How To Sue a Company: A company is an entity that is incorporated under the statute. The entity comprises a team or group of people who work together professionally for a common purpose usually for profit. Companies in Nigeria have legal personality. Thus, they are able to acquire and own property and sue and be sues in their own name. Companies have independent personality. Thus, they wear an identity which is separate from the identity of its members and shareholders. This is the case whether the company is a public or private one.
In law, there are two types of persons; natural person and artificial person. Natural persons are simply human beings while artificial persons are companies and any existing organizations whether or not incorporated. It is clear and poses no problem that natural persons can always sue and be sued in their own names. For artificial persons, only juristic persons that are incorporated can sue and be died in its name. Companies are juristic persons; under the law they possess some of the legal rights and responsibilities of a natural person which includes the right to sue and be sued in its own name.
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Being an independent legal entity, a company still is artificial. It does not talk nor have physical brain neither does it possess any physical human quality, yet it can own a property, make decisions, sue and be sued in its own name. Suing a company is a little bit complex than it is for natural persons. Who do you relate with? Of course this is also easy when you are possessed with the understanding.
The companies are manned by natural persons. Such natural persons can be appointed or be sabbled by the virtue of his office to act as representative of the company. Offices such as that of the Managing Director, Secretary, Public Relations Officer and so on. Such representatives merely represent the company as a nominal party and do not stand in any personal liability arising out of the company’s business. Therefore, in instituting an action against a company, you can always deal with such nominal parties but never to include their names as parties to the suit.
While suing a company, the name of the company must be provided correctly in the writ and other processes to be served on the company. When the name of the company is wrongly provided, it may warrant an amendment of the processes especially for the writ of summon. It is a fundamental principle of law that the name of a person against whom an action is being instituted but be correctly provided. Where the name is wrongly provided, it does not however, defeat the claim in its entirety. At most, it would lead to an amendment. Moreso, if a company that was addressed wrongly submits to the jurisdiction of the court and enters appearance without objecting to the wrong address of name, this operates as a waiver.
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To be on a safe side, another fundamental requirement is that a company should be served with a pre-trial notice or notice of demand before instituting an action against it. If the company is owned by the state, the position is clear and unarguably that it must be served with a notice of the intention to commence an action. Where it is not wined by the state, same is still necessary. The judges will be glad to strike out the matter if an objection is raised in that regard, or even suo moto.
The essence of the pre-trial notice is to enable companies resolve their issues with people amicably upon the notification if possible. Companies by its very nature deal with a lot of people and they are manned by persons who are distinct from the company itself. Serving companies with pre-trial notice saves you unnecessary drama, cost and time. Even, in some jurisdiction, for instance, Lagos, the High Court Rule provides for the requirement of compliance with the pre-trial protocol form as an accompanying document to the writ for action against all persons. And in that pre-trial protocol form it has to be shown that notice of the intention to commence action was given.
The mode of commencement of action against a company is the same as that against natural persons, although with one additional document required. The mode for the commencement of an action of course depends on the nature of the claim. Where the claim is a contentious one, it is to be commence by writ of summon. Originating summon is employed for non-contentious matters and it is also to be used where there is a question of law or contract for interpretation. Originating motion is also used where the matter is not contentious and it is prescribed to be used by the law. Writ of summon is the most used mode of commencement of action apparently because disputes are always contentious in nature. So it is safer to base our explanation on writ of summons.
The writ of summon by the virtue of the various High Court Rules is to be accompanied by statement of claim, list of witnesses to call in for evidence in the trial, witnesses statement on oath, list of documents to be relied on during the trial and affidavit of non-multiplicity. This very last requirement is exclusive when you are suing a company. It is a very necessary measure taken in order to avoid multiplicity of action. As earlier pointed out, companies are liable to be dealing with a lot of people. Multiplicity of action is when a person is sued by different persons on the same subject matter or complaint.
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You can imagine got instance where MTN mobile company is being sued by hundreds or thousands of its customers for the same act being complained of. Where there is such multiplicity of action, the victims can be represented by the Attorney General of the State ọ Federation as the case may be, while the court consolidated the matters. Where the victims are not too many, the court can merely consolidate the matters and proceed with the trial. As an addendum requirement therefore, while suing a company, the writ must be accompanied by an affidavit deposed to, showing that to the best of the knowledge of the depondent that there are no multiple actions lying against the company in respect of the same subject matter or complaint.
Having prepared the writ of summon in compliance with the prescribed format and along with the prescribed accompaniments, the next is to file the processes, pay the necessary fees and serve a copy of the process to the company being sued. And because it is a new suit, it is best for the service to be done by a court Bailiff. The Bailiff shall first try to serve the company directly through one of the officers in a befitting position.
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This may be the company’s lawyer, Managing Director, Chief Executive Officer, Secretary, Public Relations Officer or any other relevant officer of the company. Where this is unachievable within the period of time when the writ is still alive, then a motion should be brought before the Court by way of ex-parte for substituted service. When the motion is granted by the court, the company can then be served in the manner ordered by the court thereby doing away with personal service. Now, the company has been sued and duly notified. In default of its appearance in court, judgment may be given in their absence.
Companies are legal persons. They can sue and be sued in their own name just like natural persons. The method of suing natural persons and companies are substantially the same although there are few extra procedural requirements peculiar to suing a company. It’s non-compliance with may defeat the entire claim depending on the strength of its purpose.
Edeh Samuel Chukwuemeka ACMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.