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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: March 18, 2015 SUIT NO. NICN/EN/291/2013 Between Mr. Davis Iwuchukwu …… ….. Claimant/Respondent And 1. Federal Ministry of Finance Defendants/Applicants 2. Accountant-General of the Federation Representation: B. O. Emere for the Claimant/Respondent Chinedu Achumie for the 1st Defendant/Applicant RULING/JUDGMENT The plaintiff/claimant instituted this action originally before the Federal High on the 20th day of October, 2006. The suit was subsequently transferred to this court. By a complaint filed before this court on the 2nd day of September 2014 pursuant to an order of this court made on the 20th day of March 2014, the Claimant claims against the defendants as follows: 1. A Declaration of the court that the purported dismissal of the claimant’s appointment from the Federal Civil Service is illegal, unconstitutional and void. 2. A Declaration of the court that the procedure adopted by the 2nd defendant in handling the claimant’s matter in the arbitration panel was a total breach of fair hearing as constitutionally guaranteed by the constitution. 3. That the retroactive executive decision whereby the claimant’s purported dismissal was backdated as reflected in the purported letter of dismissal is a total breach of fair hearing, unconstitutional, illegal and therefore void and of no affect. 4. A Declaration of the court that the suspension, seizure or withholding of the claimant’s salaries and allowances for years is illegal and improper. 5. An order of court that the Claimant be re-instated to his job. 6. An order of court that his salaries and allowances be paid forthwith. 7. An order of court that he be accorded the promotion due to him or accorded to his contemporaries. 8. Setting aside the purported dismissal and the letter purporting same. By a Notice of Preliminary Objection dated the 9th day of October 2014 and filed on the 10th day of October 2014, the 1st defendant challenged the jurisdiction of this Court to entertain this suit on the grounds:- a. The suit is statute barred and the Honourable Court has no jurisdiction to entertain same. b. The 1st defendant is not a juristic person capable of being sued in a court of law; c. The Claimant has no reasonable cause of action against the 1st defendant; and d. The 1st defendant is not a necessary party in this suit. In the written address in support of the preliminary objection, Counsel for the 1st defendant/applicant identified the following four (4) issues for the determination of the Court: (i) Whether this action was not already Statute Barred as at the time it was commenced at the Federal High Court, in view of the provisions of the Public Officers Protection Act. (ii) Whether the name “Federal Ministry of Finance” is a Juristic Person capable of being sued in a Court of Law. (iii) Whether this suit discloses any reasonable cause of action or any cause of action at all against the 1st defendant in view of the facts and circumstances of this case. (iv) Whether the 1st defendant (Federal Ministry of Finance) is a necessary party in this suit having regard to the facts of this case. In arguing issue one, counsel submitted that this suit is statute barred in view of the provisions of Section 2 of the Public Officers Protection Action, Laws of the Federation of Nigeria 2004, as the suit was instituted at the Federal High Court Owerri on the 20th of October, 2006 more than three months after the alleged cause of action arose. The claimant stated in paragraph 21 of his statement of claim that he received a letter dated 16th August 2002 which dismissed him from the Federal Civil Service with effect from 2nd November, 1995 and that by a letter dated 11th November, 2002 and addressed to the Accountant General of the Federation, he protested his dismissal from service. This averment by the claimant clearly shows that the cause of action in this suit arose on the 16th of August, 2002, when the claimant, claimed he received his letter of dismissal from service, however he did not take any step to challenge his dismissal in court until October, 2006 almost four (4) years after his dismissal and in fact more than three months after the cause of action arose. Section 2(a) of the Public Officers Protection Act which deals with limitation of time within which an action could be commenced against Public Officers expressly provides as follows: Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or execution or intended execution of any Act or Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect:- (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof” It is the contention and submission of counsel for the applicants that the cause of action in this suit is time barred and incompetent thereby robbing this court of the requisite jurisdiction to entertain same. This position is supported by the decision of the Court of Appeal Abuja Division in the recent case of MR. M.A.D UKIRI vs. FEDERAL CIVIL SERVICE COMMISSION & ANOR (2011) All FWLR (Pt. 577) PG. 783 @ 786 RATIO 4, where the court held thus: “A cause of action is said to be statute barred if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Act or Law has elapsed. Limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the Writ of Summons was filed, in order to determine whether an action is statute barred or not, the court must be involved in the exercise of calculating the years, months and days to the minutes detail. It is an arithmetic exercise which needs a most accurate answer, using the limitation period in the enabling statute, the judge then works out when the cause of action arose and when plaintiff actually instituted the action. If in the course of his calculation, there is a plus on the baseline year, then the action is statute barred. But if there is a minus then the action is competent..” See also the case of FORESTRY RESEARCH INSTITUTE OF NIGERIA vs. MR. I. A. ENAIFOGHE GOLD (2007) All FWLR (Pt. 380) Pg. 1444 @ 1446 – 1447 ratios 1, 5 & 6 where the above position of law was earlier stated by the Supreme Court. According to counsel, a close perusal of the claimant’s Statement of Claim in this suit especially paragraph 21 clearly reveals that the cause of action in this suit arose on the 16th of August, 2007 being the date of the letter of the claimant’s dismissal from the Federal Civil Service, while the claimant commenced the action on the 20th day of October, 2006 at the Federal High Court Owerri. The claimant alleged that he wrote letters to the defendants appealing that his dismissal be reviewed but that same was not done and after waiting endlessly for more than three years he now instituted this action. This, counsel submitted, is of no moment in determining the competence of this action. In fact the claimant’s admission in paragraph 26 and 27 of the Statement of Claim without more, clearly and unequivocally supports the applicant’s position that the suit is statute barred as it was commenced outside the period allowed by law. To counsel, the claimant merely slept on his right if he ever had any. His failure to bring this action within the time allowed by the law is detrimental to his claim The Supreme Court in CENTRAL BANK OF NIGERIA vs. JACOB OLADELE AMAO & 2 ORS (2011) All FWLR (Pt. 558) P.806 @ 812 ratio 3, while also dealing with the issue of the statutory time within which to institute an action against Public Officers stated thus: “By provisions of section 2(a) of the Public Officers (Protection) Act (Cap 379) Laws of the Federation of Nigeria, 1990, on action against public officer in respect of any act done in pursuance or execution of any Act or Law of public duty or default on same can only be commenced within three months next after the act, neglect or default complained of, except in a case of continuance of damage or injury in which the person aggrieved must institute the action within three months next after the cessation of the damage or injury complained of” . In the case of MR. M.A.D. UKIRI vs. FEDERAL CIVIL SERVICE COMMISSION (supra) the Court of Appeal restated the position of the Supreme Court when it held in ratio 5 thus: “By the provisions of section 2(a) of the Public Officers Protection Act, an action commenced after the expiration of the period statutorily stipulated is not maintainable, consequently, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period laid down for instituting such action has elapsed”. Also in the same vein, the Supreme Court in the case of FORESTRY RESEARCH INSTITUTE OF NIGERIA vs. MR. I. A. ENAIFOGHE GOLD (supra), while dealing with the effect of an action brought contrary to the provisions of section 2(a) of the Public Officers Protection Act held thus at page 1447: “The consequence of instituting an action contrary to the provisions of section 2(a) of the Public Officers Protection Act is that section 2(a) has removed the right of action, the right of enforcement, the right of judicial relief from the respondent and left him with a bare and empty cause of action which is unenforceable in law”. Counsel urged the court to hold that this action is statute-barred and dismiss same for being incompetent. On issue two whether the name “Federal Ministry of Finance” is a juristic person capable of being sued in a court of law, it was the submission of Counsel for the applicants that the term juristic person as defined in the Black’s Law Dictionary, Seventh Edition, 1999 at page 1162, “denotes an artificial person or entity, such as corporation created by law and accorded certain legal rights and duties of a human being; a being real or imaginary, who for the purpose of legal reasoning, is treated more or less as a human being. It is also termed fictitious person, legal person or moral person”. As a general rule and as decided in a plethora of judicial decisions any person whether natural or artificial may sue and be sued. However, no legal action can be instituted by or against any party in a court of law other than a natural person, unless such a party is accorded by a statute, expressly or impliedly or by common law either the status of a legal person under the name by which it sues or is sued, or a right to sue or be sued by that name. see the case of Fawehinmi vs. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558. See also the case of Chief Johnson Emere Nkponwi vs. HRH Samuel Oluka Ejire & Anor, (2009) All FWLR (Pt. 499) 450 @ 475. In Atagbua & Company vs. Guura Nig. Ltd. (2005) 21 NSCQR Page 720 @ 722 ratio 1, the Supreme Court, per D.O. Edozie JSC while dealing with the issue of juristic personality and the competence of an action held thus: “Undoubtedly, for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on same there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent”. Counsel therefore submitted that the name “Federal Ministry of Finance” is not a juristic person capable of suing or being sued before a court of law. This is because the Ministry is not a natural person and is also not a creation of any statute. What in fact is designated in section 147 of the Constitution of the Federal Republic of Nigeria as amended is rather the “Minister”. The Federal Ministry of Finance, counsel contends, is merely the nomenclature attached to the portfolio of the Minister of Finance; and not being a juristic person, cannot sue or be sued in a law court. The Court of Appeal, Kaduna Division, while dealing with the issue of juristic personality as it relates to the Federal Ministry of Science and Technology in the case of S.D. AGBOOLA & 2 ORS vs. GABRIEL SAIBU & ANOR (1991) 2 NWLR (Pt. 176) 175 P. 566 esp. @ page 575 para. H & 576 paras A – D stated as follows: “The submission in the appellant’s brief was that the 3rd appellant (Federal Ministry of Science and Technology) was not a juristic person who could sue and be sued. The respondent’s submission was that the 3rd appellant that could own properly, employ servants and inflict injury had capacity to sue and be sued. The 3rd appellant is not a natural person, there was no indication in the ruling of the learned trial judge of the property owned by the 3rd appellant or information as to the legal or factual basis that the 3rd appellant owned institutions of research … There is nothing in the Act to the effect that the 3rd appellant owned and institution established under section 1 of the said Act. The reasons given by the learned trial Judge, quoted above, for holding that the 3rd appellant should be clothed with legal personality and with the power to sue and be sued can, therefore, not be sustained. The 3rd appellant is not a juristic personality that can sue and be sued”. Counsel submitted in line with the above decision of the Court of Appeal that if the Federal Ministry of Science and Technology is not a juristic person capable of suing and being sued, then the Federal Ministry of Finance and in fact all other Federal Ministries in Nigeria are not juristic persons that can be sued in a court of law. He urged the Court to so hold and to strike out this suit for being incompetent or in the alternative strike out the name of the 1st defendant/applicant as a party to this suit. On issue three, counsel submitted that the claimant’s suit is unreasonable as it discloses no reasonable cause of action against the 1st defendant. According to Counsel, generally speaking, the term cause of action means the factual situation which if substantiated entitles the plaintiff to remedy against the defendant. It is also the entire set of circumstances giving rise to an enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and consists of two elements. (a) The wrongful act of the defendant which gives the plaintiff his cause of complaint and (b) The consequent damage. In the determination of whether or not a suit discloses a reasonable cause of action, only the averments on the plaintiff’s Statement of Claim shall be considered. In CHEVRON NIGERIA LTD. V. LONSTAR BRILING NIGERIA LTD. (2007) All FWLR (Pt. 386) page 633 @ 634 Ratio 2; the apex court per OGUNTADE JSC in dealing with the issue as to the proper approach of a court in the determination of whether a reasonable cause of action exists in a matter stated thus: “The proposition that a plaintiff has no reasonable cause of action can only be made upon an examination of facts pleaded, in the Statement of Claim. It has nothing to do with the nature of the defence which the defendant may have to the plaintiff’s claim. The court must therefore confine itself only to the averments in the Statement of Claim, in the assessment of whether the plaintiff has a reasonable cause of action”. See also the case of DAYO ADELEYE MINING & CONSULTING CO. LTD. vs. JAKURA MARBLE IND. LTD. & ANOR (2007) All FWLR (Pt. 390) Pg. 1531 @ 1536 Ratio 7 & 8; MR. SAMUEL OYETOKI vs. NIG. POSTAL SERVICE (2010) All FWLR (Pt. 504) Pg. 1572 @ 1574 Ratios 1 & 2. Counsel submitted that a perusal and consideration of all the averments in the claimant’s Writ of Summons and Statement of Claim does not disclose any wrongful act against the claimant by the 1st defendant neither did any of the said averments disclose any damage caused by the 1st defendant to the claimant, who as at the date of his dismissal from service by the Federal Civil Service Commission was a staff of the Office of the Accountant General of the Federation. The claimant was also queried by the Office of the Accountant General of the Federation and dismissed from the Federal Civil Service by the same office. The Federal Ministry of Finance did not play any role at all in the dismissal of the claimant as the claimant was stricto senso and in all intents and purposes a staff of the Office of the Accountant General of the Federation. In fact the salaries and allowances of the claimant, including his promotions came from the Accountant General of the Federation. The name of the claimant was never in the payroll or the nominal roll of the Federal Ministry of Finance. It needs to be stated that the Federal Ministry of Finance only plays supervisory roles over the Office of the Accountant General of the Federation and such role relates basically to broad policy issues and does not relate to staff and disciplinary matters. The Office of the Accountant General of the Federation maintains its own Personnel Management Department which has the right to discipline its staff. On what a court should do where it finds that a suit discloses no cause of action against the defendant/respondent, the Court of Appeal in Bebeji Oil Allied Product Ltd. vs. Pancosta Ltd. (2007) 31 WRN 168 @ 175 Ratio 12, while citing the Supreme Court decision in Duru vs. Nwagu (2006) All FWLR Pt. 323 stated thus: “Where no reasonable cause of action is disclosed against the defendant/respondent, the court can on the proper application of the party strike out his name from the suit. Such a finding and pronouncement which is definitive and correct will not prejudice the hearing of the substantive case against other defendants/respondents against whom reasonable cause of action has been disclosed”. Counsel urged the Court to strike out the name of the 1st defendant as a party in this suit as the claimant has no single claim against it. On issue four (4) whether the 1st defendant is a necessary whose presence is fundamental to the determination of this suit, it was the submission of counsel for the applicant that the term “Necessary Parties” refers to 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. In other words, the question to be settled or adjudicated upon in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See the case of O. K. CONTACT POINT HOLDINGS LTD. vs. PROGRESS BANK OF NIGERIA PLC & ANOR (1999) 5 NWLR (Pt. 604) P. 631 @ 632. It is the contention of counsel that the 1st defendant/applicant is not a necessary party in this suit and that her joinder as a party is merely mischievous. This is evident in the Statement of Claim which contained no single claim against the 1st defendant other than that the claimant was employed by the 1st defendant in 1987 as a clerical officer. This averment is neither a claim nor a relief. The claims of the claimant are expressly against the 2nd defendant as the 1st defendant was not in the picture of what transpired between the claimant and the 2nd defendant. The claimant as at the time of his dismissal from service was in all intent and purposes a staff of the Accountant General of the Federation, serving at the Federal Pay Office Sokoto, and has also moved from the Clerical Cadre to the Accounting Offers Cadre and all the issues that gave rise to his dismissal took place at Sokoto while he was working under the control and supervision of that office. To counsel, the joining of the Federal Ministry of Finance as a party in this suit by the claimant is mischievous and unnecessary considering all the circumstances of this case. The office of the Accountant General of the Federation is not a department in the Federal Ministry of Finance but rather an independent establishment especially as it relates to the hiring and discipline of members of its staff. Counsel submitted that as at the time of the claimant’s dismissal from service by the Accountant General of the Federation, his monthly salaries and allowances were being paid by the Office of the Accountant General of the Federation. His annual leaves and promotions were also approved by the Office of the Accountant General of the Federation. The claimant has also moved from the Clerical Cadre to the Accounting Officers Cadre following his upgrading as claimed in Paragraph 4 of the Statement of Claim. The query that led to his dismissal from service did not also emanate from the Federal Ministry of Finance but from the Office of the Accountant General of the Federation. These facts are deducible from the claims of the claimant as contained in his Statement of Claim and all the Exhibits attached thereto. According to counsel, parties are not cited in suits just to make up the number of persons that a plaintiff intends to sue or for the fun of it. Parties are joined because their presence is relevant, crucial and fundamental for the determination and resolution of the questions and issues in controversy. Where there is no complaint against a party, then it will be very unnecessary to join such a party or to maintain the name of such a party in the suit as the non-joinder of the party will not affect the hearing and determination of the suit. See the case of ALHAJI AMINU DANTSHO vs. ALHAJI ABUBAKAR MOHAMMED (2003) 6 NWLR (Pt. 817) Pg. 457 @ 475 Ratio 17. In BABANYEJU vs. ASHAMU (1990) 9 NWLR (Pt. 567), Pg. 540 @ 549 while dealing with the issue of who is a necessary party to an action the Supreme Court state thus: “The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settle therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. Thus necessary party is someone whose presence is necessary as a party”. See also the case of Benson Akintola Sunmonu Ige & 4 Ors vs. Babajide Akinwunmi & 6 Ors (1994) 7 NWLR (Pt. 354) Pg. 42 @ 50 Ratio 1. It was counsel’s further submission that it is within the competence of this Court to strike out the name of any party who has been improperly joined in a suit. He contended that the 1st defendant/applicant merely plays a supervisory role over the Office of the Accountant General of Federation with regards to broad policy issues and the said role does not extend to the internal administration or the employment and discipline of its staff. Counsel urged the Court to dismiss this action for being statute-barred, incompetent, frivolous, an after-thought and for the several other reasons canvassed by counsel above, or in the alternative, strike out the name of the 1st defendant as a party in this suit. In opposition to the application, Counsel for the Claimant summarized the facts of the Claimant’s case as follows: The Claimant was an employee of Federal Ministry of Finance working at the office of the Accountant General of the Federation, Federal Pay Office (FPO). The Claimant sometime in 2002 was unlawfully and unjustifiably dismissed from the Federal Civil Service by the defendants; consequent upon which the Claimant instituted an action against the defendants (1st & 2nd defendants) at Federal High Court, Imo State Judicial Division, Holden at Owerri on the 20th day of October 2006 after all necessary steps taken to resolve the dispute proved abortive. In the course of hearing the matter at the Federal High Court, the 1st defendant/applicant filed a preliminary objection dated 24th of January 2008. With the amendment of the 1999 constitution, the matter was transferred to National Industrial Court, Holden at Owerri by virtue of Section 254C as amended in 2011, which gave the National Industrial Court exclusive jurisdiction to entertain, adjudicate and determine matters of this nature. The 1st defendant/applicant now filed another preliminary objection before this Court, dated 10/10/2014 and contended among others. • That the claimant’s action is statute barred and thereby robbing this Court the jurisdiction to entertain the matter. • That the 1st defendant/applicant is not a juristic person capable of being sued in a court of law. • That the claimant/respondent has no cause of action against the 1st defendant/applicant is not a necessary party in the suit. Counsel for the Claimant proceeded to identify the following three issues for the determination of the court: 1. Whether this suit was already statute barred as at the time it was commenced at the Federal High Court, Holden at Owerri. 2. Whether the Federal Ministry of Finance can sue and be sued in law. 3. Whether the 1st defendant/applicant is a necessary party whose presence is fundamental in the Determination of the suit. In arguing issue one whether this suit was already statute barred as at the time it was commenced at the Federal High Court, Counsel for the Claimant submitted that contrary to the submission of the 1st defendant/applicant, this suit was not statute barred at the time it was instituted and commenced at the Federal High Court, Owerri, on the 20th October 2006. As at the time the matter commenced at the Federal High Court, the 1st defendant being the employer of the claimant, was the only party, the proper and necessary party sued in the matter. See Exhibit A before the court, as also contained in No. 1 of the list of documents to be relied upon during trial, which is official gazette dated 19th day of October 1989. See also the certified true copy (CTC) of the Statement of Claim of the claimant/respondent filed on the 20th day of October 2006. Counsel therefore submitted that the 1st Applicant/Defendant’s contention that the suit was already statute barred as at the time it was commenced at the Federal High Court, Holden at Owerri, using the protection of public officers’ protection act as a cloak is misconceived and a deliberate attempt to mislead the Court. To counsel, it is unfortunate, misleading and against fairness, equity and justice, as the same 1st defendant/applicant who is now trying to hide under the cloak of the provision of Section 2(a) of Public Officers’ Protection Act, was the same party who filed a motion dated 24th day of January 2008 at the Federal High Court urging the Court to strike out the claimant’s/respondent’s action on the basis that the necessary party was not joined. Counsel stated that it is very important to note that the 2nd defendant was joined in the matter after the said motion filed by the 1st applicant/defendant was argued and struck out in court. Counsel attached a copy of the order of the Federal High Court, made on the 2nd day of June 2008 joining the 2nd defendant. According to counsel, it is the law that when one person has either by virtue of an existing court judgment, deed or agreement or by his declarations, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest, to deny the truth of that thing. See Section 169 of the Evidence Act, 2011. It is against the backdrop of the foregoing that counsel went further that the 1st defendant/applicant having made the claimant/respondent to join the 2nd defendant cannot now rely on Section 2(a) of the Public Officers Protection Act as a shield. No one is allowed to approbate and reprobate at the same time. Counsel referred to the case of NATIONAL INSURANCE COMMISSION vs. SHEHU AMINU (2012) 8 NWLR (Pt. 1302) 330 at 355c, where it was held that a public officer who is in breach of a contact is not protected by the Public Officers Protection Act. The same does not also apply where a defendant acted in utmost bad faith, deceit, insincerity and dishonesty. He urged the Court to so hold. In the case of Savannah Bank of Nigeria PLC vs. Central Bank of Nigeria & Ors (2009) All FWLR) Pt. 481, 393, 991, F- H the Court defining the term “Bad faith” stated thus: ‘Bad faith is defined as the opposite of good faith, generally involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not promoted by an honest mistake as to one’s right or duties but some interest or sinister motive. The term ‘bad faith’ is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity. It is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will’. In arguing issue two whether the Federal Ministry of Finance can sue and be sued in law, it was the submission of Counsel for the Claimant that the Federal Ministry of Finance is a statutory body known and recognized by law. He went on that it is the law that in certain circumstances, such as in the instant case, statutory bodies not being corporate can still sue and be sued. This is usually where such statutory bodies have been conferred with certain duties or functions. Counsel cited the case of Thomas vs. Local Government Service Board (1965) NWLR 310 where it was held that a statutory body which is not a juristic person is a competent party in proceedings for declarations or for prerogative orders. He referred further to the case of Carlen vs. University of Jos (1994) SCNJ 72 where the Supreme Court held that considering the nature of the functions, powers and duties given to the Council of University and Vice Chancellor, though they were not bodies corporate, they can sue and be sued. Counsel submitted further that the Federal Ministry of Finance is a statutory body recognized by law with its functions, powers and duties. He drew the Court’s attention to the official gazette publication, dated 19th October 1989 of the appointment of the claimant as a clerical officer. The said official gazette specifically states that the claimant was appointed as a clerical officer by the Federal Ministry of Finance, and not the Accountant General of the Federation as argued by the 1st defendant. The gazette contradicts the averment made by the 1st defendant in paragraph 4(b) of the 1st Defendant/Applicant’s affidavit dated 22nd of January 2008 and filed on 24th day of January 2008. He submitted further that the mere fact that the claimant was posted to work at the office of the Accountant General of the Federation, which the 1st defendant/applicant admitted in paragraph 4(b) of their affidavit in support of their preliminary objection which the 1st defendant/applicant admitted to be a parastatal under the Federal Ministry of Finance is purely an internal administrative arrangement or convenience for effective administration of the system, but does not exonerate the 1st defendant/applicant from any ill-conduct of the 2nd defendant. The Exhibit A also contradicts the 1st Defendant/Applicant’s averment in paragraph 4(b) of the Affidavit in support of the Preliminary Objection of 22nd January 2008. It is the law that whatever is admitted need no further proof see Umoru v. Zibiri (2003) All FWLR (Pt. 172) 1920 at 1923; see Onowhosa vs Odious (1999) 1 NWLR (Pt. 586) 173 @ Pg. 183. On issue three whether the 1st defendant/applicant is a necessary party whose presence is fundamental in the determination of the suit, Counsel for the Claimant submitted that the 1st Defendant/Applicant is a necessary party in the suit. Exhibit A before the Court clearly shows and reveals that the claimant’s appointment and employment was from and by Federal Ministry of Finance and not the Accountant General of the Federation as erroneously claimed by the 1st defendant/applicant. Moreso, the 1st Defendant/Applicant in their affidavit dated 22nd day of January 2008 and filed on 24th day of January 2008 admitted that the 2nd defendant is a parastatal under the 1st defendant/applicant. Furthermore, the Exhibits before the court as listed in No. 1, 2, 16, 18 and other letters contained in the list of documents to be relied upon during trial i.e. Exhibit A being official gazette of the appointment of the claimant, Exhibit B being a letter upgrading the claimant to Accounts Assistant 1, A copy of letter of dismissal of the claimant from the Federal Service, a copy of the acknowledgment letter of the Claimant appeal for revision of disciplinary measure, all before the court, emanates from the office of the 1st Defendant/Applicant, the Federal Ministry of Finance, even though written by the 2nd defendant/applicant. In the light of the foregoing the submission of the Defendant/Applicant that the claimant has no reasonable cause of action against the 1st defendant/applicant is unfounded and unmeritorious. Counsel urged the court to dismiss the preliminary objection of the 1st defendant/applicant as it lacks merit and substance. The 1st defendant/applicant filed a reply on points of law wherein Counsel submitted that the issue of jurisdiction of court to entertain a suit is fundamental and can be raised at any time and even for the first time on appeal. Therefore there is nothing in law that precludes the 1st defendant/applicant from raising the issue of the Claimant’s action being statute barred just because the 2nd defendant was not originally a party to this suit but was joined pursuant to the order of court made sometime in 2008 while this suit was still pending at the Federal High Court. Where a counsel in an action is of the opinion that parties who are necessary for the effective, effectual and conclusive determination of the issues in dispute have not been joined as parties, it is the duty of the counsel as a minister in the temple of justice to draw the attention of the court to the need to join the necessary parties in the suit and this was what the court did in joining the 2nd defendant as a party in this suit. According to counsel, the question of a suit being statute barred by virtue of the Public Officers Protection Act is a question of law and relates expressly to when an action was commenced in court viz-a-viz the time the cause of action arose. It has nothing to do with the joinder of parties or the number of persons cited as parties in a suit at inception. The fact that the 1st defendant was the only defendant when this suit was commenced at the Federal High Court has nothing to do with the action being statute barred. The claimant’s letter of dismissal is dated the 16th of August 2002 but according to the claimant, he received the said letter and became aware of his dismissal from services on the 4th of November, 2002. However he refused and/or neglected to take any legal action until the 20th of October, 2006 when this action was commenced. That is more than four years after the cause of action arose and way above the statutory period allowed by the law under the Public Officers Protection Act for such an action to be commenced. The claimant merely slept on his right to commence this action within time, thereby denying himself of any remedy that may have been available to him had he commenced the action within the time allowed by the statute. It is counsel’s further submission that this action is not founded on breach of contract, on the part of the defendants nor was there bad faith in the dismissal of the claimant from the Federal Civil Service after due process as is being erroneously posited by the claimant in paragraphs 3.8 to 3.10 of his written address. The claimant was issued with a query to which he responded. The relevant junior staff committee sat and found his response to the query unsatisfactory and thereafter recommended his dismissal from service in line with the Public Service Rules. He went further that the case of NATIONAL INSURANCE COMMISSSION vs. SHEHU AMINU (2012) 8 NWLR (Pt. 1302) 330 – 355 cited by the claimant/respondent is completely irrelevant here as the present action by the claimant does not relate to breach of contract. There is also no nexus between the facts of this case and the facts that led to the judgment in the case cited by the claimant. Counsel pointed out that the claimant in paragraph 4.5 of his written submission had argued on the issue of juristic personality that the 1st defendant is a statutory body recognized by law with its functions, powers and duties. However the claimant failed to provide the particulars of the statute that established the 1st defendant. Counsel submitted that the claimant cannot just for purposes of argument, not founded in law confer on the 1st defendant the status that it does not possess under the law. That the claimant is ignorant of the legal status of the 1st defendant is not an excuse for citing it as a party. Again, the fact that the name Federal Ministry of Finance is mentioned in a gazette with respect to employment of staff does not confer the status of legal personality on it. Legal personality is a question of law. It is trite law that he who alleges must proof. The onus is therefore on the claimant who is alleging that the 1st defendant is a juristic person to cite the statute or law that created or conferred legal status on the 1st defendant. Governing Councils of Universities and other institutions are created by their Establishment Statutes or Laws and such statutes and laws usually confer legal status on them but this is not the case with the 1st defendant which is not a statutory body. The case of THOMAS vs. LOCAL GOVERNMENT SERVICE BOARD (1965) NWLR 310 and CARLEN vs. UNIVERSITY OF JOS 1994 SCNJ 72 cited by the claimant are not relevant here as they relate to statutory bodies. Counsel urged the court to discountenance the argument proffered by the claimant in this respect as they are not founded in law. According to Counsel for the applicant, the claimant had made heavy weather of the fact that the plaintiff’s first appointment in 1989 as a Clerical Officer was by the “Ministry of Finance”, but was economical with the truth as he failed to acknowledge that the office then was known as the “Ministry of Finance and Economic Development.” The nomenclature of the ministry has since changed as it is presently known just as Federal Ministry of Finance. Again, though the Plaintiff was on his first appointment as a Clerical Officer employed by the Ministry of Finance he has since been posted out to the office of the Accountant General of the Federation from where he was dismissed after due process. The said office of the Accountant General of the Federation has its own Chief Executive, its own Human Resources and Administrative Department, junior and senior staff committees, employs and dismisses it officers after due process without recourse to the Minister of Finance. Counsel concluded by urging the Court to uphold the applicant’s preliminary objection and to dismiss this action for being statute barred or in the alternative strike out the name of the 1st defendant as a party in this suit for the reasons canvassed in the preliminary objection. After a careful consideration of the arguments of counsels in their written submissions, I am of the view that the following issues call for determination in this application- 1. Whether the 1st defendant can be sued as a party in this suit? 2. Whether this suit is statute barred? In the 2nd ground of the 1st defendant’s preliminary objection, it is contended by the 1st defendant that it is not a juristic person capable of being sued in court. Arguing issue 2 formulated in his written address in support of the application, the 1st defendant’s counsel submitted that the 1st defendant is neither a natural person nor a creation of statute; therefore, it cannot sue or be sued. The 1st defendant in this suit is the “Federal Ministry of Finance.” As a general rule, only a juristic person can sue or be sued. Juristic persons include natural persons, incorporated companies, corporate aggregate or corporate sole. See IYKE MEDICAL MERCHANDISE vs. PFIZER, INC (2001) FWLR (Pt. 53) 62 at 77. The term corporate sole is ascribed to bodies established by law or statute. For the 1st defendant to be a competent party to this suit, it must be shown that it is an establishment of law. In his written reply to the preliminary objection, the claimant’s counsel merely asserted that the Federal Ministry of Finance is a statutory body recognised by law with its functions, powers and duties but he failed to refer this court to any law or statute where the 1st defendant was created and given the powers or duties referred to by counsel. It is however the 1st defendant’s counsel who referred this court to section 147 of the Constitution of the Federal Republic of Nigeria 1999 and contended that it is the office of Minister that was created under the section and not ministry. Section 147 (1) of the 1999 Constitution provides: “There shall be such offices of Ministers of the Government of the Federation as may be established by the President.” What this section 147 established is “offices of the Ministers of the Government of the Federation”. I cannot find anywhere in the section or in any other statute for that matter, where any Ministry or Ministry of Finance is created. It is my view that ‘Ministries’ are not creation or statute or law. This opinion was also held by the Court of Appeal in S.D AGBOOLA vs. GABRIEL SAIBU, cited by the 1st defendant’s counsel, where it was held that the Federal Ministry of Science and Technology is not a juristic personality that can sue or be sued. In this circumstance, I agree with the 1st defendant’s counsel that the 1st defendant is not a juristic person and it does not have the competence to be sued. In view of the foregoing, the 1st defendant has no purpose in this suit. It cannot be a party to this suit. Consequently, this court is left with no choice than to strike out the 1st defendant from this suit. It is so ordered. As it is, the only competent defendant to this suit is the 2nd defendant. I shall now turn to consider the 2nd issue, which is whether the suit is statute barred. The 1st defendant’s counsel has relied on section 2 (a) of the Public Officers protection Act and submitted in his written addresses that the claimant’s suit is statute barred. It is his submission that the claimant’s suit against the defendants, who are public officers, was commenced on 20th October 2006 while his cause of action, as disclosed in the statement of claim, arose on 16th August 2002. Counsel submitted further that the period between the cause of action and filing of this suit is more than the 3 months prescribed in section 2 (a) of POPA, the suit is consequently statute barred. In the claimant’s counsel’s reply, it is clearly admitted that the claimants’ cause of action, that is his dismissal from service, arose on 16th August 2002 and this suit was filed on 20th October 2006 “after all necessary steps to resolve the dispute proved abortive”. The claimant’s Counsel contends however that the suit is not statute barred. The following reasons have been identified from his submissions to be the basis for his standpoint- i. That it was the 1st defendant who made the claimant to join the 2nd defendant to this suit and the 1st defendant cannot now be heard to say POPA applies to bar the suit against the 2nd defendant. ii. That a public officer in breach of contract is not protected by POPA iii. POPA does not apply where a defendant acted in bad faith, deceit and dishonestly. I shall consider these viewpoints in the course of resolving this issue. Section 2 (a) of Public Officers Protection Act provides- “Where any actions, prosecution or proceedings commenced against any person for any act done in pursuance or execution or intended execution of any act of law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect. a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three (3) months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three (3) months next after the ceasing thereof”. This provision is to the effect that actions against public officers must be filed within 3 months of the accrual of the cause of action otherwise, the right to enforce the action will be barred and the court will no longer have jurisdiction to entertain the action. As resolved earlier, the only defendant in this suit is the 2nd defendant, which is the Accountant General of the Federation. The meaning of the term “public officer” or “any person” as used in section 2 of Public Officers Protection Act has been defined extensively by the Supreme Court in IBRAHIM vs. J.S.C KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 to include persons occupying public offices or natural persons invested with performance of duties of a public nature. The Accountant General of the Federation is a public officer in the public service of the federation. There is no doubt the 2nd defendant is a public officer. From the facts averred by the claimant in his statement of claim, it is shown that the claimant’s cause of action against the 2nd defendant arose from an alleged default in the performance of the public duty of the 2nd defendant. In the circumstance, the 2nd defendant is protected under section 2 of the Public Officers Protection Act. The claimant’s counsel has argued in his reply that the defendants are estopped from raising any limitation to this action and that POPA does not cover a defendant who acted in bad faith deceitfully or dishonestly. Counsel however failed to substantiate how the defendant’s conduct amounted to bad faith as to vitiate their protection under POPA. Merely alleging bad faith is not sufficient for the court to disentitle a defendant who would ordinarily be covered by POPA. The acts of the defendants constituting the bad faith must be shown to the court. In this instant application however, the issue of estoppel or bad faith cannot even be considered at this stage. These issues raised by the claimant can only be applied to disentitle the public officer from the protection of the applicable limitation statutes if the action has been commenced against the defendant within the statutory 3 months period. Under the provision of section 2 of POPA, any action not commenced against a public officer within 3 months of accrual of cause of action is barred. Indeed, at this stage, the claimant no longer has a cause of action against the 2nd defendant. Thus, the question whether the Federal Ministry of Finance or the 2nd defendant acted in bad faith or otherwise can only be canvassed where there is a cause of action; that is if the action was commenced within 3 months. See KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. Also, in EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 585, Per NNAMANI JSC (as he then was) commented as follows: “A public officer who in the cause of performance of public duty does so maliciously or for private spite, has no protection under section 2(a) of Public Officer Protection Act if an action is filed against him within 3 months” Per Karibi-Whyte JSC (as then was) held at pages 596-597 thus: “Where the action was instituted within the period of three months prescribed, there is a cause of action and the legality vel non of the action complained of can be in issue. It is in such a situation that at the trial, evidence can be led to determine whether the protection under the Public Officers Protection Act has been vitiated by malice, improper motive, bad faith or deliberate exercise of power without lawful authority” On his part, Uwais JSC (as he then was) at page 572 of the report commented thus- “In a civil action when the defendant invokes in limine the provisions of the Public Officers protection Act, it is not proper for the trial court to conclude or infer from the pleadings that the protection afforded the defendant by law is has been vitiated by malice or bad faith. What the trial court is obligated to decide at that stage is whether the action is maintainable and whether the defendant is liable In view of the foregoing opinion of the Supreme Court, the question whether the Federal Ministry of Finance or the 2nd defendant acted in bad faith or deceitfully is irrelevant at this stage, the suit having not been commenced within 3 months from when the cause of action arose. Since the action was not filed within three months from the accrual of the cause of action, the issue of bad faith cannot be inquired into by this court. In my view, it is only if this action is competent, that is if it had been commenced within 3 months from when the cause of action arose that this court will consider whether the protection under POPA has been vitiated by bad faith or dishonesty. The claimant’s counsel further submitted in paragraph 3.8 of his written reply that a public officer who is in breach of a contract is not protected by the POPA. With this argument, the claimant’s counsel appears to me to be saying that since the subject matter of this suit is contract of employment, this case falls in the exceptions to POPA. While I agree with the submission that POPA does not apply to cases of contract, I entirely disagree with the view that POPA does not apply to the subject matter of this suit. From the Statement of facts, the relationship between the claimant and the Federal Ministry of finance and the 2nd defendant is that of contract of employment. Contract of employment is of a different nature from simple contracts to which POPA does not apply. With respect to learned counsel for the claimant, a different consideration applies to cases of contract of employment. The position with respect to contract of service is that POPA applies to contract of employment. See the case of IBRAHIM vs. JSC, KADUNA STATE (SUPRA) where POPA was applied to contract of employment. In the case of UNIVERSITY OF JOS vs. DR. SANI MUHAMMAD ADAM (2013) LPELR-20276, it was held that cases of contracts to which POPA does not apply mean independent contracts and not contracts of employment. In my view also, the POPA applies to causes arising from contract of employment in the public sector as, generally, the protection will avail a public officer where the alleged breach is in the performance or execution of a public duty. See also AJIKITI vs. NYSC (2011) All FWLR (Pt. 591) 1582 at 1591 and the unreported decision of this court in suit NICN/EN/167/2012 between PATRICK NWANGWU vs. GOVERNOR OF IMO STATE & 3 ORS. Therefore, the argument that POPA does not apply to this suit cannot be sustained. In the final analysis, it is clear from the facts of this application that this suit was filed more than 3 months from the date the cause of action arose. The cause of action arose on 16th August 2002 when the claimant received the letter dismissing him from service but did not commence the present action until 20th October 2006, a period of about 4 years, 2 months since the cause of action arose. The claimant did not institute this action against the 2nd defendant within the statutorily prescribed 3 months. Consequently, the suit has become incompetent against the 2nd defendant and this court lacks jurisdiction to entertain it. The right of the claimant to any relief against the 2nd defendant has therefore been extinguished by law. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, claimant, having commenced this action against the 2nd defendant after the period specified in section 2 (a) of POPA, the action is statute barred and it is hereby dismissed. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge