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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 13, 2015 Suit No: NICN/OW/28/2014 Between Nigeria Union of Teachers -------- Claimant And 1. Imo State Secondary Education Management Board (SEMB) 2. The Commissioner for Education, Imo State Defendants 3. The Governor of Imo State 4. The Attorney General of Imo State Representation: C. C. Okoroafor, with him, K. O. Ahamba, for the Claimant E. I. O. Anyikude, with K. C. Ibezim (Mrs.) and A. E. Anyaelezu (Mrs.) for the 1st Defendant E. C. Aguta (Mrs.), Director Alternative Dispute Resolution, Ministry of Justice, Imo State, for 2nd, 3rd and 4th Defendants RULING/JUDGMENT By way of Originating Summons filed on the 19th day of March 2014, the claimant sought the determination of the following questions: 1. Whether the period a teacher is on study leave without pay is part of the service years of the affected teacher under the Pensions Act. 2. Whether a teacher who without the inclusion of the period of study leave without pay has not served in the Public Service of Imo State for Thirty Five (35) years, and has not attained the age of sixty years is due for retirement from the Public Service of Imo State. 3. Whether the letter from the Imo State Commissioner for Education reference No: MOE/COM/S.7/90 of 6th June, 2008 to the Governor of Imo State upon which the present policy of the government of Imo State on retirement of teachers is based is not a misrepresentation of the law, misconceived, and an unfair treatment of the teachers who went on study leave without pay. 4. Whether the decision of the Imo State Executive Council of 23rd June, 2008 conveyed in a letter ref: GH/PL/S.2/XXXV/125 and signed by the Principal Secretary to the 3rd defendant and dated same 23/6/2008 is not inconsistent with the Pensions Act. UPON the determination of the questions above, the claimant prays for the grant of the following reliefs: 1) A Declaration that the period of study leave without pay spent by a teacher in the service of the 1st defendant is not part of such a teacher’s years of service. 2) A declaration that the years of study leave without pay is not part of the 35 years of service now applied by the defendant in the retirement of teachers and ought not be applied in the computation of the years of service for the retirement of teachers by the 1st defendant. 3) An order of court setting aside the letter Ref No: MOE/COM/S.7/90 of 6th June, 2008 from the Commissioner for Education to the Governor of Imo State as being a misrepresentation of the law, misconceived, and an unfair treatment of the teachers who went on study leave without pay. 4) An order setting aside the Executive Council decision of 23rd June, 2008 conveyed to the 2nd defendant by the letter ref: GH/PL/S.2/XXXV/125 dated 23rd June, 2008 and signed by the Principal Secretary to the 3rd defendant. 5) An injunction restraining the 1st defendant from including the years spent by teachers on study leave without pay as part of the computation of thirty five years of service for the retirement of teachers. The grounds upon which the Originating Summons is brought are as follows: a. Section 14 of the Pensions Act does not recognize the years spent on study leave without pay in the computation of qualifying years for the purpose of payment of pensions. b. A retirement policy based on political expediency is an unfair labour practice. c. A retirement policy which is inconsistent with the express provisions of the Pensions Act is a nullity being illegal. In support of the Originating Summons is an affidavit of 16 paragraphs deposed to by Comrade (Dr.) Reginald Amanze Anyadike, along with Exhibits A, B, and C attached. In the accompanying written address, claimant’s counsel articulated one issue for determination, thus: Whether the inclusion by the defendant of the period of study leave without pay in the computation of years of service of a teacher for the purpose retirement is legally justifiable. Counsel in arguing this issue posited that an administrative or even executive circular cannot supersede a statute. The only statute on retirement and pension is the Pensions Act which has been in effect since 1st April, 1974. There is no provision even in the Pension Act 2004 that a worker retires after working for 35 years. The provision is, retirement on the attainment of 60 years of age in the absence of exceptional circumstances. See Section 4 (1) and (2) Pension Act. Consequently, it is unlawful to retire any teacher who has not attained the age of 60 years but has served for a period of 35 years. A pertinent question which needs to be resolved in the instant suit is we an interpretation of Section 14 of the Pension Act 2004. This section reads: “In the computation of qualifying service, no period during which an officer is less than fifteen years of age or is absent from service duty on leave without pay shall be taken into account unless such absence was for the purpose of utilizing a bursary or scholarship awarded to him by the government of the Federation of a State thereof or the absence was on account of such other purpose as the Minister may permit.” Qualifying service for the purpose of Section 14 of the Pension Act 2004, is defined in Section 23 of the Pension Act as “Service in the public service or any approved service which may be taken into account in determining whether an officer is eligible by length of service for a pension or gratuity” In Aqua Ltd. vs. Ondo Sports Council (1988) 4 NWLR (Pt. 91) 622 @ 641 E, the Supreme Court held that in construing a statute, the duty of the court is to ascertain the meaning of words actually used. In the instant case, a proper construction of the expression “qualifying service” is germane to the proper interpretation of Section14 of the Pension Act. Thus, qualifying service means pensionable years, and by the express provisions in Section 14 of the Pensions Act, years spent on study leave without pay are not part of it. Counsel submitted that it would run against the norms of statutory interpretation to interpret a section to have created an implied detriment to that person without fault. Non-pensionable years are not part of the years of service of a teacher because pension is determined by the number of years of service. Also, the thirty five years maximum years of service not being statutory cannot be applied to whittle the number of years one is to be in the service which is until the attainment of sixty years of age. It is the contention of counsel that Exhibit ‘A’ is unlawful. This is owing to the fact that, the ten reasons given in the Exhibit are bereft of statutory support, discriminatory and thus an unfair labour practice. The sum total effect of Exhibit ‘A’ was to rob Peter to pay Paul, an age old adage representative of unfair treatment. Counsel urged the Court to hold that Exhibit ‘A’ is misrepresentative of the law, unconstitutional and unfair to the teachers. Also, Exhibit ‘B’ and ‘C’ which rest on Exhibit ‘A’ are equally illegal and/or unconstitutional. This is so, because it is an unfair labour practice for the government to generate fresh employment by unlawfully abridging the service years of a teacher. In conclusion, counsel urged the court resolve the questions No. 1 and No. 2 in the negative; and questions No. 3 and No. 4 in the affirmative and grant the reliefs sought in the originating summons. In opposition to the Originating Summons, the 1st defendant, on the 22nd day of April 2014, filed a counter affidavit deposed to by Nicholas Osuji. In the accompanying written address, counsel raised five issues for determination, to wit: 1. Whether this suit is not statute barred having exceeded the 3 months limitation period allowed by Section 2(a) Public Officers Protection Act LFN. 1990 and Imo State Law No. 3 of 1989 which created 1st defendant. 2. Whether this suit is not incompetent for non-compliance with condition precedent by service of pre-action notice on 1st defendant as required by Imo State No. 3 of 1989. 3. Whether the claimant has locus standi/legal capacity to bring this suit having no direct interest to protect or defend. 4. Whether this court has jurisdiction to interfere, with and/or preclude Imo Executive Council Executive Administrative Powers and/or Act. 5. Whether suit is not speculative. Counsel argued issues 2, 3, 4 and 5 together and stated that the suit is incompetent; and that the claimant lacks legal capacity to sue, the suit is speculative and the court lacks jurisdiction to question or interfere with Imo State Executive Council’s act/decision, executive or administrative powers. Counsel urged the court to dismiss the suit with cost. The Imo State Law No. 3 of 1989 stipulated that before an action is brought against the 1st defendant, pre-action notice of not less than one month must have been served on it, but in the instant case, none was served on 1st defendant which is a statutory body with legal personality different from those that constitute it or its members or officers, therefore this suit is incompetent and a nullity for non-compliance with the condition precedent for its institution. It is trite law that the court must ensure that the condition precedent for its assumption of jurisdiction to determine a suit is complied with. In Nwankwo vs. Abazie (2003) FWLR (Pt. 80) Pg. 1410 – 1411 ratio 3, Court of Appeal held that a court can assume jurisdiction where there is no feature in the case which prevents court from exercising its jurisdiction. See also Madukolu vs. Nkemdilim (1962) All NLR (Pt. 2) 587 and Achebe vs. Nwosu (2003) FWLR (Pt. 136) PP 898 – 899. Similarly, in Macfoy vs. UAC Ltd. (1962) AC 152, 160 cited with approval in Sken Consult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6-9 the Privy Council held that “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad……and every proceeding founded on it is also bad and incurably bad, you cannot put something on nothing and expect it to stay there. It will collapse”. Also in Obuobi vs. Obu Foribo (2010) All FWLR (Pt. 546) P. 544 ratio 2 the Court of Appeal held that “when an act or thing is to be done, failure to do that act or thing in accordance with the prescription is fatal to the doing of the said act.” Counsel for the 1st defendant submitted further that locus standi is a fundamental requirement for a suit to be competent for the court to assume jurisdiction to determine the suit as in this case. It is the argument of counsel that the claimant has no direct interest to protect or defend. The claimant did not inform the court that its right or that of its agent has been injured or is being injured. The claimant informed the court that the interest of teachers might be hampered or injured by the said letters/decision of executive council. This does not give the claimant any interest in the suit, thus the Claimant lacks the legal capacity required under the law to institute this suit. In counsel’s opinion the reliefs sought in the suit are speculative, which the law abhors, as same might entail preempting the action of 1st defendant. It is settled law that for a person to be said to have locus standi to institute an action or to prosecute an appeal, he must be able to show that he has special or sufficient interest or right which is not vague or intangible and which does not have the colouration of Supposition or Speculation and not an interest which he desires to share with other members of the society. See Ilori vs. Bension (2000) FWLR (Pt. 26) Pg. 184 ratio 1. Locus standi is capacity to sue. It is not dependent on the success or merit of a case, rather it is condition precedent to be determined on the merits. See Madukolu vs. Nkemdilim (supra). Counsel submitted that the claimant has no direct interest which has accrued to it specially, to either defend or protect. Counsel urged the court to declare that this suit and reliefs are speculative, without cause of action and incompetent. Also, it is the submission of counsel that the court lacks jurisdiction to question the executive or administrative act/powers of the Government or its Agents and Officers, as it has the shield and protection of law. On the issue of whether the action is not statute barred, Counsel contended that the suit is statute barred for being commenced outside the 3 months limitation period allowed by Imo State Law No. 3 of 1989 and the Public Office Protection Act S.2a LFN 1990; thus, the claimant has waived its right to sue. The complaint in issue borders on contract of employment with statutory flavour, not contract for execution of specific contract as buying and procurement of materials; and the effect of an action being statute barred is dismissal. The purport of this suit is a complaint against 1st defendant was in its official capacity in relation to the teachers, not the claimant. The claimant is a trade union whose tool is negotiation, to influence decision of Government concerned, without a legal right to change the decision of the Government. Therefore the claimant has exceeded its constitutional right as a Trade Union by instituting this action. More so, the reliefs sought are interlocutory and cannot be determined by final judgment. It is the opinion of counsel that, manifest from the originating summons, the said letter and Imo State Executive Council decision took effect in 2008; while this suit was instituted in March 2014 thereby exceeding the 3 months limit set by the Act/Law. Counsel urged the court to hold that the suit is statute barred and dismiss it. In Ora Nyeli vs. First Bank of Nig. Plc (2001) FWLR (Pt. 68) pg 1217 at 1218 ratio. 2, it was held that the “consideration of statutory period is done by looking at writ of summons and statement of claim alleging when the wrong which gave rise to cause of action was allegedly committed and comparing that with date in writ of summons. If the period between date of cause of action arose and date of filing the writ summons is beyond the period allowed by the limitation law/act, then the action is statute barred”. See also Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1. Counsel further stated that the principle; that the Public Officers Protection Act is applicable to contract of employment was enunciated in the following cases: 1. Tajudeen vs. Customs Immigration and Prisons Service Board (2010) All FWLR (Pt. 1742) at 1742 Ratio 3 2. CBN vs. Ukpona (2006) NWLR (Pt. 998) 555, (2007) All FWLR (Pt. 357) 954; 3. Ogboru vs. Ibori (2005) 13 NWLR (Pt. 942) 319 Similarly, it was held in the case of Forestry Research Institute of Nig. vs. Gold (2007) 11 NWLR (Pt. 391) pg. 1579 that “when a law prescribes for the institution of an action within a prescribed period in respect of a cause of action accruing to plaintiff, proceedings shall not be brought after the time prescribed by the limitation law or statute” as in instant case. It was held at page 1751 para. G-H that “what is to be determined in determining the applicability of public officers protection Act under a contract of employment is whether the facts constituting the complaints in the case arose out of a specific contract or a complaint against an act done in the performance or execution of a public duty.” According to Counsel, in the instant case, the claimant’s action borders on the retirement of public/civil servants by the 1st defendant, and not a contract to perform a job, therefore the Public Officer Protection Act is applicable. In FBN Plc. vs. Ndoma – Egba (2006) All FWLR (Pt. 307) p. 1017 it was held in ratio 15 that “where such period has expired, such action should be treated as statute barred for such strictness is based on principle that where a statute creates a right and prescribes a specific procedure or time for its enforcement, the party claiming such right is duty bound to observe strictly prescribed procedure. Non-compliance is regarded by court as fundamental as it goes to the root of the matter and affects the jurisdiction of the court as a condition precedent for the exercise of jurisdiction in the matter has not been fulfilled.” See Sken Consult vs. Ukey(supra). In conclusion, counsel urged the court to compare the date of letter ref. No: MOE/COM/S.7/90 of 6th June, 2008 and the Imo State Executive Council decision of 23rd June, 2008, and the date the suit was instituted in March 2014, and declare that the suit is statute barred and dismiss the suit or in the alternative strike out same with cost. A further affidavit of 8 paragraphs in support of originating summons deposed to by (Dr.) Reginald Amanze Anyadike was filed on the 6th day of May 2014. In the written address in support of the further affidavit, the claimant’s counsel adopted the issues formulated by the 1st defendant. In response to the 1st defendant’s Issue No. 1, Counsel submitted that the Public Officers’ Protection Act is available only to those engaged in the execution of lawful duty. It does not apply to protect those acting unlawfully or ultra-vires their statutory functions. In the case of Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 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 legal justification, He cannot claim the protection of the provisions of the Public Officers’ Protection Act”. It is counsel’s contention that the instant case falls into the position of the Public Officers acting outside the scope of his duties or without a semblance of legal justification. The letter ref: MOE/COM/S.7/90 of 6th June, 2008 and Imo State Executive Council decision of 23rd June, 2008 does not have an iota of semblance of legal justification which goes contrary to the Pensions Act. There is no law backing the said letter and the Imo State executive council decision which the 1st defendant heavily relies upon. This point was raised in the claimant’s originating summons as an issue for determination by the Court in the substantive suit. (See issue No. 3 of originating summons). This non-availability of any legal justification for the 1st defendant to act outside the ambit of the Pensions Act has been settled in the case of A.G Bendel State vs. Aideyan (1989) 4 NWLR (Pt. 118) 646 @ 670 B where the Supreme Court (per Nnaemeka-Agu JSC) held as follows: “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 governance which is not covered under the umbrella of an enabling law is a nullity.” It is submitted by counsel that the Public Officers’ Protection Act does not cover the 1st defendant, and by extension the other defendants. Counsel urged the court to so hold. In response to the 1st defendant’s issue no. 2 on the non-service of pre-action notice on the 1st defendant, Counsel submitted that the 1st defendant was sufficiently served with a pre-action notice of intention to commence action against the defendants. The relationship between the claimant and the 1st defendant is contractual. This fact was also conceded by the 1st defendant in paragraph 12 of the 1st defendant’s counter affidavit. A pre-action notice does not apply where the suit is founded on contract. See Nigeria Ports Authority vs. Constrzioni Generali Farsura Congefar SPA & (1974) 4 ECSCR, 658 @ 666. Claimant’s counsel responded to the 1st defendant’s Issue Nos 3 and 5 by asserting that ‘locus standi’ means a place of standing. It denotes the right to institute an action in a court of law. It is a trite fundamental principle that a person desirous of instituting an action in court must show that he is either affected or likely to be affected or aggrieved by the proceedings in the action. See Govt. of Imo State vs. Amuzie (2009) 13 NWLR (Pt. 1157) 34 @ 74 G – H. The claimants in paragraphs 6 and 7 of the claimant’s affidavit in support of the originating motion established a cause of action and locus standi thereof as the members of the claimant body have been and are imminently likely to be retired from service, pursuant to the illegal action of the Imo State Govt. policy on retirement of members of the claimant. See also Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) 1 @ 66 H where the Supreme Court (per Tobi JSC) stated that “a party who is in imminent danger of any conduct of the adverse party has the locus standi to commence an action.” In response to the 1st defendant’s issue No 4, Counsel for the Claimant submitted that the issue should be taken as abandoned, the content being vague, and having not been argued. He went on that the claimants are 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 reads: “(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)(ii)(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 exercisable, by a person who has complains touching his civil rights and obligations against another person, government or authority”. Counsel submitted that the Constitution of the Federal Republic of Nigeria is supreme and any policy inconsistent with its provisions is to the extent of its inconsistency, null and void. In conclusion, he urged the court to disregard the counter affidavit and written address of the 1st defendant and grant the reliefs sought in the originating summons. The 2nd – 4th defendants on 23rd day of September, 2014 filed a 26- paragraph counter affidavit deposed to by Chukwunyere Nnodi in opposition to the originating summons of the claimant. In the accompanying written address, counsel raised four issues for determination: 1. Whether Exhibits “A. B and C” ought to be part of the evidence in this case, their inclusion not having complied with the provisions of the Evidence Act. 2. Whether the period of study leave without pay is included in the computation of years of service of a teacher or any other public servant. 3. Whether suit No. NICN/OW/28/2014 is statute barred. 4. Whether the suit was properly commenced by way of originating summons. In arguing the first issue, counsel submitted that the Government of Imo state of Nigeria is a creation of the Constitution. The 3rd defendant is the Chief Executive of the Government of Imo State. The 2nd and 4th defendants are Commissioners; they are amongst the officers through which the Government of Imo State operates/acts. As provided by Sections 176 and 193 of the Constitution. Counsel submitted that Exhibit “A” attached to the affidavit in support of this suit is part of the unpublished official records relating to affairs of Imo state. By virtue of Section 190(1) of the Evidence Act, 2011 as amended, no one is permitted to produce any unpublished official records relating to the affairs of Imo state, or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry, Department or Agency concerned who shall give or withhold such permission as he thinks fit. To counsel, there is non-compliance with the above provision and the proviso to the section by the claimant in this suit. Also, the documents exhibited by the claimant (Exhibits A, B and C, being public documents did not comply with the provisions of Sections 88, 89 and 90 of the Evidence Act, 2011. They are not certified true copies; they are inadmissible to prove any facts contained therein. See Adeyefa vs. Bamgboye (2013) All FWLR (Pt. 673) 1833 at 1842 para. C; 1849 paras. A-C. Relying on the authority of Lekwot vs. Judicial Service Commission (1997) 51 LRCN 1825 at 1828 Para F-K, Counsel urged the court to discountenance the submissions of claimant’s counsel, there being no proof in the manner provided in the Evidence Act. This suit having been commenced by originating summons, it is trite that the affidavit and exhibits attached thereto are the evidence upon which the court will consider, to reach a decision one way or the other. Consequently, counsel urged the court to expunge Exhibits “A, B and C” and all the arguments based on them as part of the records in this case for non-compliance with the Evidence Act. With respect to the second issue, counsel submitted that it is the service agreement or the conditions of service that regulates the relationship between employees and employers. See College of Medicine of the University of Lagos vs. Adegbite (1973) 5 SC 149. The Public Service Rules governs the contract of service between a particular civil servant and his employer. Amaonwu vs. Ahaotu (1998) 9 NWLR (Pt. 566) 454 ratio 6. In the instant case, the employer of secondary school teachers is the 1st defendant and the SUBEB (State Universal Basic Education Board) is the employer of primary school teachers. The contract of service is between the teachers, 1st defendant and SUBEB respectively and no other. An employee who is granted approval for study leave without pay by his employer remains a staff of the employer, his appointment is not suspended. See the case of Lazarus Igwe vs. Alvan Ikoku College of Education Owerri (1994) 8 NWLR (Pt. 363) 465 at 482 paras. E – F, per Munkata Coomasie JCA However, counsel opined that there is no evidence before this court that any teacher granted approval to proceed on study leave without pay was dismissed, relieved of his duties or had his appointment terminated while on an approved study leave without pay. Consequently, counsel urged the court to hold, in line with the above decision, that a teacher who was granted approval for study leave without pay by his employer remains a staff of the employer, the circumstances that would have negated same enumerated above being absent in the present case. It is the submission of counsel that an officer on study leave without pay is on leave with intention to return to work. The name of the staff remains on the nominal roll of employees of the employer during the period of study leave without pay. His position is not declared vacant or filled up. There is therefore, no break in the employment of that particular employee. It follows that in computing his period of service for purposes of retirement, the period of study leave without pay will be calculated as part of the period of service. The 2nd – 4th defendants are not employers of teachers in Imo state and Exhibit “C” made in January, 2009 nullified circular No. HSI/EST/151/1/390 of 25th May, 2007 and cancelled circular No. HIS/EST/EVG/124/516 of 30th June, 2008. The circulars on study leave were made by the head of Service of Imo State, a position created by the Constitution and all the circulars referred to by the claimant are not before the court (the circular referred to in paragraph 11 of the claimant’s affidavit); the contract of service of the teachers are not before the court and the court will not be able to arrive at a fair and just conclusion without sighting all the circulars referred to and the contract of service of the teachers. Relying on the authority of Lekwot vs. Judicial Service Commission (1997) 51 LRCN 1825 at 1828, Counsel urged the court not to speculate on documents not before the court. The court is not allowed to speculate concerning the content of documents not before it and to pronounce on them. To ask the court to hold that Exhibit “C” was made consequent to Exhibit “B” is unjust. Counsel urged the court in accordance with the decision in Abubakri vs. Smith (1973) 5 SC 31; to restrain itself and not make orders in vain. Counsel went further that there are legal authorities that have decided that period of study leave without pay does not constitute a break in service and the period is calculated for purposes of pension. Counsel posited that the arguments by the claimant’s counsel on Exhibits “A, B and C” that the 1st defendant is retiring teachers based on them, is not the position. Furthermore, on the interpretation of Section 14 of the Pensions Act, 2004, counsel submitted that Section 14 does not affect the computation of the period of service of a worker and cannot be used to elongate the period of service of a worker. An employee on leave of absence is still in the employment of the employer for the period or absence. See the case of Mbukurta vs. Abbo & Ors (1998) 6 NWLR (Pt. 554) 456 at 464 para. E, Ratio 3. Relying on the authorities cited above, an employee who is on study leave is still in the service of the employer. It follows that in computing his period of service for purposes of retirement, the period of study leave without pay will be calculated as part of the period of service. Black’s Law Dictionary, 6th Edition at page 891 defines “leave of absence” as “temporary absence from employment or duty with intention to return during which remuneration and seniority may or may not be suspended”. Section 12(1) of the Pensions Act states it is only continuous and unbroken service that shall be taken into account as qualifying service. In the case of teachers as indeed other workers, it is submitted that the relationship existing between the employer and employee is a contract of service and it is binding on the parties thereto. See College of Medicine of the University of Lagos vs. Adegbite (supra). The conditions for the grant of approval of the study leave are not before the court and cannot be speculated upon. There is no evidence before this court that there was a break in the service of any teacher. Counsel argued issues 3 and 4 together and stated that a court is competent to exercise jurisdiction only where the following conditions are satisfied: 1. Where the court is properly constituted 2. Where the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction and; 3. Where the case before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of Salati vs. Sehu (1986) 1 NWLR (Pt. 15) 198; Madukolu vs. Nkemdilim (1962) 1 All NLR 58. It is counsel’s contention that the suit brought by the claimant falls within condition 2. The features in the case which prevents the court from exercising jurisdiction is that, the action was commenced more than three months against the 2nd – 4th defendants who are public officers, thus the action is statute barred. The claimant lacks the locus to maintain this action which is based on contract of employment. A cause of action comprises of facts which need to be proved to enable the claimant succeed. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives the claimants their cause of action and the consequent damage. See Savage vs. Uwaechia (1972) All NLR (Pt. 1) 251 at 257. The act which led to the commencement of this suit occurred in 2008 and 2009 as can be deciphered from paragraphs 8, 11 and 12 of the affidavit in support of originating summons. This suit was filed on 19th March, 2014. Therefore, instituting this case more than five years after the act and failure to bring the action within three months as provided by the Public Officers Protection Act and Public Officers Protection Law, Laws of Eastern Nigeria 1963, applicable in Imo state (Section 2) renders the suit incompetent and robs the court of jurisdiction to entertain same. It is the submission of counsel that the effect of a statute of limitation is that the right o the injured person to commence the action would have been extinguished. See Ibrahim vs. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1. Where a statute prescribes a specific period for the filing of an action in a court of law, any action filed after the expiration of that period is null and void. The period of limitation starts to run from the very date the cause of action accrues. This was the decision of the court in Chukwu vs. Amadi (2009) All FWLR 1189 at 1203 paras. C – D. What determines whether or not cause of action is statute barred, is the writ of summons or statement of claim (in this case the originating summons affidavit in support of originating summons) alluding to the date the cause of action accrued and the date of filling of the suit. It has been shown from the affidavit and reliefs that the action is statute barred. It was counsel’s further submission that the claimant has no competence to sue the defendants challenging the validity of Exhibits “A, B and C” none of which is certified and none of which was made by the employers of teachers in the state. The teachers who are employees of the 1st defendant have contract of service individually with the 1st defendant and are bound by the terms. It is the teacher who is aggrieved that can complain that he has been wrongly retired from service; it is that teacher that has the locus to bring the action. No one else can bring that action on behalf of the teacher. The claimant did not sign contract of service with the defendants in respect of the teachers in Imo state. The claimant has not brought any document before this court to ascertain his claim and enable the claimant have the locus to pursue a public right, where same exists. It is submitted that there is no public right to pursue rather a contract of service which is enforceable as between the parties. It is trite that the courts do not grant reliefs based on speculation. The claimant is speculating on the issue of retirement of teachers and the basis of same, counsel urged the court not to grant the reliefs. Counsel went further that the originating summons procedure is appropriate only in cases where the facts are not in dispute. It is reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case would demand pleadings. The procedure should only be applicable in circumstances where there is no dispute on questions of fact or even the likelihood of such dispute. Where the affidavit of the claimant leaves matter for conjecture, originating summons is not an appropriate procedure. See Oyewunmi vs. Osunbade (2001) FWLR (Pt. 82) 1919 at 1922. In the instant case, a cursory look at the affidavits shows that the facts are in dispute; on the authority of Oyewunmi’s case, originating summons is not appropriate. See Famfa Oil Ltd. vs. Attorney General of Federation (2003) 18 NWLR (Pt. 852) 453 at 467 Counsel submitted that originating summons is not appropriate in the circumstance and urged the court to answer issues 3 and 4 in the negative and dismiss the suit of the claimant. Counsel also urged that question one in the Originating Summons should be answered in the positive in line with the decision in Lazarus Igwe vs. Alvan Ikoku College of Education Owerri and the Mbukurta’s case supra The Claimants filed a further affidavit of 14 paragraphs in support of originating summons and in answer to the Counter Affidavit of the 2nd to 4th defendants. The said further affidavit, filed on the 3rd day of October 2014, was deposed to by (Dr.) Reginald Amanze Anyadike. By way of introduction in the written address in support of further affidavit, claimant’s counsel stated that this suit was brought by the claimant as required by law for the protection of interest of its members as they have a common interest, the subject matter and parties being the same. The 1st – 4th defendants are all involved in the administration and governance of Imo state. The 2nd, 3rd and 4th defendant are policy makers while the 1st defendant (a subsidiary of the Ministry manned by the 2nd defendant) implements the policies of the 2nd – 4th defendants. Counsel submitted that Exhibits “A, B and C” as exhibited in the affidavit attached to the originating summons are all admissible document as provided by law. None of the said documents fall under Section 190(1) of the Evidence Act, 2011 as amended. Exhibit ‘A’ is a letter dated 6/6/2008 from the 2nd defendant to the 3rd defendant on issues regarding the affairs as it affects the members of the claimant. Exhibit ‘B’ is also a letter dated 23rd June, 2008 from the principal Secretary to the governor of Imo State to the 2nd defendant, also on matters connected to Exhibit ‘A’ regarding the affairs of the claimant members. Exhibit ‘C’ is a letter dated 27th January, 2009 from the Head of Service on behalf of the 3rd defendant to various government agencies in the state it affects claimant’s members’ status of employment. To counsel, these letters are relevant documents in this case and are admissible. The above documents are published documents to various persons including the judiciary as contained in Exhibit ‘C’. Also, where a document is relevant to a case that document is admissible in law and it does not require to be brought to court by the person from whose custody it is. Where a document is relevant, even if it is stolen, it is admissible in evidence see Abubakar vs. Chucks (2007) 18 NWLR (Pt. 1066) p. 386 @ 402 – 403 H-B. On whether the period of study leave without pay forms part of service years of a teacher. It is counsel’s submission that the period of study leave without pay does not form part of period of service of a teacher. A worker who renders no service and receives no pay for a particular period of time cannot be said to be in service at the period and cannot be retired on the fact that he was in service at that period. However, while still in service, if a teacher attains the statutory age of sixty years, he would be retired whether he has served for 35 years or not. The 2nd-4th defendants have fully concentrated their arguments in the defence of this case on agreements, policies and circulars made by executive council and ministries. The issue before the court is for the interpretation of Section 14 of the Pensions Act which is the only statute that regulates period of service of a public officer. A circular issued by a parastatal or a department of government either of the state or Federal Government cannot in law supersede an Act (pensions Act) made by the National Assembly over the same subject matter, in this case non-pensionability of period of study leave without pay. Such circular, policy, letter or decision must be consistent with the provisions of the Pensions Act on the issue. Section 14 of the pensions Act LFN 2004 provides as follows: 14. In the computation of qualifying service, no period during which an officer was less than fifteen years of age or was absent from duty on leave without pay shall be taken into account unless such absence was for the purpose of utilizing a bursary or scholarship awarded to him by the government of the Federation or of a State thereof or the absence was on account of such other purpose as the Minister permit. Flowing from this provision of the Pensions Act, the Head of Civil Service of Imo who is constitutionally in control of all the ministries, departments and agencies of Government of Imo State as provided by the 1999 Constitution and who had the delegated power of the Governor of the State, (See section 208 of the Constitution 1999), issued the claimants with letters dated 21st May, 2008 computing their retirement age, without including the years of study leave without pay. See Section 208(1) & (2) of 1999 Constitution. Counsel submitted that any subsequent letter from the defendants which purported to nullify the letter of 21st May, 2008 is irregular, null and void as a circular cannot override the provisions of the Pensions Act on this point. See Section 4(2) of the 1999 Constitution. Pension matters are contained in the Exclusive Legislative List of the 1999 Constitution of Nigeria as provided in the Second Schedule. The Pensions Act applies to Imo state. The circular issued by the Head of Service of Imo stated dated 21/5/2008 which is in compliance with the Pensions Act is the only circular that cannot be voided in this case. This is so because it merely implemented the provisions of the Pensions Act. Therefore, other circulars purporting to cancel or nullify circular of 21/5/208 which is in line with the provisions of the Act on the issue of non-pensionability of the period of study leave without pay as it affects the claimant’s members, is null and void to the extent of its/their conflict with Section 14 of the Pensions Act LFN 2004 as those circulars are purely administrative or executive actions which cannot supersede an Act of the National Assembly. It is counsel’s further submission that the power to make regulations that are expressly inconsistent with the substantive law is void otherwise the power to make regulations would transform into the power of making law which would be unconstitutional. Counsel urged the court to consider the unreported decisions of the High Court of Imo State, Owerri Judicial Division on a similar matter viz Barrister Basil E.A Ebearo vs. Imo State Secondary Education Management Board (SEMB). Delivered by A.O.H. Ukachukwu J. in Suit No. HOW/236/2002 on 6th day of October, 2008; Martin Ogbukagha Nwosu vs. Imo State Civil Service Commission & Ors. delivered by N.B Ukoha J. in Suit No. HOW/216/2011 on the 13th day of December, 2011. Further, counsel submitted that this suit is not statute barred. It is now settled that statute of limitation does not apply to labour matters. See Capt. Oghide & Ors vs. Shona Jones Nig. Ltd.(2009) NLLR (Pt. 43) p. 73 @ 87 paras. E-G the court quoting the case of John Ovoh vs. Nigeria Westminster Dredging and Marine Ltd (Unreported Suit No. NIC/9/2002 at P. 2122 held: See also the“The question which now arises is whether the employers’ duties are caught by the Limitation Law in the same way it is contended in this instance that the rights of the claimants to their salaries is caught by Section 8(1)(a) of the Limitation Laws Cap 188 Laws of Lagos State. If the answer to this question is in the negative i.e. that employers’ duties are not caught by Limitation Law, then the rights of the claimants to receive salaries for work done is also not caught by the Limitation Law. This court, in the case of John Ovoh vs. The Nigeria Westminster Dredging and Marine Ltd, supra, held as follows: “….the point remains whether labour rights are covered by the limitation laws…. We do not think that the rights of workers are caught up by the limitation laws; for to think otherwise would mean that even rights as to salaries and entitlements of an office would be time-barred. We have not been shown any reason why we should depart from this ruling”. See the case of Faniyi vs. AGF (2009) 14 NLLR P. 387 at 398 D-E. From the above decisions of this court, it is now clear that labour and labour related matters are not caught up by limitation law. Although the above two judgments are of persuasive nature, counsel urged the court not to depart from them. The Public Officers’ Protection Act is available only to those engaged in execution of lawful duty. It does not apply to protect those acting unlawfully or ultra vires their statutory functions. See Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 457 @ 591 B-D. Counsel’s submission on Public Officers’ Protection Act and locus standi is a repetition of his argument in his address in support of the further affidavit to the 1st defendant submission, and do not need to be repeated. An additional submission made by counsel is, 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 case pleaded in the claimant’s pleadings is true. In fact, the court is entitled to take the averments in the originating summons and affidavit as proved. See Ekeogu vs. Aliri (1990) 1 NWLR (Pt. 126) P. 345 @ 352 para. G. Also, the act of the defendants complained about is a continuing act of continued retirement of members of the claimant based on a government policy that is contrary to the law of retirement and pensions of public officers in Nigeria (Imo State inclusive) which is the Pension Act. Where the act complained about is a continuing wrong, statute of limitation does 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) P. 708 @ 759 H – 760A. Counsel urged the court to dismiss this point of objection. Another locus standi argument advanced by counsel is that the claimant “Nigeria Union of Teachers” is a juristic personality having the capacity to sue and be sued in any legal proceedings in Nigeria, being a body registered under the Third Schedule of the Trade Union Act, Laws of the Federation 2004 for the purpose of overseeing and protecting the interest and welfare of teachers which include teachers employed by the 1st defendant in Imo State. See the case of Comrade Matawalle vs. NAT. President, MHWUN (2009) 15 NLLR P. 369 @ 405 – 406 E – B. The Trade Union Act. LFN 2004 in Part 1 Section 1 defines a Trade Union as: “any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provisions of benefits for its members.” From the above definition, it is counsel’s submission that the claimant has the competence and the requisite standing to bring this action on behalf of its members as required by law. That is the reason for the formation ab-initio. This action was properly commenced by way of originating summons. What the court should concern itself of, with respect, are the head claim and not the subsidiary relief in order to determine whether the suit was properly commenced by way of originating summons. The main or principal claim in this suit, as can be seen on the face of the originating summons, is a call on this court for the interpretation of section 14 of the Pensions Act. This is also stated on the grounds for which the originating summons was brought. In conclusion, counsel urged the court to hold that: i. Exhibits “A, B and C” are proper evidence before the court for which the court can use in determining this question. ii. The period of study leave without pay is not included in the computation of years of service of a teacher. iii. That Suit No: NICN/OW/28/2014 is not statute barred. iv. The suit was properly commenced by way of originating summons. The 2nd – 4th defendants filed a 26 paragraph further counter affidavit deposed to by Chukwunyere Nnodi in opposition to the further affidavit in support of originating summons, wherein the deponent on behalf of the 2nd to 4th defendants deposed to further facts in opposition to the originating summons. Some of the facts deposed therein have been earlier deposed to, and so do not need to be repeated here. Reference may be made to the content as ne need arises in due course. By a motion on notice for interlocutory injunction filed on the 19th day of March 2014 and brought pursuant to Order 14 Rules 1 & 2 of the National Industrial Court Rules, 2007 and under the inherent powers of the court, the claimant/applicant counsel prayed for an order of court restraining the defendants from retiring or continuing to retire teachers affected by this suit pending the determination of the substantive suit; The grounds upon which the application is brought is that the 1st defendant has short-listed another set of teachers for retirement by including the teachers’ years of study leave without pay as part of the service years of the teachers. The application is supported by a 17 paragraph affidavit deposed to by comrade (Dr.) Reginald Amanze Anyadike. In the accompanying written address, counsel formulated a sole issue for determination: “Whether from the pleadings and facts presented so far, the applicant herein has made out a prima facie case to warrant an order for interlocutory injunction pending the determination of the substantive case”. In arguing this sole issue, counsel stated that it is now trite law that before a court may grant an interlocutory injunction, the applicant must establish a prima facie case for the preservation or protection of a claimed legal right. An applicant does not need to make a complete case to be entitled to the relief. All the applicant needs to do is to establish a prima facie case. This is done when a case requiring an explanation from the other side has been made out. See Ladunmi vs. Kukoyi (1972) 3 SC P. 33. From the nature of the originating summons, accompanying affidavit, written address and affidavit accompanying this application, the applicant has raised serious triable issues in this matter. In paragraphs 6, 7, 11 and 13, the applicant has shown that its members are immediately likely to be retired from service pursuant to the illegal government policy of computing the years of study leave without pay in the years of service. Also at paragraph 3.01 of the written address of the originating summons, the applicant has argued that retiring any teacher who has not attained the age of sixty (60) years of age because such a person has served for 35 years is of doubtful validity because it is not statutorily covered. See the case of Duru vs. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ 43. It is the submission of counsel that the overriding principle that should guide the court in granting or refusing to grant an injunction is the interest of justice. If it is found to be in the interest of justice, then it should be granted. See Nitel Plc vs. I.C.I.C. Directory Publishers Ltd. (2009) 16 NWLR (Pt. 1167) Pg. 356 @ 384 D-E. This is a matter affecting the entire teachers in Imo State; the law which has provided how a teacher should be retired is being violated by the defendants to impose a policy without recourse to law. An interlocutory order that parties should maintain status-quo pending the hearing is granted by the court not as a matter of course but in exercise of discretion judiciously and judicially based on the circumstances of the case at hand would, be a proper exercise of discretion. See Soludo vs. Osigbo (2009) 18 NWLR (Pt. 1173) P. 290 @ 298 E. F. The applicant has made out a serious issue of law that is triable and has made out a prima facie case to warrant the grant of an injunction pending the determination of the substantive suit, its legal rights being threatened. Counsel urged the court to grant this application. The 1st defendant’s filed a 16 paragraph counter affidavit deposed to by Nicholas Osuji in opposition to the motion for interlocutory injunction. In the accompanying written address, counsel submitted that two issues call for determination to wit: (a) Whether the application is competent. (b) Whether the claimant/applicant has satisfied all the requirements in law for granting of this application. In arguing the first issue, counsel stated that the law is that injunction is not a remedy for a completed act. In other words, a court of law lacks the competence to entertain an application for interlocutory injunction where the act sought to be restrained has been completed. The court in Okafor vs. Onwe & Anor (2003) FWLR (Pt. 137) Pg. 1155, ratio 2 re-affirmed this principle in the following manner: The purpose of interlocutory injunction is to preserve the res pending the determination of the suit. It is not a remedy for an act which has already been carried out. Therefore, if the res is destroyed or is no longer in existence at the time the application is made, a trial judge will be in a helpless situation. Applying the above principle in the instant case, paragraphs 10 and 12 of the affidavit in support of the present application clearly show that the 1st defendant/respondent had retired its staff before the commencement of this action. Also paragraphs 4, 5, 8 and 11 of the counter affidavit of the 1st defendant corroborated the above evidence. From the evidence above, the act, that is retiring or continuing to retire teachers affected by this suit, which the applicant is urging the court to restrain the defendants from doing had been completed before the commencement of this action. Therefore, the remedy of interlocutory injunction is not the appropriate remedy. It is submitted by counsel that the application is incompetent as the Court lacks the jurisdiction in law to restrain a completed act. Again, the law is that the court of law is required to restrain from delving into the substantive matter at the interlocutory stage. Thus, the court of law is required to refuse to entertain any interlocutory application that may compel it into determining the substantive issues at the interlocutory stage. See Dantata vs. Consolidated Resources Ltd (2005) All FWLR (Pt. 280) pg. 1474, ratio 5. In the instant matter, the case of the applicant in the substantive suit is that the defendants computed period of study leave without pay as part of years of service in computing years of service for retirement of its member contrary to the law. Therefore, they pleaded documents to substantiate their case. In the present application, the applicant exhibited those documents pleaded which constitute the cause of action, the meaning then is that the court must consider those documents at this preliminary stage before arising whether or not to grant the application. Meanwhile the said documents are documents the applicant is asking the court to set aside in the substantive case. It then follows that the court in determining the present application, must delve into the substantive matter. Therefore the present application is grossly incompetent. Counsel submitted that the law is that in an application for interlocutory injunction, the applicant must prove amongst others the following before the Court can grant the application to wit: a. That the balance of convenience is in his favour. b. That damages cannot be adequate to compensate him. See Nathaniel Adedambe Babalola Kotoye vs. Central Bank of Nigeria & 7 Ors. (1989) ANLR Pg. 76. The question counsel opined is fundamental is; who will stand to lose more if the status quo ante is restored and maintained till final determination of the suit? Whoever will stand to lose more than the other has the balance of convenience in his favour. See Obeya Memorial Hospital & Anor vs. AG Federation Anor (2004) All FWLR (Pt. 232) 1580 at 1606. In the instant case, the claimant/applicant never mentioned this requirement in her application let alone arguing on same. There is no paragraph in the affidavit that states that balance of convenience is in favour of the claimant/applicant let alone substantiating same; the same applies to the written address of the counsel. Thus, the claimant’s failure to discuss or prove this requirement is simply because the balance of convenience is not in her favour. In the instant case, if this application is granted, the 1st and 2nd defendants/respondents will lose more. This is so because it will disrupt the government policy on retirement which has been in force since 2008 to the knowledge of the claimant/applicant. This disruption will greatly affect the system. This is owing to the fact, the difficult bureaucratic procedure of developing new retirement policy until the final determination of the suit. Again, granting this application will create a vacuum on the retirement procedures as the government will be left with no policy or principle that will guide her in retirement exercise. Furthermore, if granted, this application will have adverse effect on the state and its citizen as regards to the government policy on retirement of appropriate staff to enable the younger ones to be employed to replace the retired once. If this is not controlled, the 1st and 2nd defendants/respondents will be failing in their sacred duty to the society of providing work for the youths and deserved members of the state. Counsel submitted that damages is more than enough to compensate the claimant/applicant if the court refuses this application and the claimant/applicant succeeds at the end. This is so because if the judgment of the Court at the end goes in favour of the claimant/applicant, the court will order the defendants/respondents to pay the affected teachers all their unpaid salaries, allowances and other entitlements like promotion. By this they will be settled because, assuming they are still in the employment of the defendants/respondents until the year they said they will be retired, it is still unpaid salaries, allowances and entitlement they will get and nothing more. More so, the law is that courts of law are enjoined not to grant any prayer that is vague and uncertain. See Joe Golday Co. Ltd vs. C.D.B Plc (2003) FWLR (Pt. 153) Pg. 376 at 379 Ratio 3. In the instant matter, the claimant/applicant’s prayer for an order of court restraining the defendants from retiring or continuing to retire teachers affected by this suit pending the determination of the substantive suit is uncertain as to the particulars of the individuals to assist the court make a direction and positive order in their favour. There is no place in the affidavit in support of the application and originating process where such information was given. The irresistible conclusion is that the relief in the present application is vague, uncertain and speculative and the court cannot grant such application. In conclusion, counsel urged the Court to dismiss the application for lacking merit with cost of N200,000.00 (Two Hundred Thousand Naira) only. The claimant/applicant filed a 6 paragraph further affidavit deposed to by Cyril Chukwuma Okoroafor in support of motion the Claimant’s motion for interlocutory injunction. In the accompanying written address, counsel contended that the parties having submitted themselves to this court, the status quo ante should be maintained. The 1st defendant has continued to retire the members of the defendant, despite the order of the court by intentionally stopping the salaries of teachers affected by this suit without giving them letters of retirement. This method was adopted after the orders of court made on 30/4/2014 were served on it to the effect that the status quo should be maintained. The stoppage of salaries is an indirect way of continued wrongful retirement of the members of the claimant while this suit is still pending. It is therefore pertinent, that an order of injunction be made. Counsel sought the permission of the court to further rely on his written address made on 19th March, 2014 in support of the application for interlocutory injunction. By a Notice of Preliminary Objection filed on 23rd September, 2014, brought pursuant to Section 2(a) of the Public Officers Protection Act, Vol. 14 Cap. P41 Laws of the Federation of Nigeria 2004, Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended and under the inherent jurisdiction of the court, the 2nd - 4th defendants’ counsel prayed for an order of this court dismissing suit No. NICN/OW/28/2014. The grounds upon which application is brought are: 1. The suit is statute barred and therefore incompetent based on Section 2(a) of the Public Officers Protection Act, Vol. 14 Cap. P41 Laws of the Federation of Nigeria 2004. 2. The claimant lacks the requisite locus standi to maintain this action which touches on contract of service. 3. The suit is speculative. 4. The suit is statute barred. In the supporting written address, counsel raised 4 issues for determination, thus: 1. Whether the suit is statue barred and therefore incompetent having regard to Section 2(a) Public Officers Protection Act, Vol. 14 Cap. P41 Laws of the Federation of Nigeria 2004. 2. Whether the claimant lacks the requisite locus standi to maintain this action which touches on contract of service. 3. Whether the suit is speculative. 4. Whether the suit is statute barred. In arguing issue one, counsel submitted that the proper stage at which a defendant may raise a preliminary objection to the claimant’s suit should either be at the beginning or early stage of the proceeding. See Eleburuike vs. Tawa (2011) All FWLR (Pt. 591) 1473 at 1486 – 1487 paras. H – A. The defendants in accordance with the decision in the above authority have raised their preliminary objection at the early stage of this proceeding. A court is competent to exercise jurisdiction only where the following conditions are satisfied: 1. Where the court is properly constituted 2. Where the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and 3. Where the case before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu vs. Nkemdilim (1962) 1 All NLR 587. It is counsel’s contention that the suit brought by the claimant falls within conditions 2 and 3. One of the features in the case which prevents the court from exercising jurisdiction is that the action was not commenced against the 2nd - 4th defendants being public officers, within three months as prescribed by the Public Officers’ Protection Act, Vol. 14 Cap. P41 Laws of the Federation of Nigerian 2004, which features rob the court of jurisdiction to hear this suit. Section 2(a) of the Public Officers Protection Act provides: “Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Act or Law or of any public duty or authority, Or in respect 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 continuance of damage or injury, within three months next after the ceasing thereof”. The alleged act which led to the commencement of this suit occurred between 2008 and 2009 as can be deciphered from the originating summons, the affidavits and exhibits. This suit was commenced on 19th March, 2014. The case having been instituted five years after the act, not commencing the action within the period provided by the statute above, renders the suit statute barred and consequently incompetent and robs the court of jurisdiction to entertain same. It is submitted that the word “public officer” has been held by the Supreme Court to include artificial persons such as corporate sole, company or anybody of persons corporate or incorporate, public officer, public bodies etc., Ibrahim vs. JSC, Kaduna State (1998) 64 LRCN 5044 at 5068 para. B. Relying on the above authority and the definition of public officer in section 18(1) of the Interpretation Act, 2004 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; it is submitted that the defendants in this case are public officers. Further, where a statute prescribes a specific period for the filing of an action in a court of law, any action filed after the expiration of that period is null and void. The period of limitation starts to run from the very date the cause of action accrues. This was the decision of the court in Chukwu vs. Amadi (2009) All FWLR 1189 at 1203 paras C – D. What determines whether or not cause of action is statute barred, is the writ of summons or statement of claim alluding to the date the cause of action accrued and the date of filling of the suit, in this case, the originating summons and affidavit shows that the action is statute barred. Counsel urged the court to give effect to the provisions of section 2(a) of the Public Officers’ Protection Act and hold that the suit of claimant is statute barred and decline jurisdiction in this case. In arguing issue two, counsel explained that Locus standi has been defined as the right or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. Per Irikefe JSC in Attorney General, Kaduna State vs. Hassan (1985) 2 NWLR 453 at 496. He submitted that the claimant has no competence to sue the defendants challenging the validity of Exhibits “A, B and C”, none of which is certified and none of which was made by the employers of teachers in the state. The teachers who are employees of the 1st defendant have contract of service individually with the 1st defendant and are bound by the terms. Amaonwu’s case supra. It is the teacher who is aggrieved that can complain that he has been wrongly retired from service. It is that teacher that has the locus to bring the action. No one else can bring that action on behalf of the teacher. The claimant did not sign contract of service with the defendants in respect of the teachers in Imo State. The claimant has not brought any document before this court to ascertain his claim and enable the claimant have the locus to pursue a public right, where same exists. It is submitted that there is no public right to pursue, rather a contract of service which is enforceable as between the parties. Counsel argued issues 3 and 4 together. He contended that the suit as currently constituted is speculative. It is trite that the courts do not grant reliefs based on speculation. The claimant is speculating on the issue of retirement of teachers and the basis of same. Counsel urged the court not to grant the reliefs. Furthermore, a cause of action is the factual statement which if substantiated, entitles the claimant to a remedy against the defendants; in the instant case, no matter how the cause of action is substantiated it will not entitle the claimant to a remedy against the 2nd – 4th defendants. See the case of Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) Pg. 302 para. A. The claimant has not brought before this court the conditions of service/contract of service of the teachers whose rights is purportedly being fought for. The document referred to above is part of what needs to be placed before the court in establishing the cause of action of the claimant. Relying on the above, counsel urged the court to hold that there is no reasonable cause of action against the 2nd – 5th defendants and resolve the issues formulated by the defendants in their favour and dismiss this suit on the grounds that: 1. The suit is statute barred and therefore incompetent having regard to section 2(a) Public Officers Protection Act Vol. 14 Cap. P41 Laws of the Federation of Nigeria 2004. 2. The 3rd defendant is not a juristic person and 3. There is no reasonable cause of action against the 2nd – 5th defendants. In the claimant’s written address in opposition to the 2nd- 4thdefendants’ preliminary objection filed the 29th day of September, 2014, the claimant adopted the issues formulated by the 2nd – 4th defendants and canvassed his submissions which are a repetition of his arguments in his written address in support of further affidavit to the originating summons, which do not need to be repeated again. However, he stressed that the action of the claimant in this suit is not for an order for damages or reinstatement of the members of the claimant, but for the interpretation of a statute as it affects the rights of the members of the claimant. In conclusion, he urged the court to dismiss the preliminary objection for being unmeritorious and premature. The 2nd - 4th defendants filed a reply on points of law on the 30th September, 2014, and argued that the 2nd - 4th defendants did not act unlawfully or ultra-vires their statutory functions. Letter No. MOE/COM/S.7/90 of 6th June, 2008 (which we insist is part of the unpublished official records relating to the affairs of Imo State; its inclusion did not comply with the provisions of the Evidence Act.) and the Imo State Executive Council decision of 23rd June, 2008 have legal justification. Assuming that letter No. MOE/COM/S.7/90 of 6th June, 2008 is properly before this court. It was made by the Commissioner for Education and the law establishing the 1st defendant makes the 2nd defendant a member of the Board and also gives the 2nd defendant supervisory powers. The 2nd defendant who is the commissioner for education did not act outside the scope of his duties. The conclusion of the letter is to the effect that the circular should not have retrospective effect. Counsel submitted that the defendants as public officers did not act outside their officially assigned responsibilities or unlawfully or without legal justification. Counsel urged the court to hold that the Public Officers Protection Act covers the defendants. There is a presumption of regularity of official acts. A presumption of law to the effect that the formal requisites for the validity of officials acts were complied with so long as they are shown to have been done in a manner substantially regular. The onus of proving the contrary is on whom alleges such contrary position. See Shitta-Bey vs. AG of the Federation & Ors. (1998) 61 LRCN 4328. Claimant, who alleged that the 2nd - 4th defendants are retiring teachers, did not place any document before this court to substantiate the claim. Ekeogu vs. Aliri’s case cited by the claimant is not applicable. On the submission that the act of the defendants complained about is a continuing act. It is the submission of counsel that the claimant has not placed anything before the court to substantiate same. It is therefore speculative; the case of Uzoukwu vs. Egonu 11 (1991) 6 NWLR (Pt. 200) 708 at 759 is not applicable in the instant case. Also, statutes of limitation apply to labour matters. See John Egbele vs. The Post Master General (NIPOST) (2009) LPELR 8870 CA. The exception created is that it will not apply to specific contracts. The claimant has not placed any document before this court depicting any specific contract. On the submission on locus standi, it is counsel’s submission that the claimant does not have the locus to maintain this action that deals on contract of employment. It is the service agreement or the conditions of service that regulates the relationship between employees and employers. See College of Medicine of the University of Lagos vs. Adegbite (1973) 5 SC 149. The Public Service Rules governs the contract of service between a particular civil servant and his employer. Amaonwu vs. Ahaotu (1998) 9 NWLR (Pt. 566) 454 ratio 6. There is nothing in the affidavit in support of the originating summons that gives the claimant the locus to challenge this employer/employee relationship. It is the teacher who was given approval for study leave without pay and is subsequently retired when he believes that he is not due for retirement that can challenge the action of his employer, not a union. Thus, the claimant does not have the competence and the requisite standing to bring this action. Relying on the above submissions, counsel urged the Court to dismiss this suit. It need be stated that the 1st defendant filed a written address on the 27th day of November 2014 in support of the 2nd - 4th defendants’ preliminary objection. The claimant also filed a response to the address. The said address is substantially the same with the 2nd -4th defendants address already filed; for the sake of brevity, they do not need to be repeated here. An additional submission made by 1st defendant’s counsel is that if the issue in preliminary objection is purely on law, the applicant needs no affidavit including “Counter Affidavit” to accompany same. See Attorney General of the Federation vs. All Nigeria Peoples Party & Ors (2004), All FWLR (Pt. 190) pg. 1458 at p. 1460 ratio 1 p. 1473 para. D-F. In the instant matter, the issues raised by 2nd – 4th defendants in their preliminary objection are issues of law to wit action being statute barred. Therefore, it needs no affidavit. Also, counsel took the 2nd-4th defendants’ counsel argument that limitation laws apply to labour matters. The exception is that pension or gratuity or salary is not affected by limitation laws. See the Court of Appeal’s decision in Ademola Popoola & 30 Ors vs. Attorney General of Kwara State, & 3 Ors. (2011) All FWLR (Pt. 604) pg. 175, at p. 180 ratio 7, pp. 190 – 191, para. G – A. Owing to the fact that the issue in this action is not pension, or gratuity or salary, the Public Officers Protection Act applies. In the claimant’s response to the 1st defendant’s address in support of the preliminary objection, counsel submitted that, the 1st defendant having not obtained leave of the court to file its written address out of time has infringed the rule of this court and this act renders its written address incompetent and out to be discountenanced. See Magaji vs. Balat (2004) 8 NWLR (Pt 876) P. 449 @ 479 C-F; Nwabueze vs. Okoye (1988) 4 NWLR (Pt. 91) P. 664 and Ezeobi vs. Nzeka (1989) 1 NWLR (Pt. 98) P. 478. See also Order 11 Rules 2 and 4 of the Rules of this Court. Assuming, the court permits the 1st defendant’s address process to be part of the processes filed in this matter, counsel argued that the defendants’ argument that they did not act outside the scope of its duties, is matter of fact and not that of law. This can only be argued during the hearing of this suit. Furthermore, the preliminary objection in the instant case is an attack on facts; a counter affidavit is needed to controvert such facts. It is also settled law that where the grounds and particulars of objection are not elaborately stated on the face of the preliminary objection, the court of law will consider the facts contained in the claim as proved. See Amadi v. NNPC (2000) 10 NWLR (Pt. 674) P. 76 @ 97 B-C (SC). The 2nd - 4th defendants merely stated the issues of their objection without giving reasonable particulars of same. This assertion of claimant’s counsel is in agreement with paragraph 4 lines 15-20 of the 1st defendant’s address. By a motion on notice filed on the 22nd day of April 2014 brought pursuant to Order 11 of the National Industrial Courts Rules 2007, counsel for the 1st defendant/applicant prayed for an order of court to dismiss suit or in alternative strike out same for lack of jurisdiction of court to determine the suit; based on following grounds. 1. The suit is statute barred for being instituted outside statutory period of 3 months allowable by limitation Act. Imo State Law No 3 of 1989. 2. Non service of pre-action notice on 1st defendant. 3. Claimant lacks locus standi/legal capacity to institute the action. 4. Lack of cause of action 5. Court lacks jurisdiction to interfere, question, the action decision or administrative of powers of Imo State Executive Council and such further order or orders as court may deem fit to make The 20-paragraph affidavit in support of the motion was deposed to by Nicholas Osuji. In the accompanying address, five issues for determination were raised as follows: 1. Whether this suit is not statute barred having exceeded the 3 months limitation period allowed by S. 2a of the Public Officers Protection Act LFN 1990 and Imo State Law No. 3 of 1989 which created the 1st defendant. 2. Whether this suit is not incompetent for non-compliance with condition precedent by service of pre-action notice on 1st defendant as required by Imo State No. 3 of 1989. 3. Whether the claimant has locus standi/legal capacity to bring this suit having no direct interest to protect or defend. 4. Whether this court has jurisdiction to interfere, with and/or preclude Imo Executive Council Executive Administrative Power and/or Act. 5. Whether the suit is not speculative. The arguments of counsel in support of the above stated issues are exactly the same with the arguments in his address accompanying the counter affidavit filed in opposition to the originating summons and for brevity’s sake need not be reproduced here. A counter affidavit of 13 paragraphs was deposed to by comrade (Dr.) Reginald Amanze Anyadike in opposition to the by 1st defendant’s motion for dismissal. In the supporting written address, counsel adopted the 1st defendant’s issues for his argument. Counsel’s argument are the same with those in his written address in support of his further affidavit to the originating summons, which is unnecessary to repeat. In addition, counsel contended that paragraphs 3, 6, 8, 9, 11, 13, 14, 15, 16, 17, 18 and 19 of the affidavit in support of this application made by Nicholas Osuji offend Section 115(1)&(2) of the Evidence Act 2011 (as amended), Law of the Federal Republic of Nigeria, 2004 and ought to be expunged and struck out. It is settled that an affidavit shall not contain any extraneous matter by way of objection, or prayer or legal argument or conclusion. See Section 115(1)&(2) of the Evidence Act 2011 (as amended). It does not matter that a deponent to an affidavit that offends Section 115(1)&(2) of the Evidence Act is a legal practitioner or a judge or a law officer or was informed by his counsel. See Ajuebo vs. A-G Edo State (2001) FWLR (Pt. 52) P. 2138 @ 2150 para C. In conclusion, counsel submitted that this application is unmeritorious and urged the court to dismiss it. The 1st defendant filed a 15 paragraph further affidavit deposed to by Nicholas Osuji in reply to the claimant’s counter affidavit. In the accompanying reply on points of law, the 1st defendant’s counsel adopted all the submission and authorities in the main address in support of motion on Notice and prayed the court to discountenance the arguments and submissions of the claimant as they are misconception of the application and urged the court to grant the application with cost. Counsel argued that there is nothing evidencing bad faith, ultra vires, unlawful act/omission on the part of the 1st defendant in relation with its employees/members, thus section 2a of the Public Officers Protection Act 2004 as reversed applies in the matter. Also, the cases of Hassan vs. Aliyu; AG Bendel State vs. Aideyan (supra) apply in favour of the 1st defendant. The Claimant has the onus to prove that 1st defendant acted unlawfully ultra vires, or without legal justification, as he who asserts proves. The 1st defendant is creation of law with statutory power to make policies and issue circular in course of its administration functions as it did all times and there is nothing in this substantive suit to show it has acted vires, mala fide, or unlawfully. It is the contention of counsel that the case of Nwankwo vs. Adewunmi was misconceived by claimant counsel, as it is trite law that where a statute creates a right and prescribes a specific procedure or time for its enforcement, the party claiming such a right is duty bound to observe strictly the prescribed procedure. See FBN Plc vs. Ndoma (supra). Furthermore, the case of Ekeogu vs. Aliri was wrongly applied by claimant counsel. It is settled law that facts raised in substantive suit which formed the issues for final determination of suit should not be decided at the stage of interlocutory preliminary objection which is extrinsic to the substantive suit. It is not true that counsel for 1st defendant accepted all the averments in the originating summons. It is trite law that submission of counsel cannot take place of evidence of party. Counsel urged the court to determine the motion for dismissal without delving into substantive suit at this stage as it would amount to denial of fair hearing on part of 1st defendant. Counsel submitted that1st defendant has no contractual relationship with the claimant but with its employees only 1st defendant employees are not employed as Union members. Assuming that the act of 1st defendant is continuing, it pre-supposes that no cause of action has arisen, and the substantive suit is speculative and premature at this stage. Counsel urged the court to hold that the case of Uzoukwu vs. Egonu II was misconceived by claimant’s counsel. More so, affidavit evidence that offends Section 115 of the Evidence Act include paragraphs 3, 4, 10 (a-h). Counsel urged the court to strike them out. Again, it is settled law that where affidavit evidence substantially complies with the provisions of Section 115 of the Evidence Act, the fact that there are some defects does not invalidate the affidavit evidence. Counsel urged the court to so hold in favour of 1st defendant, and grant the application and dismiss this suit with punitive cost. Having reviewed the written addresses of the learned counsels to the parties in substantive suit and in all the applications involved in this action, I shall now proceed with the resolution of the issues brought before this court. To start with, there were some applications which were taken together with the substantive suit. I allowed all the application to be taken together with the Originating Summons with the view to determine them at the point of judgment. Two of these applications, which were filed by the defendants, challenged the competence of the suit. This is in addition to raising objections to the competence of the suit in the defendants’ counter affidavits to the Originating summons. From the combined particulars of the defendants objections, the defendants want the claimant’s suit dismissed for the reasons that: i. The claimant lacks locus standi to institute the suit. ii. The claimant did not serve a pre-action notice on the 1st defendant before instituting the action. iii. The suit is statute barred. iv. This court lacks jurisdiction to interfere, question, the action decision or administrative of powers of Imo State Executive Council. v. The suit is speculative as there is no cause of action. The effect of all the points of objection goes to the jurisdiction of this court to determine the suit. It is trite that whenever a challenge is made to the competence or jurisdiction of the court to entertain a matter, the court is expected to deal with the issue first 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. It therefore becomes necessary that the objections be considered first and determined before I can go into the substantive suit, if it will still be necessary to do so. I shall first consider whether plaintiff has locus standi to bring the action in the first place. This is because if the claimant does not have the locus standi to bring this action, every other issue in the case will merely be academic. Therefore, the issue of locus standi is a preliminary question that must be first settled before going into other issues. In paragraphs 13 and 14 of the 1st defendant’s counter affidavit to originating summons, it is averred that the claimant lacks locus standi to bring the action because it is a mere Trade Union which do not have any special or direct interest to protect or defend through this suit. The 1st defendant subsequently filed a motion where it sought this suit to be dismissed on the ground, among others, that the claimant lacks locus standi to institute the action. It is averred in paragraphs 6, 7, 14 and 18 of the affidavit in support of the motion that the claimant is a mere trade union and lacks the legal competence to institute this suit for not having direct interest to protect or defend. It is further deposed that the policy in letter Ref. No. MOE/COM/S.7/90 of 6th June, 2008 affects only the teachers employed by Imo State Government but the claimant has no particular interest to protect in this suit. On the part of the 2nd to 4th defendants, they had averred in paragraph 24 of their counter affidavit to the originating summons that the claimant lacks the locus standi to maintain this action which touches on contract of service. According to the 2nd to 4th defendant, the contract of service is between the teachers and the 1st defendant. Also, in ground 2 of their Preliminary Objection, the 2nd to 4th defendants objected to the competence of the suit on the ground that the claimant lacks the requisite locus standi to maintain this action. In reaction to the defendants’ contention that it lacks locus standi, the claimant had maintained, both in its further affidavit in support of the originating summons and its counter affidavit to the 1st defendant’s motion, that it has locus standi. It is the claimant’s position that being a registered body under the Trade Unions Act, its purpose is to oversee and protect the interest and welfare of its members which membership include the teachers employed by the 1st defendant. For that reason, its interest in this suit is to protect teachers in the employ of Imo State government. In legal parlance, locus standi, which is synonymous with “standing” or “title to sue”, means the right of a party to appear and be heard on the question before the court. The term is usually used in connection with the plaintiff who has instituted an action and the question usually is whether in law, he can commence or prosecute the suit he has commenced. See EAST HORIZON GAS CO. LTD vs. EFIOK (2012) All FWLR (Pt. 605) 386 at 395; ADETONA vs. ZENITH INTERNATIONAL BANK PLC (2012) All FWLR (Pt. 611) 1443 at 1465. The concept of locus standi is founded on two main factors. They are the subject matter of the suit and sufficient interest to be shown by the plaintiff on the subject matter. The law is that there must be the correlation of the plaintiff’s interest in the subject matter of dispute touching him as a party and thus giving him the right of complaint and the right to defend his civil right and obligations against another person, government or authority. METILELU vs. OLOWO-OPEJO (2006) All FWLR (Pt. 337) 418 at 429. Thus, once a party’s standing to sue is challenged, such a party must show that he has sufficient interest in the performance of the duty he seeks to enforce or that his interest is likely to be adversely affected. In order words, where a party does not have sufficient interest in the subject matter in a suit or in the outcome of the suit or if he has not suffered or does not stand to suffer any injury either by the enforcement, or threatened exercise of some power, authority or right, he is said not to have locus standi in the suit. The claimant has contended that it has locus standi and relied on the Trade Unions Act as its authority to bring this action. It is trite however that the locus standi of a plaintiff is disclosed in the writ of summons and statement of claim. In deciding whether a plaintiff has locus standi, the judge is expected to examine the statement of claim or the affidavit in support of the claim to see whether it discloses a cause of action vested in the plaintiff. The averments in the statement of claim must disclose the rights and obligations or interest of the plaintiff which has been violated. See METILELU vs. OLOWO-OPEJO (SUPRA) at 430. In ADETONA vs. ZENITH INTERNATIONAL BANK (SUPRA) at 1454, the Supreme Court stated that as a general principle, the averment in the statement of claim and the writ of summons are mainly the materials required at this stage to ascertain the locus standi of a plaintiff, that is to say, they are the materials relevant in the consideration of the question of locus standi. Also, in FIRST BANK OF NIGERIA PLC vs. NERIKO ENTERPRISE LTD 2002 FWLR Pt. 95 335 at 344 held thus: “In an application to determine whether a plaintiff has locus standi or not, the judge is bound to confine himself within the four walls of the writ of summons and the statement of claim before him and no more, as the issue of locus standi is a matter of law. Even, if the statement of defence has been filed at the time the objection was made, the judge would still be bound to confine himself to the statement of claim of the plaintiff to decide whether he has a locus standi” Therefore, whether or not a party has the locus to institute and maintain an action against another would depend on what interest or injury the litigating party had manifested in the writ of summons and statement of claim. In the instant action commenced by Originating Summons, the processes to be looked at to determine whether the claimant has locus standi to institute this action are the originating summons and the affidavit in support. It is from these processes this court will find whether or not the claimant’s interest in the subject matter or how the matter in controversy directly affects it, is disclosed. In the originating summons, the claimant sought the determination of the following questions: 1. Whether the period a teacher is on study leave without pay is part of the service years of the affected teacher under the pensions Act. 2. Whether a teacher who without the inclusion of the period of study leave without pay has not served in the Public Service of Imo State for thirty five (35) years, and has not attained the age of sixty years is due for retirement from the public Service of Imo state. 3. Whether the letter from the Imo State Commissioner for Education reference No: MOE/COM/S.7/90 of 6th June, 2008 to the Governor of Imo State upon which the present policy of the government of Imo State on retirement of teachers is based is not a misrepresentation of the law, misconceived, and an unfair treatment of the teachers who went on study leave without pay. 4. Whether the decision of the Imo State Executive Council of 23rd June, 2008 conveyed in a letter ref: GH/PL/S.2/XXXV/125 and signed by the Principal Secretary to the 3rd defendant and dated same 23/6/2008 is not inconsistent with the Pensions Act. The claimant then sought the following reliefs upon the determination of the questions: a. Declaration that the period of study leave without pay spent by a teacher in the service of the 1st defendant is not part of such a teacher’s years of service. b. A declaration that the years of study leave without pay is not part of the 35 years of service now applied by the defendant in the retirement of teachers and ought not be applied in the computation of the years of service for the retirement of teachers by the 1st defendant. c. An order of court setting aside the letter Ref No: MOE/COM/S.7/90 of 6th June, 2008 from the commissioner for education to the Governor of Imo State as being a misrepresentation of the law, misconceived, and an unfair treatment of the teachers who went on study leave without pay. d. An order setting aside the Executive Council decision of 23rd June, 2008 conveyed to the 2nd defendant by the letter ref: GH/PL/S.2/XXXV/125 dated 23rd June, 2008 and signed by the Principal Secretary to the 3rd defendant. e. An injunction restraining the 1st defendant from including the years spent by teachers on study leave without pay as part of the computation of thirty five years of service for the retirement of teachers. The facts upon which these questions and reliefs are to be considered are contained in the Affidavit in support of the Originating Summons, deposed to by one Comrade (Dr.) Reginald Amanze Anyadike, who introduced himself as the Secretary of the claimant’s Imo State Wing. The essential averments in the affidavit in respect of the questions and reliefs sought are as stated in paragraphs 3 to 13 thereof. It goes thus- “3. The claimant is incorporated as a Labour Union under the Trade Union Act for the purpose of overseeing and protecting the interest and welfare of teachers employed by the 1st defendant in Imo State as in other States of Nigeria. 4. The claimant operates and carries out its objectives through the state wing of the respective states in the name of the claimant. 5. The 1st – 3rd defendants in this suit are statutorily involved in the governance of Imo State, and the implementation of the policy subject matter of this, the 4th defendant is the chief law officer of Imo state and a statutory defendant. 6. The Imo State government is carrying out a policy of retirement of our members, the Primary and Secondary School teachers, by which the Government; while not recognizing the years teachers spent on study leave without pay in the computation of qualifying service years for the purpose of paying retirement benefits or attaining promotion, applies such years in the computation of number years of service. 7. As a result, many of our members have been, and are imminently likely to be retired from service pursuant to the policy of government deposed above, consequent upon which the claimant seeks the interpretation of relevant provisions of the pensions Act and the resolution of issues arising there from in order to protect our affected members from punishment by retirement of our members who have neither worked for 35 years nor attained 60 years of age. 8. To the best of my knowledge, the origin of this misguided policy is a letter Ref No: MOE/COM/S.7/90 of 6th June, 2008 from the 2nd defendant to the 3rd defendant a copy of which letter is hereto exhibited an marked Exhibit “A”. 9. By Exhibit “A” the 2nd defendant gave the 3rd defendant reasons why the policy of not applying the years of study leave without pay as part of the years of the service of a teacher should be revered one of which is that the money that would be paid to teacher if allowed to serve his/her full term would be better used to employ a greater number of new teachers. The 2nd defendant further falsely stated that the returnee teachers had their years of study leave without pay condoned consequent upon which such a teacher gained promotion and salary increment. 10. To the best of my knowledge, the years of study leave without pay are not condoned for the determination of seniority and promotion, and have never been so condoned. 11. Following Exhibit ‘A’ the Imo State Executive Council at a meeting on 23rd July, 2008 suspended the implementation of the circular which had reversed the regard of period of study leave without pay as part of the years of service, that is as a break in the years of service. The Executive Council decision was conveyed to the 2nd defendant via a letter dated 23rd June,, 2008 which letter is hereto exhibited and marked Exhibit ‘B’. 12. Consequent upon Exhibit ‘B’ the Head of Service of Imo State issued circular No: HIS/EST/EVG.124/T.5/9 of 27th January, 2009 a copy of which is hereto exhibited and marked Exhibit ‘C’. 13. Since the making of Exhibit ‘B’ and ‘C’, the 1st defendant has continued to regard the years of study leave without pay as part of the years of service instead of a break in such service.” From these facts, the claimant’s case is that it is a Labour Union whose purpose is to oversee and protect the interest and welfare of teachers. The teachers in the employ of the 1st defendant are its members. The defendants have made a policy of not recognizing the years teachers spent on study leave without pay in the computation of teachers qualifying service years for the purpose of paying retirement benefits and the defendants are now out retiring some primary and Secondary School teachers based on the policy. The claimant stated that many of its members have been retired and some are imminently likely to be retired from service pursuant to the policy of the defendants. The claimant stated that it brought this suit because of the said policy of the defendants to seek the interpretation of relevant provisions of the Pensions Act in order to protect its affected members. The facts are clear that the claimant union is not personally affected by the policy of the defendants. It is only a labour union and not a teacher in the employ of the 1st defendant. Therefore, the said policy of the defendants does not directly affect the claimant. The claimant has not also shown how its interest has been affected by the policy complained about. By the deposition in Paragraph 7 of the claimant’s affidavit in support of the Originating Summons, it is obvious it brought this suit on behalf of the teachers in the employ of the 1st defendants some of whom, the claimant stated, have been retired because of the policy and some are likely to be retired. Besides the fact that the affected teachers are its members, the claimant has not shown that its interest as a labour union has been affected by the said policy of the defendants or that the policy will occasion an injury to the claimant union. From the facts, the cause of action is vested in those teachers who have been directly affected or likely to be affected by the policy and not the claimant. Strangely however, none of such affected teachers, who the claimant said are its members, is a party to this suit. All the proper parties who could invoke the judicial powers of this court are not before the court. The claimant sued alone without the affected teachers whose rights and interest were allegedly affected. In an action such as this, all parties interested must be made parties in order to give the claimant locus standi. I find that the claimant does not have the requisite standing to commence this action before this court. Since the claimant does not have a right of action in the first place, the other grounds of objection or the substantive matter itself do not arise or deserve consideration. This is because it is when the claimant is the proper party to commence the action that the questions whether the suit is statute barred or whether pre-action notice was served or whether to go into the main case can be considered. The claimant not having the requisite locus standi to bring this action means that the suit ought not to have been commenced by the claimant at all. The claimant’s capacity to sue goes to the competence of the action itself. Therefore, since the locus standi of the claimant cannot be established or disclosed from his pleadings, the action is liable to be dismissed. Accordingly, the suit is hereby dismissed. No order as to cost. Ruling is entered accordingly Hon. Justice O. Y. Anuwe Judge