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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: July 15, 2011 Suit No. NIC/LA/26/2011 BETWEEN Mr Isaac North - Claimant/Respondent AND TNT/IAS EXPRESS - Defendant/Applicant REPRESENTATION Mohammed .A. Adamu for Claimant/Respondent. C.K. Konze for Defendant/Applicant. RULING This is a notice of preliminary objection filed by the defendant/applicant on the 7th June 2011. It is brought pursuant to Order 11 Rule 1 (1), Order 15 of the National Industrial Court Rules 2007 and the inherent jurisdiction of the court praying as follows: That this Honourable court lacks the jurisdiction to entertain this suit as presently constituted against the defendant in consequence of which the same is liable to be struck out. The grounds upon which this objection is brought are as follows: (a) That the defendant is not a juristic/legal person. (b) That the suit is incompetent. (c) That the court has no jurisdiction/ought not to exercise jurisdiction against the defendant in the circumstances of the matter. In reaction to the objection, the claimant’s counsel filed a reply written address on the 23rd June 2011. While arguing orally against the objection, he sought the leave of court to withdraw the written address which was granted and consequently struck out. In arguing the objection, learned counsel to the defendant/applicant submitted that it is the law that a suit can only be commenced against natural or juristic persons defined as an entity or a company incorporated in accordance with the Companies and Allied Matters Act (CAMA) Cap C20 LFN 2004. He contended that the defendant TNT/IAS Express is not a juristic person and so cannot be sued. He stated that the letter of employment frontloaded by the claimant shows that he was offered employment by IAS Cargo Ltd a company duly incorporated in accordance with the provisions of the Companies & Allied Matters Act and submitted that in the present suit, the defendant TNT/IAS Express is being sued as the claimant’s employer. That this shows the proper party is not before the court relying on the case of Madukolum v Nkemdilim [1962] 2 SCNLR 431. He argued that the action as presently constituted is incompetent and that this touches on the jurisdiction of the court to hear and determine the matter. The defendants counsel went on to submit that as the defendant is not known to law because it is neither a natural person nor a juristic person, the court has a duty to strike out the suit and urged the court to strike out same. In replying, learned counsel to the claimant/respondent stated that the claimant would be relying on the defendants employee handbook and certificate of Good Service award already frontloaded in arguing against the objection. He submitted that the defendant is registered under section 43 (1) (b) of the Nigerian Postal Service Act (NIPOST) Cap N127 LFN 2004 and that the defendant’s registration does not fall under the Companies & Allied Matters Act. He argued that where an organization derives its registration under another legislation it can sue and be sued under the name it is registered with. The claimants counsel argued that it is trite that the law presumes that which ought to be done as done citing Oyediran v Owolagba (No citation provided) and went on to submit that since the defendant is registered under the NIPOST Act to carry out its operations, it is binding on it to answer legal questions. He went on to state that he had filed a motion for joinder of another party on the 23rd June 2011 and submitted that where a court is faced with two competing applications before it, it is in the interest of justice that the two applications be taken together before making a ruling citing Adedigba v Okwu [2005] 42 WLR 38. He then urged the court to suo moto make an order for substitution or joinder. Replying on point of law, the defendant’s counsel submitted that the issue of joinder only comes in when there is a competent suit before the court and that the authorities particularly the NIPOST Act cited and relied on by the claimants counsel is not applicable. He further submitted that what confers legal personality on an unnatural person is the fact of complying with all the legal requirements before being issued with a certificate of incorporation. He finally urged the court to strike out the suit. Having carefully considered the submission and arguments of counsel, the main issue to be resolved is whether or not the defendant is a juristic person. It is trite law that a claimant cannot sue a non juristic person. The concept of a legal entity or juristic person derives from the effect of registration as provided in section 37 of the Companies & Allied Matters Act Cap C 20, LFN 2004 and not the Nigerian Postal Service Act Cap N127 LFN 2004. Indeed section 43(1) (a) of the Nigerian Postal Service Act provides that “no person shall operate a courier service in Nigeria unless the person is registered as a company under or pursuant to the Companies and Allied Matters Act.” In this preliminary objection, the juristic status of the defendant has been put in issue and the onus is on the claimant to prove incorporation by exhibiting the certificate of incorporation of the defendant. This the claimant has not done. See Nduka v Ezenwaku [2001] 6 NWLR (Pt 709) 494, Bank of Baroda v Iyalabani Company Ltd , [2002] FWLR (Pt 124) 494. Furthermore, the claimant’s letter of employment reveals that he was employed by IAS Cargo Airlines (Nig) Ltd. This shows that IAS Cargo Airlines is a necessary party to this action and is not before the court. The claimant has not been able to establish that the defendant is a business organization with juristic capacity to sue and be sued. A court can only be competent to entertain a case if all the conditions precedent for its having jurisdiction are fulfilled. See Madukolu v Nkemdilim [1962] 2 SCNLR, 431 and Green v Green [1987] 3 NWLR (Pt 61) 480. For all of these reasons, I hereby uphold the defendant’s preliminary objection. Consequently, this suit as presently constituted is struck out for being incompetent. I make no order as to costs. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae