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GOVT OF ABIA IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Date: January 21, 2016 SUIT NO: NICN/OW/108/2014 Between Barr.Okechukwu Udensi Kanu ------ CLAIMANT/RESPONDENT AND 1. Government of Abia State 2. Abia State Civil Service Commission 3. Abia State Head of Service ------- DEFENDANTS/APPLICANTS 4. Auditor General of Abia State 5. Attorney General of Abia State Representation: Okechukwu Udensi Kanu appears in person as the Claimant/Respondent J. E. Ikedieze, Senior State Counsel, Abia State Ministry of Justice, for the Defendants/Applicants RULING/JUDGMENT This action was commenced by way of complaint on the 28th day of November 2014, seeking the following reliefs: 1. A Declaration that the Claimant’s employment with the Defendants has statutory flavour, and that the employment was for 35 years of the Claimant’s service or until the Claimant’s service or until the Claimant reaches 60 years (whichever is earlier). 2. A Declaration that the Defendants' Circular No. HAS/S.0074/II/91 of I" August, 2011 which sought to cut short the Claimant's employment is ultra vires, unlawful, null and void and of no effect whatsoever. 3. A Declaration that the Federal Public Service Circular No. HCSF/061/S.1/III/68 of August 26, 2009 applies to the Federal Public Service only; hence is neither binding nor has any effect whatsoever on the Public Service of Abia State. 4. A Declaration that as at 1/1/2012 when the Claimant was purportedly retired by the Defendants, the Claimant had worked for only 22 years and 7 months of his service years, thus remaining 12 years and 5 months of his service years. 5. A Declaration that the Claimant is entitled to be paid his full salaries and allowances for the said remaining 12 years and 5 months of his service years, computed on Salary Grade Level 17 step 9, as applicable to Law Directors in the Defendants’ Ministry of Justice since the Claimant left the service at the instance of the Defendants, but not based on any disciplinary measure. 6. A Declaration that the Claimant is entitled to 100% computation of his Gratuity as Law Director on Salary Grade Level 17 Step 9 amounting to N7,307,182.43 (Seven Million, Three Hundred and Seven Thousand, One Hundred and Eighty Two Thousand and Forty Three Kobo) only, instead of the pro rated calculation of same, based on the said 22 years and 7 months he had worked, amounting to N4,714,872.48 (Four Million, seven Hundred and Fourteen Thousand, Eight Hundred and Seventy Two Naira and Forty Eight Kobo) only. 7. A Declaration that the Claimant is also entitled to 100% computation of his Monthly Pension as Law Director on Salary Grade Level 17 Step 9 amounting to N253,820.70 (Two Hundred and Fifty Three Thousand, Eight Hundred and Twenty Naira) only per month, instead of the pro rated calculation based on the said 22 years and 7 months he had worked, amounting to N107,751.55 (One Hundred and Seven Thousand, Seven Hundred and Fifty One Naira and Fifty Five Kobo) only. 8. A Declaration that the Claimant is entitled to be paid his Severance Allowance of 300% of his annual salary for the premature termination of his career and service years and for loss of expectation amounting to N13,053,636.00 (Thirteen Million, Fifty Three Thousand, Six Hundred and Thirty Six Naira) only. 9. A Declaration that the tenure policy of the Defendants as directed and approved by the Governor of the 1st Defendant is nepotistic and aimed at displacing those in the Public Service of the State who comes from outside his community and replacing them with his kinsmen and women. 10. A Declaration that it is malicious, cruel high-handed, outrageous, oppressive, flagrant disregard of law and every principle of a civilized society for the Defendants to prematurely retire the Claimants with four months notice for no wrongful act or conduct of the Claimant regardless of the Claimant’s disability condition which elicited the special waiver for his appointment into the Civil Service and at the same time refuse to pay the Claimant his Severance Allowance, Gratuity and to compute the Claimant’s retirement benefits (pension and gratuity) based only on the number of years the Claimant had worked. 11. A Declaration that the Claimant is entitled to the award of Special Exemplary and Aggravated damages sequel to paragraph (8) above. 12. An Order to pay the Claimant the sum of N54,027,549 (Fifty Four Million, Twenty Seven Thousand, Five Hundred and Forty Nine Naira) only being the salaries and allowances of the Claimant for the remaining 12 years and 5 months of his remaining service years. 13. An Order to pay the Claimant the sum of N200,000,000.00 (Two Hundred Million Naira) only for loss of expectation of the Claimant in his chosen career, including the psychological torture which the Claimant has been subjected to as a result of the unlawful action of the Defendants. 14. An Order to pay the Claimant the sum of N7,307,182.43 (Seven Million, Three Hundred and Seven Thousand, One Hundred and Eighty Two Naira, Forty Three Kobo) only, being 100% computation of his gratuity based on salary Grade Level 17 Step 9 as a Law Director. 15. An Order to pay the Claimant the sum of N253,820.70 (Two Hundred and Fifty Three Thousand, Eight Hundred and Twenty Naira) monthly as pension being 100% computation of his Monthly Pensions based on 35 years of service and on salary Grade Level 17 Step 9 as a Law Director commencing from 1/1/2012 till date, less the sum of N106,672.99 (One Hundred and Six Thousand, Six Hundred and Seventy Two Naira and Ninety Kobo) only, being the Claimant’s current monthly pension. 16. An Order to pay the Claimant the sum of N500,000.00 (Five Hundred Thousand Naira) only as Special damages and Exemplary and Aggravated damages of N10,000,000.00 (Ten Million Naira) only. PARTICULARS OF SPECIAL DAMAGES: (a) Production and filing of Court processes - N200,000.00 (b) Transport to and from Court - N700,000.00 TOTAL - N900,000.00 17. An Order of Perpetual Injunction restraining the Defendants, their agents, privies, servants, workers, etc from stopping, withholding, disturbing, distorting or otherwise interfering with the payment of the Claimant’s Gratuity and Monthly Pension as claimed and entitled to in this suit. ALTERNATIVELY 18. (a) AN ORDER to reinstate the Claimant to his former position as Law Director on Salary Grade Level 17 Step 9 as at 1/1/2012 without prejudice to the Claimant’s seniority position in the Defendants’ Ministry of Justice as at that date; and (b) AN ORDER to pay the Claimant his full Salaries and Allowances from 1/1/2012 till the date of his reinstatement less the amount of pensions paid to him as at the date of such reinstatement. By a Notice of Preliminary Objection filed on the 15th day of July 2015 and brought pursuant to Order 11 rule 1(1) & (3) of the National Industrial Court rules, 2007 and under the court’s inherent jurisdiction; the Defendants/Applicants’ Counsel sought an order striking out or dismissing this suit for being incompetent and for want of jurisdiction of this Honourable Court to entertain the same. The ground for this application is that this suit is statute barred. This application was supported by an eight paragraph deposed to by Henry Nwokeukwu, a Higher Executive Officer (Litigation) of the Abia State Ministry of Justice. In the accompanying written address, counsel raised one issue for determination, which is: whether the suit is statute-barred? Counsel’s argument on this issue is that the Defendants in this suit were sued in their official capacities as public officials. The defendants come within the contemplation of section 2(a) of the Public Officers (Protection) Act, 2004 and/or section 2(a) of the Public Officers (Protection) Law of Abia State. See IBRAHIM vs. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 at 338 - 36E, 44; NWOGWUGWU vs. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2004) 6 NWLR (Pt. 1030) 237 at 275 PARAS. A - C. In the IBRAHIM’s case (supra) at Page 44, the Supreme Court per Iguh, JSC held that the words "public officer" or "any person" in public office as stipulated in Section 2(a) of the Public Officers (Protection) Law, 1963 (which is in pari materia with Section 2(a) of the Public Officers (Protection) Act and/or Law of Abia State) not only refers to natural person or persons sued in their personal names but that they extend to persons sued by their official names or titles. Section 2(a) of the Public Officers (Protection) Law of Abia State is to the effect that, an action against any person for any act done in pursuance of or execution or intended execution of any Act or Law or of any public duty or authority or for any default or omission must be commenced within 3 months of the act or event complained of, otherwise the right of action would become extinguished or statute-barred. Counsel submitted that the Claimant/Respondent's cause of action in this suit, as disclosed in the Statement of facts, arose either on 1/8/2011 or 23/12/2011. See paragraphs 17 and 18 of the Statement of Facts. This suit was commenced on the 28th day of November, 2014 outside three months of the event(s) giving rise to the cause of action. Thus, the right of action is therefore extinguished and having failed to comply with the limitation law, the action is statute-barred. See F.R.I.N. GOLD (2007) All FWLR (Pt. 380) 1444 at 1456G to 1457A; IBRAHIM vs. JUDICIAL SERVICE COMMISSION (supra) 32; AYIYA vs. PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT, BORNU STATE (1990) 1 NWLR (Pt. 129) 728. It is counsel’s argument that anything done by the Defendants/Applicants in pursuance of or execution of any public duty is covered by Section 2(a) of the Public Officers (Protection) Law of Abia State. And where an action is statute-barred, the proper order is that of dismissal. See NIGERIAN PORTS AUTHORITY vs. LOTUS PLASTICS LTD. (2005) 19 NWLR (Pt. 959) 158. In conclusion, counsel urged the Court to dismiss this suit. In the Claimant/Respondent’s defence to the preliminary objection filed on, counsel raised five issues for determination, thus: 1. Whether there are Exemptions to the Application of the Public Officers (Protection) Act/Law as Applicable in the Instant Case? 2. Whether the Limitation Law, CAP. 114, Laws of Abia State of Nigeria, 2005 applies to the Instant Case? 3. Whether there is a Limitation Period for an Extant Enactment? 4. Whether the 1st Defendant/Applicant is a Public Officer? 5. Whether Circular No. HAS/S.0074/II191 of 1st August, 2011 is Ultra Vires the Defendants/Applicants, especially as far as Claimant/Respondent is concerned? 6. Whether the Public Officers (Protection) Act/Law in Unconstitutional? On the first issue, counsel referred to Section 2(a) of the Public Officers (Protection) Act/Law which reads as follows: "Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect- (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof." He submitted that the protection afforded public officers by the Public Officers (Protection) Act/Law is not absolute. There are indeed exceptions to its application. Thus, based on the wordings of Act/Law coupled with judicial interpretations, the Act/Law does not apply to: (a) Cases Based on Contract; (b) Where there is Continuance of Damage or Injury; and (c) Where there is Abuse of Office or Bad Faith in the Execution of the Act/Law, Public Duty or Authority. Counsel argued that the relationship between the Claimant/Respondent and the Defendants/Applicants being founded on contract, there are specified grounds/conditions under which the employment can come to an end as stipulated in the Public Service Rules of Abia State. These are: (a) Withdrawal/Voluntary Retirement/Resignation (Rule 02804); or (b) Compulsory Retirement: (i) based on 35 years of service or 60 years of age (whichever is earlier) (Rule 02809); (ii) for the purpose of facilitating improvement in the organization of the officer's department; (iii) based on the advice of a Medical Board (09104); (iv) based on permanent disablement while in service; or (c) Termination/Dismissal: (i) based on General Inefficiency (Rule 04201); (ii) based on Misconduct (Rule 04301); (iii) based on Serious Misconduct (Rule 04401); (iv) based on conduct prejudicial to security of the State (Rule 04501); and (v) based on public interest (Rule 04601). See the Public Service Rules of Abia State; the Civil Service Rules of old Imo State, 1979 and Section 5(1) of the Abia State Pensions Board Law, Cap. 27, Laws of Abia State of Nigeria, 2005. Counsel submitted that none of these conditions/grounds applies to the instant case of the Claimant/Respondent before his premature retirement. Moreover, apart from grounds (a) and (b)(i) of paragraph 4.13 above, before any of the remaining grounds can be activated and becomes applicable, the requisite procedure must be strictly complied with and the concerned officer is by the Rules and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), required to be given an opportunity of being heard in order to defend himself. Again, this was not applied in the case of the Claimant/Respondent. In TOLORUNLEKE vs. ARMTI (2009) All FWLR (Pt. 497) 152 at 175, it was held that a contract of employment, like any other contract, is a specific or explicit agreement between the employer and the employee which spells out the terms, stipulations or conditions of the contract between the parties. In the event of a breach, violation or infringement of these terms, the party in breach immediately becomes liable. Counsel contended that in the instant case, there is no doubt that the Claimant/Respondent was employed under a contract of service by the Defendants/Applicants. It was to last for 60 years of age of the Claimant/Respondent or 35 years of his service (whichever comes earlier). In this regard, the Court was referred to Section 4 of Pensions Act Cap.346 Laws of the Federation of Nigeria, 1990 (repealed by the Pension Reforms Act, No.2 of 2004); Rule 26110 of Civil Service Rules of old Imo State, 1979; Rule 02809 of Public Service Rules of Abia State, 2001 and Section 5 of Abia State Pensions Board Law CAP. 27, Laws of Abia State of Nigeria, 2005. It is the submission of counsel that it is the Act/Law and the Rules in operation at the time the contract was made that governs the relationship of the parties (whether or not such Act/Law and Rules have been subsequently amended or repealed). Secondly, going by the above cited Act/Law and Rules; the contract of employment of the Claimant/Respondent is expected to expire by effluxion of time or other conditions as specifically stipulated in the mentioned Civil/Public Service Rules. Thus, Circular No. HAS/S.0074/II/91 of August 1, 2011 which sought to cut short the duration of the Claimant/Respondent's contract of service with the Defendants/Applicants is unlawful, null and void. Counsel pointed out at this juncture, that most of the decided cases on the Public Officers (Protection) Act/Law did not draw distinction between a contract of employment and a specific/special contract. In TOLORUNLEKE vs. ARMTI (SUPRA), SANKEY, JCA, reading the lead judgment held: "In the case of ALAO vs. UNIVERSITY OF ILORIN (UNREPORTED) attempts were made to distinguish between contracts of service (or specific contracts) and contracts of employment. This was my humble view: “Mr. Eleja sought to draw a distinction between contracts of service or specific contracts of employment. From the Supreme Court decisions on the point, I am of the view that he is on shaky ground. Granted that the cases of NPA vs. CONSTRUZIONI, and FGN Vs. ZEBRA ENERGY LTD were in respect of specific contracts in the realm of commerce, however, the most recent case of CBN vs. ADEDEJI was in respect of contract of employment, in addition, in all these cases, no such distinction was drawn. Instead, these from findings of the Court were that section 2 (a) of the Public Officers Protection Act or its equivalent were not applicable in cases of contract or breach of contract. As was stated in the case of NPA vs. CONSTRUZIONI with the greatest respect, learned Counsel herein is attempting to give the section "the stress which it does not possess” See OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD (2007) All FWLR (Pt. 365) 438. Counsel sought to distinguish the case of IBRAHIM vs. JSC KADUNA STATE (supra) 14 NWLR (Pt.584) 1 cited by the Defendants/Applicants from the instant case; by stating that the POPA does not apply in cases of contract. Also, the Supreme Court did not consider the exemption to the Public Officers (Protection) Act based on contract, in the case of FRIN vs. GOLD (supra) also cited by the Defendants/Applicants. Another argument considered by counsel is that Relief 7 in the instant case, which is: “a declaration that the Claimant is also entitled to 100% computation of his Monthly Pension as Law Director on Salary Grade Level 17 Step 9 amounting to N253,820.70 (Two Hundred and Fifty Three Thousand, Eight Hundred and Twenty Naira) only per month, instead of the pro-rated calculation based on 22 years and 7 months he had worked amounting to N107,751.55 (One Hundred and Seven Thousand, Seven Hundred and Fifty One Naira and Fifty Five Kobo) only” is a continuing injury, another exemption to the POPA. Counsel argued that every month the incorrect amount is calculated and paid to the Claimant/Respondent constitutes a continuance of damage or injury complained of and gives rise to a fresh cause of action. The same continuance of injury or damage applies to Reliefs 5, 6 and 8 of the Claims. See ATTORNEY GENERAL, RIVERS STATE vs. ATTORNEY GENERAL, BAYELSA STATE (2013) All FWLR (Pt. 699) 1087 at 1107 and AREMO II vs. ADEKANYE (2004) All FWLR (Pt. 224) 2113 at 2132. Again, counsel argued that it is only the 2nd Defendant/Applicant that has been given the statutory power under Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to appoint, dismiss and exercise disciplinary powers over civil servants in Abia State. However, this power does not extend to issue the Circular No. HAS/S.0074/II/91 of 1st August, 2011. In the instant case, it was averred that Circular No. HAS/S.0074/II/91 of 1st August, 2011 is contrary to the terms of employment of the Claimant/Respondent, the Pensions Act, Abia State Pensions Board Law, Civil Service Rules of old Imo State (under which the Claimant/Respondent was employed), the Public Service Rules of Abia State or the Constitution. It is counsel’s submission that the POPA does not protect the defendants in the instant case. The case of NWANKWERE vs. ADEWUNMI (1966) 1 All NLR 129 at 133, was cited by counsel where it was held: “The law is designed to protect the officer who acts in good faith and does not apply to act done in abuse of office and with no semblance of legal justification.” See also LAGOS CITY COUNCIL vs. OGUNBIYI (1969) All NLR 287. Abuse of office was described by the Supreme Court in OFFOBOCHE vs. OGOJA L.G (2001) 7 S. C. N. J. 468 at 483 to be: “use of power to achieve ends other than those for which power is granted for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent to mention a few.” Further, in the instant case, the Claimant/Respondent was neither allowed to work for his full tenure nor his appointment terminated on disciplinary grounds and in accordance with the Civil/Public Service Rules. Even his retirement benefits were pro-rated based on the number of years he had worked which had not been paid up to the present, suggestive that his retirement was disciplinary or punitive in nature. It hence never made provision for such a bizarre situation. See EZE vs. GOVERNOR OF ABIA STATE (2014) 14 NWLR (Pt. 1426) 192, 215 – 216. It is counsel’s opinion that the application of Circular No. HAS/S.0074/II/91 of 1st August, 2011 is discriminatory; targeted at certain Abia State public servants who became Directors and Permanent Secretaries during the administration of Governor Orji Uzor Kalu. Other Directors and Permanent Secretaries under Governor T. A. Orji's administration were spared from the effect of the said Circular, by its suspension via Circular No. HAS/EST/RR1222/20 of April 16, 2015 and HAS/EST/RRl224/4 of April 21, 2015. Counsel referred to the case of EGBE vs. ALHAJI (1989) 1 NWLR (Pt. 128) 546, where the Supreme Court held: “The issue of malice in connection with Section 2 (a) of the Public Officers (Protection) Act may arise in two circumstances. A public officer might have done an act in pursuance or execution or intended execution of a law or his public duty with an ulterior motive such as helping himself or his friend or injuring the plaintiff. Another public officer may, while a public officer and under cover of the office, do an act contrary to or not authorized by law, or not in accord with his public duty. If both acts result in an injury to a plaintiff, it may be said that the former can successfully plead the statute if an action is filed against him after three months of the accrual of the cause of action, whereas the latter cannot. The former was contemplated by the statute, but the latter was not, as to do so would tantamount to using the statute as a cover for malefaction.” See also FAJIMOLU vs. UNIVERSITY OF ILORIN (2007) All FWLR (Pt. 350) 1361 at 1373-1374. Counsel relied on these authorities and submitted that the defendants’ act complained of by the claimant of the defendants were committed in abuse of office and bad faith, thereby, excluding the operation of the POPA in the instant case. Regarding issue two, counsel argued that Section 18 of the Limitation Law, CAP 114, the Laws of Abia State of Nigeria, 2005 provides a limitation period of five (5) years for actions founded on contract as in the instant case. This section is specific to contracts, and later in time to the Public Officers (Protection) Law. Thus, by implication, the CAP 114 supersedes the latter which is a generic enactment. In BAMIGBOYE vs. ADMINSTRATOR GENERAL (1954) 12 WACA 616, it was held: “ where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.” On issue three, counsel submitted that there is no limitation period for an existing enactment. Section 37(1) of the Interpretation Act, Laws of the Federation defines "enactment" as "any provision of an Act or subsidiary instrument". Circular No. HAS/S.0074/11/91 of 1st August, 2011 is a subsidiary instrument and therefore an enactment. Thus, this Court has the competence to look into Circular No. HAS/S.0074/II/91 of August 1, 2011 as it was in force at the time of the commencement of this suit, especially as the Claimant/Respondent suffered from its application though it has been suspended. Thus, in OBI-AKEJULE vs. DELTA STATE GOVERNMENT (2009) 17 NWLR (Pt. 1170) 292, the Court of Appeal held thus: “In any event, litigation on the interpretation of constitutional provisions cannot in my humble view be statute barred. If a law is contrary to the provisions of the constitution, I think it can be challenged at any time.” See also PLATEAU STATE GOVERNMENT OF NIGERIA vs. A-G, FEDERATION (2006) 3 NWLR (Pt. 967) 346. Thus, the competence of the Circular is being challenged in the suit because the determination of Relief 1 entails the examination of the said Circular. This Relief remains extant notwithstanding that the obnoxious Circular No. HAS/S.0074/II/91 of 1st August, 2011 has been suspended by Circular No. HAS/EST/RR/16 of 10th September 2014 and Circular No. HSRJEST/RR/222/20 of 16th April, 2015. See SOSA vs. EKPO (2001) 1 NWLR (PART 693) 16 at 30 para. B – D and LIPEDE vs. SONEKAN (1995) 1 NWLR (Pt. 374) 668. This suit was filed before the suspension and it is aimed at annulling what was done under the suspended Circular. Counsel argued in respect of issue four that the 1st defendant is not a public officer. Thus, in the event other defendants are public officers. It is counsel’s submission that the instant case can survive against the 1st Defendant/Applicant. On issue five, counsel submitted that the Claimant/Respondent's employment contract with the Defendants/Applicants has statutory flavor. Thus, before his contract of employment with the Defendants/Applicants can be brought to an end, it must be in consonance with and strict compliance with the relevant statutes and Rules. See F. I. R. S. vs. MICHAEL (2014) All FWLR (Pt. 735) 362 at 377 – 378. He argued that the Defendants/Applicants lacked powers to determine the tenure of office of public servants in Abia State. this is owing to the fact that such tenure is already fixed by the Pensions Act, Pensions Board Law of Abia State and the Public/Civil Service Rules of Abia and old Imo States which provides for 60 years of age or 35 years of service (whichever comes earlier) for compulsory retirement. It therefore follows that the Defendants/Applicants were not executing any "Law, duty or public authority" or even power when they abridged the tenure of office of the Claimant/Respondent. It follows therefore that Circular No. HAS/S.0074/II/91 of 1st August, 2011 is ultra vires the Defendants/Applicants, especially the 3rd Defendant/Applicant and they cannot claim protection under the Public Officers (Protection) Act/Law. See NWANKWERE vs. ADEWUNMI (SUPRA), LAGOS CITY COUNCIL VS. OGUNBIYI (SUPRA) and OFFOBOCHE vs. OGOJA L.G (SUPRA). Thus, the Public Officers (Protection) Act/Law cannot and does not protect them since it is intended to serve as a shield and not as a sword. For this conclusion, counsel referred to IBRAHIM VS. JSC, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 where the Supreme Court per Iguh JSC (as he then was) held thus: “It can therefore be said that Section 2(a) of the Public officers (Protection) Law 1963, gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside their statutory or constitutional duty they automatically lose protection of that law.” See also the following cases: 1. HASSAN vs. ALIYU (2010) All FWLR (Pt. 539) 1007; 2. W. A. E. C. vs. UDIKA (2014) All FWLR (Pt. 757) 797; 3. YARE vs. NUNKU (1995) 5 NWLR (Pt. 394) 129; 4. CBN VS. OKOJIE (2004) 10 NWLR (Pt. 882) 488. 5. BAMISILE vs. NATIONAL JUDICIAL COUNCIL (2013) All FWLR (Pt. 678) 911; 6. ALAPIKI vs. GOVERNOR OF RIVERS STATE (1991) 8 NWLR (Pt. 211) 587; 7. BAKARE vs. NRC (2007) 17 NWLR (Pt. 1064) 606 at 646- 648. It is counsel’s submission that Circular No. HAS/S.0074/II/91 of 1st August, 2011 under consideration constitutes mere daily routine/dictates/requirements of Ministries, Departments and Agencies of the Defendants/Applicants. The circular cannot be used to validly amend the Public Service Rules of Abia State by negatively affecting already vested rights of the Claimant/Respondent under his existing contract of employment which was conclusive, certain, binding, and which stipulated its duration to be 60 years of age of the Claimant/Respondent or 35 years of his service (whichever comes earlier). On the sixth issue, counsel argued that the application of the Public Officers (Protection) Act to protect certain classes of individuals negates the constitutional provision of ensuring equality of persons before the law. He referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and cited AMADI vs. NNPC (2000) FWLR (Pt. 9) 1527; (2000) 10 NWLR (Pt. 674) 76 at 110-III where it was held: "There is no provision in the Constitution for special privileges to any class or category of persons. Any statutory provision made for the protection of any class of persons from the exercise of the Court of its constitutional jurisdiction to determine the right of another citizen seems to be inconsistent with the provision of section 6 (6) (b) of the constitution. " Similarly, in ADEWOLE vs. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, ONDO STATE (2015) All FWLR (Pt. 786) 403 it was held that the Public Officers (Protection) Act/Law is subject to the Constitution pursuant to Section 6(6)(a). Thus, the POPA is inferior to the Constitution. Its application cannot restrict the right of access to Court or to assert a constitutionally guaranteed right. Counsel equated upholding an objection based on the Public Officers (Protection) Act/Law to an abdication of judicial responsibility. In conclusion, counsel urged the court to resolve all the issues raised in the claimant/respondent’s favour because the Preliminary Objection of the Defendants/ Applicants is misconceived. The court was urged to dismiss the Preliminary objection. By a Motion on notice brought pursuant to Orders 11 rule 1(1) (2), 8(1), Order 14 rule 1(1) of the National Industrial Court Rules, 2007, Section 210 of the 1999 Constitution (as amended), the Claimant/Applicant’s Counsel sought for: 1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants/Respondents, their agents, servants, privies, or any person/s acting for or through them from harassing or threatening to harass, deal with, harm the Claimant/Applicant or any member of his family, or stop the payment of the monthly pension or other retirement benefits of the Claimant/Applicant for bringing the substantive suit or for any other reason whatsoever pending the hearing and determination the SUBSTANTIVE SUIT by this Honourable Court. The Motion is supported by 43 paragraphs affidavit deposed to by the Claimant/Applicant, in the written address filed alongside this application, counsel proposed a sole issue to be determined, which is: Whether or not this is a case for which an Interlocutory Injunction can be granted by this Honourable Court? Counsel began his argument on this issue by stating that there are certain principles and factors that guide the Court in determining whether to grant an application for Interlocutory Injunction. They are: a) If there is a Serious Question to be tried; b) Adequacy of Damages/Compensation if the application is refused; and c) On which party resides the Balance of Convenience. On this note, counsel submitted that an Applicant has to show that there are serious questions to be tried. For him to do so, he needs to establish a legal right in the subject-matter which he seeks to prevent the Defendants from violating. See 7UP BOTTLING CO. LTD vs. BISHOP ABIOLA (1995) 4 NWLR (Pt. 389) 287. Counsel submitted that that the Claimant/Applicant's legal rights are in issue, owing to the fact that this action was brought to declare his premature retirement unlawful and claiming to be entitled to be paid his salary and allowances for the remaining 12 years and 5 months left of his service years, among other claims. Again, counsel contended that the injury suffered by the applicant cannot be adequately assuaged by monetary compensation. See Paragraphs (26) and (40) of the supporting affidavit of the Claimant/Applicant. More so, the non-interference with the Claimant/Applicant's retirement benefits is supported by Section 210 of the 1999 Constitution (as amended) which forbids the withholding of pensions or gratuity. This is in order to avoid the hardship condition as explained above. Counsel submitted that the balance of convenience is totally in favour of the Claimant/Applicant. This argument stems from the fact that the claimant/applicant and members of his family will suffer excruciating hardship if the Defendants/Respondents are not restrained from carrying out their threats of harming the Claimant/Applicant and/or members of his family, or if the monthly pension of the Claimant/Applicant is stopped by the Defendants/Respondents. On the other hand, the Defendants/Respondents have no inconvenience whatsoever to suffer if the application is granted. Counsel referred the court to the case of KOTOYE vs. CBN (1989) 1 NWLR (Pt. 98) 419, where it was held that the balance of convenience means that more justice will result in granting the application than in refusing it. See also AFRICAN CONTINENTAL BANK LIMITED vs. AWOGBORO (1991) 2 NWLR (Pt. 176) 711 In counsel’s concluding argument, he stated that the primary object of granting interlocutory injunction is to keep the subject-matter of the suit in status quo ante bellum pending the determination of the applicant's right in the substantive suit. The subject-matter, the res, can be tangible or intangible and is the fulcrum of the litigation. In UNIVERSAL TRUST BANK LTD vs. DOLMETSCH PHARMACY NIG. LTD (2002) 8 NWLR (Pt. 770) 726, the Court defined status quo ante bellum as the situation or position prevailing before the defendant's conduct complained of by the plaintiff. Thus, the Court's aim is to prevent unjust and inequitable acts that are injurious to the applicant. Counsel urged the Court to grant this application. In opposition, the defendant/respondent filed a counter affidavit of 23 paragraphs deposed to by Henry Nwokeukwu. Counsel formulated one issue for determination by the Court, thus: Whether, in the circumstance, the Claimant/Applicant is entitled to the grant of an order of interlocutory injunction by the Honourable Court? Counsel argued that an interlocutory injunction is not granted as matter of course. It is an equitable relief granted at the court’s discretion, which is exercised judicially and judiciously, based on credible facts or evidence. See JOHN HOLT NIG. LTD. vs. HOLTS AFRICAN WORKERS UNION OF NIGERIA & CAMEROONS (1963) 1 All N.L.R 379 at Pg. 188; IYIMOGA vs. GOVERNOR OF PLATEAU STATE (1994) 8 NWLR (Pt. 360) 73 at Pg. 103. It is counsel’s assertion that the Claimant/Applicant has not shown in his affidavit how he will suffer irreparable injury or damage if this application is refused. The depositions in paragraphs 36 and 38 of the supporting affidavit, which are denied, without more, are not sufficient to ground the grant of this application as those paragraphs are lacking in particulars. Furthermore, stemming from the fact that only a monetary claim is at stake, the Court should not grant an injunction. Damages will be adequate compensation if the Claimant/Applicant should succeed in the substantive action. See SOTUMINU vs. OCEAN STEAMSHIP (NIG) LTD. (1992) 5 NWLR (Pt. 239) 1.Also, counsel submitted that the Court should not act on the allegations of the Claimant/Applicant which have been substantially denied. See paragraphs 16 and 17 of the counter-affidavit of the Defendants/Respondents because the matter in dispute will be better dealt with by an accelerated hearing of the main suit, relying on the provisions of order 14 Rule 4 of the National Industrial Court Rules, 2007. In conclusion, counsel urged the Court to refuse this application for the grant of an order of interlocutory injunction, as the claimant/applicant has not satisfied the requirements for the exercise of the courts discretion in that regard. In the claimant/applicant’s Reply on point of law which was supported by a sixteen paragraph further affidavit deposed to by the claimant; counsel stated that paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 37 and 42 of the Claimant/Applicant's affidavit in support of the Motion on Notice for Interlocutory Injunction are admitted by the Defendants/Respondents. This is owing to the fact that these paragraphs were either expressly admitted or admitted by implication having not been countered. Therefore, what is admitted needs no further proof. See Section 123 of the Evidence Act, No. 18 of 2011, ONWUKA vs. OMOGUI (1992) 3 SCNJ 98 at 101; ELIGUSHI vs. A. G. FEDERATION (2000) All FWLR (Pt. 1) 89 at 99. Counsel submitted that Section 115 of the Evidence Act requires that an affidavit shall contain only statement of fact and circumstances to which the deponent deposes either of his personal knowledge or from information which he believes to be true. When such information is derived from any other source other than his own personal knowledge, he is required to set forth explicitly the facts and circumstances forming the ground of his belief. He is also required to disclose the name of his informant, reasonable particulars of the informant, the time, place and circumstances of the information. In the instant case, the deponent of the Counter Affidavit is a Higher Executive Officer (Litigation) in the Civil Litigation Department of the Ministry of Justice of the Defendants. He did not say he is an administrative officer or working in the Administrative Department of the 1st Defendant/Respondent. Therefore, he has no knowledge whatsoever of the service records of the Claimant/Applicant. Thus, his averments in the said Counter Affidavit are derived from information given to him. Having not disclosed the source of such information and that he believes them to be true, all the depositions in the said Counter Affidavit are mere hearsay and inadmissible. See Sections 37 and 38 of the Evidence Act. Counsel urged the Court to strike out the Counter Affidavit for being unreliable. Also, Section 115 (2) of the Evidence Act forbids an affidavit to contain extraneous matters by way of objection, prayer, legal argument or conclusion. Counsel urged the court to disregard paragraphs 17, 18, 20, 21 and 22 of the Counter Affidavit because they are conclusions and paragraph 19 is an argument. To the argument of the Defendants/Respondents that the Claimant/Applicant has not shown that he will suffer irreparable damage if the application is refused is grossly misconceived; counsel replied that paragraph 26 of the affidavit of the Claimant/Applicant has shown the Claimant/ Applicant is the bread winner of his family who is depended upon by his family and aged mother for their subsistence. In paragraph 38, he deposed that if the Defendants/Respondents are allowed to execute their threats, it will frustrate his efforts to obtain justice from this Court. Also, in paragraph 40, he averred that the excruciating and harrowing hardship he and his family are presently going through as a result of the actions of the Defendants/Respondents in prematurely terminating his appointment, which will be worse if the Defendants/Respondents are allowed to stop his irregularly paid monthly pension. In his further argument, counsel submitted that the Claimant/Applicant has satisfied all the conditions for the grant of an interlocutory injunction as stated in OYE vs. GOV. OF OYO STATE (19930 7 NWLR (Pt. 306) 493. Counsel contended that the defendant/respondent has failed to disclose what they have to suffer or lose if this application is granted. Thus, the Court was urged to grant this application. In EZEBILO vs. CHINWOBA (1997) 7 NWLR (Pt. 511) 108, it was held that the aim of interlocutory injunction is to protect or preserve the status quo pending the determination of the substantive suit. In the instant case, the status quo to be maintained is ensuring that the Claimant/Applicant is alive to prosecute his case and not to make it impossible for him to do so by stopping the payment of his monthly pension. To the Defendants/Respondents’ assertion that only a monetary claim is at stake in the instant case, counsel replied that paragraphs 36, 38 and 39 of the affidavit of the Claimant/Applicant which disclosed that there is also threat to deal with, harm him and/or members of his family shows other non-monetary claims. No damage can compensate for the loss of life. Paragraph 10 (b) and (i) of the Further Affidavit shows that the Claimant/Applicant's appointment as Senior Special Assistant has long expired he earns no other income. Therefore, the justice of this case requires that the Defendants/Respondents be restrained from executing their threats against the Claimant/Applicant whether or not there is an order of this Court for accelerated hearing of the suit. Finally, counsel submitted that this Court has the inherent powers to stop the Defendants/Respondents from tampering with the Claimant/Applicant's pension. Section 210 of the Constitution of the Federal republic of Nigeria, 1999 (as amended) forbids the withholding or alteration of Claimant/Applicant’s pension and gratuity to his disadvantage. This provision supersedes any other consideration for the grant of this application. In conclusion, counsel urged the Court to exercise its discretion in favour of granting this application being in the interest of justice. Court’s Decision From the foregoing, there are two applications which were argued before this court and on which the court is to now rule. The applications, in order if their presentation, are- 1. The Defendants Notice of Preliminary Objection seeking the suit to be dismissed on grounds of being statute barred. 2. The Claimant’s motion for Interlocutory Injunction. I shall first consider the preliminary objection. The Defendants’ Notice of Preliminary Objection was brought pursuant to the provisions of Section 2 (a) of the Public Officers’ Protection Act and Section 2 (a) of Public Officers Protection Law of Abia State. It was contended in the written address of the defendants counsel that the cause of the claimant’s action arose either on 1/8/2011 or 23/12/2011 while this suit was commenced on 28/11/2014. It was submitted by the defendants counsel that the claimant’s suit is statute barred because it was not filed within 3 months from the date of accrual of the cause of action as required by the statutes. The claimant, in his response did not dispute the fact that the defendants are public officers nor the fact that his suit was filed more than 3 months after the cause of action arose. His argument however is that the Public Officers’ Protection Act (POPA) does not apply to bar his suit by virtue of some exceptions which he canvassed in his submission. Whether these exceptions will avail him shall be considered in the course of this ruling. The provisions of Section 2 (a) of POPA and Section 2 (a) of Public Officers Protection Law of Abia State are the same and to the same effect. The provisions provide: “2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect: (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.” The implication of the above provisions is that an action against a public officer in respect of any act done in pursuance or execution of any Act or law or of public duty or any default in respect of same can only be commenced within 3 months of the accrual of the cause of action except in the case of continuance of the damage or injury in which the claimant must institute the action within 3 months after the cessation of the damage or injury. Where the suit is not commenced within the prescribed period, the claimant’s right of action in respect of that cause will be statute barred and the court will no longer have jurisdiction to entertain the suit. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; EGBE vs. ALHAJI (1990) 3 S.C (Pt.1) 63. The claimant has contended in his submissions on issue 2 of his written address that the subject matter of his suit being contract, the limitation statute which should be applicable is the Limitation Law Cap 114, Laws of Abia State 2005 and not the Public Officers Protection Law of Abia State. The claimant should be reminded that the Public officers Protection Law is to protect public officers who are sued with respect to “any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority”. The defendants have brought this application under that law and not under the Limitation Law of Abia State. The contention of the defendants in this application is not based on breach of contract as to come under the Limitation Law but that they have been sued in their capacities as public officers. I think the defendants have rightly relied on the POPL. I must add further that the defendants referred to the provisions of both POPA and POPL. Even where it is conceded that POPL is not applicable, the claimant’s suit will still be left to contend with POPA. The cause of the claimant’s action as disclosed on the statement of facts and the reliefs sought by him was his retirement from service by the defendants. This is clear from paragraph 18 to 33 of the statement of facts containing averments challenging his retirement. See also reliefs 1, 2, 3, 4, 5, 9, 10, 18. It is pleaded in paragraphs 18 and 19 of the statement of facts that on 23/12/2011, he received a notice of retirement and on 1/1/2012, he was compulsorily retired from service. The claimant’s cause of action arose on 1/1/2012 when he was retired from service. He filed this suit on 1/12/2014. Between the time his cause of action arose and the time he filed this suit was period of 34 months. Now, by the nature of the defendants as statutory and public offices and the description ascribed to them in paragraphs 4 to 8 of the claimant’s statement of facts, I have no doubt that that the defendants are public officers within the meaning of the term as defined by the Supreme Court in IBRAHIM vs. J.S.C, KADUNA STATE (supra). The claimant has however argued in paragraph 8.1 of his written address that the 1st defendant is not a public officer. The question may them be asked from the claimant whether the 1st defendant is a juristic person as to be made a party to this suit? This question is necessary because if the 1st defendant is not a juristic entity, then it ought not to be a party to this suit. But if on the other hand, the claimant made it a party because it is juristic, what conferred that juristic status on it? The claimant did not cite any authority to back up his submission that the 1st defendant is not a public officer. The 1st defendant in this suit is the “Government of Abia State”. It is however obvious to me that the party sued as 1st defendant in this matter is Abia State. Section 318 CFRN defines “government” to include Government of the Federation or of any State or of a Local Government Council. That is to say reference to government of a state is the same as reference to that state. In this case, the 1st defendant is Abia State which is a constitutional creation. It comes within the meaning of public officer. From the averments of the claimant in the statement of facts, the crux of the claimant’s complaint in this suit is that his employment enjoyed statutory flavour but he was retired from service against the provision of the Abia State Public Service Rules. Therefore, the claimant has sued the defendants in this suit in respect of an alleged neglect or default in the execution of the Abia State Public Service Rules of the defendants’ public duty under the Public Service Rules. In view of the foregoing, the defendants can seek to take protection under the Public Officers’ Protection Act in this action. The claimant did not file this suit against the defendants within 3 months from the accrual of the cause of action as stipulated in section 2 (a) of POPA. However, before a conclusion can be reached as to whether the claimant’s suit is statute barred or not, the exceptions canvassed by the claimant to rescue his suit from the grip of the Public Officers’ Protection Act (POPA) must be considered. As I have observed earlier, the claimant did not deny that his suit was filed outside the 3 months statutory period. His contention however is that the Public Officers’ Protection Act does not apply to the circumstance of this suit. In his written address, the claimant contended that, the subject matter of his suit being a contract of employment, the limitation period in the Public Officers’ Protection Act does apply to cases founded on contract. He cited TOLORUNLEKE vs. ARMTI, OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD and FEDERAL GOVERNMENT OF NIGERIA vs. ZEBRA ENERGY LTD among other authorities on the point that POPA does not apply to cases of contract. The claimant particularly relied on TOLORUNLEKE vs. ARMTI where Sankey JCA held that POPA will not apply to contract of employment. I wish to first point out that except the TOLORUNLEKE vs. ARMTI case, the issue of the application of POPA to contract of employment did not arise in the other cases cited by the claimant in support of his contention. What the Supreme Court considered in OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD and FEDERAL GOVERNMENT OF NIGERIA vs. ZEBRA ENERGY LTD was the application of POPA to independent contract and not contract of employment. The exclusion of POPA from cases involving contract has actually been generating some arguments as to whether contract of employment is covered in the exception. Courts have taken different positions on this issue. One of such decision where the position that contract of employment is included in the exception is the TOLORUNLEKE vs. ARMTI case. In a more recent decision of the Court of Appeal in UNIVERSITY OF JOS vs. DR. SANI MUHAMMAD ADAM (2013) LPELR-20276, the court of Appeal considered the application of POPA to contract of employment and held, per AGBO JCA at page 9, as follows: “It is correct that in FGN & ors v. Zebra Energy Ltd (2002) 18 NWLR (Pt.798) 162, the Supreme Court had excluded the application of a similar statute of limitation from applying to contracts. But contracts used in that judgment can only mean independent contracts. It cannot and do not extend to contracts of employment in the public sector. The Supreme Court has indeed consistently applied the provision of the Public Officers Protection Act to employment in the public sector.” The claimant has argued that in IBRAHIM vs. J.S.C KADUNA STATE and FRIN vs. GOLD (supra), the issue of whether the Public Officers’ Protection Act POPA applies to contract of employment was not directly in issue. I do not think that argument has a strong point. The focus should be the subject matter of the action where the Public Officers’ Protection Act POPA was applied and not whether the issue of application of POPA to contract of employment was directly decided. There are several cases involving contract of employment where the Supreme Court and the Court of Appeal had applied the provision of the Public Officers’ Protection Act POPA. See for example the IBRAHIM vs. J.S.C KADUNA STATE and FRIN vs. GOLD cases referred to above. In my view also, POPA applies to causes arising from contract of employment. Generally, the protection in POPA should avail a public officer where the alleged breach is in the performance or execution of a public duty. See AJIKITI vs. NYSC (2011) All FWLR (Pt. 591) 1582 at 1591. This court too has taken the above position in several cases where the question whether the Public Officers’ Protection Act POPA applies to contract of employment has been raised. Therefore, the reliance of the claimant on the exception of contract from the Public Officers’ Protection Act is not tenable. The claimant, while relying on the latter part of Section 2 (a) of POPA which provide that “… in case of a continuance of damage or injury, within three months next after the ceasing thereof”, contended that by effect of reliefs 5, 6, 7 and 8 sought by him, a fresh cause of action arises every month the incorrect amount is calculated and paid to him. Counsel submitted that this constitutes a continuance of damage or injury. While I am in agreement with the claimant that one the principles in the case of ATTORNEY GENERAL, RIVERS STATE vs. ATTORNEY GENERAL, BAYELSA STATE, as cited by him, is that continuous of damage or injury is an exception to Section 2 (a) of the Public Officers’ Protection Act, I however doubt if the claimant’s cause of action in this suit can be said to be a continuance of damage or injury. The basis for the claimant’s contention is that there is continuance of damage or injury is reliefs 5, 6, 7, and 8. In these reliefs, the claimant sought that his salaries, gratuity and pension covering 12 years and 5 months remaining in his employment before he was retired be computed into and together with the calculation for the 22years 7 months he had worked. These claims in reliefs in 5, 6, 7 and 8 are not the claimant’s main claim. The claimant’s cause of action in this suit was his retirement from service. Reliefs 1, 2, 3 and 4 are founded on the claimant’s cause of action. Therefore, reliefs 5, 6, 7 and 8 are dependent on reliefs 1, 2, 3, and 4. It thus means that whether the reliefs 5, 6, 7 and 8 disclose continuance of damage or injury cannot be considered independent of the other reliefs. The claimant’s main claims arose from his retirement and as he has pleaded in paragraph 19 of his amended statement of facts, this happened on 1/1/2012. That is to say his retirement happened on a particular and definite date. His cause of action arose on 1/1/2012 and there is nothing in his pleadings to suggest that the retirement was a continuous act. In a similar scenario where the subject was suspension, the Court of Appeal, in NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (PT 428) 343, had this to say at page 350: “From the facts of this case, it is clear that the respondent was suspended on 22nd September 2004 while he commenced the suit on 9 February 2005, a period of over four months after the cause of action. This is a clear violation of the Public Officer Protection Act. There is no basis for the argument of the learned counsel for the respondent that the suspension was a continuous act not caught by the Public Officers Protection Act. The suspension started on a definite date which was the date of the cause of action for all intent and purposes. The respondent had a duty to ensure he acted timeously if he was to hold the appellant responsible for his suspension”. In this instant case, the claimant was retired specifically on 1/1/2012 and that was the day his cause of action arose. In my humble view, the retirement of the claimant cannot be said to be continuing injury or damage as contemplated in Section 2 (a) of the Public Officers’ Protection Act. It is also the claimant’s further argument that the Public Officers’ Protection Act (POPA) is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office or in bad faith. According to the claimant, there is nowhere in the Public Service Rules of Abia State or any other Law that empowered the Defendants to retire him prematurely. The Defendants have the duty to act within the confines of the provisions of the Constitution and the Public Service Rules of Abia State and Civil Service Rules of old Imo State and any act to the contrary becomes an abuse of office and bad faith and the defendants cannot be protected by the Public Officers’ Protection Act POPA. As rightly submitted by the claimant, the law is trite that a public officer who acted outside his constitutional or statutory duties or who acted outside the colour of his office or acted in bad faith or in abuse of office will not be entitled to the protection under Section 2 (a) of the POPA. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. The defendants raised this preliminary objection in limine and the facts which this court will examine to determine it is the pleading of the claimant only. At this stage, what this court is called upon to determine is whether the suit is competent and not whether the defendant is liable. The questions whether the defendants acted in bad faith or outside the color of their office can only be considered by the court if the action was filed against the defendant within the prescribed three months from the date the cause of action arose. See FRED EGBE vs. JUSTICE ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 and KASANDUBU vs. ULTIMATE PETROLEUM LTD (SUPRA). This position of the law was expounded more succinctly by the Supreme Court in EGBE vs. ALHAJI (SUPRA). Per Karibi-Whyte JSC (as he then was) held at pages 120-121 thus: “I am emboldened to conclude from my analysis and construction of the provisions of Section 2 (a) of the Public Officers Protection Law and the decided cases discussed herein that where a defendant relies on the provision of Section 2 (a) to dismiss the action of the plaintiff in limine, it is only necessary for the judge to determine whether the action has been brought within the period prescribed by the statute. If the Writ of summons was issued after the period of three months from the date of the injury complained of, the plaintiff has no cause of action and the claim shall be dismissed in limine. However, where the action was instituted within the period of three months prescribed, there is a cause of action and the legality vel non of the action complained of can be in issue. It is in such a situation that at the trial, evidence can be led to determine whether the protection under the Public Officers Protection Act has been vitiated by malice, improper motive, bad faith or deliberate exercise of power without lawful authority.” On his part, Uwais JSC (as he then was) at page 80-81 of the report commented thus- “In a civil action where the defendant invokes in limine the protection under Section 2 (a) of the Public Officers Protection Law Cap 114, (which is indeed a defence by way of limitation of action); it is, as laid down in Fred Egbe v. Justice Adefarasin (supra), not proper for the trial court to infer or conclude from the pleadings that the protection afforded the defendant by law is has been vitiated by malice or bad faith. For what the trial court is obligated to decide at that stage is whether the action is maintainable and not whether the defendant is liable. The proof of liability can only come about after evidence in support of the pleadings has been adduced by the parties or the plaintiff.” In view of these judicial statements by the Apex Court, before the public officer can be denied the protection of the Public Officers’ Protection Act for the reasons that he acted in bad faith or in abuse of office or acted outside the colour of his office, the action must have been commenced against him within 3 months from the date the cause of action arose. The question whether the defendants in this case acted in bad faith or in abuse of office, as contended by the claimant, is premature at this stage of determining a preliminary objection raised in limine. The issue at this stage is whether the suit is maintainable, that is whether it was commenced within three months as prescribed by statute. Were this court to accede to the submissions of the claimant and proceeds to determine whether the defendants acted in bad faith or abuse of office, the court will be unwittingly determining the liability of the defendants at a preliminary stage. Since the action was not filed within three months from the accrual of the cause of action, this court cannot inquire into whether the protection afforded the defendants under the Public Officers’ Protection Act has been vitiated by bad faith or abuse of office. These are facts to be determined upon evidence. Since this application was taken in limine, the assignment at this stage is to determine whether the claimant’s suit was filed within the limitation period in Section 2 (a) of the Public Officers’ Protection Act. The finding of this court on that assignment has clearly revealed that the claimant filed this suit 34 months after his cause of action had accrued. In issue no. 6 of his written address, the claimant raised the question whether the Public Officers’ Protection Act is unconstitutional. In his submission on the issue, the claimant argued that limitation laws such as POPA cannot delimit the constitutional right of access to court and that any such statute is inconsistent with Section 6 (6)(b) of the Constitution. He cited AMADI vs. NNPC (supra), ADEWOLE vs. ATTORNEY-GENERAL, ONDO STATE (supra). It appears to me that the claimant’s contention in this issue is that since the effect of POPA is to bar rights of action; it is unconstitutional by virtue of Section 6 (6) b of the Constitution. Let me first state that the issue of whether Section 2 (a) of POPA is inconsistent with Section 6 (6) b of the constitution or unconstitutional was not decided in the cases cited by the claimant. The cases cannot be used as authority on the instant issue canvassed by the claimant. Be that as it may, it is my humble view that constitutional right of access to court does not exclude the application of statute of limitation. In CROSS RIVER UNIVERITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (Pt. 641) 1567 at 1583-1584, the position of the law on the application of statutory limitations to the constitutional right of access to court was stated as follows- “It is thus settled that the constitutionally provided right of access to court does not exclude statutory provisions which regulate the exercises of the conferred rights. The law which does not border on technicality is basic on the point that, when an action is instituted and there is non- compliance with a condition precedent or prescribed precondition for activating or setting the required legal process in motion, any suit which has been instituted in contravention of mandatory provisions is incompetent and the court is equally derobed of competence to entertain it.” The purport of this statement of the court is that constitutional right of access to court is not a perpetual right but a right limited by statute. Therefore, a claimant who desires to exercise his right to judicial process must approach the court timeously, otherwise, where there is a statute limiting the time of action is his cause, he will lose his right to judicial relief and his right of action will be extinguished, if he does not commence the action within the time limited by statute. After the date on which limitations statutes provide that legal proceedings cannot be taken, any person having a right of action can no longer institute the action as the action is statute barred and it affects the competence or jurisdiction of the court to continue to entertain the matter. See IBRAHIM vs. J.S.C, KADUNA STATE (supra); ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604. Having considered the submissions of counsels on the Preliminary Objection and all other facts relevant to the determination of the Preliminary Objection, I find that the claimant’s suit is statute barred. The facts are clear that this suit was filed more than 3 months from the date the cause of action arose. The action is no longer maintainable even as this court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the suit. With the finding that the suit of the Claimant is Statute barred, it is no longer necessary for the Court to go into the Claimant’s motion for interlocutory injunction, as this Court lacks jurisdiction to entertain this action in the first place. Delving further into other issues would therefore be academic. Accordingly, this suit is hereby dismissed. I make no order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge