stated, the Court may, upon application, order a correction of such name.

 

In this case, “Incorporated Trustees of the American International School of Abuja” which the Claimant intended to sue is a juristic person. The name of the 1st Defendant on record is a case of misnomer. Therefore, this court has the jurisdiction to amend the name of the 1st Defendant to show or reflect its correct name. See FCE (TECHNICAL) GUSAU vs. ABUBAKAR (2013) All FWLR (Pt. 709) 1130 at 1145; NKOCHA vs. FEDERAL UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (Pt. 422) 112. Consequently, the Claimant’s application is granted.

1.         Leave is granted to the Claimant to amend the name of the 1st Defendant to read “Incorporated Trustees of the American International School of Abuja”.

2.         Leave is also granted to the Claimant to amend his processes to reflect the correct name of the 1st Defendant. The amended processes of the Claimant already filed and served are deemed properly filed and served.

 

With the amendment of the name of the 1st Defendant to its registered name, the 1st Defendant on record is the name of a juristic person. The consequence of the amendment is that the 1st ground of the Defendant’s NPO is no longer of any moment.

 

The 1st Defendant also raised the issue of service. The 2nd ground of the 1st Defendant’s NPO is that the originating processes were not served on the 1st Defendant. In the affidavit in support of the NPO, it was stated that there is no proof of service of the originating processes on the 1st Defendant, as the 1st Defendant was not served the originating process in accordance with the rules of this court. On the other hand, it was explained in the Claimant’s counter affidavit that the 1st Defendant was served the originating process through its counsel as directed by the 1st Defendant. The proof of service and the bailiff’s affidavit of service were attached to the Claimant’s counter affidavit as Exhibit A. In the further affidavit of the 1st Defendant, it was admitted that the 1st Defendant’s counsel received service of the originating processes meant for the 1st Defendant but contended that the 1st Defendant did not instruct or direct that the processes be served on its counsel.

 

The counter affidavit of the Claimant, the proof of service and the averments in the 1st Defendant’s further affidavit all show that the originating processes were served on and received by 24 Law Chambers, the law firm of counsel for the 1st Defendant in this case. Obviously, the 1st Defendant was not served personally. This, perhaps, is the reason the 1st Defendant contends that it was not served the originating processes. Counsel from the same law office who received service of the originating processes on behalf of the 1st Defendant is the counsel representing the 1st Defendant in these proceedings. When the processes were taken to counsel’s office, it was received and acknowledged without any complaint or rejection. The steps taken by counsel indicate that there is an existing authority of the 1st Defendant to counsel to receive service of the processes on its behalf. If that was not the case, counsel should have promptly returned the processes to this court if it was received by mistake. That was not done but only for counsel to bring this objection alleging non-service of the originating processes on the 1st Defendant.

 

The service on the 1st Defendant’s counsel, in my view, is good service. Order 7 Rule 1 (1) of the rules of this court provide that any process or document required or authorized by these Rules to be served on any person who is a party in a matter may be served by handing a copy of the process or document to the person or to the person’s counsel. Rule 1 (15) of Order 7 went further to mandate that service effected in any manner provided under the rules shall be deemed good and sufficient service for all purposes. By effect of this rule, receipt of service of the originating processes by the 1st Defendant’s counsel is deemed good service on the 1st Defendant.

 

In any case, the 1st Defendant has entered appearance in this suit, even though conditionally, and has filed processes in defence of the action.  That is to say the 1st Defendant has become aware of this suit through the service received by its counsel and taken steps in the proceedings. The 1st Defendant has waived its right to complain about service of the originating processes. I also do not find merit in this ground of the 1st Defendant’s objection.

 

The 3rd ground of the 1st Defendant’s NPO is that this suit cannot be maintained by an Attorney, Mr. Innocent Ofili, on behalf of the named Claimant. The grouse of the 1st Defendant, as revealed in paragraph 3 (vi) of the affidavit in support of the NPO is that Mr. Innocent Ofili has no interest whatsoever in the employment contract of Dr. Terry Ehiorobo or in the subject matter of the suit as to sue on behalf of Dr. Terry Ehiorobo. From the depositions in the affidavit of the 1st Defendant and the submissions of learned counsel for the 1st Defendant, the 1st Defendant’s contention appears to be that Mr. Innocent Ofili is the Claimant in this matter and he brought the action on behalf of Dr. Terry Ehiorobo. That perhaps is why it was contended that Mr. Innocent Ofili cannot maintain this suit.

 

 Order 13 Rules 32 and 33 of the Rules of this court provides as follows:

“32.    Where by these Rules, any act may be done by any party in any proceedings, such act, may be done either by the party in person, or by the party’s counsel, or by the party’s agent (unless an agent is expressly barred under these Rules).

                                 

33.      If a power of attorney is executed by a principal and the agent is authorized to sue in a representative capacity on behalf of the principal, such an action must be brought in the name of the principal, that is, the donor of the power of attorney, indicating that the donor is suing through the named agent.”

 

These Rules permit a person/principal to authorise an agent, vide a power of Attorney, to sue on behalf of the principal. However, such an action must be brought in the name of the principal as the Claimant. Besides the rules, it is an acceptable practice in judicial proceedings for a Claimant to donate power to a person to prosecute a matter on the Claimant’s behalf. See LAAH vs. OPALUWA (2004) 9 NWLR (Pt.879) 558. The title of the Claimant on the originating process is “Dr. Terry Ehiorobo (Suing by his Attorney, Mr. Innocent Ofili)”. This clearly shows that Mr. Innocent Ofili is not the Claimant in this matter. The Claimant is Dr. Terry Ehiorobo. Mr. Innocent Ofili, as described in the title of the parties is only an attorney of the Claimant in respect of prosecution of the matter. I have seen the Power of Attorney frontloaded with the Claimant’s originating processes. Dr. Terry Ehiorobo appointed Mr. Innocent Ofili and donated power to him to commence and prosecute this matter on his behalf. I find that this suit is properly constituted as regards the Claimant.

 

The issue of the duration of the Power of Attorney was also raised by the 1st Defendant. I do not think that is an issue worthy of consideration at this stage of the case. The Power of Attorney has duration. It is only when the duration lapses that any of the parties can make an issue out of it.

 

This ground of the 1st Defendant’s objection also lacks merit. Having considered all the grounds of the 1st Defendant’s NPO, I find that the NPO lacks merit. It is hereby dismissed. I will now consider the 2nd Defendant’s NPO.

 

The 2nd defendant’s notice of preliminary objection was brought pursuant to Order 13 Rule 14 (2) of the NICN Rules 2017. The 2nd Defendant sought the following prayers in the NPO:

1.         An order striking out the name of the 2nd Defendant from the suit.

2.         An order striking out all the claims made against the 2nd Defendant as the Claimant lacks cause of action against the 2nd Defendant.

3.         Any other orders as may be deemed necessary.

 

The grounds upon which the application is premised are as follows:

i.          There is no privity of contract between the Claimant and the 2nd Defendant.

ii.         The 2nd Defendant was not a party to the contract dated 2nd May 2016 between the Claimant and the 1st Defendant.

iii.       The 2nd Defendant does not take personal responsibility for acts of the 1st Defendant.

iv.        The 1st Defendant is a legal entity capable of suing or being sued.

v.         The 1st Defendant is liable for all its actions.

iv.        There is no cause of action disclosed against the 2nd Defendant.

 

A written address of counsel for the 2nd Defendant was filed in support of the NPO. I have read the submissions of counsel in the written address and it is observed that they are in line with the above grounds of the NPO. The arguments made by counsel are noted. Similarly, I have read the Claimant’s reply on points of law to the 2nd Defendant’s NPO. I also do not see the need to review counsel’s submissions in this ruling. I will proceed straight away to determine the 2nd Defendant’s NPO.

 

The 2nd Defendant is seeking for the striking out of her name from the suit. From the sum of all the grounds of the NPO, the reason for seeking the striking out of her name is that the Claimant has no cause of action against her.

 

In paragraphs 3, 8, 10 and 11 of the Claimant’s amended statement of facts, the Claimant made allegations against the 2nd Defendant showing that the 2nd Defendant participated in the subject matter leading to the institution of this suit. These averments disclose a cause of action against the 2nd Defendant. Also, the Claimant’s claims in this action were sought against the Defendants jointly. From the pleadings and claims of the Claimant, he has disclosed sufficient facts to warrant the 2nd Defendant to remain in the action as a Defendant. Whether the 2nd Defendant will be liable for the claims of the Claimant is another matter to be determined after hearing evidence in the case. In view of the foregoing, I see no reason to strike out the name of the 2nd Defendant or the claims against the 2nd Defendant from the suit. The 2nd Defendant’s NPO is also dismissed. No order as to cost.

 

Ruling is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge