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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: December 10, 2014 SUIT NO. NICN/EN/91/2013 Between Mr. Ekene Nwabueze - Claimant And 1. Attorney General of the Federation 2. Federal Ministry of Health - Defendants Representation: I. C. Ozemelam for 2nd Defendant/Applicant Mazi Udeagbulam for Claimant/Respondent RULING/JUDGMENT This suit was commenced at the Federal High Court Owerri Division on the 21st day of December 2010. The Claimant herein sought the following reliefs against the defendants: 1. A declaration that the termination of the Plaintiff’s appointment the subject matter of this suit is void. 2. An order setting aside that letter of termination of the Plaintiff’s appointment ref. FMC/OW/P/719 dated 26/5/2009. 3. An Order of Court reinstating the plaintiff to his position including all his accumulated emoluments, benefits and promotion in the Federal Medical Centre Owerri. By a Notice of Preliminary objection dated the 29th day of April 2011 and filed on the 2nd day of May 2011, the 2nd defendant urged moved the court to strike out the entire suit as the court lacks jurisdiction to hear and determine same. The objection was premised on the following grounds: a) That the cause of action is statute barred by virtue of the public officers protection act CAP P41, LFN 2004. This ground was based on the following particulars: i) The Claimant averred in the paragraph (9) of the Statement of Claim that his appointment was determined on 26th May 2009. ii) The Claimant brought this action as shown on the writ of Summons on 21st December 2010, more than three (3) months as required by Section 2(a) of the Public Officers’ Protection Act CAP P41, LFN 2004. b) The 2nd Defendant/Applicant is not a person known to law and therefore cannot be sued. c) The Defendant/Applicant contends that there is no reasonable cause of action made against them in the writ of summons and the Statement of Claim and therefore their name should be struck out. d) That this matter is an abuse of court process. The applicant raised a sole issue for determination, which is whether the jurisdiction of this Court has been properly invoked by the claimant so as to enable the Court hear and determine this Suit. In arguing the sole issue, it was submitted by the applicant that the cause of action in this suit is statute-barred; that under section 2(a) of the Limitation Act Cap, P41 Laws of the Federation 2004, the Claimant has a period of (3) months to institute this action. The Claimant/Respondent has averred in paragraph 9 of his Statement of Claim that his appointment was terminated on 26th May 2009. Section 2(a) of the Public Protection Act reads as follows: “Where any action, prosecution, or other proceeding commenced against any person for any act done in pursuance or execution or intended execution of any Act or law of any public 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” Counsel observed that the claimant also admitted that the Defendants are public officers by statute as averred in Paragraph 1d and 1e of the Statement of Claim. In other words, the Defendants are public officers and therefore can avail themselves of the provision of Section 2(a) of the Public Officers Protection Act, CAP 41 of Laws of Federation of Nigeria. In IBRAHIM vs. J.S.C & ANOR (1998) 14 NWLR (Pt. 548) 1, it was held thus: It has been decided that the period of limitation is only determinable by looking at the Writ of Summons and Statement of Claim alone to ascertain the alleged date of the wrong in question which gave rise to the Claimant cause of action and by comparing that date with the date on which the Writ was filled. If the time pleaded in the Writ of Summons or the Statement of claim is beyond the period allowed by the limitation law, the action is statute barred. See Woherem vs. Emereuwa 2004 6.7 S.C 16; (2004) 13 NWLR (Pt. 890) 398, Solomon vs. African Steamship Co. ………. A plaintiff who might otherwise have a cause of action loses the right to enforce it by judicial process because the period of time laid down has elapsed. See Eboigbo vs. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko vs. Aliri (1991) 3 S.C. 58, (1991) 3 NWLR (Pt. 179) 258. If the Court should look at the date this process was filed in Court and the date in paragraph 19 of the Statement of Claim (which shows when the cause of action arose) the Court would come to the irresistible conclusion that this suit was filed outside the mandatory three months as required by the statute of limitation and therefore the suit is consequently statute-barred. See IBRAHIM vs. J.S.C. (Supra) @ 13. See also ELEBANJO & ORS vs. DAWODU (2008) 15 NWLR (Pt.1001) 76 and NASIR vs. CIVIL SERVICE COMMISSION & ORS (2010) 1-2 S.C. 65. He therefore urged the Court to strike out this suit as the Claimant’s right of action to the Court is totally statute-barred. NON JURISTIC PERSON On this point, Counsel to the applicant submitted that the 2nd Defendant on record is not a juristic person or person known to law. No statutes or Act or Constitution established the 2nd Defendant; therefore it cannot be sued. See Fawehinmi vs. Nigerian Bar Association (1989) 2 NWLR (Pt. 105) 558 of 595. See also Agbonmagbe Bank Ltd. vs. General Manager G.B. Olivant Ltd and Anor (1961) All NLR 116. See also The Administrators/Executors of General Sani Abacha (deceased) vs. Samuel David Eke-Spiff & 3 ors (2009) 2-3SC (Pt. 11) 93. NO REASONABLE CAUSE OF ACTION It was counsel’s submission that no reasonable cause of action had been made against the Defendants. In all the twelve (12) paragraphs of the Statement of Claim as averred by the Claimant, no cause of action is made out against the Defendants. A cause of action is in general defined as facts or situations arising from facts from which there may emanate a right of action for which a remedy may be sought. See Lasisi Fadare & Ors vs. Attorney General of Oyo State (1982) 4 S.C. (Reprint) 1; (1982) FWLR 26, Fred Egbe vs. Adefarasin (1987) 1 NSCC 1 and UBA Plc vs. B.T.L. Industries Ltd (2006) 12 SC 63: See also Charles Oladeinde Williams vs. Madam Olaitan Williams (2008) 4.5 SC (Pt. 11) 253. Further arguments proffered by Counsel to the Applicant were to the effect that the subject matter of this case had been adjudicated to judgment by the Federal High Court in Suit No. FHC/OW/CS/58/2009 on the 4th May 2010. This present case is not an appeal against the earlier ruling of the Federal High Court in this case. In any case, a court cannot sit on appeal over its own judgment. It is an abuse of the judicial process to the face of the court to re-litigate before the same Court, an issue that the Court had competently adjudicated. It is more disturbing when it is clear that the plaintiff contemptuously elect to abuse the ruling of a Court before the same judge. The abuse takes the following forms: (a) In the earlier ruling of this Court, the proper parties were identified to assist the plaintiff. The plaintiff in its neglect of the ruling of this Court did not like the advice of this Court. It is important to point out that, “advice” when such “advice” is made part of the ruling of the Court, as a requirement of justice and conferment of jurisdiction in the Court, any neglect of same is a blatant abuse that must not be condoned particularly by the same Court. (b) Furthermore, the present case discloses no reasonable cause of action as a required by law against the defendants. As none of the wrongful act of the defendant was disclosed neither has the plaintiff shown the damage suffered from any of the action of the defendants. The mere allegation that one is the supervising Ministry is neither a wrongful nor does it occasioned any damage to the plaintiff. The disclosure of a reasonable cause of action is a condition precedent to the assumption of jurisdiction by the Court. Since one cannot hang something on nothing and expect it to stand, where the condition precedent is absent, the jurisdiction to the case by the Court is absent. The jurisdiction of the Court is the power of the Court and pillar upon which the plaintiff’s case stand. And it ought to be decided as a threshold issue without going to any form of hearing or trial. The court was therefore urged to hold that this case has four fundamental features; these are: (1) Subject matter of this case had been adjudicated by this Court and therefore the case ought not to be here. (2) That the present suit is an abuse of judicial process and should not be condoned beyond this level. (3) That the case discloses no reasonable cause of action for hearing. (4) That from the totality of present case as constituted, the condition precedent which the law required to be on ground before the court assumes jurisdiction in this matter are absent. Counsel therefore urged the Court to dismiss this suit. In summary, Counsel submitted that he has raised in this preliminary objection that the cause of action in this suit is statute barred having been filed outside the three (3) months provided by the Statutes of Limitation Law. He has also stated that no reasonable cause of action has been made against the Defendant in this Suit; and that the 2nd Defendant lacks the competence to be sued and therefore urged the court to dismiss this suit. In opposition to the defendant’s preliminary objection, the plaintiff relied on his 11 – paragraph affidavit filed along with this address, and submitted that the grounds on which the preliminary objection is premised are unfounded. Counsel proceeded to give the following summary of facts: Following the termination of the Plaintiff’s appointment as a Principal Medical Laboratory Scientist vide the letter dated 26/5/2009, the plaintiff commenced an action in Suit No. FHC/OW/CS/58/2009 – MR. EKENE NWABUEZE vs. FEDERAL MEDICAL CENTRE OWERRI at the Federal High Court Owerri on 29/7/2009. The defendant took out a Preliminary Objection to the suit on grounds that the Federal Medical Centre was no a juristic person. The objection was upheld and the suit was struck out. Subsequently, the plaintiff commenced another suit at the Federal High Court Owerri against the Attorney-General of the Federation on the subject matter but there was another preliminary objection on grounds that leave was not first sought and obtained before the writ of summons was served in Abuja. The second suit was again struck out based on the preliminary objection raised; hence the plaintiff commenced the present suit against the Attorney General of the Federation and the Federal Ministry of health. Again, the defendant has brought this preliminary objection of grounds that the matter is statute barred, amongst others. Counsel to the applicant proceeded to formulate a sole issue for the determination of the court which is: “Whether in the circumstances of this case, the preliminary objection should be granted”. In arguing the sole issue, Counsel to the Claimant submitted that in the peculiar circumstances of this case the preliminary objection is lacking in merit and should not be granted. He went on that the defendant’s resort to Section 2(a) of the Public Officers’ Protection Act supra is to ensure that public officers in the lawful discharge of their duties are not unduly distracted by stale state claims in the discharge of their public duties. He submitted that the purpose sought to be achieved by the Public Officers Protection Act has no application to the present suit. The plaintiff timeously commenced legal proceedings to challenge the unlawful termination of his appointment within the statutory 3 months period. See Exhibit “A” (the copy of the writ of summons in suit No. FHC/OW/CS/58/2009. The plaintiff’s appointment was terminated on 26/5/2009 and he filed that suit on 29/7/2009. For all intents and purposes the plaintiff has demonstrated his desire to challenge the termination of his appointment by the first suit he filed in Court which unfortunately suffered a technical hitch. The second suit suffered a similar fate with the effect that none of the suits were ever determined at all on the merit. Counsel went on to submit that the striking out of a suit on a preliminary objection is no bar to commencement of a fresh suit. See: SHANU vs. AFRIBANK NIG. PLC (2000) 13 NWLR (Pt. 684) PG 392 at 401 E – F, F.C. E. OKENE vs. OGBONNA (2006) 7 NWLR (Pt. 979) Pg. 282 at 299 C- D. According to the Claimant’s counsel, the decisions in IBRAHIM vs. J.S.C & ANOR (1998) 14 NWLR (Pt. 584) 1 and others cited by the defendant were decided on their peculiar facts and circumstances which are quite different and distinct from the circumstances of the instant suit. For instance in IBRAHIM vs. JSC (Supra), the plaintiff in that suit was compulsorily retired on 8/2/85 as an Upper Area Court Judge in Kaduna State but he only commenced suit to challenge his compulsory retirement on 28/4/86 more than a year when the cause of action arose, hence that case was so decided by the Supreme Court. The situation however is different in this present suit as the plaintiff (Ekene Nwabueze) challenged the unlawful termination of his appointment within the statutory 3 months period except that the action had a technical hitch. Counsel submitted that facts are the springboard of the law. It is the facts of the case that determine the appropriate remedy; so held the Supreme Court in ABDULHAMID vs. AKAR (2006) 13 NWLR (Pt. 996) Pg. 127 at 147 C- F. A case is only an authority on the peculiar facts on which it was decided. The Court is a Court of law and equity and equity will not suffer a wrong to be without a remedy and this is moreso when it has not been shown that the plaintiff was indolent in prosecuting his claim. The defendant’s insistence that the Court should only look at the date of the present suit to determine the time when the plaintiff took steps to challenge the termination of his employment is not only unconscionable but an attempt by the defendants to effectively shut the door of justice against the plaintiff. A party should not be allowed to use Court processes to stifle the course of justice or frustrate the other party see: OLUYEMO V TITLAYO (2009) All FWLR (Pt. 485) PG 1674 at 1694 E. To counsel, a suit that is merely struck out as opposed to the one that is finally dismissed is not decision on the merit. See INEC vs. AGBASO (2010) 1 NWLR (Pt. 1174) Pg. 1 at 47 A – C, DIKE – OGU vs. AMADI 12 NWLR (Pt. 1102) Pg. 650, UKACHUKWU vs. UBA (20050 18 NWLR (Pt. 956). In CEEKA TRADERS LTD vs. GEN MOTOS LTD (1992) 2 NWLR (P2220 PG 132 AT 162 D – E, it was held that when a case is not fought and heard on the merits the Court cannot make an order that will permanently shut out a party from obtaining justice. In reply to the defendants’ contention that the 2nd defendant, the Federal Ministry of Health, is a non-juristic person, the plaintiff submits that the Federal Ministry of Health is an agency and/or a department of the Federal Government of Nigeria whose Management Board was constituted by the Federal Government of Nigeria. The said Federal Ministry of Health Supervises the Federal Medical Centre Owerri. It is submitted that the Federal Ministry of health is one of such part of the business of the Government of the nation or a department of the government of the Federation to which a Minister of the government of the Federation is assigned. See S. 148 (1) Constitution of the Federal Republic of Nigeria 1999 (as Amended). That section recognizes that Federal Government of Nigeria operates through several departments or ministries to which ministers appointed by the President are assigned. That word department in S.148 (1) of the Constitution includes the word ministry as department that oversees Federal Government activities in the public health sector. In constructing the provisions of S. 148 (1) of the Constitution Supra the Court is urged to see that the Section by necessary implication recognizes the existence/creation of several ministries to which ministers in the Federal cabinet are assigned. The word departments used in that paragraph is a generic word that included the word ministry as a Federal Government carries on the business of governance and administration. Counsel referred Court to the decision of the Supreme Court in B.B.N. LTD vs. OLAYIWOLA & SONS LTD (2005) 3 NWLR (Pt. 912) at 434 particularly at 458 B – C to the effect that “it is the wisdom of the law that a Court should as much as possible have active mind to expound the horizon of the law and such activism should make the Court focus on the reality of the issues before it and not allow too much technicality to affect its mind”. The defendants’ argument on the juristic personality of the Federal Ministry of health is indeed a confusion in thought and self-contradictory. While the defendants strenuously argued that the 2nd defendant is not a person in law who can be sued, the same defendants contend that the 2nd defendant comes under the purview of the Public Officers Protection Act and as such enjoys the protection offered by the Act for public officers. Counsel submitted that the contention is a tacit admission by the defendants that the 2nd defendant is a person that can enjoy the provision of the Act as only persons in law whether natural or artificial corporate or un-incorporate can derive benefit from the Act. The Public Officers protection Act is meant to benefit persons who fit in into the definition or “public officers”. See: IBRAHIM vs. JSC (1998) 14 NWLR (Pt. 584) Pg. 1 at 36 B – C. Counsel went further that the Federal Medical Centre Owerri operates under the supervision, control and oversight of the Federation Ministry of Health which is an agency of the Federation Government of Nigeria and it will amount to injustice if bodies or persons whose activities can violate or infringe the rights of citizens cannot be sued in Court for redress. See: CARLEN NIG. LTD vs. UNIJOS (1994) 1 NWLR (Pt. 323) Pg. 631; See also: UZOHO vs. NCP (2007) 10 NWLR (Pt. 1042) Pg. 320 at 359 G- H, 361 H-B. It has also been held in E.A. IND LTD vs. NERFUND (2009) 8 NWLR (Pt. 1144) Pg. 535 at 575 F – H that an agency of the Federal Government is defined to cover all organs established by law through which the Federal Government carries its function. Such organs, Counsel submits, include the Federal Ministry of Health which oversees the institution where the plaintiff’s appointment was terminated. It was also decided that corporate personality can be conferred on any organ of government expressly or by implication. See also EDISON AUTOMOTIVE LTD vs. NERFUND (2009) All FWLR (Pt. 477) Pg. 124 at 153 A, 152 F. In opposition to the submissions of the applicant that there is no reasonable cause of action, it was the submission of Counsel for the Claimant that contrary to the submission of the defendants, the plaintiff’s action has never been adjudicated nor determined on the merit, the matter was merely stuck out based on a preliminary objection which is not a decision on the merit nor a bar to the subsequent suit. See: INEC vs. AGBASO (Supra) Pg. 47 A – C; SHANU vs. AFRIBANK NIG. PLC (Supra) Pg. 401 E – F, CEEKAY TRADERS LTD vs. GEN MOTORS LTD (Supra) Pg. 162 D – E. To Counsel, the argument that the plaintiff is inviting this Court to sit over its own decision or re-litigating the issues already decided is totally misconceived. There cannot be estoppel when the issues in the substantive suit have not been completely/finally decided. See: OBASI BROS CO LTD vs. U.M.B.A.S LTD (2005) 9 NWLR (Pt. 929) Pg. 117 at 128 D – F. The defendants’ contention that the present suit is an abuse of process is most unconscionable and utterly misconceived. The defendants are only bent on exploiting one preliminary objection after the other to frustrate the plaintiff’s case from being heard on the merit. The concept of abuse of Court process denotes a perversion of lawful legal process for attainment of unlawful result. This, Counsel submits, is not what the plaintiff sets out to do in this matter. In line with the ruling of Court, the plaintiff has nominated his case against the Attorney – General of the Federation who can sue and be sued whenever there is any cause of action against the government of the Federation or its agencies, ministries or departments. See: NDOMA – EGBA vs. GOVT OF CROSS RIVERS STATE (1991) 4 NWLR (Pt. 118) Pg. 773 at 788 G – H, 788 D –F. The Courts in the above cases have held that the Attorney-General of the Federation is a proper defendant in an action against the government of the Federation or its agencies. It has never been contended by the defendants that the Federal Ministry of Health or the Federal Medical Centre, Owerri are not agencies of the Federal Government. The defendants cannot approbate and reprobate at the same time. The defendants cannot contend that the Federal Medical Centre Owerri is not a juristic person, and at the same time argue that the Attorney General of the Federation cannot be sued for the acts of the agencies of the Federal Government. In NDOMA –EGBA vs. GOVT OF CROSS RIVERS STATE (Supra) Pg. 788 D – F, it was held that the government of Cross Rivers State was properly sued for the acts of the Commission of Enquiry it set up. The plaintiff’s case has disclosed veritable cause of action against the defendants. The plaintiff is an employee of the Federal Government of Nigeria with statutory colouration just as the Federal Medical Centre Owerri and the Federal Ministry of Health are both agencies of the Federal Government of Nigeria funded and paid from the public revenue of the nation. Counsel submitted that the present preliminary objection is a ruse by the defendants to shut the door of justice against the plaintiff whose employment was unlawfully terminated and who has been out of job. He enjoined the Court to take cognizance of the decision of the Supreme Court to the effect that Courts below the Supreme Court should take both the preliminary objection and the substantive suit together so as to obviate the necessity or remitting the case back to the trial Court if it is found on appeal that the preliminary objection was actually unfounded. He then urged the Court to resolve the issue for determination in favour of the plaintiff by dismissing the preliminary objection and allowing the plaintiff to prove his case on the merit. The 2nd Defendant filed a reply on points of Law on the 2nd day of October 2014 wherein Counsel submitted by way of reiteration of his earlier submission that to determine whether an action is caught up by a limitation act such as the public officer’s protection Act CAP 41 laws of Federation of Nigeria as well as the jurisdiction of a Court to entertain the suit, the Court only needs to look at the Writ Summons and Statement of Claim. See the case of Elabanjo vs. Dawodu (2008) 26 NSCQR 734. A cursory look at these two documents shows that this suit has been caught up by the limitation Act causing the probable cause of actions to be extinguished and depriving the Court of the jurisdiction to hear this matter. Contrary to the submission of Counsel to the Claimant/Respondent all cases cited by the 2nd Defendant/Applicant’s in its earlier submission including Ibrahim vs. JSC are Applicable in this suit and he further placed heavy reliance on them. He submitted further that the 2nd Defendant/Applicant is not using Court processes to frustrate the course of justice but is merely ensuring that the rule of law and justice is upheld; therefore, the case of Oluyemo vs. Agbaso and others cited by the learned silk will not apply here. Counsel referred the court to the case of Akere vs. Governor Oyo State 50 NSCQR 346 especially at Pg. 411 per M.U. Peter Odili JSC. He added that It is necessary to state that the matter struck out are different from the present case herein as constituted which in all fronts is caught up by the Public Officers Protection Act. On the issue of Non Juristic person, Counsel for the applicant submitted that all the authorities cited by Counsel for the Claimant/Respondent has not imbued on the 2nd Defendant/Applicant the responsibility of a juristic person. According to counsel, for the 2nd Defendant/Applicant to comprise of a collection of Public Officers does not give it a juristic personality. See Ibrahim vs. JSC (1998) 14 NWLR (Pt. 584) 1 at 36. The cause of action herein was committed by Officers of the Federal Medical Centre Owerri and not the Federal Medical Centre, Owerri or the supervisory Ministry. It is therefore the action of the Public Officers thereto that is in issue and fits into the definition of Public Officer in Ibrahim vs. JSC (Supra). The appropriate person to be joined here as the Minister of the Supervisory Ministry, is the Honourable Minister of Health assuming this suit is not caught up with the limitation act, the Public Officers Protection Act. According to counsel, the case of Edison Automotive v. NERFUND cited in the Claimant’s response to the Preliminary Objection is not applicable because the organ of the government being contemplated in the matters cited by the Learned Silk, are the Statutory Agencies such as NERFUND and not the Government Ministries. Reacting to the arguments of counsel to the Claimant/Respondent on the issue of Reasonable Cause of Action, Counsel for the applicant submitted that the legal authorities cited by counsel for the Claimant/Respondent in this matter are not relevant in this case because once a matter is struck out or dismissed, the cause of action therein is extinguished. In any case, this matter as constituted is different from the other matters claimed to have been struck out or dismissed. In any case, no cause of action operates where a matter is caught up by a Limitation law. See Elabanjo vs. Dawodu (Supra). In urging the court to dismiss this suit in limine for want of jurisdiction, Counsel for the applicant cited the case of Ajiboye vs. Ishola 26 NSCQR (Pt. 2) 1399 per Onnoghen JSC @ 1409, where the Supreme Court stated that “Jurisdiction is the foundation of all adjudication and a proceeding without jurisdiction is null and void”. See also Olowu vs. Nig. Navy 49.2 NSCQR 1157 per B. Rhodes – Vivour JSC at page 1186. See the recent Supreme Court pronouncement in Akere vs. Governor Oyo State 50 NSCQR 346 per Ngwuta JSC at page 376; see also per M.U. Peter Odili JSC at page 411. Reacting to the Further Affidavit and Reply on points of Law filed by Counsel for the applicant, Counsel for the Claimant Mazi Udeagbulam verbally responded to the fresh issues raised therein, and submitted, referring to Section 318 of the Constitution and Section 2(a) of POPA, that the Attorney General is not a public Officer. He cited the case of Ebonyi State vs. Isuama (2004) 6 NWLR (Pt. 870) 511. He also cited Asogwa vs. Chukwu (2003) 4 NWLR (Pt. 811) 540, and submitted that the defendants are relying on the meaning of public officer within the meaning of the 4th schedule, part 2 of the Constitution which is meant for the code of conduct Bureau and not for POPA. He said in Ibrahim vs. JSC, it was held that the Attorney General of the Federation is not a Public Officer for purposes of POPA. He urged the court to dismiss the Preliminary Objection of the 2nd Defendant. After a careful consideration of the grounds and particulars of the 2nd defendant’s preliminary objection and the written and oral submissions of counsels in their addresses before this court, I have identified one issue for determination in this application, which is: “Whether the Claimants’ suit is competent before this court”. In this preliminary objection, counsel to the 2nd defendant has urged this court to strike out the claimant’s suit on the ground that it lacks jurisdiction to hear and determine the suit. The particulars of the lack of jurisdiction are that the suit is statute barred, there is no reasonable cause of action against the 2nd defendant and that the suit amounts to an abuse of court process. Having in mind these grounds of the objection, I shall first consider the question whether the suit is statute barred. The 2nd defendant’s notice of preliminary objection was supported by a written address. No affidavit was filed along with the application. This is permitted when the ground of the objection is on points of law. It is the defendants’ contention that the claimant’s suit is statute barred by virtue of the Public Officers Protection Act. The applicant’s Counsel has submitted that by Section 2 (a) of the POPA, this suit ought to have been instituted against the defendants, who are public officers, within 3 months from the accrual of the cause of action which he says arose on 26th May 2009. This suit, having been filed on 21st December 2010, it has become statute barred. In opposing the application, the claimant filed an affidavit which he titled “The plaintiff’s affidavit in support of his opposition to the notice of preliminary objection” and a written address in opposition to the preliminary objection. I find the claimant’s affidavit strange to this nature of proceeding where there is no affidavit filed in support of the application. It is when the application is to be heard on affidavit evidence that the claimant may file a counter affidavit to the applicant’s affidavit. What the claimant has filed is not even a counter affidavit. The affidavit has no legal basis. The Preliminary Objection is on point of law relying on the facts as disclosed on the face of the writ. In a Preliminary Objection of this nature, what the court should look at is the writ. It is the writ that will disclose when cause of action arose and when the suit was filed. Affidavits become unnecessary in this application. Therefore, I shall discountenance the affidavits introduced by the claimant and the defendants in their reply on points of law. I shall consider this application having regard only to the writ, grounds of Preliminary Objection and the address of counsels to the parties. Section 2 of the Public Officers’ Protection Act provides: “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 provision 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.” By this provision, legal proceedings cannot be commenced against public officers, if the act for which they are sued is in the execution of their public duties or of any law, if the action is not commenced within 3 months of the accrual of the cause of action. It has been laid down that before a defendant can take protection under the Act, it must be shown that- i. The person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of that law. ii. The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 12 SC 20. Are the defendants in this suit public officers as to be able to take protection under the POPA? This question results from the varied contentions of counsel to the parties on the competence the parties. The 2nd defendants counsel has contended in his written address that 2nd defendant is not even a juristic person as to be made a party to this suit. On the other hand, the claimant counsel, during the hearing of the application submitted that the 1st defendant is not protected under POPA as it is not a public officer. In order to determine whether the defendants are public officers as covered under the Act, it is necessary to consider their individual status. During the hearing of this application on 3rd October 2014, the claimant’s counsel made further submissions to the effect that the 1st defendant is not a public officer. He cited and relied on the case of Ibrahim vs. JSC where according to counsel, it was held that the Attorney General is not a public officer for purpose of POPA. Section 150 of the 1999 Constitution (as amended) provides: “There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation”. This section created the office of the Attorney General. The meaning of the term “public officer” or “any person” as used in section 2 of Public Officers Protection Act has been interpreted by the Supreme Court in IBRAHIM vs. J.S.C KADUNA STATE (SUPRA) to mean not only natural persons but extends to public bodies or offices created by statutes, artificial persons, institutions or persons sued in their official names or titles. With the greatest respect to the claimant’s counsel, I do not appreciate the learned counsel’s contention in this regard that the Attorney-General is not a public officer. Particularly, I cannot find where he places reliance on the case of Ibrahim vs. JSC. Without any doubt, in his lead judgment, Iguh JSC (as he then was) in Ibrahim vs. JSC (SUPRA) held that the Attorney-General is a public officer. At page 34 of the report, his Lordship held- “There is section 176 (1) of the 1979 constitution under which the state Attorney-General as Chief Law Officer was created. The 2nd respondent as the Kaduna state Attorney-General is also a creation of the 1979 constitution. It is therefore a legal personality, capable also of suing and/or being sued. The Attorney General in part II of the fifth Schedule of the 1979 constitution item 6 is therein also specified as a public officer” His Lordship continued further at page 40 as follows- “It is beyond argument that government positions such as Attorney-General, permanent secretary, Inspector-General of police etc, although “public officers” they are nonetheless “public officers” in law. I cannot, with respect, accept that an Attorney-General, Permanent Secretary or the Inspector-General of police is not a “public officer” as known to law.” In his judgment at page 64 of the report, Onu JSC, (as he then was) held- “The 2nd respondent (Attorney-General) being a public officer should not, along with the 1st respondent, be denied the protection of the law made for the protection of public office holders” It is my firm view therefore that the 1st defendant is a creation of the Constitution to perform functions of a public nature and it is accordingly a public officer within the meaning of the Public Officers Protection Act. See ATIYAYE vs. PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT AND THE ATTORNEY-GENERAL, BORNU STATE (1990) 1 NWLR (Pt. 129) 728. With regard to the 2nd defendant, it was submitted by the defendants counsel that the 2nd defendant not a Juristic person or a person known to law. According to counsel, the 2nd defendant is not established by the constitution or by any Statute or legislation. It was further submitted that the 2nd defendant cannot sue or be sued and should be struck out of this suit. The 2nd defendant in this case is the “Federal Ministry of Health”. As a general rule, only juristic persons can sue or be sued. Juristic persons include natural persons, incorporated companies, corporate aggregate or corporate sole. See IYKE MEDICAL MERCHANDISE vs. PFIZER, INC (2001) FWLR (Pt. 53) 62 at 77. The term corporate sole is ascribed to bodies established by law or statute. For the 2nd defendant to be a competent party to this suit, it must be shown that it is an establishment of law. In my knowledge of the constitution and the law, Ministries of the Federal Government or of the states are not constitutional or statutory creations. Section 147 of the constitution created “offices of the Ministers of the Government of the Federation” and not ministries. I cannot find any other section of the constitution creating any ministry or in particular “Federal Ministry of Health.” The claimant’s counsel has argued that the 2nd defendant is an agency of the Federal Government to which a minister is assigned. According to counsel, the word department in section 148 (1) of the 1999 Constitution should be read to include ministry. It is most difficult for me to subscribe to that line of argument of learned counsel for the claimant or accept learned counsel’s interpretation of that section of the constitution. This is because to ascribe to the interpretation as offered by counsel will be tantamount to importing into the words of the constitution what is not provided there in the first place by the legislature. The courts are not permitted in law to indulge in such exercise. See OBAFEMI AWALOWO vs. SHEHU SHAGARI (1979) 6-9 SC, 51 at 68. It must be stressed that the duty of the court is to interpret the words as used in the legislation and even where the words in fact present some ambiguity, the powers and duty of the court to travel outside them on a voyage of discovery are strictly limited. This principle in mind, I hold the view that the said section 148 (1) did not create Federal Ministries and I cannot interpret the section to that extent as the claimant’s counsel has attempted to persuade me to do. In the result, the claimant’s counsel has not referred this court to any law where the 2nd defendant is expressly and properly established. In fact, it appears clear to me there is no such law in which the 2nd defendant is established. In this circumstance, I agree with the defendants counsel that the 2nd defendant has no competence to be sued. In view of the foregoing, the 2nd defendant, which is not a juristic person, cannot be a party to this suit. The consequent and proper order to make at this point is to strike the 2nd defendant from this suit. It is so ordered. The effect of the foregoing is that the only defendant in this suit is the 1st defendant. Having been resolved that the existing defendant is a public officer, what is left to be done now is to determine whether POPA protects the 1st defendant in this case. The protection in POPA will avail the 1st defendant in so far as the act for which he was sued was done in the execution of any law, or of any public duty or authority. The action which the claimant is challenging is the termination of his employment from the Federal Medical Centre Owerri. By inference of the averment of the claimant in paragraph 1e of the statement of claim, the FMC is a public institution under the Federal Ministry of Health. The employment of the claimant or the termination of his employment results from the execution of the public duties of the FMC. Now, the 1st defendant was joined in this suit as a necessary party by virtue of his office as the Chief Law Officer of the Federation. There can be no doubt therefore that the 1st defendant is sued in this action for an act done in pursuance of a public duty. By the provision of section 2 (a) of POPA, this action ought to be commenced against the 1st defendant, a public officer, within 3 months of the accrual of cause of action. In determining whether this action is statute barred, I need to look at the Writ of summons and the statement of claim to ascertain the date on which the cause of action accrued and when the suit was filed. In paragraph 9 of his statement of claim, the claimant averred that his employment with the Federal Medical Centre, Owerri was terminated on 26th May 2009. I have looked at the date of the writ in this suit and I have noted that it was filed on 21st December 2010. It is in view of these facts that the defendants have now contended that the claimant’s suit is statute barred having not been instituted within three (3) months of the accrual of the cause of action. There is no doubt from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The claimant did not commence this suit against the defendant within the statutorily prescribed 3 months. Consequently, the suit is statute barred. In an attempt to show that this suit is not caught by POPA, the claimant’s counsel has argued in his written address that after the termination of the claimant’s employment, he immediately commenced action in court to challenge the termination but the said suits were struck out until he eventually filed this instant suit. It appears to me the contention of the claimant’s counsel is that in view of those other suits, his time under POPA ceased running from the time he filed the first of those cases. With respect to counsel, this instant suit is a fresh suit on its own and by the applicability of POPA, time started running from the date the cause of action arose on 26th May 2009 and the limitation period is determined against the date this suit was filed and not on the date the struck out suits were filed. See ADAX PETROLEUM DEVELOPMENT (NIG) LTD vs. EMEF INTERNATIONAL OPERATIONS (2012) All FWLR (Pt. 621) 1585. Therefore, the claimant’s suits that were struck out never stopped the time from running in respect of this suit. The claimant counsel has further submitted in his written address that even if POPA applies, this court being a court of law and equity should not suffer a wrong to be without a remedy. It suffices to state here that a statute of limitation such as the POPA removes the right of an action, the right of enforcement and the right to any judicial relief in a claimant and leaves him with an empty cause of action which he cannot enforce if the said cause of action is not instituted within 3 months. In that case, there is nothing the court can do than to apply the law as it is. In this case, the claimant’s right to any relief has become statute barred. It is trite that where a statute prescribes a period within which an action should be brought, legal proceedings cannot be properly instituted after the expiration of the prescribed period. An action which is not brought within the prescribed period offends the provision of the law and does not give rise to a cause of action. The cause of action in this case arose on 26th May 2009 when the claimant’s employment with the FMC Owerri was terminated. However, the present action was not commenced until 21st December 2010, a period of over 19 months since the cause of action arose. It is clear that the claimant’s suit was not filed within 3 months from the date of the termination of his employment. The action is no longer maintainable. The right of the claimant to any relief have been extinguished by law and his action is statute barred and consequently incompetent. This court lacks jurisdiction to determine this suit. Accordingly, this suit is accordingly struck out. In view of this order, the other grounds of the preliminary objection need not be considered, as that would be academic. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge