Download PDF
This action was commenced way of Complaint dated the 31st day of May, 2013 and filed on the same date. By an amended Statement of Claim filed on the 25th day of November 2013 with the leave of court, the Claimant claims against the Defendant as follows: 1. The sum of N999,000.00 being outstanding benefits due the claimant from January 2007 to January 2010. 2. The sum of N750,000.00 as solicitors fees. 3. The sum of N3,000,000.00 as general damages. By a notice of preliminary objection dated the 22nd day of February 2014 and filed on the 24th day of February 2014, the defendant/applicant objected to the competence of this action on the ground that there is no competent DEFENDANT known to law who is sued in this action. In the written address filed by the defendant/applicant in support of the preliminary objection, reference was made to paragraph 13(b) of the Amended Statement of defence wherein the defendant had given the indication of this objection. Counsel submitted that the party sued as Defendant is a limited liability company as averred by the Claimant in Paragraph 2 of her Statement of Claim, and that only natural or juristic persons are capable of being sued. He submitted further that the name of a competent party to a suit must be the real name by which he is known. He relied on the authority of NOBLE vs. PAROCHIAL COMMITTEE OF ST. JOHN’S CHURCH, AROLOYA LAGOS (1959) LLR 47 and the case of NJEMANZE vs. SHELL BP PORTHARCOURT (1966) 1 All NLR 8 @ 10 and submitted that a registered company ought to be sued by the exact name under which it was registered under the Companies and Allied Matters Act. He therefore urged the Honourable to hold that “TIENS HEALTH BUSINESS DEVELOPMENT COMPANY” sued as defendant in this suit is not a juristic person, and that the fact of the Defendant’s incorporation was not disclosed in the Claimant’s Claim. Finally, counsel relied on the authority of AGBONMAGBE BANK LTD vs. G. B. OLLIVANT LTD & ANOR (1961) All NLR 116 and submitted that naming a non-juristic person as a party is not a misnomer, and cannot be amended to substitute a juristic person therefor. In reaction, the Claimant’s counsel in his written address filed on the 28th day of February 2014, addressed a sole issue for the determination of the court, which is “whether from the facts and circumstances of this case, whether this suit is incompetent.” In arguing the sole issue, Counsel submitted that the Statement of Claim is what determines the Court’s jurisdiction. Relying on OWUDUMI vs. REG. TRUSTEES OF CCC (2000) 10 NWLR (Pt. 675) Pg.315 @ 354-355 and MADUKOLU vs. NKEMDILIM (1962) 1 NWLR Pg. 581 and KWARA STATE vs. LAFIAGI (2005) 5 NWLR (Pt. 917) Pg. 139 @ 151, counsel urged the court to look at the writ of summons and the Statement of Claim in determining this preliminary objection. He submitted further that in an application of this nature, the defendant ought to place sufficient materials and facts before the Court, to warrant the Court to exercise its discretion in its favour. WILLIAMS vs. HOPE RISING (1982) 1 All NLR Pg.1. He said the defendant has not placed any material before this court to warrant a grant of this application. He said the onus is on a person alleging the existence or non-existence of a particular fact to prove those facts; and that the failure of the Defendant to produce before the Court its Certificate of Incorporation means that if produced, it will not be favorable to the defendant and that is the reason for withholding the information from this Honourable Court. He urged the Court to dismiss this preliminary objection with substantial cost. I have considered the submissions relating to this preliminary objection which is based on the defendant’s assertion that the name under which it is sued “TIENS HEALTH BUSINESS DEVELOPMENT CO.” is not known to law, and that the defendant being a limited liability Company, ought to be sued in its exact registered name. Parties are bound by their pleadings. In paragraph 2 of the Amended Statement of Claim, the Claimant averred that the defendant is an incorporated company in Nigeria. This fact was admitted in paragraph 2 of the amended Statement of Defence. Ordinarily, this should amount to a presumption that the nomenclature of the defendant ought to end with the word “limited”. Again, I have looked at the Statement of Claim and documents frontloaded thereto. The employment letter, the basis for this action, which is pleaded and frontloaded by the Claimant was written on the letterhead of “TIENS HEALTH BUSINESS DEVELOPMENT COMPANY NIGERIA LIMITED”. Even the letter of termination was also written on the letterhead of “TIENS HEALTH BUS. DEV. CO. NIG. LTD.” The Supreme Court has held Per Mahmud Mohammed JSC in the case of THE EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA vs. SAMUEL DAVID EKE-SPIFF (2009) 7 NWLR 97 thus: “Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection which if upheld, normally leads or results in the action being struck out.” Going by the undisputed fact of the defendant being an incorporated company, there is a presumption that it is a company, and should therefore be referred to as such, for all intents and purposes. Nothing in the Claimant’s pleadings or address has raised any question as to whether or not the fact of the defendant’s corporate existence has been or is being disputed. The Claimant has argued that the defendant ought to place sufficient materials and facts before the court to warrant the grant of this application; and also, that the defendant ought to produce before the court, evidence of its incorporated name by producing its certificate of incorporation; and that failure to produce same implies that if produced, it will be unfavourable to the defendant. It is noted that the subject matter of this suit is not the existence or non-existence of the defendant as a juristic personality. Indeed the said fact is undisputed, going by the averments in paragraph 2 of the Amended Statement of Claim wherein the Claimant averred that the defendant is an incorporated company in Nigeria. This fact was clearly admitted in paragraph 2 of the amended Statement of Defence. It is to be presumed or implied therefore that the defendant is a juristic person and therefore ought to have been sued in its registered name. The law is settled that a non-juristic person generally cannot sue or be sued. The Supreme Court has held in MAERSK LINE vs. ADDIDE INVESTMENTS LIMITED (2002) 11 NWLR (Pt. 778) 317 that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. As to whether the defect of suing a non-juristic person can be corrected by an amendment with a juristic person, the position of the law is that there is nothing to amend, and the only viable remedy in law is an application to strike out the non-juristic name sued. See USUAH vs. G.O.C. NIGERIA LTD & ORS (2012) LPELR-7913(CA). In any case, it is noted that the Claimant does not seek an amendment. Rather, Counsel has argued that the defendant ought to place sufficient materials and facts before the Court, to warrant the Court to exercise its discretion in its favour. While this is true, it is also true that only a person known to law can be sued. No order or judgment of the court can be made against a non-juristic person. See WORLD MISSION AGENCY INC. vs. SODEINDE & ANOR (2012) LPELR-19738 (CA). In AGBONMAGBE BANK LTD. vs. GENERAL MANAGER, G. B. OLLIVANT LTD (1961) 1 All NLR 116, it was held that an action cannot be maintained against a defendant who, as sued, is not a legal person. In ANEMENE & ANOR vs. OBIANYIDO & ORS (2006) LPELR-11635 (CA), the Court of Appeal held that it was wrong for the trial judge to make an order substituting Diamond Bank Plc., a non-existing and non-juristic being with Diamond Bank Ltd a juristic person. On the whole and for all the reasons given, the objection of the Defendant/Respondent succeeds. The defendant as sued is not a juristic person, and no action can be maintained against a non-juristic person. In consequence, this case is accordingly struck out. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe