Nasiru Sule v Ihs Towers Nig. Ltd. & Anor.

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 30 April 2020
• Respondent: Ihs Towers Nig. Ltd. & Anor.
• Appellant: Nasiru Sule
• Docket Number: NICN/ABJ/268/2019
• Counsel: Y. A. Sarki-Baba, Esq; for the claimant A. E. Sani, Esq; for the defendants.
• Court: National Industrial Court (Nigeria)

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)...