IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 31STMARCH 2017 – NICN/ABJ/403/2015
BETWEEN
- SIMON CHRISTIAN – CLAIMANT
AND
- VIC LAWRENCE & ASSOCIATES
LIMITED
- ECO BANK NIGERIA PLC – DEFENDANTS
REPRESENTATION:Parties absent. W.C. Ezea for the Claimant. O.I. Arase for the 2nd Defendant with G. O Ivhador
RULING
The Claimant filed this action by a general form of complaint on the 21st of December 2015. In which he claimed the following:
- A DECLARATION that the Claimant’s employment vide the 1st Defendant’s letter dated 23rd April 2015 was wrongful and without justification
- A DECLARATIONthat the Defendants breached the terms and conditions as contained in the contract of employment reference No.OCB/T/114 dated 25th January, 2007
- AN ORDER of the Honourable Court directing the Defendants to pay to the Claimant the sum of Twenty Million Naira (N20,000,000.00) only as general damages for Breach of Contract of employment.
- AN ORDER of the Honourable Court directing the Defendants to pay to the Claimant the sum of Twenty Five Million Naira (N25,000,000.00) only as general damages for wrongful dismissal of the Claimant.
- Cost of the action put at N200,000.00 (Two Hundred Thousand Naira only).
The case first came up on the 26th of April, 2016 and then subsequently on the 6th of June, 2016. Before this date the 2nd Defendant had on the 10th of February 2016 filed a motion on notice pursuant to Order 11 rule 1 of the National Industrial Court rules 2007 and under the inherent jurisdiction of the Court seeking an order of court striking out the name of the 2nd Defendant/Applicant (“Applicant”) as a party in this suit. The motion was supported by a 6 paragraph affidavit as well as a written address. This application was filed 2 days after the said second Defendant had entered a memo of conditional appearance filed on the 8th of February 2017, a date on which it also filed a Statement of defence and a Witness Statement on Oath as well as documents to be relied on.
On the 9th of September 2016 the Claimant filed a counter affidavit as well as a written address in support of the counter affidavit. On the 28th of July 2016 the 1st Defendant entered appearance and filed a motion on notice for extention of time to file and serve its memorandum of appearance, Statement of Defence list of witnesses and witness Statement on oath. This motion was granted on the 5th December 2015.
On the 31st October 2016 the 2nd Defendant filed a further affidavit in support of its motion filed on the 10th of February 2016. On the 13th of February 2017 the said motion of the 10/2/2016 seeking to have the name of the 2nd Defendant struck out was heard.
In the written address in support of the motion counsel formulated 2 issues for determination. These are:
(a) Whether by the statement of facts in the instant suit, the Claimant/Respondent has disclosed a reasonable cause of action against the Applicant.
(b) Whether the 2nd Defendant as presently constituted on the Originating Process before this Honourable court is a person known to law.
The Claimant/Respondents in his written address equally adopted the above issues as formulated by the 2nd Defendant.
In determining the 1st issue necessary consideration has to be given to the pleadings of the Claimant to see what cause of action is disclosed against the 2nd Defendant. Now, a cause of action has been held to be the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. It is the factual situation on which the Claimant relies to support his claim and it must be recognized by the law as giving rise to a substantive right capable of being enforced against the Defendant. See CHEVRON V. LONESTAR DRILLING (2001) (pt. 723).
The 2nd Defendant had defined a cause of action as the fact or combination of facts which gives rise to a right to sue and it consists of the wrongful act of the Defendant and which gives the plaintiff his cause of action and consequent damage. Citing PEACE GATE OIL & GAS V. HYDRIVE (NIG) LTD (2012) NWLR (pt. 132a) 391 at p.403 paras A-B. The Applicant’s contention is that on the face of the pleadings there is no cause of action whatsoever against the Applicant.
The Respondent maintained in his address to the contrary he referred to the Claimant’s sack letter from which he quoted the main paragraph in the brief letter dated 23rd April 2015. For the purpose of determining this issue and the entire application I shall reproduce hereunder the said paragraph.
“You are hereby notified that your service is no longer required by Ecobank Nigeria Plc and by this letter VIC Lawrence and Associate is withdrawing you from the bank immediately.
Looking at the writ containing 5 heads of claim, the Claimant seeks the first declaratory relief against the 1st Defendant only. The 2nd declaratory relief sought in the head of claim is that both defendants breached the terms of the Conditions of Service in the contract of employment dated 25th January 2007. While the remaining heads of claim seek pecuniary reliefs against the Defendants.
In the Claimants averment in paragraph 1 of the Statement of Facts it is stated that the Claimant was a teller in the 2nd Defendant. The 2nd Defendant did not deny this averment. Rather by the pleadings of both parties I find that issues are joined largely on this point. In fact the 2nd Defendant had paragraph 4 of its Statement of Defence stated that: “The 2nd Defendant admits paragraph 4 only to the extent that the Claimant was on secondment to the erstwhile Oceanic Bank International Plc in February 2007 as a teller.
I have no doubt that there is a cause of action for which issues have been joined by the pleadings of both parties. I hold that there is some allegation of wrong by the Claimant against the 2nd Defendant over which issues are joined by the pleadings of the second Defendant. Issue 1 as formulated by both is therefore determined in favour of the Claimant Respondent.
As to issue 2 on whether 2nd Defendant as presently constituted is a person known to law. The 2nd Defendant counsel for the applicant submitted here that the Application was improperly constituted and should be struck out and he cited the case of ADELAKUN V. ORUKU (2006) 11 NWLR PT. 992) P. 625 at 645-647paras E-B counsel submitted for the 2nd Defendant that the 2nd Defendant as constituted is unknown to law that it was sued as Ecobank Plc while the process was served on Ecobank Nigeria Ltd. And it attached its certificate of incorporation dated 5th April 2012. He went on to state that in the event that the Claimant is unable to show that the 2nd Defendant exists, the court should strike out the 2nd Defendant from the suit as a matter of necessity to enable the Court deal with the issues in contention in the suit as between the proper and necessary parties alone. Counsel submitted further that it is not possible to substitute a juristic personality for a non-juristic personality citing the case of NJOKU V. UAC FOODS (1999) 12 NWLR (pt. 632) 557 at p. 564 -565 paras H-B.
The Claimant Respondent in its response submitted at 3.12 that if it is the case of the 2nd Defendant/Applicant that the real name of the 2nd Defendant/Applicant is Ecobank Nigeria Limited and not Ecobank Nigeria Plc, it should be seen as a misnomer which can be corrected even suo motu by the Honourable Court if the Claimant respondent can show a cogent reason why the 2nd Defendant/Applicant was wrongly named. Counsel submitted that the misnomer was due to the mistake of the 1st Defendant who described the 2nd Defendant as Ecobank Nigeria Plc in the Claimants letter of dismissal, and that it was a bonafide mistake.
Counsel went on further to state that the identity of the person being sued is not in doubt as clearly stated in the Respondent’s Counter affidavit. He relied on the Supreme Court case of MAERSK LINE & ANOR VS. ADDIDE INVESTMENT LIMITED & ANOR (2002) 29 WRN 1. PP 60-61 lines 40 – 20 per Ayoola JSC where the Court held that the correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense since the party after the correction is the same person as was misnamed or misdescribed”. Counsel then urged the court to allow the Claimant/Respondent to amend correcting the earlier written “Ecobank Nigeria Plc to read.” Eco bank Nigeria Limited since it was not the intention of the Claimant/Respondent to misdescribe the 2nd Defendant Applicant as Ecobank Nigeria Plc.
Having considered the arguments of both parties I am convinced that the name of the 2nd Defendant as appears on the suit is a misnomer as such counsel for the Claimant should take steps to have the name corrected as the identity of the 2nd Defendant is not really in issue but its proper name. See the cases of OKECHUKWU & SONS VS. NDA (1967) NWLR 366 and A.B MANU & CO (NLG. LTD) V. CONSTAIN (WEST AFRICA) LTD (1994) 18 NWLR (pt. 360).
By the provision of order 13 rule 14 (3) of the National Industrial Court of Nigeria Civil Procedure Rules 2016 provides:
See also order 13 r. 5 (2017)
“A judge may order that the name of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.”
In the present case I have found earlier that the name of the 2nd Defendant arose as a misnomer, it may not be a person known to law but the misnomer will not be allowed to defeat the proceedings at this stage in view of the provision just cited above.
More so, I find the question for determination in the second issue as being one which rests more on a technicality or academic arguments which this court would not easily be swayed by.
It is hereby ordered that the name of the 2nd Defendant ECO Bank Nigeria Limited be substituted accordingly as the proper name of the 2nd Defendant.
Ruling is entered accordingly.
___________________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
