RULING. The Defendant/Applicant vide notice of preliminary objection dated 15/11/17 and filed on 16/11/17, brought pursuant to order 17 Rule 1(1), and (4) and Order 18 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) rules, 2017 and the inherent jurisdiction of the Court is praying for: 1. AN ORDER dismissing the suit on the ground that it is statute barred. 2. AN ORDER striking out this suit on the ground that it is incompetence having been commenced upon a upon a defective pre-action notice contrary to the provision of the National Information Technology Development Agency Act, (NITDA Act). 3. AN ORDER striking out this suit on the ground that this Honourable Court lacks jurisdiction to entertain the suit which has not been commenced by due process of law. 4. AN ORDER striking out this suit on the ground that the Claimant seeks to enforce an exercise tainted with illegality by violating the extant statutory provisions. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the preliminary objection is brought are as follows:- 1. That the suit of the Claimant was commenced after three months statutory limit provided under the Public Officers Protection Act, CAP P41, Laws of the Federation of Nigeria, 2004. 2. It is a mandatory requirement for any intending plaintiff/claimant under the NITDA Act to serve the NITDA with a pre-action notice stating the name and place of abode, particulars of claim and the intended reliefs one month before commencing the action. 3. The letter of the Claimant dated 19th June, 2017, served on the 1st Defendant did not clearly and explicitly state the place of abode, the particulars of claim and the reliefs to be sought by the Claimant. 4. The failure to clearly and explicitly state the place of abode, particulars of claim of the intending plaintiff (claimant) and the reliefs to be sought as required by Section 27 (4) of the NITDA Act, 2007 is a fundamental defect. 5. The suit of the Claimant was commenced before the period of one month notice under Section 27 (3) of the NITDA Act, 2007 6. The fundamental defects in the Claimant’s letter have rendered this suit incompetent. 7. The Claimant’s suit has not complied with mandatory provisions on commencement of the suit under the Rules of Court which requires that a schedule of documents shall accompany the Statement of Facts. 8. The purported employment of the Claimant was conducted in contravention of the statutory provisions of the NITDA Act. The preliminary objection is supported by an Affidavit of 15 paragraphs deposed to by one Amaka Okereke, a Litigation Assistant in L. A. Haruna & CO, the solicitors of the Defendant. Attached to the affidavit are Exhibits “A” and “B”. a written address was also filed along with the notice of preliminary objection. Mr. Izima, Esq; Counsel for the Defendant in his oral submission before the Court relied on all the depositions in the affidavit and the exhibits attached thereto. Counsel also adopted the written address as his argument on the application. In the written address Counsel formulated three issues for determination as follows:- 1. ‘‘Whether or not the Claimant’s suit is statute-barred? 2. ‘‘Whether or not the Claimants’ suit commenced upon a defective pre-action notice is competent? 3. ‘‘Whether or not this Honourable Court has jurisdiction to hear and determine this suit which was not commenced by due process of law? 4. ‘‘Whether or not the Claimants’ suit seeking for the enforcement of an unlawful employment that contravenes extant statutory provisions is not contrary to public policy? ARGUMENT ISSUE ONE ‘‘Whether or not the Claimant’s suit is statute- barred? In arguing issue one, Counsel submitted that Section 2 (a) of the Public Officers Protection Act, CAP P41, Laws of the Federation of Nigeria, 2004 is the effect that an action against a public officer shall not be instituted unless it is commenced within three months from the time the cause of action arose, on this submission reliance was placed on the case of LAFIA LOCAL GOVERNMENT Vs. GOVERNOR NASARAWA STGATE (2012) 7 SCNJ 648 @ 680 the Supreme Court held that: The aggrieved party is expected to file his action within the time stipulated by the limitation law. If the time stipulated by the limitation law is 3 months, the action must be filed before three months from the date the cause of action accrued” It is the submission of Counsel that there is a long line of decided cases showing that the calculation of the time barrier is simply by looking at the time the act complained of in the suit occurred as per the statement of claim and the time the suit was filed. In the case of FAROLY Vs. ESTABLISHMENT (2011) 5 NWLR (pt. 1241) p. 457 @ 479, the Court of Appeal held that: “Time begins to run for the purposes of limitation law when the cause of action arose; that is when there is in existence a person who can sue, and another who can be sued and when all facts have happened which are material to be proved to entitle the plaintiff to succeed”. In the case of YARE Vs. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) 12 NWLR (pt. 1367) 173 @ pp. 191-192 the Supreme Court held that the appellant relieved of his employment had a choice to quickly enforce his right by going to court to ventilate his grievances. He elected to sleep away. He woke up late to allege that he was waiting for the outcome of his appeal before the Senior Staff Committee of the respondent. The excuse was not only untenable, but an afterthought In the instant case, the letter of termination of her appointment was dated 31st March, 2017 and from then she was not paid salary up to the time she filed this suit. The time her salary stopped was her cause of action arose and that was when time began to run for the purposes of Public Officers Protection Act, However, the Claimant had notice of her termination went into a deep slumber from the beginning of April, 2017 up to 13th July, 2017, a period of more than 100 days when she purported to commence this suit. Bearing in mind the test of when time begins to run as stated in the case of FAROLY ESTABLISHMENT, all the facts which are material to be proved to entitle the plaintiff to succeed are the ones that happened as at 31st March, 2017. The allegation that the injury is continuous is not tenable. It is an indication that the Claimant is aware that her action is caught up by the Public Officers Protection Act and she is desperately looking for an escape route. It is glaring that the Claimant filed this suit on 13th July, 2017 more than 100 days after the cause of action accrued which is outside the statutory limit. In the case of GOODWILL CO. LTD Vs. CALABAR CEMENT CO. LTD (2010) 16 WRN 108 @ 141-142 the Court of Appeal held that: “Where an action is held to be statute-barred, the proper order to make is that of dismissal and not striking out the action”. We urge this Hon. Court to so hold and dismiss the suit. On the other hand, the Claimant grossly violated the provisions of Section 27 (3) of the NITDA Act that: “No suit shall be commenced against a number of the Board, the Director – General or any officer or employee of the Agency before the expiration of a period of one month after a written notice of intention to commence the suit shall have been served on the agency by the plaintiff or his agent.”. The Claimant served the 1st Defendant with notice on 22nd June, 2017 and rushed to commence her suit on 13th July, 2017. That is only 21 days after the service of her notice on the 1st Defendant. There is no rule of interpretation that equates 21 days to one month. According to section 18 (1) of the Interpretation Act, CAP 123 LFN, 2004 “month” means “a calendar mouth reckoned according to the Gregorian calendar” It is submitted that where a statute prescribes method of doing an act, that method and not any must be followed. On this contention Counsel cited the case of AMAECHI Vs. INEC (2008) vol. 158 LRCN p 1 @ 232 ratio 61, also INAKOJU Vs. ADELEKE & ORS (2007) Vol. 143 LRCN p.1@ 174 ratio 66. It is contended that the failure of the Claimant to commence her suit in accordance with Section 27 (3) of the NITDA Act has rendered the suit incurably defective. Counsel urged the Court to resolve this issue in favour of the Applicant and dismiss the case of the Claimant. ISSUE No. 2: “Whether or not the Claimant’s suit commenced upon a defective pre-action notice is competent? It is the submission of Counsel that when dealing with a matter governed by a statute is to look at the statute. It is a settled law where a statute prescribes method of doing an act, that method and not any other must be followed. See the case of AMAECHI Vs. INEC (supra) where the Supreme Court stated that: “The principles as to compliance with the requirement of the law is that, where a statute has made provisions for the steps to be taken, no other steps than those prescribed, must be followed”. See also INAKOJU Vs. ADELEKE & ORS (supra). Counsel submitted that Section 27 (3) of the NITDA Act makes it mandatory for any intending plaintiff to serve NITDA with pre-action notice before filing any action against it. Furthermore, sub-section 4 of the same section 27 provides that: “The Notice referred to in subsection (3) of this section shall clearly and explicitly state (a) The cause of action; (b) The particulars of the claim; (c) The name and place of abode of the intending Plaintiff and (d) The relief which he claims.”. There is a plethora of decided cases that where a pre-action notice is required by a statute failure to serve it renders the action incompetent. See the case of MOBIL PRODUCING NIG LTD Vs. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (Pt. 798) 1 @ 36-37 where the Supreme Court held that: “A suit commenced in default of service a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suite”. See also the decision of this Hon. Court in the case of EDMUND Vs. NIGERIAN CUSTOM SERVICE BOARD (2014) 48 NLLR (pt.157) p. 401 @ 434. In the instant case, the Claimant did serve the 1st Defendant with a letter captioned” “WRONGFUL TERMINATION OF APPOINTMENT” dated 19th June, 2017. The said letter did not clearly and specifically state the place of abode of the Claimant, the particulars of claim and some of the reliefs sought in this suit. The letter fell short of clearly and explicitly meeting the requirements of Section 27 (4) of the NITDA Act, 2007. The general statement by the Claimant that she would proceed to a court of law to seek for remedies is vague. It is submitted that the vague statement in the said letter did not and cannot be said to satisfy the requirement of the NITDA Act to “clearly and explicitly” mention or state the name and place of abode of the Claimant as well as his particulars of claim and the reliefs he would seek. It is also noteworthy that the reliefs claimed in this suit are at variance with the said letter. In the circumstances, the Defendant/Applicant has been misled as to the action of the Claimant. Counsel submitted that he is not unmindful of decision of this Hon. Court in the case of OBIDIKE & ORS Vs. MINISTER OF LANDS, HOUSING AND URBAN DEVELOPMENT (2016) 65 NLLR p. 206 @ 287 that: “Non-compliance with the statutory form would not invalidate such form once the non-compliance is not material and is not calculated to mislead…” Counsel contended that the instant case is distinguishable from that of OBIDIKE. The provision Section 20 (2) of the Federal Airport Authority Act under which Obidike’s case was determined is not is not in pari material with the provision Section 27 (4) of the NITDA Act, 2007. In Obidike’s case the alleged defect was that the notice was signed by a learned Silk who by the provisions of the Legal Practitioners Act is precluded from acting as a solicitor. This Hon. Court held that signing was not a requirement of the relevant statutory provision and in any event, the LPA was not the applicable law. In the instant case, the non-compliance is substantial and has misled the Applicant in that the reliefs he now claims in this suit are at variance with his solicitor’s letter. Counsel contented the Claimant has not satisfied a fundamental condition precedent thereby rendering his suit incompetent. ISSUE 3: “Whether or not this Honourable Court has jurisdiction to hear and determine this which has not been commenced by due process of law?” It is the submission of Counsel that one of the determining factors of whether or not a court has jurisdiction to entertain an action is that the action must have been commenced by due process of law. On this proposition Counsel cited the case of RIVERS STATE GOVT. Vs. SPECIALIST KONSULT (2005) LRCN Vol. 125 p 779 @ 816 ratio 17. It is well-settled that where a statute prescribes a method of doing and act, that method and not any other one should be followed. Also reliance was placed on the case of INAKOJA & ORS Vs. ADEKELE & ORS (supra) @ 174 ratio 66. See also the decision of this Hon. Court in the case of EDMUND Vs. CUSTOM SERVICE BOARD (supra) @ 434. It is submitted that in the instant case the Claimant/Respondent decided to commence the suit in her own way disregarding the laid down procedure under Section 27 (3) (4) of the NITDA Act. The implication of this violation is that the Claimant’s suit has not been commenced by due process of law thereby divesting this Honourable Court of jurisdiction to entertain it. Where a suit has not been commenced by due process of law, its hearing and determination amounts to an exercise in futility because the proceedings will be a nullity no matter how well-conducted. It is the law that where a rule of practice is breached, the party wishing to challenge the irregularity should raise objection timeously before taking any step in the proceedings. On this point Counsel relied on AGBAKOGBA VS. INEC (supra) @ 1072 ratio 4 paras C- E and SAUDE VS ABDULLAHI (1989) 4 NWLR (Pt. 116) p. 387 @ 404 and 432 ratio5 and 10. Counsel submitted that in the instant case, the Defendant/Applicant entered a condition appearance and brought this preliminary objection before taking any step in the step in the suit. The 1st Defendant, therefore, acted timeously. ISSUE 4: “Where or not the Claimant’s suit seeking for the enforcement of an unlawful appointment that contravenes extant statutory provisions is not contrary to public policy and tainted with illegality?” In arguing issue four Counsel submitted that the law is well settled that no court will lend its aid to a person who founds his cause of action upon an illegal/immoral act. The principle is based upon public policy considerations as expressed in the Latin Maxim: “exturpi causa non oritur action”. On this submission Counsel relied on PAN BISBILDER (NIG) LTD Vs F.B.N. LTD (2000) 74 LRCN p. 109 @ 125 ratio 4, ALAO Vs. A.C.B. LTD (1998) 56/57 LRCN 3209 @ 3228 & 3229 ratio 1 & 2 and AGIP Vs. AGIP (2010) 1 SCNJ p. 1 @ 48 the Supreme Court held: “Illegality once brought to the attention of court overrides all other questions and the court would not close its eyes against such illegality. Neither will the court lend its aid to the perpetrators of any illegality. In the instant case, the purported employment of the Claimant violated the provision of Section 7 © of the NITDA Act, 2007 that is what she is seeking to enforce.; we are not unmindful of the fact that the Claimant is not the one that breached the procedure in course of the exercise. However, it will be contrary to public policy for this Honourable Court to enforce an exercise done in contravention of statutory provisions. On this point reliance was placed on the case of UMARU Vs. TUNGA (2012) All FWLR pt. 607 p. 726 @ 747 where it was held that: “Where a contract made by the parties is expressly or impliedly forbidden by statute, its illegality is undoubted and no court ought to enforce it or allow itself to be used for enforcement of alleged obligation arising thereunder if the illegality is duly brought to the notice of the court and if the person invoking the aid of the court is himself implicated in the illegality: but once illegality is brought to the attention of the court, it overrides all questions of pleadings, including any admission made therein.” Counsel submitted that the Claimant should not be aided to benefit from an illegality. Counsel urged the Court to so hold and resolve this issue in favour of the 1st Defendant/Applicant. In concluding his submission Counsel submitted that this suit of the Claimant/Respondent is inherently and incurably defective and the cause of action he seeks to enforce is based on an exercise done in contravention of statutory provision thereby making the appointment an illegality, which this Honourable Court should not enforce. We, therefore, urge this Honourable Court to so hold and uphold the objection and dismiss and/or strike out the suit in its entirely. REACTION OF THE CLAIMANT: Mr. C. C. Owowo, Esq; Counsel for the Claimant informed the Court that he is opposing this application on points of law. Counsel submitted that pre-action notice does not rob Court of jurisdiction. To be heard on merit Counsel contended that exhibit B raised issues for trial which should not be heard at this stage. According to Counsel in reliance on CHIEF ANYOSE NONYE V D. N. ANYOSE & ORS (2008) 8 WRN 1 “ 22 pre-action notice only put the Court on hold pending compliance with ore-action notice. Counsel urged the Court to dismiss the preliminary objection and allowed the substantive matter. Counsel submitted on statute of limitation that this suit is not caught by limitation law. Counsel contended that this suit was filed within time. Counsel contended that the Claimant was never served with letter of dismissal on 31/3/17. COURT’S DECISION From the content of the preliminary objection the issues calling for resolution are:- 1. Whether this suit is as it is presently constitute was filed outside the three month period as envisage in section 2(a) of the Public officers Protection Act? 2. Whether this suit was commenced on defective pre-action notice. 3. Whether or not it is proper to raise issue of illegality at preliminary objection. RESOLUTION OF ISSUE ONE The Defendant is his submission contended that this suit is statute barred for having been filed for over 100 days after the accrual of the cause of action, it is therefore statute barred. For the Claimant the action of the Claimant was filed within time as the letter of termination of appointment dated 31/3/17 was not served on the Claimant immediately. It is clear from the provisions of section 2(a) of the Public Officers (Protection) Act, that the provisions constitute a limitation law, which the legislature designed it to provide protection for public officers corporate or incorporated bodies from detraction in the conduct of their discharge of their official duties or assignment by litigation that might have become otiose or in which witnesses may no longer be available or may not reasonably be gotten to testify due to time lag. See OFFOBOCHE VOGOJA LOCAL GOVERNMENT (2001) 16 NWLR (Pt.739) 458. The object of the provision is therefore to afford protection to public officers in respect of anything done in the discharge or execution or carrying out their duty, the protection comes into play after the expiration of three Months from the date of the Commission of the act or acts, neglect or default which give rise to the cause of action. See YABUGBE V COP (1992) 4 NWLR (pt.234) 152; EGBE V ADEFARASIN (1985) 1 NWLR (Pt.3) 549, EGBE V ALHAJI (1990) 1 NWLR (Pt.128) 546, EKEAGU V ALIRI ((1991) 3 NWLR (Pt.179) 258. It is quite clear that the general effect of section 2(a) of the Public Officers Protection Act, is that where a law provides for the institution of an action in a Court of law within a prescribed period in respect of a cause of action accruing to the party entitled to enforce his remedy before the Court, proceedings shall not be brought after the expiration of the period circumscribed by law. The statutes that prescribe such period and regulate the subsistence of causes of action are known as statutes of limitation of period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a party who might otherwise have had a cause of action loses right to enforce it by judicial process, because the period of time prescribed by the limitation law for instituting such an action has elapsed. See ALHAJI (DR) ADO IBRHIM Vs. ALHAJI MAIGIDAU LAWAL AND ORS (2015) LPELR – 24736, EGBE VS. ADEFARASIN & ANR (1987) 1 NWLR PT 471 AT 21. In determining period of limitation of action it is by looking at the Writ of Summons and Statement of Claim with a view to ascertaining the date on which the wrong in complaint was committed and to compare that date with the date on which the Writ of Summons was filed. If the date pleaded as to when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is statute barred and incompetent. See Forestry Research Institute of Nigeria V Gold (2007) 9 MJSC 210 at 220, paras. C-E and Ofili V.C.S.C. (Supra) 253, paras. F-H. In the case at hand, by looking at the processes filed by the Claimant/Respondent , it is clear therefrom that the cause of action arose on 2nd day of May 2017, when the Claimant/Respondent admittedly received her letter of termination of appointment dated 31st day of March 2017. See paragraph 13 of the Claimant’s statement of facts. This suit was filed on the 14th day of July 2017, i.e two Months thirteen days after the accrual of the cause of action. This clearly shows that this action was filed within the three Months period as stipulated in section 2(a) of the Public Officers (Protection) Act, Cap P41, Laws of the Federation of Nigeria, 2004. The Claimant/Respondent’s action is therefore within time it is not caught by the statute of limitation. RESOLUTION OF ISSUE TWO The Defendant/Applicant has argued that the pre-action notice exhibit A is defective. Consequently, the action is not properly before the Court due to non-fulfillment of condition precedent to commencement of this action. Counsel urged the Court to strike out the action for offending section 27 of the National Information and Technology Development Agency, NITDA. The Counsel for the Claimant/Respondent on the other hand argued that pre-action notice does not oust the Court jurisdiction but put it on hold pending compliance. From the submission of Counsel for the Claimant/Respondent it is clear that there is indirect admission of the defect in the pre-action notice as depicted in exhibit A attached to the affidavit in support and attached to the originating processes. The present application by the Defendant is an objection hinged on the non-compliance with condition precedent before commencement of this action by the Claimant. It is the light of the above that this issue will be considered. The exercise of the jurisdiction of the Court will depend on fulfillment of all conditions precedent to exercising the jurisdiction. See MADUOLO V NKENDLIM (supra). In the case at hand the Defendant insisted that the Claimant has not complied with conditions precedent to exercise of the jurisdiction of this Court. With regard to section 27 of the NITDA Act, the provisions deals with pre-action notice that is required to be served by any person including the Claimant in this suit wishing to institute an action against the Defendant. A pre-action notice is a condition usually stipulated by a statute or statutory instrument to be fulfilled before exercise of right to bring an action. The essence of pre-action notice, is to notify the person or agency entitled to it of grievance of the person concerned. However, it must be understood that its non-compliance does not abrogate the right of a plaintiff to approach the court or defeat his cause of action. If the subject-matter is within the jurisdiction of the court, failure on the part of a plaintiff to serve a pre-action notice on the defendant gives the defendant only a personal right to insist on compliance with such notice before the plaintiff may approach the court. See ANAMBRA STATE GOVERNMENT V & ORS V MARCEL & ORS (1996) 9 NWLR (Pt 213) 115, SARKIN YAKI & ANR V BAGUDU & ANR (2015) LPELR- 25721 (SC). On whether there is valid and proper pre-action notice in compliance with section 27 of the NITDA Act, this will depend on the content of the purported pre-action notice. From section 27 of the NITDA ACT, for the Claimant to maintain a valid action he must comply with this section of the law. The supreme Court has held that a pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of any legal action against such a person. The non-service of a pre-action notice merely put on hold pending compliance with the preconditions. It is a temporary denial of access to Court. The action is only put in abeyance and can be activated at any time with compliance. See DOMINIC E. ENTIERO V NIGERIA PORT AUTHORITY (2008) 10 NWLR (Pt 1094) 129. The provisions of section 27 are clear, direct and mandatory. The requirement of notice is expected to be given when the decision to commence an action. The notice shall contain cause of action; particulars of the claim; name of the plaintiff; name and office address of the intending plaintiff's counsel; and relief which he claims. A careful perusal of exhibit ‘A’ the purported pre-action will show that it did not qualify as pre-action notice as per section 27 of the NITDA Act. It is clear that the name and place of abode of the claimant as well as his particulars of claim and reliefs he would seek are all missing. In the circumstance and in the absence of valid pre-action notice this suit is incompetent due to non-fulfillment of condition precedent. However, it must be understood that this does not mean this Court has no jurisdiction to hear and determine this suit, what it means by this holding is that the jurisdiction of this Court will only be exercise on compliance with giving of pre-action notice. I so hold. RESOLUTION OF ISSUE THREE In arguing issue three Counsel for the Defendant has maintained that public policy dictate that the Claimant action should not be allowed to see the light of the day as it is meant to enforce illegality which is illegal. Counsel insisted that illegality once brought to the attention of the Court overrides all other questions and Court will not close its eyes to illegality. I am inclined to agree with the submission of Counsel to the Claimant/Respondent that this issue is not properly raised it is an issue that will require credible evidence to established which can only be done after a full blown trial of issues in the case. In the circumstance I am of the view that issue of illegality cannot be raised at this stage it can only be raised when issues are joined between parties and credible evidence led in support and against the issue. it is premature for now. In view of all I have been saying above the Defendant has not been able to prove all the issues raised except the issue on pre-action notice. The preliminary objection therefore succeeds in part. For avoidance of doubt the order of the Court are. 1. This suit is not statute barred as it was instituted within two Months thirteen days from the date of accrual of the cause of action. 2. The pre-action notice is defective it did not conform with section 27 of the NITDA Act, on this ground this suit is struck due to non-fulfillment of pre-condition for institution of this action. 3. The issue of illegality is pre-mature as credible evidence will have led for and against the issue. I award no cost. Sanusi Kado, Judge. IN THE NATIONAL INDUSTRIAL CO URT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO DATE: 23TH February, 2018 SUIT NO: NICN/ABJ/55/2018 BETWEEN MR. WILLIAM KEFTIN AMUGA RESPONDENT AND MRS. CHINYERE AGBAI & FOUR ANOTHER APPLICANTS MOTION ON NOTICE BROUGHT UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT. TAKE NOTICE that this Honourable Court will be moved on ………the …….day of………..,2018 at the hour of 90’clock in the forenoon or so soon thereafter as Counsel will be heard on beard on behalf of the 2nd Defendants/Applicants praying the Honourable Court for the following: 1. AN ORDER of Court extending the time within which the 5th Defendant shall file serve his memorandum of conditional appearance, counter affidavit, and preliminary objection in this suit. 2. AN ORDER of the Court deeming the 5th Defendant’s memorandum of conditional appearance, counter affidavit and preliminary objection as properly filed and served. AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances. TAKE FURTHER NOTICE that the grounds of the application are as follows: i. The 5th Defendant is out of time in filing his memorandum of conditional appearance, counter affidavit and preliminary objection. ii. There is need to seek and obtain the leave of Court to file and to deem as properly filed and served the 5th Defendant’s process mentioned above. iii. That the time within which the 5th Defendant is required by the Rules of this Court to file the aforementioned processes haselapsed in the course of eliciting information/briefing from the relevant agencies involved for the defence of the this matter. iv. The Claimant will not be prejudiced by the grant of this application. FEDERAL MINISTRY OF JUSTICE MAITAMA, ABUJA FOR SERVICE ON: 1. THE CLAIMANT/RESPONDENT C/O HIS COUNSEL OLUWATOSIN B. OLUFON ESQ OBA OLUFON & CO CLAIMANT’S COUNSEL NO.26 BALANTYRE STREET, OFF ADETUKUNBO ADEMOLA CRESCENT, WUSE 11, ABUJA. 08052910854 2. THE 1ST DEFENDANT/RESPONDENT MRS. CHIYERE AGBAI, (DEPUTY REGISTRAR/g. DIRECTOR) COMMERCIAL LAW DEPARTMENT, FEDERAL MINISTRY OF INDUSTRY, TRADE AND INVESTMENT, OLD FEDERAL SECRETARIAT, AREA 1, GARKI, ABUJA 3. THE 2ND DEFENDANT/RESPONDENT HEAD OF CIVIL SERVICE OF THE FEDERATION FEDERAL SECRETARIAT COMPLEX, PHASE 11, SHEHU SHAGARI WAY, ABUJA 4. THE 3RD DEFENDANT/RESPONDENT HONOURABLE MINISTER, FEDERAL MINISTRY OF INDUSTRY, TRADE AND INVESTMENT, OLD FEDERAL SRCRETARIAT, AREA 1, GARKI, ABUJA. 27. That contrary to the Claimant’s testimony, I have gathered more experience and exposure, growing from the lowest rank of the cadre since 1988 till date, than himself who only came into the Registrar of Trade Marks in 2005 from the Ministry of Justice. 28. That I have attended several specialised trainings over the years growing from the ranks in the cadre, wellover 31 years of my work experience. Copy of my Curriculum Vitae isherein annexed and marked “Exhibit A4”. 29. That the Claimant has failed to prove any evidence showing that he had in good faith exhausted every substantive regulatory remedies within the civil service structure before approaching the court, as there was no notice to his employer and the 2nd to 5th Defendants being agencies the Federal Government of his intention to invoke the instrumentality of the court; revealing how personal, hasty and inconsiderate his claims are. 30. That I remain focused and steadfast to my duties in the office of the Registrar of Trade Marks, pursuant to the Trade Marks Act, the Rules of Civil Services and the Scheme of Service, and by this implication, I consider my loyalty to the service of the Nigeria State of paramount interest, and I have patiently worked to promote this interest, even when the odds were against my personal interest, rising through ranks of the cadre all these year. 31. I consider my call to serve anywhere within the Civil Service, as a call to duty, and will not feel aggrieved by any means, especially as a senior staff who is expected to show leadership examples. 32. I have just a short while before my retirement, and it is of paramount interest in the civil service that those below the ladder are allowed to grow, through the ranks without unnecessary interference in their advancement through the ranks in the cadre, as this will provide the incentives and opportunity to nurturing experience progressively, as the Head of Service has always insisted. 33. That the Claimant has not been prejudiced in any way, as nothing has changed in his emolument, salaries, pension benefits or welfare as a senior staff of Grade Level 17, but rather his insistence to continue as Chief Registrar of Trade Marks willonly generate bad blood, stagnancy, discouragement with other personnel below the ladder of the cadre, who are long overdue for promotion and advancement in the cadre subject to the Scheme of Service. 34. That if even the Claimant’s where to voluntarily retire, he would still be entitled to all his dues at retirement; so it needless struggling over official capacities that is not by any means permanent. 35. That the Claimant is not entitled to any of the relief sought, as granting them will greatly prejudice the interest of the civil service, particularly the personnel in the office of the Registrar of Trade Marks, in the Ministry of Industry. Trade and Investment. 36. That the claim of the Claimant is frivolous, lacking in merit, and most therefore be dismissed with substantial cost awarded against him, in favour of the 1st Defendant. 37. That I make this affidavit most consciously and consciously believing every fact as true and in accordance with the Oaths Acts. 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 abinitio. 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 1.1 This reply on points of law is filed in response to the 5th Defendant’s Notice of Preliminary Objection brought against the Claimant Originating Summons brought before this Honourable Court pursuant to Section 18 and 19 of the National Industrial Court Act. 2006 and under the inherent Jurisdiction and powers of this Honourable Court , and seeking the following: 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, 2017and 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. 3. 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. Where all the above questions are determined by this Honourable Court in the affirmative, THE CLAIMANT WILL BE PRAYING FOR THE FOLLOWING ORDEERS: i. A DECLARATION that the 2nd Defendant is 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. 1.2 The 5th Defendant has filed a Counter affidavit in Opposition to the Originating Summons and a Written Address in support of same wherein two (2) issues were set down for determination, which are that: (i) Whether from the facts of this case and the affidavit evidence placed before the this Honourable Court, the Claimant is entitled to the reliefs sought against the 5th Defendant in this suit? And (ii) Whether the Claimant has a reasonable cause of action against the 5th Defendant in this case? 2.0 BRIEF STATEMENT OF FACTS 2.1 The Claimant is the Chief Registrar of Trade Marks, Patent and Design, Commercial Law department, Federal Ministry of Industry, Trade and Investment. 2.2 The Claimant is a Legal Practitioner by training and his position in the Public Service is Grade Level 17. He was promoted to the Post of Chief Registrar of Trade Marks, Patent and Design, Salary Grade Level 17 by the 4th Defendant on the 14th October, 2016. 2.3 On the 27th day of November, 2017, the 2nd Defendant served on the Claimant a posting Instruction, dated the 21st day of November, 2017 and with Reference Number ‘HCSE/CMO/EM/241/140/T.2/43’ contrary to the extant provisions of the law. 2.4 The 3rd Defendant illegally appointed the Claimant’s the Claimant’s subordinate; the 1st Defendant to assume his office and perform the Claimant’s statutory duties. 2.5 The 5th Defendant who in its Counter affidavit vehemently claimed to be aware of the circumstances of this case has failed in its duty to properly avail the 2nd 3rd and 4th Defendants of the requisite legal guidance in the fact of the impunity they perpetrated, but stood by only to now challenge the Claimants suit. 2.6 The foregoing have necessitated this instant reply on points of law. 3.0 REPLY ON POINTS OF LAW 3.1 The 5th Defendant has raised three (3) issues for determination in their written address in support of their Notice of Preliminary Objection 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. (iii) The suit can be properly, completely, effectually and effectually determined without joining the 5th Defendant/Objector as a Party. 3.2 We hereby respond on point of law to issue one (1) alone, while we respond to issues two (2) and three (3) conjunctively. 4.0 ISSU ONE 4.1 We respectfully submit that the 5th Defendant does not appreciate the essence of this action, hence its misconception of an unlawful, illegal, and contemptuous act to be an executive or administrative action. 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. 4.2 We submit 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. We commend to your Lordship the provisions of Section 254C of the Constitution of the Federal Republic of Nigeria (as amended). 4.3 We submit that the 5th Defendant was in grave error to state in its first ground of its Notice of Preliminary objection that the illegality complained of is an executive or administrative action of the Federal Government. The Federal Government is not a party to this instant action and thus it will amount to an attempt to mislead the court if an extraneous connotation is being imputed into the wordings this action in an attempt to found an argument in the challenge of the jurisdiction of this Honourable Court. 4.4 We submit that your Lordship has the well vest Jurisdiction to précised 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) which provides as follows: 254 C (1) Notwithstanding the provisions of Section 251, 257, 272 and anything contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National industrial Court shall have exercise jurisdiction to the exclusion of any other Court in civil cause and matters: (a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service including health, safety welfare of labour employee, workers and matters incidental hereto or connected therewith. (b) 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. (c) Relating to or connected with dispute arising from payment or non-payment 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 qny part of the Federation and matters incidental thereto. 4.5 We therefore contend 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. In fact it is our humble opinion that the nature of the Claimant’s employment is not just that with Statutory Flavour, but Statutory Ochestration, as the very nature of the creation of the Registrar of Trade marks is Statutory. 4.6 We commend to your Lordship 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. 4.7 We also respectfully argue that it is settled law that it is the claim of the Claimant that determines jurisdiction and not the defence or any other pleadings. We commend to your Lordship the case of Alhaji Umaru Abba Tukura v. Government of Gongola State (1989) 9 S.C.N.J.I and AG-Kwara State v. Olawola (1993) 1 N.W.L.R (Pt.272) 645 at 663. Hence, the 5th Defendant is not in a position to determine whether or not this Honourable Court is vested with the Jurisdiction to hear this matter, no matter the quantum or vehemence of processes filed by it. 4.8 In that vien, we also submit that your Lordship will not sit back without defending your highly exclusive Jurisdiction to adjudicate cases of this peculiar nature where an Employment with Statutory flavor is being toyed with recklessly by a meddlesome Office of government not vested with any powers in the sais regard. In 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” 4.9 We commend to Your Lordship the provisions of Section 1 (1) of the Trade Marks Act, Cao, 436, LFN 1990 which provides as follows: “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. (Underlining mine)”. 4.9.1 My Lord we also with humility reproduce for the ease of this Honourable Court the provisions of Rules No. 020503(a) and 020506(ii) of the Public Service Rules, 2008, which provides as follows: 020503-(a) Senior posts- Transfer one senior post to another or from one class to another within the Federal Public Service require the prior approval of the Federal Civil Service Commission and an officer must have served for a minimum period of 6 months in his original application for such transfer must be submitted to the permanent Secretary/Head of Extra-Ministerial Office of the applicant and must state the applicant’s reason for desiring a transfer and his qualifications for the work to be undertaken. Such application should be forwarded to the Federal Civil Service Commission by the Permanent Secretary/Head of Extra-Ministerial Office together with a statement as to: (i) How the applicant has performed his/her duties; (ii) Whether the applicant is considered to be well qualified for the post desired; (iii) Recommendations as to the grant or refusal of the application and 020506- (ii) Posting of officers within the Ministry to posts outside their professional cadres should be prohibited. 4.1.1 We respectfully submit that from the provisions of law, it is made abundantly clear that: (i) The 2nd and 3rd Defendants have no legal backing whatsoever to make any directive with regards to the appoint, remuneration, posting, remuneration, discipline, of terminating of the Claimant’s office, and (ii) The Public Service Rules expressly prohibits every action that the 2nd , 3rd, and 1st Defendant have taken against the Claimant with regards to his appointment. 4.12 We respectfully submit to your Lordship that this is an express and unequivocal Statutory requirement of the Law which must mandatorily be complied with. In the instant case, the disrespect and total disregard with which the provision of a Statute has been treated is alarming and this Honourable Court cannot allow same to persist. 4.13 The Claimant has copiously deposed to facts in his affidavit in support of the Originating Summon expressly bringing to the knowledge of the court the continued state of affairs at the highest of the Public Service, that has created an impression that the law can be flouted with outmost disregard, and all that your Lordship is require to do is to declare the acts of the violating parties null and void pursuant to the Statute creating this Honourable Court. 4.14 We commend to Your Lordship the decision of the apex court in the case of Emmanuel Ugboji v. The state (2017) LPELR-43427(SC), where the Supreme Court recently held that: On NON-COMPLIANCE WITH STATUTORY: Effect of non- compliance with the requirement of a statute- Non-compliance with mandatory provisions of a statute has the consequence of rendering the proceedings or the act done pursuant thereto nullity. It is a fundamental defect that is not irregularity, but an illegality. 4.15 Furthermore, Section 18 of the National Industrial Court Act, LFN, 2006 made a very apt provision for the dealing with situation such as this, and we respectfully reproduce the provision of the instant law thus: “18. Injunction in lieu of quo warranto In any case where any person acts in an Office in which he is not entitled to act, the Court may grant an injunction restraining him from so action and may (if the case so requires) declare the Office to be vacant.” 4.16 The 1st Defendant is not appointed by the 4th Defendant, nor can she funish this Honourable Court with any proof of same, hence she is not entitled to act in the Office of the Claimant and thus the provision of this law must be invoked against her. 4.17 On the strength of the foregoing, we urge Your Lordship to dismiss one of the 5th Defendant’s notice of preliminary for a total misconception, for being absolutely irrelevant to the facts of this case, having not appreciated the legal issue arisen from this suit. 5.0 ISSUE TWO & THREE 5.1 We respectfully submit that it is sad for the 5th Defendant to state that no wrong has been disclosed against it and the suit can be properly completed and determined without it. 5.2 Section 174 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that: (3) In exercising his power under this section, the Attorney- General of the Federation shall have regard to the Public interest of justice and the need to prevent abuse of legal process. 5.3 The 5th Defendant has 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 legal consequences , it is becoming the modus operandi not to comply with Statutory provisions. 5.4 We commend to your Lordship the decision of the apex court in Attorney General of Anambra State v. Attorney General of the Federation (2007) LPELR-603 (SC), where it was held that: “The office of the Attorney General of a State is a creation of the Constitution. Although the constitution provides only for the duties of the Attorney General in Criminal prosecutions. The Attorney-General of a State is the Chief Law Officer of the State. And in that capacity, the Attorney – General of a state can sue and be sued in such matter affecting the state. Per Tobi, JSC.” 5.5 we humbly submit on the strength of the foregoing that your Lordship dismisses 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. 6.0 CONCLUSION 6.1 In conclusion we respectfully urge Your Lordship to reject and dismiss the 5th Defendant’s notice of preliminary objection in its entity. 6.2 May it pleaser the Court. 7.0. AUTHORITIES 7.1.1 Section 254C of the Constitution of the Federal Republic of Nigeria (as amended) 7.1.2 Section 254 (c) (1) (a), (d) and (k) of the Constitution of the Federal Republic of Nigeria (as amended). 7.1.3 Onuorah V. Kaduna Refinery & Petrochemical Co. Ltd. (2005) LPELR-2707(SC) 7.1.4 Alhaji Umaru Abba Tukura v. Government of Gongola State (1989) 9 S.C.N.J 7.1.5 AG-Kwara State v. Olawole (1993) IN.W.L.R (Pt.272) 645 at 663. 7.1.6 African Newspapers of Nigeria & Ors. V. The Federal Republic of Nigeria (1985)2 N.W.L.R (Pt.6) 137. 7.1.7 Section 1 (1) of the Trade Marks Act. Cap. 436. LFN 1990. 7.1.8 Rules No. 020503(a) and 020506(ii) of the Public Service Rules, 2008. 7.1.9 Emmanuel Ugboji v. The State (2017) LPELR-43427(SC). 7.1.10 Section 18 of the National Industrial Court Act, LFN, 2006. 7.1.11 Section 174 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 7.1.12 Attorney General of Anambra State v. Attorney General of the Federation (2007) LPELR-603(SC) IN THE NATIONAL INDUSTRIAL CO URT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO DATE: 14TH August, 2017 SUIT NO: NICN/ABJ/249/2017 BETWEEN MR. EBIKEME AKPOKEME RESPONDENT AND FED. CIVIL SERVICE COMMISSION & 1 ANR APPLICANTS WRITTEN ADDRESS IN SUPPORT OF 1ST DEFENDANT/APPLICANT’S NOTICE OF PRELIMINARY OBJECTION INTRODUCTION: 1.0 The Claimant commenced this action via Originating Summons dated and filed on 14th August, 2017. The Claimant was a civil servant with the Delta State Civil Service and second to the Ministry of Niger Delta Affairs until his retirement in 2015. He is seeking declarative relief amongst others that the removal of the Claimant from the services of the Defendant with effect from 1st March, 2016 by the 1st Defendant’s letter of 1st March withdrawing the 1st Defendant’s letter of approval of 15th December, 2015 is wrongful, null and void and of no effect in that the process for the transfer and absorpment of the claimant into the main stream of the Federal Civil Service had long commenced prior to the circular of the 1st Defendant of 22nd October, 2013 on which the refusal of the claimant was based. 1.1 In response, the 1st defendant/applicant has filed a Notice of Preliminary objection on the grounds listed above challenging the jurisdiction of the Honourable court to hear and determine this case. ISSUES FOR DETERMINATION: 2.0 From the facts and circumstances of this case, the 1st Respondent/Applicant submits the following issues for determination as follows: a. Whether the Claimant’s suit is statute-barred as to oust the jurisdiction of this Honourable Court. b. Whether the Claimant’s claims and/or reliefs can be properly determined under an action commenced by Originating Summons. SUBMISSIONS IN SUPPORT OF ISSUES FOR DETERMINATIONS: Jurisdiction is the nerve center of adjudication, the threshold issue and a lifeline for continuing legal proceedings. It is the blood that gives life to the survival of an action in a Court of law in the same way blood gives life to the human being and the animal race. See: INAKOJA V. ADELEKE (2007) 4 NWLR PT 1025 PG 423 @ 588 PARA E-H It is trite law that Jurisdiction is the power conferred on a Court by statute or the Constitution. In OBIUWEUBI v CBN (2011) 7 NWLR (PT. 1247) PG 465 @ 507 PARAS F-G the Supreme Court per ADEKEYE, JSC enunciated the position when he stated thus: “A Court is competent when: 1. It is properly constituted with respect to the number and qualification of members. 2. The subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. 3. The action is initiated by due process of law and 4. Any condition precedent to the exercise of its jurisdiction has been fulfilled.” 3.01 ISSUE ONE: WHETHER THE CLAIMANT’S SUIT IS STATUTE-BARRED AS TO OUST THE JURISDICTION OF THIS HONOURABLE COURT. 3.02 It is trite law that in determining the cause of action and when same enured in an action as the instant one, the Court must construe the depositions or consider the facts relief upon in the supporting Affidavit and the Exhibits attached thereto just in the same way that a Statement of Claim will be considered for an action begun by Writ of Summons. See: ECOLUM V. OBASANJO (1999) 5 SCNJ 92 OFILI V. CIVIL SERVICE COMMISSION (2008)2 NWLR PT. 1071PG. 238 @ P.253, PARAS. F-H 3.03 If the time pleaded in the originating processes is beyond the period allowed by the limitation law, the action is statute barred. The Claimant herein commenced the instant action via Originating Summons dated and filed on 14th August, 2017. The grouse of the Claimant is that his salary was stopped by Delta State Civil Service after his secondment to Ministry of Niger Delta Affairs and that it is the letter of withdrawal dated 1st March by the Federal Civil Service Commission that had truncated his absorption into the Federal Civil Service to enable him his entitlements. 3.04 The Claimant stated in his affidavit that he ought to have retired in September, 2015 but his salary was stopped in 2011. It is therefore clear from the foregoing that the claimant’s cause of action arose either in 2011 or 2015when his salary was stopped or his letter was withdrawn. It is obvious that a period of over three months has elapsed from either 2011 or 2015 to August, 2017 when the Claimant commenced this action. 3.05 This is contrary to the spirit and intendment of the provisions of Section 2 of Public Officer Officers Protection Act (CAP. P.41) LFN 2004. The intent complaint by the Claimant is therefore statute-barred. It is apt to make reference to section to Section 2 of the Public’s Protection Act which provides thus: 2. Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act, duty or authority, the following provision shall have effect. “a The action, prosecution or proceedings shall not lie or be instituted unless it is commenced with three months after the Act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after ceasing thereof” 3.06 It is our submission that the Public Officer’s Protection Act (POPA) is applicable to statutory bodies and offices such as the 1st Defendant herein. In IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT. 584) PAGE 1 @ PG 38 PARAS. D-F, the Supreme Court stated the law thus: “It is clear to me that the term “Public” has law been extended to include a “Public Department” and, therefore, an artificial person, a public office or a public body.” See also: NPA V. AJOBI (2006) 13 NWLR PT 998 PG 477 SECTION 18 (1) OF THE INTERPRETATION ACT, CAP 192, LFN 1990 3.07 It is trite law where a statute like the Public Officers Protection Act prescribes a period for the doing of an act or institution of a proceedings, such act or proceedings shall not be brought after the time prescribed by the Statute has expired. Any action commenced after the expiration of the limitation period is statute barred. See: UMUKORO V. NPA (1997)4 NWLR PT 502 PG 656@ 667 PARAS B-D F.C.E. PANKSHIN V. PUSMUT (2008) 12 NWLR PT 1101 PG 405 @ 419 PARAS A-E. 3.08 The Supreme Court in OSUN STATE GOVT. V. DALAMI NIG LTD (2007) 9 NWLR PT 1038 PG 66 @ PG 100 PARAS B-C per ONNGHEN, JSC stated the law aptly thus: “It is settled law that Public Officers (Protection) Act is a Statute of limitation which remove the right of action, the right of enforcement and the right to judicial relief in a Plaintiff and leaves him with a bare and lifeless cause of action, which cannot be enforced having been instituted after the three months prescribed by the said law.” 3.09 Furthermore, in WOHEREM V. EMERUWA (2004) 13 NWLR (PT 890) PG 398 @ 415 PARAS F-H. The Supreme Court per IGUH J.S.C stated inter alia thus: “…..A cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. The duration of a right or cause of action which is conferred on an injured party is necessarily limited and does not till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party…” 3.10 We urge this Honourable Court to hold that this action having being commenced on 14th August, 2017 is statute barred; not maintainable and should be resolved in favour of the 1st Defendant/Applicant. 3.11 ISSUE TWO: WHETHER THE CLAIMANT’S CLAIMS AND/OR RELIEFS CAN BE PROPERLY DETERMINED UNDER AN ACTION COMMENCED BY ORIGINATING SUMMONS. 3.12 We submit that, by virtue of Order 3 Rule 2(2) and 3 of the Rules of this Honourable Court, this suit was wrongly commenced by way of Originating Summons procedure in view of the contentious and speculative facts contained in the Affidavit in support of the Originating Summons. It is apt to make reference to Order 3 Rules 2(2) and 3 National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which provides as follows: Rule 2(2) “Where any matter relating to section 254c (1) (d) of the Constitution of the Federal Republic of Nigeria, 199 (amended) is to be filed before the court, such matte, if – (a) It relates only to interpretation, shall be by way of Originating summons: (b) It relates to interpretation and application shall be by way of Complaint. Rules 3: “Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the court has jurisdiction by virtue of the provisions of section 254 c of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria. 3.13 It is now settled law that an action will be properly commenced by an Originating Summons where the facts are not contentious. In Nwoko v. Ekerete (2010) 12 WRN PG. 179 at P. 188 Lines 10-15 it was held that: “Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons cannot be appropriately used” 3.14 Similarly in OLLEY v TUNJI (2013) 10 NWLR (PT 1362) PG. 275 at P. 322 PARAS. C-D, the Supreme Court reiterated the position of the law as follows: “Back home, our courts have shown the same reticence as their English counterparts with regards to application by way of Originating Summons. In Doherty v Doherty (1968) NWLR 241; (1967) SCNLR 408, Ademola, C.J.N, issued the warning that the use of Originating Summons is not suitable in hostile proceedings. See also National Bank of Nigeria Ltd & Anor v. Lady Ayodele Alakija & Anor (1978) 9-10 SC at page 71-73 and 74-75 wherein this court traced and reviewed the history of Originating Summons and held thus at page 86 of the report. Originating Summons should only be applicable in such circumstance as where there is no dispute or questions of facts or (even) the likelihood of such dispute.” 3.15 We submit that the facts and circumstances of this case are such that issues must be properly joined between the parties and evidence led to establish the pleadings. 3.16 A holistic look at the claims (both declaratory and other reliefs) of the Claimant as well as the affidavit in support of the Originating Summons and the attached exhibits shows complexities in the facts in issue which cannot be resolved by affidavit evidence alone. The Claimant has not and cannot establish the contentious issues of his entitlements to be resolved by mere averments in their supporting Affidavit. 3.17 We submit therefore, that since this action was improperly commenced, it is incompetent. Consequently, this Honourable Court lacks the competence or jurisdiction to adjudicate over same. It is trite that one of the essential conditions for the court to be competent to adjudicate upon a matter is that is that the matter be commenced by due process. See: MADUKOLU v. NKEMDILI (1962)2 NSCC 374 NWAKOR v. YAR’ADUA (2010) 45 WRN, 1 @ 41-42 lines 45-20 3.18 It has been held in OLANIYAN V. OYEWOLE (2008) 8 WRN PG. 86 @ P.102, Lines 15-20 that: “Where a low or a rule of practice prescribed a method of commencement of a particular type of proceeding and where such a proceeding is wrongfully commenced, it would be set aside”. 3.19 Consequently, such proceeding is liable to be struck out. See WAEC v ADEYANJU (2008) 35 WRN 1 @ 28 lines 10-30 (2008) 9 NLWR (PT. 1092), 270 AT 296 PARAS A-D where the Supreme Court held that: “Therefore from the facts in support of the Respondent’s application, the proper procedure for her to seek redress for the restoration of her results, would have been to come by way of a Writ of Summons and pleadings so that issues would have been joined between the parties on the most disputed fact between the parties on the source or origin of the statement of results headed or addressed not to the University of Lagos which gave the respondent admission based on it but to “WHOM IT MAY CONCERN”…Those proceedings as initiated and prosecuted before the trial Court are therefore incompetent thereby depriving that Court of the jurisdiction to hear and determine the claims. The action ought to have been struck out …” 3.20 We therefore urge my Lord to strike out this suit for lack of jurisdiction on the ground of improper commencement. 4.00 CONCLUSION: 4.01 From the totality of the submission above, it is obvious that this suit is grossly incompetent and invalid as same was not initiated by due process of law as stipulated in extant mandatory provisions which are necessary condition precedents for the invocation of the jurisdiction of the Honourable Court. We urge my Lord to so hold. Reply On Point of Law To 1st Defendant’s Notice Of Preliminary Objection 1. The 1st Defendant raised preliminary objection to the suit of the claimant and stated two grounds upon which its preliminary objection are premised viz: (a) That the claimant’s suit is statute barred having not been Commenced within three months after cause of action arose, And (b) That the claimant’s case was wrongly commenced by the way of Originating summons. 2. The 1st Defendant/Applicant is seeking for the dismissal of the claimant’s suit in his relief sought. 3. My Lord, in reply to issue No 1 raised by the Applicant that: A. “whether the claimant’s suit is statute-barred as to oust the jurisdiction of this Honourable Court” 1. We reply thus: The essence or effect of the public officer’s protection Act is to extinguish the cause of action if it is commenced after the stipulated period, which is the three months but subject to the exception provided for in section 2(a) of the Act. 2. My Lord, in the interpretation of section 2(a the Court Supreme in Independent national Electoral Commission v Ogbadibo Local Government & ors (2015) LPELR- 24839(SC) held as follows per Galadima, J.S.C. (pp. 29-30, paras F.A) “thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to as often as damage or injury is caused’ See Aremo v Adekanye (supra) Battishee v Reed (1856) 18CB. 69C at 714. 3. My Lord, in further expatiating the meaning of the phrase Continuance of damage or injury as used in section 2(a) of the public officers protection Act, Galadima, J.S.C in INEC v Ogbadibo Local Government & ors (supra) continued “I remember that during my Sojoum on the Bench of the Court of Appeal, I had occasion to examine the meaning of an act which damage or injury is a continuing one. In Alhassan v Aliyu & ors (2009) LPELR-8340 (CA) at pp. 31-32 paras F-G, I said as follows; “…….where the injury Complained of is a continuing one, time does not begin to run the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words, “continuance of injury” means the continuance Or repeat of the act which cause the injury…..” 4. My Lord, from the above it is our submission that the claimant who is still in service, has never been retired and cannot be statute barred in filing this suit since he is still in service and not yet retired, See paragraphs 2, 37 and 38 of the Affidavit in Support of originating summons. 5. We further submit My Lord that from the facts and circumstances of the claimant’s case, he is still very much in service resuming duty to the office of the 2nd Defendant and as such he has not contravened the public officers protection Act, as such the suit is not statute barred. B. The second issue raised by the 1st defendant/Applicant My Lord is: whether the claimant’s claims and/or reliefs can be properly determined under an action commenced by originating summons. 1. My Lord, the claimant is in court seeking the determination of the court on “whether upon the true and proper construction and Interpretation of Public Service Rules, 020501, 020502 and 020502 of 2008 respectively, 1st Defendant’s circular Reference No: FCSC/CHMC/CL17/Vol.1/36 of 22nd October, 2013 and the letter from the officer of the Federal Civil Service Commission to the claimant dated 15th December, 2015 approving the claimant’s transfer of service from the delta state Civil service to the Main stream of the Federal Civil Service (the Ministry of Niger Delta Affairs) and the letter of the 1st defendant of 1st March, 2016 withdrawing the approval previously given by its letter of 15th December, 2015, the claimant should have retired properly from the services of the 2nd Defendant as chief confidential secretary SGL 14 in September, 2015. 2. My lord, it is settled Law that an action will be properly commenced by an originality summons where the facts are not contentious. See Order 3 Rules 2(2) and 3 of the Rules of this Honourable Court. 3. My Lord, the suit filed by the claimant is a suit that is not contentious and is also not speculative. 4. My Lord, the claimant is in court for the proper construction and interpretation of; (a) Public Service Rules 020501,020502 and 020503 of 2008. (b) 1st Defendant’s Circular Ref No FCSC/CHMN/CL/17/vol.1/36 of 22nd October, 2013. (c) 1st Defendant’s letter to claimant dated 15th December, 2015 and: (d) 1st Defendant’s letter to claimant dated 1st March, 2016. 5. My Lord, this is strictly an affidavit evidence based case. The documents Exhibited in evidence are to aid the court in arriving at just conclusion of this case. 6. My Lord, it is well established that originating summons is usually used when what is in dispute is the mere construction of documents or interpretation of Law (as in the Claimant’s case) in respect of which pleadings are unnecessary. See Okon John & ors v Mobil Producing Nig unlimited & ors (2009) LPELR-8280(CA). 7. My Lord, in view of the circumstances above we submit that this suit has been commenced by due process and that this Honourable Court has Jurisdiction to entertain the claimant’s suit and we so we want the Court to hold so and dismiss the 1st Defendant’s preliminary Objection with Substantial Cost against them. Dated this 5th day of February, 2018 IN THE NATIONAL INDUSTRIAL CO URT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO DATE: 21ST January, 2016 SUIT NO: NICN/ABJ/26/2016 BETWEEN MRS.MARY OMOLOLA OLORUM RESPONDENT AND KONGO CONFERENCE HOTEL LTD APPLICANTS 5. That within the span of my career with the defendant I was at various times promoted until my last promotion in 2009 to the post of confidential secretary which doubles as secretary to the General manager. 6. That having attained the requisite retirement age, I voluntarily tendered my letter of voluntary retirement dated December 18, 2012 which letter the defendant graciously acknowledged and granted my application in its letter dated November 5, 2013 wherein the defendant stated that my voluntary retirement will commence from March 15, 2014 after my annual leave. 7. That after March 15, 2014 (the date when my voluntary retirement commenced) I approached the defendant for formal computation of my gratuity. 8. That in response to my request for computation, the defendant wrote a letter dated September 25, 2014 wherein it computed my entitlement which stood at N3, 157,246 (Three Million, One Hundred and Fifty Seven Naira, Two Hundred and Forty Six naira) only. 9. That while I was still in the service of the defendant, the defendant enrolled me with TrustFund Pensions Ltd as my Pension manager and thereafter deducted my monthly pension contribution from my salary on the assumption that the deductions were remitted each month to TrustFund pensions. 10. That shortly after I retired from the employment of the defendant, I approached Trustfund Pensions Limited to access my pension contribution which were deducted from source but to my utter dismay the pension manager informed me that the defendant failed to remit my monthly contributions for a total period of 20 months. 11. That I requested Trusfund Pensions to write the defendant to intimate it of the unremitted deduction and TrustFund Pensions wrote the defendant. 12. that the defendant replied with a letter dated October 15, 2014 to which I was a signatory wherein it admitted that its admitted that its inability to remit the unpaid deductions was due to lack of business patronage but promised to pay me the remaining unremitted deductions as soon as its liquidity position improves. 13. That till date I have not been paid the unremitted deductions which is totaled at N73, 044.4 (Seventy three thousand, forty four naira, four kobo) at N3, 652.22 (Three Thousand Naira, Six Hundred and Fifty Two) monthly been the last amount paid by the defendant as at July 2013. 14. That the defendant’s failure to honestly and consistently remit my monthly contributions which were deducted on the assumption that they were all paid is highly questionable. 15. That between the month of March 2014 when I voluntarily retired to December, 2014 I made frantic effect to approach the defendant to pay my entitlement but to no avail and when I observed that the defendant was not willing to pay I engaged the law firm of K.A ADEDOKUN & CO. 16. That sometimes in December 2014, Ahmadu Bello University, Zaria disengaged Arewa Hotels Ltd from further managing the Defendant and thereafter demanded immediate handover of the defendant’s hospitality company back to its original owners. 17. That Ahmadu Bello University Zaria took over management of the defendant and it currently in business. MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 16 RULE (1) AND ORDER 17 OF THE NATIONAL INDUSTRIAL COURT RULES 2017 AND UNDER THE INHERENT POWERS OF THE HONOURABLE COURT TAKE NOTICE that this Honourable Court will be moved on the _____________day of __________2017 at 9’OPclock a.m in the3 forenoon or soon thereafter as counsel on behalf of the applicant will be hear praying this Honourable Court for the following order(s): 1. AN ORDER entering summary judgment in favour of the claimant/applicant. 2. FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit in the circumstances. Dated this 5th Day of October, 2017 AFFIDAVIT IN SUPPORT I, MRS. MARY OMOLOLA OLORUNMAIYE, Chriatian, Adult, female of No. 1 Yellow Storey Building, Hanwa Lowcost, Zaria, Kaduna State do hereby make oath and state as follows: 1. That I am the claimant in the instant suit by virtue of which I am conversant with the facts herein deposed. 2. That the defendant is a hospitality company incorporated in Nigeria under the relevant laws and is situate beside the institute of Administration, ABU along Old Jos Road, Zaria where it carries on business within the jurisdiction of the Honourable Court. 3. That the defendant company is owned by Ahmadu Bello University Zaria which owns 80% shareholding and Northern Nigeria Development Company which owns 20% but has been under the management of Arewa Hotels Ltd since 1980. 4. That I was employed by the defendant on December 17, 1980 and I served honestly, diligently and scrupulously for an extended period of 34 years. A copy of my letter of initial employment and subsequent confirmation by the defendant is hereby annexed and marked as EXHMOO1 AND MOO2 respectively. 5. That within the span of my career with the defendant I was at various times promoted until my last promotion in 2009 to the post of confidential secretary which doubles as secretary to the General Manager. 6. That having attained the requisite retirement age, I voluntarily tendered my letter of voluntary retirement dated December 18, 2012 which letter the defendant graciously acknowledge and granted my application in its letter dated November 5, 2013 wherein the defendant stated that my voluntary retirement will commence on March 15, 2014 after my annual leave. Annexed and marked as EXH M003 and Moo4 is a copy of my application for voluntary retirement and the defendant’s response. 7. That after March 15, 2014 (the date when my voluntary retirement began) I approached the defendant for formal computation of my gratuity. 8. That in response to request for computation, the defendant wrote a letter dated September 25, 2014 in which it computed my entitlement at N3, 157.246 (Three Million, One Hundred and Fifty Seven Thousand Naira, Two Hundred and Forty Six naira) only. A copy of the defendant’s letter stating my entitlement is also annexed and marked as EXH M005. 9. That between the months of March 2014 when I voluntarily retired to December 2014 I made frantic effort to approach the defendant to pay my entitlement but to no avail and when I observed that the defendant was unwilling to settle its indebtedness to me I engaged the law firm of K.A ADEDOKUN & CO. 10. That sometimes in December 2014, Ahmadu Bello University, Zaria disengaged Arewa Hotels Ltd from further managing the Defendant’s Hotel and thereafter demanded immediate handover of the defendant’s hospitality company back to its original owners. 11. That Ahmdu Bello University Zaria subsequently took over management of the defendant. 12. That sometimes in November 2015 Ahmadu Bello University Zaria changed the name of the hotel from Kongo Conference Hotel Zaria to Ahmadu Bello University Hotels Limited, Zaria while still retaining the original RC number 30031. 13. That because of the defendant’s adamant posture my solicitor K.A Adedokun & Co caused a letter of Demand to be served on the defendant through the Vice Chancellor of Ahmadu Bello University Zaria and the Director of the Institute of Administration respectively but the defendant nonetheless failed and willfully refused to respond to the letters sent by my counsel. A copy of the demand letter(s) dated August 15 and October 30, 2015 written by my counsel to the defendant is also annexed and marked as EXH Moo6 and 7. 14. That the defendant’s failure to respond to my counsel’s letter is due to its reprehensible role and the fact that it has no defense to this suit. 15. That the defendant’s failure and willful refusal to pay my terminal benefits has caused me untold hard as I am presently grappling with a dangerously penurious life as well as disappointment from my inability to care for my basic needs after working for the defendant for over three decades of my life. 16. That while I was still in the employment of the defendant, the defendant enrolled me with TrustFund Pensions Ltd as my pension manager and thereafter deducted my monthly pension contribution from my salary on the assumption that the deductions were remitted each month to TrustFund pensions. 17. That shortly after I retired from the employment of the defendant, I approached TrustFund Pensions Limited to access my pension savings which were deducted from source but to my utter dismay TrustFund Pensions informed me that the defendant failed to remit my monthly contributions for a total period of 20 months. 18. That I requested TrustFund pensions to write the defendant to intimate it of the unremitted deduction and TrustFund Pension wrote the defendant. 19. That the defendant replied TrustFund Pensions with a letter dated October 15, 2014 (to which I am a signatory) wherein the defendant acknowledged and admitted that its inability to remit the unpaid deductions was due to lack of business patronage but promised to pay the remaining unremitted deductions to me as soon as its liquidity position improves. A copy of the Defendant’s letter to Trustfund Pensions is annexed and marked as exhibit Moo8 20. That till date I have not been paid the unremitted deductions which is totaled at N73, 044.4 (Seventy three thousand, forty four naira, four kobo) at N3, 652.22 (Three Thousand Naira, Six Hundred and Fifty Two) only been the last amount paid by the defendant as at July 2013. 21. That the defendant’s failure to honestly and consistently remit my monthly contribution which were deducted on the assumption that they were all paid is questionable. 22. That my claim against the defendant is as follows: a. The sum of N3, 157, 246.00 (Tree Million, One Hundred and Fifty Seven Thousand, Two Hundred and Forty Six Naira) only been the claimant’s emoluments/gratuity for 34 years of selfless service to the defendant from December 17, 1980 to0 March 15, 2014. b. The sum of N73, 044.4 (Seventy Three Thousand, Forty Four naira, Four Kobo) only as unremitted pension contribution for a period of 20 months at the rate of N3, 652.22 (Three Thousand, Six Hundred and Fifty Two naira, twenty two kobo). c. AN ORDER mandating the defendant to immediately pay the claimant the sum of N3, 157,246.00 (Three Million, One Hundred and Fifty Seven Thousand, Two Hundred and Forty Six) naira only been the Claimant’s emolument/gratuity for 34 years selfless service. d. AN ORDER mandating the defendant to forthwith pay the claimant the sun of N37,044.4 (Seventy Three Thousand, Forty Three Thousand, Forty Four naira, Four Kobo) only as unremitted pension contribution for a period of 20 months at the rate of N3, 652.22 (Three Thousand, Six Hundred and Fifty Two Naira, Twenty Two Kobo). e. 10% Interest on the Judgment sum (i.e claimant’s gratuity and unremitted pension contribution) from March 15, 2014 when the claimant retired from service until judgment is delivered and 10% interest until the judgment is fully liquidated. f. N3, 000.00 (Three Million Naira) only as General Damages for the defendant’s failure to diligently and honestly remit the claimant’s pension contribution as well as hardship suffered by the claimant for the defendant’s willful refusal to promptly pay the claimant’s entitlement. g. N200,000.00 (Two hundred Thousand naira) only as cost of this action. 23. That I depose to this affidavit in good faith, conscientiously believing same to be true and correct and in conformity with the Oaths Act, Cap 01, LFN, 2014. Sworn to at the National Industrial Court Registry, Abuja Dated 5th day of October 2017 BEFORE ME COMMISIONER FOR OATHS APPLICANT’S WRITTEN BRIEF IN SUPPORT 1.0 INTRODUCTTION My Lord, the applicant commenced this action by way of complaint but owing to the glaring and incontestable nature of the applicant’s claim, the applicant has brought this application for summary judgment under ORDER 16 RULE 1 of the National Industrial Court Rules, 2017. My Lord the applicant’s reliefs or claim, against the defendant as contained in the complaint is for payment of the following: a. The sum of N3, 157, 246.00 (Three Million, One Hundred and Fifty Seven Thousand, Two Hundred and Forty Six naira) only been the claimant’s emoluments/gratuity for 34 years of selfless service to the defendant from December 17, 1980 to March 15, 2014. b. The sum of N73,044.4 (Seventy three thousand, forty four kobo) only as unremitted pension contribution for a period of 20 months at the rate of N3, 652.22 (Three Thousand, Six Hundred and Fifty Two naira, twenty two kobo). c. AN ORDER mandating the defendant to immediately pay the claimant the sum of N3, 157,246.00(Three Million, One Hundred and fifty seven thousand, two hundred and forty six) naira only been the Claimant’s emolument/gratuity for 34 years of selfless service. d. AN ORDER mandating the defendant to forthwith pay the claimant the sum of N73,044.4 (Seventy three thousand, forty four naira, four kobo) only as unremitted pension contribution for a period of 20 months at the rate of N3, 652.22 (Three Thousand, Six hundred and Fifty Two naira, twenty two kobo). e. 10% Interest on the Judgment sum (i.e claimant’s gratuity and unremitted pension contribution) from March 15, 2014 when the claimant retired from service until judgment is delivered and 10% interest until the judgment is fully liquidated. f. N3,000,00 (Three Million Naira) only as General Damages for the defendant’s failure to diligently and honestly remit the claimant’s pension contribution as well as hardship suffered by the claimant for the defendant’s willful refusal to promptly pay the claimant’s entitlement. g. N200, 000.00 (Two hundred Thousand Naira) only as cost of this action. 2.0 STATEMENT OF FACT The applicant was an employee of the defendant from December 17, 1980 to March 15, 2014 when the claimant/applicant voluntarily retired from the employment of the defendant, following which the defendant computed the claimant’s gratuity which stood at N3, 157, 240.00 (Three Million, One Hundred and Fifty Seven Thousand, Two Hundred and Forty Six Naira) only as shown in exhibit Moo5. After the claimant/applicant’s retirement from the service of the defendant, the claimant realized that the defendant defaulted in remitting the claimant’s pension contribution for over 20 months. The defendant has deliberately refused to pay the claimant’s entitlement and unremitted pension contribution despite several demands. CLAIMANT’S COUNTER AFFIDAVIT TO DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION DATED MARCH 12, 2018 I, Mrs. Mary omolola Olorunmaiye, female, adualt, retiree of No. 1 Yellow Storey Building, Kwagila Zaria do make oath and state as follows: 1. That I am the claimant in this suit by virtue of which I am conversant with the whole facts necessitating the filling of this suit as well as facts contained in this counter affidavit. 2. That S. Oyeghe Esq. counsel who appeared on my behalf on Thursday 15, 2018 was served with the defendant’s processes including a Notice of Preliminary Objection and same was explained to me by N.B Olorunmaiye Esq., counsel personally handling this case. 3. That the whole facts contained in the supporting affidavit of the defendant’s notice of preliminary objection are false, untrue and a deliberate attempt by the defendant to mislead this Honourable Court and same is hereby countered as follows: a. That Kongo Conference Hotel Ltd now Ahmedu Bello University Hotels Ltd was first registered on September 4, 1979 and was substantially owned by Ahmadu bello University, Zaria (with a shareholding of 80%) and New Nigeria Development Company (which owned 20% of the shareholding). b. That right from its inception Kongo Conference Hotel Ltd now Ahmadu bello University Limited was manged by Arewa Hotels Ltd under a management agreement on behalf of Ahamadu Bello Unversity Zaria and New Nigeria Development Company Ltd. c. That while managing the defendant Arewa Hotels (Development) Ltd acted as gents of Kongo Conference Hotel Ltd and recruited employees (especially junior staff members) including the claimant. d. That the claimant was employed by Kongo Conference Hotels Ltd through its agent Arewa Hotels Development Ltd as this was made categorically cledar in the letter of Trial Employment dated 23rd December, 1980 and letter of Confirmation of Appointment issued to the claimant. A copy of both letters are annexed and marked as Exhibit Moo1. e. That in the letter confirming my appointment, Arewa Hotels Development Company Ltd indicated that it was acting on behalf of Kongo Conference Hotels Ltd as shown in paragraph f. That after my employment all correspondence between me and the defendant relating to my welfare and retirement was done in the name of Kongo Conference Hotels Ltd (now Ahmadu Bello University Hotels Ltd) including the computation of my gratuity. Copies of these correspondences are annexed and marked as Exh. Moo2. g. That for the span of 34 years while working for the defendant there was never a time that the defendant reneged or denied the fact that Arewa Hotels (Development) Ltd was acting as it duly appointed agents. h. That it was unanimously agreed between Arewa Hotels Development Company Ltd and Ahmadu Bello University, Zaria that the recruitment, remuneration, welfare as well as gratuity of all junior staff members of Kongo Conference Hotel Ltd will be borne by Kongo Conference Hotels Ltd. A copy of Extracts of a Management Report from Arewa Hotels Ltd to Ahmadu bello Univerisity is hereby annexed and marked as Exh. Moo3. i. That I retired from the employment of Kongo Conference Hotels Ltd (now Ahmadu Bello University Hotels Ltd) as a junior staff. j. That all along Kongo Conference Hotel ratified and continued to ratify all acts done by Arewa Hotels Development Ltd on its behalf until 2014 when Ahmadu bello University Zaria been the dominant share holder or owner of Kongo Conference Hotels Ltd decided to forcefully take over management of the Hotel. k. That Arewa Hotels Development Ltd prepared a handover note/report containing list and details of staff liabilities of Kongo Conference Hotels to Ahmadu Bello University Zaria which includes the claimant. l. That in a bid to evade liability of its indebtedness to junior staff members, ABU Zaria through its directors changed the name of the defendant from Kongo Conference Hotels Ltd to Ahmadu Bello University Hotels, Zaria in November 2015. m. That the claimant the claimant through her counsel conducted a search as well as made formal enquiry about the defendant from the Corporate Affairs Commission in 2017. A copy of CAC’s reply is hereby annexed and marked as Exhibit Moo4. n. That the defendant’s notice of preliminary objection is filed with a view to mislead this Honourable Court. o. That Ahmadu Bello University Hotels Limited is the only necessary party to be sued in this suit. 4. That it is in the interest of justice to dismiss the defendant’s preliminary objection as its statement of defence has not revealed any defence to the claimant’s claim. 5. That I depose to this affidavit in good faith, conscientiously believing same to be true and correct and in conformity with the Oaths Act, Cap 01, LFN, 2004. WRITTEN ADDRESS IN SUPPORT OF CLAIMANT’S COUNTER AFFIDAVIT IN RESPONSE TO THE DEFENDANT’S NOTICE OF PRELIMINARY ONJECTION 1.0 INTRODUCTION My Lord this instant address is filed in support of the claimant’s counter affidavit in response and opposition to the defendant’s notice of preliminary objection dated March 12, 2018. My Lord the crux of the defendant’s preliminary objection is on the ground that the necessary party is not before the court; the defendant claimed that Arewa Hotels Development Company Limited is the necessary party and not Ahmadu bello University Hotels Limited. It is Vehemently argued on the claimant’s behalf as contained in the claimant’s counter affidavit and written address that the necessary party in this suit is the defendant and no other. 2.0 BRIEF FACTS OF THE CASE My Lord this suit was filed by the claimant against the defendant initially in the name of Kongo Conference Hotel Ltd (now Ahmadu Bello University Hotels) for recovery and payment of the claimant’s gratuity for selfless service rendered to the defendant for a period of 34 years. The defendant rather than prosecuting this case on the merit filed a frivolous preliminary objection alleging that the defendant is not the necessary party to be sued. The instant address is filed in opposition to the defendant’s notice of preliminary objection. 3.0 ISSUES FOR DETERMINATION We humbly posit two issues for my Lord’s determination, namely: 1. Whether the defendant is not the necessary party to be sued in this suit? 2. Whether the defendant can in anyway deny liability for acts done in its behalf? 4.0 LEGAL ARGUMENTS: We shall jointly proffer legal argument to the issues posited above. 4.1 My Lord as noted in the claimant’s counter affidavit, the defendant was formerly known as Kongo Conference Hotels Limited since September 4, 1979 and later changed and later changed its name to Ahmadu Bello University Hotels Limited in November, 20, 2015. Right from its inception it had been under the management of Arewa Hotels Development Company Ltd but was jointly owned by Ahmadu Bello University Zaria (with 80% shareholding) and New Nigerian Development Company (with 20% shareholding). 4.2 The claimant was employed by the defendant acting through its agent Arewa Hotels Development Company Ltd and this was categorically stated in the trial appointment letter as well as in the letter confirming the claimant’s appointment both of which are marked as Exhibit Moo1. We humbly urge your Lordship to take judicial notice (of paragraph 4 of the trial letter of employment dated 23rd December 1980 and paragraph 2 of the letter of confirmation dated 17th June, 1981) under Section 122(2) par. M of the Evidence Act, 2011. My Lord the position of the law is trite, that where an agent is acting on behalf of a disclosed principal the proper party to be sued is the principal and no more. On this note we humbly refer my Lord to the case of Okafor v. Ezenwa (2002) 13 NWLR Pt. 784 pg. 319 AT 325 R. 5 (also on pg. 340 paras-A-E); Carlen (Nig) Ltd V. University of Jos (1994) 1 NWLR (Pt. 323) at pg.631. We submit that Areawa Hotels Development Company Ltd is the agent of a disclosed principal i.e Ahmadu Bello University Hotels Ltd (formerly Kongo Conference Hotel Limited). 4.3 My Lord it is also crystal clear that since the claimant’s employment with the defendant all other correspondence relating to her welfare, remuneration and gratuity has been in the name of Kongo Conference Hotels Ltd (now Ahmadu Bello University Hotels Ltd). We equally urge my lord to take judicial notice of Exhibit Moo2 (which includes a letter written in response to the claimant’s application for voluntary retirement; computation of the claimant’s gratuity by the defendant as well as an acknowledgement for unremitted pension contribution). In the same vein my Lord for the span of 34 years since the claimant’s employment, the defendant had always held out Arewa Hotels Limited to be its duly appointed agent. The question that readily comes to mind is whether the defendant can now attempt to absolve itself of liability for acts carried out in its own name? the answer we submit is a resounding NO. 4.4 In Okafor v. Ezenwa’s case supra the Supreme Court noted that “an agent of a disclosed principal is not ordinarily personally liable on a contract he enters on behalf of his principal. In the instant case the appellant was not personally liable on the contract he procured between the respondent and his principal, the company he promoted and incorporated and to which the respondent paid money he claimed from the appellant.” We urge my Lord to hold that the defendant is the necessary party to be sued in this case been the principal of Arewa Hotels Development Company Ltd. 4.5 My lord the defendants through its Directors were under the erroneous and ludicrous impression that by changing its name from Kongo Conference Hotels Ltd to Ahmadu Bello University Hotels Ltd they can absolve themselves of liability of monies owed the claimant and other handicap employees. We submit that the position of the law is trite that change of name by a company will not affect its liability for debts owned in its previous name. section 31(6) of the Companies and Allied Matters Act Cap. C20 LFN, 2004 provides thus: “the change of name shall not affect any Right or obligations of the company or render defective any legal proceedings by or against the company and any legal proceedings that could have been continued or commenced against it or by it in its former name may be continued or commenced against or by it in its new name” My Lord from the clear and unambiguous provision of S. 31 (6) of CAMA, the defendant as presently constituted is the only necessary party to be sued for the claimant’s unpaid gratuity and other emoluments. 4.6 In the same vein my Lord, the categories of parties known to law are 4 namely – proper parties, desirable parties, necessary parties and nominal parties. We humbly refer my Lord to the case of Ogun State Govt V. Dalami Nig Ltd & Anor (2003) 7 NWLR Pt 878 P. 72 at 102 and Union beverages Ltd v. Pepsi Cola Int. Ltd (1994) 3 NWLR Pt (330) pg. 1 at 17. My Lord 3 of this categories were judicially defined by the court of appeal in the case of O.U Davidson Group Construction (Nig) Ltd v. Bees Elect Co. Ltd (2001) 9 NWLR pt. 719 pg. 507 at 509 R4., also on Pg. 515 to 516 paras G-A as follows: “There are categories of persons in an Action namely (a) proper parties (b) Desirable parties and © necessary parties. Proper parties are those who thought not Interested in the plaintiff’s action, are made Parties for some good reasons. Desirable parties are those who have an interest and who may be affected by the result of the plaintiffs’ action. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings cannot be fairly dealt with….” (underlined for emphasis) 4.7 My Lord we humbly submit that the defendant is a necessary party without whom this case cannot be fairly determined. 4.8 Finally we urge my Lord to hold that the defendant is the only necessary party for the claimant’s claim and to dismiss the defendant’s preliminary objection with deterring cost as same is frivolous, lacking in merit and a deliberate attempt to waste the time of this Honourable Court. 5.0 LIST OF AUTHORITIES 1. Carlen (Nig) Ltd V. University of Jos (1994) 1 NWLR (Pt 323) at pg. 631. 2. Companies and Allied Matters Act, Cap. C20 LFN 2004. 3. Evidence Act, 2011 4. Ogun State Govt V. Dalami Nig Ltd & Anor (2003) 7 NWLR Pt 878 P. 72 at 102 5. Okfor v. Ezenwa (2002) 13 NWLR Pt. 784 at 325 R. 5 (also on pg. paras A-E) 6. O.U Davidson group Construction (Nig) Ltd v. Bees Elect Co. Ltd (2001) 9 NWLR pt 719 pg. 507 at 509R4,. 7. Union Beverages Ltd v. Pepsi Cola Int. Ltd (1994) 3 NWLR Pt (330) pg. 1 at 17.