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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

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

 

DATE: 29th October, 2025                                SUIT NO: NICN/ UY/13/2025

 

BETWEEN:

NIGERIA SOCIAL INSURANCE TRUST FUND

MANAGEMENT BOARD                                                -           -           Claimant

 

AND:

PASTOR (MRS) LAURIE UKAMAKA NTIA

(Trading under the name and style 

“FULL LIFE INTERNATIONAL SCHOOLS”)              -           -           Defendant

 

REPRESENTATION:

K. A. Ogisi Esq for the Claimant/Applicant

Iniobong Isaac Udoh Esq for the Defendant/Respondent

 

RULING

 

The Claimant by way of an Originating Summons filed this suit on 7/4/2025 praying the court to determine certain questions and upon the determination of those questions asked for some reliefs against the Defendant.

 

In reaction to the Originating Summons, the Defendant on 2/5/2025 filed a counter-affidavit and a Notice of Preliminary Objection (NPO) praying the court to strike out the matter on the following grounds:-

 

“i.        The Defendant/Objector does not operate any trading under the name and style of 'Full Life International School'.

 

ii.        The School, 'Full Life International School is a Legal entity with Incorporated Trustees.

 

iii.       That by virtue of Order 13 Rule 26 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the Defendant is not the proper party to be sued by the Claimant in this suit.

iv.       That also, by the provision of Section 42 of the Companies and Allied Matters Act, 2020, the Defendant is wrongly sued and as such the Suit is incompetent.

 

v.         That for the Defendant not being the proper Party to be sued in this case, this Court lacks the jurisdiction to hear same.

 

vi.       Therefore, the Suit is incompetent and ought to be struck out or dismissed with cost.”

 

Upon service of the (NPO), the Claimant on 14/5/2025, filed a Motion on Notice which is the subject of this ruling praying for the following reliefs:-

 

“*        AN ORDER of this Honourable Court granting leave to the Claimant/Applicant to amend its Originating Summons filed on the 4th of April, 2025 in the manner set out in the Proposed Amendment attached and marked as Exhibit "A" to the Affidavit in support hereof.

 

*          AN ORDER substituting the name of the Defendant on record from 'PASTOR (MRS) LAURIE UKAMAKA NTIA (Trading under the name and style "FULL LIFE INTERNATIONAL SCHOOLS" to 'THE TRUSTEES OF FULL LIFE FOUNDATION' (Trading/operating under the name and style): "FULL LIFE CRECHE AND NURSERY SCHOOL (NOW KNOWN AS: FULL LIFE INTERNATIONAL SCHOOLS).

 

*          AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances.”

 

The Motion is supported by a 9-paragraph affidavit deposed to by one Ekpe Kingsley, a Manager in the Claimant with Exhibits A, B and C attached. A written address was also filed to accompany the motion.

 

The Defendant in opposition to the Claimant's motion filed a 12 paragraph counter affidavit with a written address on 26/5/2025. Meanwhile the Claimant on 30/5/2025 filed a reply on points of law to the Defendant's counter affidavit and written address.

 

In the affidavit in support of the motion, it was averred by the Claimant/Applicant that the party sought to be brought in this suit is a registered Trustee, duly registered or incorporated under the Companies and Allied Matters Act, 2020.

That the party sought to be brought in is the owner/operator of a business or school called and known as "FULL LIFE CRECHE AND NURSERY SCHOOL, now known and called: FULL LIFE INTERNATIONAL SCHOOLS", and operates the said school with employees it pays monthly at No. 6 Nsikak Edouk Avenue, Uyo, Akwa Ibom State.

 

It was also averred that the Claimant/Applicant filed its Originating Summons on the 4th day of April, 2025 against PASTOR (MRS) LAURIE UKAMAKA ???? (Trading under the name and style "FULL LIFE INTERNATIONAL SCHOOLS", but had intended to sue: 'THE TRUSTEES OF FULL LIFE FOUNDATION’ (Trading/operating under the name and style): “FULL LIFE CRECHE AND NURSERY SCHOOL (NOW KNOWN AS: FULL LIFE INTERNATIONAL SCHOOLS)”, the party now sought to be sued.

 

Claimant stated that the identity of the party sought to be sued is not in doubt, but is known to all the parties in this suit.

 

In his written address, counsel to the Claimant formulated a lone issue for determination to wit;

 

“Whether this Honourable Court has the power to grant leave to amend and substitute the name of the Defendant in the Originating Summons and other processes, where it has been established that the proper party is not before the Court?”

 

It is the submission of counsel that this Court has the power under its Rules and inherent jurisdiction, to allow an amendment of the Originating Summons and all other accompanying processes, including substitution of the Defendant, where it is necessary for the purpose of bringing the proper party before the Court.

 

Counsel submits also that by virtue of the provisions of Order 13 Rules 15(1) and 16 of the National Industrial Court Civil Procedure Rules, 2017, this Court has the inherent jurisdiction to grant the Claimant’s application for the substitution of the defendant on the originating summons.

 

Counsel further submits that the provisions of the said Rules are clear and unambiguous, and the court is urged to adopt same in holding that it is endowed with the inherent jurisdiction and discretion to grant the reliefs sought by the Claimant.

 

Counsel continues that, the position of the law is that an application for substitution of a person in litigation is generally an innocuous one granted as a matter of routine, and this is so because parties should have free hand to change persons in the litigation process. Counsel referred the Court to the cases of The Vessel My Sylia & Anor V. UT Bank (Ghana) Ltd & Anor (2019) LPELR-47372; Shenshui Construction Co. Nig Ltd & Anor V. Intercontinental Bank Plc & Ors (2015) LPELR 40893 (CA); Okon V. Aji (2017) LPELR-44344. Counsel also relied on the case of Orlu V. Alasin Enterprises (Nig) Ltd (2021) LPELR-56278, that an application for substitution of a party should not create much fuss provided the party sought to be brought in is a proper, legal and genuine representative or successor of the party to be substituted. Referring also to Ejezie V. Anuwu (2008) 4 SCNJ 113(2008) 12 NWLR Pt 1101) 446.

 

Counsel contends that in an application of this nature, what the Court is required to consider before granting or refusing the said application is whether the party sought to be brought in/substituted is a natural, juristic, legal or proper party.That a sober look at the Claimant’s Affidavit in support of the motion on notice, particularly paragraphs 4 and 5, clearly shows that the party sought to be brought in is a juristic personality, capable of suing and being sued. Counsel adds that a critical examination of paragraph 6(b) of the affidavit reveals that the Claimant intended to institute this action against the party sought to be brought in (a juristic entity), but mistakenly brought the action against the current defendant (a natural  person, now being sought to be substituted).

 

Counsel concludes that the cause of action before this Honourable Court is the same and known to the party sought to be brought in, and that granting this application will not in any way prejudice the Defendant.

 

Counsel urged the court to exercise its discretion in favour of the Claimant, by granting the reliefs sought in this application.

 

DEFENDANT’S  COUNTER AFFIDAVIT AND WRITTEN ADDRESS

 

It was stated by the Defendant in her counter affidavit that the Claimant has no legal right to substitute the Trustees of Full Life Foundation-(Full Life International Schools)" with the Defendant in this same Suit Number for the new party sought to be substituted with the same declarations, reliefs and claims, was never served with any demand notice in respect of this case.

 

That the Claimant's only remedy is to serve the party sought to be substituted with her demand notice requesting for all that she needs from the Party sought to be substituted afresh and must follow due process.

 

That it is only upon refusal and neglect on the side of the new party sought to be sued that the Claimant would have the right to institute a fresh suit against the said party for non-compliance.

 

Defendant’s counsel in his written address formulated a lone issue for determination to wit;

 

“Whether this Honourable Court has the power to grant leave to the Claimant to amend and substitute the name of the defendant as a non-juristic person with a juristic person a party sought to be substituted as per the application dated 14th May, 2025.”

 

It is the submission of the Defendant that the lone issue for determination presented above ought to be answered in the negative. That the Apex Court has held in a plethora of cases that for a Court to assume jurisdiction in a matter brought before it, the suit must be initiated by due process of law. That a matter must be instituted by and against the right parties (juristic or natural persons).Where a non-juristic person is sued, it is a fundamental error that affects the validity of the suit. That a mistake in the name of a party is not the same thing as a mistake in the identity of that party.

 

Counsel continues that where there is an error about the identity of a party such should not be regarded as a misnomer as was decided in the case of So Safe Table Water Technologies Limited V. Ayinoluwa & Anor (2013) LPELR-22034 (CA) pp.17-19 paras C-E.

 

Counsel contends that for the court to consider the application of the Claimant, the Court will consider the two aspects of the litigation test, which the first is determining who the intended defendant is; the second is determining whether the intended defendant was confused or misled by the error. That in making this dual determination, the Court is required to consider the circumstance of the case and look at the pleadings as a whole, this is important because even if a party cannot tell if he is the intended party in the suit by the name in which he was sued, such party may be identifiable as the intended party from the pleadings. Counsel relied on the case of Maersk Line & Anor V. Adide Investment Ltd & Anor (2002) LPELR-1811 SC.

It was contended that where there is an error about the identity of a party, such should not be regarded as a misnomer. Counsel referred to the dicta of Dawson J, in the Australian case of Bridge Shipping V. Grand Shipping S.A (1992) LRC (Comm) 730.

 

Counsel referred the court to paragraph 5 of the counter affidavit of the defendant and paragraphs 5, 6, 7, 8 and 9 of the affidavit in support of the Originating Summons showing that the Claimant had no doubt or error in the identity of the Defendant when she instituted this case and there was no mistake at all. Therefore failure to initiate an action by and against the proper party renders the said action incurably defective.

 

Counsel maintains that it will be wrong to substitute a non-juristic person by a juristic person in the guise of a misnomer. That amendment will be allowed only where a juristic or natural person is sued, and the name is incorrectly or incompletely written as as seen in Njoku V. UAE Foods (1999) LPELR-13014 (CA). Citing also Agbonmagbe Bank Ltd V. General Manager G. B. Ollivant Ltd & AMP. Ors (1961) ALL NLR 116. That a misnomer can be corrected but a mistake in the identity of the party cannot be.

 

Counsel reiterates that a misnomer occurs when there is a mistake as to name and not as to party. Thus where an application for amendment as in the instant case, seeks to substitute one party for another, such application ought to be refused as it amounts to a fundamental error. That the reasoning behind this principle is that suing a wrong party renders the suit incurably defective such that there is nothing before the court that can be amended. Counsel cited the case of Eyo V. FRSC Uyo & Anor (2019) LPELR-46999k (CA) pp.16-18 paras A-A where it was held that “Court could not substitute a juristic party for a non-juristic party”.

 

It is the position of counsel that the Claimant’s claims and the reliefs as presented in the Proposed Amended Originating Summons, which are the same with the present claims and reliefs against the Defendant cannot be the same reliefs against the party sought to be brought in, for there is no evidence showing that the new party sought to be brought in was served with all the demand notices exhibited in this case and the party is not even aware of the pendency of this suit.

 

Counsel urged the Court to dismiss the Claimant’s application for lack of jurisdiction on the grounds that the Defendant cannot be substituted with the new party sought to be brought in.

 

 

CLAIMANT’S REPLY ON POINTS OF LAW

 

Counsel submits that the Claimant’s application is seeking to substitute a natural person with a juristic person on the ground that the juristic person is the party the Claimant intended to sue. Counsel contends that the several judicial authorities cited by the Defendant are not in support of their argument.

 

Counsel also submitted that the current Defendant on record is the Lady Proprietress/co-owner of the school and is responsible for the administration and the day-to-day running of the school that the demand letters were received and acknowledged by the employees of the party sought to be substituted.

 

Furthermore, that the Defendant on record is a natural person and the party sought to be substituted is a juristic person who was intended to be sued.

 

Counsel urged the court to discountenance the Defendant’s argument and grant the Claimant's application.

 

COURT'S DECISION

 

I have gone through the Claimant/Applicant's motion on notice and the Defendant/Respondent's Counter Affidavit. 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).

 

The claimant in his affidavit stated that the reason for the amendment is to the effect that the Claimant had intended to sue “THE TRUSTEES OF FULL LIFE FOUNDATION” (Trading/Operating under the name and style): “FULL LIFE CRECHE AND NURSERY SCHOOL” (Now known as: “FULL LIFE INTERNATIONAL SCHOOLS”. And that the identity of the party sought to be brought in which is registered under Exhibit B is not in doubt, but is known to all the parties in this suit. But the Defendant contended that it will be wrong to substitute a non-juristic person by a juristic person in the guise of a misnomer. That an amendment will be allowed only where a juristic or natural person is sued, and the name is incorrectly or incompletely written.

 

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 the 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.

 

According to the Claimant, the name of the Defendant in this suit was erroneously stated as “PASTOR (MRS) LAURIE UKAMAKA NTIA” who is a natural person and in view of the error in the name of the Defendant, the Claimant deemed it necessary to amend its processes to reflect the correct name of the Defendant. The Defendant however contended that the Defendant is not a juristic person.

 

In light of the above, I find it pertinent to identify specific entities who can be ascribed with legal personality and in the case of Nkporinwi V. Ejire (2009) All FWLR PT. 499) page 450, it was held that:

 

“It is well settled principle of law that the major jural entities or units to which the law usually ascribes legal personalities are:

1.        Human beings.

2.        Companies incorporated under the various Companies Acts

3.        Corporation sole with perpetual succession. 

4.        Trade unions.

5.        Partnerships.

6.        Friendly societies.”

 

However the court in the case of Minister of Defence & Ors V. Ephraim (2014) LPELR-24245 (CA) posited that “the list of the said categories of legal personae is not exhaustive. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that if the justice of any given case so dictates”.

 

It appears in the instant case that the Defendant being a natural person falls in the first category, while the person sought to be brought in falls in the second category on the list of persons that can sue and be sued. And having established that the Defendant falls within the category of persons that are capable of suing and being sued, then this court can exercise its discretion in favor of the Claimant.

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.

 

It is the law as stated by the apex court that in civil cases, it is the duty of the court to aim at doing and to always do substantial justice, by allowing formal amendments as are necessary for the ultimate achievement of justice and to end litigation. And it is for this reason that an amendment in a pleading can be sought and made at any stage of the proceeding before judgment. See Adewunmi V. Attorney General of Ekiti State (2002) FWLR (PT.92) 1835.

 

I wish underscore the point that, as a matter of general rule the grant or refusal of an application for amendment is at the discretion of the Court and that such discretion must be exercised judicially and judiciously. See Oyegun V. Nzeribe (2010) 7 NWLR Pt. 1194) 577.

 

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 his Originating Summons and to substitute the name of the Defendant on record from ‘PASTOR (MRS) LAURIE UKAMAKA NTIA (Trading under the name and style "FULL LIFE INTERNATIONAL SCHOOLS’ to 'THE TRUSTEES OF FULL LIFE FOUNDATION' (Trading/operating under the name and style): "FULL LIFE CRECHE AND NURSERY SCHOOL (NOW KNOWN AS: FULL LIFE INTERNATIONAL SCHOOLS).

 

Ruling is delivered accordingly with no order as to cost.

 

 

 

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

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)