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RULING/JUDGMENT. The Claimant commenced this action via a Complaint dated 12th day of August 2017 and filed on 11th day of August 2017, at the Registry of this Court in Abuja Judicial Division. Upon being served with the Originating Court processes, the 1st Defendant filed a notice of Preliminary objection dated and filed on 29/8/2017, praying for an order striking out this suit for being incompetent and for lack of jurisdiction. The grounds upon which the notice of preliminary objection is being raised are:- 1. The Originating Processes is not in conformity with the Rules of this Honourable Court. 2. The action is statute barred by reason of section 2(a) of the Public Officers (Protection) Act, 2004. The notice of preliminary objection was brought pursuant to Order 3 Rule 10 & 21(2), Order 17 Rule 1 (1) and Order 18 Rule 2(2) & (4) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the Court. The application is supported by a 5 paragraphs affidavit. The 1st Defendant also filed a written address which was adopted by Counsel as argument on the preliminary objection. The 2nd, 3rd, and 4th defendants also filed a notice of preliminary objection dated 10th day of November and filed on the same day, praying for: 1. An order dismissing this suit on the ground that it is statute barred 2. An order striking out this suit on the ground that it is incompetent having been commenced upon a defective pre-action notice contrary to the provisions of the National Information Technology Development Agency Act 2007, (NITDA). 3. An order striking out this suit on the ground that this Honorable Court lacks Jurisdiction to entertain the suit which has not been commenced by due process of law. 4. An order striking out this suit on the ground that the Claimant seeks to enforce an exercise tainted with illegality by violating the extant statutory provisions. 5. An order striking out the name of the 4th Defendant/Applicant on the ground that he has no legal capacity to be sued and assuming and not conceding that he has legal capacity to be sued, he was not served with the mandatory pre-action notice under section 27 (3) of the NITDA Act. The grounds of the preliminary objection are stated thus: I. That the suit of the Claimant was commenced after three months statutory limit under the Public Officers Protection Act, CAP P41, Laws of the Federation of Nigeria, 2004. II. It is a mandatory requirement for any intending plaintiff/claimant under the NITDA Act to serve the NITDA with a pre-action notice stating the name and place of abode, particulars of claim and the intended reliefs. III. The letter of the Claimant dated 10th July, 2017, served on the 2nd Defendant did not clearly and explicitly state name and place of abode, the particulars of claim and the reliefs to be sought by the Claimant. IV. The failure to clearly and explicitly state the place of abode, particulars of claim, the intending plaintiff (claimant) and the reliefs to be sought as required by Section 27 (4) of the NITDA Act, 2007 is a fundamental defect. V. The fundamental defect in the Claimant's letter which is a condition precedent has rendered this suit incompetent. VI. The Claimant's suit has not complied with mandatory provisions on commencement of the suit under the Rules of Court which requires that a schedule of documents shall accompany the Statement of Facts. VII. The purported recruitment exercise involving the Claimant was conducted in contravention of the statutory provisions of the Federal Character Commission (Establishment) Act, 1995 and the Federal Government Public Service Rules, 2008 and the NITDA Act. VIII. The 3rd Defendant/Applicant joined in the suit was not served with any pre-action notice. IX. The 4th Defendant/Applicant is not a juristic person. The 2nd, 3rd and 4th Defendants brought their notice of the preliminary objection pursuant to Order 17 Rule 1 (1) & (4), Order 18 Rule 2 (2) of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017 and the inherent jurisdiction of the Court. The application is supported by a 14 paragraphs affidavit. In line with the Rules of this Court a written address was filed along with the preliminary objection. Counsel relied on all the averments contained in the affidavit in support and adopted the written address as his argument on the application. It is to be noted that the Claimant separately filed counter-affidavit to each of the two notices of preliminary objections. I shall now review the submissions of Counsel on their argument for and against the two preliminary objections. ARGUMENT ON THE PRELIMINARY OBJECTION OF THE 1ST DEFENDANT Counsel for the 1st Defendant identified two issues for determination, to wit: 1. ‘‘Whether the originating process is in conformity with the rules of this Honourable Court’’. 2. ‘‘Whether the action is not statute barred to vest the Honourable Court with Jurisdiction in view of section 2(a) of the Public Officers Protection Act, 2004’’. It is the submission of Counsel that the writ of summons is an originating process of the Court in a civil action. It is a very fundamental process in any civil action as it goes to the very root of the entire proceedings. As such any defect in the writ affects the entire proceedings of the action. In support of this submission Counsel relied on the case of Ewukoya & Anor v. Buari & ors (2016) LPELR-40492(CA). Counsel further submitted that Order 3 Rule 10 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 set out the format of complaint to be filed before the court as in Form 1. It is the contention of Counsel that a critical look at the complaint filed by the Claimant in this suit appears to be different from Form 1 of the rules of this Honourable Court. The 1st Defendant is of the view that what was filed as complaint before this Honourable Court appears to be the form of a Writ of Summons provided for by the Civil Procedure Rules of the FCT High Court. Counsel submitted Rules of Court are not mere Rules for fun subject to the wishes and discretion of Parties; they exist to be complied with. On this submission Counsel relied on the case of Owners of the M/V Arabella" v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (pt. 1097). Counsel also relied on the case of Abia State Transport Corporation & Ors v. Quorun Consortium Ltd (2009) Vol. 172 LRCN Page 134 at 137 Ratio 2. Counsel further submitted that the Originating process did not conform to Order 3 Rule 9 (b) of the Rules of this Honourable Court in not attaching a list of witnesses to be called. Hence, he is in breach of clear statutory provisions which he is bound to comply with. It is the submission of Counsel that the originating process filed in this action is incompetent and should accordingly be dismissed, ISSUE 2. In arguing issue 2 Counsel for the 1st Defendant/Applicant contended that jurisdiction is fundamental to the competence of the of the Court adjudication of a matter and where the Court lacks the jurisdiction to determine issues between parties seeking to avail themselves of its process by reference to the subject matter or parties between whom the issues are to be determined or the kind of relief sought, or any combination of these factors, proceedings thereto remain a nullity however well conducted and brilliantly decided. On this submission Counsel relied on INEC v Ogbadigbo Local Government & Ors. (2015) 9 SC 122 at 143 D; R. T. Hon. Emeka Ihedioha & Anor. v Owelle Rochas Anayo Okorocha & Ors. (2016) 1 NWLR (PART 1492) 147 at 183 C; Kalio v Daniel (1975) 12 S.C 175. Counsel referred to Section 2(a) of the Public Officers Protection Act, 2004 and submitted that when there is limitation period, such period is determined by looking at the Complaint and the Statement of Claim, which alleges when the wrong was, committed giving rise to the cause of action and comparing it with the time when the matter was commenced, that is, when the Complaint was filed. Counsel contended that on account of time this suit was filed, the above cited provisions of the Public Officers (Protection) Act 2004, divest this Honourable Court of jurisdiction to entertain it. The suspension and subsequent termination of the complainant’s employment with the 2nd Defendant was done on February 9th 2016 and March 31st 2017, respectively. But this action was filed on 11th August 2017. In Jibo V Ministry of Education & Ors. (2016) LEPLR-40616 (CA), Court of Appeal held that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action where an action was filed within the prescribed three months period anything short of that is bound to fail. In concluding argument Counsel urged the Court to uphold the objection. THE CLAIMANT’s RESPONSE TO THE 1ST DEFENDANT’S PRELIMINARY OBJECTION. In opposing the preliminary objection the Claimant filed a 4 paragraphs counter-affidavit and a written address. Counsel for the Claimant relied on the averments contained in the affidavit in support and adopted the written address as his argument. Counsel identified lone issues for determination, to wit: ‘‘Whether the Claimant’s action is incompetent and statute barred’’. In arguing the issue for determination F. D. Esume, Counsel for the Claimant submitted that the originating process filed by the claimant complied substantially with the provisions of Order 3 Rules 9 and 10 of the National Industrial Court Rules of 2017. Counsel further submitted that all the accompanying documents as specified under the aforementioned Order were all attached to the originating process. Counsel submitted that the submission of Counsel for the Claimant to the effect that list of documents to be relied upon at the trial was not attached to complaint is not correct. Counsel submitted that the list of documents including name of witness to testify at the trial were attached to the complaint. Counsel posited that may be Counsel is expecting a lorry load in a simple and straight forward case like this. It is the submission of Counsel that the originating process is in total conformity and compliance with Order 3 Rules 9 and 10 of the National Industrial Court Rules 2017. It is the contention of Counsel for the Claimant that the originating process complied with the relevant provisions of National Industrial Court Rules 2017. Counsel further submitted that Order 3 Rule 21(1) of the National Industrial Court Rules 2017 provides, "where a claimant fails to comply with Rules 7, 8 and 9 of this Order, as the case may be, the claimant's originating process shall not be accepted for filing by the registry", it is the contention of Counsel that the effect of this rule on the originating process that was filed by the claimant is that it complies with all the relevant provisions of the National Industrial Court Rules 2017, otherwise it would have been rejected. Counsel submitted that it is settled and it is a maxim of equity that equity looks at the substance and not the form. Counsel submitted assuming without conceding that the claimant's action is not in total conformity with the form of action at the National Industrial court, it would not affect the competence of the suit in so far as there is substantial compliance with the contents of a complaint. On whether the action is not statute barred to vest the Honourable court with jurisdiction in view of section 2(a) of the Public Officers Protection Act, 2004; Counsel for the Claimant submitted that the action is not statute-barred. According to Counsel the action being complained of took effect from 12th day of May 2017. Counsel contended that the claimant's appointment as a Senior Scientific Officer was terminated on 12th day of May 2017, the very day he signed and collected the letter of termination of his appointment. Counsel contended that the Claimant would not be expected to complain when there was no act, neglect or default done to him. There is no way the claimant would have known that his appointment has been terminated when there was no letter conveying such development to him. Counsel submitted the letter dated 9 February 2016, in which the claimant was directed to 'stop work' without any justifiable cause and against Public Service Rules of the Federal Republic of Nigeria 2008 edition is not the main act, neglect or default being complained of. This is because it is the letter of stop work that culminated in the act, neglect, default being complained of in the present action. It is the contention of Counsel that the substratum or the fulcrum of this action is the termination of the claimant's appointment which took effect on 12th May, 2017. Counsel submitted that the Claimant's action which was filed or instituted on 11 August 2017 is within the time frame stipulated under section 2 (a) of the Public Officers Protection Act, 2004. Counsel went on to submit that assuming but not conceding the fact that the action was commenced later, that is after expiration of the three months from the date of the termination of the claimant's appointment until when the action was filed or commenced, it is submitted that the Defendant's letter of 20th day of July 2017 has given life to this issue and has automatically revived the claim with a new life line. The law in this regard was enunciated in the case of NIGERIA ASSOCIATION OF GENERAL PRACTICE PHARMACIST EMPLOYERS V PHARMACISTS COUNCI OF NIGERIA & ORS (2013) LPELR 21834 where it was stated, "where a statute of limitation is applicable to spell out time frame within which am action can be commenced by an aggrieved party, the said time will only begin to run from the date of the last act of the respondent, either by conduct or design, which can be interpreted to have reopened the cause of action. This is so because a fresh entertainment of complaint to suggest admission of the act, neglect or default that constituted the cause of action can give fresh life to the dispute and new life line". Counsel submitted that the Defendant's letter of 20th July 2017 which invited the Claimant for amicable settlement of the dispute has made the said time to begin to run from the date of the last act of the Defendants. The last act of the Defendant before this action was instituted was on 20th day of July 2017. Therefore, the said time started to run from 20th day of July 2017. It is the contention of Counsel that the action is not statute barred by reason of section 2 (a) of the Public Officers Protection Act, 2004. ARGUMENT ON THE 2ND 3RD and 4TH DEFENDANTS PRELIMINARY OBJECTION. Mr. Emeka Izime, Esq; Counsel for the 2nd 3rd and 4th Defendants informed the Court that he has filed a preliminary objection on 10/11/17, pursuant to Order 17 Rule 1(1) & (4), Order 18 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Counsel went on to submit that the application is supported by an Affidavit of 14 paragraphs deposed to by one Amaka Okereke. Attached thereto are Exhibits A and B. Counsel relied on all the depositions in the affidavit and the exhibits attached thereto. Counsel also adopted the written address filed along with the preliminary objection as his argument. Counsel submitted five issues for determination, as follows:- 1. ‘‘Whether or not the Claimant's suit is statute-barred? 2. ‘‘Whether or not the Claimants' suit commenced upon a defective pre-action notice is competent? 3. ‘‘Whether or not this Honourable Court has jurisdiction to hear and determine this suit which was not commenced by due process of law? 4. ‘‘Whether or not the Claimants' suit seeking for the enforcement of an inconclusive and unlawful recruitment exercise that contravenes extant statutory provisions is not contrary to public policy? 5. ‘‘Whether the 4th Defendant/Applicant has juristic personality and whether or not the 3rd Defendant/Applicant was served with any pre-action notice’’. Arguing issue one Counsel submitted that Section 2 (a) of the Public Officers Protection Act, CAP P41, Law of the Federation of Nigeria, 2004 is to the effect that an action against a public officer shall not be instituted unless it is commenced within three months from the time the cause of action arose. Counsel cited the case of LAFIA LOCAL GOVERNMENT Vs. GOVERNOR NASARAWA STATE (2012) 7 SCNJ 648 @ 680, where the Supreme Court held that: "The aggrieved party is expected to file his action within the time stipulated by the limitation law. If the time stipulated by the limitation law is 3 months, the action must be filed before three months from the date the cause of action accrued". Counsel contended there is a long line of decided cases showing that the calculation of the time barrier is simply by looking at the time the act complained of in the suit occurred as per the statement of claim and the time the suit was filed. In the case of FAROLY Vs. ESTABLISHMENT (2011) 5 NWLR (pt. 1241) p. 457 @ 479, the Court of Appeal held that: "Time begins to run for the purposes of limitation law when the cause of action arose; that is when there is in existence a person who can sue, and another who can be sued and when all facts have happened which are material to be proved to entitle the plaintiff to succeed". Counsel also referred to the case of YARE Vs. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) 12 NWLR (pt. 1367) 173 @ pp. 191 – 192, where the Supreme Court held that the Appellant relieved of his employment had a choice to quickly enforce his right by going to court to ventilate his grievances. He elected to sleep away. He woke up late to allege that he was waiting for the outcome of his appeal before the Senior Staff Committee of the respondent. The excuse was not only untenable, but an afterthought. Counsel submitted in the instant case, It is clear in paragraph 8 of the statement of claim/facts of the Claimant that he was served with the letter of termination of his appointment dated 31st March, 2017. That was when his cause of action arose and that was when time began to run for the purposes of Public Officers Protection Act. However, the Claimant went into a deep slumber from the beginning of April, 2017 up to 10th July, 2017, a period of more than 100 days when he wrote a letter to the 2nd Defendant. The 2nd Defendant invited him for settlement. The 2nd Defendant insisted at the meeting that the appointment of the Claimant stood terminated but would pay him some monetary benefits, which he rejected. Counsel submitted that it is pertinent to note that the letter of the 2nd Defendant to the Claimant was marked "without prejudice" which means it will not affect legal position of the parties. Counsel contended that bearing in mind the test of when time begins to run as stated in the case of FAROLY Vs. ESTABLISHMENT, all the facts which are materials to be proved to entitle the plaintiff to succeed are the ones that happened as at 31st March 2017. Counsel contended that the letter of the Claimant’s Counsel dated 10th July 2017 is extraneous. It cannot be said to be material for the success of the Claimant. Counsel also contended it cannot by any imagination be considered to have renewed his cause of action. Counsel also submitted that it is glaring that the Claimant filed this suit on 11th August, 2017 more than 130 days after the cause of action accrued which is outside the statutory limit. Counsel urged the Court to so hold and resolve this issue in favour of the Applicants and dismiss the case of the Claimant. Counsel cited the case of GOODWILL CO. LTD Vs. CALABAR CEMENT CO. LTD (2010) 16 WRN 108 @ 141, where the Court of Appeal held that: "Where an action is held to be statute-barred, the proper order to make is that of dismissal and not striking out the action". In advancing argument on issue two, Counsel submitted that the starting point when dealing with a matter governed by a statute is to look at the statute. It is a settled law that where a statute prescribes method of doing an act, that method and not any other must be followed. On this submission Counsel relied on AMAECHI Vs. INEC (2008) vol. 158 LRCN p I @232, ratio 61 where the Supreme Court stated that: "The principles as to compliance with the requirement of the law is that, where a statute has made provisions for the steps to be taken, no other steps than those prescribed, must be followed". Counsel also relied on INAKOJU Vs. ADELEKE & ORS (2007) Vol. 143 LRCN p.I @174 ratio 66. Counsel referred to Section 27 (3) of the NITDA Act and submitted that the section makes it mandatory for any intending plaintiff to serve NITDA with pre-action notice before filing any action against it. Furthermore, sub-section 4 of the same section 27 provides that: "The Notice referred to in subsection (3) of this section shall clearly and explicitly state (a) the cause of action; (b) the particulars of the claim; (c) the name and place of abode of the intending Plaintiff and the (d) relief which he claims". . Counsel submitted that there is plethora of decided cases that where a pre-action notice is required by a statute failure to serve it renders the action incompetent. Counsel referred to the case of MOBIL PRODUCING NIG LTD Vs. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (Pt.798) 1 @ 36 – 37, where the Supreme Court held that: "A suit commenced in default of service a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit". Counsel also referred to the decision of this Hon. Court in the case of EDMUND Vs. NIGERIAN CUSTOM SERVICE BOARD (2014) 48 NLLR (Pt.157) 401 @ 434. Counsel submitted that in the instant case, the Claimant did serve the 2nd Defendant with a letter captioned" "WRONGFUL TERMINATION OF APPOINTMENT" dated 10th July, 2017. The said letter did not clearly and specifically state the place of abode of the Claimant, the particulars of claim and some of the reliefs sought in this suit. The letter fell short of clearly and explicitly meeting the requirements of Section 27 (4) of the NITDA Act, 2007. The general statement by the Claimant that he would proceed to a court of law to seek for remedies is vague. Counsel submitted that the vague statement in the said letter did not and cannot be said to satisfy the requirement of the NITDA Act to "clearly and explicitly" mention or state the name and place of abode of the Claimant as well as his particulars of claim and the reliefs he would seek. Counsel also contended that the reliefs claimed in this suit are at variance with the said letter. Counsel submitted in the circumstances, the Applicants have been misled as to the action of the Claimant. Counsel submitted the decision of this Court in the case of OBIDIKE & ORS Vs. MINISTER OF LANDS, HOUSING AND URBAN DEVELOPMENT (2016) 65 NLLR p. 206 @ 287, that: "Non-compliance with the statutory form would not invalidate such form once the non-compliance is not material and is not calculated to, Counsel submitted that the instant case is distinguishable from that of OBIDIKE. The provision Section 20 (2) of the Federal Airports Authority Act under which Obidike's case was determined is not in pari materia with the provision Section 27 (4) of the NITDA Act, 2007. In Obidike's case the alleged defect was that the notice was signed by a learned Silk who by the provisions of the Legal Practitioners Act is precluded from acting as a solicitor. This Hon. Court held that signing was not a requirement of the relevant statutory provision and in any event, the LPA was not the applicable law in the instant case, the non-compliance is substantial and has misled the Applicants in that the reliefs he now claims in this suit are at variance with his solicitor's letter. Counsel contended in view of the foregoing, the Claimant has not satisfied a fundamental condition precedent thereby rendering his suit incompetent. Counsel urged this Hon. Court to so hold and strike out the suit. ISSUE 3: "Whether or not this Honourable Court has jurisdiction to hear and determine this suit which has not been commenced by due process of law?" In arguing issue 3, Counsel for the 2nd 3rd and 4th Defendants submitted that one of the determining factors of whether or not a court has jurisdiction to entertain an action is that the action must have been commenced by due process of law. Counsel relied on the case of RIVERS STATE GOVT. Vs. SPECIALIST KONSULT (2005) LRCN Vol. 125 p 779 @ 816 ratio 17. Counsel further submitted that it is well-settled that where a statute prescribes a method of doing an act, that method and not any other one should be followed. On this contention Counsel relied on the case of INAKOJU & ORS Vs. ADELEKE & ORS (supra) @ 174 ratio 66. He also relied on the decision of this Hon. Court in the case of EDMUND Vs. CUSTOM SERVICE BOARD (supra) @ 434. It is the contention of Counsel that in the instant case the Claimant/Respondent decided to commence the suit in his own way disregarding the laid down procedure under Section 27 (3) and (4) of the NITDA Act. The implication of this violation is that the Claimant's suit has not been commenced by due process of law thereby divesting this Honourable Court of jurisdiction to entertain it. Counsel contended that where a suit has not been commenced by due process of law, its hearing and determination amounts to an exercise in futility because the proceedings will be a nullity no matter how well-conducted. It is also the contention of Counsel that the Claimant has not complied with the requirement of Order 3 Rule 11 (1) of the National Industrial Court of Nigeria Civil Procedure) Rules, 2017 which makes it mandatory for the Claimant to file along with his claim a schedule of all documents and exhibits to be relied upon at the trial. Counsel submitted that Rules of Court are not made for decoration purposes. They are meant to be obeyed. On this Counsel relied on the case of AGBAKOGBA VS INEC (2009) All FWLR pt. 462 P 1037 @ 1072 ratio 4 paras. C - E. Counsel submitted that it is the law that where a rule of practice is breached, the party wishing to challenge the irregularity should raise objection timeously before taking any step in the proceedings. Reliance was placed on the case of AGBAKOGBA VS INEC (supra) @ 1072 ratio 4 paras C - E. Also the case of SAUDE VS ABDULLAHI (1989) 4 NWLR (pt. 116) p. 387 @ 404 and 432 ratio 5 and 10, was cited. Counsel contended in the instant case, the Defendants/Applicants entered a conditional appearance and brought this preliminary objection before taking any step in the suit. The Defendants, therefore, acted timeously. ISSUE 4: "Whether or not the Claimant's suit seeking for the enforcement of an unlawful recruitment exercise that contravenes extant statutory provisions is not contrary to public policy and tainted with illegality?" On issue 4, Counsel argued that the law is well settled that no court will lend its aid to a man who founds his cause of action upon an illegal/immoral act. The principle is based upon public policy considerations as expressed in the Latin Maxim: "exturpi causa non oritur actio". On this submission Counsel relied on the case of PAN BISBILDER (NIG) LTD Vs F. B. N. LTD (2000) 74 LRCN p. 109 @ 125 ratio 4 and also the case of ALAO Vs. A.C.B. LTD (1998) 56/57 LRCN 3209 @ 3228 & 3229 ratio 1 & 2. Counsel went on to submit that in the case of AGIP Vs. AGIP (2010) 1 SCNJ p. 1 @ 48, the Supreme Court held that: "Illegality once brought to the attention of court overrides all other questions and the court would not close its eyes against such illegality. Neither will the court lend its aid to the perpetrators of any illegality". Counsel submitted that the test for illegality of a transaction is that where a statute provides for a penalty on the transaction. Counsel referred to section 14 (3) (b) and (c) and (4) of the Federal Character Commission (Establishment) Act, 1995 makes contravention the provisions of the Act and rules and regulations there under an offence punishable by fine or imprisonment or both under Section 15 of the Act. Counsel submitted that it should be noted that the Federal Character Commission withdrew its certificate of waiver granted to the Defendant due to some infractions in the purported recruitment exercise. It is further submitted that the recruitment exercise also violated the provision of Section 7 of the NITDA Act. Counsel submitted in the circumstance of this case it will be against public policy for this Court to enforce exercise done in contravention of statutory provision. On this submission Counsel relied on the case of UMORU V. TUNGA (2012) FWLR (Pt. 607) 726 @ 747, where it was held that: "Where a contract made by the parties is expressly or impliedly forbidden by statute, its illegality is undoubted and no Court ought to enforce it or allow itself to be used for enforcement of alleged obligation arising there under if the illegality is duly brought to the notice of the court and if the person invoking the aid of the court is himself implicated in the illegality; but once illegality is brought to the attention of the court, it overrides all questions of pleadings, including any admission made therein. It is the submission of Counsel that in view of the foregoing, the Claimant should not be aided to benefit from an illegality. Counsel urged the Court to so hold and resolve this issue in favour of the 2nd - 4th Defendants/Applicants. ISSUE NO 5: "Whether the 4th Defendant/Applicant has juristic personality and whether or not the 3rd Defendant/Applicant was served with any pre-action notice?" Counsel started his submission on issue 5, by contending that the general principle governing juristic personality is stated in the case of ATAGUBA Vs. GURA (2005) VOL. 126 LRCN 982 @ 998 & 999, where the earlier case of CARLEN Vs. UNIVERSITY OF JOS (1994) 1 NWLR (pt. 323) p, 631, was followed and applied. Counsel further submitted that it is an elementary consideration that for an action to be properly constituted there must be a plaintiff with legal capacity to sue and a defendant with legal capacity to defend the action. A defendant should not be brought to court unless the plaintiff has a claim against him. On this submission Counsel place reliance on the case of AYORINDE Vs. ONI (2000) 75 LRCN 206 @ 223 - 224. It is the submission of Counsel that in case of agencies of government created under legislation, it is the enabling law that expressly or impliedly confers juristic personality on its officers. Counsel submitted in order to know the legal personality of the 4th Defendant/Applicant or lack of it, the law establishing the agency concerned will be considered. Counsel referred to the case of Reg. Trustees, A.O.N. Vs. NAMA (2014) 2 SCNJ 422 @ 441 where the Supreme Court held that: "A non-existing person, natural or artificial cannot institute an action in court, nor will an action be allowed to be maintained against a Defendant, who as sued, is not a legal person. Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name. He cannot sue or be sued in any other name. "Furthermore, in appropriate circumstances, evidence may be taken in order to resolve the issue of juristic personality of a party. See the case of BANK OF BARODA Vs. IYALABANI (2002) 103 LRCN 2323 @ 2337. Going by the above pronouncement of the Apex Court, Section 1 (2) of the NITDA Act provides that: "The Agency shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name". It is clear that the NITDA Act does not donate juristic personality to the 4th Defendant. Counsel contended that he is not, however, unmindful of the decision of this Hon. Court in the case of OBIDIKE & ORS Vs. MINISTER OF LANDS, HOUSING AND URBAN DEVELOPMENT (supra) @ 318 – 322 applying CARLEN Vs. UNIJOS (supra) that where a statute creates offices and functions, the officers occupying the offices and carrying out the functions are by implication given juridical personality. In the instant case, it may be argued that the NITDA Act created the office of the 3rd Defendant/Applicant and assigned functions to him. However, the 4th Defendant/Applicant is not a creation of NITDA Act. His office is an administrative arrangement. There are many Federal Government agencies that do not have a legal unit or section. We, therefore, submit that the name of the 4th Defendant! Applicant ought to be struck out for lack of capacity to be sued. We urge this Hon. Court to so hold. Apart from the issue of juristic personality of the 4th Defendant, the 3rd Defendant/Applicant ought to be served with a pre-action notice in line with the provision of Section 27 (3) of the NITDA Act. However, he has not been served with any such notice. The action of the Claimant is therefore, defective as it relates to the 3rd Defendant/Applicant. We, therefore, urge this Hon. Court to so hold and strike out his name. In concluding his arguments Counsel submitted that the this suit is inherently defective and the cause of action he seeks to enforce is based on an exercise done in contravention of statutory provisions thereby making the exercise illegal. Counsel urged the Court to uphold the objection and dismiss and/or strike out the suit in its entirety. THE RESPONSE OF THE CLAIMANT TO THE 2ND 3RD AND 4TH DEFENDANTS OBJECTION. The Counsel for the Claimant formulated seven issues for determination of the application under consideration. ARGUMENT: ISSUE 1: WHETHER THE CLAIMANT'S ACTION IS INCOMPETENT AND STATUTE BARRED On whether the action is not statute barred to divest the Honourable court with jurisdiction in view of section 2(a) of the Public Officers Protection Act, 2004; Counsel submitted that the action is not statute-barred. According to Counsel the action being complained of took effect from 12th May 2017. Counsel submitted that the claimant's appointment as a Senior Scientific Officer was terminated on 12th day of May 2017, the very day he signed and collected the letter of termination of his appointment. Counsel contended that the Claimant could not be expected to complain when there was no act, neglect or default done to him. Because there is no way the Claimant would have known that his appointment has been terminated when there was no letter conveying such development to him. Counsel contended that the letter dated 9 February 2016, in which the Claimant was directed to 'stop work' without any justifiable cause and against Public Service Rules of the Federal Republic of Nigeria 2008 Edition is not the main act, neglect or default being complained of. According to Counsel it is the letter of stop work that culminated in the act, neglect, default being complained of in the present action. Counsel submitted that the substratum or the fulcrum of this action is the termination of the claimant's appointment which took effect on 12th May, 2017. Counsel submitted that the cause of action accrued on 12th day of May 2017 when the Claimant signed and collected the letter of termination. Counsel referred to Exhibit A attached to counter affidavit. Counsel submitted that the position of the Law is as stated by the Court of Appeal in the case of DUZU V YUNUSA (2010) 10 NWLR (Pt.1201) at pg 86, that the period of limitation begins to run from the date of breach of any duty or act occurred which warrant the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. It is further submitted by Counsel that the period of limitation began to run from the date the Claimant became aware that his appointment has been terminated and that was on 12th May 2017 when he signed and collected the letter. The Court of Appeal in the above case stated "In determining whether an action is brought before a court of law was initiated or commenced outside or after the expiration of the period prescribed by a statute of limitation, the writ of summons which is the" initiated the process and the statement of claim which sets out the acts giving rise to the right or cause of action are looked at and carefully considered. Where the date on which the action was initiated falls outside or after the last day of the period prescribed or limited in the statute, the action would apparently be one that was filed in contravention of the limitation law and consequently, statute barred and not maintainable in law" Relying on this authority the Claimant signed and collected the letter terminating his appointment on 12th May 2017 and the action was filed on 11th August 2017 which is within three (3) months next after the act, default complained of. Counsel referred to the process before the Honourable Court and submitted that it speaks for itself. It is further submitted by Counsel that the Claimant's action was filed within the stipulated period of time provided by NITDA Act 2017. The Honourable Court therefore has jurisdiction to entertain this suit, the claimant having complied substantially with the law. Counsel submitted the Claimant's action which was filed or instituted on 11 August 2017 is within the time frame stipulated under section 2 (a) of the Public Officers Protection Act, 2004. Continuing with his argument Counsel submitted that assuming but not conceding the fact that the action was commenced later, that is after expiration of the three months from the date of the termination of the Claimant's appointment until when the action was filed or commenced, it is submitted that the Defendant's letter of 20th July, 2017 has given life to this issue and has automatically revived the claim with a new life line. Counsel contended the law in this regard was enunciated in the case of NIGERIA ASSOCIATION OF GENERAL PRACTICE PHARMACIST EMPLOYERS V PHARMACISTS COUNCIL OF NIGERIA & ORS (2013) LPELR 21834. Counsel referred to Exhibit B attached to the counter-affidavit and submitted that the letter of 20th July 2017 inviting Claimant for a meeting for amicable settlement has made time to run as from the date of the letter i.e 20th July 2017. Counsel submitted in the circumstance this suit is not statute barred. ISSUE 2: WHETHER OR NOT• THE CLAIMANT'S SUIT COMMENCED UPON' DEFECTIVE PRE-ACTION NOTICE AND THEREFORE INCOMPETENT. Counsel opened his argument by expressing surprise for the Defendant's counsel's objection being hinged on the fact that the Claimant's suit was commenced on a defective pre-action notice and therefore incompetent. Counsel referred to exhibit C and submitted that the Claimant's name is boldly written on the heading of the pre-action notice, the cause of action, the particulars of claim are all in paragraphs 2, 3 and 4 of the pre-action notice. Counsel contended that if the pre-action had been defective, the Defendant's Counsel would not have recognized it. It is the contention of Counsel that the Defendants admitted the competence of the pre-action notice when they stated in their fifth ground of objection that the pre-action notice was not served on the 4th Defendant. In otherwords, the Defendants Counsel admitted that pre-action notice was served on the 1st 2nd and 3rd Defendants. But, was not served on the 4th Defendant. The Court of Appeal in PETER V NNPC (2010) 8 NWLR pt 1195 at pg 195 para c stated that "The purpose of giving a Defendant notice of claim against it in a pre-action notice is for. it not to be taken by surprise but to have adequate time to prepare to deal with the claim in its defence", Court of Appeal went further to state that" the purpose of the notice is not to put hazards in the way of bringing litigation against it". Counsel further submitted Section 23 of the Interpretation Act 1964 (now Cap 192 of the Laws of the Federation of Nigeria 1990) provides: "Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particulars and is not calculated to mislead". Counsel submitted the import of the pronouncement by the Court of Appeal is that the primary purpose of pre-action notice is not to take the Defendant by surprise and to have adequate time to prepare to deal with the claim. Counsel submitted that this purpose has been achieved by the pre-action which was served on the Defendants. It is contended by Counsel that assuming but not conceding that the form of pre-action notice served on the Defendants differ from the form in the NITDA Act of 2007, the Interpretation Act referred to by the Court of Appeal used the word "Shall Not" which means "Must not" therefore, even if the form of the pre-action notice served on the Defendants differ from the one prescribed in the NITDA Act, the pre-action notice remains valid as it was not intended to mislead the Defendants. In otherwords, the pre-action notice cannot be said to be defective and incompetent. Counsel supported his submission with the case of GODWIN UGWUANYI V NICON INSURANCE PLC (2013) 11 NWLR pt 1366 pg 611 para G, where the Supreme Court stated thus, "Pre-action notices are recognized procedural provisions. They give the Defendants breathing time so as to enable him to determine whether he should make reparation to plaintiff". Counsel submitted that the pre-action notice is not defective and incompetent because the name of the Claimant, the cause of action and the reliefs being sought are clearly and explicitly stated in the body of the pre-action notice as required by section 27 (4) of the NITDA Act 2007. Counsel contended that it is not true that the reliefs sought in the suit are at variance with the pre-action. ISSUE 3: WHETHER OR NOT THE HONOURABLE COURT LACKS JURISDICTION TO HEAR AND DETERMINE THIS SUIT WHICH WAS NOT COMMENCED BY DUE PROCESS OF LAW. Counsel begun his submission on issue 3 with definition of due process in Black's Law Dictionary, Eight •Edition at page 538 defines "Due process" as "the conduct of Legal proceedings according to established rules and principles for the protection and enforcement of private rights". Counsel contended it is not in doubt that the Claimant/Respondent has complied with the due process of law by commencing this action within the time frame stipulated by section 27 (4) or the NITDA Act 2007. Counsel further submitted that the Claimant/Respondent commenced this suit at the expiration of a period of one month after written notice of his intention to do so had been served on the Agency as required by NITDA Act of 2007. Counsel submitted that it has been established beyond reasonable doubt that the Claimant/Respondent complied substantially with; all the provision of the NITDA Act 2007, in commencing this suit by due process of Law. Counsel submitted this Court has jurisdiction to entertain the suit, having established that the suit was commenced by due process-of Law. ISSUE 4: TO DETERMINE WHETHER OR NOT THE CLAIMANT SEEKS TO ENFORCE AN EXERCISE TAINTED WITH ILLEGALITY BY VIOLATING THE EXTANT ROVISIONS. Counsel for the Claimant submitted that going by the analysis that has been done in respect of the various issues raised by the Defendant/Applicant, it cannot be said that the Claimant/Respondent seeks to enforce an exercise tainted with illegality. Counsel posited one wonders the illegality in the Claimant's/Respondent's action who is seeking to avail himself of his constitutional right of fair hearing as provided by section 36 (1) of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. Counsel continued with his submission that this is more so when it has been established that the suit was commenced by the due process of the law, having complied with the relevant provisions of NITDA Act 2007. Counsel contended the Claimant/Respondent has a cause of action and therefore the Defendant/Applicant cannot be heard to say that the former seeks to enforce an exercise tainted with illegality. Counsel submitted in the instant case, the primary right of the Claimant/Respondent has been actually violated by the Defendants/Applicants when it unlawfully terminated" the former's appointment without recourse to Federal Republic of Nigeria Public Service Rules 2008 Edition. Also, in the case of ALHAJI IBRAHIM ABDULLAHI Vs. THE MILITARY ADMINISTRA KADUNA, STATE AND 5 0RS (2009) 15 NWLR pt 1165 at Para 6, the Supreme Court stated the Law thus, " Every person, be he a barrister or solicitor or an ordinary member of the public, has a right to argue his case either in the court of first instance or on appeal in person" The import of this pronouncement by the Supreme Court is that the Claimant/Respondent has a right to argue his case of unlawful termination of appointment having complied with NITDA Act 2007. It is submitted that in EKWUNIFE V WAYNE (WA) LIMITED (1989) 5 NWLR (pt 122) at 456, the court stated the law, "Where a contract is not ex facie illegal and the question of illegality depends on a number of facts, probabilities or possibilities or contingencies-to be hammered out by evidence and forensic logic, the general rule is that illegality must be raised in the pleadings" Also in ONWUCHEKA V NDIC (2002) 5 NWLR (pt 760) 371 at 388 to wit: "A Defendant who relies upon the defence of illegality should state the facts on which he relies in his pleadings. The law is well put in Bullen and Leake and Jacob's precedents of pleadings p 1199 that: "Where the Defendant relies upon the defence of illegality, he should distinctly raise the defence by his pleading, and should state the facts or refer to the facts already stated in the statement of claim, so as to show clearly what the illegality is, if a man intended to charge illegality, he must state facts for the purpose of showing what the illegality is". Relying on this authority, the Defendants/Applicants have raised the purported issue of illegality prematurely, as it ought to have been brought up in their statement of claim. ISSUE 5: TO DETERMINE WHETHER OR NOT THE 4TH DEFENDANT/APPLICANT IS NOT A JURISTIC PERSON. In the case of CHIEF JOHNSON EMERE NKPORNWI V HRN SAMUEL OLUKA EJIRE (2009) 9 NWLR pt 1145 at pg 143 para 14, Court of Appeal defined juristic person as "denoting an artificial person or entity, such as a corporation, created by law and accorded certain legal rights and duties of a human being, a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being. It is termed fictitious person, legal person, moral person" The Court of Appeal went further to state' "Any person, whether natural or artificial, may sue and be sued. However, no legal action can be instituted by or against any party in a Court of Law other than a natural person, unless such a party is accorded a statute, expressly or impliedly or by common law" The import of this provision is that for a person whether natural or artificial to be sued or to sue, such a person must have been created by law either expressly or impliedly". Counsel referred to Section 27(2) of 'NITDA Act 2007, which provides, "Notwithstanding anything contained in any other law or enactment, no suit against a member of the Board, the Director-General or any other officer or employee of the Board, .......... Section 7( c) of NITDA Act 2007 provides, "The Board shall have power to appoint, promote, terminate, dismiss and exercise disciplinary control over the principal officers and senior staff of the Agency" . Counsel submitted that Section 27 (2) above mentioned the Director-General or any other officer or employee of the Board. It is submitted that just as the office of the Director- General was established by the NITDA Act of 2007, the office of the Legal Officer is a creation of the same statute. Counsel continued his submission that the aforementioned section provides that the Director General or any other Officer including the Legal Officer could be sued provided that the action is brought within the provision NITDA Act 2007. Also Section 7 (c) of the same statute has given the Director-General the power to make appointment as regards the office of the Legal Officer. Counsel submitted that the office of the Legal Officer was expressly created by the National Assembly through the Office of the Director-General, therefore, the office of the Legal Officer can sue or be sued as in the instant case. ISSUE 6: TO DETERMINE WHETHER THE RECRUITMENT WHICH INVOLVED THE CLAIMANT WAS IN CONTRAVENTION OF THE FEDERAL CHARACTER OMMISSION (ESTABLISHMENT) ACT 1995 AND THE FEDERAL GOVERNMENT PUBLIC SERVICE RULES 2008. It is the contention of Counsel that it is an incontrovertible fact that the Claimant went through the due process which crystallized in his appointment on 4th day of June, 2015 as a Senior Scientific Officer. His letter of appointment was signed by the Director of Human" Resources & Administration for the Director-General. Section 2(2f) of the 2007 NITDA Act No. 28 made the Director-General a member of the Board and indeed the Secretary. Counsel submitted that the import is that the Director General must be in the picture of all the decisions and policies of the Agency. The Director-General being the Administrative Head of the Agency, appoints, promotes and takes all necessary actions in line with the directive and decisions of the Board. Therefore, according to Counsel the Claimant's appointment was made by the Board through the instrumentality of the office of the Director-General. It is the contention of Counsel that it is an indictment on NITDA to claim that the Claimant's appointment was made without the approval of the Board. It is however gratifying to note that the Defendant's Counsel admitted at paragraph 4.24 of their Written Address that the Claimant did not breach any procedure. If the Defendant's counsel have admitted that the Claimant did not breach any procedure in the course of his employment; what are they objecting to? What is illegality in the exercise? Counsel opined their submission has contradicted their claims. Counsel also submitted that both by fact and law that the Claimant ought not to know how the Federal Character provision will affect him in the employment process. Counsel contended it is the responsibility of NITDA (the 2nd Defendant) to ensure that Federal Character is reflected in the employment exercise that affected the Claimant. NITDA should not be heard to complain assuming but not conceding that Federal Character Commission (Establishment Act) was considered. It is submitted that the Act was taken into consideration in the employment exercise. Counsel referred to exhibit D where the name of the Claimant appeared. Counsel submitted the Defendants/Applicants are also contending that the Claimants/Respondent contradicted paragraph 020205(1) of the Federal Public Service Rules, 2008. Counsel submitted that the paragraph cited by the Defendants/Applicants deals with eligibility for appointment. It is submitted that the Claimant/Respondent satisfied all the conditions under the paragraph and that was why he scaled through all the stages before he was appointed. Counsel also submitted it was the Defendants/Applicants that violated the Public Service Rules when they unlawfully terminated the Claimants appointment. Counsel submitted that the Court of Appeal in the case of Governor, EKITI STATE V AKINYE¥J (2011) 17 NWLR (pt.1276) at pg 386 paragraph 14 "Stated when an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulation made thereafter, any person holding that office or in such appointment enjoys a special status over and above the ordinary master and servant relationship. Counsel posited the Court of Appeal went further to state, "Whether the issue involved is that of employment, promotion, discipline or removal of a public employee, no public office, organ or body or person exercises his personal powers. It therefore, means that in the exercise of such power of employment, promotion, discipline or removal, no public officer has the power to exercise any personal right nor does he have the power to exercise such power at his own whims or caprices. This is because such exercises his power that is devolved to him by statute, and so the power must be exercised in the manner the enabling law or statute directs it should be exercised". Counsel submitted there is no doubt that the Claimant/Respondent's employment is clothed with statutory flavor and that his removal from office must not be at the whims and caprices of the Director General or anybody. Such power of removal from office must be exercised in the manner the enabling law or statute directs. Counsel submitted the termination of the appointment of the Claimant/Respondent was done without recourse to the Public Service Rules of the Federal Republic of Nigeria 2008 Edition. It is also submitted that the issue of Federal Character Commission Act does not arise in the Claimant's/Respondent's employment, because it has no relevance in the unlawful termination of the Claimant's/Respondent's employment because his name is in the list of the successful candidates attached to the letter which was delivered to NITDA. Counsel contended that this is a substantive issue and court is precluded from entertaining a substantive issue at a preliminary stage. The issue that the Claimant's appointment was in contravention of the Federal Character Commission Act and Federal Civil Service Rules is a substantive issue that require calling of evidence. This is a settled law. Counsel cited the case of ITNA.GP.P.E V PCN (2012) 2NWLR (pt.I284) 262 CA. ISSUE OF TECHNICALITIES Counsel urged the Court to look at the attitude of the Courts in recent times to issue of technicalities in order to do substantial justice in this case. Counsel submitted that the Courts are now moving away from technicality. On this submission Counsel relied on COLITO (NIG) LIMITED V HONOURABLE JUSTICE TITI DAIBU (2010)2 NWLR pt 1178 and JOSIAH OLUWOLE FRANCIS V CITEC INTERNATIONAL ESTATE LTD (2010) NWLR pt 1219 at pg 252 para 14. Counsel urged the Court to tread on the path of current jurisprudential posture which emphasizes that at all times substantial justice should be seen to be done to parties and their rights determined on merits. ISSUE 7: TO DETERMINE WHETHER OR NOT THE 3RD DEFENDANT WAS SERVED WITH ANY PRE-ACTION NOTICE. Counsel submitted the 3rd Defendant is the Director General of the 2nd Defendant who is the alter-ego of the organization and that he was served with the pre-action notice dated 10th July, 2017. Exhibit E is the acknowledged which Counsel considered as the pre-action notice. Concluding argument Counsel urged the Court based on cited authorities, statutes, analysis and our argument in opposition to this preliminary objection, to dismiss the preliminary objection as it is baseless, frivolous and a cog in the wheel of dispensing of justice in this case. COURT’S DECISION: I have carefully considered all the processes filed and the submissions of Counsel for the parties in respect of the objections of the Defendants to the competency of this suit. Some of the issues raised by Counsel for the parties coincide with each other. However, I would like to formulate issue for determination, which I feel can determine the objections raised by the Defendants. The issues are: 1. ‘‘whether the originating processes commencing this suit are incompetent’’. 2. ‘‘Whether the 4th Defendant is a juristic person’’. 3. ‘‘Whether the Claimant has issued a competent pre-action notice before commencing this suit’’. 4. ‘‘Whether the Claimant’s suit is statute barred’’. Before dealing with the issues formulated for determination of the objections before the Court, it behooves on me to first and foremost deal with certain preliminary issues raised by Counsel for the Claimant and Counsel for the 2nd 3rd and 4th Defendants. In his written address Counsel for the Claimant has raised the issue of Technicalities wherein Counsel urged the Court to look at the attitude of the Courts in recent times to issue of technicalities in order to do substantial justice in this case. Counsel submitted that the Courts are now moving away from technicality. On this submission Counsel relied on COLITO (NIG) LIMITED V HONOURABLE JUSTICE TITI DAIBU (2010)2 NWLR pt 1178 and JOSIAH OLUWOLE FRANCIS V CITEC INTERNATIONAL ESTATE LTD (2010) NWLR pt 1219 at pg 252 para 14. Counsel urged the Court to tread on the path of current jurisprudential posture which emphasizes that at all times substantial justice should be seen to be done to parties and their rights determined on merits. It is trite law that Courts have for long jettisoned allowing counsel to use technicality to defeat justice. Use of technicality arises where a party seeks to capitalize on procedural irregularity to defeat justice. However, it is to be noted that no matter how well intentioned, zealous or highly desirous a court may be to do substantial justice to the parties; it can only do so within the confines and limits of the law. In other words the court cannot go out of its way as circumscribed by the relevant and applicable law to do what it may consider substantial justice. See YUSUF V ADEGOKE (2007)11 NWLR (PT. 1045) 332. Doing substantial justice means to do justice in line with the law and equity and not in line with whims and caprices. Flowing from the foregoing, determining the merit of an application brought on ground of infraction of the provision of law cannot by any stretch of imagination amount to technical justice. Where clear and unambiguous infraction or non-compliance with statutory provisions is involved, there can be no technicality. Any party approaching the Court for determination of his right or alleged violation of right must ensure that he complied with well-established principles of law. It is in this wise that I hold that the objections of the Defendants are not on technicality. The Counsel for both parties have made copious submissions on issues bordering on contravention of statutory provisions, illegality, public policy, violation of federal character principles and Public Service Rules. Careful perusals of the submissions of Counsel on these issues are not borne out of the pleadings before the Court. It should be remembered that at the stage at which this suit is, Counsel are only allowed to raise in their objections issues of law alone that will not require evidence. The Court has a duty to ensure that issues that are to be decided at the substantive stage are not considered or decided at the preliminary stage. At this stage the issue that can be determined are issues of jurisdiction or competency of action based on law alone. Any consideration that will need evidence must wait until when the substantive issues are being determined. ENWEZOR V WITHECH INDUSTRIES LTD 2008 LPELR-4193 (CA). all the court can do at this stage is to restrict itself to the pleading before it. Indeed, that is what the law require the court to do when dealing with preliminary objection. See OYEDELE & ORS. V AJAY & ORS. (2014) LPELR-23101 (CA). it is settled that when a preliminary objection is raised to determine a suit in limine, like in this case the main material for consideration is the originating process. It is without doubt from the above exposition of the law that none of the parties will be allowed to canvasse issue that will require making consideration outside the originating process before the Court. In view of this, I find all the submissions of counsel for both sides on issues bordering on public policy, federal character or non compliance with Public Service Rules irrelevant at this stage and are hereby discountenanced as they goes to no issue in so far as the determination of the preliminary objections are concerned. Having disposed of the preliminary issues, I shall now turn to the main issues for determination of the objections of the Defendants. It is the submission of Counsel for the Defendants that this suit was commenced with a defective process in that the complaint violate the provisions of Order 3 of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017, that governed commencement of action. The Claimant on his part submitted that the Complaint filed to commence this suit is competent and properly filed, because it is in substantial compliance with the Rules of Court. Order 3 of the Rules of this Court which governed commencement of action requires a complaint to specifically state the relief or reliefs claimed either singly or in the alternative. The complaint is to be accompanied with the processes stated hereunder:- I. A statement of facts establishing cause of action. II. Copies of documents to be relied at the trial III. List of witnesses to be called IV. Written statement on oath of all witnesses listed to be called. See order 3 Rules 9, 11, 12 and 13 of the National Industrial Court (Civil Procedure) Rules 2017. The practice and procedure in the Court in respect of institution, commencement and trial of suits are akin to, in most respect to those of the state high Courts with relevant modification to accommodate the peculiarities of the court’s jurisdictional scope. However, it must be pointed out here that the practice and procedure of this Court are designed with the ultimate goals of attaining a just, efficient and speedy dispensation of justice, as well as enabling the Court, as a specialist Court, to hear and determine cases expeditiously, fairly and equitably. The Court may therefore disregard any technical irregularity in the rules that does not and is not likely to result in a miscarriage of justice. This does not mean that the Court will ignore non compliance with its Rules at a wave of hand. I agree with the Counsel for the Defendants that Rules of Court are meant to be obeyed. They are designed and made to regulate the proceeding for orderly determination of issues submitted to the Court by the parties. This however, does not mean that non compliance with the Rules can be condoned. The party contesting non compliance with the Rules of Court has a duty to do so timeously. Otherwise the objection will be overruled. Therefore, any delay to contest infraction of the Rules will be fatal to the party raising the objection. In the case at hand I have had a hard look at the complaint filed on 11th day of August 2017, by the Claimant. It is patently clear that the complaint was not in total compliance with Order 3 Rules 10 (a) (1v), (b) (ii) (iii) (iv), (C) (iii) and 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. By the provision of Order 3 Rule 21 (2) a Defendant can challenge competency of a complaint filed against him provided he does so within seven working days from the date of receipt of the originating Court processes. From the record of the Court the Defendants were served with the Originating processes commencing this suit on 15th August 2017. The 1st Defendant filed his notice of preliminary objection on 29th August 2017. While the 2nd, 3rd, and 4th Defendants filed their notice of preliminary objection on 10th day of November 2017. It is patently, clear from the foregoing that the objections to the competency of the complaint were raised after the time allowed by the Rules of this Court for filing of such objections has elapsed and there was nothing to show that the Defendants sought and obtained leave of Court to file their objections out of time. In view of the failure to obtain extension of time to file the objections by the Defendants to the validity of the Originating processes commencing this suit, the objection are incompetent in so far as they relate to the form of the complaint commencing this suit. Order 3 Rule 21(2) of the Rules of this Court is very clear on this issue. In the circumstances I hold that the objection to the competency of the complaint is baseless, as in the eyes of the law there is no proper objection to the complaint before the Court. In view of this finding I hold that the complaint is saved from being nullified. On issue two, Counsel for the 4th Defendant submitted that it is an elementary consideration that for an action to be properly constituted there must be a plaintiff with legal capacity to sue and a defendant with legal capacity to defend the action. A defendant should not be brought to court unless the plaintiff has a claim against him. On this submission Counsel place reliance on the case of AYORINDE Vs. ONI (2000) 75 LRCN 206 @ 223 - 224. It is the submission of Counsel that in case of agencies of government created under legislation, it is the enabling law that expressly or impliedly confers juristic personality on its officers. Counsel submitted in order to know the legal personality of the 4th Defendant/Applicant or lack of it, the law establishing the agency concerned will be considered. Counsel referred to Section 1 (2) of the National Information Technology and Development Agency Act, which provides that: "The Agency shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name". It is clear that the National Information Technology and Development Agency Act, does not donate juristic personality to the 4th Defendant. In the instant case, it may be argued that the National Information Technology and Development Agency Act, created the office of the 3rd Defendant/Applicant and assigned functions to him. However, the 4th Defendant/Applicant is not a creation of National Information Technology and Development Agency Act. His office is an administrative arrangement. There are many Federal Government agencies that do not have a legal unit or section. Counsel urged the Court to strike out the name of the 4th Defendant/Applicant for lack of capacity to be sued. However, Counsel for the Claimant submitted that the 4th Defendant is a juristic person that can be sued. Counsel referred to Section 27(2) of National Information Technology and Development Agency Act, which provides, "Notwithstanding anything contained in any other law or enactment, no suit against a member of the Board, the Director-General or any other officer or employee of the Board, .......... Section 7(c) of NITDA Act 2007 provides, "The Board shall have power to appoint, promote, terminate, dismiss and exercise disciplinary control over the principal officers and senior staff of the Agency". Counsel submitted that Section 27 (2) above mentioned the Director-General or any other officer or employee of the Board. It is submitted that just as the office of the Director-General was established by the NITDA Act of 2007, the office of the Legal Officer is a creation of the same statute. Counsel continued his submission that the aforementioned section provides that the Director General or any other Officer including the Legal Officer could be sued provided that the action is brought within the provision NITDA Act 2007. Also Section 7 (c) of the same statute has given the Director-General the power to make appointment as regards the office of the Legal Officer. Counsel submitted that the office of the Legal Officer was expressly created by the National Assembly through the Office of the Director-General, therefore, the office of the Legal Officer can sue or be sued as in the instant case. In FAWEHNMI V NBA (NO 2) (1989) 2 NWLR (105) 558, it was held that no action can be brought by or against any party, other than a natural person or juristic person, unless such party has been given by statute, expressly or impliedly, or by common law either (a) a legal persona under by the name by which it sues or be sued (b) a right to or be sued by that name. There is no doubt that the 4th Defendant termed as Head Legal Unit National Information Technology and Development Agency, was referring to an office domiciled with the 2nd Defendant. It is probably established to provide legal services. However, unlike the 2nd and 3rd Defendants which were creation of a statute, the 4th Defendant was neither established by the Constitution nor was it established under any legislation. Consequently, since it is not a creature of law or statute it is not a juristic person legally clothed to sue and be sue for any alleged wrong act. Since it is only juristic persons that can sue and be sued the 4th Defendant was wrongly joined in this suit. See AGBOMAGBE BNK LTD V G. M. G. B. OLIVERT LTD (1961) 1 All NLR 116, LEVENTIS TECH. LTD V PETROJESSICA ENT.LTD (1992) 2 NWLR (PT 224) 459, AGBOOLA V SAIBU (1991) 2 NWLR (PT 175) 569, COP, QNDO STATE V OBOLO (1989) 5 NWLR (PT.120) 130 @ 141, PARAS C-E. In any event the acts being complained by the Claimant in his Complaint before the Court are acts of members of staff of the 2nd Defendant. Consequently, the appropriate party to sue for the acts complained is the 2nd Defendant and not the 4th Defendant. In the end I hold that the 4th Defendant is not a juristic person. In the circumstance the 4th Defendant is hereby struck out of this suit for being incompetent to be sued due to lack of legal personality. The third issue to be considered is the issue of pre-action notice. According to the Counsel for the 2nd 3rd and 4th Defendants Section 27 (3) of the NITDA Act makes it mandatory for any intending plaintiff to serve NITDA with pre-action notice before filing any action against it. Counsel submitted that there is plethora of decided cases that where a pre-action notice is required by a statute failure to serve it renders the action incompetent. Counsel referred to the case of MOBIL PRODUCING NIG LTD Vs. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (Pt.798) 1 @ 36 – 37, where the Supreme Court held that: "A suit commenced in default of service of pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit". Counsel also referred to the decision of this Hon. Court in the case of EDMUND Vs. NIGERIAN CUSTOM SERVICE BOARD (2014) 48 NLLR (Pt.157) 401 @ 434. Counsel submitted that in the instant case, the Claimant did serve the 2nd Defendant with a letter captioned" "WRONGFUL TERMINATION OF APPOINTMENT" dated 10th July, 2017. The said letter did not clearly and specifically state the place of abode of the Claimant, the particulars of claim and some of the reliefs sought in this suit. Counsel submitted that the letter fell short of clearly and explicitly meeting the requirements of Section 27 (4) of the NITDA Act, 2007. Counsel further contended that the general statement by the Claimant that he would proceed to a court of law to seek for remedies is vague. Counsel submitted that the vague statement in the said letter did not and cannot be said to satisfy the requirement of the NITDA Act to "clearly and explicitly" mention or state the name and place of abode of the Claimant as well as his particulars of claim and the reliefs he would seek. Counsel also contended that the reliefs claimed in this suit are at variance with the said letter. Counsel submitted in the circumstances, the Applicants have been misled as to the action of the Claimant. Counsel contended that the Claimant has not satisfied a fundamental condition precedent thereby rendering his suit incompetent. Counsel urged this Hon. Court to so hold and strike out the suit. In countering submission of the Defendants, the Counsel for the Claimant expressed surprise to the contention that the Claimant's suit was commenced on a defective pre-action notice and therefore incompetent. Counsel for the Claimant contended that the submission of Counsel for the Defendants that the pre- action notice does not contain the name of the claimant, the particulars of claim and the cause of action was not correct. Counsel referred to exhibit C and submitted that the Claimant's name is boldly written on the heading of the pre-action notice, the cause of action, the particulars of claim are all in paragraphs 2, 3 and 4 of the pre-action notice. Counsel contended that if the pre-action had been defective, the Defendant's Counsel would not have recognized it. It is the contention of Counsel that the Defendants admitted the competence of the pre-action notice when they stated in their fifth ground of objection that the pre-action notice was not served on the 4th Defendant. In otherwords, the Defendants counsel admitted that pre-action notice was served on the 1st 2nd and 3rd Defendants. But, was not served on the 4th Defendant. Counsel further submitted Section 23 of the Interpretation Act 1964 (now Cap 192 of the Laws of the Federation of Nigeria 1990) provides: "Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particulars and is not calculated to mislead". Counsel submitted the import of the pronouncement by the Court of Appeal is that the primary purpose of pre-action notice is not to take the Defendant by surprise and to have adequate time to prepare to deal with the claim. Counsel submitted that this purpose has been achieved by the pre-action which was served on the Defendants. It is contended by Counsel that assuming but not conceding that the form of pre-action notice served on the Defendants differ from the form in the NITDA Act of 2007, the Interpretation Act referred to by the Court of Appeal used the word "Shall Not" which means "Must not" therefore, even if the form of the pre-action notice served on the Defendants differ from the one prescribed in the NITDA Act, the pre-action notice remains valid as it was not intended to mislead the Defendants. In otherwords, the pre-action notice cannot be said to be defective and incompetent. Counsel submitted that the pre-action notice is not defective and incompetent because the name of the Claimant, the cause of action and the reliefs being sought are clearly and explicitly stated in the body of the pre-action notice as required by section 27 (4) of the NITDA Act 2007. Counsel contended that it is not true that the reliefs sought in the suit are at variance with the pre-action notice. A pre-action notice is a condition usually stipulated by a statute or statutory instrument to be fulfilled before exercise of right to bring an action. The essence of pre-action notice, is to notify the person or agency entitled to it of grievance of the person concerned. However, it must be understood that its non-compliance does not abrogate the right of a plaintiff to approach the court or defeat his cause of action. If the subject-matter is within the jurisdiction of the court, failure on the part of a plaintiff to serve a pre-action notice on the defendant gives the defendant only a personal right to insist on compliance with such notice before the plaintiff may approach the court. See ANAMBRA STATE GOVERNMENT V & ORS V MARCEL & ORS (1996) 9 NWLR (Pt 213) 115, SARKIN YAKI & ANR V BAGUDU & ANR (2015) LPELR- 25721 (SC). On whether there is valid and proper pre-action notice in compliance with section 27 (3) and (4) of the National Information Technology and Development Agency, Act, this will depend on the provisionS vis-à-vis the facts of the case. It is apt at this juncture to reproduce the provision of section 27(3) & (4) of the National Information Technology and Development Agency Act, it read: (3) No suit shall be commenced against a member of the Board, the Director General or any other officer or employee of the Agency before expiration of a period of one month after written notice of the intension to commence the suit shall have been served on the Agency by the intending plaintiff or his agent. (4) The notice referred to in subsection (3) of this section shall clearly and explicitly state: (a) The cause of action; (b) The particulars of the claim; (c) The name and place of abode of the intending plaintiff; and (d) The relief which he claims. It is clear from the above provision of the law that for the Claimant to maintain a valid action, he must comply with this section of the law. The provisions are very clear and unambiguous. The supreme Court has held that a pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of any legal action against such a person. The non-service of a pre-action notice merely put the suit on hold pending compliance with the preconditions. It is a temporary denial of access to Court. The action is only put in abeyance and can be activated at any time with compliance with the fre-condition of giving pre-action notice. see DOMINIC E. ENTIERO V NIGERIA PORT AUTHORITY (2008) 10 NWLR (Pt 1094) 129. The provisions of section 27(3) and (4) above are clear, direct and mandatory. The requirement of notice is expected to be given when the decision to commence an action has been made by the Claimant, it must be given and delivered to the Director-General of the Agency at the Headquarters or sending it by registered post addressed to the Director-General. The notice shall contain cause of action; particulars of the claim; name of the plaintiff; name and place of abode of the intending plaintiff; and relief which he claims. The notice is required to be in writing. It is to be noted that the Supreme Court has in NIIERO V NPA (2008) 10 NWLR (Pt.1094) 129, while interpreting provisions similar to the one under consideration, decided that any purported pre-action notice which fails to meet any of the conditions specified in the section of the Act will be null and void. Any action commenced in breach of the provisions will also have been commenced without complying with one of the required due process or pre-condition and such action would be incompetent. Applying the above enunciated principle of law to the case at hand, it will be seen that a careful perusal of the letter dated 10th July 2017, addressed to the Director-General (3rd Defendant) with title ‘‘WRONGFUL TERMINATION OF APPOINTMENT – MR. AKPANUSONG UDUAK, which the Claimant is claiming to be pre-action notice clearly disclosed that the letter was in respect of three previous letters exchanged by the parties in relation to the issue of termination of appointment of the Claimant. Looking at the provisions of section 27(3) and (4) of the National Information Technology & Development Agency and comparing the provisions with the content of the letter, it will be manifest that the letter has not met some of the conditions stated in section 27(4)(C) & (d) of the National Information Technology and Development Agency Act i.e name and place of abode of the intended plaintiff and reliefs being sought before the Court. It is patently clear that the place of above of the Claimant is nowhere to be found stated in the purported letter that is supposed to be pre-action notice. Place of abode has received judicial interpretation in ONONYE V CHUKWUMA 2005 17 NWLR PT.953 90, where it was held that place of abode means ‘a person’s residence or domicile’’. I have scrutinized the letter there was nowhere in it where the place of abode of the Claimant was stated as required by law. Likewise the letter contains no reliefs being claimed. In the circumstance, the said letter is therefore not in conformity with the dictate and letters of the provisions of law on pre-action notice. The letter is in violation of the extant provision of the law, it cannot under any stretch of imagination be said to be a pre-action notice required to be given under the provisions under consideration. The purported pre-action action notice is incompetent as it did not measure up with the requirement of the law. It is invalid and by extension, this action is incompetent. However, this is only in respect of 2nd and 3rd Defendants/Applicants who are entitled to be given the notice under the law. Therefore, in the absence of valid pre-action notice this suit is incompetent due to non-fulfilment of condition precedent, in so far as the 2nd and 3rd Defendants are concerned. However, it must be understood that this does not mean that this Court has no jurisdiction to hear and determine this suit, what it means by this holding is that the jurisdiction of this Court will only be exercised upon compliance with giving of pre-action notice. I so hold. Issue 4, in arguing this issue, Counsel for the Defendants are of the view that the Claimant’s suit as it is presently constituted is statute barred for having not been commenced within three Months as provided by the provisions of section 2(a) of the Public Officers Protection Act. According to the Defendants the suspension of the Claimant from work was done on 9th February 2016 and on 31st March 2017, the Claimant’s employment was determined. While the Claimant filed his action on 11th day of August 2017, according to the Defendants the action is statute barred, since from 31st March 2017 to 11th August 2017, is a period of more than three Months, which is the period allowed for action against public officers. In his response the Counsel for the Claimant insisted that the Claimant’s action is not statute barred. That his action was commenced within the time allowed by law. According to Counsel for the Claimant time in respect of computation starts on the day the letter of termination was handed over to the Claimant i.e 12th day of May 2017. Counsel also submitted that the service of letter of 20th July 2017 to him by the Defendants inviting him for negotiation has reviewed the time for the purpose of statute of limitation. According to counsel with the letter of 20th July 2017, computation will start from 20th July 2017, consequently, time has not elapsed when on 11th August 2017 the Claimant filed his action before the Court. In determining the applicability of section 2(a) of the Public Officers Protection Act, what need to be established are: 1. Are the Defendants in this case public officers 2. Are the Defendants acting in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in execution of any such law, duty or authority, 3. Has the action been brought within three months of the act, default or neglect complained of. On the question of whether the Defendants are public officers the answer to this is that the Defendants are public officers by virtue of interpretation of ‘any person’ proffered by the Supreme Court in the case of IBRAHIM V JUDICISL SERVICE COMMITTEE (1998) 14 NWLR (PT.584) 1, the supreme Court held that the word ‘person’ when used in legal parlance, such as in a legislation or statute, connotes both a ‘natural person’ that is to say, a ‘’human being’’ and an ‘’artificial person’’ such as corporation sole or public bodies corporate or incorporate. The Defendants are therefore by virtue of this decision public officers. The second question is whether the Defendants were acting in pursuance or execution or intended execution of any law or of any public duty or authority? To answer this question the statement of facts will be looked at. The Claimant has averred that he was offered appointment vide letter of 8th June 2015 which he accepted and resume work. But, vide letter dated 9th February 2016 he was asked to stop work pending the resolution of his appointment. He also averred that he wrote letters appealing for his case to be looked into with a view to reinstating him but his pleas fell on deaf ears. However, he was subsequently, served on 31/3/17 with a letter of termination of appointment. See paragraph 8 of the statement of claim. The Claimant also averred that he met with the Defendant for amicable settlement but to no avail. It is clear that vide sections 1, 7, and 8 of the National Information Technology Development Agency Act, the 2nd and 3rd Defendants were established and they were clothed with power to hire and fire its workforce. This is proof that the termination of appointment of the Claimant was done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority. This has satisfied the second requirement of section 2(a) of the Public Officers (Protection) Act. On the third question that is whether the action has been brought within three Months. This question will be answered by examining the statement of facts to see the date disclosed on which the act, default or neglect which give rise to cause of action in this case occurred. The Defendants insisted that the date is the date of the letter of termination which is 31st March 2017. While the Claimant’s position is that the time for purpose of the statute of limitation is the date of receipt of the letter of termination which according to him is 12th May 2017 or 20th July 2017 being the date of letter of request for amicable settlement. It is trite law that where an action is statute barred, a plaintiff who would have had a cause of action automatically loses the right to enforce same by the limitation law because time for instituting such an action has elapsed. Where a statute stipulates or prescribed limitation. Any action that is instituted after the period stipulated by statute is totally barred as the right of the injured person to commence the action would have been extinguished by law. SPDC V PARAH (1995) 3 NWLR (PT.382) 148. On submission that the letter of 20/7/17 has the effect reviving action caught by the statute of limitation has no basis n law. The period of negotiation does not stultify or renew the date when time will start to count regarding limitation period. See EBGOGBE V NNPC (1994) 5 NWLR (PT.347) 649. The Supreme Court in the case stated that period of negotiation since the cause of action arose does not revive or effect the date the cause of action arose. See also NWUFE V FEDERAL JUDICIAL SERVICE COMMISSION (2005)-LPELR-10864. Counsel for the Claimant has submitted that the Claimant was notified of his termination of appointment on 12th May 2017. This submission has no support from the pleadings of the Claimant. In law in determining the date when time begins to run in respect of statute of limitation it is the pleading of the Claimant that the Court is bound to consider and not extraneous evidence. In this case the date as provided in the pleading of the Claimant is 31st day of March 2017, see paragraph 8 of the statement of claim and this action was instituted on 11th day of August 2017. If time is calculated from 31st day of March 2017 to 11th day of August 2017, is four Months eleven days. This clearly shows that this action was instituted outside the three Months allowed by section 2(a) of the Public Officers (Protection) Act. The letter attached to counter-affidavit cannot be relied upon in determining date when time starts to run. This is due to the fact that in an application of this nature it is the claim as contained in the originating processes commencing the suit that the Court is allowed to consider in determining the application, since the objection is based on law and not facts. This suit is therefore statute barred. I so hold. This suit is hereby ordered to be dismissed for being statute barred. Sanusi Kado, Judge.