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JUDGMENT. The claimant in this suit took out an Originating Summons dated 23/2/18 and filed on the same day. The originating summons was brought pursuant to Sections 18 and 19 of the National Industrial Court Act, 2006, and under the inherent jurisdiction of this Honourable Court, seeking for the determination of the following question to wit:- 1. A determination of the question whether or not by virtue of the in interpretation of the provisions of Section 1 of the Trade Marks Act, Cap 436, LFN 1990, and the extant Public Service Rules Nos. 020503 (a) and 020506 (ii), the posting Instruction directed at the Claimant by the 2nd defendant, dated the 21st day of November, 2017 and with reference Number ‘HCSF/CMO/EM/241/140/T:2/43’ is an illegally and null and void ab initio. 2. A determination of the question whether or not by virtue of the in 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 Industrial, Trade and Investment, dated the 20th day of December, 2017 and with Reference Number ‘IND/P.5./S.5/Vol.III/343’ being a furtherance of the injustice occasional to the claimant, and amounting to an illegally and null and void ab initio. 3. A determination of the question whether or not by virtue of the in 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. In anticipation of the favorable resolution of all the above questions. The claimant is praying for: i. A DECLARATION that the 2nd Defendant is in breach 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) and has no legal capability whatsoever to tamper with the office of the Claimant. ii. A DECLARATION that 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/241/140/T:2/43’ is an illegally and is null and void and of no effect whatsoever. iii. A DECLARATION against the 3rd Defendant, that 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. III/343’ being a furtherance of the injustice occasional to the claimant, is an illegality and null and void and of no effect whatever. iv. A DECLARATION that the virtue of the provisions of Section 1 of the Trade Marks Act, CAP. 4356, 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/241/140/T:2/43’ . v. A DECLARATION that the 1st Defendant has been in unlawful occupation of and has been acting unlawfully in the officer of the of Chief Registrar of Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Industrial, Trade Investment. 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. The originating summons is supported by a 42 paragraphs affidavit sworn to by the claimant himself. A written address was also filed along with the originating summons. In reaction to the 1st, 2nd and 5th defendants’ counter-affidavits, the claimant filed a further and better affidavits with replies on points of law. The 3rd and 4th defendants failed and refused to enter appearance or file defence to this suit, despite being served with the originating summons commencing this suit and hearing notices. O. B. A. Olofun, Esq; counsel for the claimant, in adumbration before the court relied on all the paragraphs of the affidavit in support and the further and better affidavits. Counsel also adopted the written address as well as the replies on points of law as his argument. From the affidavit evidence it is apparent that the claimant is contesting the validity of his posting from Federal Ministry of Industry, Trade and Investment to the office of the Head of Civil Service of the Federation. He is also challenging the directive of the 3rd defendant asking the 1st defendant to take over the affairs of the Department of trade Marks, patent and design Commercial Law Department. According to the claimant the Posting Instruction from the 2nd Defendant dated the 21st day of November, 2017, with Reference Number ‘HCSF/CMO/EM/241/140/T:2/43’, which was served on the claimant on the 27th day of November, 2017, posting the Claimant out of his office as Chief Registrar of Trade Marks, Patent and Design Commercial Law Department, Federal Ministry of Industry, Trade and Investment was in contravention 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). Consequently, the Claimant appealed to the 2nd and 4th Defendants for a re-consideration and rescinding of the said Posting Instruction but to no avail. The 3rd Defendant Federal Ministry of Industry, Trade and Investment, further issued to the Claimant a letter dated the 20th day of December, 2017, with Reference Number ‘IND/P.5./S.5/Vol.III/343’ and made pursuant to the Posting Instruction, dated the 21st day of November, 2017, with Reference Number ‘HCSF/CMO/EM/241/140/T:2/43’ requesting that the claimant vacate his office and hand over to the 1st Defendant. The claimant was issued with an ultimatum of less than Forty-Eight (48) hours to comply and with a threat to denied him access to his office in further reckless disregard to 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 1st claimant had since the issuance of the letter dated the 20th day of December, 2017, with Reference Number ‘IND/P.5./S.5/Vol.III/343’ assumed the office of the Claimant as Chief Registrar of Trade Marks, Patent and Design Commercial Law Department, Federal Ministry of Industry, Trade and Investment in reckless disregard and contravention 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). In the written address counsel formulated twin issues for determination. They are: 1. ‘‘Whether or not, on the preponderance of facts and materials placed before the court, and by virtue of the 1st, 2nd and 3rd Defendants non-compliance and total disgraced to Statutory provisions, all their actions are a nullity and an illegality.’’ 2. ‘‘Whether or not if the first issue is declared in the affirmative, the Claimant is entitled to all the reliefs sought in this suit.’’ ARGUMENT ISSUE ONE. Whether or not, on the preponderance of facts and materials placed before the court, and by virtue of the 1st, 2nd and 3rd Defendants non-compliance and total disgraced to Statutory provisions, all their actions are a nullity and an illegality. In arguing issue one, counsel contended that by virtue of Section 1 (1) of the Trade Marks Act, Cap 436, LFN 1990” which provides as follows: “…………… the Registrar and their register 1. (1) There shall Continue to be an officer known as the Registrar of Trade Marks (in the 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. And Public Service Rules 2008, Rules No. 020503 (a) and 020506 (ii), which provides as follows: 020503 – (a) Senior Posts – Transfers from 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 an officer must have served for a minimum period of 6 months in his original Department before seeking transfer to another Department, An application for such transfer must be submitted to the Permanent Secretary/Head of Extra-Ministerial Office of the applicant and must sate the applicant’s reasons 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 application has performed his/her duties. (ii) Whether the applicants 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. It is the submission of counsel that from the foregoing provisions of law, it is made abundantly clear that: (i) the 2nd an 3rd Defendants have not legal backing whatsoever to make any directive with regards to the appointment, posting, remuneration, discipline, or termination of the Claimants office, and (ii) the Public Service Rules expressly prohibits every action that the 2nd, 3rd and 1st Defendants have taken against the Claimant with regards to this appointment. It is the contention of counsel that this is an express and unequivocal statutory requirement of the law which must mandatorily be complied with. In the instant case, the disrespects and total disregard with which the provision of a Statute has been treated is alarming and this Honourable Court cannot and will not allow same to persist. Counsel submitted that the Claimant has copiously deposed to facts in his affidavits expressly brining to the knowledge of the court the continued state of affairs at the highest level of the Public Service that has created an impression that the law can be flouted with utmost disregard. It is for his reason that the Claimant has originated this summons in other that this Honorable Court of justice may remedy this worrisome and disturbing situation that has arisen. On this submission counsel relied on 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: ‘‘Non –compliance with mandatory provisos of a statute has the consequence of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere irregularity, but an illegality.’’ Counsel also cited and relied on the case of Ojong v. Duke (2003) 14, pt. 841, pg.581,@pg.590, where the court of Appeal held that: ‘‘Where a statute provides for the doing of an act in a particular manner, that manner and none other shall become lawful if employed. In the same vein, where a statute provides for the commencement of an action in a particular manner or form, counsel must ensure that the action is commenced or instituted strictly in the manner of form provided by the statute.’’ It is the contention of counsel that by virtue of the provision of Section 1 (1) of the Trade Marks Act, Cap 436, LFN 1990” above cited, the employment of the Claimant is one with Statutory flavor, and thus cannot be tampered with at the will of the adversary. On this contention counsel relied on the decision of the Court of Appeal in the case of NEPA. v. EDEGBERO & ORS. (2000) LPELR-6884(CA) and the decision in Union Bank v. Ogboh (1995) 2 SCNJ; (1995) 2 NWLR (Pt. 380) 647. It is the contention of counsel that the claimant does not hold his employment at the pleasure of the 2nd and 3rd Defendants and they have no right or legal basis whatsoever to tamper with the Claimants job in anyway. On this contention counsel relied on the case of COMPTROLLER GENERAL OF CUSTOM & ORS V. COMPTROLLER ABDULLAHI B. GUSAU, (2017) LPELR-42081(SC): It is the contention of counsel that the acts of the 2nd, 3rd and 1st Defendants is an aberration, ultra vires and thus null and void in its entirely. On this contention counsel relied on the case of CENTRAL BANK OF NIGERIA & ANOR V. MRS. AGNES M. IGWILLO (2007) LPELR-835(SC). In concluding submission on this issue counsel urged the Court to settle issue one in favour of the Claimant and hold that the 1st, 2nd and 3rd Defendants non- compliance and total disregard to Statutory provisions, all actions carried out or purported to be carried out by them against the Claimant are a nullity and an illegality. ISSUE TWO Whether or not if the first issue is declared in the affirmative, the Claimant is entitled to all the reliefs sought in this suit. In arguing this issue counsel submitted that by virtue of all the foregoing the Claimant is entitled to the grant of all the reliefs sought in this suit. It is contended that this Honorable is empowered to ensure that justice is done, and the justice of this case is for all the reliefs sought by the Claimants to be granted. It is submitted that justice in this case will be to grant all the reliefs sought by the Claimant and utterly nullify the illegal acts of the 1st, 2nd and 34rd Defendants. On this contention reliance was placed on the case of KENTE v. ISHAKU & ORS (2016) LPELR-40788 (CA) where it was held that substantial justice can only be attained, not by bending the law but by applying it as it is and not as it ought to be. In concluding his argument on this issue counsel urged the court to settle the second issue in favour of the Claimant and all the reliefs sought by the Claimant be granted in other that justice might be done in this case. In concluding his submission counsel urged the court to resolve all the issues in favour of the claimant. In reaction to the originating summons the 1st claimant filed counter-affidavit in opposition to the originating summons. In the counter-affidavit it was stated that the office of the Registrar of Trade Marks encompass the duties and functions of the administration 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. 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 Trademarks. But, the 1st defendant began her career in 1988 with the Office the Registrar of Trade Marks. It was after she had spent seventeen years that the claimant came to the office on posting from Federal Ministry of Justice. In oral submission before the court, counsel for the 1st defendant relied on all the depositions contained in the counter-affidavit and the exhibits attached therein. Counsel also adopted the written address file along with the counter-affidavit. In the written address four issues were formulated for resolution. They are: 2. Whether the Claimant can be heard to complain over a wrong he benefitted from? 3. Whether the administrative duties of the Chief Registrar of the Office of Registrar of Trade Marks has any special statutory protection as one of the ranks in the cadre constituting the Registrar’s Office, and therefore exceptional to other civil servants. 4. On the distinction between transfer and posting 5. Whether the 2st Defendant, having grown through the ranks within the carder is not qualifies to occupy the office of the Chief Registrar in acting capacity, pending any substantive appointment or ratification. ARGUMENT OF ISSUES: 1. ISSUE ONE: Whether the Claimant can be heard to complain over a wrong he benefit from: It is the contention of counsel that exhibit A3 (consisting of two letter which were written in 2000 and 2011 respectively) is manifestly clear as to the existing challenge before and when the Claimant was deployed. He was one of those persons who had imposed themselves for whatsoever, to be redeployed to work in the office of Registrar of Trade Marks. The Permanent Secretary (in highlighted paragraph is Exhibit A3 had at that time requested that the Claimant to be returned back to his parent Ministry. (i.e Ministry of Justice) to no avail. The Claimant’s classification the categories professionals in the civil service cannot take procedure over the general classification as stipulated in the Civil Servant Handbook, especially where there is no apparent instrument purporting to that effect. Assumingly, without conceding that there indeed exist a classification known as pooled and non-pooled professional cadre, the question then is, “at what stage, is one said be categorized pooled and non-pooled professional, and what qualifies him or her to be in that category?” Professional are made by virtue of their educational qualification, and by that qualification they may be employed to any relevant department of the civil service, either as medical personnel, legal personnel etc. if by any means, one acquires specialized training by virtue of job posting, it becomes incumbent on the recipient to show that his or her current posting is grossly inconsistent with his professional qualification not his specialized department experience which any other person in that same department has also advanced to discharge in the cadre. The Claimant in his claim has not shown in his exhibits that his current posting is grossly inconsistent and incompatible with his training as a Legal practitioner, so as to properly notify the 2nd Defendant to appropriately post him to a place relevant to him as a professional. His grievance is merely that his service must begin and end in the office of the Registrar of trade Marks as Chief Registrar. Without agreeing to this opinion, let us even assume he is correct in his position. Then, the question, would now be, “did he indeed being in the Registrar of Trade Marks?” if the answer is in the negative, then he cannot therefore take the benefit of ending his service in the Office of the Registrar of Trade Marks. It indeed our humble reasoning, that pathetically, he cannot take the advantage of those who had begun their services there. So in the circumstance, he should not be heard to cry or complain, so as to benefit from his own wrong. It is trite, that he who comes to equity must come with a clean hand. The legal maxim “Nollus comodum cosperepotest de injuria sua propria” applies suitably in this case. In other words, no one should be allowed to profit from his own wrong. The courts have consistently refused to allow people to claim ay benefit from their own wrong. The courts have consistently refused to allow people to claim benefit from their own deliberate acts of unfairness by trying to exploit or hide under any absurd technicalities. There may be in the law. The senses and sensibilities of equity, fair play, and fairness are always protected and enforced by the courts in all legal agreements or relationship freely entered into or entered by parties themselves - F.B.N. Plc. v. SANGO WUGA (2007) 3 NWLR (Pt. 1031) 230. It will be most inequitable and unfair, if the Claimant thinks he can get the court to force the 2nd, 3rd and 4th Defendants, to allow him remain as Chief Registrar of Trade Marks contrary to the Criteria and qualifications in the Scheme of Service, particularly as his initial imposition to remain there (until he rose to the Zenith grade) had adversely distorted the usual advancement through the ranks of personnel within the cadre in that office over the years. ISSUES TWO: Whether the administrative duties of the Chief Registrar of the Office of Registrar of Trade Marks has any special statutory protection as one of the ranks in the cadre constituting the Registrar’s Office, and therefore exceptional to other civil servants. Although, the Claimant rose to the position of Chief Registrar, his foundation from inception was defective and without recourse to the Scheme of Service 2003. Furthermore, contrary to his claim that his appointment falls within the category of non-pooled professionals, the usual classification in the Civil Service is contained in the Civil Service Handbook, (particularly Section 5). From the Civil Service Handbook, it is clear that the Nigeria Civil Service is structure into four main categories which are: (a) The Administration Class (b) Executive Class and Technical Class (c) Clerical and sub-clerical Classes (d) Junior Technical and sub Technical Class It is therefore wrong to assume or hold that, the category of classification suggested by the Claimant takes precedence over the classification contained in Section 5 of the Civil Service Handbook, particularly where there is no clear reference to any official instrument indicating thus. It is important to also note here that the Claimant was just a Chief Registrar, but also doubled up as the Director of Commercial Law Department, in the Ministry of Industrial, Trade and Investment. By this administrative office as Director, he had garnered several administrative trainings, courses and experience, which makes him relevant in any other administration duties within the civil service. As to the main issue, whether the administrative Office of Chief Registrar has any exceptional statutory protection that makes it different from all other civil servants; or otherwise made it not subject to any posting by the Head of Service, (i.e 2nd Defendant); Section of the Trade Marks Act is instructive. Section 1 provides as follows: “ (1) There shall continue to be an officer 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….. (2) The Registrar shall in the exercise of his functions, other than the taking of any decision which under the Act is subject to appeal to the court, act under the general direction of the Minister. (3) Any act or thing directed to be done by or to the Registrar may be done by or to other officer in the public service of the Federation authorized by the Minister.” From the foregoing, it is abundantly clear that the office of the Registrar of Trade Marks encompasses the specific administrative duties of the Chief Registrar as indicated in pages 51 to 54 of the Scheme of Service. Every other personnel within the ranks in the Cadre of the office of the Registrar, shares in the functions of that office, together with the Chief Registrar, being in the apex rank in the cadre. Every one of them is appointed as registrar, except for the specific duties designated to each of them as prescribed in the Scheme of Service 2003. Their appointment is made subject to the civil mode of postings, removal etc. Section 1 (3) even makes it clear to such extent that any other officer in the public service may be designated by the directive of the Minster to perform the functions of the Registrar. By implication, the Office of the Registrar or even the duties of the Chief Registrar, as the case may be, has no special protection by any provision of law; and therefore cannot be treated differently in terms of posting in the civil service. ISSUE THREE On the distinction between transfer and posting. There is a clear distinction between transfers as contemplated in Section 5 of the Civil Service Rules, (I.e Rules 020501 to 020506 dealing with Transfer and Secondments) and postings done on administration needs and exigencies. The former is purely sought on the application of the officer concerned. While the latter is carried out by 2nd, 3rd and 4th Defendants based on the cogent administrative purpose and needs. When such has been done, it is not within the Claimant’s purview to ascertain whether or not the necessary criteria are met or even protest, as grossly amount to misconduct, particularly for a senior officer of Grade Level 17. Evidence abound of similar postings, from time to time, and it is immaterial whether they were posted on an official website or not, to authenticate the authority, where doubt abounds, it is for Claimant to verily such doubt in the office Technical Class from when it was issued. The import of rule 020506 (ii) as relied on by the Claimant, is to prevent a situation, where profession seeking for transfers, are indiscriminately released from their area of competent relevance, thereby depleting the number of professionals need from time to time; and therefore does not apply to postings done in exercise of administrative discretion. It is submitted that his claims are unfounded and most unreliable, and we pray the Honourable court to so hold. ISSUE FOUR: Whether the Head of the Service cannot affect the posting of any civil servant in the civil service, regardless of any category so called. It is important to note here that subject to modalities prescribed by the Civil Service Commission, each Ministry/Extra Ministerial Office, the Head of Service may be designed to effect any posting on appointment, promotion or secondment from time to time, and such postings are deemed to be regular and in compliance with the Civil Service Rules. So it has never been the sole prerogerative of the Head of Service, as misconceived by the Claimant. ISSUE FIVE: Whether the 1st Defendant, having grown through the ranks within the cadre is not qualified to occupy the office of the Chief Registrar in acting capacity, pending any substantive appointment or ratification. There is no doubt that the Office of the Chief Registrar in the Office of the Registrar of Trade Marks has become vacant by the posting of the Claimant; and there is expressly no clog whatever impeding the 1st Defendant from growing in the ranks pending her retirement or nay other circumstance as may have cause to arise. Pursuant to the Scheme, she is ably positioned act to the stead of the Chief Registrar, pending a substantive appointment. This we want the Honourable Court to so hold. It our submission therefore, 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. In reaction to the originating summons, the 2nd defendant filed a counter affidavit. A written address was also filed in opposition wherein the competency of the claimant’s suit was raised on the grounds stated below:- 1. The Claimant’s case as constituted before this Honourable Court is incompetent and premature; 2. The Claimant’s case can only be commenced in Court after satisfying the requirement of the Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref. No HCS/SPSO/ODD/649277/1; 3. The Claimant failed to satisfy the provisions of Circular Ref. No. HCS/SPSO/ODD/649277/1 when it failed to seek and obtain the permission of the Head of Civil Service of the Federation before proceeding to the Court; 4. Compliance with Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref. No HCS/SPSO/ODD/649277/1; are the condition precedent to institute the Claimant’s case. 5. The Claimant, being subject to the PSR cannot dictate his preferred place of posting, as such is the prerogative of the 2nd and 3rd Defendants, as the case may be. 6. The Claimant’s case is speculative. ISSUES FOR DETERMINATION The issues distilled by the 2nd Defendant/Applicant for determination in respect of this written address are as follows: (1) Whether this Honourable Court lacks the requisite jurisdiction to entertain the Claimant’s case having regard to the obvious fact that the Claimant failed to satisfy the condition precedent to instituting this case as required in Rules 2008; and Circular Ref. No HCS/SPSO/ODD/649277/1; (2) Whether based on the state of facts led in the Affidavit in support of the Originating Summons before this Honourable Court, the Claimants have establishment their Claims to be entitled to the relief sought? ARGUMENT In arguing the issues formulated for determination, counsel answer the question raised in the issue for determination stated above in the affirmative and contended that this Honourable Court lacks the requisite jurisdiction to hear and/or adjudicate on the Claimant’s action as constituted and conceived. According to counsel the ground for the objection is predicated on the obvious principle to wit: (a) In our Legal System, the law is well settled without any authority to the contrary that before a litigant can invoke the judicial powers of this Honourable Court as enshrined in Section 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); three basic principle must be fulfilled by the Applicants. They are:- (i) That the Court must be properly constituted (ii) The subject matter of the suit must be within the jurisdiction of the Court. (iii) The suit must be initiated by due process of law. The authority to this proposition of law is the celebrated case of a Madukolu v. Nkemdilim (1962) 2 SCNLR 341. According to counsel failure to fulfill any of this principle will rob the Court of the jurisdiction to entertain the matter. It is the contention of counsel that the law is trite that where a law requires that certain condition must be fulfilled before the exercise of the Court’s jurisdiction, such conditions must first be satisfied before the case can be said to be properly initiated in Court. To support this position counsel referred to the cases of: Braithwaite v. Grassroots Democratic Movement (1998) 7 NWLR (Pt 577) 307 at 318 CA.; A.G. LAGOS STATE VS DOSUNMU (1998) 6 NWLR PART 111 P. 552 per Oputa J.S.C. at PP556-570 and OMEGA BANK PLC v GOVT OF EKITI STATE (2007) 16 NWLR 1. Counsel also relied on the case of DREXEL ENERGY AND NATURAL RESOURCES LTD. & ORS. VS. TRANS INTERNATIONAL BANK LTD. & ORS. (2009) 15 W.R.N.15. C. per Ogbuagu, J.S.C.P.42, Paras. C-D held thus: “Whether a pre-condition for initiating a legal process is in motion, any suit instituted in contravention of the said precondition provision is incompetent and a court of law lacks jurisdiction to entertain same.” It is submitted that the Claimant’s case as constituted before this Honourable Court is an employer/employee dispute between him and Federal Government. Being an employment with statutory flavor, the Public Service Rules , 2008, Extant laws and Circulars of Federal Government contains the applicable conditions of service and any other stipulations incorporated or deemed to have been incorporated into it that must be referred to and applied in the resolution of the dispute. It is the submission of counsel that Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref. No HCS/SPSO/ODD/649277/1; provide condition precedent that the Claimant is required to fulfill before commencing this case in any Court in Nigeria. The said provisions are herein reproduced for ease of reference: According to counsel paragraph 3 of Circular Ref. No. HCS/SPSO/ODD/649277/1 which is also applicable for resolving dispute between Public Servant and Government provides that: “Accordingly, it is necessary to reiterate that Civil Servants should exhaust all avenues provided in the Public Service Rules and Circulars for redress before taking purely Civil Service matters to the Courts and other external bodies. In doing so, on aggrieved officer must seek and obtain the permission of the Head of the Civil Service of the Federation before proceeding to the Court. Henceforth, any disregard of the rule shall be viewed as an act of misconduct and attract appropriate sanctions.” It is the contention of counsel that based on the provisions of the Public Service Rules and Circular cited above it is not in doubt that Civil Servant including the Claimant must exhaust the internal administrative procedure for appeal in so far as the dispute is on purely civil service matter. Counsel contended that the Claimant’s suit centered on the validity of the posting instruction issued to the Claimant by the 2nd Defendant is purely a civil service matter and contemplated by Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1. Hence the Claimant is bound to adhere strictly to the procedure for appeal before commencing his case in Court. It is the contention of counsel that the Claimant cannot commerce this case seeking to challenge his posting in any Court of law in Nigeria until and unless the Claimant has exhausted the internal administrative machinery provided by the aforesaid Public Service Rules, 2008 particular 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1. It is also contended that the provision of Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1 which required Public Servant including the Claimant to exhaust internal administrative machinery before seeking redress in any Court of law in Nigeria is not in doubt at all we also submit that the Claimant conceded this much when he lamely commenced the procedure for appeal by petitioning the 2nd and 4th Defendant respectively to challenge the posting instruction issued to him by the 2nd Defendant. The said Claimant’s petition respectively dated 29th November, 2017 are annexed and marked as Exhibit PT 1 and PT 2 respectively. It is the submission of counsel that having commenced the procedure for appeal laid down in Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1, it was clear that the Claimant is aware of the procedure for appeal and bound to exhaust this Claimant is aware of the procedure for appeal and bound exhaust this procedure by seeking and obtaining the permission of the 2nd Defendant before approaching this Honorable Court to seek redress on purely Civil Service matter. It is the contention of counsel that even though the Claimant kick started the procedure for appeal laid down in Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref HCF/SPSO/ODD/649277/1, he failed and/or refused to follow the procedure through, by at least seeking for the permission of the 2nd Defendant before approaching this Honourable Court to ventilate his grievance. It is submitted that adherence and compliance with the procedure for appeal laid down in Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1, is required from Public Servant and/or Civil Savant including the Claimant, hence must be fundamentally construed as such before this Honourable Court can be clothed with jurisdiction to adjudicate on the Claimant’s case as constituted and. It is the contention of counsel that a careful examination of the Claimant’s Affidavit in support of the Originating Summons before this Honourable Court revealed that after appealing against the posting instruction, the Claimant did not seek the permission of the 2nd Defendant before commencing this case in this Court. it is contended that it is after the Claimant has at least sought the permission of the 2nd Defendant that he can file his case in this Court. It is submitted that Claimant’s action of rushing to this Honourable Court to file this case without first complying with Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref HCF/SPSO/ODD/649277/1, has rendered the Claimant’s case incompetent and thus pulled the rug off his feet and fettered the jurisdiction of this Honourable Court to entertain the Honourable Court case. The Supreme Court was firm and decisive in appraising the status of the PRS and its supremacy in the affairs of civil servants. The apex Court thus held; per IDIGBE, J.S.C. in the case of BASHIR ALADE SHITTA-BEY V. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR-3056, pages 32-33, paras C-A as follow: “The Civil Service Rules of the Federal Public Service govern condition of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were mode in 1974, pursuant to the provisions of section 160(1) of the 1963 Constitution, Act No. 20 of 1963. These Rules, therefore in my view, have Constitution force and they invest the public servant over whom they prevail, a legal status; a status which males his relationship wit the respondent and the government although one of master and servant relationship. Under these Rules, (i.e the 1974 Civil Service Rules which, as I already pointed out, have statutory force and, therefore, ought to be “judicially noticed”), paragraphs 04107 to removed or retirement which must be adopted in the disciplining of public servants in the establishment pensionable cadre”.(Underlining mine) Applying the above case to the instant case, we humbly submit that Section 169 of the 1999 Constitution (as amended) created the Civil Service of the Federation, while the present Public Service Rules, 2008, having been made pursuant to section 160(1) of the 1999 Constitution (as amended), also has Constitutional force. And drawing strength from the aforementioned case, this Honourable Court is urged to hold that Rules 090101,090102 and 090201 of the PRS 2008 ought to be judicially noticed as they provide the procedure which must be adopted by civil servants before approaching the Court. It is also submitted that the law is trite that competency to institute an action is an essential and core compound in deciding the competence of the action itself. Since the Claimant’s case is most incompetent, it is premature at this adage, and has fettered the jurisdiction of the Court to entertain the Claimant’s case. Counsel contended that it is well-established principle of law that where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from such a procedure is fatal to the enforcement of the remedy see the case of: (i) DONGOTE VS C.S.C PLATEAU STATE (2002) 4 SC PT.II 43 AT 56. (II) MENAKAYA VS. MENAAKAYA (2002) 9-10 SC 1 AT 41-45 According to counsel in the case of CORPORATE IDEA INS. LTD VS. AJAKUTA STEEL CO. LTD & ORS. (20164) 5 S.C.N. 116 AT 136 PARAS d-f, His Lord held that: “Where a statutes clearly provides for a particular act to be done in a particular way, the failure to perform the act as provided will be interpreted as a delinquent conduct and the consequences of non-compliance will follow notwithstanding that the statute does not specifically provided for sanction” (Underlining mine) Counsel also relied on the recent court of Appeal decision on this issue in the case of Hon. Justice HYELADZIRA AJIYA NGANJIWA V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43391. Counsel urged the court to hold that the specific procedure provided in the PSR before Civil Servants should institute actions in Courts, i.e Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref HCF/SPSO/ODD/649277/1, should be respected and complied with. ISSUE 2 ‘’Whether based on the state of facts led in the affidavit in support of the Originating Summons before this Honourable Court, the Claimants have Established their Claims to be entitled to the reliefs sought? It is the contention of counsel that the issue in the negative and respectfully content and submit that having regard to the state of facts led in the Affidavit in support of the Originating Summons in this matter, the Claimant have failed woefully to established his case to be entitled to any relief at all against the 2nd Defendant or any of the Defendant or any Defendants at all. It is submitted that by virtue of Section 1 of the Trade Mark Act, Cap T13, LFN 2004 1967, the 3rd Defendant is empowered to appoint Registrar. The provision of the said section 1 of the Trade Mark Act is reproduced below. It is also argued that the 3rd Defendant follow the scheme of Service for use in the Civil Service of the Federation, 2003 applicable to the Registrar (Trade Mark and Patent) Cadre, for the appointment and progression of Registrar so appointed in the below stated manner: 1.1 Assistant Registrar Grade II - Grade Level 08 1.2 Assistant Registrar Grade I - Grade Level 09 1.3 Senior Asst. Registrar Grade II - Grade Level 10 1.4 Senior Asst. Registrar Grade I - Grade Level 12 1.5 Principal Assistant Registrar Grade II - Grade Level 13 1.6 Principal Assistant Registrar Grade I - Grade Level 14 1.7 Assistant Chief Registrar - Grade Level 15 1.8 Deputy Chief Registrar - Grade Level 16 1.9 Chief Registrar - Grade Level 17 It is submitted that the first appointment letter of persons appointed by the 3rd Defendant as Registrar based on Scheme of Service for use in the Civil Service of the Federation, 2003 applicable to the Registrar (Trade Mark and Patent) Cadre that quality as non-pooled officer within the purview of the Trade Mark Act, 1967 and the Scheme of Service. Thus any officer of the Civil Service claiming to be appointed as Registrar in the Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Trade and Investment must necessarily furnish this Honourable Court with evidence of his appointment as such and respectfully urge this Honourable Court to so hold. The claimant alleged in paragraph 22 of the affidavit in support of his Originating Summons that he was employed into the office of the Registrar of Trade Mark, Patent and Design but did not exhibit his letter of appointment to prove to the Court that the appointment to the aforesaid office was as a Registrar. The said Paragraph 22 is reproduced below: It is contended by counsel for the 2nd defendant that from the above paragraph the statement “the Office of the Registrar of the Trade Mark, Patent and Design into which I was employed” is subjective and may mean different thing to different people. It definitely does not prove that the claimant’s first appointment into Federal Civil Service was as Registrar to have qualified him as a non-pooled cadre based on the Scheme of Service. It is the contention of counsel that having alleged that he is a non-pooled cadre with distinct Scheme of Service because he was employed into the office of the Registrar of Trade Marks, Patents and Designs, the Claimant ought to have place the evidence of his first appointment before his Honourable Court to enable the Court ascertain that indeed his first appointment to the Federal Civil Service is as a Registrar and therefore a non-pool officer who is not subject to the 2nd Defendant’s posting instruction. It is submitted that it is the Claimant’s First Appointment letter that is germane and fundamental to the Claimant’s case which cannot be overlooked as intended by the Claimant. The promotion letter attached as Exhibit CR-PRM 1 which the Claimant wants this Honorable Court to construe as the document that makes him a non-pooled officer is insufficient to determine his case and this Honourable Court cannot help him to say the least. On this issue counsel relied on the case of ASCA BITUMEN COMPANY LIMITED VS HARUNA ISAH (2016) LPELR-40778 (CA) per Tur, J.C.A (Pp 14 -22, Paras B-E) held that: Applying the aforementioned judicial authority to this present action, we most humbly submit that the failure of the Claimant to plead (aver) his first appointment letter and attach same to his affidavit is fatal to his case, as this has deprived this Honourable Court of the vital facts to confirm his employment status in the Federal Civil Service and determine his cause of action. It is submitted that apart from Exhibit CR-PRM 1 which is the promotion letter relied upon by the Claimant and which the Claimant purportedly relied upon to say that he is a pooled officer in the Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Trade and Investment, there is no iota of evidence by way of documentary evidence or otherwise before this Honourable Court to show that Claimant’s first appointment to the Service was as Registrar. In other words, My Lord, the Claimant’s relying on Section 1 of the Trade Mark Act, Cap T13, LFN 2004 to claim that he is a non-pooled officer failed woefully because he has not proved to this court that his first appointment to Federal Civil Service by the 3rd Defendant was as Registrar. It is submitted with respect that this Honorable Court is a Court of record and not a court of divination. Since the Trade Mark Act, Cap T13, LFN 2004 and the Scheme of Service enumerated officers appointed as Registrar, for the Claimant to reply on the said the Trade Mark Act, Cap T13, LFN 2004 and the Scheme of Service and make a case before this Honorable Court that he is a non-pooled officer, there must be evidence in writing that this initial or first appointment was as Registrar and not just relying on promotion letter. It is very unfortunate and a misconception of fact for the Claimant to come before the Honorable Court without more, to seek the relief to be regarded as a non-pooled officer to exclude himself from posting by the 2nd Defendant who obvious has the responsibilities of posting pooled offices. It is submitted that this Honorable Court does not have the power and cannot create or confirm the Claimant on the basis of a promotion of the 2nd Defendant posting instructing as envisaged by the Claimant be ordered to assume office. On this we respectfully refer Your Lordship to the case of DR. ADEOSUN OLUSEYI OLALEKAN VS MANAGEMENT BOARD, UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL (2012) LPELR-20099 CA where the Court held that: “ It is trite law that a contract of service is indeed the following upon which an aggrieved employee must found this case, the court can only interpret and enforce the agreement entered into by the parties and is incapable of making any contract for them. Therefore, the court in construing the relationship of the parties to a written agreement of employment must confine itself to the plain words and meaning which are derivable from their rights and obligations thereunder. Hence the court will not look into any matter outside the terms stipulated and previously agreed upon by the parties to the contract, in determining the respective rights and obligations of the parties.” (Underlining mine) It is submitted that the Claimant’s letter of appointment is the necessary documents to be considered in order to determine whether or not the Claimant is a non-pooled officer in the Trade Marks, Patent and Design, Commercial Law Department, Federal Ministry of Trade and Investment. It is submitted based on the above that the Claimant’s case is speculative and liable to be struck out. See the case of Dr. Ahmed Mohammed Salik vs Alhassan Uba Idris & Ors (2014) Ipelr-22909 (SC) Per Onnoghen, JSC (P.30, paras A-F) Held thus: It is submitted that the determination of the validity or otherwise of the 2nd Defendant’s posting instructing to the Claimant is directly connected to the Claimant’s first appointment letter which deliberately has not been exhibited by the Claimant. Consequently My Lord, the Claimant has not proved his case to be entitled to the reliefs sought and I urge this Honorable Court to so hold. Based on the above foregoing, counsel urged this Honurable Court to hold that the Claimant’s case is speculative and therefore not entitled to any of the reliefs sought from this Honurable Court. Accordingly liable to be dismissed. In view of the forgoing, counsel urged the court to hold that this Honorable Court lacks jurisdiction to adjudicate on the Claimant’s suit as constituted and accordingly grant the 2nd Defendant/Applicant’s prayer by dismissing the Claimant’s case for being incompetent and premature. REPLY ON POINTS OF LAW TO 2ND DEFENDANTS WRITING ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT IN OPPOSITION TO THE CLAIMANT’S ORIGINATING SUMMONS INTRODUCTION The claimant filed a reply on points of law to the 2nd defendant’s written address in opposition to the originating summons. ON ISSUE ONE It is the contention of counsel that it is very saddening and depressing to say the least, when one attempts to understand the rationale for the 2nd Defendant arguments as set out in paragraphs (3,1), (3,17), (3,21), (3,25), the disjunctive and untenable arguments made in trying so hard to make a circular seen like a status or take the place of a statue, and a deliberate attempt to misconstrue the wordings of the provisions of Rules 09101, 09102, and 09201 of the Public Service Rules, 2008 in making them look like they constitute a condition precedent for a citizen of Nigeria to seek redress before a court of law merely because he is in the employment of the Public Service. Counsel then referred to the provisions of Rules 09101, 09102, and 09201 of the Public Service Rules, 2008 and submitted that the entire wordings of the Rules cannot be in its literal meaning be denoted to mean that they serve as a condition precedent to filing as action, or that they have any form of mandatories or compulsiveness intended by them. The wordings of the rule are made prejudice to the right of any person to seek redress in court and more so, the rules are just mere guidelines for the day to day administration of the Public Service and they are not enactment of the Legislature. Counsel referred to the decision in the case of SHELIM & ANOR. V. GOBANG (2009) LPELR- 3043 (SC) where the Supreme Court held Per Adeleke J.S.C (p. 26, paras. B-C) on the Meaning of “condition procedure that: It is submitted that the provision of the Public Service Rules are not Statute and are not even laws, and that is why they are referred to as Rules even by its nomenclature, therefore they do not constitute condition precedent in anyway and the rules in their very wordings do not express them to be condition precedent. Furthermore, the provision of Rule 090101 deals a deadly blow on the 2nd Defendants argument as it is clearly stated that the 4th Defendant is the only one with the right to receive representations in respect of matters relating to appointments (including acting appointments), promotion, transfer and discipline. It is said that the 2nd Defendant is till so unrepentant, that despite the fact that a complaint for their usurping of the 4th defendant statutory powers is pending before this Honourable Court, the 2nd Defendant is still so recalcitrant as to expressly argue before this Court claim that the powers apportioned to the 4th Defendant under the Public Service Rule belong to then even in the face express provision of the Rules. ON ISSUE TWO It is submitted that the 2nd Defendant has raised issues for determination in their written address in support of their Counter Affidavit as follows: (i) Whether this Honourable Court lacks the require jurisdiction to entertain the Claimant’s case having regard to the obvious fact that the Claimant failed to satisfy the condition precedes to instituting this case as required in Rules 09101, 09102 and 09201 of the Public Service Rules, 2008; and Circular Ref. No. HCSF/SPSO/ODD/649277/1? and (ii) Whether based on the state of facts led in the Affidavit in support of the Originating Summons before this Honourable Court, the Claimant have established their claim to be entitled to the relief sought? It is the contention of counsel that the case before this 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 Orchestration, as the very Nature of the creation of the Registrar of Trade marks is Statutory. On this contention counsel relied on the provision of Section 1 (1) of the Trade Marks Act, Cap. 436, LFN 1990. Counsel also referred to the provisions of Rules No. 020503(a) and 020506 (ii) of the Public Service Rules, 2008, and submitted that from the foregoing 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 appointment, posting, remuneration, discipline, of termination of the Claimant 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. It is the contention of counsel 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 the Honourable Court cannot allow same to persist. The Claimant has copiously deposed to facts in his affidavit expressly bringing to the knowledge of the Court the continued state of affairs at the highest level of the Public Service, that has created an impression that the can be flouted with utmost disregard. To support his argument counsel relied on 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: ‘’Non–compliance with mandatory provisions of a statute has the consequences of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere irregularly, but an illegality.’’ It is the contention of counsel that this Honourable Court has a duty to examine the facts of this case and will discover that the argument of the 2nd Defendant is misconceived and the 2nd Defendant has failed to appreciate the legal issues that has arisen from this Suit. In support of this argument counsel relied on the case of A.E.S.S. Ltd. V. AINA ADEOSUN & SONS Ltd. (1993) 5 NWLR (PT.293) 377 at 382 to 383, where the Court held per Oguntade J.C.A. that: “And in Okasfor v. Nnaife (1987) 4 NWLR (pt.64) 129, the Supreme Court emphasized the necessity of looking at the facts and circumstances of each case in order to decide what the competing right of the parties and the justice of each case deserve.” Counsel also relied on the case of MOGHALU v. UDE (2001) 1 NWLR (pt. 693) 1 at 13, where the Court held per Mustapher, J.C.A that: “The Court is bound to consider the case of the parties dispassionately before reaching any decision. It has to hold even balance between the parties. It is the contention of counsel that from all the foregoing legal submission, the Claimant has not just a reasonable but very cogent and germane course of action. In concluding his submission counsel urged the court to reject and dismiss all the arguments and submissions of the 2nd Defendant and grant all the reliefs sought by the Claimant in this Suit. REACTION OF THE 5TH DEFENDANT TO THE ORIGINATING SUMMONS. In reaction to the originating summons, the 5th defendant filed a counter affidavit and a written address in opposition to the originating summons. Abdullahi Abubakar, Esq; counsel for the 5th defendant in arguing in opposition relied on all the averment in the counter-affidavit and adopted the written address as his argument. In the written address twin issues were distilled for resolution they are: 1. Whether from the facts of this case and the affidavit evidence placed before this Honourable Court, the claimant is entitled to the reliefs sought against the 5th Defendant in this suit? 2. Whether the Claimant has a reasonable cause of action against the 5th Defendant in this case? ARGUMENTS/SUBMISSIONS IN SUPPORT OF ISSUE FOR DETERMINATION Whether from the facts of this case and the affidavit evidence placed before this Honourable Court, the claimant is entitled to the reliefs sought against the 5th Defendant in this suit? It is the submission of counsel that the claimant in this case has not made any claim or has not sought any relief against the 5th Defendant. It is trite law that court is not a Father- Christmas. It gives what was asked. In the case of DEINMA MAIGIBO V. CHIEF J.I. OGUDE & ANOR. (2009) LPELR – 8416 (C.A), the court of Appeal stated as thus: “The position of law is that a judge does not grant that which is not sought for or prayed. The court is not a “Father Christmas” or a charitable organization”. SEE ALSO: CARLEN (NIG) LTD V. UNIJOS (1994) NWLR (PT 323) 669 It is the contention of counsel that in determining whether a claimant is entitled to reliefs again a party, the court will not go beyond the Originating process of that claimant. In support of this argument counsel relied on the case of OGUNDIPE V. NDIC (2009) 1 NWLR (PT. 1123) 47. The Court of Appeal in the case of FIRST BANK NIGERIA PLC V. AKPARABONG COMMUNITY BANK LTD & ANOR. (2005) LPELR- 7496 (C.A) stated that the implications of granting relief which is not sought as thus: “It is wrong or erroneous for a court to grant an order or relief, which is not claimed or brought by the party in whose favor the order was made. In the same vein, the court which is not a “father Christmas” or a social welfare institution should not grant to a party an order, or relief or declaration in excess of or outside what he claimed or sought for. The rationale of the rule, which forbids us award by the court contrary to the rule of practice and pleadings, is to avoid surprises during proceeding and to ensure fair hearing to the parties without showing favour to one or the other”. Also in the case of LADOKE & ORS V. OLOBAYO & ANOR. (1992) LPELR -15138 (C.A), the Court of Appeal, per Ubaezonu, JCA, stated thus: “There is no doubt that where a court makes an order which is not claimed or asked for by plaintiff, such an order is made without jurisdiction. Such an order shall not be allowed to operate pending an appeal against it where a proper application for a stay is properly made”. It is the submission of counsel that, considering the facts presented by the claimant coupled with no exhibits attached against the 5th Defendant, the Claimant as the facts adducted by the Claimant is not enough to inure declaratory reliefs against the 5th Defendant. The law is trite that a claim for declaratory relief is an invitation to the court to make a pronouncement as to the legal position of state of affairs. In order to do this, the Claimant must by the strength of his case, furnish the court with a well-established claim backed with facts and laws that bestow such right in him. The Supreme Court in AG RIVERS STATE V AG BAYELSA STATE (2013) 3 NWLR (PT1340) @ 123 specifically at 160-161 PARAS G-B FABIYI JSC stated: “It is basic that in claims relating to declaratory reliefs, as in the instant case, it is for the plaintiff to establish his claim . on the strength of his case and not rely on the weakness of the defence, if any. Declaratory reliefs are not granted on admission by the defendant where the plaintiff fails to establish his entitlement to the declarations by his own evidence”. In furtherance to this the Supreme Court in NWAOGU VS ATUMA (2013) VOLUM 221 LRCN (PT2) PER FABIYI JSC held “A plaintiff who seek declaratory reefs is bound to establish his claim on the strength of his case. He cannot rely on the weakness of his opponent’s case. Consequently the plaintiff must supply the material facts and evidence to back up his case. In other words a plaintiff who seeks declaratory reliefs wins or fails in his case on his own steam, and not because the opposing party did not proffer a strong contention or defence to his case….” It is the contention of counsel that the claimant in this case has not discharged the evidential burden placed on him in a declaratory claims to entitled him to reliefs sought against the 5th Defendant for failure to discharge the evidential burden placed on the Applicant against the 5th Defendant?| ISSUE 2 Whether the Applicant has disclosed a reasonable cause of action against the 5th Descant in this case? In arguing this issue, counsel contended that before a party can be entitles to any relief against another, such party must possess a legal right or cause of action against the adverse party. It is trite law that in determining whether a suit discloses reasonable or cognizable cause of action against a Defendants the court must consider the facts relied upon to support the Originating process and the exhibits attached thereto if any. In this case, the court is to consider the affidavit and exhibits (if any) against the 5th Defendant in support of the Originating Summons in arriving at a decision on whether there is a cause of action and whether same has been properly established. To support this submission counsel relied on the case of EGOLUM V. OBASANJO (1999) 5 SCN 92; OFILI V. CIVIL SERVICE COMMISSION (2008) 2 NWLR (PT.1071) 238 @ P. 253, @ P. 253, PARAS. F- H; NWANKWO V ONONEZE-MADU (2009) 1 NWLR Part 1123 PG 671 @ 700 PARA E-G. In effect, cause of action is the factual situation which gives the Claimant right or locus standi to the judicial reliefs claimed. It is that set of circumstances that give rise to an enforceable claim. Cause of Action consists of two main elements namely: It is the contention of counsel that the Claimant has failed to show by compelling evidence any damages(s) he suffered on account of any action or omission of the 5th Defendant. In OGUNDE V. GATEWAY TRANSIT LTD & ANOR (2010) VOL 28 WRN PG 120@140 LINES 20- 30 the court OF Appeal while replying on the decision of the Supreme Court in CAPITAL BANCORP LTD V. SHELTER SAVING & LOANS LTD (2008) 3 NWLR PT 1020 PG 148 stated thus: “…There must be a wrongly act of a party (i.e the Party sued) which has injured or given the plaintiff a reason to complain in a Court of Law of consequent damage to him….” It is the submission of counsel that this case has not disclosed any dispute or relationship between the claimants and the 5th Defendant and as such no reasonable cause of action is disclosed against him to warrant the invocation of this Honourable Court’s jurisdiction to grant the reliefs being claimed by the Claimant against the 5th Defendant. In ONI V, IGBALAJOBI (2006) NWLR PT. 984 PG 180@ P. 187 PARA B the Court of Appeal relying on the case of ATTORNEY GENERAL OR ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION AND ORS (2005) 6 SCNJ 1 stated thus: “ …for a statement of claim to disclose a reasonable cause of action it must disclose a dispute with the defendant… “See also: A-G., ANAMBRA STATE V. A.G., FED. (2007) 12 NWLR PT. 1047. Counsel submitted that it is trite law that where a claimant fails in his claim to disclose that he has reasonable cause of action, a court of law has no business deciding on the matter. It is submitted that this court has no jurisdiction to grant any relief against 5th Defendant. In ADETONA V. EDET (2001) 3 NWLR (PT.699) PG. 186 @ P. 190 PARAS. E-F the Court of Appeal per OGUNTADE JCA (as he then was) stated thus: “…..It is trite that where a Plaintiff’s claim disclose no reasonable cause of action, a court is without jurisdiction to entertain the suit….” In concluding his submission counsel urged the court to dismiss the Claimants case in its entirely against the 5th Defendant as same is frivolous and baseless. The Claimant has failed to establish the merit of its case against the 5th Defendant. REPLY ON POINTS OF LAW TO THE 5TH DEFENDANT’S WRITTEN ADDRESS The claimant responded on point of law to issues raised by the 5th defendant. Counsel for the clamant submitted that the 5th claimant does not appreciate the essence of this action, hence its misconception. The 5th defendant being the chief law officer of the Federation can be sued in any matter involving government or any of its agencies. It is submitted 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. Section 174 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that: (3) In exercising his powers 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. The 5th Defendant as the Chief Law Officer of this Nation has an extremely major duty to ensure that legal process is not abused. Our laws are not enacted for the sake of frivolity, and thus if the 5th Defendant was diligent enough in its duty, the agencies of Government flouting our laws with reckless abandon will not have had the temerity to do so. But because they conduct themselves as such with no checks legal consequences, it is becoming the modus operandi not to comply with statutory provisions. Counsel also referred to 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.” In concluding his submission counsel urged the court to reject and discountenance the submission of 5th defendant and grant the claimant’s reliefs. NOTICE OF PRELIMINARY OBJECTION BY THE 2ND DEFENDANT. The 2nd defendant apart from filing counter affidavit in opposition to the claimant’s originating summons also filed a notice of preliminary objection dated 23/11/18 and filed on 26/11/18. The notice of the preliminary objection was brought pursuant to section 6(6) (B) of the Constitution as amended, Order 11 of the National Industrial Court of Nigeria (civil Procedure) Rules 2017 and under the inherent jurisdiction of the court. The notice of preliminary objection prays the Court for: 1. An Order of court striking out this suit for lack of Jurisdiction. 2. And FOR SUCH FURTHER ORDER(S) as this Honorable Court may deem fit to make in the circumstance. The grounds for the objection are as follows:- 1. The Claimant’s case as constituted before this Honourable Court is incompetent premature. 2. The Claimant’s case can only be commenced in court after satisfying the requirement of Rule 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: No. HSCF/SPSO/ODD/6492771/1: 3. The Claimant’s failed to satisfy the provisions of Circular Ref: No. HSCF/SPSO/ODD/6492771/1: when it failed to seek and obtain the permission of the Head of Civil Service of the Federation before proceeding to the Court. 4. Compliance with Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: No. HSCF/SPSO/ODD/6492771/1: are the condition precedent to institute the Claimant’s case. The notice of preliminary objection is supported by a 5 paragraphs affidavit and one exhibit. A written address was also filed along with the notice of preliminary objection. Bola Odugbesan, Esq; Director, Federal Ministry of Justice representing the 2nd defendant, in oral adumbration informed the court that he is relying on all the deposition in the affidavit in support. Counsel also adopted the written address as his argument. In the written address a sole issue was formulated for determination. To wit: ‘‘Whether this Honourable court lacks the requisite jurisdiction to entertain the Claimant’s case having regard to the obvious fact that the claimant failed to satisfy the condition precedent to instituting this case as required in Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: No. HSCF/SPSO/ODD/6492771/1? ARGUMENT Counsel began his argument on the issue for determination by answering the question raised by the issue for determination stated above in the affirmative. Counsel contended that this Honourable court lacks the requisite jurisdiction to hear and/or adjudicate on the Claimant’s action as constituted and conceived. In support of this submission counsel stated that the objection is predicted on the obvious principle to wit: (a) In our Legal System, the law is well settled without any authority to the contrary that before a litigant can invoke the judicial powers of this Honourable Court as enshrined in Section 6 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); three basic principle must be fulfilled by the Applicants. They are:- (i) That the Court must be properly constituted. (ii) That subject matter of the suit must be within the jurisdiction of the court (i) The suit must be initiated by due process of law. To buttress his argument counsel relied on the proposition of law in the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341. According to counsel failure to fulfill any of this principle enunciated in this case will rob the court of the jurisdiction to entertain the matter. Counsel contended that it is trite that where a law requires that certain conditions must be fulfilled before the exercise of the Court’s jurisdiction, such conditions must first be satisfied before the case can be aid to be properly initiated in Court. In support of this contention counsel placed reliance in the cases of: (a) Braitwaite v. Grass root democratic Movement (1998) 7NWLR (Pt. 577) 307 at 318 CA.; (b) A. G. LAGOS STATE VS DOSUNMI (1989) 6 NWLR PART 111 P. 552 per Oputa J.S.C. at PP556 – 570. (c) OMEGA BANK PLC v GOVT OF EKITI STATE (2007) 16 NWLR 1. Where the Court held that the jurisdiction of a Court is established when the following condition are met: (i) The subject matter is within the Court; and (ii) There are proper parties before the Court; and (iii) The case comes before the court initiated by due process of law and upon fulfilled of a condition precedent to the exercise of the court’s jurisdiction. Counsel also referred to the case of DREXEL ENERGY AND NATURAL RESOURCES LTD. & ORS. VS. TRANS INTERNATIONAL BANK LTD. & ORS. (2009) 15 W.R.N. 1 S.C per. Ogbuagu, J.S.C P 42, Parac. C-D held thus: “Where a pre-condition for initiating a legal process is in motion, any suit instituted in contravention of the said pre-condition provision is incompetent and a court of law lacks jurisdiction to entertain same.” It is the contention of counsel that the Claimant’s case as constituted before this Honourable Court is an employer/employee dispute between him and Federal Government. Being an employment with statutory flavor, the Public Service Rules, 2008, extant laws and Circulars of Federal Government contains the applicable condition of Service and any other stipulations incorporated or deemed to have been incorporated into it that must be referred to and applied in the resolution of the dispute. It is argued that in the instant case Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: No. HSCF/SPSO/ODD/6492771/1 is a the condition precedent that the Claimant is required to fulfilled before commencing this case in any Court in Nigeria. It is submitted that Paragraph 3 of Circular Ref. No. HCS/SPSO/ODD/649277/1 which is also applicable for resolving dispute between Public Servant and Government provides that: “Accordingly, it is necessary to reiterate that Civil Servants should exhaust all avenues provided in the Public Service Rules and Circulars for redress before taking purely Civil Service matters to the Courts and other external bodies. In doing so, on aggrieved officer must seek and obtain the permission of the Head of the Civil Service of the Federation before proceeding to the Court. Henceforth, any disregard of the rule shall be viewed as an act of misconduct and attract appropriate sanctions.” It is the submission of counsel that based on the provisions of the Public Service Rules and Circular cited above that it is not in doubt that Civil Servant including the Claimant must exhaust the internal administrative procedure for appeal in so far as the dispute is on purely civil service matter. Counsel contended that the Claimant’s suit centered on the validity of the posting instruction issued to the Claimant by the 2nd Defendant is purely a civil service matter and contemplated by Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1. Hence the Claimant is bound to adhere strictly to the procedure for appeal before commencing his case in Court. It is the contention of counsel that the Claimant cannot commerce this case seeking to challenge his posting in any Court of law in Nigeria until and unless the Claimant has exhausted the internal administrative machinery provided by the aforesaid Public Service Rules, 2008 particular 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1. It is argued by counsel that the provision of Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1 which required Public Servant including the Claimant to exhaust internal administrative machinery before seeking redress in any Court of law in Nigeria is not in doubt at all. It is submitted that the Claimant conceded this much when he lamely commenced the procedure for appeal by petitioning the 2nd and 4th Defendant respectively to challenge the posting instruction issued to him by the 2nd Defendant. The said Claimant’s petition respectively dated 29th November, 2017 are annexed and marked as Exhibit PT 1 and PT 2 respectively. It is submitted that having commenced the procedure for appeal laid down in Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1, it was clear that the Claimant is aware of the procedure for appeal and bound to exhaust, this Claimant is aware of the procedure for appeal and bound exhaust this procedure by seeking and obtaining the permission of the 2nd Defendant before approaching this Honorable Court to seek redress on purely Civil Service matter. It is submitted that even though the Claimant kick started the procedure for appeal laid down in Rules 090101,090102 and 090201 of the Public Service Rules, 2008; and Circular Ref HCF/SPSO/ODD/649277/1, he failed and/or refused to follow the procedure through, by at least seeking for the permission of the 2nd Defendant before approaching this Honourable Court to ventilate his grievance. It is the argument of counsel that adherence and compliance with the procedure for appeal laid down in Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref: HCF/SPSO/ODD/649277/1, is required from Public Servant and/or Civil Savant including the Claimant, hence must be fundamentally construed as such before this Honourable Court can be clothed with jurisdiction to adjudicate on the Claimant’s case as constituted and. It is the contention of counsel that a careful examination of the Claimant’s affidavit in support of the Originating Summons before this Honourable Court revealed that after appealing against the posting instruction, the Claimant did not seek the permission of the 2nd Defendant before commencing this case in this Court. It is submitted that it is after the Claimant has at least sought the permission of the 2nd Defendant that he can file his case in this Court. It is argued by counsel that claimant’s action of rushing to this Honourable Court to file this case without first complying with Rules 090101, 090102 and 090201 of the Public Service Rules, 2008; and Circular Ref HCF/SPSO/ODD/649277/1, has rendered the claimant’s case incompetent and thus pulled the rug off his feet and fettered the jurisdiction of this Honourable Court to entertain the claimant’s case. Counsel contended further that the law is trite that competency to institute an action is an essential and core competent in deciding the competence of the action itself. Since the Claimant’s case is most incompetent, it is premature at this stage, and has fettered the jurisdiction of the Court to entertain the Claimant’s case. Counsel submitted that it is a well-established principle of law that where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from such a procedure is fatal to the enforcement of the remedy. See the case of: (i) DONGTOE VS C.S.C. PLATEAU STATE (2001) 4 SC PT. II, 43 AT 56 (ii) MENAKAYA VS. MENAKAYA (2001) 9-10 SC 1 AT 41-45 Counsel referred to the case of CORPORATE IDEAL INS. LTD. VS. AJAKUTA STEEL CO. LTD & ORS. (2014) 5 S.C. N. 116, where it was held that: “Whether a statutes clearly provides for a particular act to be done in a particular way, the failure to perform the act as provided will be interpreted as a delinquent conduct and the consequences of non-compliance will follow notwithstanding that the statute does not specifically provide for sanction” In concluding his submission counsel urged the court to hold that this Honorable Court lacks jurisdiction to adjudicate on the claimant’s suit as constituted and accordingly grant the 2nd Defendant/Applicant’s prayer by dismissing the Claimant’s case for being incompetent and premature. COURT DECSION. I have carefully and painstakingly perused the originating processes commencing this suit, the responses by the defendants as well as the notice of preliminary objection filed by the 2nd claimant alleging that the claimant’s suit as it is presently constituted is premature for non-fulfillment of condition precedent before institution of the suit before the court. It behooves on me to start by resolving the preliminary objection raised by the 2nd defendant, since it is capable of terminating the suit, if it is found that the suit is in fact premature as being alleged. The 2nd claimant’s objection to the jurisdiction of the court to entertain this suit is predicated on non-fulfilment of condition precedent. That is to say non-exhaustion of the internal procedure for laying of complaint by an aggrieved civil servant. Counsel referred to chapter 9 Section 2, Rules 090201(ii), 090202, 090204 of the Public Service Rules and submitted that the claimant has not complied with the procedure in these rules. Consequently, court cannot invoke its jurisdiction to entertain this suit as same is incompetent. According to counsel for the 2nd defendant court has no discretion to invest itself with a jurisdiction denied it by the claimant’s non-compliance with this important condition precedent. It is the submission of counsel that the non-compliance with petition and appeal procedure by the claimant before approaching this court is a serious omission that deprives this court of the jurisdiction to entertain this suit. For the counsel for the claimant the 2nd defendant was acting under gross misconception of law to argue that this court lacked jurisdiction to entertain this suit based on a circular which is not a statute and public service rules which the claimant considers as rules for guidance and does not have the potency of statutory provisions. It is manifestly clear from the position taken by the counsel for the 2nd defendant that the provisions of Public Service Rules on petition and appeals in chapter 9 of the Rules as well as exhibit OHCSF 1, which is the circular on laying complaint by an aggrieved civil servant, will operate as a condition precedent which must be fulfilled by any member of staff in the Public Service before approaching a Court of law for redress or ventilation of his grievance. Counsel contended that the requirement being part of the rules governing employment in the public service is binding on all civil servants and no member shall be permitted to disregard violate it. The Claimant on the other hand is insisting that the provisions of the Rule cannot operate to deny him access to court. It is pertinent to point out here that a law which prescribes condition that have to be fulfilled or complied with before a person can commence or institute legal proceedings against anybody or person does not constitute a denial to access to the court by anyone wishing to do so and is not unconstitutional or inconsistent with the provisions of the constitution see Madukolu V Nkendillim (1962) 1 All NLR 587, this case decided that any condition precedent to the exercise of jurisdiction of a Court must be fulfilled. In other words, where a statute provide for a condition precedent to the commencement of an action, failure or neglect to fulfilled or complied with the condition will deny the Court jurisdiction to hear the matter. In Saude V Abdallah (1989) 4 NWLR (pt.116) 387, the Supreme Court held that proceeding before a Court of law will be regarded as a nullity where the case before the court was not initiated by due process of law, or that there is a condition precedent to the exercise of jurisdiction. The Court also held that there is non-compliance with due process of law when the procedural requirements have not been complied with, or the preconditions for the exercise of jurisdiction have not been complied with. In such a circumstance, the defect is fatal to the competence of the trial Court to entertain the suit. This is because the Court will in such a situation not be seized with jurisdiction in respect of the action see Abakaliki Local Government Council V Abakaliki Mils Owners Enterprises of Nigeria (1990) 6 NWLR (Pt 155) 182 @ 190. The University of Ife V Fawehinmi Construction Co Ltd (1991) 7 NWLR (Pt 201) 26 @ 37 and 38, Nigerian Cement Company V Nigeria Railway Corporation &Anr. (1992) 1 NWLR (Pt. 220) 747 @761, Anambra State Government V Nwankwo & Ors. (1995) 9 NWLR (Pt. 418) 245 @ 256 and 257. It is apparent from the foregoing authorities that for a Court of law to be competent to exercise jurisdiction over a matter all conditions precedents to exercise of jurisdiction must be fulfilled. This has not been disputed by the parties in this case. The only area of dispute is that to the 2nd defendant the provision of Public Service rules on petition and appeal and the circular exhibit OHCSF 1, have imposed condition precedent to be fulfilled before an action can be commenced by the Claimant. While the Claimant on his part is contending that the so called condition precedent is not a condition precedent as it is not statutory provisions which can oust the jurisdiction of this court. For proper appreciation of the position of the law, it is pertinent at this juncture to consider the proper meaning of the word condition and the words condition precedent. In Orakul Resources Ltd V N. C. C. (2007) 16 NWLR (Pt.1060) 270 @ 307, the Court of Appeal define ‘’condition’’ to mean ‘’ a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depend is in the future and uncertain’’. In the same case condition precedent was defined as ‘’one on which delays the vesting of a right until the happening of an event’’. It is clear from the definition of the term ‘condition precedent’ that where a condition precedent for the doing of an act has not been complied with no act subsequent thereto can be regarded a valid. This is because the act to which it is subject has not been done. It is however difficult consideration where the non-compliance relates to a condition not fundamental to the constitutive elements but is subsequent to the act sought to be done. This is because the act is not conditional to the performance of the act not complied with. The last mentioned non-compliance is a mere irregularity. Concisely put where the prescribed the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent act void. Where a statute provide means by which access to remedy should be pursued such remedy must first be sought and exhausted before resort is made to litigation. In other words once the law has prescribed a particular mode of exercising a statutory power any other mode of exercise of it is excluded. See OBIOHA V DAFE (1994) 2 NWLR (PT.325) 157. The 2nd defendant has insisted that the claimant in this suit is duty bound to exhaust the procedure of petition provided in the public service rules before approaching this court for redress and the failure of the claimant to exhaust the remedy provided in the public service rules has deprived or robbed this court of jurisdiction to entertain this suit. The claimant on his part forceful stated that the provisions of the public service rules being relied upon by the 2nd defendant to raise this objection are not statutory provisions capable of ousting the jurisdiction of this court. It is apposite at this juncture to reproduce the provisions of the public service being relied upon by the 2nd defendant to raise this objection in order to see whether they constitute condition precedent to be employed to deprive the claimant access to this court until there is compliance. The provisions read as follows: Chapter 9 SECTION 1- GENERAL 090101 – Every Officer who has any representation of a public or private nature to make to the Government should address them to: (a) The Chairman, Federal Civil Service Commission, in respect of matters relating to appointments (including acting appointments), promotion, transfer and discipline; or (b) The Head of Civil Service of the Federation on matters relating to other conditions of service, e.g leave, passages, allowances, pensions, gratuities, etc.Section 2.- PETITION RULES SECTION 2 – PETITION RULES 090201 – (i) For the purpose of this section a ‘‘petition’’ is a formal appeal to ultimate authority, that is to the Head of Government for special consideration of a matter affecting an officer personally. It must be distinguished from a letter of representation address to an appropriate senior officer of Government in the normal way. (ii) Without prejudice to their constitutional rights, officers should as much as possible exhaust all avenues provided in the public service Rules and Circulars for redress before proceeding to court. 090202 – Petition by an officer (or Ex-officer on matters relating to his/her conditions of an employment as an officer or his/her condition as a pensioner of Government) must be submitted in accordance with the rules set out in this section. 090203 – An officer must not attempt to bring political or other outside influence to support his individual claims. If he/she is dissatisfied, his/her proper course is to make his/her representations to his/her Permanent Secretary/Head of Extra-Ministerial Office. If his/her representations are not successful, it is open to him/her to submit a formal petition to the appropriate authority under rule 090101. Before construing the above quoted provisions of the Public Service Rules, let me dispel the wrong impression being created by the counsel for the claimant on the status of the Public Service Rules, counsel has dismissed these rules as mere rules for guidance and without potency of statutory provisions. The status of Public Service Rules has long been settled by the Supreme Court in the case of FCSC V LAOYE (supra) and OLANIYAN V UNIVERSITY OF LAGOS (supra), public service rules are indeed, rules but rules of a class of its own for having constitutional flavor. They indeed invested the employment of civil servants with statutory flavor putting employment to which is governed by the rules status on higher pedestal than the ordinary contract of service governed by agreement of parties. A proper construction of the above quoted provisions of the public service rules, 2008, which the 2nd defendant relied heavily in raising objection to the jurisdiction of this court to entertain this suit, on the ground of non-fulfillment condition precedent in bringing this action before the court for adjudication. The principle guiding interpretation of statute is that words used must be given their natural and ordinary meaning. Where the words are precise and unambiguous, no more is needed to expound the words in their natural and ordinary sense. It is said that the words of the stature in such a case best declare the intention of the lawmakers. See IBRAHIM V BARDE (1996) 9 NWLR (PT.174) 513. In interpreting statute court is required to be liberal. Where the words are clear and unambiguous, the proper approach is to give clear words of statute is to follow them, in their simple grammatical meaning rather than look further because that is what prima facie give them their most reliable meaning. The court are always enjoined to adopt broad interpretation or what is termed as ‘global approach’ in construction of statute, this will enable court have a holistic approach by considering the whole provisions or the whole statute and not in isolation. This will bring out the true meaning of the provisions as they are considered in context of the case or issue at hand. See SALAMI CHAIRMAN L.E.D.B. 1989 5 NWLR PT183 539, OGBONNA V AG IMO STATE 1992 1 NWLR PT.220 447, NWANKWO V YAR’ADUA 2O10 12 NWLR PT.1209. The use of the phrase ‘without prejudice’ in rule 090201(ii) of the Public Service Rules 2008, clearly shows the limit of the exercise of rights of party affected by the rules. It behooves on me at this juncture to consider the purport of the phrase ‘without prejudice’ and its impact on the right of a party to access to court. The Black’s Law Dictionary, Tenth Edition define ‘without prejudice’ to mean ‘as without loss of any right in a way that does not harm or cancel the legal right or privileges of a party’. This connotes that the right of a party to whom the provisions of public service are applicable is not curtailed and that such right will be an open to settlement by negotiation or legal controversy without let or hindrance. The use of the phrase simply show that even if there has been compliance there has been no decision of the case upon the merits, and prevents in other words it leaves the whole subject as open to litigation as if no proceeding had ever been had in the matter. In the case of NAWA V AG CROSS RIVER STATE ORS. (2007) LPELR-8294 CA, THE PHRASE ‘without prejudice was defined to mean ‘ without affecting any other legal matter’’ also in TUKUR V GOVERNMENT OF GONGOLA STATE NO.2 (1989) NWLR (PT.117) 517, OPUTA JSC (of blessed memory), says: ‘without prejudice’ means ‘not waiving or detracting from’. This means no right or privileges of the claimant are to be considered as thereby waived or lost except in so far as May expressly conceded by him. An examination and appraisal of the whole chapter 9 of the Public Service Rules 2008, will clearly revealed that it was not meant to affect the legal rights of an officer to whom the chapter applies to institute an action or seek redress in a court of law. The provisions of the chapter cannot therefore be used to deprive an officer from having access to court of law for redress of his/her grievances. To my mind the purport of the entire provisions of Chapter 9 of the Public Service Rules and exhibit OHCSF 1 is to endowed on an aggrieved officer in the public service with a choice of either first appealing in line with Chapter 9 of the Public Service Rules 2008 or resort to court of law as in the case at hand for redress. The non-filing or submission of petition as provided for under chapter 9 of the Public Service Rules 2008 or non-seeking or obtaining permission of Head of Civil Service of the Federation cannot serve as a clog to the claimant’s right to access to court for ventilation of his grievance against the defendants. It is my humble view that the use of the ‘phrase ‘without prejudice’ has deprived the provisions of the Public Service Rules 2008 more particularly chapter 9 from being laying down condition precedent to be fulfilled before access to court is allowed. Rather the provisions invested in the claimant discretion to choose either to go through the process of petition for redress of his complain or decide to litigate before a court of law as has been done by the claimant in the case at hand. Where there is a condition precedent for something to be done, it has to be done before any other action is taken. In the case at hand there was no condition precedent laid down to be fulfilled. Therefore, the claimant’s action was properly commenced. In the case of LONGE V. FIRST BANK (2010)3 SCNJ (PT.1) 295 AT 319, The Supreme Court held that:- "When a law vests a right on a citizen a Court of law will resolutely resist any attempt and by whatever method to deny the citizen the enjoyment of the right conferred by law." The implication of what I have been saying above is that the 2nd defendant’s notice of preliminary objection failed and is hereby refused same is dismissed for lacking in merit. Having resolved the preliminary objection I shall now return to the originating summons. It is an age long settled principle of law that claim in an action is circumscribed by the reliefs sought before the court. The duty of a claimant therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. This means that any issue not coming within the reliefs sought will be discountenance for being irrelevant and incompetent. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47: this also is a pointer to the settled principle of law that a defendant in an action is only to restrict his answer to the claim to facts that form his defence and cannot without putting up a counter claim make a case different from the case put forward by the claimant. It is based on this settled principle of law that I shall restrict my consideration of issues to the issues raised by the claimants claim before the court. In all civil matters and proceedings, it is always for whoever is seeking judicial reliefs to adduce cogent, credible and admissible evidence in proof of same in order to be entitled to reliefs being sought. In other words, he who asserts must prove the assertion. See sections 131, 132, 133 and 134 of the Evidence Act, see also the cases of VEEPEE INDUSTRIES LIMITED V COCOA INDUSTRY LIMITED (2008) NWLR (PT.1105) 486, FAJEMIROKUN V GB NIGERIA LIMITED (2-09) 5 NWLR (PT.1135) 588. The requisite proof may be by oral or documentary evidence or even by both. However, documentary evidence is accorded more weight and acceptance by the Court compared to oral evidence, as it serves as yardstick of evaluating oral evidence. See UNIC V UCIC LTD (1993) 3 NWLR (PT.593) 17, FASHANU V ADEKOYA (1974) 6 SC 83. The claimant in the originating summons is seeking for five declaratory reliefs and four other orders which are dependent on grant of declaratory reliefs. The law has long been settled that in an action for declaratory reliefs, the party seeking for declaration can and will only succeed on the strength of his case rather than on the weakness of the case of his adversary, even admission by the opponent cannot assist the case of the claimant. He succeed or fails on the strength of his case. He is therefore required to adduce cogent and credible evidence. See Gonimi v. Buba (2018) LPELR (CA). Curiously enough respecting declaratory reliefs, the fact of an admission will not shield the Claimant from adducing evidence in support of his claims. See the Court of Appeal in Nwekeorie & Anor. v. Anyanwu & Anor. (2017) LPELR (CA) following the decisions in Bello v. Eweka (1981) NSCC Vol. 12 at 48 & Ogolo v. Ogolo (2006)5 NWLR (Pt. 972 173. Thus, notwithstanding the fact that the Defendant in this case has reversed the posting of the claimant that does not translate to automatic judgment in favor of the Claimant. The Claimant must still adduce sufficiently cogent and credible evidence to discharge the onus placed on him. Now, the question to be answered is has the Claimant adduced sufficient evidence in proof of his case to be entitled to the reliefs sought? Claimant sought 5 main declaratory reliefs. The law is trite as the Supreme Court enunciated in Addah v. Ubandaki (2015)7 NWLR (Pt. 1458) that "...the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence." Declaratory reliefs are discretionary remedies which are not granted as a matter of course. They are grantable only on the strength of the case made out by the party seeking the declaration upon adducing of cogent and credible evidence in support of same. See the cases of MTN Nigeria v. Anene (2018) LPELR (CA), CBN v. Amao (2010)16 NWLR (Pt. 1219) 271 at 299-30. The claimant in his attempt to prove his case relied on exhibits CR-PRM 1, OHSF 1, PTI 1, PTI 2, PTI 3, FMITF 1, CIR 1 and OHSF 2. A careful examination of all these exhibits will show that they are public documents. For the documents to be admissible in evidence and have evidential value they must satisfy the requirement of the provisions of the evidence Act on admissibility of documentary evidence. For any document to be admissible in law the document must fulfilled all the conditions of admissibility. The law is well settled that content of documents may be proved either by primary or by secondary evidence. Primary evidence means the original document produced for the inspection of the court. However, in the absence of original document, the law permit production of secondary evidence in proof of content of a document. The secondary evidence of a public document admissible in evidence is a certified true copy of the original document. See ITEOGU V LPDC (2009) 17 NWLR (PT.1171) 614 It is to be remembered that this suit was commenced via originating summons where oral evidence is not allowed. Evidence in proof is via affidavit and exhibits. Therefore, for any exhibits attached to affidavit evidence must be admissible, otherwise the court is entitled to discountenance it or attached to it no evidential value. The court has a duty in law to act only on admissible evidence. It is equally part of the duty of the court to expunge from its record any non-admissible evidence that founds its way into the record of the court. In the case of KANO STATE HOUSE OF ASSEMBLY V the Court of Appeal put the law thus: ‘‘The law is that the document attached to affidavit and especially to originating summons where no oral evidence is taken must fully comply with the requirement of the evidence law to be acted upon by the court. it makes no difference that same are only attached to the motion or originating summons, in so far as they are intended to be acted upon by the court to determine any matter they must meet the requirements of admissibility. Where such documents, as in the instant case, are by their nature public documents they must be certified to be admissible in evidence and or relied upon.’’ It is clear from the above dictum that for any public document attached to an affidavit meant to be acted upon by the court to determine substantive suit, such document must be the original or certified true copy of the original. A photocopy of a public document cannot in law be admissible without certification. The exhibits attached to the claimant’s affidavit in support of the originating summons being photocopies are not admissible in law and the court cannot attached any evidential value to them. In the circumstance I hereby discountenanced all the exhibits attached to the affidavit in support of the originating summons. With the finding that all the exhibits being relied upon by the claimant to advanced his position are inadmissible in law, there is no concrete and credible evidence based on which this court can deploy its interpretative jurisdiction to interpret the provisions of section 1 of the Trade Marks Act and rules 020503(a) and 020506(ii) of the Public Service Rules 2008 for purposes of granting declaratory reliefs being sought by the claimant. There is no evidence before me to the effect that the Claimant is entitled to the declaratory reliefs sought. Consequently, I declare that the claimant’s failure, neglect and or refusal to adduced concrete, credible and admissible evidence has deprived this court with power to exercise its discretionary power to make declarations in favour of the claimants. This also means that the failure of the declaratory reliefs means failure of the other orders which are defendant on the declaratory reliefs sought by the claimant. In the end the claimants failed to prove his case and same is hereby dismissed. Notwithstanding, the dismissal of this suit due to lack credible exhibit to be used in gouging the credibility of the evidence of the claimant via affidavit, I shall consider the merit of the case based on the evidence adduced by the claimant. I decided to do this in case there is appeal, the Court of Appeal will have the views of this Court on case, in case it was found that the exhibits attached to the affidavit of the claimant are admissible in law and have evidential value, which this court much doubt. The claimant’s grouse in this suit centers on the posting handed over to him by the 2nd defendant vide exhibit OHSF 1, to move to the Office of the Head of Service as a Director. Upon receipt of the posting letter, the claimant vide exhibits PT 1, PT 2 and PT 3, protested the posting on the ground that the posting was in breach of statutory provisions. Despite the claimant’s protest the 3rd defendant issued another letter to the claimant exhibit FMIT 1, asking the claimant to hand over to the 1st defendant. According to claimant the office of the Chief Registrar of Trademarks patent and design is a statutory one, and the claimant’s appointment as chief registrar is still subsisting. Claimant insisted that the office of chief registrar of trademarks patents and designs to which he was employed is statutorily created by two Acts of the National Assembly, namely, the Trademarks Act of 1967 and the patents and designs Act of 1971 and the appointment is administratively classified as a non-pooled cadre, with a distinct scheme of service that is based entirely and exclusively on the provisions of two legislations mentioned. The claimant also argued that the 1st defendant move into the office of the claimant in violation of extant laws, regulations, and public service rules. The office was also categorized as non-pooled cadre with distinct scheme of service that is based exclusively on two legislation and the appointment is restricted to Ministry of Industry. Counsel also in reliance on rule 020506(ii) of public service rules argued that posting of the claimant to other organization is prohibited as the claimant is not in the category of officers to be posted by Head of Service as similar postings in the past have been reversed in year 2000. The counsel for the claimant while relying on exhibit OHSF 2, contended that a request for posting of the claimant out of the Federal Ministry of Industry was turned down in year 2011. The 1st defendant in countering the argument of the claimant argued that she began her career in the public service in year 1988 as a Registrar of Trademarks Patent and Design. The claimant was deployed from the Federal Ministry of Justice in 2005 to the Federal Ministry of Industry after she had spent 17 years in service. It was the contention of counsel for the 1st defendant that the claimant did not meet the essential requirement of coming into the cadre of the Registrar when the claimant was deployed in 2005 from Federal Ministry of Justice as provided in the scheme of service (2003). Counsel argued that the claimant is not in a position to complain. The claimant cannot take benefit of law or documents that fault his own mode of entry and advancement in the cadre of Registrar of Trademarks. The 1st claimant also contended that the claimant conceals of how he came into the Registrar of Trademarks cadre and from where he started his career in the civil service. It is the submission of counsel that office of Chief Registrar is created for administrative convenience and does not enjoy any statutory protection. To buttress the position being made by the claimant reliance was placed on exhibit A3 which is a letter requesting for redeployment of the claimant back to the Federal Ministry of Justice his parent Ministry. It is the contention of counsel that claimant did not start his career in the office of Registrar of trademarks provided for by section 1 of trademarks Act. As he was employee of Federal Ministry of justice his occupation of office of Chief Registrar Trademarks is faulty ab initio as it was not in line with extant public service rules and scheme of service. It is contended only persons appointed by the Federal Civil Service Commission into the Registrar cadre that qualifies as non-pooled officers. The promotion letter does not determine such. The claims of the claimant are geared towards the determination of the validity of posting of the claimant from the office of the Chief Registrar Trademarks Commercial Department Federal Ministry of Industry to the office of the Head of Service. Vide section 153, part 1 of the third schedule to the constitution of the Federal Republic of Nigeria as amended, the Federal Civil Service Commission 4th defendant in this case was established for the purpose of appointment, promotion and discipline of civil servant appointed by it into the Federal Civil Service of the Federation. This clearly shows that the constitution has circumscribed the powers of the 4th defendant and restricted it to appointment, promotion and discipline and all these functions are governed by the provisions of public service. For the 2nd defendant it was established by the provisions of section 171(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The office of the Head of Civil Service of Federation is the overall position in the Public service and to which all Federal Civil Servants must accord it respect and loyalty. The office is invested with powers of the general supervisions of all Federal Civil Servants in the country and not restricted to certain Ministries. The issue of posting of Federal Civil Servants is not within the purview of the functions of the 4th defendant it has no say in posting. A careful perusal of the entire provisions of section 1 of the Trademarks Act will unequivocally show that posting and assignment of duties of officers appointed as Registrars of Trademarks under the Act is within the province of the Minister of Industry. A distinction between appointment and posting is very necessary in order to show the limit of each agency of government in the area of service. The appointment to a position is quite different with posting of officers. The claimant has in his averment in paragraph 20 of the affidavit in support stated that he was appointed as Registrar of Trademarks by the federal Civil service Commission. The claimant’s relied on exhibit PMT 1, a letter of promotion from the Federal Civil Service Commission. However, the 1st and 2nd defendants have challenged the assertion of the claimant that his appointment was for the office of Registrar of Trademarks by the Federal Civil Service Commission. The counter affidavits of the 1st and 2nd defendants clearly shows that the claimant was an employee of the federal Ministry of Justice because his coming to the office of Registrar of Trademarks was by posting from the Federal Ministry of Justice in 2005. There is evidence that the claimant was at one time been asked to be redeployed back to Federal Ministry of Justice see exhibit A3 and the claimant’s exhibit PMT 1, which corroborated the deposition of the 1st defendant. It is surprising that the claimant apart from mere denial did not adduced any evidence to rebut the depositions of the defendants contesting his appointment as Registrar of Trademarks, all that the claimant had to support his claim was his letter of promotion. As shown earlier the function of 4th defendant is three fold, appointment, promotion and discipline. In the circumstance for the claimant to be able to convince this court that he was actually appointed to the office of Registrar of Trademarks in line with section 1 of Trademarks Act, he is duty bound to produce his letter of appointment without such a vital document this court is left in the dark as to his actual appointment. Since the claimant has not denied the charge of concealment of facts thus court is left with no option than to refuse the claimant’s claims more so when he has not denied not being on posting from the Federal Ministry of Justice. It is to be noted that letter of appointment is a very crucial document when it comes to the issue of establishing actual appointment to a position. It is a bedrock on which any claimant can lay claim to being employee, without production of such document no employment can be inferred. See ORGAN & ORS. V NIGERIA LIQUIFIED NATURAL GAS LTD& ANOR. (2013) LPELR-20942(SC). In view of the state of the evidence before the court the refusal of the claimant to tender his letter of appointment as Registrar of Trademarks which is the bedrock of his appointment, coupled with neglect to tender or exhibits all his letters of promotions showing how he rose to the position of Chief Registrar when such claim has been challenged and contested by the defendants has failed in his duty of establishing his assertions as required by law. See sections 131 to 134 of the evidence Act. Furthermore, the law is trite that whoever asserts the affirmative or the positive of a fact/issue is the one with the legal burden to prove that issue. This is based on the latin phrase- Ei incumbit probatio qui dicit non qui negat, cum per naturam factum negantis probatio nulla sit which means the proof lies upon him who affirms, not upon him who denies, since, by the nature of things, he who denies a fact cannot produce any fact. See he cases of ELEMO V OMOLADE (1968) NMLR 359, Also in TORNO INTERNAZIONALE NIG LTD & ANOR V FSB INT'L BANK PLC (2013) LPELR- 22775(CA), IMONIKE V UNITY BANK PLC (2011) 5 SCNJ, ABUBAKAR L. ABDULLAHI & ANOR V. HON. YAHAYA SADAUKI & ORS APPEAL (2008) LPELR-3557(CA), AFOLAYAN V ARIYO & ANOR (2014) LPELR-22775(CA), PDP V ALI & ORS (2015) LPELR-40370(CA), ABDULGANIYU V ADEKEYE (2012) LPELR-9250(CA) AND HABU V ISA (2012) LPELR-15189(CA). The claimant having not adduced any credible evidence indicating that the he was appointed as Registrar of Trademarks by the 4th defendant under section 1 of the trademarks Act has failed to discharge the burden of proof. In the circumstance, it is my view that the Claimant is not entitled to the reliefs being sought from the court. For the claimant to discharge the burden of proof in respect of the declaratory and other reliefs being sought concrete, cogent and compelling evidence needs to be adduced. If in fact the claimant’s appointment was that of Registrar Trademarks and not on redeployment from the Federal Ministry of Justice what stops the claimant from tendering or exhibiting such evidence in his affidavits. It is my view that the claimant has failed to prove his case and same is hereby dismiss for lacking in merit. Judgment entered accordingly. Sanusi Kado, Judge.