1IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

DATED THIS  2ND  DAY OF MAY, 2024

SUIT NO: NICN/ AK/03/2023

BETWEEN:

1.     OLUMIDE BABALOLA L.P

2.     OLUMIDE BABALOLA ESQ.                      ……………………  CLAIMANTS

AND

ATTORNEY GENERAL OF THE FEDERATION   ……………………. DEFENDANT

 

REPRESENTATION

O.O Adeniyan for the claimants

Aremo Temilola for the defendants.

 

JUDGMENT

INTRODUCTION

1.      The claimants took out an originating summons against the defendant on 30/1/2023 praying for the following;

1.      A DECLARATION that by virtue of section 254C(2) of the constitution of the Federal Republic of Nigeria,1999,the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS is an international convention enforceable in this honourable court without domestication by the defendant.

2.      AN INJUNCTION restraining the defendant and or his agents interfering with the provisions of supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS in relation to employment and labour issues.

3.      CONSEQUENTIAL ORDER(S) as this honourable court may deem fit to make in the circumstance.

 

2.      The lone question for the determination of the court is as follows;

Whether or not by the interpretation of section 254C(2) of the constitution of the Federal Republic of Nigeria,1999, the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS is an international convention enforceable in this honourable court without domestication by the defendant.

 

CLAIMANTS AFFIDAVIT IN SUPPORT

3.      The summons is accompanied by a 10 paragraph affidavit in support. It is considered necessary to reproduce the entire affidavit hereunder.

I, Funmi Akindipe, female, adult, Nigerian citizen of 21 Oshinle street, Akure, Ondo State do hereby make oath and state as follows’

1.      I am a litigation clerk of the 1st claimant in this suit and I have both claimants’ consent and authority to depose to this affidavit.

2.      On the 15th day of January, 2023, Olumide Babalola, the 2nd claimant – the Managing Partner of the 1st claimant informed me at 1.15p.m. Nigerian time via Whatsapp telephone call from his line 08183645995 to mine – 07036156989 and I verily believed him as follows:

3.      The 1st claimant is a Firm of Nigerian legal practitioners with a business within the jurisdiction of this honourable Court at Suite 3, Peniel Plaza, Ilesha Road, Akure, Ondo State. Attached and marked exhibit 1 is the 1st claimant’s certificate of incorporation.

4.      The 2nd claimant is the Managing Partner of the 1st claimant. Attached and marked exhibit 2 is his practicing fees receipt for 2023.

5.      The defendant is the constitutional Chief Law Officer and a representative of the Federal Government of Nigeria in this suit.

6.      The claimant and its partners are sufficiently and personally interested in the subject matter of this suit based on the following facts:

a.         The claimant and its partners are corporate and individual Nigerian citizens entitled to enjoy right to (informational) privacy which is guaranteed by Section 37 of the Nigerian Constitution.

b.         The 2nd claimant is a legal practitioner, privacy professional, researcher and author of Nigeria’s only law textbooks on data protection. Attached and marked “Exhibits 3 and 4” are cover pages of his textbooks titled “Casebook on Data Protection” and “Privacy and data Protection Law in Nigeria”.

c.         The claimants have built their law practice into a data protection Firm providing (official and unofficial) data protection consultancy services to various private and public bodies and individual clients.

d.         The 2nd claimant was the first Nigerian lawyer to file an appeal bordering on data protection at the Court of Appeal where he successfully moved the Court to make a pronouncement on data protection as an offshoot of right to privacy in the decision in Incorporated Trustees of Digital Rights Lawyers v. National Identity Management Commission (2021) LPELR-55623(CA).

e.         In the past two years, the 2nd claimant has spoken at over 12 local and international events on data protection. Attached and marked “Exhibit 5” is a list of the events.

f.           The 2nd claimant has written over 6 academic articles on data protection published by local and international peer-reviewed academic journals. Attached and marked “Exhibit 6” is a bundle of some of his published academic articles on data protection.

g.         The 2nd claimant has spent considerate personal resources and time in his attempts to develop data protection jurisprudence and legislation in Nigeria. Attached and marked “Exhibit 7” is a copy of his article published in the Nation newspaper on the subject matter of this suit.

h.         The 2nd claimant has advised the Nigerian Bar Association with a draft guide on data protection for lawyers in Nigeria which is currently being considered by the ICT sub-committee under the Section on Business Law of the Association.

i.           The 2nd claimant is one of the Facilitators of the certificate course on data protection organized by the Faculty of Law, University of Lagos in conjunction with the Human Resources Development Centre (HRDC), University of Lagos.

j.           Issues of data protection border on the right to privacy, hence as a Nigerian legal practitioner and privacy professional, the plaintiff is personally and professionally interested in the advancement of data protection since Nigeria has no principal legislation on data protection.

k.         The claimants’ business sustenance and subsistence depend on their ability to give clients proper legal advisory on the status of laws regulating their business in relation to data protection.

7.      The claimants brought this suit because of the following facts:

a.      On the 16th day of February, 2010, Nigeria ratified the Supplementary Act A/SA.1/01/10 on Personal Data Protection within ECOWAS (the ECOWAS Act) at the Federal Capital Territory, Abuja. Attached and marked “Exhibit 8” is a copy of the Act.

b.      Since 2010 Nigeria has refused to domesticate the said ECOWAS Act even though its provisions impact businesses and employments in Nigeria.

c.      From June, 2021 up till January, 2023, the claimants’ corporate clients have repeatedly sought legal advice from the claimants on whether their businesses and employment contracts are bound or impacted by the provisions of the Supplementary  Act A/SA.1/01/10 on Personal Data Protection within ECOWAS.

d.      Since the ECOWAS Act was signed in Abuja in 2010 but yet to be domesticated by the defendant, the claimants wrote a letter to the defendant in his capacity as the Chief Law Officer seeking advice and assurance on the Act. Attached and marked “Exhibit 9” is a copy of the letter.

e.      Defendant received the letter on the 16th day of January, 2023 but refused to accede to the claimants’ request.

f.        The defendant’s refusal to accede to the claimants’ request continues to hamper their business and sustenance.

g.      In the claimants’ professional opinion, the ECOWAS Act is applicable by this honourable Court since it relates to labour and employment in Nigeria.

8.      Owing to the defendant’s refusal to accede to the claimants’ request, the latter suffered the following personal injuries:

                                                              i.      The claimants have lost clientele on the basis of their inability to advice on the status of the ECOWAS Act and its impact on their clients’ businesses.

                                                           ii.      As privacy professionals and consultants, the claimants have been unable to properly advise their (prospective) clients on the impact of the ECOWAS Act on their clients’ business and this has resulted in loss of revenue to the claimants.

                                                         iii.      The claimants’ income from privacy and data protection practice continues to dwindle due to the defendant’s omission to domesticate the ECOWAS Act and it has reduced claimants’ clientele.

                                                         iv.      The claimants’ means of livelihood is dependent on data protection but the defendant’s actions negatively impact their income.

                                                            v.      The data protection industry is valued at over $61 billion worldwide but the plaintiff is unable to maximize their potential to generate income as a result of the defendant’s omission to domesticate the ECOWAS Act.

9.      From the particulars provided above, the claimants believe that a resolution of the questions for determination will:

i.        Avert any immediate or remote constitutional crisis on passing legislation on data protection in Nigeria and this will personally and professionally benefit the claimants as privacy professionals.

ii.   Further develop the jurisprudence on data protection and this will also personally and professionally benefit the claimants as lawyers and advisors.

10.  I depose to this affidavit in good faith, believing same to be true and in accordance with the Oaths Act.

 

CLAIMANTS’ WRITTEN ADDRESS

11.          In his written address, leaned Etisang Solomon adopted the issue for determination and submitted that this suit borders on the provision of Section 254C(2) of the 1999 constitution vis a vis the application of ECOWAS Act. That Section 254C(2) of the 1999 constitution has been interpreted in SAHARA ENERGY RESOURCES LIMITED V MRS OLAWUMI OYEBOLA(2020) LPELR-51860(CA) as empowering the this court to apply International Best Practices in Labour and conventions treaties, recommendations and protocols ratified by Nigeria.

12.          That the ECOWAS Act relates to Labour and employment issues, citing article 1 of the Act on definition of terms and submitted that employees qualify as Data subjects.

13.          He concluded that the ECOWAS Act is contemplated under section 254C(2) of the 1999 constitution.

 

DEFENDANT’S COUNTER AFFIDAVIT

14.          In a 26 paragraph counter affidavit deposed to by Agunbiade Olufunmilayo, an assist chief state counsel in the office of the Attorney General of the Federation, it is deposed that the 1st claimant is a private law firm registered as a business name and not a corporate legal entity.

15.          That there exists no employer and employee relationship between the claimant and the defendant. That the grounds, reliefs and affidavit in support of this application borders on claimants’ perceived loss of income and clientele arising from the non-domestication of the ECOWAS Act relating to personal Data protection.

16.          That the claimant has failed woefully to establish any of his clients who had suffered or had his Data rights infringed.

17.             That unless an international treaty is domesticated, it does not have the force of Law. That this court is empowered to deal with any matter connected with or pertaining to the application of international treaty or conventions on matters relating to labour having been already ratified by Nigeria.

18.          That the claimants’ suit is premature and does not disclose any reasonable cause of action. That the question for determination formulated by the claimant does not arise.

DEFENDANT’S WRITTEN ADRESS

19.                In his written address, learned Awoluyi Oluseun formulated three issues as follows;

a.      Whether the 1st claimant not being a juristic person can maintain action against the defendant.

b.      Whether the claimants pleadings discloses any reasonable cause of action against the defendant

c.      Whether the claimants are entitled to any relief sought in this suit.

20.                   Learned counsel answered all the questions in the negative.

CLAIMANTS’ REPLY ON POINTS OF LAW

21.                   Learned Oladimeji in the reply argued that firma, partnerships and business names can sue and be sued in their firms, partnerships or business names. Counsel relied on the cases of ANSA & ORS V OWNER/MANAGING DIRECTOR RVL MOTORS (2008) LPELR-8570(CA); SOCIO POLITICAL DEVELOPMENT V MINISTRY OF FCT & ORS (2018) LPELR-45708 (SC); IYKE MEDICAL MERCHANDISE V PFIZER INC & ANOR (2001) LPELR-1579(SC) ;ATAGUBA &COMPANY V GURA NIGERIA LIMITED (2005) LPELR – 584;SOCITAL GENERALE FOUNDATION NIG.LTD V EMMOL NIG.ENTERPRISES (2006) LPELR - 11770 and  Order 13 Rule 22 and 26 of the 2017 Rules of this court.

22.                   On whether or not the suit discloses a reasonable cause of action against the defendant, learned counsel submitted that the moment the legal rights of a claimant and the corresponding obligation of the defendant has been set out in the statement of claim, then a reasonable cause of action has arisen.

COURT’S DECISION

23.                   I have considered the question for determination, the reliefs sought, affidavits of the parties and written addresses of counsels. I am of the opinion that the issues for determination are;

1.     Whether the 1st claimant can sue and be sued.

2.     Whether this suit discloses any cause of action against the defendant.

1.     Whether the 1st claimant can sue and be sued.

24.                   The defendant has argued that the 1st claimant is a law firm, a registered business name and so is not a juristic person and cannot sue and be sued and so should be struck out. Claimant counsel relied on a plethora of decided cases and Order 13 Rule 22 and 26 of the 2017 Rules of this court to argue the contrary.

25.                   In GEORGE OBIAMULU v. LARRY OGWUEGO (2020) LPELR-51949(CA) the court of appeal Per ABUBAKAR SADIQ UMAR , JCA stated the generally known principle of law thus;

" It is not in doubt that "P.A. Ogwuche & Associates" was registered as a business name with the Corporate Affairs Commission (CAC) (see Exhibit Cat page 97 of the record of appeal). … A registered business name has no legal personality separate from its owner or owners, neither can it sue or be sued. Rather it is the proprietor or proprietors of the business name that will sue or be sued. If the matter over which the action is instituted concerns the business name, it will simply be indicated that the proprietor(s) is "trading under the name and style of ABC business name." …. However, as the lower Court rightly held at page 10 of the additional record of appeal, the case is still sustainable because the Appellant's other Attorney who sued on behalf of the Appellant as plaintiff at trial is a natural person who can validly institute an action."

26.    The above is but a general principle, the principle admits of exception. In  MR. OBINNA AMAECHI v. ROTECH AUTOMOBILES & ESTATE ENTERPRISES & ORS (2021) LPELR-56681(CA) the court of appeal Per I. B. GAFAI ,JCA  held;

“ Whether a business name can thus sue in its name or own property or interest in property had been a subject of divergent judicial pronouncements until fairly recently. As a general principle, only natural person and juristic person are competent to sue or be sued. Where a Plaintiff is not a legal person, the action is liable to be struck out as incompetent. See Section 37 of CAMA; Agbonmagbe Bank Ltd vs. General Manager G. B. Ollivant Ltd Anor (1961) I All NLR, 116; Shitta vs. Ligali (1941) 16 NWLR, 23.

 

 In 2005 however, the general principle was commendably expanded by the Supreme Court to admit of exception in Ataguba & Co. vs Gura Nig Ltd (2005) 8 NWLR (Pt 927) 429…. The Supreme Court pointed out that there are exceptions to the general rule; where the Rules of Court permit non-juristic persons to sue or be sued. In this connection, reference was made to Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules 1987, which the Court of Appeal relied upon in holding that the Appellant was properly sued in the name of his firm "Ataguba & Co." …

 The provisions of Order 10 Rule 27 of the High Court of the Federal Capital Territory 2004 under which the suit in this appeal was litigated provided in the same language as those in Order 11 Rule 26 of the Kaduna State Civil Procedure Rules.

 Flowing from the Supreme Court's analysis of the provisions of Order 11 Rules 9 and 26 of the Kaduna State High Court Civil Procedure Rules (supra) whose Rule 26 is exactly the same with those in Order 10 Rule 27 of the Rules of the Court below, it is thus beyond argument that the name by which the Appellant in this appeal approached the Court below is one that does not constitute any violence to the jurisdiction of the Court below as it is among the exceptions to the general rule that only natural or juristic persons can sue or be sued."

 

27.          I have read all the cases relied upon by the claimant counsel and find them to be apt and applicable in this case. I have also read  Order 13 Rule 22 and 26 of the 2017 Rules of this court and fine them to be similar with Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules 1987 and Order 10 Rule 27 of the High Court of the Federal Capital Territory 2004 and on the strength of the authority of MR. OBINNA AMAECHI v. ROTECH AUTOMOBILES & ESTATE ENTERPRISES & ORS (2021) LPELR-56681(CA) I make no hesitation in holding that even though as a general principle, only natural persons and juristic persons are competent to sue or be sued, where a Plaintiff is not a legal person, the action is liable to be struck out as incompetent, there are exceptions to the general rule; where the Rules of Court permit non-juristic persons to sue or be sued. Order 13 Rule 22 and 26 of the 2017 Rules of this court provides an exception under which the 1st claimant can sue and be sued in the circumstance as a law firm whose business is allegedly affected. This issue is accordingly resolved in favour of the claimants.

 

2.     Whether this suit discloses any cause of action against the defendant.

28.          In SAVAGE & ORS. V. UWECHIA (1972) 1 ALL N.L.R. (PART 1) 251 AT P.257; (1972) 3 SC. 24 AT P. 221 , Fatai-Williams, J.S.C. (as he then was) said:

"A cause of action is defined In Stroud's Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts, which give rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage”.

29.             In ACCORD PARTY & ORS v. THE GOVERNOR OF KWARA STATE & ORS (2009) LPELR-3584(CA) the court of appeal held;

Now, "Blacks Law Dictionary" 7th Edition by Bryan Garner et al defines cause of action at page 214 as:- "A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person."

30.             For a cause of action to arise, there must be a right and a violation of a right or there must be a disagreement or dispute that is justiceable in court.

31.             To begin with the constitution, section 12(1) of the constitution provides as follows;

12(1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

32.             Section 254C(2) of the constitution as relied upon by the claimant confers exclusive jurisdiction on this court as follows;

254C(2) Notwithstanding anything to the contrary in this constitution, the National Industrial court shall have jurisdiction and power to deal with any matter connected or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace ,industrial relations or matters connected therewith.

33.           It is to be noted that as pointed out by the defendant counsel, section 12(1) of the constitution has a provision contrary to section 254C (2). However, by the provision of section 245C (2), the use of the words ‘Notwithstanding anything to the contrary in this constitution’ means that no contrary provision of the Constitution shall be capable of undermining the said section 245C (2). See MR. PETER OBI v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2007) LPELR-24347(SC)  where the supreme court held;

 

"The word "NOTWITHSTANDING" was judicially considered by this court in NDIC v. Okem Ltd. & Anor (2004) 4 SC (Pt. II) 77; (2004) 10 NWLR (Pt. 880) 107 when at pages 182/183 it reasoned thus: "As has been observed, Section 251(1) of the 1999 Constitution begins with the term "notwithstanding" anything to the contrary contained in this Constitution" while Section 272(1) is specifically made "subject to the provision of S. 251". When the term 'notwithstanding' is used in a section of a statute it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. It follows that as used in Section 251(1) of the 1999 Constitution, no provision of the Constitution shall be capable of undermining the said section."

See also DR. OLUBUKOLA ABUBAKAR SARAKI v. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40013(SC)

33. This makes section 254C (2) of the constitution to supersede section 12(1) of the constitution and a treaty between the Federation and any other country shall have force of law at the National Industrial court when it comes to any matter connected or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified, relating to labour, employment, workplace, industrial relations or matters connected therewith.

34. The words, ”any matter” as used in this section must be understood as “any dispute”. In other words, to activate the jurisdiction of this court under section 254C(2) there has to be a cause of action or a  dispute connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.

35.       The question for  determination of the court as presented by the claimant is;

Whether or not by the interpretation of section 254C(2) of the constitution of the Federal Republic of Nigeria,1999, the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS is an international convention enforceable in this honourable court without domestication by the defendant.

 

36.                   This question can only arise for determination of this court when there is a dispute between parties as to whether or not the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS is an international convention and enforceable in this honourable court without domestication by the defendant. There is no such dispute before this court. No practical situation as to the enforcement of the ECOWAS Act before this court has arisen and so there are no live issues to be determined. This renders claimants’ question one for determination a mere academic, hypothetical and speculative question. This academics and hypothesis or speculation is clearly demonstrated by the claimants paragraph 9 of their affidavit which is herein reproduced for ease of reference;

9.From the particulars provided above, the claimants believe that a resolution of the questions for determination will:

i.                    Avert any immediate or remote constitutional crisis on passing legislation on data protection in Nigeria and this will personally and professionally benefit the claimants as privacy professionals.

ii.                 Further develop the jurisprudence on data protection and this will also personally and professionally benefit the claimants as lawyers and advisors.

37.  When it comes to academic questions or hypothetical questions, the courts have always held that it is an exercise for the class room and not for the busy court room that deals with live issues or disputes. see CHIBUIKE IBE v. THE ATTORNEY GENERAL OF IMO STATE (2022) LPELR-58441(CA) where the court of appeal Per ABUNDAGA ,JCA  held;

It is settled law that Courts do not indulge in wasteful and futile exercise by giving judgment in respect of academic or hypothetical questions:- Kubor & Anor v. Dickson & Ors. (2012) LPELR-9817 (SC), p. 72, para A, Dr. Tunde Bamgboye v. University of Ilorin (1999) LPELR-737 (SC) pp. 37-38 paras E-C, Anyagham v. FBN Plc (2021) LPELR-55905 (CA), pp. 32-34, paras B-A."

38. See also ALAMU & ANOR V. RIJAU & ORS(2021) LPELR-55639(CA) where the court held;

 

"Courts are not set up to consider academic issues or points. In ARDO v. INEC (2017) 13 NWLR (PT. 583) 450, 474-475 Augie, JSC, stated: "What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question. See AGBAKOBA v. INEC (2008) 18 NWLR (PT.1119) 489 at Pp 546-547 paras. H-B where this Court, per Chukwuma-Eneh, JSC, further explained that-: An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. 

39. Relief 1 reads as follows;

A DECLARATION that by virtue of section 254C(2) of the constitution of the Federal Republic of Nigeria,1999,the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS is an international convention enforceable in this honourable court without domestication by the defendant.

 

It is also to be noted that the wordings of relief 1 suggests that the defendant is the one responsible for legislation. The defendant does not domesticate or make laws. A dispute as to the domestication of the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS by the defendant cannot arise between the claimants and the defendant.

 

40.          Relief 2 is for an injunction as follows;

AN INJUNCTION restraining the defendant and or his agents interfering with the provisions of supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS in relation to employment and labour issues.

41.          If anything is to be deciphered from the complaint of the claimants, they complain about the refusal of the defendant to advice the Federal Government to domesticate the supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS as requested in their letter (exhibit 9). If the defendant has a legal duty to so advice and he fails to do so for which the claimants are aggrieved, the prayer should be one for an order of mandamus compelling the performance of that public duty and not one for an injunction forbidding interfering with the Act.

42.          Again, the defendant is not the National Assembly so how can he interfere with the Act remains in the realm of imagination.

43.          Going by prayer two, the simple unanswered question is when and how or in what way is the defendant and or his agents planning or attempting to interfere with the provisions of supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS in relation to employment and labour issues to the detriment of the claimants? In the absence of any deposition as to the defendant planning or attempting to interfere with the provisions of supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS in relation to employment and labour issues, there is no cause of action to warrant this prayer.

44.          For all the above, I find that the claimants have not disclosed any cause of action, let alone a reasonable cause of action against the defendant. This suit lacks merit and is accordingly dismissed.

45.          This is the judgment of the court and it is entered accordingly. Each party to bear its cost.

 

 

………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE