IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP: HON. JUSTICE S. H. DANJIDDA

DATE: 29^th October, 2025                                SUIT NO: NICN/UY/12/2024

BETWEEN:

NIGERIA SOCIAL INSURANCE TRUST FUND

MANAGEMENT BOARD                                                                        Claimant

AND:

IBOM ICON HOTEL AND GOLF RESORT      -           -           Defendant

REPRESENTATION:

K. A. Ogisi for the Claimant

Miebi Owonaro Esq for the Defendant

RULING

The foundation of this case is that the Claimant by a General Form of Complaint and other accompanying processes dated and filed on the 25^th March, 2024 instituted this action against the Defendant and asked for certain reliefs.

Upon service of the Originating processes, the Defendant on 13/2/2025 filed a Notice of Preliminary Objection (NPO) dated and filed on 13/2/2025 challenging the competence of the suit as instituted. However, the Claimant filed a Motion on Notice on 18/2/2024. The said Motion on notice which is the subject of this ruling is seeking for the following reliefs:-

“1.      An Order granting leave to the Claimant/Applicant to amend its Complaint and other originating processes in this suit to reflect the correct name of the Defendant as “IBOM RESORT AND HOTELS LIMITED“.

2.        An Order correcting the name of the defendant from IBOM ICON HOTEL & GOLF RESORT “to IBOM RESORT AND HOTELS LIMITED” (Trading under the name and style of IBOM HOTEL & GOLF RESORT) wherever it appears in the processes of this Honourable Court.

3.        And for such further Order or Other Orders as this Honourable Court may deem fit in the circumstances.”

The Motion is supported by a 7-paragraph affidavit deposed to by one Udosen Anietie Emmanuel, a Senior Manager of the Claimant with Exhibits attached and a Written Address accompanying the motion.

The Defendant in its opposition to the Motion filed a Reply on Points of law on the 25/2/2025.

SUBMISSIONS OF THE CLAIMANT

Learned counsel to the Claimant in his Written Address submitted a lone issue for determination to wit;

“Whether this Honourable Court has the power to grant leave to amend the name of the defendant in the Complaint and other originating processes, where it is established that there was a misnomer”.

It is the submission of counsel that a misnomer occurs when a party to a suit is incorrectly named in the Court process, but there is no doubt as to the actual entity intended to be sued. That it is a mistake in nomenclature rather than identity. Counsel referred to the case of A. B. Manu & CO V. Costain (WA) Ltd (1994) 8 NWLR Pt. 360) where the Court held that ‘misnomer’ can be said to be a mistake in name-giving, incorrect name to persons in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. Counsel also referred to Arab Contractors (O.A.O) Nigeria Ltd  V. EI Raphael Hospital and Maternity Hone Investment Co. Ltd & Anor (2009) LPELR 8735 (CA).

Counsel contends that the case at hand falls squarely within the ambit of a misnomer. That the Claimant made an inadvertent error by referring to the Defendant as IBOM ICON HOTEL AND GOLF RESORT in this suit.That this mistake was occasioned by the way the Defendant presented itself in public and official correspondences with the Claimant. That the name IBOM ICON HOTEL AND GOLF RESORT was taken from the Defendant’s signage which suggested that this was the official name of the business. That the Defendant also responded to letters addressed to ‘IBOM ICON HOTEL AND GOLF RESORT’ without objection regarding its identity, thereby reinforcing the impression that this was its correct name.

Counsel submits that where a mistake in a party's name is a mere misnomer and does not mislead or prejudice the opposing party, the court has the power to grant an amendment to correct the error in the interest of justice. Counsel referred to Order 13 Rule 5 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 that states: “Where the name of the party has been incorrectly stated, a judge of the Court may upon application, order a correction of such name in any terms as may be just”.

Counsel also submitted that this Court has the power to make an order correcting the name of the Defendant in the interest of justice. That there is a plethora of cases where the courts have consistently exercised their discretion in favour of granting amendment to correct misnomers where the identity of the party is not in dispute.

Counsel relied on the case of Maersk Line V. Adide Investment Ltd (2002) 11 NWLR PT. 778) 317; (2002) 4 SC (PT.11) p.157 where the Court held that: “However that a person sued is not a legal person does not preclude the court from amending the title of the action to show the correct name of the party sued, if it is shown to the satisfaction of the Court that it was a misnomer.”

Counsel posits that it is trite law that an amendment of misnomer will be allowed where the other party is not misled or prejudiced and the guilty party shows reasonable ground for the misnomer. Counsel placed reliance on the case of Nwocha V. Federal University of Technology (1996) 1 NWLR Pt. 422) 112, where the Court stated that: “the law allows some rooms for human error where a limb or part of the benefits of the Defendant is inadvertently omitted and the proposed Defendant is not misled, then the Court can always allow the plaintiff in a proper manner to amend what the court thinks is a misnomer.”

Counsel maintains that the Claimant has sufficiently shown through her affidavit evidence that the error in the Defendant’s name as contained in the processes filed before this Honourable Court was an honest mistake largely encouraged by the Defendant itself. That the amendment does not seek to introduce a new party but merely to correct the legal name of an existing party well known to the litigants without any iota of doubt. The Defendant has always known that it was the intended party in this suit and it has suffered no confusion or disadvantage. Counsel states that this application will not occasion any injustice to the Defendant, rather it will serve the interest of justice by ensuring that the proper party is correctly named in the proceedings.

Counsel urged the Court to be persuaded by the depositions in their affidavit and the argument posited therein and grant the application as prayed.

DEFENDANT’S REPLY ON POINTS OF LAW

In response to the Claimant’s written address in support of its application for amendment, counsel on behalf of the Defendant filed its Reply on Points of law on 25/2/2025.

Counsel vehemently argued that the error in the instant suit is not a misnomer and cannot be amended.

Counsel cited the case of Nwocha V. Federal University of Technology (1996) 1 NWLR PT. 422), in arguing that one of the contentions was whether the omission of the word “Owerri” from “Federal University of Technology, Owerri” implied that the party was not a juristic entity.That the Court of Appeal held that since Federal University of Technology was a juristic person, the omission of the word “Owerri” was a misnomer which could be amended. That in that case, a juristic person was intended and named, albeit the name was inaccurately stated.

That in Omisore V. Aregbesola (2015) 15 NWLR Pt. 1482) 205, the word “people” was inserted to the juristic name “All Progressive Congress”, and that was held to be a slip.  However, the Court went on to hold that “different considerations would apply, however if the argument was that the second respondent is a  non-juristic person In such a case, there would have been no valid amendment of the title of the suit since there was never a legal person before the Court. That the only option open to the court in such a situation, would be to strike out the name of the non-juristic person”.

Counsel adds that it is apparent that from the cases relied upon by the Claimant, that in each case, a juristic person was sued, but a word was either wrongly omitted or inserted. And in those circumstances, the courts consistently held that it was a misnomer which could be amended.That the above cases are completely different from, and must therefore be distinguished from the instant suit where a non-juristic person has been sued. Counsel submits that the facts of the instant suit are not that a word was wrongly inserted or omitted to the name of a juristic person, which could be regularised by the instant application, but that rather the named defendant in the instant suit is a non-juristic person.

Counsel contends that in the case of Obasi V. Mikson Establishment Industries Limited (2016) 16 NWLR Pt 1539) 335 AT 385 paras E-F, the Supreme Court considered this same point and held that: “where a party is sued in a wrong name, it is trite that the courts will usually grant amendments to correct the mistake, even on appeal. It must be noted that naming a non-juristic person as a party is not a misnomer and amending same to subtitle a juristic person is out of it.The reason is that there cannot be a valid amendment of the title of the suit since there was never a legal person who was brought before the Court.”

Similarly, in Calabar Municipal Govt. V. Honesty (2022) 2 NWLR Pt. 1815) 403 AT 432 paras A-C, the Supreme Court also held: “The position of the law is therefore that, naming a non-juristic person as a defendant in a suit is not and cannot be treated as a misnomer, and where this occurs, the name of the party cannot be amended to substitute a juristic person. It must be noted that naming a non-juristic person is different from a misnomer, once it is established that the party lacks juristic personality question of amending the name does not arise because so doing would amount to blowing life into a judicially sedated process. Where it is found that a party before the Court lacks legal personality, the only option open to the Court is to strike out the name of the non-juristic party. Where a party before the Court lacks juristic personality the party must be struck out.”

Counsel concludes that naming a non-juristic person as a party to a suit is not a misnomer, contrary to what the Claimant had submitted in its written address.

Counsel therefore urged the Court to refuse the instant application and strike out this suit.

COURT'S DECISION

I have gone through the Claimant/Applicant's Motion on Notice and the Defendant/Respondent's Reply on Points of Law. I have also studied the submissions of the respective counsel for the parties and in determining this application, I need to refer to the provisions of Order 26 Rules 1, 2 and 3 of the 2017 Rules of this Honourable court which state as follows:-

“1-(1)           An amendment may be allowed where its purpose is to determine the real question or issues between parties and would-

(a)     Secure substantial justice or

(b)     Settle the controversy between parties and related issues.

(2)     An amendment may be refused where it would-

(a)     Present a completely different case, or cause injustice to the other party or where the application for amendment is brought mala fide;

(b)     Necessitate the hearing of further evidence especially on appeal;

(c)      Not cure the defects in the procedure sought to be cured or where it is inconsistent and useless.

(d)     Amount to overreaching the other party or an abuse of Court process.

2.        A party may at any time but not more than twice with leave of Court alter, amend or modify the party’s originating and/or other processes. Provided that the party may not completely change the cause of action endorsed on the process.

3.        The Court may at any time, and on such terms as to cost or otherwise as the Court or judge may think just, allow a party to amend any defect or error in any process, and all necessary amendments shall be made for the purpose of determining the real questions or issues in controversy raised by or arising from the proceedings.”

Let me also refer to Order 13 Rules (5), 14(1) & (3) and 15.

Order 13 Rule 5 says;

“Where the name of a party has been incorrectly stated, a judge of the Court may upon application order a correction of such name on any terms as may be just.”

Order 13 Rule 14(1) & (3) say;

14       (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.

(3)     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.”

15       (1) Any application to add or strike out or substitute or vary the name of a Claimant or Defendant may be made to the Court by motion on notice.”

It is the law that in civil cases a party is entitled to amend his pleadings so as to enable the trial court decide the real issue or issues in controversy between the parties. See the case of Salami V. Oke (1987) LPELR-2982(SC).

However, an amendment can be refused where it is made malafide or if the proposed amendment will cause unnecessary delay or will in any way unfairly prejudice the opposite party, or is quite irrelevant or useless. See Adekeye V. Akin-Olugbade (1987) LPELR-104 (SC).

The principle of law is well settled that the purpose for allowing amendment is to enable the parties conduct their cases properly by placing before the court all relevant facts necessary for the just determination of disputes between them. But any application which seeks to either overreach the other party or alter the nature of the applicant's case will not be allowed. An amendment will hardly be refused if it will enhance the justice of the case except however, it appears in the opinion of the court that there is a fraudulent intention or a hidden agenda which will generally work injustice against the opponent. See the case of Compagnie Generale de Geophysique Nig. Ltd V. Jumbo (2015) LPELR-24685(SC).

Now, the law is that only natural or juristic person/persons can sue or be sued.The name of a competent party to a suit must be the real name by which he is known in the case of a natural person or its corporate name in the case of a non natural juristic person. Therefore an action cannot be maintained against a defendant who is not a juristic person. Where it is clear that a defendant or any party to a suit is not a legal person, the party must be struck out. See Abubakar V. Yar'adua (2009) All FWLR PT. 457) 1 at 136; Administrators/Executors of the Estate of General Sani Abacha (Deceased) V. Eke-Spiff (2009) All FWLR PT.467) 1 AT 136.

It is the averment of the Claimant that the error arose because the name “IBOM HOTELS AND GOLF RESORT” is the name displayed on the signage of the Defendant’s hotel at present. The name used on official letterheads and correspondences from the Defendant to the Claimant. That it is also the name printed on the remita receipt generated for the Claimant by the Defendant and the name the Defendant has presented itself in all its official dealings with the Claimant. That the name showing on their signage at present is still not the registered name of the Defendant. Claimant maintains that it was misled to think that the right name of the Defendant is IBOM ICON HOTEL AND GOLF RESORT by the various manner the Defendant has represented itself in their mutual dealings.

The Defendant contended that the Defendant is not a juristic person.The claimant having admitted in its motion that the name sued as the Defendant is not the correct name, it implies that the person sued is non-juristic, and the Claimant cannot amend its processes to substitute a non-juristic person with a juristic person.

The Claimant’s instant application is simply to amend the name of the defendant to reflect its proper name and to effect consequential amendments in the name of the defendant in all processes filed by the Claimant. From the affidavit of the Claimant and submission of counsel in its written address in respect of the Claimant’s motion, it is clear to me that the name “IBOM RESORT AND HOTELS LIMITED” is a registered body and a juristic entity. But the name sued is “IBOM ICON HOTEL AND GOLF RESORT”. However, it was explained in the Claimant‘s affidavit that it was an error as the person the Claimant intended to sue is “IBOM RESORT AND HOTELS LIMITED”.

The fact that the name of the person sued is not the name of a juristic person does not preclude amendment of the title of the action to show the correct name of the party sued if it is clear to the Court that it was a case of misnomer. A misnomer occurs when a party is sued in the wrong name. In other words, misnomer occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. Better still, misnomer occurs when the correct person is brought to court under a wrong name. Where the description of a party on the writ was a misnomer, such can be corrected by amendment provided that the person misnamed and intended to be sued is a juristic entity and it is in existence. See Maersk Line V. Adide Investment Ltd (2002) FWLR Pt. 125) 608 AT 655-656; Nwabueze V. NIPOST (2006) 8 NWLR PT. 983) 480. By Order 13 Rule 5 of the Rules of this Court as stated earlier, where the name of a party has been incorrectly stated, this Court can upon application, order a correction of such name.

The concept of misnomer has been clarified in A. B. Manu & CO. V. Costain (WA) Ltd (1994) 8 NWLR Pt. 360); (1994) LPELR 14550 (XA), wherein it was held that, Misnomer can be said to be a mistake in name- giving incorrect name to person(s) in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. See the English Supreme Court Practice (White Book) 1988 Or.15 R.6 -15/6/13.

The issue as to whether an amendment can be allowed to correct an error of misnomer in Court process, has been settled by the Supreme Court in Agbule V. W.R & P. Co Ltd (Agbule's Case) 2013) 6 NWLR Pt. 1350) SC 318 at pp.341-342, paras D-A wherein the apex court relying on the earlier case of Afolabi & 2 Ors V. Adekunle & Anor (1983) SC 98; 2 SCNLR 141, held that:

“It is the duty of the Court to aim at and do substantial justice and allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice and the entitlement of litigation. Although the rules of Court should be followed by parties to a suit, justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in whirling of technicalities to the detriment of the substantial issues between them. Therefore, the power of Courts to correct a misnomer is inherent. The court under its inherent powers has the jurisdiction to correct such inconsequential errors which do not require any formal application to be made. In the instant case, the wrong use of the respondent’s name did not overreach or put the respondent to any form of disdain in the absence of any earlier complaint thereof.The use of the name was at best a misnomer which did not occasion any negative effect”.

See also Olu of Warri V. Esi (1958) SCNLR 384; Maersk Line V. Adide Investment Ltd (2002) 11 NWLR PT. 778) 317.

In the instant case since “IBOM RESORT AND HOTELS LIMITED” which the Claimant intended to sue is a juristic person and the name of the Defendant on record is a case of misnomer, then this court therefore has the jurisdiction to amend the name of the defendant to show or reflect its correct name. See THE (Technical) Gusau V. Abubakar (2013) All FWLR PT. 709) 1130 AT 1145; Nkocha v Federal University of Technology (1996) 1 NWLR Pt. 422) 112.

It was held in Chief Aworokin V. Adeniran (2010) LPELR-8595(CA) that the trial courts have very wide discretion in granting or refusing to grant leave to amend based on the established principle that the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes made by the parties in the conduct of their cases. It was further held that however negligent or careless a slip may have been, however late the proposed amendment, it should be allowed so long as it can be done without injustice to the other side.

Guided by the legal principle that pleadings can be amended to clarify the actual dispute, and recognizing that the goal of a trial is to adjudicate parties' rights rather than penalize procedural mistakes, justice requires permitting the claimant to amend his pleading. Therefore, the application for leave to amend the claimant’s processes ought to be granted in the interest of justice.

Consequently, leave is granted to the Claimant to amend its Complaint and all other originating processes in this suit to reflect the correct name of the defendant as “IBOM RESORT AND HOTELS LIMITED”.

Ruling is delivered accordingly with no order as to cost.

................................................................

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)