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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 12th March, 2014 SUIT NO: NICN/ABJ/117/2012 Between: Mr. Esiri O. Augustine Claimant AND Federal Ministry of Finance and Another Defendants REPRESENTATION Parties absent; F.A. Esume Esq. for the claimant; No legal representation for the defendant. RULING By a Notice of Preliminary Objection (NPO) dated the 12th of September 2013 and filed on the 13th of September 2013, the 1st defendant raised a preliminary objection to this suit on the following grounds (1) The 1st defendant is not a Justice person capable of being sued in a court of Law. (2) The suit is statute barred and the Honourable court has no jurisdiction to entertain same (3) The plaintiff has no reasonable cause of action against the 1st defendant (4) The 1st defendant is not a necessary party in this suit. The 1st defendant filed a written address and formulated four issues for determination namely. (1) Whether the name Federal Ministry of Finance is a juristic person capable of being sued in a court of law. (2) Whether this action is not statute barred in view of the provision of the Public Officers Protection Act (POPA). (3) Whether the plaintiff has any reasonable cause of action against the 1st defendant in view of the fact and circumstances of this case. (4) Whether the 1st defendant (Federal Ministry of Finance) is a necessary party in this suit. On issue one, 1st defendant counsel Chinedu Achumie Esq. submitted that for an action to be competent in court, there must be a competent defendant and a competent plaintiff who can be sued and also capable of maintaining an action. In that respect, counsel contended that a person could be an artificial or natural person in law. He cited the cases of Fawehinmi Vs. NBA No 2 1989 2 NWLR (Pt 109) 558, Chief NKPONWI Vs. HRH Ejire 2009 All FWLR (Pt. 499) 450 at 475 Ataguba and Co. Vs. Gura Nig. Ltd 2005 21 NSCQR 720 AT 722 ratio I; Black Law dictionary 7th edition 1999 at page 1162 Counsel submitted further that the 1st defendant, Federal Ministry of Finance is not a juristic person capable of suing or being sued in law as it is not a person in the eye of the law either natural or artificial and is not a creation of statute. Counsel referred the court to section 147 of the 1999 constitution as amended where it can be seen that the Federal Ministry of Finance is a nomenclature attached to the portfolio of the minister of finance. In the case of S.D. Agboola and others Vs. Saibu and Another 1991 2 NWLR Pt. 175 566 at 575 paragraph H, counsel contended that the court of appeal sitting in Kaduna held that the Federal Ministry of Science and Technology is not a juristic person in law. Counsel commended this court of appeal decision to this court and urges the court to so hold. On issue two, counsel submitted that this action is statute barred by the provision of section 2 (a) of Public Officers Protection Act (POPA) laws of the Federation of Nigeria 2004 in that the letter containing the dismissal of the claimant dated 5th May 2009 was received by him on 10th of June 2009 while he instituted this action at the Federal High Court on the 15th of December 2009, more than 7 months from the date of accrual of right of action. Counsel invited the court to engage in arithmetical exercise to calculate the years, months, weeks, days and minutes to determine whether or not this action was instituted outside the three months prescribe by the law and on determining that, should proceed to determine whether the action falls under any of the exceptions to Public Officers Protection Act (POPA) and where it does not, then the court has no jurisdiction as the right of the claimant to any judicial relief has been extinguished in that circumstance. Counsel cited the cases of UKIRI Vs. FCSC 2011 All FWLR Pt. 577 P. 783 at 786; FRIN Vs. Gold 2007 All FWLR Pt. 380 P. 1444 at 1446 at 1447; CBN Vs. AMAO 2011 All FWLR Pt. 558 at 806 at 812. On issue three, counsel submitted that the claimant has not disclosed any factual situation that can give rise to any enforceable claim if substantiated. This he contended consist of two elements (a) The wrongful act of the defendant giving rise to the complaint of the claimant (b) The consequent damages. Counsel urged the court to consider the claims in this suit to determine if there is a cause of action. Furthermore, counsel submitted that, nowhere in the claim and the writ of summon was there any allegation of wrongful act or wrong doing leveled against the 1st defendant by the claimant. Consequently, he contended, there was no damage done to the claimant by the 1st defendant who at the time of his dismissal from service by the Federal Civil Service Commission was a staff of the office of the Accountant General of the Federation. Counsel call in aid the cases of Chevron Nig Ltd Vs. Lonstar Bulling Nig Ltd 2007 All FWLR Pt 386, 633 at 634, Dayo Mining Consulting Ltd Vs. Jakara Marble Ind. Ltd 2007 All FWLR Pt. 390, 1531 at 1536, Oyetoki Vs. NPS 2010 All FWLR Pt. 504 at 1572 at 1574. Bebeji Oil Allied Product Ltd Vs. Pancosta Ltd 2007 31 WRN 168 at 175 and urged the court to strike out the name of the 1st defendant as a party in this suit. On issue four, counsel posited that the 1st defendant is not a necessary party as the dispute in question can be conveniently resolved in the absence of the 1st defendant as there is no claim in this suit against the 1st defendant. Counsel contended that the presence of the 1st defendant i.e the Federal Ministry of Finance in this suit is not relevant, crucial or fundamental to the determination and resolution of the questions in controversy in the suit. Counsel cited the case of Dantsho Vs. Mohammed 2003 6 NWLR Pt. 817 page 457, at 475 Babanyeju Vs. Ashamu (1990) 9 NWLR Pt. 567, 540 at 549. Sunmonu Vs. Akinwunmi 1994 7 NWLR (Pt. 354) 42 at 50 And urged the court to strike the name of the 1st defendant. In His response, F.D. Esume Esq. Counsel to the claimant who did not file any written address but replied on point of law submitted that the issue for determination before the court is whether the 1st defendant Notice of Preliminary Objection (NPO) is sustainable in the circumstances of this case as demurer proceedings have been abolished by the rules of this court and since the objector has not complied with the mandatory provision of the rules of this court by filing a statement of defence and since he has not done so, the Notice of Preliminary Objection is premature and incompetent. Counsel submitted that it is the claim of the claimant that determine jurisdiction and paragraph 17 of the claimant amended claim shows that the letter of dismissal of the claimant was served on him 6 months after the date of issue and this piece of statement has not been refuted, controverted or denied by the defendants. Since the 1st defendant has not raise the issue of limitation law in his pleading specifically, counsel argued, he cannot demur by springing a surprise through this Notice of Preliminary Objection(NPO). Counsel cited the cases of Audu Yusuf Vs. State 2011 18 NWLR Pt. 1279 P. 853 at 873 paragraph E-G, Sulgrave holdings incorp Vs. Federal Govt. of Nigeria 2012 17 NWLR Pt. 1329, 309 at 339 – 340. On the issue of reasonable cause of action, Mr. Esume submitted that paragraphs 4, 14, 16, 16 and 17 of claimants amended statement of claim are not denied as the notice of suspension culminating in the dismissal of the claimant emanated from the 1st defendant and he should come as a necessary party to explain their role in the dispute before the court. Counsel submitted further that since the 1st defendant is a creation of law, it is a juristic person. Counsel submitted further that assuming without conceding that the 1st defendant is not a juristic person, a wrongly joined party can only be struck out and the suit survives and not that the suit be terminated in limine. In reply on point of law, Achumie Esq. counsel to the 1st defendant filed a written address on the 18th of February 2014 wherein he contended that there is nowhere in the rules of this court where demurer has been abolished and as such a defence not filed do not prevent the raising of any legal objection touching on the jurisdiction of the court. Counsel cited the cases of Nonye Vs. Anyichie 2005 Vol. 21 NSCQR page 358 at 663; Owners of the M.V Arabella Vs. NAIC 2008 Vol. 34 NSCQR 1091 at 1097, Sani Vs. Okene Local Govt. Traditional Council 2008 Vol. 34 NSCQR page 979 at 981, DENR Ltd Vs. Trans Int. Bank Ltd 2008 18 NWLR Pt. 111 388 at 402 I have gone through the Notice of Preliminary Objection(NPO), the submission of counsel and the authorities cited. The central issue is the application of the 1st defendant in the jurisdiction of the court to entertain this suit as constituted. Jurisdiction of court to entertain a suit is based on the claimant’s averment in the statement of claim and the reliefs sought therein. See the case of Osoh Vs. Unity BANK Plc 2013 9 NWLR Pt. 1358 page 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 claim that cloths the court with or denies the jurisdiction to adjudicate on a matter before it. Whatever is brought before a trial court by the claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all. See the case of P & C H. S. Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR Pt. 1333 at 555. Moreover, it is the statute setting up the court that spells out the jurisdiction of the court. In the case of the National Industrial Court (NIC) it is the National Industrial Court Act 2006, the third alteration to the 1999 constitution of the Federal Republic of Nigeria (FRN) and other subsidiary legislations. On the issue of this action being caught by section 2 (a) of Public Officers Protection Act (POPA) LFN 2004 paragraphs 17 of the statement of claim and paragraph 17 of the witness statement on oath of the claimant states. Paragraph 17 of the statement of claim It is the claimant position that he received to his chagrin a purported letter of dismissal from service emanating from the Federal Civil service commission the 2nd defendant in this matter. The letter of dismissal dated the 5th May which was served on him for over six months later is hereby pleaded and shall be relied on at the hearing of this matter” Paragraph 17 of the witness statement on oath states: 17 “that however, I received to my chagrin a purported letter of dismissal from service emanating from the Federal Civil Service Commission the 2nd defendant in this matter” A cursory look at the letter of dismissal dated the 5th of May 2009 written by the 2nd defendant to the claimant did not indicate the date of receipt neither is there any evidence to show when the said letter was received by the claimant to enable the court calculate with arithmetical precision the date of accrual of cause of action with a view to determine the 3 month limitation period prescribe by the public officers protection Act. The 1st defendant submitted that the claimant received the letter of dismissal on the 10th of June 2009. The entire gamut of the claimant pleadings do not contain such facts and since submission of counsel cannot replace evidence, I cannot hold that this action was instituted outside 3 months contrary to the provision of the law. Consequently I hold that this action is not statute barred by the provision of section 2 (a) of Public Officers Protection Act (POPA) LFN 2004. The issue of whether the 1st defendant is a necessary party or not and whether it is a juristic person shall be considered together herein; By the provision of section 147 of the 1999 constitution of the Federal Republic of Nigeria (FRN) as amended, it is only the word minister that is referred to and not ministry; for the avoidance of doubt, section 147 of the constitution of Nigeria of the Federal Republic of Nigeria (FRN) 1999 as amended says:- “there shall be such offices of ministers of the government of the Federation as may be established by the President” It is therefore the president of the Federal Republic of Nigeria that has the discretion to create offices of ministers. The office of minister by this section is therefore a creation of statute and by this statutory flavour, it is legally recognized as a juristic person capable of Suing and being sued. It is on this platform that I am bound by precedent. In the case of Agboola VS. Saibu 1991 2 NWLR Pt. 175 page 566 at P. 572 paragraph H and 576 paragraphs A-D which held that the Federal Ministry of Service and technology is not a juristic person. Consequently I hold that the federal Ministry of Finance is not a juristic person. The claimant counsel Mr. Esume has canvassed strenonsly that the 1st defendants Notice of Preliminary Objection is incompetent on the ground that it has not raised the objection specifically from his statement of defence as demurer has been abolished. I find it extremely difficult to agree with this submission. There is no portion of the rules of this court known to me where a party must raise issue bordering on objections to court jurisdiction in his defence before applying to the court to set it down for trial. It must be noted that in some jurisdictions of this country the limitation laws are required as per the High Court Civil Procedure Rules to be pleaded by the defence in order not to take the opposite side by surprise although it may also arise from the facts as pleaded without specifically alleging the relevant limitation law. In that case pleadings have to be filed and exchanged by the parties before an objection to the action being stale and statute barred can properly be taken. This invariably is the case where demurer has been abolished. And the rules in that case require the defendant to set down for hearing the matter by an application raising specifically the question of limitation of action and the lack of the court’s power to entertain the same. The court then is required to determine that set down point in limine. Since there is no such requirement of raising such limitation law in the defendant’s defence before raising it in the Notice of Preliminary Objection as done in this case, the 1st defendant is allowed to demur , and I so hold. See the case of Sulgrave Holdings Inc. and Others Vs. FGN. And Others 2012 17 NWLR (Pt. 1329) 309 at 339 paragraph G-H. From the totality of what I have said so for in this ruling, I hold that the 1st defendant not being a juristic person known to law is hereby struck out. I also hold that this suit is not statute barred by the provision of section 2 (a) of the Public Officers Protection Act (POPA) LFN 2004. This case shall therefore proceed to trial. There is no order as to cost. Ruling is therefore entered accordingly. ------------------------ Hon. Justice P.O Lifu (JP.) Judge