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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE A. IBRAHIM DATE: 4th June, 2015 SUIT NO NICN/EN/138/2013 BETWEEN: BARR. V. C. CHUKWUANI ============CLAIMANT/RESPONDENT AND 1. ATTORNEY-GENERAL OF ENUGU STATE 2. MR. S. E. EKEH, PERMANENT SECRETARY RESPONDENTS/ CIVIL SERVICE COMMISSION APPLICANTS REPRESENTATION: F. C. Okeke Esq. appeared for the Claimant/Respondent. Mrs Chinonye Chimezie, NYSC Counsel, holding brief of U. J. Chime (Mrs), Senior Legal Officer, Ministry of Justice, Enugu State, appeared for the Defendants/Applicants. RULING This a suit transferred to this Honourable Court made pursuant to the Order of Honourable Justice E.C.N. Onyia of the Enugu State High Court on the 2nd of May, 2013. In the course of the proceedings this Honourable Court ordered the parties to address it on the propriety of initiating this suit by way of judicial review instead of a Complaint on the 19th of February, 2014. Subsequently however, the Claimant filed a Complaint with leave of court and the order for written addresses was vacated on 4th day of June, 2014. Following the filing of the Complaint the defendants filed a preliminary objection praying the Honourable Court for the following reliefs: a. AN ORDER striking out the name of the 2nd respondent not being a proper party to this suit. b. AN ORDER dismissing, or IN THE ALTERNATIVE, striking out claimant’s suit for want of jurisdiction. c. AND for such further order(s) as the Honourable Court may deem fit to make in the circumstances. The particulars of the objection were given as: i. The 2nd respondent herein acted at all times bona fide in his official capacity as Permanent Secretary of the Civil Service Commission. ii. The 2nd respondent is improperly joined as a party to this suit. iii. Service of pre-action notice is condition precedent to the institution of this suit. iv. Claimant herein failed to serve the requisite pre-action notices on the respondents. v. The suit is incompetent and this Honourable Court lacks jurisdiction to entertain same. vi. The state Proceedings Law, Cap. 146, Revised Laws of Enugu State requires that the instant suit being one against the State and/or a public officer be brought within twelve (12) months of the act or default complained of. vii. The claimant failed to bring this suit within the time limited by law. viii. The claimant’s suit is statute-barred. The objection was supported by a 12 paragraphed affidavit deposed to by Mr Charles Udeh, a litigation officer in the office of the 1st defendant. Attached to the said affidavit is one exhibit, Exhibit D1. There is also a written address accompanying the objection. Upon receipt of the preliminary objection of the Defendants, the claimant brought a reply dated and filed on 22nd September, 2014. Subsequently precisely on 20th day of October, 2014, the defendants/applicants filed a reply on points of law. The processes were regularized with leave of court and the respective written addresses adopted by the parties. In his written address, the learned counsel for the defendants/applicants formulated and argued three issues for the court’s determination as follows: i. Whether the 2nd respondent is a properly joined to this suit; ii. Whether the suit is not incompetent for failure of a condition precedent to the commencement thereof; iii. Whether this suit is not statute-barred by virtue of section 11(1) of the State Proceedings Law? Learned counsel in arguing issue 1, which is whether the 2nd Defendant is properly joined in this suit stated that it is a fundamental principle of law that only proper or necessary persons ought to be made parties to a suit, relying on the case of Green v. Green (1987) 3NWLR (Pt.61) 480. Learned counsel stated further that necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. Furthermore, that a desirable party is one who has an interest or who may be affected by the result. He continued that the law is now established that where the principal of an agent is known or disclosed, the party to sue for anything done or omitted to be done by the agent is the principal. He referred to Leventis Technical Ltd. V. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 224) 459. Further that in the case of Osigwe v. PSPLS Management Consortium Limited & Ors. (2009) 3 NWLR (Pt 1128) 378, the Supreme Court restated the principle that an agent acting on behalf of a disclosed principal incurs no personal liability in respect of transactions entered into with third parties which fall within the scope of his authority. Also according to Onnoghen JSC in Hope Democratic Party v INEC (2009) 8 NWLR (Pt. 1143) 297, (2009) LPELR-1375(SC), at pp. 25 – 27, on the propriety of suing a person in his personal capacity for an act performed in the course of suing a person in his personal capacity for an act performed in the course of his official duty, “The question is whether Prof. Maurice Iwu (Chairman INEC) is sued in his official status or capacity in the instant petition. Learned counsel for the appellant has argued that the 2nd respondent is sued in his official capacity as Chairman of INEC or in the alternative that having regard to the fact that allegations of improper conduct have been made in the petition against the person of the 2nd respondent, he has to be sued in his personal capacity. I hold the considered view that the 2nd respondent as described in the instant petition is sued in his personal capacity, not in his official capacity. The person sued is clearly Prof. Maurice Iwu while the clause (Chairman INEC) serves only to qualify him. I have gone through the petition and I do not agree with the learned counsel for the appellant that Prof. Maurice Iwu Played any personal role in the conduct of the April, 21st 2007 presidential election; even if he did, the law says that he has to be sued in his official status not private or personal capacity. I therefore hold the view that the lower court was right in striking out the name of the 2nd respondent from the petition.”. Counsel also commended to the court, its decision in suit no. NIC/EN/07/2010 – Comrade Eugene Ugwu v. Mrs Bridget Orijekwe & Ors. (unreported) –delivered on the 22nd day of June, 2011. According to counsel, the claimant has brought this suit against the Attorney-General of Enugu state as representing the state. He however also joined the 2nd respondent, a Permanent Secretary, upon whom the responsibility of writing the letter of 2/3/12 only devolved by virtue of his office and official duties. He therefore submitted that the 2nd respondent is neither a proper, necessary or desirable party in this suit and prays the Court to strike out his name. On the second issue which is whether the suit is not incompetent for failure of a condition precedent, counsel stated that it is a well settled principle of law that for a court to have jurisdiction to entertain a case, the following conditions must be present; a. the court must be properly constituted; b. the subject matter must be within the jurisdiction of the Court; c. the case must have been instituted by due process of law. d. any condition precedent to the exercise of the Court’s jurisdiction must have been fulfilled. He referred to the case of Madukolu v. Nkemdilim (1964) 2 All NLR 589. To the learned counsel, the service of pre-action notice where one is statutorily required is a condition precedent to the exercise of the court’s jurisdiction. According to the supreme court in the case of Nigercare Dev. Ltd. V. Adamawa State Water Board (2008) 9 NWLR (Pt. 1093) 498, (2008) LPELER-1997 (SC), a condition precedent is one which delays the vesting of a right until the happening of an event. In the words of Tabai JSC in that case (2008) LPELR-1997 (SC) at pp. 52–53, service of pre-action notice “is a condition precedent to the commencement of an action and non-compliance therewith renders the action incompetent and robs the court of any jurisdiction to entertain same”. He contended further that the Courts have held severally that where the issue of non-service of pre-action notice is raised and it is shown that there has been non-service of pre-action notice, the Court is bound to hold that the plaintiff has not fulfilled a pre-condition for instituting the action. In other words, where there is non-compliance with the stipulated condition for setting a legal process in motion, any suit instituted in contravention of the relevant law is incompetent and the court of law for that reason lacks the jurisdiction to entertain it. He referred to the case of Eti-Osa Local Government v. Jegede (2007) 10 NWLR (Pt. 1043)537. He stated that Section 11 of the state Proceedings Law, Cap. 146, vol. VI, revised Laws of Enugu State 2004 applicable in the circumstances is reproduced for ease of reference- “1. No action or proceeding shall lie or be instituted under this Law unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof: Provided that if the action or proceeding be at the instance of any person for a cause arising while such person was a convict prisoner, it may be commenced within twelve months after the discharge of such person from prison or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof, whichever shall last occur. 2. No action shall be instituted (a) Against the state or (b) Against a public officer, in respect of any act done in pursuance of execution of intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority. Until the expiration of a period of three months after notice in writing has been, in the case of the state delivered to the Secretary to the government, and, in the case of a public officer, delivered to him, stating the cause of action, the name, description and place of residence of the proposed plaintiff and the relief which he claims and the plaintiffs when eventually prepared shall contain a statement that such notice has been so delivered and the date on which it was delivered. Provided…” Counsel continued that the claimant herein instituted his suit in complete disregard of the above statutory provisions. He did not issue any pre-action notice on either respondent and did not allege that he did in his complaint or statement of facts. Counsel urged the court to find that service of a pre-action notice on the respondents herein is a precondition to the exercise of the Court’s jurisdiction in this suit, and accordingly, strike out the suit for claimant’s failure to fulfill the condition. On the 3rd issue which is whether this suit is statute barred by virtue of section 11(1) of the State Proceedings Law, counsel stated that it is not in doubt this suit comes under the state Proceedings Law being the Law which governs suits by or against Enugu State and/or its public officers. It is also obvious that the respondents herein are public officers for according to Iguh, J.S.C., interpreting the limitation provisions under the Public Officers Protection Act, in Ibrahim v. Judicial Service Commission, Kaduna state (1998) 14 NWLR (Pt. 584) 1 at 38, “It is thus clear to me that the term “public officer” has by law been extended to include a “public department” and, therefore, an artificial person, a public officer or a public body. I do not think that it can be suggested with any degree of seriousness that the Public Officer (Protection) Law Cap. 111 of Northern Nigeria, 1963 while it protects public officers, cannot in the same way protect a public department, an artificial person or public body, so long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap 111 does not protect persons, offices, bodies or institutions created by statute or the constitution or persons sued by their official titles, such as Attorney-General, Inspector-General of Police or Permanent secretary. As I have repeatedly stated, the words of the section of the Law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title, against the full context of the legislation, which suggests that any special meaning is to be given the words “any person” in that law other than their ordinary and plain meaning. I therefore find myself unable to introduce any limitation words to qualify the words “any person” in the legislation is issue. Counsel stated further that it is also beyond argument that the claimant’s suit was instituted outside the time prescribed by section 11(1) of the State Proceedings Law. Claimant was dismissed from service vide letter ref. ENS/CSC/P.1/21/109 dated 2/3/2012 (see paragraphs 6 and 10 (E) of the statement of facts and exhibit D1 in support of respondents’ objection). He instituted this action on 10/12/13. According to the Supreme Court in F.R.I.N v. Gold (2007)11 NWLR (Pt. 1044) I quoting Oputa JSC in Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 AT 20, “In determining whether or not an action is statute-barred, the court looks at the writ of summons and statement of claim alleging when the wrong which gives the plaintiff a cause of action was committed, and then compares that date with the date the writ of summons was filed…If the date on the writ is beyond the period allowed by the limitation law, then the action is statute-barred.” This action was instituted outside the prescribed period and, by the provisions of section 11(1) of the state Proceedings Law, is statute-barred. That a cause of action is said to be statute-barred if, in respect thereof, proceedings cannot be brought because the period laid down by the limitation law has elapsed, relying on Egbe v. Adefarasin (supra). Thus, any action or proceedings instituted after the statutorily prescribed period will be statute-barred. The Supreme court in Ibrahim v. Judicial service Committee, Kaduna State (Supra) at p. 32 stated the principle thus - : “The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed 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”. Continuing counsel submitted that though the Public Officers Protection Act does not prescribe any exceptions, the courts have identified certain exceptions thereto. In the words of de Commarmond S.P.J. in Salako v. LEDB (1953) 20 NLR 169 thus – “…section 2 of the Public Officers (Protection) Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc.” It is noteworthy however that the execution of contracts and labour claims do not apply to all forms of work or to contracts generally but only to cases of specific contracts. According to the Supreme court in NPA v. Construzioni Generalis F.C.S (1974) 1 All NLR (Pt. 2) 463 referred to in the case of F.G.N. V. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162, “We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his judgment cited above. It seems to us that on enactment of this kind i.e. S. 98 of the Ports Act is not intended by the legislature to apply to specific contracts.” Furthermore, the Supreme Court in Nigerian Broadcasting corporation v. Bankole (1972) NSCC 220 held that where a contract refers to a specific contract entered into by the parties with distinct terms and conditions, the statutory privilege under the Public Officers Protection law will not avail a public officer in case of breach. However, where the act or decision complained of is in the performance or execution of a public duty, the protection will avail a public officer or public authority. The Court found in that case that the dismissal of the plaintiff (respondent) was carried out in the course of the appellant’s performance of its public duty and held that the protection applied to the appellant. He referred to the case of Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606. That according to the Court of Appeal in Musa v. N.I.M.R (2010) 11 NWLR (Pt. 1205) 271, per Ogunbiyi J.C.A. at 292, “Their Lordships in their consideration held amongst others that where the contract is specific and entered into by parties with distinct terms and conditions, the statutory privilege provided for will not avail the public officer where there is a breach. A different situation avails however where there is a purported breach in the performance or execution of a public duty as in the case at hand.” While some of the authorities have also held that the limitation law will not protect a public officer where the act complained of is one tainted by malice, bad faith, bias or where there is no legal justification, as held in Offoboche v. Ogoja Local Government (2001) 1 FWLR (Pt. 68) 1051, the current position of the authorities is that a law for the protection of public officers should be given its plain, ordinary meaning, as the section determines whether an action is maintainable and not the liability or otherwise of the defendant. According to Ogunwumiju J.C.A. in Fjimolu v. Unilorin (2007) 2 NWLR (Pt. 1017) 74 at p. 88, “The learned justices of the Supreme court were unanimous in holding that the words used in S.2(a) of the Public Officers Protection Act, are plain and ought to be given their ordinary meaning. … furthermore they held that it is not right to read into an enactment an exception which it has not expressed and which will have the effect of depriving the person intended to be protected of that protection. The words “bias” and “malice” are not part of the provision of the statute and should no be read into it. It does not require good faith to avail a defendant the special defence of limitation of action nor does it require malice to deprive him of the defence provided … Similarly, the right of any person injured or wronged by the act, neglect or default is not extinguished by the good faith of the public officer.” Learned counsel submitted on the strength of the foregoing authorities that the protection afforded by section 11(1) of the state Proceedings Law applies to the respondents in this case being public officers. Also, the act complained of was carried out in the performance of their public duty. Claimant’s suit does not fall under any of the exceptions to the application of the Act. The claimant was under a contract of employment as against a specific contract. The injury alleged by claimant is not a continuing injury as his dismissal was definite. Thus, by virtue of the provisions of the limitation law claimant’s suit is statute-barred and therefore, not maintainable. In conclusion counsel submitted that the instant case is one in which claimant brought his suit outside the statutorily prescribed limitation period under section 11 of the state Proceedings Law and also failed to give the required notice under that section. The act of the respondents complained of is one carried out in the performance of their public duty and official functions, thus, the 2nd respondent is not a proper party to the suit. He urged the court, on the strength of the foregoing authorities and argument to uphold their objection, striking out the name of the 2nd respondent and dismissing the suit for being statute barred, or IN THE ALTERNATIVE, striking out the suit for want of jurisdiction for non-service of pre-action notices. On his own part, the learned counsel for the Claimant/respondent responded to the defendant’s objection in a process he titled “Reply on Law”. Counsel stated that in the first place, the suit/claim against the 2nd respondent has since been discontinued and so he is no longer part of the case. Then in respect of notice of objection to the competency of the suit which is dated 10/7/2014, he made his reply as set out hereunder: That Paragraphs (i) and (ii) of the objection have already been over taken by events, the suit/claim against the 2nd Respondent has been discontinued or withdrawn, paragraphs (i) and (ii) which relate only to him are thus now irrelevant. In respect of the objection in paragraphs (iii) — (viii), counsel urged the court to dismiss the same as being unmeritorious for the reasons he stated. He submitted that the sole respondent in this suit after the claim against the 1st Respondent had been withdrawn is the Attorney General of Enugu State who to all intents and purposes is a political Appointee of the Governor of Enugu State and who enjoys his term as Attorney General of Enugu State at the pleasure of the Governor of the State. In other words, the said Attorney General is not in the public service of Enugu State as a career public servant, while a career civil servant can only be disciplined or removed from office subject to the civil/public service rules of the state, the Governor of the State as has happened severally in the past, could wake up one morning and announce the removal of the Attorney General in the radio just like that, he cannot be heard to kick against that being only a political appointee of the Governor. In the recent case of ORJI VS PDP, 2009, 14 NWLR., (PT 1161) page 310, the Court of Appeal in determining if one appointed to public office at the discretion, whims and caprices of a state Governor qualifies to be seen or regarded as a public officer in the employment of the public service of a state, had found that a mere political appointee who is hired and fired at the whims of a Governor, cannot be said to be in the public service of the state. Furthermore, the position of the Attorney General of Enugu State vis avis the state proceedings law of the state is even clearer for the said law had clearly and specifically excluded him from being aggregated under the same compartment as career civil servants in the public service of Enugu state as a public officer. I think the intendment of the legislature was to make it clear to all and sundry that in Enugu State, the said state proceedings law does not regard the Respondent (Attorney General) as a public officer for purposes of the application of that law. That the said Enugu State proceedings law supra had in section 2 thereof defined “Attorney General” as meaning the “Attorney general of the State” (Enugu State), while it had defined a “Public officer” as meaning “An officer engaged in the service of the state in a civil capacity”. The state proceedings law of the state has therefore restricted its application to persons only who are engaged in the service of the state in a civil capacity, and to which counsel says, so be it. To him, the language of the law is clear and unambiguous, and should be given its literal meaning. It cannot by any stretch of imagination therefore be postulated that the Attorney General of Enugu State is a career public servant or subject to the Civil Service Rules of Enugu State. Counsel stated further that the BLACK’S LAW DICTIONARY 8TH EDITION defines the Civil Service of a State as “The Administrative branches of a government”, and the respondent cannot and does not therefore fit in within the provision of S.11 of the State Proceedings Law of Enugu State and is therefore neither entitled to any pre-action notice from the claimant not can it be true that this suit is statute barred. He added that the objection of the Respondent was situated solely on noncompliance with the requirements of the State Proceedings Law, Cap 146, Revised Laws of Enugu State 2004 and insofar as that law had specifically provided that it avails only persons employed in the service of Enugu State purely in a Civil capacity, then to all intents and purposes, the law does not afford the Respondent who is political appointee any cover or protection, suffice also to add that a case is an authority for what it has decided, therefore the cases of IBRAHIM VS JUDICIAL SERVICE COMMITTEE KADUNA STATE,. EGBE VS ADEFARASIN etc cited by the learned counsel for the Respondent do not just apply to the present case. Furthermore, that the State Proceedings Law of Enugu State supra has in its wisdom excluded its application to any person other than one employed in a Civil Capacity in the service of Enugu State, counsel does not therefore see how the cases cited by the learned counsel for the Respondent would apply to the present case. That at paragraph 4.1 of the written argument of the Respondent’s counsel seen at page 7 of the same, counsel had argued “The instant case is one in which the claimant brought his suit outside the statutorily prescribed limitation time period under section 11 of the State Proceedings Law and also failed to give the requisite notice under that section” — it is not thus in doubt that the objection of the Respondent is predicated essentially on noncompliance with the provisions of section 11 of the State Proceedings Law of Enugu State supra and the reason counsel has argued that the same law had specifically restricted its application to persons only who are servants employed in the public service of Enugu State or(sic). That section 2 of the Enugu State proceedings law supra is a special provision of the law, having thus defined a “public officer” for the purposes of that law, no contrary definition or meaning can be attributed to the words “public officer” beyond that set out in that law. The Attorney General of Enugu State who has been specially and specifically excluded from being regarded or treated as a public officer by that law cannot otherwise or by any rules of interpretation be now regarded as a public officer. He cited the case of JACK VS UNAM, 2004 5 NWLR part 865 page 208 @215. That is because S.11 of the state Proceedings Law does not apply to the Respondent counsel merely made a passing comment on the submission of the learned counsel for the same Respondent that even when a public officer properly called (not one in the mould of the Respondent) is alleged to have acted in bad faith or out of malice, that he still is entitled to be treated as a public officer in the eyes of the law. To counsel that is not the position of the law for once he had acted in bad faith or out of malice, the correct position of the law is that the public officer loses all the protection that attaches to him as such public officer — see LAGOS CITY COUNCIL VS OGUNBIYI 1969. 1ANLR, 297 @ 299, OFFOBOCHE VS OGOJA LOCAL GOVERNMENT, 2001, 7SC PTIII PAGE 107, ADEWUNMI VS NWANKWERE, 1966, 1ANLR 122 @ 133 AND 134. And then there is the recent case of A.G. RIVERS STATE VS A.G. BAYELSA STATE, 2012, 7SC PTII PAGE 110 @ 119— 120. In the case of A.G. RIVERS VS A.G. BAYELSA supra, the apex court had reviewed all its past decisions on the matter including IBRAHIM VS J.S.C. supra cited by the learned counsel for the Respondent and found that “The second exception to the application of the Act is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the Plaintiff in this suit — see NWANKWERE VS ADEWUNMI 1967, NWLR 45 49. The pleadings of the plaintiff alleged that the 1st Defendant had perpetrated fraud and perpetuated deception on the authorities to gain access to funds it is not entitled to under the constitution. The 1st Defendant cannot avail itself of the defence under the Act, if it has stepped outside the colour of its office or its statutory or constitutional duties, if any. The Supreme Court must look into this issue and would not with a wave of hand deprive the Plaintiff its legal capacity to ventilate his grievance”. Counsel referred to paragraph 6 of the claim where it had been averred that the Respondent had acted in bad faith in purporting to have dismissed the claimant as it had done, and thereby disentitling him from relying on the defence. Counsel then stated then said he was saying nothing more on this issue since the state proceedings law of Enugu State which is in point in this case has declared in section 2 thereof that the Respondent is not a public officer under that law, and he urged the court to dismiss the objection. Replying on points of law, the learned counsel for the defendants stated that the the claimant vide his reply on law dated and filed the 22nd day of September, 2014 discontinued the suit/claim as against the 2nd respondent. Claimant did not adduce any fact as to date, time or proceedings in support of his submission that “the suit/claim against the 2nd respondent has since been discontinued and so he is no longer part of the case” but only made his statement as a matter of “law”. The processes ought to reflect such discontinuance upon a Court’s order so to do. Counsel submitted that Claimant’s “submission” is a tacit admission that the 2nd respondent was improperly joined to this suit: that he was not served any pre-action notice as required by law, and that the suit is statute barred as regards the 2nd respondent. He urged the Court to so hold. According to the learned counsel the Claimant’s counsel went on to contend, with respect to the 1st respondent that the Attorney-General of Enugu State is a political appointee who holds his office at the pleasure of the Governor. That relying on the case of Orji v. PDP (2009) 14 NWLR (Pt. 1161) 310, claimant contended that a mere political appointee who is hired and fired at the whims of a Governor cannot be said to be in the public service of the state (see paragraphs 4-6 of claimant’s reply on law). To the learned counsel the case of Orji v. FDP (supra) is not an authority for the above fallacy. In Orji v. FDP (supra), the Court of Appeal was called upon to make a finding as to whether a Chief of Staff to the Governor and/or a Commissioner were to be considered “a person employed in the public service of the Federation or of any State” within the meaning of section 182(1)(g) of the 1999 Constitution being persons required to resign, withdraw or retire from such employment before they are qualified to contest election to the office of Governor of a State. The contention in that suit was in no way concerned the office of the Attorney-General but about the offices of a chief of the staff to the Governor and Commissioner which are not offices created by the Constitution or any law but exist at the mercy of the State Governor. The reasoning of the Court of Appeal in that case is as follows — “Throughout the constitutional provision reproduced and under reference supra, there is nowhere that the office of the Chief of Staff to the Governor or Commissioner is mentioned. In other words, the offices are not creations of the Constitution and so cannot apply to them.” Orji v. PDP (supra) at page 395, para. G-H Counsel continued that the office of the Attorney-General of a State is created by section 195 of the 1999 Constitution thus — “(1) There shall be an Attorney-General for each State who shall be the Chief Law Officer of the State and Commissioner for Justice of the Government of that State.” The qualification required for the office is provided in subsection (2). This is clearly in contradistinction to section 192 which provides generally for the offices of Commissioner and section 208(2)(d) under which the Governor may appoint any personal staff. These offices are obviously not in the same class as the office of the Attorney-General of a State which is specifically provided for by the Constitution. Learned counsel also commended to this Honourable Court the position of the Supreme Court on this subject in the cases of Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 and Sulgrave Holdings inc. v. F. G. N (2012) 17 NWLR (Pt. 1329) 309, where the Supreme Court adopted the definition of public officers as contained in the Fifth Schedule to the 1999 Constitution. According to the apex Court per Iguh J.S.C. in Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 38, “Nor am I able to accept that Cap. 111 does not protect persons, offices, bodies or institutions created by statute or the Constitution or persons sued by their official titles, such as Attorney-General, Inspector-General of Police or Permanent Secretary. As I have repeatedly stated, the words of the section of the Law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title, against the full context of the legislation, which suggests that any special meaning is to be given the words “any person” in that law other than their ordinary and plain meaning. I therefore find myself unable to introduce any limitation words to qualify the words “any person” in the legislation is issue.” That also, according to the Supreme Court in Sulgrave Holdings Inc. v. F.G.N. (2012) 17 NWLR (Pt. 1329) 309 at 340, paras D — F, “This is so even as the term “public officer” has not been defined under the Public Officers Protection Act.... However, in the Fifth Schedule (Part I) paragraph 19 of the 1999 Constitution (as amended) has defined “public officer” as a person holding any office as specified in Part II of that Schedule. The Attorneys-General of the Federation and State and the Inspector General of Police have been specifically mentioned as such in the said Part II of the Fifth Schedule so also other persons in the public service.” It is trite by the principle of stare decisis, counsel contended, that in the hierarchy of courts, the lower courts are bound by the decision of the Supreme Court. He referred to Osakue v. F.C.E., Asaba (2010) 10 NWLR (Pt. 1201) 1 at 34. He urged the Court to find in consonance with the reasoning of the apex court that the 2nd Respondent/Applicant herein is a public officer to whom the provisions of the State Proceedings Law are applicable. Continuing, counsel stated that the Claimant’s Counsel attempted to further twist the law in paragraphs 7 — 11 of his address by wrestling with the meaning of “public officer” in the State Proceedings Law — “an officer engaged in the service of the state in a civil capacity.” He sought to equate ‘civil capacity’ with ‘civil service” which is defined by the Black’s Law Dictionary as “the administrative branches of a government.” To counsel, the words “civil capacity” as used in the definition of “public officer” in section 2 of the State Proceedings Law refers to service in a “civil” or “civilian” capacity as opposed to a “military capacity”. A like distinction exists in the field of aviation where “civil aviation” which refers to aviation in general while “military aviation” is the preserve of the Air Force of each country. This is the sense in which the phrase is used in the tax laws, as in section 2(l)(b)(i) of the Personal Income Tax Act, Cap. P8, LFN 2004 as amended thus - “person employed in the Nigerian Army, the Nigerian Navy ... other than in a civilian capacity.” As regards the passing comments of claimant counsel on the issue of malice and bad faith, counsel commended to the court the reasoning of the Supreme Court in Egbe v. Alhaji [1990) 1 NWLR (Pt. 128) 546 at p. 572, paras E-F thus, “In a civil action, where the defendant invokes protection under section 2(a) of the Public Officers Protection Law it is not proper for the trial court to infer or conclude from the pleadings that the protection afforded by the law, has been vitiated by malice or bad faith. For what the trial court is obliged to decide at that stage is whether the action is maintainable and not whether the defendant is liable.” He also referred to Fajimolu v. Unilorin [20071 2 NWLR (Pt. 1017) 74 at 88. He continued that the Claimant referred to the statement of the Supreme Court in A-G. Rivers State v. A-G. Bayelsa State (2012 )7 SC (Pt. II) 110 thus — “The second exception to the application of the Act is that it does not cover a situation where the person relying on it has acted outside the color of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit.” Counsel submitted that this statement does not aid the claimant in anyway in the instant circumstances as paragraph 6 of his claim upon which he relies for his allegation of bad faith referred particularly to the act of the 2nd respondent. Paragraph 6 of claimant’s complaint reads — “That despite the foregoing and actuated by bad faith, the 2nd respondent that had no powers so to do, had written a letter of 2/3/2012 to the claimant ....”. In paragraph 1 of his address, claimant summarily withdrew the suit as against the 2nd defendant. The fact of malice is thus not in issue. Furthermore, the act of dismissing an errant employee is certainly within the colour of office and statutory duty of the State Government and any agency or officer to whom such power is delegated. Counsel therefore submitted that the 2nd respondent is a public officer subject to and under the provisions of the State Proceedings Law. Furthermore that the failure of the claimant to comply with section 11 of the State Proceedings Law in instituting this action is fatal. He urged this Honourable Court to find that no pre-action notice was served on the Attorney-General of Enugu State as required by law or any other officer of the Government of Enugu State upon which such notice is prescribed to be served before an action may be instituted against the State Government. He also urged the Court to find that this suit was instituted outside time limited by section 11(1) of the State Proceedings Law. He thus prays the Court to uphold the Respondents’ preliminary objection and strike out the suit for failure of a condition precedent and for being statute-barred. I have carefully considered the processes, arguments and submissions of counsel on the application made by the defendants challenging the competence of the suit. From my understanding, the issues for determination are two. These are: 1. Whether the suit as presently constituted is statute barred? 2. Whether the Claimant has complied with the requirement for pre-action notice in this case? In determining the first issue before the court, it has been the contention of the learned defendants counsel that this suit is statute barred. The defendants have submitted that the claimant’s suit is caught up by the provisions of Section 11(1) of the State Proceedings Law of Enugu State which provides that a suit against the defendants must be brought within 12 months from the date the cause of action in the matter arose. The learned counsel for the defendants has reproduced the provisions of the said law and how it has been interpreted in a number of authorities. For ease of reference let me reproduce the said provision of Section 11(1) of the State Proceedings Law, Cap. 146, Revised Laws of Enugu State, 2004 as follows: “1. No action or proceeding shall lie or be instituted under this Law unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof: Provided that if the action or proceeding be at the instance of any person for a cause arising while such person was a convict prisoner, it may be commenced within twelve months after the discharge of such person from prison or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof, whichever shall last occur. This provision clearly puts a limit to the time within which the claimant may come to court which is twelve months. Therefore the question is whether in the instant case the claimant is out of time. He has shown by the statement of claim that he was dismissed from service by a letter reference number ENS/CSC/P.1.21/109 dated 2/3/2012. See paragraph 6 of the Statement of claim. A careful perusal of the case of the defendants is that the claimant who had been dismissed on 2/3/2012 only came to court when the Complaint was filed in this suit on the 10th of December, 2013. This means that the claimant was out of time by about 7 months. However, the critical point is whether the claimant indeed came to the court on that date. This is because this suit was filed at the Enugu State High Court on the 27th day of March, 2012. It was later transferred to this court following which the claimants were granted leave to file a Complaint on the 10th of December, 2013. Here it is therefore difficult to see how the suit can be said to have been statute barred because the claimant came to court within time. This I so find and hold. The first issue is therefore resolved in favour of the claimant. The second issue is whether or not the claimant has issued the proper pre-action notice to the defendants before instituting this suit as required by the provisions of Section 11(2) of the State Proceedings Law, Cap. 146, Revised Laws of Enugu State 2004 which state as follows: 2. No action shall be instituted (a) Against the state or (b) Against a public officer, in respect of any act done in pursuance of execution or intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority. Until the expiration of a period of three months after notice in writing has been, in the case of the state delivered to the Secretary to the government, and, in the case of a public officer, delivered to him, stating the cause of action, the name, description and place of residence of the proposed plaintiff and the relief which he claims and the plaintiffs when eventually prepared shall contain a statement that such notice has been so delivered and the date on which it was delivered. Provided that nothing herein contained shall be construed as affecting the provisions of any law which limits the liability of the Government or any department thereof in respect of any act or omission of its servants. The wordings of this provision are clear. It must therefore be given its plain meaning. See Mallam Abubakar Abubakar & ORS vs Saidu Usman & Ors (2011) LPELR-1831 (SC), Per Rhodes Vivour JSC, p.43 paras B-C, Obiuweubi vs Central Bank of Nigeria (2011) LPELR-2185 (SC), p. 18 paras F-G and Toriola vs Williams (1982) 7 SC p. 27. Therefore, any person intending to sue Enugu State or a public officer in the state is required to give a pre-action notice of three months to the Secretary to Government in the case of the State Government and to the affected public officer in case of a public officer. The exact nature of the information to be contained on the said pre-action notice has been provided in the said section. Furthermore, the statement of claim of a claimant must show that such notice has in fact been delivered. In the instant case, while the defendants maintain that the defendants are both entitled to the pre-action notice of which same was not given in compliance with the law, the claimant’s argument is that the 1st defendant is not a public officer and therefore is not entitled to any pre-action notice. To counter this submission the learned defendants counsel has argued that the claimant’s counsel misconstrued the provisions of the Statute, i.e., the State Proceedings Law by submitting that the A-G of Enugu State was not a Public Officer because he was not serving in a civil capacity. Having reviewed the submissions of both counsel, it is quite clear to me that the arguments and submissions of the claimant are indeed not tenable. In the first place, his reliance on the decision in Orji vs PDP, supra, is not in tandem with the argument he made. His contention is that the Attorney-General of Enugu State is a mere political appointee who is hired and fired at the whims of a Governor and cannot therefore be said to be in the public service of the state. But as rightly pointed by the learned defendants’ counsel, in my humble view, the Attorney-General of the State is a creation of Section 195 of the Constitution of the Federal Republic of Nigeria 1999 and his position is different from that of any other commissioner or political appointee. The Attorney-General is also expressly mentioned as a public officer in the Fifth Schedule to the 1999 Constitution as amended. This makes his position different from that of an ordinary commissioner or Chief of Staff to the Governor who are not specifically created by the Constitution and therefore are appointed at the pleasure of the Governor. In the instant case therefore, the Attorney-General of Enugu State is a Public Officer and is entitled to be given a pre-action notice before he is sued. It is clear from the facts of this case that the Claimant has not given the required notice before instituting this case, perhaps under the mistaken belief that it was not necessary, the Attorney-General not being a public officer. In view of the foregoing however, it is my finding that the Attorney-General of Enugu State is a Public Officer. He is therefore entitled to pre-action notice in line with the provisions of Section 11(2) of the State Proceedings Law of Enugu State, 2004. The failure to give that makes this suit incompetent on account of non-compliance with an important precondition to the institution of this suit. See Nigercare Development Company Ltd vs Adamawa State Water Board & Ors (2008-1997 (SC), Chief John Eze vs Dr Cosmas Ikechukwu & Ors (2002) LPELR-1194 (SC) p. 13 paras B-D, and Vinchem International Ltd vs Eleme Petrochemicals Company Ltd (2010) LPELR-5-87, pp. 18-19 paras G-C. The second issue is therefore, resolved against the claimant. In the circumstance, the preliminary objection of the defendants’ succeeds partially as I hold that the suit is incompetent for failure of the Claimant to serve pre-action notice before instituting the suit. It is accordingly hereby struck out. I make no order as to costs. Ruling is entered accordingly. Hon. Justice A. Ibrahim Presiding Judge