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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: October 15, 2015 SUIT NO. NICN/LA/20/2015 BETWEEN MR. VICTOR EDOSOMWAN CLAIMANT AND 1. SUNFIT INTERNATIONAL LTD 2. MR. OLALEKAN ADEWOYE DEFENDANTS REPRESENTATION Eubena Ahmadu, with Doris Okosi, Oliver Eyah for the claimant. E.O. Maduagwuna Esq for the 1st defendant. No appearance for 2nd defendant. RULING Before me are two applications filed by the parties. The first is a motion filed by the claimant on the 5th February 2015 praying for the following: 1. An order of interlocutory injunction restraining the defendants either by themselves or through any of their servants, agents or privies from evicting the claimant from his rented apartment situate at Block 40A Platinum Way, Raji Rasaki, Amuwo Odofin, FESTAC Town, Lagos State, pending the determination of this suit filed on 5th February, 2015. 2. And for such further or other orders as this court may deem fit to make in the circumstance. The application is supported by an affidavit of 24 paragraphs sworn to by the claimant and a written address. In opposing the motion, the defendants filed a 13 paragraphs affidavit sworn to by Ekene Maduagwuna, a legal practitioner and a written address. The second application is a motion on notice filed by the 1st defendant on 4th May, 2015 seeking the following: 1. An order of this Honourable Court striking out the name of the 2nd defendant. 2. And for such further or other orders as this court may deem fit to make in the circumstance. The grounds for the application are as follows: a. The 2nd defendant is the Managing Director of the 1st defendant company b. The 2nd defendant is an agent of a disclosed principal. c. There is no relief or claim against the 2nd defendant. d. The 2nd defendant is not a necessary party to this suit. The application is supported by affidavit sworn to by Emeka Amadi and a written address. In reaction, the claimant filed a counter affidavit sworn to by Yusuf Yakubu and a written address. The 1st defendant filed a reply on points of law dated 8th July, 2015. The parties adopted their respective addresses. In arguing the motion for interlocutory injunction, learned counsel to the claimant referring to the affidavit stated that the defendant took up the responsibility for paying the claimant’s rent for the property leased by the claimant. That upon termination of the claimant’s appointment, the defendant asked the claimant to vacate his rented apartment within seven days and started taking steps to execute the threat. He argued that there is serious threat of wrongful eviction of the claimant and a serious issue to be tried citing Onyesoh V. Nnebedum [1992] 3 NWLR (Pt. 229) 315; Kotoye V. CBN [1989] 1 NWLR (Pt.98) 419. He submitted that from the affidavit evidence particularly paragraphs 21-22 that the claimant will suffer a lot of inconveniences if the defendants are left to carry out their threat of eviction as no amount of pecuniary damages can compensate the claimant if this application is refused citing Alcatel Kabelmetal Nig Plc V. Ognungbele [2003] 2 NWLR (Pt. 805) 42; American Cyanaid Co V. Ethicon Ltd [1975] A.C 396; The Registered Trustees of the Peoples Club of Nigeria V. The Registered Trustees of Ansar-ud-Deen Society of Nigeria [2000] 5 NWLR (Pt. 657) 368. He then urged the court to grant this application. Learned counsel to the 1st defendant submitted that an application for injunction being an equitable remedy, a party who seeks same must do so in good faith. He argued that this application seeks to determine the substantive suit at the preliminary stage of this matter. He submitted that the claimant in his relief III of statement of facts seeks the same prayers in the motion for injunction. He argued that it is the duty of the court to ensure that it does not in the determination of the application, determine the same issues that would arise for determination in the substantive action. He cited Okomo V. Umoetuk [2004] 10 NWLR (Pt. 882) 526, Obeya Memorial Specialist Hospital V. Attorney General for the Federation [1987] 3 NWLR (Pt. 60) 325. He submitted that the defendant’s payment of the claimant’s rent was premised on the employment relationship that has been determined and all benefits consequent thereto should be determined. He submitted that in determining whether or not to grant an injunction, the substantive action must establish a legal right vested in the applicant; there must be a substantial issue to be tried; damages must be inadequate to compensate the applicant against the injury sought to be protected; the balance of convenience must be in favour of granting the application; the applicant must show that he has not been guilty of delay or any other inequitable conduct in bringing the application. He submitted further that all the above circumstances must exist for the court to exercise its discretion in favour of granting an application for injunction. He cited Kotoye V. CBN [1989] 1 NWLR (Pt.98) 419, Akapo V. Hakeem-habeed [1992] 6 NWLR (Pt. 247) 266, Comm for Works, Benue State V. Devcon Ltd [1988] 3 NWLR (Pt. 83) 407. He urged the court not to exercise its discretion but to refuse the application as it is evident from the affidavit that the claimant seeks to determine the substantive suit. Arguing the 1st defendant’s application for an order striking out the name of the 2nd defendant from this suit, counsel submitted that a director is an agent of the company and a contract entered into by an agent of a disclosed principal is that of the principal; and that it is the principal that can sue under the said contract citing Ataguba & Co V Gura Nigeria Ltd [2005] All FWLR (Pt. 256) 1219, Okafor V Ezenwa [2002] 13 NWLR (Pt. 784). He submitted that there is no averment showing that the 2nd defendant ever performed any acts without disclosing that he was acting for the 1st defendant company. He submitted that it will be in the interest of justice to strike out the name of the 2nd defendant as he is an agent working for a disclosed principal. In response, the claimant’s counsel submitted that the 1st defendant’s application is incompetent and should be struck out on the ground that both the 1st defendant and its counsel cannot make the application on behalf of the 2nd defendant who is not represented in this suit. He cited Thomas V. Olufosoye [1986] 1 NWLR (Pt. 18) 669, Mobile Prod.Nig Ltd V LASEPA [2002] 18 NWLR (Pt. 798) 1 and Mustafa V. Monguno Local Government [1987] 3 NWLR (Pt. 62) 633. He urged the court to strike out the application. Replying on point of law, counsel for the 1st defendant submitted that all the authorities relied upon by the claimant are distinguishable from the case at hand. He argued that the issue of misjoinder can be raised suo moto by the court and there is nothing wrong with the principal bringing an application and taking responsibility for the acts of its agent. Having considered both applications, I will begin with the application for striking off the name of the 2nd defendant. Order 8 Rule1 (1) of the Rules of this Court states that: Every person served with an originating process shall within the days stipulated therein or if no day is stipulated within 14 days of the service of the originating process, file a Memorandum of Appearance in the registry of the Court. The filing of a Memorandum of Appearance is a procedural requirement to be complied with by each defendant. The word shall is mandatory. There is no memorandum of appearance filed on behalf of the 2nd defendant who was served with the originating process. E.O Maduagwuna Esq entered appearance for the 1st defendant only. The 2nd defendant has not entered appearance. He has also not filed a declaration in writing as required by Order 8 Rule 4 that he does not wish to be present in person or be represented by a legal practitioner whereupon this matter will be dealt with as if he had appeared. This is an application that should be brought by the 2nd defendant himself. It does not lie in the mouth of the 1st defendant or its counsel to bring this application in respect of a party counsel does not represent. This application is struck out. The next issue is whether the claimant is entitled to an injunctive order pending the determination of the substantive suit. The court is mindful at this stage of an interlocutory application that there is no trial on the merits and so the court should not attempt to go into the matter in controversy so as not to determine the same issues that would arise for determination in the substantive suit. In deciding whether or not to grant this order, the applicant must satisfy the court that there is a serious question to be tried, that the balance of convenience is on its side and that damages cannot be an adequate compensation for injury done to it if it succeeds at the end of the trial of this matter. See Obeya Memorial Hospital v A-G Federation supra, Kotoye v Central Bank Of Nigeria supra, Tidex Nig Ltd v NUPENG [1998] 11 NWLR (Pt 573) 263, Chief S.A.Falomo v Oba Omoniyi Banigbe [19998] 7 NWLR (Pt 559) 679. It is my view that the court cannot properly consider the merits of this application without straying into the substantive suit. This is even more so as a declaratory relief in respect of the same issue is being sought in the substantive action. Consequently, the prayer for an interlocutory injunction is refused. The motion is dismissed. Each party is to bear its own costs. Ruling is entered accordingly. ____________________________ Hon. Justice O.A Obaseki-Osaghae