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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 12th February, 2015 SUIT NO: NICN/ABJ/91/2013 Between: The Incorporated Trustee of the Association of Medical Laboratory Scientists of Nigeria, University of Abuja Teaching Hospital Chapter, Abuja. Claimant And The Attorney General of the Federation and 6 Other Defendants REPRESENTATION 1st Claimant Represented by Olusoji Adeyemi Bello, National Assistant Secretary 2nd Claimant present; Defendants are absent; P. U Okafor holding the brief of K.O Ijatuyi for the claimant; No legal representative for the defendants; JUDGEMENT By an originating summons dated the 10th of April 2013 and filed on the 17th April 2013, the claimants sought for the determination of the following questions namely: (i) The Medical Laboratory Science Council of Nigeria Act, No. 11, 2003. (ii) The Medical and Dental Practitioners Act Cap. M8, LFN 2004. (iii) University Teaching Hospitals (Reconstitution of Boards) Cap. U15, LFN 2004. (iv) Public Service Rules, (2008 Edition). (v) Approved Scheme of Service as contained in various circulars/letters from the Federal Ministry of health and the office, Head of Service of the Federation since 2001. (b) Whether having regard to the above mentioned Acts, Rules, Circulars and Schemes of service, it is proper for members of the 1st claimant’s Association, Medical Laboratory Scientists, to be grouped in a separate department distinct from that of the 6th and 7th Defendants, whose training and responsibilities are completely different from that of the claimants. (c) Whether upholding and recognizing the current practice of a separate Medical Laboratory Services Department in accordance with the extant Acts, Rules, Circulars and Schemes of Service mentioned above will not assist to realize a better and efficient Health Care Delivery System at the University of Abuja Teaching Hospital, Abuja. (d) Whether having regard to the extent Acts, Rules Circulars and Scheme of Service mentioned earlier, the recent purported restructuring at the University of Abuja Teaching Hospital, Abuja, whereby Medical Laboratory Scientists are put under the same departments with Pathologists, is not ultra vires and improper. (e) Whether the new Operational Manual and Organogram of the University of Abuja Teaching Hospital and the Staff Disposition in the University of Abuja Teaching Hospital Laboratory Department or any Administrative Policy whatsoever can be invoked to circumvent the due operations and implementation of the above Act, Rules, Circulars and Scheme of Service. Upon a favourable determination of the above questions, the claimants sought for the following reliefs joinly and severally against the defendants namely: 1. A declaration that by virtue of the relevant provisions of the Acts, Rules, government circulars (issued on different dates ) and approved Scheme of Service, members of the claimants’ Association, Medical Laboratory Scientists, are distinct professionals and consequently entitled to be accorded due recognition in the employment of the 2nd -5th Defendants (particularly at the University of Abuja Teaching Hospital, Abuja). 2. A declaration that by virtue of the relevant provisions of Acts, Rules, government circulars issued on different dates and approved Scheme of Service, members of the claimants’ Association are legally entitled to operate /work under a separate department in the employment of the 2nd -5th Defendants. 3. A declaration that the department of Medical Laboratory Services (which the claimants belong to and hitherto recognized officially by the 3rd, 4th and 5th Defendants) will not be in conflict with any other Department in the areas of compositions, responsibilities and schedule of duties that may be prescribed by the 3rd Defendant in accordance with extant Acts, Rules, Circulars and Scheme of Service. 4. A declaration that members of the claimants’ Association, as persons belonging to a legally recognized service department in the health sector, are entitled to relate with and service the clinical departments in the discharge of their professional duties towards and efficient Health care Delivery system at the University of Abuja Teaching Hospital, Abuja. 5. A declaration that the new organogram and operational manual of the University of Abuja Teaching Hospital, Abuja, is ultra vires, null, void and of no effect whatsoever to the extent of its inconsistency with extant Acts, Rules, Circulars and Scheme of Service aforementioned. 6. An order directing the defendants to immediately recognize the medical laboratory services department as a distinct service department and put into full operation the federal government approved scheme of service for members of the claimants’ association in accordance with the extant Acts, Rules, Circulars and scheme of service aforementioned and for all administrative purposes at the university of Abuja Teaching Hospital, Abuja. 7. An order of perpetual injunction restraining the 6th and 7th defendants and their pathologists colleagues from parading or holding themselves or any of their agents, privies or nominees out as heads of departments in units and sections where the members of the claimants’ association work and from carrying out any such function in relation to the members of the claimants’ association at the University of Abuja Teaching Hospital, Abuja. The summons has a 32 paragraphs affidavit deposed to by the 2nd claimant Mrs. Ugwu Victoria. It is accompanied by 16 exhibits frontloaded and marked accordingly. In line with the rules of this court, the claimant counsel filed a 22 paged written address dated the 10th of April 2013. On ,the 31st of October 2013, the claimants through the 2nd claimant deposed to a further affidavit of 30 paragraphs summons wherein, they attached a certified true copy of a judgment of this court as an exhibit followed by a written address of 6 pages dated 31st October 2013 in support of the further affidavit. The 1st defendant entered appearance on the 27th of August 2013, which was later regularised while the 2nd defendant entered appearance on the 16th of September 2013 through a regularized process. On the 22nd of September the 3rd to the 7th defendants filed their memorandum of conditional appearances to this suit; It is however on record that all the defendants in this suit filed their various reactions and responses to the summons. On the 10th of July 2013, the counsel to the 3rd, 4th , 5th , 6th and 7th defendant filed a Notice of Preliminary Objection (NPO) challenging the jurisdiction of this court; This court on the 10th of April 2014 decided to take all the pending applications including the Notice of Preliminary Objection (NPO) together with the originating summons. In the Notice of Preliminary Objection (NPO) dated the 10th of July 2013 and filed on the same date; The counsel to the 3rd to the 7th defendants raise five preliminary points of law which invariably goes to the jurisdiction of this court namely: (1) That this suit is statute barred (2) That the subject matter of this suit is outside the special jurisdiction of this Honourable court (3) That the claimants have not disclosed any cause of action against the defendants. (4) The claimants lacks the locus standi to institute this suit (5) That consequent on the above, the court lacks the jurisdiction to entertain this suit; The objectors also grounded their objections on ten issues namely; (1) That all the defendants in this suits are agents or organs of the Federal government and public officers within the meaning of section 2 (a) of the Public Officers Protection Act Cap P41 LFN 2004. (2) The actions of the 3rd -5th defendants which are being challenged in this originating summons are actions carried out in the exercise of a statutory function as prescribed by section 7 University Teaching Hospitals (reconstitution of Boards ) Act Cap U 15 LFN 2004 . (3) By paragraphs 22, 24 and 26 of the claimants affidavit in support of summons, the actions being complained about by the claimant which form the cause of action happened variously on 29/12/2008, 21/12/10 and 25/8/2011. (4) This suit which was instituted on the 17th of April 2013 is clearly outside the 3 months limitation period as provided by Cap P 41 LFN 2004 (Public officers protection Act ) (5) That issue bordering on the validity or otherwise of the organizational structure of the University of Abuja Teaching Hospital as set up by its board the 3rd defendant is not within this court jurisdiction under the 1999 constitution of the Federal Republic of Nigeria as amended and the National Industrial Court (NIC) Act. Cap N 155 LFN 2004. (6) That no rights of the claimants have been violated by the defendant and so such violation has been disclosed. (7) That the claimants have no locus standi to institute this suit as they have not disclosed or shown sufficient or special interest; (8) That the claimants who are not employees of the defendants are suing as registered associations whose members are employees of the University of Abuja Teaching Hospital (9) That the defendants have not shown or disclosed any rights of theirs that has been violated by the action and inaction of the defendant and (10) The action is incompetent and ought to be dismissed or struck out; The objection is supported with a 26 paragraphs written address which was filed in compliance with the rules of court; In the said written address, the 3rd to the 7th defendants counsel Luter Atagher Esq. formulated the following four issues for determination Namely: (1) Whether this suit ought to be struck out for being statute barred. (2) Whether this Honourable court is vested with the jurisdiction to entertain this suit. (3) Whether the claimants have disclosed any cause of action against the defendants. (4) Whether the claimants have the Locus Standi to institute this action. On issue one, learned counsel, Atagher Esq. submitted that since the action complained of by the claimants were carried out by the defendants who are unarguably are public officers within the meaning of the relevant law in question, the suit is statute barred as it was brought well outside and beyond the three months limitation period provided by the Public Officers Protections Act Cap P.41 LFN 2004. Learned counsel referred the court to paragraphs 22 through 27 of the claimants affidavit in support of the originating process /Summons to show that this action or suit arises out of the performance or alleged neglect in the performance of their public duties as public officers. Counsel also call in aid the case of University of Ilorin Vs. Adeniran 2007 All FWLR (Pt. 382) 1871 at 1901 paragraph A-B. Counsel also posited that the combine effect of section 7 of the University Teaching Hospitals (reconstruction of Boards ) Act as acknowledged by paragraph 12 of the claimants supporting affidavit coupled with the functions and discretions of the third defendant who is vested with the operations of the teaching Hospital attest to the fact that he does so in his capacity as a public officer carrying out a public duty which is contemplated by section 2 (a) of the Public Officer Protection Act (POPA) LFN 2004 Cap P 41. Counsel anchored his submission also on the case of Ibrahim Vs. JSC Kaduna State 1998 14 NWLR Pt. 584 I at 32 and the definition of the word “operate” in Oxford Advanced Learners Dictionary of current English 7th Edition (OUP 2005). Counsel further contented that the date of accrual of cause of action should be ascertained for the purpose of determining the calculation. This can be done, according to counsel, by looking at the originating summons and the affidavit. He called in aid the case of Ezerebo Vs. IGP 2009 11 NWLR Pt. 1151 117 at 130. Counsel submitted also that paragraphs 22, 24 and 26 which reveals the date of actions of the defendants in claimants affidavit to the summons also reveal the date of commencement of action of which gave rise to the claimants grievances. Counsel further submitted that since the circumstances giving rise to the claimants grievances as contained in the said paragraphs 22, 24 and 26 of the affidavit to the summons forms the basis and pedestal of the claimants cause of action, the date of accrual should be calculated from those dates surrounding those circumstances as reveal in those paragraphs of the affidavit. Counsel supported this submission with the cases of Adekoya Vs. FHA 2000 I NWLR Pt. 652 215 at 221 – 222; Ogboru Vs. SPDC Nig Ltd 2005 17 NWLR (Pt. 955) 596 at 620 ; Amusan Vs. Obideyi 2005 14 NWLR (Pt 945) 322 at 328. Counsel contended that with the authority of Eboigbe Vs. NNPC 1994 5 NWLR PT 347 649 at 659; NASIR Vs CSC Kano State 2010 6 NWLR Pt. 1190 253 at 270, the claimants have no right to claim and enforce as their rights have been extinguished by the limitation law and he so urged the court to hold. On issue two, Mr. Atagher submitted that this court has no jurisdiction over the subject matter submitted for determination by the claimants in this suit; Subject matter, he contended is very crucial to the determination of a courts jurisdiction. Counsel cited the case of NRC Vs. CUDJoe 2008 10 NWLR (Pt 1096) 329 at 355. Counsel therefore outline section 254 ( c) of the 1999 constitution of Nigeria as amended Section 7 of the National Industrial Court Act 2011 (SIC) and the case of AG. Kwara State Vs. Olawale 1993 Pt. 272 645 at 674 -675. He contended that the reliefs of the claimant do not arise or related, or connected or pertaining to labour, employment or workplace issues and has no relationship with trade union, trade dispute, factories Act Labour Act, Welfare of workers/employees or workmen compensation. And since it does not fall within the purview of termination or breach of employment contract, this court should not assume jurisdiction. It is the further contention of counsel that the claims in this suit do not border on interpretation of trade Union constitution, award of Arbitral tribunal and trade Union dispute. Consequent, counsel urged the court to strike out the suit for want of jurisdiction. On issue three Mr. Atagher contended that the claimants have not disclosed any reasonable cause of action to warrant any consideration by the court. He contended further that taking into consideration the affidavit of the claimants, there is no disclosure of an injury that is personal to the claimant, or a right of the claimants which has been breached or under threat of breach by the acts complained about. Counsel referred this court to the case of Thomas Vs. Olufosoye 1986 I NWLR Pt. 18 669 at 682 and section 6 (6) (b) of the 1999 constitution and urged the court to hold that the claimants right has not been breached in any way by the administrative acts of the defendants particularly the 3rd defendants On issue four submitted for determination by the counsel to the objector, counsel contended that the claimants have no locus staudi in this matter even if they have a cause of action. The people that has the locus, counsel argued are the employees of the University of Abuja Teaching Hospital who are laboratory scientist that may be aggrieved by the organizational structure of the Hospital as operated or setup by the 3rd, 4th and 5th defendants to challenge the action and not the claimants in this suit. The claimants, counsel submitted have not sued as trade unions, employees or interpretation of employment contracts. Counsel submitted that courts are not meant for professional litigants, busybodies and interlopers who like to meddle without any real stake or interest in the subject matter in litigation. Counsel cited the cases of Uzoho Vs. NCP. 2007 10 NWLR (PT. 1042) 320 at 354; Adekunle Vs. Adelugba 2011 16 NWLR Pt 1272 154 at 170-171. It is the further submission of counsel that there is no evidence before the court to show that this action is a representative action on behalf of the employees of the University of Abuja Teaching Hospital who may have been affected by the administrative action of the 3rd, 4th and 5th defendant. In that wise, counsel submitted, the action as presently constituted in this case is defective for want of locus standi and therefore the court has no jurisdiction. It is the counsel submission also that since the real persons affected by the 3rd, 4th and 5th defendants action are not in this suit, proper parties are not before the court to confer jurisdiction. Counsel referred the court to the Bambe Vs. Ademola 1977 I S.C I at 6; Owners of M.V. Baco liners Vs. Adeniji 1993 2 NWLR (Pt 274) 195 Counsel finally urged the court to strike out the case of the claimant for want of jurisdiction. In His reactions to the notice of preliminary objection filed by the counsel to the 3rd to the 7th respondents, K.O Ijatuyi Esq. Counsel to the claimant filed a 29 paragraphs affidavit of fact sworn to at the registry of this court on the 31st of October 2013. The affidavit of fact which was deposed to by the 2nd claimant was accompanied and supported by an 8 paged written address in opposition to the Notice of Preliminary Objection (NPO) . In the said written address, learned claimant counsel, Mr. Ijatuyi formulated three issue for determination namely: (1) Whether section 2 (a) of the public officers protection Act Cap P41 LFN 2004, which the 3-7th defendants respondents placed heavy reliance on, apply to this case. (2) From the facts of this case whether the dispute which happened in the work place falls under the special jurisdiction of this Honourable court. (3) Whether the claimants’ Association and its members are directly affected by the action of the 3rd -7th defendants as to clothe them with locus standi to institute this action. On issue one, Mr. Ijatuyi submitted that the public officers protection Act Cap P. 41 LFN 2004 does not apply in this case because the affidavit and further affidavit of the claimants have shown that the 3rd to the 7th respondent acted in bad faith. Counsel also contended that the 3rd defendant in this suit acted maliciously with ulterior motive by imposing a non member of the claimants body on them as their head of department. Suffice it to say that the 6th and 7th defendants in this case are not members, not licensed and not registered members of laboratory scientist of Nigeria. In the alternative where the court considers the above arguement not valid, counsel further submitted that the consistent refusal of the 3rd defendant to deny members of the claimants Association the right to operate a separate department in the University of Abuja Teaching Hospital till date despite repeated protest from the claimants association amounts to a continous injury, a principle that create an exception to the application of the public officers protection Act; In that wise counsel further submitted that the continue and repeated but consistent denial of the restoration of medical laboratory services department into the organogram of the University of Abuja Teaching Hospital given rise to a fresh cause of action in every day of the denial till date. Counsel call in aid the case of Oba J.A. Aremo II Vs. S.F Adekanye and 2 ors . 2004 13 NWLR Pt 891 572 at 580 ration II. On the issue of bad faith, bad motive and malice, counsel cited the case of Unilag Vs. Adeniran 2007 All FWLR (Pt. 382) 187 at 1876. It is counsel submission that section 18 (2) of the medical Laboratory science council of Nigeria Act do not make room for a non professional member to occupy any position or hold any appointment, the performance of which requires knowledge of laboratory service. This counsel contended means cannot conveniently operate in the same department with the 6th and 7th defendants. To him, this forms part of the rights being contested in this suit; On issue two, learned counsel Ijatuyi Esq. submitted that it is the claim of any litigant that determine jurisdiction, citing the case of Oduko Vs. Govt of Ebonyi State (2009) 38 NSCQR 15; Tukur Vs the Govt of Gongola State 1989 4 NWLR (Pt 117) 517 at 549. Counsel pointed out further that section 254 (c) of the 1999 constitution of Nigeria as amended accommodate workplace, labour and issues connected, arising and related therewith, of which the claimants grievances forms part of ; Counsel also refer the court to the declaratory judgment delivered by this court on the 23rd of October 2013. On issue three, counsel cited the case of Military Administrator of Ekiti State and Sors Vs. Prince Adadeyelu and Ors 2007 14 NWLR (Pt. 1055) 619 at 629. On the definition of cause of action. Counsel also cited the case of Inakoju Vs. Adeleke 2007 4 NWLR (Pt 1025) 427 at 490 on the issue of locus standi and submitted that the action of the defendants are justiciable and that there are disputes between the parties which has been submitted to the court for determination. Counsel also referred the court to the certificate of registration of the claimants, the separate scheme of service and the cadre of the members of claimants Association to show that the claimants belongs to a separate carrier progression profession with a distinct scheme of service. This clearly, counsel stated is a workplace issue of which this court has jurisdiction. The learned counsel further posited that the removal of the medical laboratory department from the organogram of the defendants coupled with the imposition of the 6th and 7th defendants as HODS to oversee sections and departments of which they are not members makes the claimants to be entitled to ventilate their grievances as affected persons hence the law accord them locus. Counsel cited the case of Omega Bank Plc Vs. Govt of Ekiti State 2007 16 NWLR (Pt 1061) 445 at 458 and section 6 (6) of the 1999 constitution. Counsel finally argued that the non recognition of the claimants by the University of Abuja teaching Hospital as a separate department and the removal of the department of Medical Laboratory Scientist from the organogram of the University gives rights to the claimants members and association to institute this suit. Counsel therefore urged the court to strike out the preliminary Objection. In reaction to the claimants affidavit of facts opposing the Notice of Preliminary Objection (NPO), the counsel to the 3rd to the 7th respondent filed a counter affidavit of 15 paragraphs deposed to by one Reuben Harbooson and a reply on point of law to the claimants written address in opposition to the Notice of Preliminary Objection (NPO). In the said reply on point of law learned counsel submitted that the issue of bad faith, malice or motive are inapplicable to the consideration of the protection afforded public officers under the Public Officer Protection Act (POPA) LFN 2004 Cap P 41. Counsel cited the case of Egbe Vs. Alhaji 1990 I NWLR (Pt 128) 546 at 581. Counsel went further to argue that section 2 (a) of Public Officer Protection Act (POPA) do not contemplate bad faith, good faith or motive as a factor in the determination of limitation period as far as the action of the public officer was done in the course of a public duty. Counsel submitted that section 7 of the University Teaching Hospital (Reconstruction of Board) Act Cap U15 LFN 2004 clearly vests the 3rd defendant the duty to operate the Hospital through an organizational structure that will capture and effect the essence and effectiveness of a teaching Hospital. On the legal issue of continous injury, counsel reacted by citing the Dictum of Dickson J in Micheal Obiefuna Vs. Alexander Okoye 1961 All NLR 357 to the effect that continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effect of a legal injury. Counsel call in aid the case of Olaosebikan Vs. William 1996 5 NWLR Pt. 449, 437 at 456 – 457. Counsel also urged the court not to import words into a statute that has clear and unambiguous provisions as section 254 ( c) of the 1999 constitution (as amended ) did not contemplate or cover the dispute under consideration in this suit; On the issue of locus standi, Counsel to the 3rd -7th defendant posited that the claimant have not established the required nexus between the relief sought and themselves as they have not disclosed any right of promotion or progression or headship of departments within the Abuja University Teaching Hospital, neither have they instituted this suit in a representative capacity or shown any authority to sue on behalf of any laboratory Scientist employed by the University of Abuja Teaching Hospital who may have been adversely affected by the action of the 3-7th defendants. Counsel finally urged the court to uphold his objection. On the 5th of February 2014, Mr. Ijatuyi, counsel to the claimant filed an affidavit of 8 paragraphs called further affidavit containing an exhibits in opposition and further opposition to the Notice of Preliminary Objection (NPO). It should be recalled that in addunberating on his written address and arguement Mr. Ijatuyi had urged the court to expunged paragraph 14 of the objectors counter affidavit to his affidavit of facts as it contains legal arguments and conclusion contrary to the provisions of the evidence Act. 2011 as amended. Counsel to the 1st defendant Mrs. Habibu Chime did not file any reaction to this Notice of Preliminary Objection (NPO) but orally urged the court to dismiss the suit and uphold the prayers as contained in the Notice of Preliminary Objection (NPO). In His own, reaction, I. T. Abdulsalam Esq. Assistant Director, counsel to the 2nd defendant did not oppose the Notice of Preliminary Objection (NPO) but did not file any process in reaction as well. I have heard counsel on their various submissions, authorities and issues strenuously canvassed. I have decided to consider the notice of preliminary objection first as a matter of priority because it touches on the jurisdiction of this court and as we are all aware jurisdiction is a fundamental and threshold issue. No matter how well conducted a trial is and no matter how well analyses and disserted issues of law may have been done by a court, if jurisdiction is lacking, all goes to no issue and cannot avail or stand. The third to the 7th defendants are challenging the jurisdiction of this court to entertain this suit inter alia; the suit is statute barred; the claimant lack the locus standi, the subject matter do not come under the substantive jurisdiction of the National Industrial Court. The first leg of objection in this suit is that the claim is caught up with section 2 (a) of the public officers protection Act laws of the Federation of Nigeria LFN Cap P41 2004, which is a limitation law. Limitation of action in respect of a given subject matter postulates statutorily a period after which a law suit or prosecution cannot be brought in court. It usually comes about by legislation most of the time. It is a law which bars a claim after a specific period has Lapse. It establishes a time limit for suing in a civil case based on the date when the claim accrued. The legislature, in their wisdom has prescribed certain periods of limitation for instituting certain actions. This is based on public policy which prescribe that there must be an end to litigation and stale demands should be suppressed; In the context of Public Officers Protection Act it is meant to protect them from such stale grievances from being ventilated. Jurisdiction of court to entertain a suit is based on the claimants averment in the statement of claim/facts and the reliefs sought therein. In context of suits commenced by originating summons, the court will consider the summons and the supporting affidavit. See generally the Supreme Court decision in the cases of Osoh Vs. Unity Bank Plc 2013 9 NWLR Pt. 1358 SC I. Furthermore, it is the claim in any particular case that determines the court in which jurisdiction is vested. In other words, it is the claimants reliefs that cloths the court with or denies the jurisdiction to adjudicate on a matter before it. Whatever is brought before the court by the claimant for determination alone will determine whether or not a court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all even though one may have been filed in accordance with the rules of court. See the case of P& C.H.S. Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR Pt. 1333 at 555; Society Bic S.A. Vs. Chargin Ind. Ltd 2014 4 NWLR (Pt. 1398) at 497. It is therefore the writ and the statement of claim which contains the claim and the relief (i.e the summons and affidavit in this case) that the court will examine in detail to ascertain whether it comes within the jurisdiction conferred on the court by the constitution or by statute. see the case of PDP Vs. Sylva 2013 13 NWLR (Pt. 1316) 85. Before looking at the originating process in this suit, what does section 2 (a) of Public Officer Protection Act (POPA) Cap P41 LFN 2004 say? Section 2 (a) of Public Officer Protection Act (POPA) has this to say:- “where any action, prosecution or other proceedings 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 subject or default in the execution of any such Act, law duty or authority, the following provisions shall have effect. 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 or complained of or in case of a continuance of damage, or injury, within three months next after the ceasing thereof;” In the case of Udo Vs. Civil Service Commission Akwa Ibom State 2006 LPELR 11564. It was held that for section 2 (a) of Public Officer Protection Act (POPA) to apply or avail any person, two conditions must be satisfied namely:- 1. It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law 2. 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 such law, duty or authority see also Ekeogu Vs. Atiri 1990 NWLR (Pt 126) 345; By the authority of FGN Vs. Zebra Energy Ltd 2002 18 NWLR (Pt. 798) at 162 Public Officer was held to include natural person holding public office, sued in their personal names. It also extend to public bodies, artificial persons, institutions or persons sued by their official names and titles. The word “any person” in section 2 (a) of the public officers protection Act is not limited to human being or to persons sued in their personal names but also include artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons as held in the case of Nwaogwugwu Vs. President FRN. By the provision of part II items 6 and 7 of the fifth schedule to the 1999 constitution as amended the 1st and 2nd defendants in this suit are specifically referred to and classified as public officers. By section 19 of part I of the fifth schedule to the 1999 constitution as amended coupled with section 318 paragraphs c and f under the definition of public service of the Federation, the 3rd to the 7th defendants are accommodated and contemplated as public officers. In my considered view, the 3rd to the 7th defendants have satisfied these two conditions stated herein. Now let me turn and consider the reliefs and claims as stated in the originating summons. The relevant affidavit paragraphs germane to the determination of whether or not this suit is brought after 3 months of the accrual of right of actions are paragraphs 22, 24, 26, 28 and 29. They are hereby reproduced 22 that the 4th defendant and his cronies, however in a bid to act out the script of the 6th and 7th defendants and their colleagues nationwide (Association of pathologists of Nigeria), decided to balkanise the Medical Laboratory Services Department into splinter groups which they called departments and imposed the 6th and 7th defendants and other pathologists (Dr. F. Olugbosi and Dr. Mukhter) as purported Heads of department. The circular with reference no. UATH /GEN/694/T/15 dated 29/12/2008 and the attached purported “Staff disposition in UATH Laboratory Department” used in communicating the decision is attached herein as exhibit “H” and “H”. 24 That however, in a desperate ploy to give legitimacy to their illegal intentions, the 4th defendant and his cronies prepared and procured the 3rd defendant to approve a new organogram and operational manual which omitted the medical laboratory services department from the organogram, and purported to place the claimants’ and their members into departments where they are to be subordinates and “assistant” to the 6th and 7th defendants and their pathologists colleagues. The circular which announced the board’s approval of the new organogram and operational manual with reference No. UATH/GEN/1784/1/42 dated 21/12/2010 together with the operational manual containing the new organogram (organizational chart) is attached herein as Exhibit “J”, and “J1”. 26 That the 3rd to 5th defendants and their agents in furtherance of their hostile takeover of the functions and roles reserved for members of the claimants’ association, for the purpose of handing it over to the 6th and 7th defendants and their colleagues, issued a circular that made it mandatory for members of claimants’ association to channel their communication to management through the 6th and 7th defendants and their colleagues respectively. The said circular dated 25/8/2011 is attached herein as exhibit “L”. 28 That the non – inclusion of the medical laboratory service department in the new organogram and operational manual and the other burning issues, prompted the claimants to write various letters of protests and reinstatement of the correct position of the law on the matter. The said letters are listed thus: i. Letter dated 17/01/2011 titled “Newly approved organogram and operation manual for University of Abuja Teaching Hospital” herein annexed as exhibit “N”. ii. Letter dated 27/05/2011 titled “Non inclusion of medical laboratory services in the organogram of the University of Teaching Hospital” herein annexed as exhibit “N1”. iii. Letter dated 05/08/2011 titled “Non-inclusion of laboratory services in the Hospital organogram” herein annexed as Exhibit “N2”. iv. Letter dated 02/09/2011 titled “continuous marginalization/ Abuse of Medical Laboratory Science profession and Scheme of Service” herein annexed as exhibit “N3”. v. Latter dated 20/03/2012 titled “Channel of Communication /use of laboratory forms” herein annexed as exhibit “N4”. vi. Letter dated 26/06/2012 titled “request for some clarifications” herein annexed as exhibit “N5”. vii. Solicitor’s letter dated 24/07/2012 titled “Distortions in Medical Laboratory services Structure and professional communication …” herein annexed as Exhibit “N6” 29. That despite the above letters, the 3rd to 5th defendants failed, refused and /or neglected to include medical laboratory service in the Hospital operational manual/ organogram and also refused to implement and give recognition to the provisions of the relevant laws, Acts, Rules and Circulars mentioned earlier in relation to the claimants and their members. This is evident in the following letters written by and on behalf of the 3rd to 5th defendants to the claimants in response to exhibit “N5” and “N6” above. The letters are: i. Letter dated 29/06/2012 (Ref. No. UATH/CLS/812) hereby attached as exhibit “P”. ii. Letter dated 17/08/2012 (Ref. No. UATH/GEN/1232) hereby attached as Exhibit “P1”. From the above the relevant dates in this suit begin from 29th of December 2008 to 17th of August 2012. In my view, time begins to run when all facts have happened which are material to prove the claimants case to entitle them to succeed. In this wise time begins to run when the claimants where became aware of their omission from the arganogram and the appointment of heads of departments for clinical chemistry, microbiology and haematology including the information or directives on channels of communication as evidence by the correspondences spanning these dates stated above. See the case of Unilorin Vs. Adeniran 2007 NWLR Pt. 1031 at 498; Odutola Vs. Unilorin 2005 All FWLR (Pt 245) at 592. I therefore hold that the dates of accrual of the cause of action marks the commencement of computation. It should be noted that this suit was commenced on the 17th of April 2013. In considering whether an action is caught by the statute of limitation what is of paramount consideration is the determination of (1) The cause of action (2) When the cause of action accrued (3) When the action became statute barred. The above questions have been answered in this judgment. See the case of Moh. Vs. Military Administration Plateau State 2001 16 NWLR Pt. 740 570; British Airways Plc Vs. Akinyosore 1995 I NWLR (Pt. 374) 722. In the recent case of AG Adamawa State Vs. AG Fed and Others decided by Supreme Court in June 2014 reported in 2014 14 NWLR Pt. 1428 515 at 565. The court held as follows: “The period of limitation is to be determined by looking at the writ of summons and the statement of claim only, to ascertain the alleged date the wrong in question which has given rise to the plaintiffs’ cause of action was committed and by comparing that date with the date on which the action was commenced with the filing of the writ of summons. If the time contained in the writ of summons or statement of claim as the time the cause of action arose is beyond the period allowed by the limitation law, then the action is definitely statute barred.” Mr. Ijatuyi had contended vehemently that the 3rd to 7th defendant acted in bad faith, with malice and ulterior motive as such actions was done outside the colour of their office or outside the scope of their duties. In the alternative, he had canvassed the principle of continous injury which brings this case within the exception to the application of the Public Officer Protection Act (POPA). I do not agree with the learned counsel with the greatest respect to him; The action of the defendants were done in the course of the official duty or operations of their offices. It was done in the process of official function of management and administration. I cannot see how the defendants act of bad faith or ulterior motive even if present can avail the claimant under the exception as no particulars have been furnished or established in their originating process. See the recent case of A.G Rivers State Vs. AG Bayelsa State 2013 3 NWLR (Pt 1340) 123 at 148-150 paragraph F-A. The Supreme Court at page 144 paragraph E-G stated as follows; “The public officers protection Act is a statute of limitation. The general principle of law is that where a statute provide for the institution of an action within a prescribe period, the action shall not be brought after the time prescribe by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law” In the Sulgrave Holdings Incop Vs. FGN 2012 17 NWLR Pt 1329 309 Galadima JSC at page 335 paragraph E-F said; “My understanding of this provision is that the Act gave the parameters within which a public officer can take protection under the Act. As long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by this section.” It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. However, as I have said, where a public officer on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official function, that is, he acts outside the colour of his office, he cannot claim protection under the act. The claim in this suit shows clearly that the acts done by the 3-7 defendants were done as part of official normal duties of a public officer. Consequently the claimants have bought this suit outside the three months stipulated by the law and as such the defendants as public officers are protected under the Act. I so hold. The claimants learned counsel had placed reliance on continuance of injury. Continuance of injury or damages means continuance of the legal injury and not merely continuance of the injurious effect of a legal injury. The continuance of the injurious effect of the legal injury is not contemplated by the exceptions to the Public Officer Protection Act (POPA). See the case of Olaosebikan Vs. William 1996 5 NWLR Pt. 449 437. My take here is that the first happening of a legal injury is what is important for the sake of computation of time and not the injurious effect thereof; For instance if a man’s hand is severed, his right to ventilate his grievances will start counting from the date of the incident and not the date the pain or the injury ceases or scare disappeared or the inconveniences associated with the injury is abated. Both learned counsel have made a heavy whether on the issue of bad faith, malice and ill motive as exceptions to the Public Officer Protection Act (POPA); Counsel cited Egbe Vs. Alhaji (Supra), unilorin Vs. Adeniran (Supra) and Fajinolu Vs. Unilorin (supra) My take is that even though it appears that these decisions are conflicting, the decisions in AG Rivers Vs. AG Bayelsa and Sulgrave Holdings Incorp Vs. FGN (Supra) which are the most recent decisions including AG. Adamawa Vs. AG Fed (Supra) are preferred and they are being relied upon herein. Learned counsel to the claimant Mr. Ijatuji had made a vehement submission on the issues of various correspondences that could bring validity and revive any perceived stale demand of the claimant thereby bringing the claim under the exception to the application of Public Officer Protection Act (POPA); My humble reaction and position is the Supreme Court Position in the case of AG Adamawa Vs. AG Federation (Supra) at page 566 paragraph E-F per Aruwoola JSC “ …..even where there were exchanges of correspondences and negotiation was on, the time shall not stop running,………. Negotiation by parties does not prevent or stop time from running” Where a party’s action is statute barred, the following legal consequence will follow; (a) The party would lose his right of action. (b) The party would lose the right of enforcement (c) The party would also irretrievably lose the right to judicial relief (d) The party would only have an empty cause of action which no court will assist him to enforce. See Daudu Vs. University of Agriculture Markurdi 2002 17 NWLR Pt. 796 362 The Public Officer Protection Act (POPA) has therefore remove the right of action, the right of enforcement and the right of judicial relief in the claimants. This leaves them with a bare and empty or hollow cause of action which they cannot enforce because the alleged cause of action is statute bared and cannot be maintained and as Justice Fabiyi JSC put in Sulgrave case “A claim which is statute barred, as herein, becomes a mere shell which is of no utility value to the appellant. Its worth fades into oblivion” The claimants in this case have slept on their rights; Equity aids the vigilant not the one at slumber. Delay defeats Equity. It is in this light that I re-echo the views of Chukwu-Eneh JSC when he said at page 338 of Sulgrave Holding Incorp vs. FGN (Supra) “it is cogent to make the point here that the intendment of this Act in my view has not provided a level playing ground for all persons before the law and the court and ought to be revisited by our law makers to consider in the light of the stage of our development pestering with poverty and illiteracy and disease vis-a vis the individual constitutional right of equality before the law and the back ground of section 6 (b) of the 1999 constitution (as amended)” However, this is the position of the law as at today and under the doctrine of precedent, I am bound as anything outside it will amount to judicial rascality, judicial impetinence, and judicial insubordination. On the strength of what I have said including my conclusions and reasoning, I hold that this suit is statute barred and the Notice of Preliminary Objection (NPO) succeed on that ground. The implication of this position is that this court has no jurisdiction. Since I have so declared, I do not think I have any power to proceed further to consider other grounds of the objections and or the merit of the originating summons. This suit is hereby dismissed and I make no order as to cost. Hon. Justice P.O Lifu (JP.) Judge