IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP, HON. JUSTICE SANUSI KADO

DATE: 12^TH OCTOBER, 2018                         SUIT NO: NICN/ABJ/55/2018

 

BETWEEN:

MR. WILLIAM KEFTIN AMUGA                   -           -           -           CLAIMANT

 

AND

MRS. CHINYERE AGBAI & 4 ORS                            DEFENDANTS

 

RULING.

The claimant commenced this action via Originating Summons dated 23/2/18 and filed on the same day, seeking for the following orders:-

i.          A DECLARATION that the 2nd Defendant is in breach of the provisions of Section 1 of the Trade Marks Acts Act, Cap. 436, LFN 1990, and the extent Public Service Rules Nos. 020503(a) and 020506(ii) and has no legal capability whatsoever to temper with the office of the Claimant.

ii.         A DECLARATION that the posting Instruction directed at the Claimant by the 2nd Defendant, dated 21st day of November, 2017, and with Reference Number ‘HCSF/CMO/EM/24/140/T.2/43’ is an illegality and is null and void and of no effect whatsoever.

iii.       A DECLARATION against the 3rd Defendant, that the letter of the Federation Ministry of Industry, Trade and Investment, dated the 20th day of December, 2017 and with Reference Number ‘IND/P.5/S.5/Vol.111/343’ being a furtherance of the Injustice occasioned to the Claimant, is an illegality and null and void and of no effect whatsoever.

iv.       A DECLARATION that by virtue of the provisions of Section 1 of the Trade Marks Act, Cap 436, LFN 1990, and the extant Public Service Rules Nos. 020503(a) and 020506 (ii) the 2nd Defendant acted unlawfully with regards to the Posting Instruction directed at the Claimant by the 2nd Defendant, dated the 21st day of November, 2017 and with Reference Number ‘HCSF/CMO/EM/241/T.2/43:

v.         A DECLARATION that the 1st Defendant has been in unlawful occupation of and has been acting unlawfully in the office of the Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry, Trade and Investment since the 20th day of December, 2017.

vi.       AN ORDER OF PERPETUAL INJUNCTION against the 1st Defendant restraining her from further acting as Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Industry, Trade  and Investment.

vii.      AN ORDER mandating the 1st Defendant to immediately vacate the office of Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.

viii.     AN ORDER directing the Claimant to re-assume his office and resume his duties as the bonafide Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Industry, Trade and Investment.

ix.        AND SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance.

Vide notice of preliminary objection dated 15/3/18 and filed on the same day, the 5th Respondent/Applicant is challenging the jurisdiction of this Honourable Court to entertain this suit.

The grounds for the objection are:-

The suit having challenged the validity of the executive or administrative action or decision of the Federal Government matter by virtue of section 251(1)(p) and ® of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).

From the totality of processes filed and materials placed by the Claimant before the Court, no wrong, dispute or default giving rise to a reasonable cause of action against the 5th Respondent/Applicant has been disclosed to warrant the Claim of damages against him or to support and sustain his joinder as a party to this suit.

The suit can be properly, completely, effectually and finally determined without joining the 5th Respondent/Applicant as a party.

In line with the rules of the Court, the preliminary objection was accompanied by a written address.

Bashir Mohammed Imam, Esq; Counsel for the 5th Respondent/Applicant in adumbration, adopted the written address as his argument.

The 5th Respondent/Applicant formulated the following issues for determination.

1.        Whether this Honourable Court has jurisdiction to hear and determine a suit in which executive or administrative action or decision of federal government or any of its agencies are challenged.

2.        Whether there is any reasonable cause of action disclosed before this Honourable court against the 5th Respondent/Applicant.

3.        Whether the 5th respondent/applicant is a proper party to this suit before this Honourable court.

ARGUMENT:

Issue One

In arguing issue one, counsel contended that this court lacks jurisdiction to hear and determine this suit. The reason being that the suit challenges the action and decisions of the defendants particularly 2nd, 3rd and 4th Defendants who are federal government agencies, which by virtue of section 251 of the Constitution is within the exclusive jurisdiction of the Federal High Court. Counsel submitted that from the affidavit evidence in support of the originating summons, it is the posting instruction of the 2nd 3rd and 4th defendant that gave birth to this suit. Counsel also submitted that the reliefs being sought in the originating summons will affect the validity of executive or administrative actions or decisions of the federal government. In support of this contention counsel relied on MRS. MATILDA M. NWOBO V RIVERS STATE PRIMARY EDUCATON BOARD & ORS (2007) LPELR-8094 (CA).

It is the contention of counsel that the law is settled that in determining jurisdiction, it is the claim of the Claimant that will be looked at.  NKUMA V ODILI 2006 6 NWLR PT.977 587 @ 608.

Counsel also submitted that by the reliefs sought before this court, the Claimant’s action is for a declaration and the principal purpose of it is to nullify the decision of the Defendants, that is, reversing posting instruction directed at the Applicant which is an issue that has to do with administration or management and control of the federal government or any of its agencies that falls within the exclusive jurisdiction of the Federal High Court. Section 251 (1) (p) and ® of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). On this reliance was placed on the case of JOS TEACHING HOSPITAL & ANOR. V DR. CHRIS O. AJEH (2006) LPELR-7665 (CA). Counsel submitted whenever the administrative or executive action or decision of the federal government or any of its agencies is challenged it is the Federal High Court that has exclusive jurisdiction on the matter. MR. INNOCENT KAFOR & ORS. V MR. IBINAB DON PEDRO (2011) lpelr-4523 (CA).

 

ISSUE TWO

It is the contention of counsel that assuming this court has jurisdiction to entertain this matter, the Applicant has by his originating processes did not disclose reasonable cause of action against the 5th Respondent/Applicant. It is submitted that going by the affidavit evidence and the reliefs being sought there is no place where the claimant made any claim against the 5th Respondent/Applicant in relation to the reliefs before the court. The claimant has no right of redress against the 5th Respondent.  It is submitted that failure to show in the originating processes any claim against 5th Defendant tantamount to placing something on nothing which cannot stand. For a cause of action to be disclosed, the claimant must explicitly disclose the claim that the defendant is required to meet as can be made obvious to any lay man’s views. EZEREBO V IGO (2009) 11 NWLR (Pt.1151) 117. The claimant having failed to disclose any claim against the 5th Respondent/Applicant the action cannot be maintained against 5th defendant.

 

ISSUE THREE

In arguing this issue counsel submitted that where no cause of action is disclosed against the 5th Respondent/Applicant it is only reasonable that the 5th Respondent/Applicant be excused from the substantive proceedings of the said suit as he cannot be said to be a proper party to this suit.  The outcome of this suit is very unlikely to put the 5th Respondent/Applicant to any obligatory duty towards the Claimant. Counsel submitted that a proper party is someone whose presence is essential for the effectual and complete determination of the issues before the court. It is a party in the presence of whom the whole claim cannot be effectually and completely determined. NATIONAL DEMOCRATIC PARTY V INEC (2012) 12 SC (Pt iv) 24, counsel contended that the 5th Respondent is not a necessary party in that the claims of the claimant can be effectually and completely determined without his presence in the suit. Counsel submitted it is improper to join as defendant person against whom the claimant has no cause of action and against whom he has made no claim and whose interest is averse to that of the other defendant. AGAYI V JOLAYEMI (2003) 7 SCM 28, AG KANO STATE V AG FEDERATION (2007) 6 MJSC 8. Counsel submitted the failure of the claimant to disclose any cause of action against 5th Respondent/Applicant goes to show that the 5th Respondent/Applicant was wrongly joined as a party to this suit and should be excused from further proceedings of this instant suit as 5th Respondent/Applicant has no case to answer. It is submitted that where a party has been found to be improperly joined in an action, such a party can be struck out even at any stage of the proceedings so as to save the innocent party the legal cost and expenses that come with litigation. JEMIDE V NWANNE (2008) ALL FWLR (pt.430) 752.

In conclusion counsel submitted that this court lacks jurisdiction to hear and determine this suit by virtue of section 251(1) (p) and ® of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).  However, where Court assume jurisdiction, Counsel urged that the name of 5th Respondent/Applicant be stuck out for non-disclosure of cause of action and not being a proper party in this suit.

 

THE APPLICANT/RESPONDENT REACTION TO THE NOTICE OF PRELIMINARY OBJECTION

In reaction to the notice of preliminary objection filed by the 5th Defendant/applicant, the Applicant/Respondent on 11/4/118, filed a reply on points of law opposing the preliminary objection.

O. B. A. Olofun, Esq; Counsel for the Applicant/Respondent in his oral argument adopted the written address as his argument. In the written address Counsel adopted the three issues formulated by the 5th Respondent/Applicant as follows:

(i)       The suit having challenged the validity of the executive or administrative action of the Federal Government and its agencies oust the jurisdiction of this Honourable Court to hear and determine this matter by virtue of section 251(1)(p) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

(ii)      From the totality of processes filed and materials placed by the Claimant before the Court, no wrong, dispute or default giving rise to a reasonable cause of action against the 5th Defendant/Objector has been disclosed to warrant the claim of damages against him or to support and sustain his joinder as a party to this suit.

(i)       The suit can be properly, completely, effectivelly and effectually determined without joining the 5th Defendant/Objector as a Party.

ARGUMENT.

ISSUE ONE

In arguing issue one counsel submitted that the action of an Agency of Government cannot be said to be an executive or administrative action especially where such an Agency or Office is on a frolic of illegality. Counsel contended that this action is strictly an employment related matter and the jurisdiction to hear same is vested in this Honourable Court to the exclusion of any other court. This Court has the well vested Jurisdiction to preside over and adjudicate in this matter pursuant to Section 254© (1) (a), (d) and (k) of the Constitution of the Federal Republic of Nigeria (as amended).

 

It is the submission of Counsel that the mere fact that the general position is that the Federal High Court is vested with exclusive jurisdiction to determine any matter involving the Federal Government or its Agencies does not apply in this instant case. The case before this Honourable Court is that of an illegal tampering with an employment with Statutory Flavour, as the very nature of the creation of the Registrar of Trade marks is Statutory. On this submission Counsel cited the case of Onuorah V. Kaduna Refinery & Petrochemical Co. Ltd. (2005) LPELR-2707(SC) where the Supreme Court held that disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court, and that court therefore, had no jurisdiction to entertain the appellant’s claim in the said case.

Counsel argued that it is claim of the Claimant that determines jurisdiction and not the defence or any other pleadings. On this contention counsel relied on the cases of Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 9 S.C.N.J. I and AG-Kwara State v. Olawole (1993) 1 N.W.L.R (Pt.272) 645 at 663.

Counsel submitted that courts guards their jurisdiction jealously on matter they have jurisdiction upon and this court should not sit back without defending its exclusive Jurisdiction to adjudicate cases of employment with statutory flavor. In support of this submission counsel relied on the case of African Newspapers of Nigeria & Ors. V. The Federal Republic of Nigeria (1985) 2 N.W.L.R (Pt.6) 137, where Oputa J.S.C as he then was held that:

“Court guard their jurisdiction zealously and jealously”

Counsel referred to the provisions of Section 1 (1) of the Trade Marks Act, Cao, 436, LFN 1990, the provisions of Rules Nos. 020503(a) and 020506 (ii) of the Public Service Rules, 2008, and submitted that there is total disregard of these statutory provisions by the defendants/respondents.

Counsel urged the court to dismiss the 5th Defendant’s notice of preliminary for being a total misconception, for being absolutely irrelevant to the facts of this case, having not appreciated the legal issue arisen from this suit.

 

ISSUE TWO & THREE

Issues two and three were argued together by Counsel.

Counsel referred to Section 174 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and submitted that the 5th Defendant as the Chief Law Officer of this Nation has an extremely major duty to ensure that legal process is not abused. Our laws are not enacted for the sake of frivolity, and thus if the 5th Defendant was diligent enough in its duty, the agencies of Government flouting our laws with reckless abandon will not have had the temerity to do so. But because they conduct themselves as such with no checks, it is becoming the modus operandi not to comply with statutory provisions. In support of this submission Counsel referred to the decision of the apex court in Attorney General of Anambra State v. Attorney General of the Federation (2007) LPELR-603 (SC).

It is submitted on the strength of the foregoing that the Court should dismiss ground two and three of the 5th Defendant’s notice of preliminary objection and grant all the reliefs sought by the Claimant in this action.

In concluding his submission Counsel urged the Court to reject and dismiss the 5th Defendant’s notice of preliminary objection in its entity.

C. C. Okoli, Esq; Counsel for the 1st Respondent in his oral submission align himself with the submissions of the 5th Respondent/Applicant. Counsel submitted the action of the Applicant/Respondent is purely on administrative action it is not in respect of salary or employment.

R. N. Shitu, Esq; Counsel for the 2nd Respondent in his oral submission, submitted that this court has no jurisdiction on issue of posting as it is administrative action and since all that the Applicant/Respondent want is to seek interpretation the proper Court is Federal High Court and not this Court.

 

COURT’S DECISION.

From the prayers as contained in the notice of preliminary objection two issues can adequately determine this preliminary objection. They are:-

‘‘Whether this Court has jurisdiction to entertain this suit’’.

‘‘Whether the 5th Defendant is a proper party in this suit’’.

 

RESOLUTION OF ISSUE ONE

The 5th respondent/applicant has argued that the applicant/respondent’s action is a challenge to the validity of the executive or administrative action or decision of the federal government and its agencies. Consequently, it is the Federal High Court and not this Court that has jurisdiction to entertain this suit by virtue of section 251(1) (p) and (r) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). While the claimant/applicant argued to the contrary. According to the claimant/respondent this suit is properly before the court as it is an action on issue of employment with statutory plavour, therefore this court has the requisite jurisdiction to entertain this suit.

The law is firmly settled that issue of jurisdiction is very fundamental to adjudication because if a court has no jurisdiction to adjudicate or entertain a matter the proceeding will be null and void and of no effect whatsoever ab initio. The nature and importance of jurisdiction has been underscored and lucidly stated and settled by a long line of decisions of the Supreme Court, Court of Appeal and this court. 

In AFRO CONTINENTAL (NIG) LTD & ANOR. V COOPERATIVE ASSOCIATION OF PROFESSIONAL INC. (2003) 5 NWLR (pt.813) 303 @ 318 G - H to 319 A, Kalgo, JSC (as he then was) had this to say:-

‘‘It is well settled that jurisdiction is the body and soul of every judicial proceedings before any court or tribunal and without it all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a case’’.

In the case of UTIH V ONOYIVWE (1990) 1 NWLR (Pt.166) 166, Bello, C. J. N. (of blessed memory) has this to say;

‘‘Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise’’. 

The above dictum have made clear that jurisdiction is what gives the court the authority to determine dispute submitted by counsel for adjudication. 

Jurisdiction being a threshold issue and life-wire of any determination, can be raised at any stage of proceeding or even on appeal for the first time. Due to its crucial and fundamental nature once raised it must be resolved before taking any other steps in the proceedings. It has been long stated that the competence of a court, among others, depends on whether the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and also whether the case comes before the court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLO V NKENDLIM 1962 1 ALL NLR 587; WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION 1986 3 NWLR (PT.30) 617, MATARI V DANGALADIMA 1993 4 NWLR PT.285 72.

Indeed, the issue of jurisdiction is determined by the claim on the writ of summons and the statement of claim. Where however the action is commenced by originating summons as in this case then it is the reliefs sought as well as the averments in the affidavit in support of the originating summons that would be examined to discern if the court has jurisdiction. These would be relied on if the facts placed before the court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue. See A-G FEDERATION V GUARDIAN NEWSPAPER TD & 5 ORS 1999 9 NWLR PT.618 187, WESTERN STEEL WORKS LTD V IRON STEEL WORKS UNION OF NIGERIA 1987 1 NWLR PT.49 284, TUKUR V GOVERNMENT OF GONGOLA STATE 1989 4 NWLR PT.117 517, ADEYEMI V OPEYORI 1976 9 – 10 SC.

The case at being one commenced by Originating Summons, the reliefs sought and the affidavit in support would be scrutinized to see if the reliefs have come within the scope of the jurisdiction donated to the court by the constitution or statute establishing the court. See EMEKA O. KANU V SWEET ASUZU & ANOR. 2015 LPELR-24376(CA), PDP V TIMIPRE SILVA & ORS 2012 13 NWLR PT.1316 85, PDP v TMIPRE SILVA.

The issue of jurisdiction in this suit revolves around sections 251(1) (p), (q) and (r) and 254C(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended).

I have earlier on in this ruling reproduced the reliefs being sought. Consequently, I need not reproduce them again at this stage.

It is apt for purposes of clarity to reproduce the provisions donating jurisdiction, section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) provides:-

251.   Jurisdiction

(1)  Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters—

       (a) ………………………………..;

       (b) …………………………………

       (c) …………………………………..

      (d) ………………………………….

       (e) ………………………………….

       (f) …………………………………

       (g) ………………………………….

       (h ……………………………………

       (j) ……………………………………

       (k) ……………………………………

       (l) …………………………………….

       (m) ……………………………………..

       (n) ………………………………………

       (o) ……………………………………..

       (p)      the administration or the management and control of the Federal Government or any of its agencies;

       (q)  subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

       (r)        any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

The above provisions of the Constitution donated and circumscribed the area of jurisdiction of Federal High Court.

For the National Industrial Court of Nigeria section 254C(1) provides as follows:-

“Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)      Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith;

(b)      Relating to,  connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;

(c)       Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matter connected therewith or related thereto;

(d)      Relating to or connected with any dispute over the interpretation and application of the provisions of  Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine;

(e)      Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;

(f)       Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

(g)      Relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace;

(h)      Relating to, connected with or pertaining to the application or interpretation of international labour standard;

(i)       Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

(j)       Relating to the determination of any question as to the interpretation and application of any-

(i) collective agreement;

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

(iii) award or judgment of the court;

(iv) term of settlement of any trade dispute;

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;

(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;

(k)      Relating to or connected with trade disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

(l)       Relating to-

(i) appeals from the decisions of the Registrar of Trade Unions, or  matters relating thereto or connected therewith;

     (ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and

   (iii) such other jurisdiction, civil or criminal and whether to the of any other court or not, as may be conferred upon it by an Act of the National Assembly;

(m) relating to or connected with the registration of collective agreements.

Now, it has long been settled that provisions of the Constitution or of statute must be construed literally by giving the words in Constitution or statute their ordinary grammatical meanings. Adjunct to this is the fact that in ascertaining the real or true meaning or import of the provisions being construed or interpreted, the provisions of the Constitution or statute must be construed as a whole. See the case of JOLLY JEVORU NYAME V F. R. N. (2010) 7 NWLR (Pt.193) 344 @ 399. 

 In the case at hand the claimant is contesting the validity of his posting as the registrar of trade mark and his posting as Director to the office of the Head of service.

From the provisions of section 251 of the Constitution, it is not in doubt that where there is a challenge to executive or administrative decision of the Federal government or any of its agencies the Federal High Court shall have the jurisdiction to entertain the matter.

However, with the enactment into law of the Third Alteration Bill 2010, which amended the Constitution of the Federal Republic of Nigeria, 1999, vide section 254C(1) the National Industrial Court of Nigeria was conferred with exclusive jurisdiction over matters relating to or connected with labour, employment, trade unions and industrial relation matters or matters incidental thereto.

It is clear from the provision of section 254C(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), that the aim of the section was to vest exclusive jurisdiction in National Industrial court to hear and determine matters relating or connected with any labour, employment, trade unions, industrial relations and matters incidental thereto or connected therewith. This also means that the Federal High Court, High Court of a State and the High Court of the Federal Capital Territory, Abuja, ceased to have jurisdiction in any dispute arising from the matters stated in section 254C of the Constitution, as amended. This is because section 254C (1) of the Constitution specifically states that ‘‘Notwithstanding the provision of section 251, 257 and 272 of the Constitution’’, this clearly evinces the overriding effect of the section over other provisions of the constitution. Therefore, the National Industrial Court shall have and exercise exclusive jurisdiction in such matters.

Therefore, the claimant’s reliefs as reproduced in this ruling above are without any equivocation either related or connected or incidental to the issue of his employment. This means that this court has the requisite jurisdiction to hear and determine same. Since this is the only court that has exclusive jurisdiction over matters related or connected to employment or incidental thereto. This issue is resolved in favour of the claimant.

RESOLUTION OF ISSUE TWO

The 5th respondent/applicant has argued that no cause of action has been disclosed in the affidavit evidence of the claimant no claim has been made against 5th respondent/applicant. The claimant on the other hand insisted that 5th respondent/applicant is a proper party before the court.

The 5th respondent/applicant is the Attorney-General of the Federation who is the chief law officer of the Federation. It is settled law that in an action for or against Federal Government or its agencies the Attorney-General is the appropriate party to sue or be sued on behalf of the Government and its agencies more particularly when the issue has to do with exercise of power under the law. The Attorney-General being the chief law officer and custodian of the law is the most appropriate party to sue or be sued in such situation.

In the case at hand the claimant vide his reliefs is seeking for proper interpretation of the provisions of statute and public service rules and the parties in this suit are agents or agencies of federal government. In the circumstance the 5th respondent/applicant is proper party to be proceeded against. See ATTORNEY GENERAL KANO STATE V ATTORNEY GENERAL OF HE FEDERATION  2007 6 NWLR PT.1029 164, ATTORNEY GENERAL OF ANAMBRA STATE V ATTORNEY GENERAL OF THE FEDERATION 2007 12 BNWLR PT.1047 4, EZOMO V A. G. BENDEL STATE 1986 4 NWLR PT.36 448, FAAN V BI-COURTNY LTD & ANOR. 2011 LPELR-19742 CA.

It is therefore proper to sue Attorney General in an action against government or any of its agencies as in this case. The presence of Attorney General in any suit means the interest of government and its agencies are adequately taken care of and protected. It is without any doubt that Attorney General can be sued in any claim that can be made against government or its agencies arising from any act or omission complained of.

From the survey of authorities on this issue the 5th respondent/applicant is properly joined as defendant in this matter as the custodian of the law and chief law officer of the federation.

In view of all I have been saying above this application is devoid of any merit it must and I hereby dismiss for lacking in substance.

 

Sanusi Kado,

Judge.

 

 

 

                                                              

 

 

 

 

 

 

 

 

 

 

 

WRITTEN ADDRESS

INTRODUCTION:

The Claimant by an Originating Summons seeks this Honourable Court to determine certain question as to the validity of his posting from the Office of Registrar of Trade Marks as the Chief Registrar of Grade Level 17, claiming inter-alia, that the Head of Service lacks the power to post him, that his posting was unlawful and therefore void ab initio.

The 1st Defendant, in responding to the Claimant’s claim caused an unconditional appearance to be entered for herself as 1st Defendant alone, and has also filed a Counter-Affidavit, with relevant exhibits annexed therewith to set out her defence.

RELEVANT FACTS:

The relevant facts, to be determined by the Honourable Court are succinctly captured hereunder:

(a)      That the office of the Registrar of Trade Marks encompass the Duties and functions of the administrative office of the Chief Registrar, pursuant to the Scheme of Service 2003, and therefore subject to the civil service regulation, and not specially protected by Trade Marks Acts.

(b)      That the Claimant cannot be heard to complain over a wrong he benefited from, hence he did not begin his career in the Civil Service from the Office of the Registrar of Trade Marks, but was redeployed from the Ministry of Justice in 2005, and therefore, he did not grow through ranks of the cadre.

(c)       That the 2nd Defendant has the powers to post any civil servant pursuant to the collaborative decisions reached in the meetings of all relevant designated authorizes from time to time.

(d)      That the 1st defendant grew through the ranks of the cadre when she began her career in 1988 with the Office the Registrar of Trade Marks, under the then Ministry of Commerce and Industry.

(e)      That the Claimant’s claim is brought in bad faith, and it intended to harass my person and grossly disregard the ethics and status expected of a senior staff of Grade Level 17.

ISSUES FOR DETERMINATION:

The 1st Defendant has generated five basic issues for the determinate of this Honourable Court, and they are represented hereunder:

(a)      Whether the Claimant can be heard to complain over a wrong he benefited from? 

REPLY ON POINTS OF LAW TO 5TH DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

1.0      INTRODUCTION

2.0      which provides as follows:

3.0      “I (1) There shall continue to be an office known as the Registrar of Trade Marks (in this Act referred to as “the Registrar) who shall be appointed by the Federal Civil Service Commission and whose office shall be situated in the Federal Capital Territory, Abuja”.

4.0      My Lord we also with humility reproduce for the ease of this Honourable Court the provisions of

seeking for determination of the following questions. Thy are:

1.        A determination of the question whether or virtue of the interpretation of the provisions of Section 1 of the Trade Marks Act, Cap.436, LFN 1990, and the extant Public Service Rules Nos. 020503 (a) and 020506 (ii), the posting Instruction directed at the Claimant by the 2nd Defendant, dated the 21st day of November, 2017, and with Reference Number ‘HCSF/CMO/EM/24/140/T.2/43’ is an illegality and null and void ab initio,

2.        A determination of the question whether or not by virtue of the interpretation of the provisions of Section 1 of the Trade Marks Act, Cap. 436, LFN 1990, and the extant Public Service Rules Nos. 020503(a) and 020506 (ii), the letter of the Federal Ministry of Industry, Trade and Investment, dated the 20th day of December, 2017 and with Reference Number ‘IND/P.5/S.5/Vol. 111/343’ being a furtherance of the injustice occasioned to the Claimant, and amounting to an illegality and null and void ab initio.

A determination of the question whether or not by virtue of the interpretation of the provisions of Section 1 of the Trade Marks Act, Cap. 436, LFN 1990, the 1st Defendant unlawfully occupies and acts in the office of Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Industry, Trade and Investment an office in which she is not entitled to act, the said office not being vacant and her purported appointment not made according the said law.