Download PDF
RULING. 1. This ruling was fixed to be delivered on 2nd April 2020, however, due to the lockdown of the Federal Capital Territory, Abuja, the ruling could not be delivered until today. 2. This deal with preliminary objection dated 23rd day of October 2019 and filed on the 7th day of November 2019, wherein the defendants are praying for dismissing/striking out this suit in its entirety for want of jurisdiction. The grounds for the objection are:- a. The name of 1st defendant sued by the claimant is unknown to law as same is not a juristic person. b. The Originating processes of the claimant were not duly signed in accordance with the Rules of this Honourable Court and the extant provisions of the law. c. The prescribed processes to accompany a complaint were not duly filed. d. That the suit of the claimant discloses no reasonable cause of action against the 2nd defendant who is only an employee of HIS Towers NG Limited. 3. The preliminary objection is supported by a 14 paragraphs affidavit sworn to by one Usman usaini, Regional Legal counsel (North central) of the 1st Defendant. 4. In the affidavit it was stated that IHS Towers NG Limited is not an agent of IHS Towers Nig. Ltd. That the 2nd defendant is an employee of IHS towers NG Limited. It was also averred that the statement of facts was signed above a list of legal practitioners without indicating who among them signed the process. Likewise the list of witness to be called was signed in the same way statement of facts was signed. List of copies of documents to be relied on was not filed. Form 1a was not filed along with complaint. The 2nd defendant is an employee of IHS Towers NG Limited. 5. A written address was filed along with the notice of preliminary objection. P. O. Oghagboni, Esq; counsel for the defendants in oral adumbration informed the court that he is relying on the affidavit in support of the notice of preliminary objection and adopts the written address as his argument. In the written address a lone issue was submitted for resolution, to wit: ‘’Whether this suit is competent so as to cloak (sic) this Honourable Court with the requisite jurisdiction to hear same? If ‘No’, whether this suit ought not to be struck out for want of jurisdiction’’. 6. In arguing the sole issue for determination, counsel contended that the name of 1st defendant is fictitious; as same is not the registered name of the 1st defendant and as such robs this court with requisite jurisdiction to hear this suit. Counsel referred to the certificate of incorporation of IHS Towers NG Limited which counsel contended is not the same with the name of 1st defendant as captured by the claimant. On this contention counsel argued that the defendants/applicants have proved that the 1st defendant is not juristic person, on this contention the case of Bank of Baroda V Iyalabani Company Limited (2002) LPELR-743 was cited and relied on. Counsel also relied on the case of Anemene & Anor V Obianyido & Ors (2006) LPELR-7913, Usuah V GOC Nigeria Ltd & Ors (2012) LPELR-7913. 7. Counsel further contended that the 1st defendant is not a juristic person and cannot be proceeded against. Counsel urged the court to strike out the name of the 1st defendant from this suit. 8. On second defendant it was argued that he is an employee of the 1st defendant a person not known to law and the grievance of the claimant spurs from the activity of the 2nd defendant in his capacity as an employee of IHS Towers Nig. Ltd. 9. Counsel contended the averment by the claimant/respondent does not constitute cause of action for the court to proceed against the 2nd defendant/applicant. 10. It is submitted that in determining cause of action, the court will necessarily restrict itself to statement of claim, on this argument reliance was placed on Shell BP Ltd & Ors. V Onasanya (1976) NSCC 334 @ 336, Aladegbemi V Fasamade (1988) 3 NWLR (pt.81) 129, Abubakar V Bebeji Oil Allied Products Ltd & Ors. (2007) LPELR-55(SC). 11. Counsel also contended that a look at paragraphs 10-27 of the statement of claim allegedly reveals that the claimant’s employment was wrongfully terminated by the altercations and reports of the 2nd defendant who had nothing to do with the circumstances of this case. 12. It was contended that the claimant’s employment was terminated by the 1st defendant and not for negligence of duty. The cause of action is against 1st defendant. The claim of the claimant does not affect the 2nd defendant. It is further argued that the presence of 2nd defendant is not necessary in this suit. Counsel urged the court to strike out the name of the 2nd defendant as he is not a necessary party in this suit. In support of this contention counsel placed reliance on the case of Panalpina World transport Ltd v J. B. Oladeen International & Ors. (2010) LPELR-2902(SC). 13. It is the contention of counsel that even if cause of action has been established against the 2nd defendant, he acted as agent to a known principal already a party in this suit. To support this contention counsel reproduced paragraph 3 of the statement of fact. Counsel argued that it is settled principle of law that act of a known servant is deemed in law to be that of a known and established principal. In support of this contention counsel relied on the cases of Ifiyanyichukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) LPELR-1432, Fairline Pharmaceutical Industries Ltd 7 Abnor. V Trust Adjusters Nig. Ltd (2012) LPELR-20860(CA). counsel argued having shown that the 2nd defendant is an agent of a disclosed principal he is not a necessary party in this suit. 14. Counsel also argued that the statement of fact and list of documents were signed just above a list of two legal practitioners but no indication was made as to who among them signed the process. According to counsel this has rendered the document incompetent on the authority of Oyama V Agibe (2016) ALL FEWLR (Pt.840) 1280, 15. It is also the contention of counsel that the originating process did not comply with the mandatory provision of Order 3 Rule 9 of the rules of this court counsel concluded that by urging the court to strike out the entire suit as same is incurably bad beyond redemption. 16. In reaction to the notice of preliminary objection, the claimant/respondent with the leave of court filed reply on point of law out of time. Y. A. sarki-Baba, Esq; counsel for the claimant in arguing in opposition to the notice of preliminary objection adopted the reply on point of law as his argument in opposition to the objection. In the reply a single issue was formulated for determination, to wit:- ‘’Whether or not the court lack power to try and entertain this suit.’’ 17. In arguing in opposition counsel contended that the preliminary objection filed by the Defendants/Applicants is incompetent as same does not comply with mandatory provisions of Order 17 Rule 1(1) and 9 of this Honorable court and on the same vain is misleading as the ground upon which same was brought is evasive and does not in any way constitute nor robs the court of its jurisdiction as the Applicants will want this court to believe. 18. It is the contention of counsel that the Defendants/Applicants cannot run away from her shadow that IHS Towers NIG. LTD. is not a juristic person when in fact the first respondents process recipient stamp read the same and a copy of one of the said received stamp of the first defendant/Applicant is here by attached and marked as Exhibit NS 01. It is further submitted that the defendant/Applicant Employee Manual reads IHS Nigeria PLC Version 2, 2015 a copy of the cover page of the said Manual is hereby attached and marked - Exhibit NS 02. 19. According to counsel what determine the jurisdiction of the court is the claims of the claimant, the composition of the court as to the members and qualifications the subject matter if same is within the ambit of the court and weather the suit is commenced by due process of laws, on this counsel call in the aid of the decisions in the cases of C.B.N. VS. S.A.P NIG.LTD. {2005) 3 NWLR {PT. 911) P.152 Ratio 2, MADUKOLU V. NKEMDILIM {1962) 2 SCNLR 341. 20. Counsel also argued that what determine jurisdiction of the court is the claim, parties, subject matter of the plaintiff, this is the position of their Lordship in the Supreme Court cases of OLUBUMI OLADIPO ONI V. CADBURY NIG.PLC {2016) 9 NWLR PT 1516 at P 107 and the case of ALH. JIBRIN ISAH V. CAPTAIN IDRIS WADA & 2 ORS {2016) 18 NWLR PT 1544 at P235-276. It is contended that the suit before the court is for termination of the claimant’s employment without following the due process of the laws and rules set out by the defendants themselves and the parties before the court are the proper parties and the subject matter are within the confines of the jurisdiction of this court and it is trite that in deciding whether a court has jurisdiction to hear a matter, what the court should examine is the plaintiff/claimant's pleadings and no any other document. Counsel urged the court to so hold. 21. Counsel contended that assuming the argument of the defendants/applicants is something to be looked in to the Supreme Court has laid to rest the issue of parties. 22. It is the contention of counsel that the preliminary objection is raised by the Defendants/Applicants to mislead this court in believing that this court has no jurisdiction but on the contrary the court has jurisdiction to entertain the matter in all ramifications. Counsel submitted further that the defendants/Applicants did not perused the claimants process very well as the plaintiff counsel in page two signed and marked in accordance with the rules of this court and extant laws. 23. Counsel submitted that a careful perusal of the chain of cases cited by the defendants/applicants in support of the preliminary objection show that the cases are distinguishable from the case at hand before this court. 24. It is also submitted that nothing has been placed before the court to show that the jurisdiction of this court is ousted. Counsel contended in the case of MADUKOLU V. NKEMDILIM {1962) 2SCNLR 341 at 348 the court held, that a court is competent when it is properly constituted as regards numbers and qualifications the subject matter of the case and there is no feature in the case which prevents the court from exercising its jurisdiction and the case before the court initiated by due process of law .and upon fulfillment of any condition precedent to the exercise of its jurisdiction. This is per-material with the case at hand the plaintiff has fulfill all the condition the court is competent to try this matter and no features that disqualifies this court from entertaining the matter. 25. In concluding his submission counsel urged the court to discountenance the defendants/applicants’ argument in all ramification on this issue and toe the line of the Supreme Court to dismiss the defendants/Applicants preliminary objection with substantial cost. COURT’S DECISION. 26. I have carefully considered the notice of preliminary objection filed by the defendants/applicants, the reply on points of law filed by the claimant/respondent in opposition to the notice of preliminary objection and all the court processes so far filed. I have equally thoroughly considered the written and oral submission of counsel for both parties. 27. The objection to the competency of this suit as can be gleaned from the notice of the objection is predicated on the 1st defendant/applicant not being a juristic person capable of suing or being sued in law, non-disclosure of cause of action against the 2nd defendant as the 2nd defendant is an agent of a disclosed principal and therefore not a necessary party to be sued as his act are attributable to his principal on whose behalf he acted. There is also the issue non-compliance with Order 3 Rule 9 of the National Industrial Court of Nigeria (civil Procedure) Rules 2017 and non-ticking of counsel that signed statement of facts and list of witnesses. 28. In his reply which was not backed up by a counter-affidavit the claimant/respondent devoted the entire address on issue of jurisdiction of this court to hear and determine the case of the claimant. In the process the counsel for the claimant/respondent glossed over the aspect of the objection that borders on cause of action and the 2nd defendant not being necessary party as he acted as agent of a disclosed principal. 29. In an attempt to prove his opposition to the notice of preliminary objection, the counsel for the claimant/respondent referred to two documents attached to the reply on points of law which were referred to as exhibits NSO1 AND NSO2. The claimant has argued that these documents attached to the reply on points of law have watered down the argument of counsel for the defendants/applicants on legal personality of the 1st defendant/applicant in that on the received stamp of exhibit NSO1 the 1st defendant was described as IHS Nigeria Ltd and I exhibit NSO2 the 1st defendant was described as HIS Nigeria Plc. 30. The two purported exhibits which the claimant/respondent sought to rely upon in opposition to the preliminary objection cannot help as the so called exhibits do not qualify as exhibits. For a document to be so referred as exhibit to be relied upon by the court it must be shown to be a document that has been annexed to an affidavit and so marked as exhibit. In the case at hand the claimant/respondent did not file any affidavit to counter or contradict the affidavit in support. Consequently, the purported exhibits are not properly before the court and they are hereby discountenanced for not being properly before the court they are hereby expunged. 31. The claimant’s failure to file counter affidavit to the defendants/applicants’ affidavit in support means he has admitted and taken the deposition in the affidavit in support as the truth of what was stated therein. See Neka B.B.B. Manufacturing co. ltd v ACB (2004) 2 NWLR (Pt.858) 521, Lawanson-Jack V Shell (2002) 12 MJSC 114. 32. On the question of 1st defendant/applicant’s juristic personality to sue and be sued in the name of IHS Towers Nig. Ltd? 33. Our jurisprudence is lucid and clear that only natural persons, in other words, human beings and artificial or juristic persons (bodies corporate) are seized with the competence and capacity to sue and be sued. In Chief Aderibigbe Jeoba v. Osho Owonifari (1974) 10 S.C. 157 at pp. 163-165; the Supreme Court commenting on the theory of legal personality defined a person thus:- a. “In legal theory, a person is any being whom the law rewards as capable of rights and duties. There are two kinds of persons distinguishable as natural and legal. A natural person is a human being while a legal or juristic person is a person in legal contemplation such as a joint stock company or Municipal Corporation. 34. In law two categories of persons are recognised as having juristic personality to sue or be sued. The law has been solidified by numerous decisions of the Courts. any person, natural or artificial, may sue or be sued in a court of law. No action can be brought by or against any party other than a natural or artificial person or persons, expressly or impliedly, unless status, rules of court or common law has given such a person legal persona under a name or a right to sue or be sued by that name. See FAWEHINMI V N. B. A. (NO.2) (1989) 2 NWLR (PT.105) 558; IYKE MED. MMERCH V PFIZER (2010 10 NWLR (Pt.722) 540. 35. The above decisions of the apex court have established that in our jurisprudence two categories of persons are recognised as having juristic personality to sue or be sued. The law has been restated by numerous decisions of the Supreme Court that any person, natural or artificial, may sue or be sued in a court of law. No action can be brought by or against any party other than a natural or artificial person or persons, expressly or impliedly, unless status, rules of court or common law has given such a person legal persona under a name or a right to sue or be sued by that name. See FAWEHINMI V N. B. A. (NO.2) (1989) 2 NWLR (PT.105) 558; IYKE MED. MMERCH V PFIZER (2010 10 NWLR (Pt.722) 540. The term “legal person” as opposed to a natural person, applies to corporation such as limited liability companies or Municipal Corporation; it may also apply to churches, hospitals, or Universities if they are incorporated or registered as such. 36. In the case of Nigeria Nurses Association & Anor. V. Attorney – General of the Federation & Ors. (1981) 11-12 S.C. 1 at 12; Obaseki, JSC (as he then was of blessed memories) held that a registered Trade Union is a legal person and the birth and death of such a legal person or artificial personality/entity is determined not by nature but by the law. The learned Law Lord further posited that since such artificial persons came into existence by legal will and fiat, they must necessarily exist only at the pleasure of the law and their extinction or death is called dissolution. On the other hand, the personality of a human being commences from birth and ceases to exist at death. At death such a being ceases to possess rights or interest or obligations and therefore can no longer own property or capable of suing or being sued. 37. It is clear from the above analysis of the concept of legal personality, like natural persons, artificial bodies by virtue of their incorporation have acquired rights and obligations or duties are empowered at law to sue and be sued. The rationale behind this legal concept is that litigation is all about the determination of legal rights and obligations and accordingly, only parties with such vested rights and obligations who have life either natural or statutory by incorporation or legislation can initiate actions or can be proceeded against. See Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2 NWLR 558 at 595; Management Enterprises Ltd. V. Otusanya (1987) 2 NWLR 179. From the foregoing analysis, it has been held that the names of the parties in a suit like the one at hand must be names of living persons (i.e. natural persons or artificial persons known to law). 38. One of the grounds of objection in this case is that the 1st defendant/applicant is not a person known to law and cannot be sued. The defendants/applicants in their affidavit in support have deposed to that effect. It was also averred that a copy of certificate of incorporation of the 1st defendant/applicant has been attached as exhibit IHS 1, I have scrutinised the affidavit in support and the entire case file, but, I could not lay my hand on the said certificate of incorporation, said to have been attached to the affidavit in support of the objection. 39. It is to be noted that the defendants/applicant have in their affidavit in support of the motion on notice averred that 1st defendant is not a legal entity capable of suing or being sued as the name was not a name of a registered entity in law. The defendants/applicants averment were never challenged or controverted by the claimant/respondent. The defendants/applicants averments in the affidavit in support having not been controverted by the claimant/respondent are deemed admitted. See Alfotrin v. Attorney General of the Federation & Anor. (1996) 12 SCNJ 236 at 262; per Iguh, JSC; Omoregbe v. Lawani (1980) 3-4 SC 108 at 117; N.M.S. Ltd. v. Afolabi (1978) 2 SC 79 at 87; Boshali V. A.C.E. Ltd. (1961) 1 ALL NLR 917 and Maersk Line v. Addide Ltd. (supra) at 461. From the decisions in the above cited cases, where the averments in the Affidavit of the Defendants/Appellants was deemed admitted by the claimant/respondent who had the opportunity to challenge the said averments but failed and/or neglected so to do, this court has a duty to accept and act on such unchallenged evidence. 40. The law has long been settled that for an action to be maintained against any corporate entity it must be in its registered name of such entity. See Iyke Medical Merchandise v. Pfizer Inc. (2002) FWLR (pt. 53) p. 77 per Iguh, J.S.C.; Noble v. Parochial Committee of St John’s Church Aroloya Lagos (1959) LLR 47 and Njemanze v. Shell B.P Port-Harcourt (1966) 1 ALL NLR 8 at 10; where it was variously held that the exact name of a company registered under the Companies and Allied Matters Act should be used if it is suing or being sued. See also Governor of Kwara State v. Lawal (2007) 13 NWLR (pt. 1051) 347 at 379 and Idanre L.G. V. Governor of Ondo State (2010) 14 NWLR (pt. 1214) pg. 509. 41. With the objection raised the claimant who sued the 1st defendant/applicant is duty bound to adduce evidence to establish that the 1st defendant is a juristic person cable of being sued. But the claimant did not do that. In the circumstance and on the strength of the affidavit evidence I have no choice than to agree with counsel for the 1st defendant that the 1st defendant is not a juristic person in law to sue or be sued in the name in which it was sued. See Agbomagbe Bank Ltd. v. General Manager, G. B. Olivant Ltd. & Anor. (1961) A.N.R. 125; Maersk Line v. Addide Ltd. & Anor. (2002) 4 SCNJ 433; Okechukwu v. Ndah (1976) NWLR 368 at 370. 42. On the issue of 2nd defendant not being a necessary party because he is an agent of a disclosed principal, I need not expend much energy on this objection for the simple reason that in labour relations, the definition of an employer has an expansive meaning as to include officers of the employer himself. For instance, section 91(1) of the Labour Act Cap. L1 LFN 2004 defines the “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer”. Of course, by section 18(1) of the Interpretation Act 2004, “person” includes anybody of persons corporate or unincorporated. Since the definition of an employer includes the agent, manager or factor of an employer, the 2nd defendant in the instant suit a proper party to be joined. However, there is another twist to the presence of the 2nd defendant as the defendants/applicants have argued that the claimant/respondent has not disclosed cause of action against the 2nd defendant. I have scrutinized the statement of facts and all the processes filed in this suit it is manifestly clear that non- of the reliefs being sought by the claimants is against the 2nd defendant. the reliefs borders on wrongful termination and monetary claims for salary which are all against the 1st defendant, in the Absence of any reliefs against the 2nd defendant I hold that there is no reasonable cause of action against the 2nd defendant in this suit, the 2nd defendant ought not to have been made a party in the first place. See Thomas V Olufosoye (1986). 43. The defendants/applicants have also in their objection argued that the originating summons is incompetent due lack of ticking name of legal practitioner that signed the statement of facts and the list of witnesses. It was also argued that the provisions of Order 3 Rule 9 of the rules of Court have not been complied with. According to counsel these defects in non-ticking and lack of compliance with Order 3 Rule 9 is fatal to the Originating Processes and has rendered it incompetent. Going by the Rules of Court Order 3 Rule 21 for an objection to be raised to Originating process must be made within 21 days of service on the defendant of the originating process. From the record of the court the defendants were served with the originating summons on 13/9/2019 and the notice of preliminary objection was filed on 7/11/2019, this means that the objection of non-compliance with Order 3 was not raised within 21 days period allowed by the rules of court and there was no application made for extension of time, with this finding the objection on Order 3 rule 9 failed and is hereby overruled. On issue of ticking of name of counsel that signed the processes before the court there is tick on the counsel that signed the complaint this has established substantial compliance in the circumstance the objection on non-ticking failed and same is dismissed. 44. From all I have been saying above the present suit in terms of originating process was properly commenced, but in terms of parties the 1st defendant is not a juristic person capable of suing or being sued in a court of law. For the 2nd defendant no cause of action has been disclosed against him. On the whole the objection on ground of lack of legal capacity and cause of action succeeds. The names of 1st and 2nd defendants are hereby struck out. With the striking out of the names of the two defendants the entire suit must also be struck out, for the simple reason that there are no defendants left to defend the matter. 45. I make no order as to cost. 46. Ruling entered accordingly. Sanusi Kado, Judge. REPRESENTATION: Y. A. Sarki-Baba, Esq; for the claimant A. E. Sani, Esq; for the defendants.