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The claimant took up a complaint against the defendants in this Court. By the endorsement made on the complaint, the claimant/complainant is a staff of Auchi Polytechnic, Auchi whose appointment was wrongfully terminated by the defendants wherein he instituted Suit No. FHC/B/CS/62/2010 (Mr. Friday Idugie v. Auchi Polytechnic, Auchi & 3 ors) challenging the wrongful termination of his employment and claiming that he should be reinstated. While the suit was pending at the Federal High Court, Benin Judicial Division, Benin City, the Constitution of the Federal Republic of Nigeria, 1999 was amended vide the Third Alteration Act 2010, which amendment ousted the jurisdiction of that Court in employment and labour related matters vide section 254C(1). The claimant then applied to the Federal High Court vide a motion on notice filed on 13th December 2011 praying that the case be transferred to the National Industrial Court (NIC) since the NIC is now clothed with jurisdiction to entertain same. The Federal High Court ruled that it lacked the jurisdiction to entertain the suit, struck out same and ordered that the claimant file a fresh action before the NIC. In filing the instant case in this Court, the claimant is praying against the defendants jointly and severally for the following reliefs – a. A DECLARATION that the purported letter issued by the Governing Council, Auchi Polytechnic, Auchi that the claimant withdraw his faction of ASUP’s case in court and not to agitate his grievances before the Nigerian Police Force or any other law enforcement agency is unconstitutional, null, void and against public policy and of no effect whatsoever. b. A DECLARATION that the only body or organ that can investigate an allegation of threat to the life and property of the claimant and his family is the Nigeria Police Force and not the Governing Council, Auchi Polytechnic, Auchi. c. A DECLARATION that the letter dated 3rd day of September 2009 and the resolution of the Governing Council, Auchi Polytechnic, Auchi stopping and or preventing the claimant from reporting the threat to his life and that of his family to the Nigeria Police Force or any other law enforcement agency is unconstitutional, null, void and of no effect whatsoever. d. A DECLARATION that the Governing Council, Auchi Polytechnic, Auchi is not a body organ or agency recognized under the constitution of Academic Staff Union of Polytechnics to resolve disputes amongst its members and therefore a petition to the National body of ASUP cannot amount to harassment or intimidation. e. A DCLARATION that the letter dated the 10th day of March 2010 to the claimant is in flagrant breach of his fundamental right to life and right to associate or belong to a trade union as contained in section 40 of the Constitution of Federal Republic of Nigeria, 1999. f. A DECLARATION that the offence contained in the query dated 10th day of March 2010 are unknown to the Polytechnic Staff Manual and the Constitution of Federal Republic of Nigeria, 1999. g. A DECLARATION that the Joint Panel of Council and Academic Board set up by the 2nd defendant is biased and any decision and/or recommendation reached by them is illegal, null and void and of no effect whatsoever and should be set aside. h. A DECLARATION that the Joint Panel of Council and Academic Board set up by the 2nd defendant is not in accordance with the Federal Polytechnic Staff Manual 1990 and therefore any decision and/or recommendation reached by them is illegal, null and void and of no effect whatsoever and should be set aside. i. A DECLARATION that the entire trial resulting in the issuance of the letter of termination dated 18th day of March 2010 was not fair and therefore a breach of the right to fair hearing of the claimant. j. A DECLARATION that failure of the 2nd defendant to look into the protest sent to it by the claimant and pronounce on it before constituting and or acting on the decision of the Joint Panel of Council and Academic Board is a breach of his right to fair hearing and therefore renders the panel’s report illegal, null and void as it was done in breach of the Federal Polytechnic Staff Manual 1990. k. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants from relying on the claimant’s petition to the Nigeria Police Force for the threat to his life and that of his family and the petition to the constitutional organs of Academic Staff Union of Polytechnic (ASUP) under its constitution to ventilate any grievance he may come to by virtue of his membership and chairmanship of ASUP to terminate his employment with the 1st defendant. l. AN ORDER setting aside the decision of the Joint Panel of Council and Academic Board and the letter of termination dated 18th day of March 2010. m. DELCARATION that the claimant is still in the service and/or employment of the 1st defendant and is entitled to his salaries allowances and other entitlement by way of promotion and other benefits from the 8th day of March 2010 till the date of judgment and henceforth thereafter. n. AN ORDER compelling the defendants to reinstate the claimant to his position as a Chief Lecturer in the Department of Sculpture of the 1st defendant until he duly retires from service. o. AN ORDER compelling the defendants to pay the claimant the salaries allowances and other entitles from the 18th day of March 2010 till the day of judgment in this case and henceforth thereafter until the plaintiff duly retires from service. Accompanying the complaint is the statement of facts (which by order of this Court on July 26, 2012 was amended), list of witnesses, list of documents (and copies of the documents) and written statement on oath of the claimant. In reaction, the defendants filed their memorandum of appearance and joint statement of defence. This was followed by a preliminary objection filed pursuant to section 2(a) of the Public Officers Protection Act Cap. P41 LFN 2004, Orders 5 and 11 of the National Industrial Court (NIC) Rules 2007 and under the inherent jurisdiction of the Court. By the preliminary objection, the defendants are praying the Court for – 1. An order dismissing and/or striking out this suit i.e. Suit No. NIC/ABJ/120/2011 for want of jurisdiction. 2. And for such further order or orders as the Court may deem fit to make in the circumstances of this case. The grounds upon which the preliminary objection is brought are – 1. The appointment of the claimant with the 1st defendant was terminated on 8th March, 2010. 2. The claimant filed this suit i.e. Suit No. NIC/ABJ/120/2011 on 20th December 2011. 3. The suit of the claimant i.e. Suit No. NIC/ABJ/120/2011 is statute-barred having been filed outside the mandatory three months as provided for by the Public Officers’ Protection Act 2004. In support of the preliminary objection is a 9-paragraphed affidavit deposed to by Prosper Yusuf Musa, a legal practitioner in the law firm of K. O. Obamogie & Co., counsel to the defendants, and the defendants’ written address. In reaction to the preliminary objection, the claimant filed a 23-paragraphed counter-affidavit sworn to by the claimant himself and his reply written address. The defendants did not file any reply on points of law. The defendants framed one issue for the determination of this Court, namely, “whether the suit of the claimant i.e. Suit No. NIC/ABJ/120/1011 is not statue-barred”. The defendants then gave what they termed the background facts to the case. To the defendants, the claimant was an employee of the 1st defendant as a Chief Lecturer in the Department of Sculpture until 18th March 2010 when his appointment was terminated by the 2nd defendant vide a letter dated 18th March 2010. That in accordance with his conditions of service, the 1st defendant through the Bursary Department made available to the claimant three (3) months’ salary in lieu of notice of his termination. On 20th December 2011 i.e. about one year and nine months after the claimant’s appointment was terminated, claimant filed this suit before this Court challenging the termination of his appointment by the 2nd defendant. That it is against the above suit that the defendants filed the preliminary objection challenging the competence of the suit on the grounds set out in the notice of the preliminary objection. The defendants then submitted that the action of the claimant is statute-barred having been filed out of the statutory period of three months as provided for by the Public Officers Protection Act Cap. P41 LFN 2004. Section 2(a) of the said Act provides as follows – Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect – (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof. To the defendants, it is clearly and sufficiently demonstrated in paragraph 4 of the supporting affidavit that the claimant’s appointment with the 1st defendant was terminated by the 2nd defendant on 18th March 2010 vide Exhibit A. That it is also not in dispute that the claimant’s suit i.e. Suit No. NIC/ABJ/120/2011 was filed on 20th December 2011 about 1 year and 9 months after the termination of the claimant’s appointment, referring the Court to paragraphs 5 and 6 of the supporting affidavit. The defendants then submitted that the suit of the claimant challenging the act of a public officer done in accordance with the powers of his office cannot be instituted after the expiration of three months from the date the act being complained of was done, referring the Court to the Supreme Court decision in NPA Plc v. Lotus Plastics Ltd [2005] 19 NWLR (Pt. 959) 158 at 181 E – G where the apex court coram Mohammed, JSC held thus – On the question of when does time begin to run for the purpose of a statute of limitation, this court had answered the question in the case of Eboigbe v. Nigeria National Petroleum Corporation [1994] 5 NWLR (Pt. 347) 649 and 659 as follows – The next question is when does time begin to run for the purposes of a Statute of Limitation? Time begins to run from the date that the cause of action accrues. The cause of action generally accrues on the date on which the incident giving rise to the cause of action occurs…Proceedings must be begun, normally by the issue of a writ of summons within a period prescribed by the relevant statute…. See also Sosan & ors v. Ademuyiwa [1986] 3 NWLR (Pt. 27) 241; Odubeko v. Fowler [1993] 7 NWLR (Pt. 308) 637 at 661 – 662 and the recent decision of this Court in Okafor v. A.G., Anambra State [2005] 14 NWLR (Pt. 945) 210 at 222 – 223. That commenting on the above provision of the Public Officers Protection Act, the Court of Appeal in Officer in Charge, GPG v. Gudu [2010] 2 NWLR (Pt. 1177) 148 at 164 F – G coram Ndukwe-Anyanwu, JCA held as follows – The Learned Trial Judge has found as a fact that the appellants are Public Officers. All actions against Public Officers must be brought within 3 months of the existence of a cause of action as per the dictates of Public Officers Protection Act. In Tajudeen v. C.I.P.S.B. [2010] 4 NWLR (Pt. 1184) 325 at 340 G – H the Court of Appeal coram Jauro, JCA held as follows – The present case complains of wrongful termination of employment by the respondent. The said act was done in the day to day activities of the respondent, in the discharge of its public duty. Section 4(2)(b) of the CIPB Act Cap 89 LFN 1990 gives the board the power to dismiss and exercise disciplinary control over its staff. The circumstances of this case cannot be said to have arisen out of a specific contract. The cases of Bakare v. NRC (supra); NBC v. Bankole and FRIN v. Gold (supra) are decisions of the Supreme Court to the effect that Public Officers Protection Act is applicable to contracts of employment. This court is bound by the decision of the Supreme Court. The defendants went on to submit that where the defence of limitation period is raised under the Public Officers Protection Act, the court cannot concern itself with the question as to whether the act was done wrongly or not but solely to consider whether the action is statute-barred or not, referring the Court to the Court of Appeal decision in A.G., Federation v. Abacha [2010] 17 NWLR (Pt. 1221) 1 at 27 B – D where the Court coram Okoro, JCA held thus – The summary of all I have endeavoured to say so far is that section 2(a) of the Public Offices (Protection) Act protects a Public Officer from any proceedings on any act or omission he had done or left undone, if the suit is not commenced within three months from the date the cause of action accrued. The section does not make room for any inquiry into the conduct of the Public Officer in the course of exercising his official functions before the Act can apply. No, it does not. As long as the Public Officer acted within the colour of his office, what the court is to decide is whether the action is maintainable and not whether the Public Officer is liable. Where however, a Public Officer acts on a frolic of his own, he cannot be protected under the Act. The defendants submitted further that the words “any person” used in the above section of the Act is not restricted to only natural persons but also includes artificial persons, relying on the Court of Appeal decision in A.G., Federation v. Abacha (supra) at p. 24 paras D – F where His Lordship Okoro, JCA held as follows – Again, it is not in dispute whether the appellant is a Public Officer or not. This appears settled. That notwithstanding, I need to stress that the words ‘any person’ used in section 2 of the Public Officers Protection Act is not limited to only natural persons or human beings. It admits and includes artificial persons such as corporation sole, company or anybody of persons corporate or incorporate. This definitely includes the Attorney General of Federation, the appellant in this case. Commenting on the purport of the Public Officers Protection Act, the Court of Appeal coram Adukwe-Anyanwu, JCA held as follows in Officer in Charge GPG v. Gudu (supra) at p. 165 para D – F: Limitation legislation sets out limitation period for different classes of cases. In the instant case the petitioner waited for over a year before instituting this action. See Sanni v. Okene Local Government [2005] 14 NWLR (Pt. 944) 60 where it was held – The main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. The reason behind the limitation law is to give a time frame within which period an aggrieved Plaintiff can commence action. When a claim is stale by effluxion of time, evidence is also stale. The limitation period is to guard against stale claim which become an inconvenience to the defendant. Outside the limitation period the Plaintiff still has a cause of action that unfortunately cannot be enforced any longer. To the defendants, the Supreme Court has held that where a defendant raises a defence that the plaintiff’s action is statute-barred and the defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out, relying on the Supreme Court decision in NPA Plc v. Lotus Plastic Ltd (supra) at page 189 paras F – G., where the apex court coram Mohammed, JSC held thus – Where the defendant raises a defence that the plaintiff’s action is statute-barred and he (sic) defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out. See Egbe v. Adefarasin [1987] 1 NWLR (47) 1 at 15 and Eboigbe v. NNPC [1994] 5 NWLR (347) 649 at 666. This should be the fate of the 1st Respondent’s case both at the trial Federal High Court and the Court of Appeal. In urging this Court to dismiss this action for being statute-barred and consequently for want of jurisdiction, the defendants placed further reliance on the following judicial authorities – 1) William O. Olagunju & anor v. Power Holding Company of Nigeria Plc [2011] 10 NWLR (Pt. 1254) 113. 2) Ibekwe v. Nigeria National Petroleum Corporation [2011] 6 NWLR (Pt. 1243) 245. 3) Unreported ruling of the Enugu Division of this Court delivered on 5th March 2012 in Suit No. NIC/EN/15/2011 (Professor S. O. Uniamikogbo v. Governor of Edo State & ors). 4) Unreported ruling of this Court delivered on 30th November 2011 in Suit No. NIC/ABJ/10/2011 (Michael Sugh v. Nigeria Army & ors). In conclusion, the defendants urged the Court to resolve the sole issue for determination in favour of the defendants, allow the preliminary objection and dismiss the suit filed by the claimant i.e. Suit No. NIC/ABJ/120/2011 for being statute-barred on the following grounds – 1. The claimant’s appointment was terminated on 18th March 2010. 2. The suit of the claimant filed on 20th December 2011 is statute-barred having been filed outside the statutory period of three months. The claimant’s side of the story is that he is the Chairman of Academic Staff Union of Polytechnics (ASUP) Auchi Polytechnic Chapter. That before the 3rd defendant was appointed Rector of the 1st defendant the Local Chapter of ASUP under the leadership of the claimant instituted an action against her appointment on the ground that she was not qualified to be appointed the Rector of the 1st defendant. The 3rd defendant on being appointed the Rector and being part of the 2nd defendant used her position and influence to break up ASUP Auchi Polytechnic Chapter into factions and recognized the faction headed by Elder Odidison and loyal to her as the official ASUP to deal with even when the persons who constituted the factions were not elected thus culminating in a law suit between the two fractions of ASUP, Auchi Polytechnic Chapter in Suit. No. FHC/B/CS/53/08. That the defendants directed the factions to withdraw the suit from Court which directive was complied with by the claimant as Chairman of ASUP, Auchi Polytechnic Chapter. The claimant continued that he suffered assassination attempt upon which he petitioned the police consequent upon which the 3rd defendant and the leaders of the opposing faction were invited for interrogation by the Police. That it was based on the claimant’s report to the police and the withdrawn suit that a query was issued to him and a panel was set up to try him for the allege disobedience of Council’s directives. In prompt response to this unprovoked victimization and harassment and threat of termination of appointment actuated by malice, the claimant filed an action at the Federal High Court, Benin City against the actions of the defendants herein and sought to restrain them by simultaneously filling an application for interlocutory injunction in Suit No. FHC/B/CS/62/2010. That it was during the pendency of the suit and the motion for interlocutory injunction that the defendants issued the letter dated 18-3-2010 “terminating the appointment of the defendant”. The claimant went on that while the suit was still pending the 1999 Constitution of the Federal Republic of Nigeria was amended vide the Third Alteration to the Constitution. The said amendment divested the Federal High Court of the jurisdiction to try the matter for which it earlier had jurisdiction and vested same in this Court. The claimant then brought an application to have this suit transferred to this Court but the defendants deliberately misled the Federal High Court and the suit was erroneously struck out. The claimant then re-filed the suit in this Court vested with the jurisdiction to try this case, and redress the actions carried out when Suit No. FHC/B/CS/62/2010 was pending at the Federal High Court, Benin City. To the claimant, the defendants’ preliminary objection on the ground that the instant case is statute-barred is not sustainable because the instant suit is not a new action but an action for which the Federal High Court declined jurisdiction and refused to transfer same even in the face of the clear provision of section 24(4) and (3) of the National Industrial Court Act 2006. The claimant then framed two issues for the determination of this Court, namely – 1. Whether from the admitted facts in the statement of fact the letter of termination dated and issued on 18th day of March 2010 pendente lite terminating the appointment of the claimant can be relied upon to raise the defence of statute of limitation. 2. Whether having regard to the circumstance of this case Suit No. NIC ABJ/120/2011 is statute-barred. On issue 1, the claimant submitted that Suit No. FHC/B/62/2010 (Mr. Friday v. Auchi Polytechnic Auchi & ors) filed on 17-3-2010 with an application for interlocutory injunction at the Federal High Court Benin City challenging the process that led to the termination of the claimant’s appointment vide letter dated 18-3-2010 was made pendente lite or during the pendency of the said suit and the motion for interlocutory injunction. The claimant then cited Military Governor, Lagos State v. Ojukwu [2001] FWLR (Pt. 50) 1779 at 1801, where according to him the Supreme Court held as follows – After a Defendant has been notified of the pendency of a suit seeking an injunction against him, even though the temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status quo wholly irrespective of the merit as may be ultimately decide. Mr. Justice Surtherland delivering the judgment of the Supreme Court of the United States of Africa, said at P. 102. Such a proceeding is analogues to a suit in equity to obtain an injunction and should be governed by like consideration…The rule is well settled both by the Courts of England and of this Country, that where a Suit is brought to enjoin certain activities for example, the erection of a building or other structure, of which the Defendant has notice, the hands of the Defendant are effectually tied pending a hearing and determination even though no restraint order or preliminary injunction be issued. We briefly revised the decision. In Daniel v. Feguson (1891) 2 Ch 27 CA, Suit had been brought to restrain the Defendant from building so as to darken Plaintiff’s lights. Notice of Motion for a temporary injunction to be made upon a designated date was served on the Defendant after receiving notice, the Defendant put a large number of men and proceeded with his building, running a wall up a height to about 39 feet from ground before the injunction was granted. The Court without regard to the ultimate rights of the parties held that the wall thus run by the Defendant should be torn down at once, as an attempt to anticipate order of the court. A like situation was presented in Von Joel v. Horsey (1895) 2 Ch 27 a-ca in that case, the evidence showed that the Defendant repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building with regard to pull down that part of the building thus erected. The Supreme Court Pensylvania in several case had followed the same rule Clark v. Marin 49 PA 286, Cooke v. Boynton 135A, 600, Fredricks v. Huber 180 PA 575, 37A 90…. The conclusion to be drawn from all cases is that after a Defendant has been notified of the pendency of a Suit seeking an injunction against him even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as they may be ultimately decided 1 High, inj. 4th ed 5(a) we hold the principle of the rule to be applicable to the present case. When the proceedings were instituted by the commission and the Registrar was called upon to show cause why a stop order should not be issued, the practical effect was to suspend, pending the enquiring (all) action of the Registrar under the Statement. Applying the principle enunciated in the above case to this case, the claimant submitted that the defendants being aware of the Suit No. FHC/B/CS/62/2010 before issuing the letter of termination cannot rely on same to raise the defence of the Public Officers Protection Act. That this Court has the power to restore the status quo wholly irrespective of what the outcome of this case will turn out to be at the end. In Umoh v. Tita [1999] 12 NWLR (Pt. 631) 436 D – E Obadina, J CA delivering the lead judgment put it thus – It is reprehensible conduct for any party to an action pending in court to proceed to take law into his hand (without any specific order of the court) and to do any act which would pre-empt the result of the act. The courts frown against such a conduct and would always invoke their disciplinary power to restore the status-quo. That the letter dated 18-3-2010 having been issued pendente lite cannot be used to defeat the course of justice. To the claimant, it is now settled law that the Public Officers Protection Act is meant to protect public officers who acted in good faith, referring to the a number of cases starting with Nwankwere v. Adewunmi [1966] 1 ANLR (Reprint) 199 at 124, where Brett, JSC put it succinctly thus – The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. Also in Lagos City Council v. Ogunbiyi [1969] ALL NLR at 299, Ademola, CJN also put the point graphically thus – …The Act necessarily will not apply if it is established that the Defendant had abused his position for purposes of acting maliciously. In that case he has not been acting within the terms of statutory or legal authority he has not been bona fide endevouring outing to carry it out. In such state of facts he has abused his position for the purpose of doing wrong and the protection of the Act of course never could apply to such a case. Next is the Court of Appeal decision of University of Ilorin v. Adeniran [2007] 6 NWLR (Pt. 1031) 498 at 535 F – H where Agube, JCA was of the view that malice and acting without legal authority could vitiate the defence in the Public Officers Protection Act. Relying on the Supreme Court decision of Egbe v. Adefarasin [1985] 1 NWLR (Pt. 3) at 560 to advance this view the learned Justice of the Court of Appeal held thus – The issue of malice in connection with section 2(a) of the Public Officers Protection law arises in two circumstances. A public officer might have done an act in pursuance of execution of a law or his public duty with interior motive. Such as helping himself or his friend or injuring the Plaintiff. Another public officer may, while a public officer and under covers of the officer do an act contrary to or not authorized by the law or not in accord with his public duty. If both acts result in an injury to a Plaintiff, it may be said that they acted maliciously. Then came the case of Offoboche v. Ogoja Local Government Council [2001] 8 MJSC 153 at 165 where the Supreme Court put a stamp of finality on the point that malice vitiates the defence of Public Officers Protection Act in the following words – Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers Protection Law, of such Protection. The burden is on the plaintiff to establish that the Defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or that he had acted in error of judgment or in honest excess of his responsibility, will not amount to bad faith or abuse of office is use of power to achieve ends other than those for which power was granted for example for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Further still, the Supreme Court drove this point home when it held at page 166 thus – That once a Defendant did not deny the standard averment in an action for libel that the Defendant falsely and maliciously published or cause to be published falsehood about him, that amounted to admission of malice which would remove the protection of the Public Officers Protection Act. The claimant then submitted that while he pleaded malice, lis pendens and victimization as grounds of his action, the defendants did not file a defence. Instead they merely raised the defence of the Public Officers Protection Law. That the position of the law is that an application by way of preliminary objection for the dismissal of an action in limine is best resorted to where the facts necessary for the determination of the objection are settled and no longer in dispute. The defendant/objector having conceded and relied upon the averments in the plaintiff’s claim is deemed to have admitted the facts as averred therein, referring to Societe Bis S.A. v. Charzing Industries Limited [2005] 31 WRN 61 at 87 lines 30 – 45. Also that in Okoye v. Nigeria Construction & Furniture Co. Ltd [1991] 6 NWLR (Pt. 199) 501 at 528 N – A, Akpata, JSC put it graphically in his lead judgment thus – I will like to add that when the jurisdiction of the Court is challenged by way of the demurer, it is not only “neater and far better to settle that issue one way or another before proceeding to hearing of the case on the merit”, it is imperative that the issue be settled on the allegations contained in the statement of claim without taking oral evidence. It is assumed at that stage that the allegations of the plaintiff were admitted or established by the defendant. The legal position as to the competence or otherwise of the trial court to entertain the case is arrived at solely on the facts disclosed in the statement of claim. It is the submission of the claimant that on the above authority it is deemed that the defendants/applicants have admitted that the averment of claimant that the process leading to and the letter of termination were actuated by malice. The claimant continued that the defendants had relied on the Court of Appeal decision of Attorney General of the Federation v. Abacha [2010] 17 NWLR (Pt. 1221) 1 at 27 B – C to submit that once a public officer acted within the colour of his office, what the Court is to decide is whether the action is maintainable and not whether the public officer is liable. To the claimant, the case relied upon and the case of University of Ilorin v. Adeniran (supra) relied on by defendants to advance the argument that malice violates the defence in the Public Officers Protection Act are both Court of Appeal decisions. The claimant went on to submit that a person who used power to achieve ends other than those for which the power is granted or wreak vengeance on an opponent cannot be acting within the colour of his office, citing Offoboche v. Ogoja Local Government (supra). That in this case, the claimant alleged that he is being victimized because he spearheaded the protest against the appointment of the Rector that went to court. There was an attempt on his life and that the Rector factionalized ASUP and was dealing with the illegal faction and finally he was asked to withdraw his case from court and in spite of the fact that he complied with the directive his appointment was terminated based on that directive. That there cannot be a clearer case of malice than what is deemed the admitted facts as pleaded, urging the Court to so hold. Finally on this point, the claimant submitted that where the action is filed within time, the defence is not available to the defendant and there will be no basis to consider malice to vitiate the defence. It is only when the action is filed out of the statutory period of filing the action that the issue of malice will be considered. The claimant then urged the Court to hold that the malice defeats the defence available to a defendant under section 2(a) of the Public Officers Protection Act, urging the Court to resolve issue 1 in favour of the claimant. Regarding issue 2, the claimant repeated and adopted the argument on issue 1. Further to the argument canvassed on issue 1, the claimant made the following additional submission. That in determining whether a court has jurisdiction to entertain an action the court is enjoined to look at only the writ of summons and statement of claim, citing Adeyemi v. Opeyeri [1976] 9 – 10 SC 31 and Madu v. Mbako [2008] 10 NWLR (Pt. 1095) page 293 at 325 A – B. Applying this principle to this case, the claimant submitted that it is from the statement of facts that this Court will determine whether it has jurisdiction over the claim of the claimant. The claimant also submitted that this Court is enjoined to construe the whole paragraphs in the statement of facts to determine its jurisdiction but not particular paragraph(s) in the statement of facts, citing NIDC v. A-G Nasarawa State [2008] 29 WRN 61 at 86 lines 20 – 35 where the Court succinctly put it thus – It is an established principle of law that the plaintiff’s claims in the writ of summons and the averments in his statement of claim determine whether or not a given case comes within the jurisdiction conferred on a court. Further referred to the Court are Bable v. Abdulkadir [1993] 3 NWLR (Pt. 281) 253; OHMB v. Garba [2002] 14 NWLR (Pt. 788); Trade Bank Plc v. Benilux (Nig) Ltd [2003] 39 WRN 39; NWLR (Pt. 825) 416; APC Ltd v. NIDC NUB Ltd [2006] 15 156; [2006] 15 NWLY (Pt. 1002) 404 at 404 (incomplete citation) and Onwudiwe v. FRN [2006] 49 WRN 1; 2006 10 NWLR (Pt. 988) 382. The claimant went on that an objection taken to the claim of the claimant in limine presupposes that the defendant has admitted the facts as found in the statement of facts. That by paragraphs 26, 37, 38 and 39 of the statement of facts, the claimant eloquently pleaded that the action was first filed at the Federal High Court, Benin City and within time and that upon his application to transfer the case to the National Industrial Court now vested with jurisdiction to try the case, the Federal High Court, Benin City struck out the action for want of jurisdiction. The claimant then commenced the action de novo by the re-filing same in this Court. That it is settled law that where a court finds out that it lacks the jurisdiction it merely strikes out the case. In Din v. Attorney General of the Federation [1986] 1 NWLR (Pt. 17) 471 at 508G Ogundare, JCA (as he then was) held as follows – Where a court holds that it has no jurisdiction or competence to entertain an action it does not dismiss the action but merely strikes it out. For a dismissal is an adjudication on the merit and there can be no adjudication on the merit where there is no jurisdiction to adjudicate. That in Akinbola v. Plisson Fisko Ltd [1988] 4 NWLR (Pt. 88) 355 at 344 – 345 H – A, Akpabio, JCA held thus – What the Federal High Court did was right, by merely refusing to entertain the suit on the ground that it has no jurisdiction. By striking out the suit, the parties were then able to come back to the Court of Appeal and complain that the Federal High Court has refused to carry out the order we gave. We shall then be in a position to amend our order, if there was some error in it, to take some other steps to enforce it if it was correct. We should also mention that apart from the special circumstances of this case, it is the general rule that when a court has no jurisdiction to try a case the proper order to make is to strike out the action rather than dismiss it (see Ojora v. Oduns [1959] 4 FLC 189 per Ademola, CJF). Also in Iwuaba v. Nwaosigwelem [1989] 5 NWLR (Pt. 123) 623 at 633 H – A, Kolawole, JCA delivering the lead judgment held thus – A person who asserts the right claimed or against whom the right is exercisable must be present to give the court the necessary jurisdiction. Presence here is not physical presence. He put in appearance through counsel, but if he make a plain and in a second breath asserts the claim belongs to another person (as in this case), that other person cannot be said to be present to prosecute the claim that has been made on his behalf…I think the proper order when the court has no jurisdiction to adjudicate upon a matter for whatever reason, like the parties before the court having no locus standi, is to strike out the action. The claimant the submitted that the reason for not dismissing an action where the court finds out that it has no jurisdiction was given in clear and unmistaken terms by the Supreme Court of Nigeria Coram Niki Tobi, JSC in the case of Fasakin Foods Nig. Ltd v. Shosanya [2006] 40 WRN 138 at 171 paras 35 – 45 where it was held thus – It is the common law tradition, if I may say so, that where a court lacks jurisdiction, the order is to strike out to enable them commence the action de novo in a competent court of jurisdiction. The Supreme Court Coram Niki Tobi, JSC further drove the point home in the case of Inakoju v. Adeleke [2007] 2 MJSC 1 at 48 F – G where it was held thus – Where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the Plaintiff another opportunity to file the action, if possible, in a Court of competent jurisdiction or by way of amending the action to fall in line with the Court it was initially filed. By this, the Plaintiff is given an opportunity to have a second bite at the cherry and that is not bad. The claimant then submitted that ex facie the cause of actions arose on 18-3-2010 albeit during the pendency of Suit No. FHC/B/62/2010 struck out on 15-12-2011, the three months provided for in the Public Officers Protection Act challenging the action of the defendants cannot start counting from 18-3-2010 but from the day the action was struck out i.e. 15-12-2011. This is the true position and logical because the termination of the appointment will in fact commence from the day the action was struck out as everything done by the defendants in relation to the claimant’s employment was done pendente lite and was illegal in the eyes of the law. This is more so when the defendants took steps to defend their action till the 15-3-2012. When the action was struck out the period they were in court cannot be taken into reckoning as the matter was sub judice. That this scenario caught the attention of the learned author of the book, Limitation of Action, Statutory and Equitable Principles Vol. 1 by Jerry Amadi at page 330 where he stated thus – One point which does seem to be unresolved by decisions of Court is the possibility of an action to be filed after the expiring of time, when a prior similar action, filed within the statutory time failed. Put another way, can the claimant file another action after the period of limitation had set in on justification that a previous action had been filed within time, except that prior action failed or was not determined on the merit. At page 331 the learned author commented thus: It is doubtful which of the position could meet justice to allow the claimant pursue a fresh action outside time or to bar him for fault which may not be his own or for mistake which was honest if parliament deprives the court seised of the first action Jurisdiction by a new statue passed in the interim, it will dictate against justice to bar the claimant for a fault which was not his. The Court which he sought justice had jurisdiction when the claimant approached it. Parliament would not have intended to employ its machineries to deprive rights it had granted by statutory mean. The claimant then submitted that if it had been the intention of our court to extinguish the right of a party who commenced his action in a wrong court the consequential order would have been for the court to dismiss the action. To the claimant, the authorities cited by the defendants’ counsel to have this action dismissed are not applicable to this case. That those authorities are in respect of cases where the parties slept over their rights and did not commence the action within a period of three months from when the cause of action arose, the case of the claimant herein is different in that he filed the action within time and the letter dated 18-3-2010 terminating his appointment was issued when the action was already pending in court. The claimant continued that it is the law that a case is decided on the facts presented to a court. A case is not decided in vacuo or in vacuum. Accordingly, a ratio decidendi in one case may not be applicable in another case where the facts are quite different. Where the facts of the case are similar a ratio decidendi in one case may apply to other, citing Idoniboye-Obu v. NNPC [2003] 4 MJSC 131 at 1631G. That it is now settled law that certain amount of common sense must be applied in construing statute and the object of the statute must be considered, citing University of Ilorin v. Adeniran (supra) page 541F. The claimant then submitted that the Public Officers Protection Act is a law meant to protect public officers against action filed by persons outside 3 months allowed by the Act and not those who filed within 3 months period allowed by the Act and had their cases terminated without deciding on the merit. That the case of A-G Federation v. Abacha (supra) cited by the defendants is not applicable in this case. In that case, the letters of request for international assistance to the U.K, Jersey, Liechtenstein, Luxembourg and Switzerland to freeze the accounts of the respondent were written between 20th of December 1999 and the year 2001. The respondent did not institute this action until 5th April 2004, clearly more than three months after the accrual of the right to sue or cause of action. In the instant case, the claimant filed an action challenging the process leading to the letter of termination which letter was issued pendente lite and the action was struck out for want of jurisdiction, hence the claimant re-filed the same action based on same facts before this Court. To the claimant, therefore, the scenario in this case is different from the scenario in all the authorities cited by the defendants, urging the Court to hold that they do not apply. The claimant then urged the Court to resolve issue 2 in favour of the claimant and dismiss the objection. On the whole, the claimant urged the Court to resolve all the issues in favour of the claimant and dismiss this preliminary objection. In orally adopting their written address, the claimant’s counsel referred the Court to the additional cases of FRN v. Ifegwu [2003] 5 SC 241 at 275; Obiuweubi v. CBN [2011] 2 – 3 SC (Pt. 1) 46 at 86 and Adefulu & 16 ors v. Okulaja & 7 ors [1995] All NLR 340. In reply to these cases, the defendants’ counsel submitted that the three cases do not support the claimant’s case and then referred the Court to section 11(1) and (20 of the NIC Act 2006 arguing that this Court does not have jurisdiction to deal with the present matter. That what the claimant ought to have done was to appeal against the Federal High Court’s refusal to transfer the case. The defendants then referred the Court to Adebanjo v. Ogun State Sports Council [2005] Vol. 45 WRN 172 at 179. In considering the merits of the preliminary objection, I wish to note that the claimant’s argument to the effect that he brought an application to have the suit at the Federal High Court transferred to this Court but the defendants deliberately misled the Federal High Court and the suit was erroneously struck out is not substantiated in terms of the defendants deliberately misleading that Court. The issue for the determination of this Court is whether the instant action is statute-barred on the basis of section 2(a) of the Public Officers Protection Act LFN 2004. In support of their respective submissions, both parties filed supporting affidavits. I must, however, state here that paragraph 7 of the defendants’ affidavit in support of the preliminary objection, in stating that “the suit of the plaintiff i.e. Suit No. NIC/ABJ/120/2011 is statute-barred”, is a legal argument and a conclusion and so it offends section 115 of the Evidence Act 2011, which in subsections (1) and (2) provides that – (1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. (2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. That paragraph is consequently discountenanced for purposes of this ruling. Regarding paragraphs 8, 9, 18 and 21 of the claimant’s counter-affidavit, they are argumentative and conclusions and so also offend section 115(1) and (2) of the Evidence Act 2011. The said paragraphs provide thus – 8. That the letter of termination of my appointment was actuated by malice and not bona fide. A copy of that query letter disclosing the alleged offence from which malice can be inferred is attached herewith as Exhibit “BAA1”. 9. That members of the panel were and only bias but carried out the biding of the Rector of the Polytechnic. 18. That the Applicant cannot rely on letter dated 18-3-2010 terminating my appointment to raise the issue of the limitation period provided in the Public Officers Protection Act Cap. P41 Laws of the Federation 2004. 21. That the Defendant/Applicant is the one who deliberately misled the court not to transfer the Suit No. FHC/B/CS/62/2010 to raise the Statute of [L]imitation. They are also accordingly discountenanced for purposes of this ruling. I now turn to the merit of the preliminary objection. Only recently, this Court in Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, reviewed the authorities regarding the Public Officers Protection Act (a limitation law) in the following words, which I take the indulgence to quote extensively – In Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, it was held that the question or issue of whether or not an action is statute-barred, is one touching on or goes to jurisdiction. See also the case of Emiatar v. The Nigerian Army & 4 ors [1999] 12 NWLR (Pt. 631) 364 at 372; [1999] 9 SCNJ 52. When a court is called upon to decide whether a case is statute-barred, all the court must do is look at the originating processes of the claimant and look out for two things: when the claimant states his cause of action arose; and when he filed his suit before the Court. See Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 where it was held that limitation of action is determined by looking at the writ of summons or the statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the writ of summons was filed. In relief 1 on the face of the complaint and the statement of claim and the sworn deposition of the claimant, the claimant himself stated that he was dismissed in December 2000. And in reliefs 3 and 4, the claimant is claiming for his monthly salary from March 1996 till date of judgment. He filed this suit before this Court on 11th June 2012. If we take the December 2000 date, this means that he took over 11 years before coming to court. Section 2(a) of the Public Officers Protection Act 2004 gives three months as the period within which a claimant must come to court in an action against a public officer (Chief Yakubu Sani v. Okene Local Government Traditional Council [2008] 5 – 6 SC (Pt. II) 131 held that all actions against public officers in respect of their official actions must be commenced within three months from the date the cause of action arose), a term that has been held to include not just natural persons who hold public office but the public office or institution itself. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 39 and 41 and Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors [2009] 43 WRN 124 CA at 145. What all this means is that the claimant came to court outside of the permitted three months; and hence against the law. The law, by Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 and Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, is that a cause of action is said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Act or Law has elapsed. In fact where the appellant was dismissed from service on 30th January 1990 but he filed and commenced the suit in question on 28th June 1996, the Supreme Court in Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253 held that the appellant’s action, having been filed outside of the three months’ period required by section 2(a) f the Public Officers Protection Law cap. 121 Laws of Kano State, was, therefore, statute-barred. The argument of the claimant that the defendant did not lead evidence in proof of its objection is turning upside down the logic of principle. In a plea of a matter being caught up by the limitation law (the Public Officers Protection Act 2004 is a limitation law), all that is required of the applicant is to show from the originating processes when the cause of action arose and when the action was filed in court. Once this duty has been discharged, it is for the claimant to show that the matter comes within any of the permitted exceptions to the limitation law such as that the injury in question is a continuing injury or that the public officer acted mala fide i.e. outside the colour of his office or employment or outside his statutory or constitutional duty. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 32. However, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors (supra) at page 146, applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC. I[t] is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard. Also misconceived is the argument of the claimant’s counsel that because the claimant wrote letters to the defendant, which were not replied to, “the hope of the claimant was kept alive till 11th June, 2012 when this action was instituted”, by reason of which the cause of action could not have arisen in 2000. The authorities are pretty clear that time runs continually irrespective of intervening acts on the part of the parties. See SPDCN Ltd v. Ejebu (supra), Ibidapo v. Lufthansa Airline [1997] 4 NWLR 124 SC and UTA French Airlines v. Williams [2000] 14 NWLR 271. In fact, in UTA French Airlines v. Williams, the plaintiff had first filed the action, within the limitation time, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. And by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period. Counsel to the claimant, in his submissions, did not seem to appreciate the rationale behind the limitation law. By Shamsideed Abolore Bakare v. Nigerian Railway Corporation [2007] 7 – 10 SC 1, limitation of action is the principle of law requiring the plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by law (Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253) except the claimant can show that the case comes within any of the laid down exceptions, which I must state the claimant has not succeeded in showing in the instant case. From the originating processes in the instant case, the evidence before the Court is that the claimant had filed an action (Suit No. FHC/B/CS/62/2010) at the Federal High Court sitting in Benin City against the defendants challenging the purported termination of his employment. While the matter was pending in that Court, the Third Alteration to the 1999 Constitution was passed wherein section 254C(1) of the 1999 Constitution, as altered, divested the Federal High Court of jurisdiction over the matter. The claimant’s application in the Federal High Court to have the matter transferred to this Court was rejected by the Judge on the ground that he had no power to transfer the matter to the National Industrial Court. Instead of appealing that decision, the claimant simply filed a fresh case in this Court, the instant case. It is in reaction to the present case that the defendants raised the present preliminary objection arguing that the matter is caught up by the Public Officers Protection Act LFN 2004 given that the instant case was filed more than three months since the cause of action arose. From the statement of facts particularly paragraph 6, the “Defendants are sued jointly and severally for their various roles in the issuance of a letter dated 18-3-2010 purportedly terminating the appointment of the Claimant as an academic staff of the 1st Defendant”. Since the issuance of this letter is the basis of the present action, paragraph 6 of the statement of facts squarely puts the cause of action as arising on 18-3-2010; and I so find and hold. The next issue to determine is when the instant case was filed. The records show that the instant case was filed in this Court on 20/12/2011. This means that the instant case was filed some 21 months after the cause of action arose on 18-3-2010, a period way out of that allowed by the Public Officers Protection Act; and I so find and hold. The instant case is accordingly caught up by section 2(a) of the Public Officers Protection Act 2004; and I so hold However, the case of the claimant is that the defendants were aware of the pendency of Suit No. FHC/B/CS/62/2010 before issuing the letter of termination to him; and since this is the case the defendants cannot rely on same to raise the defence of the Public Officers Protection Act. In support of this stance, the claimant cited a number of case law authorities chief amongst which are Fasakin Foods Nig. Ltd v. Shosanya [2006] 40 WRN 138 at 171 (where Niki Tobi, JSC held that it is the common law tradition that where a court lacks jurisdiction, the order is to strike out the case to enable them commence the action de novo in a competent court of jurisdiction) and Inakoju v. Adeleke [2007] 2 MJSC 1 at 48 (where Niki Tobi, JSC held that where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the plaintiff another opportunity to file the action, if possible, in a Court of competent jurisdiction or by way of amending the action to fall in line with the Court it was initially filed; and that by this, the plaintiff is given an opportunity to have a second bite at the cherry, which is not bad). The essence of the claimant’s argument is that the defendants are actuated by malice and so cannot claim the benefit of the Public Officers Protection Act. In citing Fasakin Foods Nig. Ltd v. Shosanya and Inakoju v. Adeleke the claimant lost sight of two qualifications present therein: the striking out of the case is to enable a claimant commence the action de novo in a competent court of jurisdiction; and secondly this will be so only if it is possible to so file another case before the Court with competent jurisdiction. The cases of Fasakin Foods Nig. Ltd v. Shosanya and Inakoju v. Adeleke did not in any way state, suggest or intuit that because an opportunity has been given the claimant “to have a second bite at the cherry” by filing a new case before the Court with competent jurisdiction, all the requirements of other laws that may be applicable have simply been waived because a case have been struck out and not dismissed. I indicated earlier in Joshua Mnenge v. Nigerian Army (supra) that the authorities are pretty clear that time runs continually irrespective of intervening acts on the part of the parties and referred therein to SPDCN Ltd v. Ejebu (supra), Ibidapo v. Lufthansa Airline (supra) and UTA French Airlines v. Williams (supra). So when Inakoju v. Adeleke talked about “where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the plaintiff another opportunity to file the action, if possible, in a Court of competent jurisdiction…” it must be read to acknowledge that that will be the case only if all other requirements of law exist and are not absent. The claimant pressed his case further when he cited Jerry Amadi’s book, Limitation of Action, Statutory and Equitable Principles Vol. 1 at page 330 where he stated that “[o]ne point which does seem to be unresolved by decisions of Court is the possibility of an action to be filed after the expiring of time, when a prior similar action, filed within the statutory time failed. Put another way, can the claimant file another action after the period of limitation had set in on justification that a previous action had been filed within time, except that prior action failed or was not determined on the merit”. Relying on this viewpoint by Jerry Amadi, the claimant then submitted that the Public Officers Protection Act is a law meant to protect public officers against action filed by persons outside 3 months allowed by the Act and not those who filed within 3 months period allowed by the Act and had their cases terminated without deciding on the merit. This viewpoint does not seem to take account of the case of UTA French Airlines v. Williams [2000] 14 NWLR 271. In that case, the plaintiff had first filed the action, within the limitation time, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. Indeed, by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period. An appeal to emotions – this is really what the submissions of the claimant relying on Jerry Amadi amounted to – cannot be sustained in the light of the authorities. The instant case before this Court is a fresh case from that of the Federal High Court; and I so find and hold. Further still, the argument of the claimant regarding malice on the part of the defendants does not seem to take account of Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors (supra) at page 146, which applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC. On the whole, therefore, the attempt by the claimant to found his case on malice as an exception to the application of section 2(a) of the Public Officers Protection Act fails in the light of the authorities and reasons given; and I so find and hold. Unpleasant as this may be and sound especially from the standpoint of the claimant who went to the right Court at the time of suing at the Federal High Court only to be legislated out by the Third Alteration to the 1999 Constitution (and here I actually agree with the defendants that the claimant should have appealed against the ruling of the Federal High Court when his application for transfer of the case to this Court was rejected), I hold that the preliminary objection of the defendants has merit and it succeeds. This Court, therefore, has no jurisdiction to entertain the case of the claimant, which is hereby struck out. I make no order as to cost. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip