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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Suit No: NICN/OW/06/2014

Petitioner:

Dr. Ethelbert Anyanwu

And

Respondent: The Governor of Imo State & ors Date Delivered: 2015-02-10

Judge(s): Hon. Justice O.Y. Anuwe Judgment Delivered IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: February 10, 2015

SUIT NO. NICN/OW/06/2014

Between Dr. Ethelbert Anyanwu And 1.The Governor of Imo State 2.Commisioner of Health, Imo State 3.Permanent Secretary, Ministry of Health, Imo State 4.Dr. Ben NwamaduDefendants/Applicants 5.The Chairman, Investigation Panel on Suspension of The Director General/Programme Manager of Imo State Agency for the Control of HIV/AIDS (IMOCASA) Representation C. C. Okoroafor, with him, T. E. Nwokedi for the Claimants/Respondents B. N. Iwu, Senior State Counsel, Ministry of Justice, Owerri, Imo State, for the Defendants/Applicants RULING/JUDGMENT The claimant filed this action on the 9th day of January 2014, claiming the following reliefs 1.A declaration that the indefinite suspension of the claimant contained in the letter reference CON/MH/AD/849/T.11/192 dated 7th June, 2013 and signed by the 3rd defendant on behalf of the 2nd defendant is void and of no consequence whatsoever being illegal, unconstitutional and an abuse of office. 2.The 1st defendant is the Chief Executive of Imo State, while the 2nd defendant is the Head of the Ministry of health appointed by the 1st defendant. Both have their offices in Owerri. 3.A declaration that the 1st, 2nd and 3rd defendants have no competence jointly or severally under the constitution of the Federal Republic of Nigeria or the Federal Civil Service Rule applicable to Imo State or any other statutory or regulatory provision applicable to Imo State to suspend the claimant a Civil Servant under the Civil Service of Imo State indefinitely, without pay from his office as the Project Manager, Imo State Agency for the Control of HIV/AIDS. 4.An order of Court on the 1st, 2nd, 3rd and 5th defendants to re-instate the claimant to his office as the Director-General/programme Manager Imo State Agency for the Control of HIV/AIDS (IMOSACA).

5.An injunction restraining the 6th defendant from proceeding or continuing to proceed with the panel on the indefinite suspension without pay of the claimant from his office of the Director-general of the Imo State Action Committee on Aids. Agency for the Control of HIV/AIDS. 6.An order of Court setting aside any proceeding of report from the 6th defendant on the indefinite suspension without pay of the claimant from the claimant's office as the director-General/programme manager of Imo State Action Committee on Aids. By a motion on notice of preliminary objection brought pursuant to Order 11 Rule 1 of the National Industrial Court Rules, 2007, Section 2 (a) of the Public Officers Act, 2004 and under the inherent jurisdiction of the Honourable Court, praying for an order of this Court dismissing this suit for want of jurisdiction, on the ground that the suit is statute barred and incompetent, by virtue of Section 2(a) of the Public Officers Protection Act, Cap 4, Vol. 14 Laws of the Federation of Nigeria, 2004. In support of the applicants' motion is an affidavit of 6 paragraphs upon which the applicants placed reliance. The applicants' written address in support of the motion raised the following two issues for determination: 1.Whether this action is competent and whether this honourable court has jurisdiction to entertain same. 2.Whether this action is not statute barred. Counsel for the applicant urged the court to resolve issue No 1 in the negative and hold that this suit is incompetent and that this Honourable Court lacks jurisdiction to hear same. He referred the court to the Complaint and Statement of Facts filed on 9/1/2014. It was submitted that this suit as constituted is incompetent on the ground that it was commenced after the time prescribed by Section 2(A) of the Public Officers (Protection) Act Cap 4, Vol.14, LFN, 2014. The Section provides that any action, prosecution, or proceeding commenced against any person for any act done in pursuance or execution or intended execution of any Act, Law or any public duty or authority, shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury, within 3 months next after the ceasing thereof. According to counsel, the act complained of as per Paragraphs 11 & 20 (A) of the Statement of Facts, occurred on 7/6/2013 and this action was brought on 9/1/2014, about seven (7) months after the alleged act, neglect or default of the Defendants. Counsel referred the court to the case of Madukolu & ors vs. Nkemdilim (1962) 4 ANLR 587 at 595, where Bairamain J, stated thus: 'Put briefly, a Court is competent when 1.It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another, and 2.The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3.The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction' In view of ratio 3 above, the claimant has fallen foul of it, for the action was brought after the time set by Section 2 (A) of the Public Officers (Protection Act) Supra. The action is therefore grossly incompetent and this Court lacks the jurisdiction to entertain same. In arguing issue two, Counsel for the defendants/applicants submitted that the suit as constituted is statute barred on the ground that it was commenced after the time prescribed by section 2 (A) of the Public Officers (Protection Act) Cap 4, Laws of the Federation of Nigeria, 2004. Section 18(1) of the Interpretation Act, 2004 defines a public officer as a member of the Public Service of the Federation or of a State within the meaning of the Constitution of the Federal Republic of Nigeria, 1999. See ABUBAKAR vs. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (Pt. 797) 533 CA. Also, Public Officers have been held by our apex court to include an artificial person, public officer, public bodies or body of persons, corporate or incorporate, statutory bodies or persons etc. Thus in the Supreme Court case of IBRAHIM vs. JSC (1998) 14 NWLR (Pt. 584), IGUJ JSC held thus: '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 office or a public body'' I do not think it can be suggested with any degree of seriousness

that the Public Officers (Protection) Act '' while it protects Public Officers cannot on the same wise protect a public department, an artificial person or a public body, so long as they are sued for an act done in the execution of their public duty '. The question may finally be asked whether the Attorney ' General or a Permanent Secretary who is duly appointed and sworn into office may not also be referred to as an individual in the context of the Obiter dicta in THE OKWALE AND MIKE cases. My straight answer must be in the affirmative'.' See page 38 paras D- F, 44 paras F-H and 45 paras E-G. Similarly the Court of Appeal held in NWOGWUGWU vs. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) All FWLR (Pt. 358) 1169, thus 'The words any person in section 2 of the Public Officers Protection Act Cap 379, Laws of the Federation of Nigeria, 1990 are not limited to human or to persons sued in their personal names but also includes artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies of person'. Counsel submitted that all the Defendants in this suit are public officers under the ambit of the Public Officers Protection Act. The question therefore is when did the act complained of by the claimant occur or when did the cause of action in this suit arise' To determine when a cause of action arose, recourse must be had to the statement of facts as relied upon by the Claimant. This is because a cause of action generally accrues on the date on which the incident giving rise to the cause of action arose. From paragraph 11 and 20(a) of the Statement of Facts, the claimant was suspended via letter No: CON/HM/AD/849/T.11/192 of 7 June, 2013. It follows that the claimant's cause of action arose on 7/6/13. This suit was filed on 9/1/14, seven (7) months after the alleged default, act or neglect of the defendants. In OKENWA vs. MILITARY GOVERNOR IMO STATE (1997) 6 NWLR (Pt. 507) pg. 154 at 167 it was held that in determining the period of limitation, one has to look at the time the cause of action arose and compare it with when the Writ of summons was filed. This can be done without taking oral evidence from a witness. If the time of the writ is beyond the period allowed by the limitation law, then the action is statute barred. See also IKURIE vs. EDJERODE (2001) 18 NWLR (Pt. 745) 446 where it was affirmed that it is settled law that it is the plaintiff's claim that determines the question of the Court's jurisdiction. It is trite that 'Where a law provides for the bringing of an action in respect of a cause of action accruing to a plaintiff within a prescribed period, proceedings shall not be brought after the time prescribed by the law. Consequently, any action brought in respect of the cause of action outside the prescribed period offends against the provision and does not give rise to a cause of action. In other words, the action is statute barred'. See ADIGU vs. AYIRINDE 7 ORS (1993) 8 NWLR pt. 313 pg. at 535 paras C-E or pg. 534 paras A-B. The same Court went on to state thus 'The defence provided in S 2 (a) of the Public Officers (Protection) Act is that actions caught by the provision must be commenced within 3 months next after the cause of action arose. Thus an action for any act done in pursuance of or in execution of any public duty, alleging neglect or default which is not brought against a public officer within 3 months of the accrual of the cause of action shall not lie as the Court, will lack the requisite jurisdiction. See also NWAOGUGWU vs. PRESIDENT OF FRN (supra). In view of the above, it is obvious that the claimant's action is caught up by the provisions of Section 2 (A) of the Public Officers Protection Act as at January, 2014 when this suit was filed. Counsel urged the court to hold that suit is statute barred and therefore resolve this issue in favour of the applicants. It is settled law that if an action is statute ' barred, no amount of resort to its merit it can keep it in being. The proper order to make is to dismiss it. See EGBE vs. ADEFARASIN (NO. 2) (1987) 1 NWLR (Pt. 47) 1; OWNERS OF THE MV 'ARABELLA' vs. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 219. The action of the claimant must therefore fail because the action is statute barred having regard to Section 2(a) of the Public Officers Protection Act, Cap 4 Vol. 14, Laws of the Federation of Nigeria 2004. Counsel therefore urged the Court to dismiss this suit for being incompetent. In opposition to the preliminary objection of the applicants, the Claimant filed an eleven paragraph counter-affidavit deposed to by the Claimant, and a written address upon which Counsel placed reliance in urging the court dismiss this

application for lacking in merit. According to the Claimant, the fact that the defendants only brought this application after the court had fixed the case for hearing is an indication that the application is to ensure that hearing is truncated. Counsel formulated a sole issue for determination, which is: 'Whether this suit is statute barred and whether this Honourable Court has no jurisdiction to entertain same'. In arguing the sole issue, Counsel for the Claimant/respondent pointed out that the defendants/applicants' argument in favour of this application solely relied and hinged their point on Section 2(a) of the Public Officers (Protection Act LFN 2004) that this suit is statute barred. Counsel said that this applicants' submission is grossly misconceived. The Public Officers Protection Act is only available to those engaged in the execution of a lawful duty. It does not apply to protect those unlawfully or ultra-vires their statutory function. In the case of HASSAN vs. ALIYU (2010) 17 NWLR (Pt. 1223) Pg. 457@ 591 B-D, the Supreme Court (per Onnoghen JSC) held that: 'Where a public officer acts outside the scope of his authority or without a semblance of a legal justification, he cannot claim the protection of the provisions of the public officers' protection act' It is counsel's submission that the instant case is a clear case where the Public Officers acted outside the scope of their legal duties or without a semblance of legal justification and therefore cannot hide under the Act. The Claimant in paragraph 12, 13, 14, 15, 16 and 17 of his Statement of Facts, alleged that he was not given fair hearing and that his rights under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria was bridged and also that the act of the defendants is a continuing act as specifically pleaded at relief No (e) of the claimants reliefs. It therefore becomes imperative that this Court cannot determine this issue at the interlocutory stage without dabbling into the substantive suit. The letter complained about at paragraph 4a of the defendants' setting up of the purported panel complained about which has continued has continued to infringe on the claimants fundamental rights. Counsel submitted that the act of the defendant is a continuing one. This non availability of any legal justification for the defendants to act outside the scope or ambit of their powers was earlier settled in the case of A-G BENDEL STATE vs. AIDEYAN (1989) 4 NWLR (Pt. 118) 646 @ 670 where the Supreme Court (per Nnaemeka 'Agu) held thus: 'Our founding fathers and our powers that be have opted for the rule of law in preference for the rule of force and absolute totalitarianism. Under the system, we have elected that the otherwise omnipotent power of Government must be exercised under the authority by law. Any act of government which is not covered under the umbrella of an enabling law is a nullity'. The Public Officers' Protection Act does not therefore cover the defendants in this matter. It is counsel's further submission that once a Public Officer steps outside the bounds of his public authority, such officer can be sued outside the limitation period of three months. See NWANKWERE vs. ADEWUMI (1967) NWLR P. 45 @ 49. Also it is settled that when a motion to dismiss an action based on Section 2 of the Public Officers Protection Act is filed, the Court must presume that the facts pleaded in the claimant's pleadings are true. The Court is therefore entitled to take the averments in the claimant's statement of facts as proved. See EKEOGU vs. ALIRI (1990) 1 NWLR (Pt. 1260) Pg. 345 @ 352 Para G. From the affidavit in support of this application, the demurring party accepted all the averments in the claimant's reliefs thereby resting their case on the claimant's case. Counsel submitted that where these technical points fail as they have, the claimant is entitled to judgment. He further submitted that the act of the defendants complained about is a continuing act of 'continued infringement on the claimant's rights' based on acts of the defendants that is contrary to the law on removal of Public Officers in Nigeria (Imo State inclusive) Where the act complained about is a continuing wrong, the statute of limitation will not apply. Nasir PCA (as he then was) dealt with this position of the law in UZOUKWU vs. EGONU II (1991) 6 NWLR (Pt. 200) Pg. 708 @ 759 H-760 A. Counsel urged the court to apply the above reasoning of the Court of Appeal to this case and dismiss this point of objection by answering the issue in the negative.

To counsel, it is unarguable that the claimant is entitled to invoke the judicial powers of the Court in pursuance to the provisions of Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria which states that: '(6) The judicial powers vested in accordance with the foregoing provisions of this Section'. (b) Shall extend, to all matters between persons, or between government and authority and to any persons in Nigeria and to all action and proceedings relating thereto, for the determination of any question as to the Civil rights and obligations of that person' See also Section 254C (i) (iii) of the 1999 Constitution of the Federal Republic of Nigeria which confers jurisdiction on the National Industrial Court to entertain both civil and criminal actions. In dealing with this point in the case of EYESAN vs. SANUSI (1989) 4 SC 115, the Supreme Court (per Obaseki JSC) stated at page 137 thus: 'The right of action in Court is also a constitutional right excisable, by a person who has complains touching his civil rights and obligations against another person, government or authority'. It is counsel's submission that the Constitution of the Federal Republic of Nigeria 1999 is Supreme and any policy inconsistent with the provisions of the Constitution is to the extent of its inconsistency, null and void. He urged the Court to so hold. He went on that Section 2(a) of the Public Officer Protection Act does not apply where the subject matter of litigation borders on payment for labour done or on contract. See MUSA vs. N.I.M.R (2010) 11 NWLR (Pt. 1205) Pg. 271 @ 292; it will also not apply where the officer acts in bad faith or acts in abuse of office or maliciously or with no semblance of legal justification. See HASSAN vs. ALIYU (2010) 17 NWLR (Pt. 1223) p. 547 @ 589 E- G. It is the Claimant's further submission that the applicants, by their averments in paragraphs 2 and 5 of their statement of defence, and the claimant's averments in paragraphs 4 and 6 of his statement of facts, it is not in doubt that the relationship between the claimant and the 1st and 2nd defendants is contractual. To the Claimant, assuming but without conceding that this suit was brought outside the statutory period, the applicant's argument cannot sustain this application as the issue borders on contract. See the Supreme Court decision in NIGERIA PORT AUTHORITY vs. CONSTRUZIONI GENERALY FARSURA CONGEFAR SPA & ANOR (1974) 4 ECSLR, 658 @ 666. The applicant's application is therefore unmeritorious and ought to be dismissed. He urged the court to so hold. The applicants in their reply on points of law submitted that the provisions of Section 2(a) of the Public Officers (Protection, Act) Cap 4. Vol.14, LFN, 2004 is clear as to its application and intent. The Section provides that: 'Where any action, prosecution, or proceeding commenced against any person for any act done in pursuance or execution of any Act, Law any public duty or authority, shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damages or injury within 3 months next after the ceasing thereof' In determining whether or not the suit is limited by statute, it is always necessary to ascertain the exact date on which the cause of action arose. This is because time will start to run for the litigation from the date the cause of action arose. In computing the time, or period of limitation, both under the Limitation law and Public Officers Protection Act, the Court of Appeal in the case of Mudun & Ors vs. Adanchi (2013) LPELR 20774 CA held thus: 'In order to determine the period, consideration must be given to the Writ of Summons and Statement of Claim alleging when the wrong was committed and by comparing the date with the date on which the Writ of Summons was filed. This can be done without calling oral evidence from witnesses'. In the instant case, the cause of action arose on the 7th day of June 2013 when the claimant was suspended from office as Director General/Programme Manager, Imo State Agency for the control of HIV/AIDS (IMOSACA). To counsel, this suit is statue barred as the Writ was filed on 9/1/14 which is more than six months from the time the cause of action arose. It is Counsel's submission that where the Law specifically directs the conformity to a mandatory requirement as in S.2 (a) of Public Officers Protection Act, the result of the absence of compliance ought to be fatal. See B.A. S.F (Nig) Ltd vs. Faith Ent. (2010) All FWLR Pt. 518 at Pg. 840 at 844 Ratio 5 and Pg. 862 Para E.

According to counsel, Section 36 of the 1999 Constitution cited by the Claimant/Respondent has been held in the case of Chief Nicholas Banna vs. Telepower Nig. Ltd (2006) 15 NWLR (Pt. 1001) Pg. 198, thus 'The provisions dealing with fair hearing under section 36 of the 1999 Constitution of Nigeria is for the Protection of all parties to a case, the plaintiffs and the defendants alike'. Counsel submitted further that the Defendants did not go outside the scope of their authority as contended by the claimant/respondent. He also submitted that the Public Officers Protection Act applies in this case because it arose out of the exercise of the applicants' public duty. The 3rd Defendant by issuing the claimant the letter of suspension dated 7th June, 2013 is an act done in pursuance or execution or intended execution of any law, or public duty, or authority. He submitted that the 3rd defendant acted under Chapter 4, Rule 04405 of the Public Civil Service Rules and in the course of the execution of his duty through the said letter of 7th June, 2013, as directed issued the claimant the letter of suspension from office as Director General of IMOSACA. Chapter 4, Rule 04405 of the Public Service Rules as applicable to Imo State states thus 'Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that the officer should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, Imo State Civil Service Commission or the Permanent Secretary/Head of Extra Ministerial Department (if within his delegated powers) shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his salary'. Counsel submitted that the cases of Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 and Nwankwere vs. Adewunmi (1967) NWLR P. 45 at 49 do not apply in the instant case as the 3rd defendant acted within the scope of his legal duty. Assuming without conceding that the 3rd defendant or all the defendants acted without authority or defaulted in the execution of any law, duty or authority, the question is, will the Public Officers Protection Act not avail them if the action was not as in this case brought within three months. It is the submission of counsel for the applicants that the Public Officers Protection Act protects public officers, for any alleged neglect or default in the execution of any law, public duty or authority. He referred to Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258 at 268, par. H. where Kawu J.S.C. stated thus: 'In my view, the words used in this legislation are plain and unambiguous and should be given their ordinary and natural meaning. A careful reading of the section shows that their provisions apply to an action brought against a public officer for an act done either:(i)In pursuance or intended execution of any law or public duty or authority or. (ii)In respect of any alleged neglect or default in the execution of law, duty or authority'. As regards the Claimant's contention in his argument that the act is a continuing one as pleaded at relief No (e) of the claimant's reliefs, counsel to the applicants submitted that the act is not a continuing one. From paragraph (e) of the claimant's reliefs flowing from the letter dated 28th June 2013, where the claimant was invited to the panel on 3/7/2013. He referred to Paragraph (E) of claimant's Statement of facts. This act occurred on 3/7/2013 and this suit was brought on 9/1/2014, over five months after the respondent appeared before the panel. See Paragraph 20 (E) of the Claimant's Statement of Facts. If the respondent is aggrieved by the way and manner he was suspended by the applicants, he must seek redress in the Court of law (if so desires) within three months as stipulated by the Act. Where he fails to do so as in this case, he cannot be rescued from the grip of the limitation law. See Nigeria Ports Authority vs. Generatifs (1974) 12 S.C. 81 where the Court stated thus: 'Having therefore failed to institute this action, within three months, it is our humble submission that the appellants are entitled to the defence of limitation of action as provided by the Public Officers Protection Act'.

This action having been brought more than three months after the act complained of; cannot succeed. See the case of Obiefuna vs. Okoye (1961) 1 ANLR 357. Counsel submitted that the limitation law applies to employment cases. He referred to the case of Patrick Nwangwu vs Governor of Imo State & 3 Ors (unreported suit No. Suit. NICN/EN/167/2012 delivered on 12th March, 2014, where this Court stated thus: 'This Court has held that the limitation laws do not apply to labour rights issues especially as to the claims for salary and entitlements/benefits, the truth is that this Court had in recent times, had to change that stance in cases other than those relating to salary and benefits given the weight of the Court of Appeal and Supreme Court authorities to the effect that limitation laws apply to employment cases as of other cases, all of which are binding on this Court'. The Court further stated that 'in cases of claims for salary and allowances, the previous decisions of this Court would still appear to be good law, only if the test on 'continuance of damage or injury laid down in the recent Supreme Court decision in AG, Rivers State vs. A.G. Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123 at 144 ' 150 is met. In this sense for the continuing exception to apply, the employer will need to be in employment. The stance of this court in cases such as John Oyoh vs. the Nigerian West Minister Dredging & Marina Company ltd. (unreported suit No. NIC/9/2013) among other decisions must therefore be understood qualifiedly'. In the instant case, the claimant/respondent is on indefinite suspension and is no longer the Director General manager or IMOSACA and is therefore caught up by the limitation Act. Counsel urged the court to uphold the applicants' submissions and grant their application. After a thorough examination of this application and the written addresses of counsel to the parties, only one issue arises for determination in the application. The issue is: 'Whether the Claimants' suit is statute barred'' The defendants' instant motion is praying this court to dismiss the claimant's suit on the ground that this court lacks jurisdiction to entertain same for the reason that the suit is statute barred. It is deposed in the defendants' affidavit in support of the motion that the claimant's cause of action arose on 7th June 2013 when he received the letter No. CON/MH/AD/849/T.11/192 dated 7th June 2013 suspending him from office. The claimant brought this suit on 9th January 2014, a time after which the period set by law to bring an action against the defendants had lapsed. The suit is therefore statute barred, incompetent and this court has no jurisdiction to entertain it. In opposing the application, the claimant filed a counter affidavit wherein he denied the facts deposed to by the defendants as constituting the facts of the statute bar. It is deposed in the claimant's counter affidavit that this suit was filed within time and it is not statute barred. The counter affidavit contains further facts that the acts of the defendants is continuing, and the claimant's relationship with the defendants is contractual in nature The provision of the POPA relied upon by the defendants as having affected the claimant's suit is section 2 (a) of POPA. The defendants' Counsel has submitted in his written address that by section 2 (a) of the POPA, this suit ought to have been instituted against the defendants, who are public officers, within 3 months from the accrual of the cause of action on 7th June 2013. This suit, having been filed on 9/1/2014, has become statute barred. The claimant has contended otherwise. To the claimant, the suit is not statute barred. The gist of the submission of the claimant's counsel in his written address is that the exceptions to the applicability of section 2 of POPA are present in this case and as such prevents the claimant's case from being caught up by Section 2 of POPA. These exceptions raised by the claimants' counsel shall be considered in the course of this ruling. In order to determine which of the two contentions is plausible, it is necessary to examine the provision of the said Section 2 (a) of the Public Officers' Protection Act. It provides'2.Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect: (a)The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.' The above provision is very clear and unambiguous. It is to the effect that an action against a public officer in respect of

any act done in pursuance or execution of any Act or law or of public duty or any default in respect same can only be commenced within 3 months of the accrual of the cause of action except in the case of continuance of the damage or injury in which the complainant must institute the action within 3 months after the cessation of the damage or injury. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 12 SC 20. In this matter, and having read through the processes filed by the parties, it is not in dispute that the defendants are public officers and they have been sued in this suit in respect of their default in the execution of a law or of their public duty. These matters are shown in paragraphs 2 to 13 of the claimants' statement of facts. It is clear therefore that the defendants can take protection under the POPA in this action. That being the case, is this suit statute barred' By the provision of Section 2 (a) of POPA, this action ought to be commenced against the defendants within 3 months of the accrual of cause of action except in a situation of continuance of damage or injury, in which case the suit must be commenced 3 months after the damage or injury have ceased. In determining whether this action is statute barred, there is the need to determine when the cause of action arose and when this suit was filed. The defendants, in paragraph 4 (a) and (b) of the affidavit in support of the motion, deposed to the facts that the claimants filed this suit on 9/1/2014 while their cause of action arose on 7th June 2013. In actual fact, when the court is to determine whether a suit is statute barred, the processes to which recourse should be had are the writ and the statement of claim. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be deduced. See the Supreme Court cases of JSF INV. LTD vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902; ELEBANJO vs. DAWODU 2006 All FWLR Pt. 328 604 at 646. In AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507, the principle was stated this way'In order to determine if a party's action is statute barred, the court is only enjoined to look at the plaintiffs' claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued'. Accordingly, I have examined the complaint and the claimant's statement of facts in order to ascertain the date on which the claimants' cause of action accrued and when this suit was filed. It is disclosed on the complaint that this suit was filed on 9/1/2014. As to when the cause of action arose, it is necessary to first determine what the claimant's cause of action is. The reliefs sought by the claimant as disclosed in paragraphs 1 to 6 of the complaint show that his complaint is in respect of his suspension from office by the defendants vide letter No. CON/MH/AD/849/T.11/192 dated 7th June 2013. The claimant's reliefs having been earlier set out in this ruling, I do not see the need to repeat them here. But it suffices to comment that the claimant's claims revolve around the suspension whereby he claims a declaration that the suspension was illegal and unconstitutional and an order to be reinstated among other ancillary reliefs. The claimant's suspension being the cause of his action, paragraph 11 and 12 of the claimant's statement of facts reveal when the cause of action arose. It is pleaded in these paragraphs thus'11.After submitting the response on 31st May 2013, the claimant was served a letter ref No. CON/MH/AD/849/T.11/192 dated 7th June 2013 and signed by the Acting permanent Secretary, Dr. J.A. Ehebereme on behalf of the 2nd defendant suspending the claimant indefinitely from office as Director General/Programme Manager of IMOSACA and without pay. No query was carried out as recommended in the letter from the World Bank or at all. This letter of Suspension which also directed a hand over to the 4th defendant in full capacity as the Director General/programme Manager instead of an acting appointment is hereby pleaded and shall be found upon at trial. 12.The claimant shall contend that the said letter of suspension pleaded above was in fact a full and final disengagement of the claimant from his office as Director General/Programme Manager of IMOSACA a substantive replacement having been appointed. The claimant shall also further contend that the said indefinite suspension is tantamount to undue disengagement of the claimant by way of dismissal under veil from the civil service of Imo State.' From the above facts pleaded by the claimant, it is not difficult to notice that his cause of action arose on 7th June 2013 when he was suspended from office. When compared with the date this suit was filed on 9/1/2014, it is obvious the suit was filed more than 3 months after the cause of action accrued. It is in view of this fact that the defendants have now contended that the claimant's suit is statute barred having not been instituted within three (3) months of the accrual of the cause of action. The claimant, in paragraph 4 of his counter affidavit, has contended that the act of the defendants is a continuing act. It

appears to me the claimant is saying that since the act of the defendants have not ceased, the suit is not statute barred. The claimant's counsel has argued in his written address that POPA does not apply to this case as the acts of the defendants complained of by the claimant is a continuing wrong. According to the claimant's counsel, the wrongs done to the claimant is a continuing injury which have not ceased at the time of the commencement of this suit. I think counsel placed reliance in the portion of section 2 (a) of POPA which provides that 'in case of a continuance of damage or injury, within three months next after the ceasing thereof.' By this provision, time will only begin to run against the claimant 3 months after the injury to him has ceased. It is trite that in issues involving statutes of limitation, time begins to run from the time the cause of action arose. In CROSS RIVERS UNIVERITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (Pt. 641) 1567 at 1583, it was held that'A cause of action accrues on the particular date which gave rise to the incident in question. For the purposeful intendment of statutes with stipulation of durational limitation, the clock begins to wind down and time begins to run from the moment which culminates into the date on which the cause of action accrues'. Also in AMEDE vs. UBA (SUPRA) at 507, it was held that the test of determining when a cause of action accrues is when it can be said or there exists a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. The same view was held in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348 where it was stated that'Time begins to run for the filing of an action when the cause of action arose. This means that once there exist two people with interest at variance to each other over a subject matter, then the aggrieved party must go to court timeously' The factual situation in this case which gave the claimants the right of action is his suspension on 7th June 2013. Time started counting against him from that day. The claimant's statement of facts did not contain any fact suggestive of continuance of injury from the acts of the defendants. In fact, in paragraph 12 of the statement of facts, the claimant's averment shows that by the 7th June 2013, the factual situation which entitled him to approach the court was complete. In this paragraph the claimant averred that 'the said letter of suspension pleaded above was in fact a full and final disengagement of the claimant from his office'. If this fact appeared to the claimant on the date of the letter, he had no reason whatsoever not to approach the court immediately. This averment of the claimant has now put paid to the claimant's contention that the act of the defendants was a continuous one. As I have mentioned earlier in this ruling, the claimant's complaint in this suit is simply on his suspension from office. In cases of suspension from office, as has been established by judicial pronouncement, does not constitute 'continuing injury'. In NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343, the respondent in that case was suspended on 22nd September 2004 and placed on half salary from the date of his suspension. He commenced the suit on 9 February 2005. The respondent's counsel did contend that the suspension was a continuing act not caught by POPA. The Court of Appeal, at page 350 of the report, held: 'From the facts of this case, it is clear that the respondent was suspended on 22nd September 2004 while he commenced the suit on 9 February 2005, a period of over four months after the cause of action. This is a clear violation of the Public Officer Protection Act. There is no basis for the argument of the learned counsel for the respondent that the suspension was a continuous act not caught by the Public Officers Protection Act. The suspension started on a definite date which was the date of the cause of action for all intent and purposes. The respondent had a duty to ensure he acted timeously if he was to hold the appellant responsible for his suspension'. It is my view therefore that the claimant's cause of action, which arose on 7th June 2013, was not a continuous injury or damage as contemplated in section 2 (a) of POPA. The claimants counsel has further argued that the defendants are not covered by POPA in this case as their acts complained of by the claimant were acts done outside their authority and without legal justification. Counsel referred to paragraphs 12 to 17 of the statement of facts where it is pleaded that the claimant was not given fair hearing and his constitution rights were breached. Counsel therefore submitted that the defendants are not protected by POPA in this instance. As rightly submitted by the claimant's counsel, abuse of office or where a public officer acted outside authority or without legal justification deprives the public officer of the protection under section 2 (a) of the POPA. The POPA is designed to protect officers who act in good faith and it does not apply to acts done in abuse of office. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067. However, the issues of abuse of office, lack of authority, acting without legal justification can only be applied to disentitle the public officer from the protection of POPA if the action has been commenced against him within the 3 months period. In KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182, it was held that a public officer, who in the course

of performance of public duty, does so maliciously or for private spite, has no protection under Section 2 of POPA if the action is filed against him within 3 months. See also the Supreme Court case of EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 596-597 where it was held as follow: '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' At page 572 of the report, Uwais JSC (as then was) put the law this way: '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 defendants acted without authority or without legal justification 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, this court cannot inquire into the facts alleged against the defendants in paragraphs 12 ' 17 of the statement of facts on whether the defendants have stepped outside the bounds of their public duties. In my view, it is only if this action is competent, that is to say, if it had been commenced within 3 months from when the cause of action arose that this court will consider whether the protection has been vitiated. Counsel has further argued that the constitutional right of access to court conferred on the claimant in Section 6 (6) b, of the 1999 constitution cannot be denied him by section 2 (a) of POPA. It is counsels' view that in as much as the provision of POPA is inconsistent with the provision of the constitution, the provision of POPA is null and void. It should be mentioned that Section 2 (a) of POPA is only a condition precedent to an action and not an ouster clause. It simply imposes a formality on the litigant, which if observed, the litigant's right of action is not impinged. The provision does not oust a litigant's right of action as the claimants' counsel wants to argue. The constitutional right of action is not without some statutory restrictions and the statutory provisions are by no means unconstitutional. CROSS RIVERS UNIVERITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (Pt. 641) 1567 at 1583-1584, the position on this issue was put thus'It is thus settled that the constitutionally provided right of access to court does not exclude statutory provisions which regulate the exercises of the conferred rights. The law which does not border on technicality is basic on the point that, when an action is instituted and there is non- compliance with a condition precedent or prescribed precondition for activating or setting the required legal process in motion, any suit which has been instituted in contravention of mandatory provisions is incompetent and the court is equally derobed of competence to entertain it' Therefore, the essence of a limitation law is that the legal right to a judicial relief is not a perpetual right but a right limited by statute. A limitation law removes the right of action, the right of enforcement and the right to any judicial relief. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action which is not brought within the prescribed period offends the provision of the law and does not give rise to a cause of action. Hence, when an action is statute barred the claimant who might have a cause of action, loses his right to enforce the cause of action by judicial process because the right has been extinguished by law. See AJAYI vs. ADEBIYI (2012) All FWLR (Pt. 634) 1 at 21; ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604. I disagree with the learned counsel for the claimant that the provision of POPA is inconsistent with the Constitution. Although I agree with the claimant's counsels' further argument that POPA does not apply to cases of contract, I do not agree with the part of his argument that POPA does not apply to this case. From the Statement of Facts, the relationship between the claimant and the defendants is that of contract of employment. Contract of employment is of a different nature from simple contracts to which POPA does not apply as decided in the case of NPA vs. CONSTRUZIONI GENERALI FARSURA CONGEFAR SPA cited by the claimant's counsel. With respect to learned counsel for the claimant, the position of the law is different with respect to cases of contract of employment. The position with respect to contract of service is as pronounced in the reported case of UNIVERSITY OF JOS vs. DR. SANI MUHAMMAD ADAM (2013) LPELR-20276, where 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 contention of the claimant's counsel that POPA does not apply to this suit holds no water. 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 7th June 2013 when the claimant received the letter suspending him from office but did not commence the present action until 9th January 2014, a period of about 7 months since the cause of action arose. The claimant did not institute this action against the defendants within the statutorily prescribed 3 months. Consequently, the suit is statute barred and this court lacks jurisdiction to determine this suit. The right of the claimant to any relief has therefore been extinguished by law. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, the Claimant, having commenced this action against the defendants after the period specified in Section 2 (a) of the Public Officers' Protection Act, 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

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