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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA

 

DATE: 16TH JULY, 2026 SUIT NO: NICN/PH/70/2025

BETWEEN

MR. SOTOLA SUNDAY KOLAWOLE --------- CLAIMANT/RESPONDENT   

 

AND 

 

1. HUAWEI TECHNOLOGIES LTD --------- 1ST DEFENDANT/ APPLICANT

2. SPECIFIC TOOLS & TECHNOLOGIES LTD ---- 2NDDEFENDANT/RESPONDENT

 

REPRESENTATION:

Ugonna Ogbuagu Esq. for the 1st Defendant/Applicant

Sylvester .A. Olatunji Esq. for the Defendants/Applicants

 

RULING

Introduction:

1.     The Claimant filed a complaint before this Court claiming against the Defendants, jointly and severally as follows:

  1. A Declaration that the unilateral, arbitrary and/or unwarranted termination of the Claimant’s employment on the grounds of misappropriation and conspiracy is unlawful, unwarranted and done without fair hearing.
  2. An Order setting aside the Claimant’s termination of employment for misappropriation and conspiracy for being unlawful and failing to meet with the rules of natural justice.
  3. An Order granting the Claimant ?20,000,000.00 (Twenty Million Naira) only as damages against the Defendants for wrongful termination of employment.
  4. Interest at 25% per annum on the judgment sum from the date the judgment is delivered until same is fully liquidated. 

2.     Pursuant to the foregoing, the 1st Defendant/Applicant filed a Motion on Notice which was brought pursuant to Order 17 of the National Industrial Court (Civil Procedure) Rules and under the inherent powers and jurisdiction of this Court, praying whereof for:

  1. An Order setting aside the service of the complaint and other accompanying processes, all filed on the 15th of October, 2025 in this suit on Huawei Technologies Company (Nigeria) Limited.
  2. An Omnibus prayer.     

3.     The application was predicated upon the beneath grounds:

  1. This action was commenced against “Huawei Technologies Ltd” as the 1st Defendant on record. However, the Complaint and other accompanying processes were served on the Applicant, Huawei Technologies Company (Nigeria) Limited, which is not a party to this action.
  2. The Applicant is also not a subsidiary, agent, servant, privy, or authorized attorney of the 1st Defendant on record, or in any way connected to it.
  3. Service on a person who is not a party to an action is improper service and liable to be set aside.

In reaction, the Claimant/Respondent depose to a Counter Affidavit dated the 22nd day of January, 2026 accompanied by a Reply on Point of Law in opposition to the 1st Defendant/Applicant’s Written Address dated the 19th day of December, 2025.

Submissions of the 1stDefendant/Applicant

4.     Learned Counsel to the 1stDefendant/Applicant formulated sole issue for determination to wit:

Whether the service of the Complaint and other accompanying processes on Huawei Technologies Company (Nigeria) Limited, which is not a party to this suit, is not improper in law and therefore liable to be set aside. 

5.     Counsel submitted that the sole issue for determination is whether the service of the Complaint and other accompanying processes on Huawei Technologies Company (Nigeria) Limited, which is not a party to this suit, is not improper in law and therefore liable to be set aside. He submitted that paragraph 4(c) of the supporting affidavit, wherein it deposed that although the Claimant instituted the action against the 1st Defendant, the originating processes were instead served on the Applicant a separate legal entity incorporated in Nigeria as evidenced in Exhibit HTL 2. That it is neither an agent, servant, privy, nor authorized representative of the 1st Defendant.

6.     He further submitted that the law requires personal service of originating processes on the party sued, and such service cannot validly be effected through a different legal entity or third party. That the Claimant’s service of the originating processes on the Applicant, which is not a Defendant in the action, amounts to a breach of the rules governing service of court processes.

7.     It was also posited that notwithstanding the fact that it received the processes, such service does not confer on it the status of a party before the Court. That being a distinct corporate entity, it cannot be compelled to respond to proceedings instituted against another legal person, and urged the Court to hold that the service of the Complaint and accompanying processes on it is improper, incompetent, and liable to be set aside. Citing the following cases M. G. F NIGERIA LIMITED V. GWUS INTERNATIONAL LIMITED (2001) 9 NWLR (PT. 718) 413 @ 425-426 PARAS H-A;SAVANNAH BANK OF NIGERIA PLC V. JATAU KYENTU (1998) 2 NWLR (PT. 536) 41 @ 54 PARAS D-E; BEST VISION CENTRE LTD V. U. A. C. N. P. D. C PLC (SUPRA)AND OJUKWU V. OJUKWU (2011) 11 NWLR (PT. 677) 75 @ 86-87 PARAS F-B.

8.     Counsel finally, submitted that the service of the Complaint and accompanying processes on Huawei Technologies Company (Nigeria) Limited, a non-party to the suit and a distinct legal entity from the 1st Defendant is contrary to the law regulating personal service of originating processes.  That originating processes must be personally served on the party against whom the action is instituted, unless otherwise authorized by law or by an order of court, and urges the Court to declare the service improper and set it aside.

Claimant/Respondent’s Reply on Points of Law

9.     He contended that the 1st Defendant/Applicant’s objection is without merit because the discrepancy in the Defendant’s name is merely a misnomer and not a case of suing the wrong legal entity. That the address for service contained in the Complaint, which specifically identifies the intended Defendant as Huawei Technologies Co. Nig. Ltd., No. 14 Lekki Road, Oriental Hotel Building, Victoria Island, Lagos State. 

10.   Counsel further submitted that the omission of part of the Defendant’s corporate name was an inadvertent drafting error; it was always the intention of the Claimant to sue the company that employed him for over ten years, namely Huawei Technologies Company (Nigeria) Limited; the error relates only to the description of the Defendant’s name and does not create uncertainty as to the identity of the party intended to be sued; that it constitutes a misnomer, which is a curable defect in law, and Courts have consistently held that where the identity of the intended party is clear, an incorrect or incomplete description of the party’s name does not invalidate the proceedings and may be corrected by amendment or, where appropriate, by the Court suo motu. Citing the case of ANYASINTI UMUNNA & ORS V. AMIMUDU OKWURAIWE & ORS (1978) 3378 SC; NWANA V. FCDA (2007) LPELR 16 PARAS C-D; CAUPHY V. STRING (1965) 1 WLR 44.5; ANDOGUNSOLA V. NICON (1996) 1 NWLR (PT. 423) 126.

11.   It was posited that for the fact that the 1st Defendant itself filed a Memorandum of Conditional Appearance stating “please enter a conditional appearance for Huawei Technologies Ltd, the 1st Defendant in this suit”. That this demonstrates that the Applicant clearly understood that it was the company being sued and therefore cannot genuinely contend that it is a stranger to the proceedings. He urges the Court to hold that the omission in the Defendant’s name is merely a curable misnomer, reject the 1st Defendant’s objection to service, and dismiss the application as a technical attempt to delay the hearing of the substantive suit.

Reply on Points of Law

12.   Learned Counsel submitted that the Claimant’s Reply on points of law and Counter-Affidavit are fundamentally incompetent because the Claimant unilaterally substituted the named 1st Defendant, Huawei Technologies Ltd, with Huawei Technologies Company (Nigeria) Limited without first obtaining the leave of the Court.

13.   He further submitted that the Complaint filed on 15th October, 2025 named the 1st Defendant as Huawei Technologies Ltd. However, in the Counter-Affidavit filed on 22nd January, 2026 and the Reply on Points of law filed on the 20th January. 2026, the Claimant redesignated the Defendant as Huawei Technologies Company (Nigeria) Limited without any application for amendment or order of court. That parties to a suit cannot be altered at the unilateral discretion of counsel, a substitution can only be effected with the leave of court. That there was neither an application nor an order authorizing the alleged correction of the Defendant’s name. Consequently, the Counter-Affidavit and Reply on Points of Law are said to be incompetent and liable to be struck out. Citing the case of IFEBUZOR V. NWABEZE (1998) 8 NWLR (PT. 560) 148 @ 161 PARA F; ARABAMBI V. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT. 959) 1@ 32 PARAS C-D; and Order 13 Rule 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.

14.   It was posited that Huawei Technologies Company (Nigeria) Limited is not a party to the proceedings because the originating Complaint was commenced against Huawei Technologies Ltd. That since no application for joinder or substitution has been made or granted, the Applicant insists it remains a stranger to the suit. He added that the Claimant expressly admitted that the discrepancy in the Defendant’s name constitutes a misnomer, both in the Reply on Points of Law and in paragraph 7 of the Counter-Affidavit. That despite acknowledging that the alleged error could only be rectified through amendment or by the Court, the Claimant failed to file the necessary application and instead purported to amend the Defendant’s name unilaterally. That this omission is fatal.

15.   Counsel submitted also that the Claimant’s contention that the filing of a Memorandum of Conditional Appearance amounts to an admission that Huawei Technologies Ltd and Huawei Technologies Company (Limited) are the same legal entity. That its conditional appearance cannot cure the Claimant’s procedural defect or validate the improper substitution of parties.Citing the case of MAKO V. UMOH (2010) 8 NWLR (PT. 1195)82.

16.   He finally urged the Court to strike out the Claimant’s Counter-Affidavit and Reply on Points of Law as incompetent for unilaterally substituting the Defendant without leave of Court; hold that, once those processes are struck out, the Motion on Notice dated 8th December, 2025 remains unchallenged; and grant all applications by setting aside the service of the Complaint and all accompanying Originating processes filed on 15th October, 2025 on the Applicant.

COURT’S DECISION

17.   I have carefully considered the Motion on Notice, the Affidavit in support thereof together with the exhibits attached, the Written Address of learned Counsel for the 1st Defendant/Applicant, the Counter-Affidavit filed by the Claimant/Respondent, the Reply on Points of Law of the Claimant, as well as the further Reply on Points of Law filed by the 1st Defendant/Applicant. I have equally considered the submissions of learned Counsel on both sides and the applicable principles of law; it appears to me that the determination of this application turns principally on the issue to wit:

Whether the service of the originating processes on Huawei Technologies Company (Nigeria) Limited is liable to be set aside on the ground that the Complaint describes the 1st Defendant as “Huawei Technologies Ltd”.

18.   The gravamen of the Applicant’s complaint is that this action was instituted against Huawei Technologies Ltd, whereas the Originating processes were on Huawei Technologies Company (Nigeria) Limited, which, according to the Applicant, is a distinct juristic person and not a party before this Court. Consequently, the Applicant urges the Court to set aside the service of the Originating processes.

19.   The Claimant, on the other hand, maintains that the omission of part of the corporate name of the Defendant is merely a case of misnomer; that the identity of the intended Defendant was never in doubt, having regard to the address for service contained in the Complaint and the fact that the Defendant itself entered a Memorandum of Conditional Appearance.

20.   The law is settled that service of Originating processes is fundamental to the assumption of jurisdiction by any Court. Jurisdiction over a Defendant is ordinarily activated upon proper service of the Originating process in the manner prescribed by law. See SKENCONSULT (NIG.) LTD V. UKEY (1981) 1 SC 6; (1981) 1 FNLR 421, where the Supreme Court emphatically held that service of process is the foundation upon which the jurisdiction of the Court over a Defendant rests.

21.   However, the present application does not merely raise the issue of absence of service. Rather, it raises the question whether service upon a corporate body whose name was incompletely described in the Originating process amounts to service on a stranger or whether it is merely a misnomer. 

22.   The distinction between misnomer and mistaken identity has received judicial consideration in a long line of authorities. Where the wrong person is used, the defect goes to the root of the action. Conversely, where the correct person is intended but is merely incorrectly described or incompletely named, the defect is one of misnomer which is curably by amendment. The Supreme Court in MAERSK LINE V. ADDIDE INVESTMENT LTD (2002) 11 NWLR (PT. 778) 317 reiterated that where there is no doubt as to the identity of the person intended to be sued, an error in the description of the name is a mere misnomer capable of being corrected by amendment.

23.   Similarly, in NIGERIAN ARMY V. SAMUEL (2013) 14 NWLR (PT. 1375) 466 @ 494-495, the Supreme Court held that Courts are more concerned with the substance of proceedings than technical slips in the description of parties, provided that no injustice is occasioned thereby. Order 13 Rule 4 & 5 of the National Industrial Court of Nigeria (Civil procedure) Rules, 2017 expressly confer wide powers on this Court to correct any defect or error in the name of parties at any stage of the proceedings where such amendment is necessary for determining the real questions in controversy. The Rules reflect the modern judicial philosophy that litigation should be decided on its merits rather than on technicalities.

24.   Indeed, Section 12 (2) (a) & (b) of the National Industrial Court Act, 2006 empowers this Court to regulate its procedure in the interest of justice and to depart from undue technicalities where the justice of the case so demands. In determining whether the present case is one of misnomer or mistaken identity, the Court must examine the Originating processes as a whole. The address for service endorsed on the Complaint identifies the Defendant at No. 14, Oriental Hotel Building, Lekki Road, Victoria Island, Lagos, being the address where the originating processes were eventually served. The affidavit evidence further discloses that the company served acknowledged receipt of the Originating processes and proceeded to enter a Memorandum of Conditional Appearance challenging the competence of the service.

25.   It is instructive that the Memorandum of Conditional Appearance itself was entered in respect of the suit commenced by the Claimant. This demonstrates beyond argument that the company served appreciated that it was the company against whom the complaint was directed. The Supreme Court has consistently held that in determining whether there has been a misnomer, the Court considers whether a reasonable person reading the originating process would know the person intended to be sued.

26.   In REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH V. OLOWOLENI(1990) 6 NWLR (PT. 158) 514, the Supreme Court held that where the identity of the party is certain notwithstanding an inaccurate description, such defect does not invalidate the proceedings. Likewise, in FIRST BANK OF NIGERIA PLC V. TSA INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247, the Supreme Court reiterated that procedural errors which neither mislead nor occasioned miscarriage of justice should not defeat otherwise competent proceedings.

27.   The Applicant has argued vigorously that Huawei Technologies Ltd and Huawei Technologies Company (Nigeria) Limited are distinct corporate personalities. There is no dispute that under the Companies and Allied Matters Act, 2020, every incorporated company possesses a separate legal personality. See SALOMON V. SALOMON & CO. LTD (1897) AC 22, a principle consistently applied by Nigerian Courts.

28.   Nevertheless, the issue before this Court is not whether two companies can possess separate legal personalities. Rather, the issue is whether the Claimant intended to sue an entirely different company or whether the incomplete description of the Defendant’s corporate name merely constitutes an error in nomenclature. From the totality of the processes before me, I am unable to conclude that the Claimant intended to sue some foreign entity known as Huawei Technologies Ltd while accidentally serving another unrelated company.On the contrary, every surrounding circumstance points irresistibly to the fact that the intended Defendant was the Nigerian company that employed the Claimant. The Applicant itself has not demonstrated that it was genuinely misled as to the identity of the intended Defendant. 

29.   The Supreme Court in BELLO V. A.G. OYO STATE (1986) 5 NWLR (PT. 45) 828, held that Courts exists to do substantial justice and not to enthrone technicality. More recently, the Supreme Court reaffirmed in GTB PLC V. INNOSON NIGERIA LTD (2022) 16 NWLR (PT. 1856) 265 that procedural rules are handmaids of justice and should not be deployed to defeat substantive rights where no prejudice has been occasioned.

30.   The Applicant has equally urged the Court to strike out the Counter-Affidavit and Reply on Points of Law because the Claimant referred therein to Huawei Technologies Company (Nigeria) Limited without first obtaining leave to amend. With respect, I am unable to agree. The validity of an affidavit is determined by whether it complies with the Evidence Act, 2011 and the applicable Rules of Court. The mere fact that a deponent describes the intended Defendant by what he considers to be its correct corporate name does not, without more, amount to an amendment of the Originating process.   

31.   An amendment of Court processes can only occur where the Court formally grants leave and the Originating process is accordingly amended. What the Claimant has done in the Counter-Affidavit is merely to explain the factual circumstances surrounding the description of the Defendant. Such explanation neither amends nor substitutes the Originating Complaint. Consequently, I find no legal basis for striking out the Counter-Affidavit or the Reply on Points of Law. Even assuming, without conceding, that there exists a defect in the description of the Defendant’s name, Order 13 Rule 5 of the National Industrial Court Rules empowers this Court to direct that the error be corrected in order to determine the real questions in controversy.

32.   The Rules of this are designed to facilitate substantial justice and not to encourage procedural ambush. It bears repeating that the Applicant has neither shown that it suffered any prejudice nor demonstrated that it was misled as to the proceedings against it. The overriding objective of this Court, as encapsulated in the National Industrial Court Act and the Rules of this Court, is to determine labour disputes on their merits. To set aside service in the peculiar circumstances of this case would amount to sacrificing substantial justice on the altar of technicality.

33.   Having resolved the sole issue against the Applicant, I hold that the discrepancy in the description of the 1st Defendant, on the peculiar facts of this case, constitutes a misnomer and not the institution of proceedings against a wrong legal entity.Consequently, the application deserves but a befitting burial.Accordingly, I make the following orders:

  1. The Motion on Notice dated the 8th day of December, 2025 is dismissed for lacking merit.
  2. The prayer seeking to set aside the service of the Complaint and accompanying Originating processes on Huawei Technologies Company (Nigeria) Limited is refused.
  3. The Applicant’s prayer seeking to strike out the Claimant’s Counter-Affidavit and Reply on Points of Law is refused.
  4. Pursuant toOrder 13 Rule 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and in order to determine the real issues in controversy, the Claimant is hereby granted seven (7) days within which to file and regularize an amendment correcting the description of the 1st Defendant’s corporate name to reflect its proper legal name, if necessary.
  5. The substantive suit shall proceed to hearing on the merits without further delay.

            Ruling is entered accordingly.

 

 

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Hon. Justice M. A Hamza

Judge