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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 Date: October 05, 2015 Suit No: NICN/UMU/03/2013 Between Clifford A.N. Adindu ----- Claimant And 1. The Commandant General, Nig. Security And Civil Defence Corps 2. Nigeria Security and Civil Defence Corps 3. The Governing Board, Immigration and Defendants Prisons Service Board 4. The Abia State Commandant, Nig. Security And Civil Defence Corps Representation: C.C. Nwachukwu for the Claimant K. C. Nwachukwu with C.A. Onwukwe (Mrs.) for the 1st, 2nd and 4th Defendants. JUDGMENT In this suit, the claimant claims against the defendants via a complaint filed May 13 2013 as follows: 1. A declaration that by virtue of the provisions of section 26(5) and (6) of the Nigeria Security and Civil Defence Corps Act in 2003, the claimant is a member of the Nigeria Security and Civil Defence Corps. 2. An order compelling the defendants to place the claimant on his appropriate rank and posting. 3. An order compelling the defendant to pay to the claimant all outstanding salaries and allowances. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendants entered conditional appearance on 15/7/2013 and filed a joint Statement of Defence on 8/4/2014 along with a list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The case proceeded to hearing on 9/4/2014. The Claimant testified for himself as CW1; while Adetunde-Ade Micheal, a deputy commandant in the 2nd defendant testified for the defendants as DW1. Hearing was concluded by 1/12/2014, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court. The 1st, 2nd and 4th defendants filed their final written address on 3/2/2015, the Claimant’s written address was filed on 26/3/2015, the defendants filed their reply on points of law vide a motion for extension of time on 6/7/2015. Parties adopted their respective written addresses on 7/7/2015. In the 1st, 2nd and 4th defendants’ final written address, three issues were proposed for determination, to wit: 1. Whether the action commenced against the 1st 2nd and 4th defendants in respect of the provision of the Nigeria Security and Civil Defence Corps Act passed in 2003 is statute barred taking into consideration the date the cause of action arose, when the action was commenced and the fact that the defendant is a public officer in law? 2. Whether by virtue provision of section 26(5) and (6) of Nigeria Security and Civil Defence Corps Act, Cap N146, LFN 2004; the claimant acquired automatic recruitment to the corps? 3. Whether the 1st, 2nd and 4th claimant have the power to validly employ the claimant without recourse to any authority? In arguing the first issue for determination, counsel stated that the claimant vide paragraph 12 of his amended statement of facts stated: “After the enactment of Nigeria Security and Civil Defence Corps Act in 2003, the claimant was left out in postings, salaries and promotions. The act of the defendants which is a continuous one as postings, salaries and promotions are done from time to time. Salaries are paid monthly including the month of April 2013 before the commencement of this suit in 2013.” The plaintiff commenced this suit ten (10) years after the date of the cause of action which is 2003. Any action or suit challenging any act of the defendant done in the cause or performance of his duty are required to be commenced within three (3) months from the date the cause of action arose. Counsel referred the court to the provision of section 2(a) of the Public Officers’ Protection Act Cap P.41, Laws of the Federation of Nigeria 2004 which states thus: “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 any public duty or authority, 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 companied or, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof………” The claimant’s suit commenced ten years after the cause of action arose is statute barred and cannot be entertained by the Court. In Daudu vs. U.N.A.M (2002) 17 NWLR (Pt. 796) PG.362@PG. 284 para. A, the Supreme Court held, on time limit for action against public officer that, “the action must be instituted against the public officer before the expiration of the period of three months from the date of the commission of the act complained of. If the action is brought after three months, it cannot be maintained.” See Obiefuna vs. Okoye (1961) 1 SCNLE 144. Counsel submitted that the provisions of the Public Officers Protection Act apply to an action brought against a public officer for any act done either:- i. In pursuance or in intended execution of a law or public duty or authority, or ii. In respect of any alleged neglect or default in the execution of law duty or authority. Also, that the Public Officers Protection Act is applicable to an action founded on contract of service; was held at page 456 para B-D of Daudu v. Unam (supra) that “on the issue of the nature of the claim and the period of limitation within which to file an action, it is clear that the claim was on contract of service under which the Appellant appointment was determined by the respondent. Section 2 of the Act covers such types of action”. It is the contention of counsel that, when an action is statute barred, the following legal consequences flow: 1. The claimant has lost right of action. 2. The claimant the right of enforcement. 3. The claimant has irretrievably lost the right to judicial relief. 4. The claimant only has empty cause of action which no court will assist them to enforce. See Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) pg. 1. See Madukolu vs. Nkemdilim, (1962) 2 SC NLR 341; (1962) 1 ANLL 581 @ 595. Counsel submitted that, the claimant having failed to fulfill condition precedent to institute an action of this nature, the action is incompetent and the court lacks jurisdiction to entertain the suit. With respect to the second issue, counsel contended the interpretation of Section 26(5) and (6) of the Nigeria Security and Civil Defence Corps Act, Cap N146, LFN 2004 ( subsequently referred to as NSCDC Act) is derived from reading the entire provision together. The above section reads: (5)- Notwithstanding the provision of this Act, but subject to such directions as may be issue by the Corps, a person who immediately before the commencement of this Act was a volunteer or regular member of or held office in Dissolved Corps shall be deemed to have been transferred to the corps on terms and condition not less favourable than those obtaining immediately before the commencement of this Act, and service in the Dissolved Corps shall be deemed to be service in the Corps for the purposes of pension. (6)- All regular officers of the Corps before dissolution shall retain their ranks and positions immediately after this Act takes effect”. He submitted that the word “notwithstanding” in KLM Airlines vs. Kumzhi (2004) 8 NWLR (Pt. 875) 231 at 258 was interpreted to mean a term of exclusion. At page 265 Obadina JSC held thus: “Section 251 of the constitution with a magical phrase” notwithstanding anything to the contrary contained in the constitution.. By using that opening phrase “notwithstanding anything to the contrary contained in the constitution”, the makers of the constitution had envisaged contradictions and conflicts that may possibly be contained in the constitution or some other Acts of the National Assembly with respect to the provisions of the constitution conferring exclusive jurisdiction on the Federal High Court. By the use of the phrase “notwithstanding anything to the contrary contained in the constitution , the provisions with respect to the exclusive jurisdiction being introduced into the constitution conferring exclusive jurisdiction on the Federal High Court will prevail over any other conflicting provisions of the constitution.” Also at page 256 of the KLM Airlines’ case (supra) paras. B – D.The phrase “Subject to” was held; “to subordinate the provisions of the subject section to the section referred to, which is intended not be affected by the provisions of the former. In other words, the phrase expression “subject to the provisions of Section 251 and other provisions of this constitution” is an expression of limitation”. Counsel submitted that the import of the above authority is that section 26(5) of the NSCDC Act has set a limitation for the application of section 26(6), the limitation is in form of,the application of other sections of the Act, subject to the direction of the Corps. Also, the use of the word “notwithstanding” has envisaged contradictions and or conflicts in other sections of the Act particularly Section 26(6) which by virtue of the use of the words “notwithstanding” and “subject to the direction which may be issued by the Corps” is not applied holistically. Furthermore, the direction issued by the Corps as evident in the committee report attached as Exhibit CD11 was responsible for the recruitment/absorption of the volunteers who are qualified for appointment. In Abiodun vs. CJ Kwara State (2007) 18 NWLR (Pt. 1055), pg. 100 @ 149, per Abdullahi JCA referred to the case of Dantosho vs. Muhammed (2003) FWLR (Pt. 15) pg. 1717 @ 1742, wherein it was held as follows: “Furthermore, it is the law that in construing any provision of a statute, a court ought and indeed bound, to consider any other parts of the statute which throws light upon the intention of the legislature and which may serve to show that the particular provision ought to be construed as it would if considered alone without reference to such parts of the statue. I am of the considered view that to find what section 28(5) of Local Govt. Law entails, recourse has to be made to other sections of the law and in particular section 28(7) of the said law.” In Abiodun’s case (supra) per Augie JCA also referring to the case of Dantosho (supra) quoted Uwaifo JSC as holding as follows: “Section 11(10) above is an Ouster Clause. In interpreting it, the whole of the section must be taken into account… cannot conceive that a subsection of a section of a statute standing alone can be read with full comprehension. A subsection will usually have a connecting relationship with other subsections of the section. A result contemplated by one subsection may not have occurred at all upon a true consideration of the available facts if other subsections create certain conditions for their result. Not to recognize this, is not only to read that particular subsection in the abstract but also to disregard the preceding or subsequent conditions for a better cohesive understanding of the intention of the lawgiver. Hence, a section of a statute having subsections must be read as a whole and related sections must be read together.” Based on the above dictum, the bottom line is that in construing any provision of the constitution or any statute for that matter, the other sections of the statute ought to be considered which likely throws more light on the intention of the legislature. And which may serve to show that the particular provision ought to be considered in isolation. Counsel urged the court not to consider section 26(6) in isolation of section 26(5) of the Act. In UBA Plc vs. BTL Ind. Ltd. (2004) 18 NWLR (Pt. 904) pg. 180 @ pg. 230 paras. E – G the court held thus: “The rule of interpretation of statute is well settled and it is to get to the intention of the legislature to discover the meaning through the words actually used. Where the words are clear and unambiguous, then one applies the literal or grammatical meaning, one may interpret by employment of legal rules or cannons of interpretation of the three most popular: The mischief rule or the rule in Heydon’s case (2) The Golden rule and (3) the literal rule.” It is the contention of counsel that the literal rule, golden rule and mischief rule are to be considered in the interpretation of statute taking into consideration the circumstances of the case. I humbly submit that the provision of Section 26(5) of the Act be construed to the effect that the provisions of section 26(6) is not sacrosanct as the provision of section 26(6) is subject to such directions as may be issued by the corps as provided in the opening words of section 26(5) of the Act. The direction was issued and that resulted in the sitting of the committee which its report is attached as Exhibit CD11. Thus, from the above arguments, it can be said that the provision of Section 26(5) and (6) of NSCDC Act Cap N146, Laws of the Federation 2004, automatic employment into the corps by virtue of being a corps member during the voluntary era does not flow without recourse to the such directives as may be issued by the corps. The third issue for determination was argued by counsel by referring to Section 2 (1), 4(1) (a-e) and 4(2) of the NSCDC Act, which reads as follows: 2(1)-“The Immigration and Prisons Service Board established under the immigration and Prisons Service Board Act, 1986, as amended, shall be the Governing Board of the Corps and shall subject to this Act, Have General control of the Corps” Section 4 provides as follows: (1) The board shall be responsible for- (a) Providing the general policies and guidelines relating to major expansion programmes of the Corps. (b) The supervision of management and general administration of the Corps. (c) Recruiting volunteers and regular members of the Corps. (d) Organizing basic development and refresher courses for members of the Corps and (e) Fixing with approval of the minister the terms and condition of service of members and employees of the Corps, including their remuneration. (2) The Board shall have power to do such other thing which in the opinion of the Board are necessary to ensure the efficient performance of the functions of the corps. Counsel urged the court to hold that the power of employment resides solely on the board and resolve this issue in the favour of 1st, 2nd and 4th defendants. In conclusion, the court was urged by counsel to find that the claimant has not proved their case and dismiss this suit as lacking in merit, vexatious, gold digging and award substantial cost against the claimant. In the claimant’s final written address, counsel stated as an introductory argument that, the failure of the 3rd defendant to file a defence or appear in court to cross examine the claimant’s witness, amounts to an admission to the claimant’s case. This is because; the 3rd defendant was made a party in this suit because of the provisions of Section 4 of Nigeria Security and Civil Defence Corps Act in 2003. The overall management and general administration is vested on the 3rd defendant. The issue of recruitment of Corps is also the responsibility of the 3rd defendant. That being the case, it is only the 3rd defendant that can contest whether or not the claimant is a member of the Nigeria Security and Civil Defence Corps. Having failed to defend the suit, the claimant is entitled to judgment on minimum proof. Learned counsel for the claimant structured his argument as a reply to the issues formulated by the defendant. Regarding the first issue, on the application of the Public Office Protection Act to the instant case, counsel submitted that the contention of the 1st, 2nd and 4th defendants that the instant case is statute barred, is misconceived. In reckoning a period of limitation, it is not done from the time when a law giving right to a citizen was enacted but from the time when the act complained of was done. See Olaosebikan vs. Williams & Anor. (1996) 5 NWLR (Pt. 436), 437; Nigerian Ports Authority vs. Abu Airadion Ajobi (2006) 13 NWLR (Pt. 998), 477. Since the period of limitation is 3 months in the instant case, counsel for the 1st, 2nd and 4th defendants could not state the dated when the act was done and when the period of 3 months expired. He just indicated that it is over 10 years. Counsel for the 1st, 2nd and 4th defendants relied on paragraph 8 of the Amended Statement of Facts. The act of the defendants complained of was said to have commenced after the enactment of the Nigeria Security and Civil Defence Corps Act in 2003 and that the claimant was left out in “postings, salaries and promotions”. These words do not refer to a singular act but series of acts. The effect of paragraph 8 of the Amended Statement of Facts is that the act of the defendant which forms the basis of this suit is a continuous one which has not ceased. For each month when salaries are paid to corps members, the claimant’s cause of action is renewed. The reason why the 1st, 2nd and 4th defendants cannot say when the 3 months started or ended is because the act is a continuing one. By virtue of section 2(a) of the Public Officers Protection Act, in the case of a continuous act, time begins to rum 3 months from the date when the acts stopped. Unfortunately, the injury in this case has continued. The claimant is not suing for reinstatement. He is only suing for arrears of salaries, promotions and postings. The situation would have been different if the claimant was dismissed or his appointment terminated. In which case, time would have started running from the date of termination. The application of the Public Officers Protection Act is not automatic if the officer is shown to be in public office. In the case of Offoboche vs. Ogoja Local Govt. & Anor. (2001) 16 NWLR (Pt. 739), the Supreme Court cited with approval its earlier decision in Nwankwere vs. Adewunmi (1966) 1 All NLR 129, 133-134 where the court in interpreting a similar provision of the Public Officers Protection Law held as follows:- “The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification”. Counsel argued that the defendant cannot enjoy the protection of the Public Officers Protection Act because they are guilty of abuse of office in the process of engaging corps. The whole exercise has been one of “who do you know” and financial inducements. At paragraphs 10 and 11 of his Amended Statement of Facts, the claimant pleaded clear cases of abuse of office as follows: “The reason why the claimant and some other volunteer corps are not considered in postings, salaries and promotions is to indirectly edge them out to make way for friends and relations of occupants of the offices of the 1st, 2nd and 4th defendants. A former Abia State Commandant Patrick Azuma used his position to employ his wife and wife of one his relations Paul Nze. These women were employed as old staff were paid arrears of salaries as old corps members. Patrick Azuma committed these atrocities with the connivance of B.O. Ezigbo at the national office. Patrick Azuma used his position to replace 120 old corps members with is friends and acquaintances. For some time now, admission into Nigeria Security and Civil Defence Corps has been based on favouritism and financial inducements. Some of the old corps members have been left out because they have not been able to provide money demanded by officials of the defendants”. Counsel urged the court to hold that the Public Officers protection Act is not applicable in this suit. In response to the second issue, it is the contention of counsel that by Section 26(5) of the NSCDC Act, the only disqualification for automatic membership is where there is a direction excluding the corps. The 1st, 2nd and 4th defendants tendered a certain document titled “Final Report and Recommendations of the National Working Committee (NWC) on the Regularization of the Nigerian Security and Civil defence Corps “NSCDC”. Section 26(5) of the Nigeria Security and Civil Defence Corps Act 2003 talks about a “directive” not a “recommendation”. A recommendation is not a directive and can be rejected. Until a recommendation is accepted and a directive issued accordingly, it cannot become a working document. There is no evidence to show that the recommendation was ever accepted. There is also no evidence of any other directive issued by the defendants disqualifying the claimant. The defendants had first of all to show that there was a directive and then go further to show how the claimant was disqualified by the claimant. Having failed to do so, the only burden placed on the claimant for the provisions of section 26(5) of the NSCDC Act to apply to him is to show that he was a member of the Nigeria Security and Civil Defence Corps before the Act of 2003. This burden has been discharged effectively. Regarding the third issue, counsel submitted that there is no relief seeking employment of the claimant. The claimant is already employed by operation of law. He is only seeking payment of arrears of salaries, promotions and postings. In conclusion, the court was urged by counsel to resolve all the issues against the 1st, 2nd and 4th defendants and grant the claimant’s claim. In the 1st, 2nd and 4th defendants reply on points of law, counsel argued that claimant’s counsel has been unable to satisfy the provision of Section 131 of the Evidence Act 2011 which provides that: 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. See the case of Maritime Academy of Nigeria vs. AGS (2008) All FWLR (Pt. 406) pg. 182 @ 1876 Ratio 4. Under cross examination, the claimant admitted that he was issued with the following vital employment document: a. Recruitment form with recruitment number. b. Staff Identity Card with service number and c. File number However, the claimant could not explain the where about of this vital document which every trained paramilitary officer must possess at entry point which he must use all through his service even for the purpose of his retirement benefit. The claimant under cross examination admitted knowledge that there are some unabsorbed/state officers who are still under the payroll of the 2nd defendant. This shows that the claimant is not a staff and was never a staff of the Nigerian Security and Civil Defence Corps. It is trite principles of law that you cannot place something on nothing and expect it to stand, see the case of Macfoy vs. UAC (1962) AC 150. It is counsel’s submission that mere annexure of an alleged letter of appointment which pre-dates the Nigerian Security and Civil Defence Corps Establishment Acts 2003 which took effect on 28th day of June, 2003 is not a substantial and positive proof of membership of a regimented organization such as the 2nd defendant. In the circumstance, the claimant has failed to prove that he is a staff of the Nigerian Security and Civil Defence Corps. Counsel urged the court to uphold the above submission. Furthermore, according to the defendants, the contention of counsel to the claimant in his final written address, about the limitation time of this action is a misconception of the law. Section 131 of the Evidence Act is to the effect that “He who asserts must prove” it is the duty of the claimant to state in clear terms the date, time month and the year when the alleged injury was done to them. Counsel for the defendants submitted further on the contention by the claimant’s counsel that the claimant is not suing for reinstatement but rather he is suing for arrears of salary, promotion and postings. In the instant case, the claimant having refused, failed or neglected to state in clear terms either in his statement of facts, or written address or any other process in this suit, the specific date when the injury was meted on them is a total failure in proving his case and therefore this suit is statute barred. Hence the claimant stated in his statement of fact that his salary was stopped immediately after the enactment therefore, it is correct to compute the time from the 28th day of June, 2013 which is the date of the commencement of the Act. Counsel concluded by stating that it is clear that this suit having been commenced outside the statutory period allowed by the law is caught by the statute of limitation. The claimant has also failed to positively establish his membership of the Civil Defence Corps and therefore is not entitled to the reliefs sought in this suit. The court was urged to dismiss the entire claim as lacking in merit, vexatious, gold digging and a calculated attempt to use the sacred instrument of justice to gain employment. Before I take any further step in the determination of this suit, it is crucial that the question whether or not this suit is statute barred be first determined. In paragraph 1 of the defendants’ statement of defence, they pleaded that the plaintiff’s suit is statute barred and DW1 also gave evidence to that effect in paragraph 3 of his evidence. The defendants had earlier filed a Notice of Preliminary Objection on 15/7/2013 seeking this suit to be dismissed for being statute barred but that NPO was struck out by this court on 12/2/2014 when the defendants counsel failed to appear to move the application after several adjournments for the purpose. I did however direct that the defendants may raise the objection in the final written address. The defendants counsel has now submitted in issue one of the defendants’ final written address, that the claimant’s suit is statute barred by effect of the Nigeria Security and Civil Defence Corps Act 2003 and the public officers protection Act 2004. Although evidence has been taken in this matter and it is for judgment, limitation of action is a matter of jurisdiction of court and jurisdiction is a threshold issue in the adjudicatory process. A court must have jurisdiction before it can hear a matter or make any binding decision in it. It does not matter at what stage of the proceeding or by what method it was raised. It follows therefore that limitation of action can be raised at any stage of the proceeding. A court cannot close its eyes to such fundamental issue as jurisdiction when challenged and proceed to determine the case. Therefore, once issue of jurisdiction is raised, it must be decided before the court can proceed any further in the matter. See MUSA vs. MADWETTE (2008) All FWLR (Pt. 421) 937 at 947; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 177; NWAKWA vs. HEAD OF SERVICE EBONYI STATE (2008) All FWLR (Pt. 402) 1156 at 1170. It is for this reason I will first consider whether or not this suit is statute barred. It is the defendants counsels submission that any by the provision of the NSCDC Act 2003 and the Public Officers’ Protection Act 2004, any action challenging any act of the defendants done pursuant of the Act or a default to so perform in the cause or performance of their duties or authority under the Act is required to be commenced within three (3) months from the date the cause of action arose. According to the defendants counsel, the claimant’s cause of action arose in 2003 but he filed this suit in 2013; which was a space of 10 years in between. Counsel concluded that the claimant’s suit is statute barred. In reaction to the submissions of the defendants counsel, the claimant’s counsel argued that the claimant’s suit is not statute barred because the acts of the defendants which form the basis of this suit is a continuous one which has not ceased up to the time of this action and that the defendants cannot be protected by the Public Officers’ Protection Act 2004 (POPA) because the acts of the defendant in question in this suit was without legal justification and the defendant are guilty of abuse of office. Section 20 of the NSCDC Act 2003 provides- “(1) Subject to the provisions of this Act, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against any officer or employee of the Corps. (2) Notwithstanding anything contained in any other enactment, no suit against any member of the Board or the Commandant-General or any other officer or employee of the Corps for any act done in pursuance or execution of this Act or any other enactment or law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or any other enactment or law, duty or authority, shall lie or be instituted in any court unless it is commenced- (a) Within three months after the act, neglect or default complained of; or (b) In the case of a continuation of damage or injury, within six months after the ceasing thereof. Subsection 1 of the section makes the provisions of the Public Officers Protection Act applicable to any suit instituted against any officer or employee of the Corps. The provision of the Public Officers’ Protection Act 2004 in relation to limitation of action is contained in section 2 (a) of POPA. The section provides- “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 any public duty or authority, 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 companied or, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.” While Section 20 of the NSCDC Act protects members of the Board established in section 2 (I) of the Act, the Commandant-General or any other officer of the NSCDC, POPA protects public officers generally. By the definition assigned to the term public officer within the meaning of POPA, members of the Immigration and Prisons Services Board, the Commandant-General or any officer of the NSCDC are public officers. Therefore, the provision of section 20 (2) of the NSCDC Act and Section 2 (a) of the Public Officers’ Protection Act 2004 are to the same end. The combined effect of these provisions is that any action against the Board, the Commandant-General or any officer of the NSCDC in respect of any act done in pursuance or execution of the NSCDC Act or any other law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of the Act or law, duty or authority, must 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. The law is that actions not instituted within the prescribed 3 months of the accrual of the cause of action are statute barred and can no longer be entertained by the courts. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 12 SC 20; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. The defendants in this case are the Commandant-General of the NSCDC, the Nigeria Security and Civil Defence Corps, the Immigration and Prisons Services Board and State Commandant of NSCDC. There is no doubt that the defendants are all public officers within the meaning assigned to the expression in IBRAHIM vs. J.S.C KADUNA STATE. The claimant’s cause of action against the defendants is his allegation that after the enactment of the NSCDC Act 2003, the defendants left him out in postings, salaries and promotions. His claim against the defendants, particularly as contained in relief 1, is that by virtue of the provisions of Section 26(5) and (6) of the Nigeria Security and Civil Defence Corps Act in 2003, the claimant is still a member of the Corps. From his pleadings, it is clear that the claimant’s case against the defendants is that the defendants did not comply with the provisions of the NSCDC Act. Therefore, the defendants have been sued in this suit in respect of their default in the execution of provisions of the NSCDC Act or of their public duty. This brings the suit within the ambit of Section 20 (i) of the NSCDC Act and section 2 (a) of POPA. The defendants can therefore rely on the protection afforded them in limitation provisions of these statutes in this action. That being the case, was this suit filed within 3 months of the accrual of the cause of action? The defendants counsel submitted that the claimant’s cause of action arose in 2003 where as he filed this suit in 2013, which is a period of 10 years. But the claimant’s counsel maintains that the cause of action is continuous and has not ceased when the suit was filed. In determining when the claimant’s cause of action arose or whether the cause of action was a continuing one, this court will have recourse to the pleading of the claimant. The reliefs sought by the claimant in this action are- (a) A declaration that by virtue of the provisions of section 26(5) and (6) of the Nigeria Security and Civil Defence Corps Act in 2003, the claimant is a member of the Nigeria Security and Civil Defence Corps. (b) An order compelling the defendants to place the claimant on his appropriate rank and posting. (c) An order compelling the defendant to pay to the claimant all outstanding salaries and allowances. From these reliefs, it is clear that the defendants did some things which affected the status of the claimant’s employment and his salaries for which he sought this court to correct by these reliefs. What are these acts of the defendants complained of and when the acts carried out by the defendants? The answers to these questions are found in paragraphs 5, 6, 7, 8 and 9 of the claimant’s amended statement of facts. It is averred in these paragraphs as follows: 5. In 2001, the Claimant was appointed Head of Research/Planning Abia State. 6. The Claimant was later posted to Aba as Zonal Officer and later to Ukwa West Local Government Area in 2002 as Divisional Officer. 7. The Claimant discharged his duties effectively as member of the Nigeria Security and Civil Defence Corps. However, after the enactment of the Nigeria Security and Civil Defence Corps Actin 2003, the Claimant was left out in the postings, salaries and promotions. 8. After the enactment of Nigeria Security and Civil Defence Corps Act in 2003, the claimant was left out in postings, salaries and promotions. The act of the defendants which is being complained about in this suit is a continuous one as postings, salaries and promotions are done from time to time. Salaries are paid monthly including the month of April 2013 before the commencement of this suit in 2013. 9. The default of the defendants in the claimant’s postings, salaries and promotions has continued till date. From these facts, the claimant did say that the defendants stopped assigning duties to him, he was no longer posted and promoted and his salaries were stopped in 2003. Undoubtedly, the claimant’s cause of action arose in 2003. The averments in paragraphs 8 and 9 of the statement of facts suggest that non-posting, promotion and payment of salary of the claimant is a continuing act. The claimant’s counsel relied on the averments in 8 of the amended statement of fact to argue that the claimant’s cause of action is renewed each month the claimant’s salaries were not paid or he was not promoted or posted. The claimant’s counsel contended that these acts of the defendants were continuous and had not ceased at the time this suit was filed. With respect to the claimant’s counsel, “continuance of injury or damage” as used in Section 20 (2) of the NSCDC Act and Section 2 (a) of POPA as exception to application of statute of limitation has been judicially interpreted to mean continuance of the act which caused the injury or damage, and not merely a continuance of the injurious effect of a the act. In other words, “continuance of injury” means the continuance or repeat of the act which caused the injury. See OLAOSEBIKAN vs. WILLIAMS (1996) 5 NWLR (Pt. 449) 437 @ 456; OBIEFUNA vs. OKOYO (1961) All NLR 357. Therefore, outside the pleading of the claimant in paragraph 8 and 9 of the amended statement of facts, I do not see any continuance or repeat of the acts of the defendants complained of in this suit as to imply a continuance of injury. In fact, the averments of the claimant in paragraphs 6, 7 and 8 of the amended statement of facts show that the claimant’s postings, salary, promotion were stopped in 2003. The averments did not state that since the defendants stopped the claimant’s postings, salary, promotion in 2003, the defendants at another time thereafter posted, paid salary or promoted the claimant and then stopped again as to suggest that the acts were being repeated. In my view, the stoppage of the claimant’s postings, salary and promotion occurred in 2003 and the facts do not show a continuance injury. From the facts, the claimants’ cause of action accrued in 2003 when the defendants stopped the claimant’s postings, salary, and promotion. From that moment, the claimant’s cause of action in respect of the reliefs he sought in this action against the defendants had arisen and the time started counting against him from the particular day. The record of this suit reveals that the claimant filed this suit on 13th May 2013. From the time the claimants’ cause of action arose and time this suit was filed is a period of 10 years. The claimant did not file this suit within the 3 months period prescribed in section 20 (2) of the NSCDC Act and Section 2 (a) of POPA within which to file this suit against the defendants. The claimant’s counsel also argued that the defendants acted without legal justification and in abuse of their office hence they will not be covered by the Public Officers’ protection Act. The issue whether the defendants acted outside their statutory or constitutional duties or abuses their office can only be considered or applied to disentitle them from the protection afforded them under Section 20 (2) of the NSCDC Act and Section 2 (a) of POPA if the action has been commenced against them within the 3 months period. See EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182, where it was held that a public officer who in the course of performance of public duty does so maliciously or for private spite or acted out the colour of his office will have no protection under Section 2 of POPA only if the action is filed against him within 3 months of the accrual of the cause of action. Karibi-Whyte JSC (as then was) held at pages 596-597 of EGBE vs. ALHAJI as follows: “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” Therefore, the contention of the claimant’s counsel cannot save the claimant’s case at this stage. Since the action was not filed within three months from the accrual of the cause of action, the claimant’s cause of action had been removed and this court cannot inquire into whether the defendants acted without justification or in abuse of their office. It is clear from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The claimant did not commence this suit against the defendants within the statutorily prescribed 3 months. I find that the suit is statute barred. This court therefore has no jurisdiction to entertain the claimant’s case in the first place. The suit is accordingly dismissed. Delving into any other issue canvassed by counsels will amount to a mere academic exercise. Parties are to bear their costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge