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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Mrs. Kate Igbo, Miss Jessica Osawaru, Miss Ogechi Nwafor, Miss C. A. Ibe and Mrs. K. M. Okpala-Okaka, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Mrs. S. A. Yakubu, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claims of the claimant as per the complaint filed in this Court on 11<sup>th</sup> February 2014 are for the following reliefs –<o:p></o:p></p> <ol style="margin-top:0in" start="1" type="1"> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo1">A declaration that the letter whose reference number is NCS/ADM/EST/P.24053 and whose date is 6<sup>th</sup> March 2012 and signed by Mohammed M. Assistant Comptroller General (FATS) nullifies and supersedes the letter whose reference number is NCSB/ABJ/AP&D/94/S.4/VOL.XXXVIII and whose date is 20<sup>th</sup> December 2011 and signed by Mohammed M.mni Secretary Nigeria Customs Service Board.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo1">A declaration that the claimant is and at all times material to this suit was an Officer of the Nigeria Customs Service.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo1">An order that the defendants jointly and severally compute and pay to the claimant all salaries, allowances and other emoluments due to him from February 2012 to date.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo1">An order that the defendants jointly and severally promote the claimant to ranks commensurate with his last rank in accordance with the rules and regulations of the Nigeria Customs Service.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo1">The sum of N1,000,000.00 (One million Naira) as exemplary damages.<o:p></o:p></li> </ol> <p class="MsoNormal" style="text-align:justify">Accompanying the complaint are the statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the documents.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Trial had actually commenced with the claimant taking the witness stand as CW before the defendants entered formal appearance and then filed a preliminary objection pursuant to section 6(6) of the 1999 Constitution, section 2(a) of the Public Officers Protection Act Cap. P41 LFN 2004, sections 1, 3 and 6 of the Nigeria Customs Service Board Act Cap. N100 LFN 2004, Order 11 Rule 1(1) of the National Industrial Court (NIC) Rules 2007 and under the inherent jurisdiction of the Court. The defendants did not file any other defence process. By the preliminary objection, the defendants are praying for the following orders –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo2"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of this Honourable Court striking out and or dismissing this suit on the ground that the Court lacks jurisdiction to hear and determine this suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo2"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->And for such further order or other orders as the Honourable Court may deem fit to make in the circumstance.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The grounds upon which the preliminary objection is brought are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The 2<sup>nd</sup> defendant is not a juristic person and as such cannot sue and be sued in a court of law.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The action of the plaintiff against the defendant is statute-barred by virtue of section 2(a) of the Public Officers Protection Act Cap. P41 LFN 2004.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the supporting written address, the defendants framed two issues for the determination of this Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the 2<sup>nd</sup> defendant in this suit is competent party that can sue and be sued.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the action of the plaintiff against the defendants/applicants is statute-barred by virtue of the provision of section 2(A) of the Public Officers Protection Act Cap. P41 LFN 2004.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1, the defendants submitted that where an action is brought by and/or against a non-juristic person in law, the Court which such action is filed would have no jurisdiction to try it, referring to <i>Management Enterprises Limited v. Otusanya</i> [1987] 2 NWLR page 179. That the plaintiff erred in law when they brought this action against the 2<sup>nd</sup> defendant/applicant. That the Nigeria Customs Service is not a competent party because it is not a juristic or natural person and, therefore, not known to law. That in <i>Abubakar v. Yar’Adua</i> [2008] 36 NSCQR 231 at 364 – 365, the Supreme Court per Niki Tobi JSC held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Juristic or legal personality can only be denoted by the enabling law. This can be the constitution or a statute if the enabling law provides for a particular time by way of juristic or legal personality a party must sue or be sued in that name. He has no choice to sue or be sued in any other name in other words, juristic or legal personality is a creation of statute and a party which seeks relief must comply strictly with the enabling statute. The provision of the law is as stringent and as strict as that.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendants, the enabling law for Customs is the Nigeria Customs Service Board Act Cap. N100 LFN 2004. That by the combined reading of sections 1, 3, and 6 of the Nigeria Customs Service Board Act, the juristic or legal personality that can sue and be sued in matters relating to Customs and Excise is the Nigeria Customs Service Board. As such, the 2<sup>nd</sup> respondent/applicant in this suit is not known to the enabling law mentioned above, hence not a creation of law. It, therefore, means that the 2<sup>nd</sup> respondent/applicant is a wrong defendant against whom this Court has no jurisdiction to pronounce any judgment. That in <i>Abubakar v. Yar’Adua</i> (<i>supra</i>) at 365 – 366, the apex Court of the land held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">as juristic or legal personality is a strict matter of law, parties cannot beg the court to accept a person who does not answer the correct name in the enabling law as the 2<sup>nd</sup> Respondent sued in the name and style of “Professor Maurice Maduakolam Iwu (Chairman INEC) which is neither in the constitution nor in the Electoral Act, 2006, counsel for the appellants joined the wrong person. This is not a technicality but the substantive position of the law a Plaintiff who sues a wrong person in law cannot be heard to say that the court should give judgment in his favor against a wrong person. After all, a court of law cannot give judgment in the favor against a person not known to law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><u><o:p> </o:p></u></p> <p class="MsoNormal" style="text-align:justify">That in the unreported case of <i>Kulles Ltd v. Fashan Jia de Jin Metal & 4 ors</i> Suit No. FHC/CS/1181/2009, Tosho J on 31<sup>st</sup> May 2012 struck out the name of ‘Nigeria Customs Service’ for not being a juristic person. On the strength of the above authorities, the defendants urged the Court to strike out the name of the 2<sup>nd</sup> defendant/applicant on the ground that it is a non-juristic person and, therefore, not competent to sue and be sued in law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2 i.e. whether this action is not statute-barred, the defendants referred to section 2(a) of the Public Officers Protection Act, which states as follows;<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">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 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 shall have effect:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the defendants’ contention that the cause of action in this suit is time barred and, therefore, incompetent thereby robbing the Court of the requisite jurisdiction to entertain same, citing <i>Ibrahim v. JSC</i> [1998] 14 NWLR (Pt. 584) 1, where the Supreme Court held that section 2(a) of the Public Officer Protection Act gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material time acted within the confines of their public duty. That the definition of “any person” in the Public Officers Protection law (same with Act) cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company, or anybody or person, corporate or unincorporated, citing <i>Ibrahim v. JSC</i>. Also referred to the Court is <i>Bassey v. Minister of Defence</i> [2000] All FWLR (Pt. 343) 1799 at 1805 – 1806.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants continued that where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by limitation law for instituting such an action has elapsed. That an action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation in question prescribes a period within which an action must be brought. Legal proceeding cannot be properly or validly instituted after the expiration of prescribed period, citing <i>NPA v. Lotus Plastics Ltd & anor</i> [2006] All FWLR (Pt. 297) 1023 at 1045.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Applying the above principles of law and case law to the 1<sup>st</sup> defendant/applicant, the defendants submitted that the 1<sup>st</sup> defendant/applicant is a public officer and consequently protected by section 2(a) of the Public Officers Protection Act. It is the defendants’ submission that the plaintiff’s alleged cause of action occurred on 26<sup>th</sup> August 2012 and the plaintiff filed this suit on the 11<sup>th</sup> February 2014. That from this submission, the plaintiff commenced this suit against the defendants outside the three months statutory period within which to sue the defendants. The defendants/applicants were sued 18 months after the alleged wrong was committed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the defendants/applicants then urged the Court to dismiss this suit against the defendants with substantial cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant responded to the defendants’ preliminary objection by filing a written address. The claimant framed two issues for determination, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the preliminary objection filed by the defendants amounts to a demurrer.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the Rules of this Court allow a demurrer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue a), the claimant contended that he commenced this action by way of General Form of Complaint dated 11<sup>th</sup> February 2014. That the records of this Court show that the defendants have not filed a statement of defence to the action. That the defendants’ preliminary objection alleges that the 2<sup>nd</sup> defendant is not a juristic person and as such cannot be sued but there is no fact before the Court to support such presumption. Act That the <i>Black’s Law Dictionary</i> Abridged 7<sup>th</sup> Edition defines demurrer at page 353 as –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiffs to state a claim for relief and for the defendants to frame an answer. In most jurisdictions such pleading is now termed a Motion to Dismiss<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That since the defendants did not file a defence to this action, the defendants have not framed an answer, urging the Court to find and hold that the step or steps taken by the defendants particularly the preliminary objection amount(s) to a demurrer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue b), the claimant submitted that it is trite that the rules of court do not allow a demurrer. That though the NIC Rules 2007 do not specifically state that demurrer is not allowed, the NIC Act 2007 states in section 12(1) that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure of the Court existing immediately before the commencement of this Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the purport of section 12 is that this Court can and should have recourse to the rules of the Federal High Court or the High Court of Lagos State where there is an absence of any such provisions. That the High Court of Lagos State (Civil Procedure) Rules 2012 and the Federal High Court (Civil Procedure) Rules 2009 both state clearly that demurrer shall not be allowed, urging the Court to find and hold that the rules of this Court do not allow a demurrer. The claimant then prayed for an order dismissing the defendant’s preliminary objection dated 20<sup>th</sup> October 2014 in its entirety with substantial and exemplary costs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the competence of the 2<sup>nd</sup> defendant, the claimant contended that the defendants failed, neglected or refused to point to any law that supports their contention that the 2<sup>nd</sup> defendant is not a competent party that can sue or be sued. The claimant then invited the Court to take judicial notice (pursuant to section 122 of the Evidence Act 2011) of the fact that the 2<sup>nd</sup> defendant predates the Federal Republic of Nigeria. That the grounds for this invitation are to be found in the website of the 2<sup>nd</sup> defendant, to wit: <a href="http://www.customs.gov.ng/"><span style="text-decoration:none;text-underline: none">www.customs.gov.ng</span></a>. That on this site, under the section headed “Brief History of NCS”, the 2<sup>nd</sup> defendant said of itself as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">What is now known as the Nigeria Customs Service – a paramilitary organisation, could be said to have been established a little over a century ago when the British colonial administration appointed Mr. T.A. Wall, in 1891, as the Director-General of Customs for the collection of inland Revenue in Niger Coast Protectorate. This is the formalization of the duties which the Department had been performing under the Royal Niger Company under the leadership of the past Chief Executives.<b><o:p></o:p></b></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><b> </b></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The name Department of Customs and Excise emerged in 1922 when the first Comptroller of Customs and Excise, Federation of Nigeria was appointed. Towards the end of 1945, the Customs and Excise Preventive service was established under the leadership of Mr. Nicol – a Briton. This was made up of two divisions – Maritime and Preventive. The maritime Division has the responsibility of collecting import and excise duties and other related functions while the Preventive Division was responsible for enforcement duties which included prevention of smuggling as well as arrest and prosecution of smugglers.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Sequel to the promulgation of the Customs and Excise Management Act (CEMA) No. 55 of 1958 the affairs of the Department were brought under the management of a Board. The Chairman of the Board of Customs and Excise was made the Chief Executive Officer of the Department. Mr. E. P. C. Langdon, a Briton, was appointed the first Chairman and Chief Executive Officer in 1959. Mr. S. G. Quinton succeeded him.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the defendants said in their written address that the enabling law of the 2<sup>nd</sup> defendant is the Nigerian Customs Service Board Act. That this is not true as there is nowhere in that law where it said so. That the Legal Framework of Customs is basically as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Customs & Excise Management Act (CEMA) Cap 45, Law of the Federation of Nigeria, 2004 vests Legal Authority in the Nigeria Customs Service to act on behalf of the Federal Government of Nigeria in all Customs matters. This is supported by various supplementary legislations, including:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Customs and Excise (Special Panel and other Provisions) Cap 45, Laws of the Federation of Nigeria, 2004;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Customs Duties (Dumped and Subsidized Goods) Act Cap 87 Laws of the Federation of Nigeria:<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Nigeria Pre-shipment Inspection Decree No. 36 of November, 1979 further amended by Decree No. 11 of 19<sup>th</sup> April 1996;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Decree No. 45 of 1<sup>st</sup> June 1992 as amended by Decree No. 77 of 29<sup>th</sup> August 1993;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Customs and Excise Management (Amendment) Act No. 20 of 2003;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:1.0in;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Constitution of the Federal Republic of Nigeria; and<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="margin-left:1.0in;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l2 level1 lfo6"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Customs and Excise Agents (Licensing) Regulations 1968 (Legal Notice 95/1 968 as amended).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the 2<sup>nd</sup> defendant confirmed all of this as they are also stated exactly the same thing on the website of Customs to wit <a href="http://www.customs.gov.ng/"><span style="text-decoration:none;text-underline:none">www.customs.gov.ng</span></a>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The Court was also invited to take judicial notice of the fact that the 2<sup>nd</sup> defendant generally plays a pivotal role in the economic life of any country including Nigeria. That there is hardly any sector of the economy that is not directly or indirectly affected by the activities of the 2<sup>nd</sup> defendant, whose functions include, but not limited to the following –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Collection of Revenue (Import /Excise Duties & other Taxes /Levies) and accounting for same;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Anti-Smuggling activities;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Security functions;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Generating statistics for planning and budgetary purposes;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Monitoring Foreign Exchange utilization etc;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Engaging in Research, Planning and Enforcement of Fiscal Policies of Government;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->g)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Manifest processing;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->h)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Licensing and registration of Customs Agents;<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->i)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Registration and designation of collecting banks; and<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo7"><!--[if !supportLists]-->j)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Working in collaboration with other government agencies in all approved ports and border station<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Again, that the 2<sup>nd</sup> defendant confirmed all of the above, referring to the website of the 2<sup>nd</sup> defendant, to wit: <a href="http://www.customs.gov.ng/"><span style="text-decoration: none;text-underline:none">www.customs.gov.ng</span></a>. That the claimant repeated all of this and said further that the functions of the 2<sup>nd</sup> defendant are those that only a legal person can perform. That it is, therefore, clear that the 2<sup>nd</sup> defendant must be and is a legal person. That the legal framework of the 2<sup>nd</sup> defendant could only have been built to support a legal person. Put differently, that all the laws that touch and concern the 2<sup>nd</sup> defendant could not and would not have been made if it was not a legal person. The legal provisions were made because the 2<sup>nd</sup> defendant is a legal person. And, of course, that it is settled law that if a person performs the duties or carries out the functions of a legal person, then that person is a legal person.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><b> </b></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the defendants relied or tried to rely on the provisions of the Nigerian Customs Service Board Act but did not point to any part of that Act that said the 2<sup>nd</sup> defendant is not a legal person. That the provisions of the Act are very clear as to the distinction between the Board (created under the Act) and the 2<sup>nd</sup> defendant (which the Act did not create). In that regard, that the Court should peruse sections 7, 8, 9, 10 and 11 of the Nigerian Customs Service Board Act, for they leave no dubiety as to the distinction between the Board and the Service.<i> </i>The claimant then referred the Court to <i>Comptroller Abdullahi B. Gusau v. Comptroller Geberal of Customs & ors</i> [2014] LPELR-13367(CA) and <i>Nigeria Customs Service & anor v. Sunday Osaro Bazuaye</i> [2005] LPELR-5948(CA) as precedents for the defendants suing and being sued. The claimant then urged the Court to find and hold that the 2<sup>nd</sup> defendant is a legal (juristic) person and, therefore, capable of suing and being sued.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to whether this case is statute-barred, the claimant submitted that in determining the competence of an action, recourse is to be had to the claim of the claimant and nothing else at this stage. The claimant then invited the Court to peruse his claims and to find and hold that –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->He claims that he was posted to a new duty post because the letter purportedly retiring him was superseded by the letter posting him to a new duty post (see claim 1) In other words, he is being prevented from doing his job at his new duty post.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->He was at all times and is still an officer of Custom (see claim 2).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendants are to jointly and severally compute and pay to him all salaries, allowances and other emoluments due to him from February 2012 to date (see claim 3). In other words, the defendants have refused to pay him his salary and other benefits due to him as a serving officer.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo8"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendants jointly and severally promoted the claimant to ranks commensurate with his last rank in accordance with the rules and regulations of the Nigeria Customs Service (see claim 4). In other words, the defendants have refused to promote him to the next rank due to him as a serving officer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant then, the relevant part of the law that applies to this case in section 2(a) of the Public Officers protection Act is that relating to the continuance of damage or injury. The claimant accordingly urged the Court to find and hold that his claims relate to the “continuance of damage or injury” exception to the limitation law. That his claims are cognisable because the damage or injury has not ceased; as such time has not begun to run against him, urging the Court to resolve this issue in his favour and dismiss the defendants’ preliminary objection with substantial and exemplary costs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants reacted on points of law. Here, the defendants raised two issues –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo9"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not the notice of preliminary objection is determined by references to the plaintiff’s writ of summons and statement of claim.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo9"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not the notice of preliminary objection filed by the defendant as to the jurisdiction of this Honorable Court, amounts to demurrer.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 1), the defendants submitted that the notice of preliminary objection is determined by reference to the plaintiff’s writ of summons and statement of claim, relying on <i>Fawehinmi v. President FRN</i> [2007] 4 NWLR (Pt .1054) 275. That the plaintiff’s response dated 12<sup>th</sup> March 2015 is irrelevant in the consideration of the Court in arriving at its jurisdiction. What the Court is enjoined to consider is the plaintiff’s statement of claim. The defendants went on that Nigeria Customs Service is not a juristic person rather the Nigeria Customs Service Board as provided by the combined reading of sections 1, 3, and 6 of the Nigeria Customs Service Board Act Cap. N100 LFN 2004. That the juristic or legal personality that can sue and be sued in matters relating to Customs and Excise is the Nigeria Customs Service Board. That the plaintiff’s action was not commenced within the three months of limitation of action pursuant to section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 and also under section 6(2) Nigeria Customs Service Board Act Cap N 100 LFN 2004, and so liable to be dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 2) i.e. whether or not the notice of preliminary objection filed by the defendants as to the jurisdiction of this Court amounts to demurrer, the defendants submitted that jurisdiction which is the pillar of any case is distinct to demurrer proceedings. The defendants then referred the Court to <i>Bamilsile v. Osasuyi & ors</i> [2007] without supplying the citation, and the Supreme Court decision of <i>NDIC v. CRN</i> [2002] 8 NWLR pages 18 – 19, which held the issue of demurrer proceedings to be distinct from that of jurisdiction, and that the rule against demurrer does not bar a party from raising a notice of preliminary objection challenging the jurisdiction of the court when such issue of fact or law was never raised in his pleading. The defendants then urged the Court to hold that it has no jurisdiction over this case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this case. I must make the preliminary remark that rules of Court are to be respected. Order 20 Rule 3 of the NIC Rules 2007 enjoins that where any unreported judgment is relied upon the Certified True Copy shall be submitted along the written address. Counsel to the defendants referred to the unreported case of <i>Kulles Ltd v. Fashan Jia de Jin Metal & 4 ors</i> Suit No. FHC/CS/1181/2009 delivered on 31<sup>st</sup> May 2012 without complying with Order 20 Rule 3 of the NIC Rules 2007. Even the requirement under Order 20 Rule 2 of numbering serially the written address was not complied with. Added to this is the poor language/sentence construction evident throughout the defendants’ written address. All of this does not say well of counsel to the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">A second preliminary remark relates to the prevalence of generalized and unsubstantiated assertions. For instance, the claimant at paragraph 5.1.8 of his written address responding to the defendants’ preliminary objection, the claimant submitted that it is settled law that if a person performs the duties or carries out the functions of a legal person, then that person is a legal person. No authority for this proposition was given by the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">These preliminary remarks made, I now turn to the merit of the matter at hand. In his response to the defendant’s preliminary objection, counsel to the claimant cited and quoted section 12(1) of the NIC Act 2006, which provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of court as may be made pursuant to this Act <i>or, in the absence of any such provisions, in substantial conformity with the practice and procedure of the Court existing immediately before the commencement of this Act</i> (the emphasis is the claimant’s).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Relying on the italicized portion of the quotation, the claimant submitted that the purport of section 12 of the NIC Act 2006 is that this Court should have recourse to the Rules of the Federal High Court or the High Court of Lagos State because these rules state clearly that demurrer shall not be allowed. If I get the counsel to the claimant right, because the NIC Rules 2007 did not state that demurrer shall not be allowed, then relying on section 12 of the NIC Act 2006, this Court must apply the Federal/Lagos State High Court Rules.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">First, and by no stretch of imagination can it be said that the construction of section 12(1) of the NIC Act enjoins this Court to apply the rules of another Court simply because the rules of this Court did not disallow an issue. Section 12(1) of the NIC Act 2006 itself when it talked of the absence of any provision enjoined this Court to act as per the practice and procedure of the NIC existing immediately before the commencement of the NIC Act 2006. Each reference to “the Court” in section 12(1) is a reference to the NIC, not another court. This is because section 1(1) of the NIC Act 2006 provides that: “there is established a court to be known as the National Industrial Court (in this Act referred to as “the Court”)”. What this means is that for purposes of the NIC Act 2006, reference to “the Court” signifies the NIC. Section 12(1) cannot accordingly signify that the rules talked of are rules of other courts as counsel to the claimant seems to think.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The point remains, therefore, that since the NIC Act did not provide for demurrer, counsel to the claimant cannot force it on the Court by importing rules from other courts. This aside, if counsel to the claimant had done her homework, she would have realized that case law authorities do not support her stance. The defendants made this point quite clearly in their reply although they relied on authorities that were not appropriately cited. In <i>Standard Cleaning Service Co. v. The Council of Obafemi Awolowo University, Ile-Ife</i> [2011] LPELR-4977(CA), the Court of Appeal relied on a number of cases including the Supreme Court decision in <i>NDIC v. CBN</i> [2002] 7 NWLR (Pt. 766) 272 at 296 – 297; [2002] 3 SC 1, and held that the issue of jurisdiction is not a matter for demurrer proceedings and so it does not always follow that a defendant must first plead in order to raise the issue of jurisdiction. In <i>Liverpool and London Steamship Protection and Indemnity Association Ltd v. M/T Tuma & ors</i> [2011] LPELR-8979(CA), Okoro, JCA (as he then was) held that an objection as to jurisdiction can be taken on the basis of the statement of claim, or it can be taken on the evidence received or by a motion on notice supported by affidavit given the facts upon which reliance is placed; and that this should not be confused with demurrer. <i>Pastor Sunday Falodun Akeredolu v. James Femi Omiyale & ors</i> [2013] LPELR-22800(CA) held the issue of jurisdiction and demurrer to be poles apart and different. To the Court of Appeal, the issue of jurisdiction is not a matter for demurrer; as such an application by way of a preliminary objection which seeks an order to the effect that the action is incompetent, statute-barred and that the court lacks jurisdiction cannot be equated with the doctrine or plea of demurrer. The Court of Appeal went on that such an application/preliminary objection can be filed/raised and subsequently taken/heard without or before the filing of the statement of defence.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">See further <i>Lasisi Akanji Oluode & anor v. Mr. Waidi Ishola Abesupinle</i> [2008] LPELR-4424(CA) and <i>Wuro Bogga Nig. Ltd & anor v. Hon. Minister of FCT & ors</i> [2009] LPELR-20032(CA).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Given these authorities, and for all the reasons given, the claimant’s argument as to demurrer lacks merit and so is rejected and hence dismissed. See additionally, this Court’s decision in <i>Oniode Babajide v. The Nigerian Army & anor</i> unreported Suit No. NICN/LA/61/2014 the ruling of which was delivered on 25<sup>th</sup> February 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I now proceed to the issues raised by the defendants in their preliminary objection; and the first is whether the 2<sup>nd</sup> defendant is a juristic person. The claimant submitted that the 2<sup>nd</sup> defendant is a juristic person; and at paragraph 5.1.9 of his written address responding to the defendants’ preliminary objection he argued that the defendants relied or tried to rely on the provisions of the Nigerian Customs Service Board Act but did not point to any part of that Act that said the 2<sup>nd</sup> defendant is not a legal person. There is a measure of misconception here on the part of the claimant. Legal personality on an artificial entity is clothed on that entity by way of positive provisions, not negatively as the claimant seems to think by arguing that no provision stated the 2<sup>nd</sup> defendant not to be a legal person. In administrative law, with human beings all things are permissible except those prohibited; but with artificial persons, all things are prohibited except those specifically allowed. So for an artificial entity to have legal personality, the law must specially state so and clothe it as such, not the way of the claimant that the law must state that the entity is not a legal person.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The same error of analysis is what yielded to the claimant’s submission in same paragraph 5.1.9 that because the Board can delegate to “the Service”, and that there are provisions in sections 7 – 11 of the Nigerian Customs Service Board Act specifically alluding to “the Service”, all of that is suggestive of the fact that “the Service” is a legal person. Once again, that delegation can be made to a person (‘delegatee’) is not suggestive that the delegatee is a sue-able person. We are all too familiar with the rule that once a principal is disclosed, the agent cannot be proceeded against on anything done by the agent on behalf of the disclosed principal. Even when the claimant alluded to <i>Comptroller Abdullahi B. Gusau v. Comptroller General of Customs & ors</i> [2014] LPELR-13367(CA) and <i>Nigeria Customs Service & anor v. Sunday Osaro Bazuaye</i> [2005] LPELR-5948(CA) as cases where the 2<sup>nd</sup> defendant in this case was sued or sued as such, the claimant did not tell this Court whether the question of its legal personality was an issue addressed in those cases as to be authorities for the proposition he canvasses.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The issue whether the 2<sup>nd</sup> defendant is a legal person capable of being sued is one this Court had considered in an earlier case. In <i>Kayode Ajani Jokosenumi v. Nigeria Customs Service</i> unreported Suit No. NICN/LA/111/2014 the ruling of which was delivered on March 16, 2015, for instance, this Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">…Section 6(1) of the Nigerian Customs Service Board Act 2004 in providing that “Notwithstanding anything to the contrary contained in other law, no action shall be instituted against <i>the Board</i> in respect of any act, neglect, or default done or omitted to be done by any officer, servant or agent of <i>the Board</i> in his capacity as an officer, servant or agent of <i>the Board</i>…”, is pretty clear that the proper defendant in an action such as this is the Board itself. Since the claimant did not sue the Board in the instant case, it is tempting to come to the conclusion, as did the defendant, that the case is thereby incompetent. However, <i>Pfizer Incorporated & anor v, Prof. Idris Mohammed</i> [2013] 16 NWLR (Pt. 1379) 155 held that party incorrectly named can be corrected by an amendment, but not when the mistake is one of identity. The claimant in this case sued “Nigeria Customs Service” instead of “Nigerian Customs Service Board”. To my mind the error here is not one of identity but simply that of an incorrectly spelt name which is correctable by an amendment; and I so find and hold. That being the case, the argument of the defendant in that regards goes to no issue and so is dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the instant case, not only was the Nigeria Customs Service Board sued, but the Nigeria Customs service was also sued. So the issue of this being an error does not arise because the choice of the defendants is deliberate; as such the issue is one of identity not just an issue of incorrectly naming the 2<sup>nd</sup> defendant. There is no doubt about this given that the claimant strongly argued that the 2<sup>nd</sup> defendant is a legal entity with “the Service” capable of being delegated duties. In fact, the claimant went on here to make a distinction between the Nigerian Customs Service Board Act (NCSBA) 2004 and the Customs and Excise Management Act (CEMA) 2004. The argument of the claimant is that CEMA vests legal authority in the Nigeria Customs Service to act on behalf of the Federal Government, which means that the 2<sup>nd</sup> defendant is a legal entity as such. The commencement date of CEMA is 1<sup>st</sup> April 1959, while that of the NCSBA is 1<sup>st</sup> June 1992. This means that given the principle of priority of statutes, the NCSBA takes priority over CEMA. Aside that, section 1(1) of the NCSBA, which established the Nigerian Customs Service Board under the control of the Federal Ministry of Finance, then provides that the Board shall be responsible for the administration of the Customs and Excise Management Act. I indicated earlier as per <i>Kayode Ajani Jokosenumi v. Nigeria Customs Service</i> (<i>supra</i>) that section 6(1) of the Nigerian Customs Service Board Act 2004, in providing that “Notwithstanding anything to the contrary contained in other law, no action shall be instituted against <i>the Board</i> in respect of any act, neglect, or default done or omitted to be done by any officer, servant or agent of <i>the Board</i> in his capacity as an officer, servant or agent of <i>the Board</i>…”, is pretty clear that the proper defendant in an action such as this is the Board itself. If, as the claimant argues, the Board can delegate to “the Service”, then “the Service” must be an agent for which it is the Board that is the proper defendant to be sued; and I so find and hold. This being the case, and in the context of the instant suit, the 2<sup>nd</sup> defendant is not a legal entity capable of being used as such. The prayer of the defendants to strike out the name of the 2<sup>nd</sup> defendant accordingly succeeds and is hereby granted. The name of the 2<sup>nd</sup> defendant is, therefore, struck out.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This leaves out the question whether this suit is statute–barred; and here only the originating processes of the claimant can be considered. In determining whether an action is statute-barred, Courts are enjoined to determine what the cause of action is, when it arose and when the action was ultimately filed by the claimant. A cause of has been defined as the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See <i>AG, Federation v. AG, Abia State & ors</i> [2001] 11 NWLR (Pt. 725) 689 at 733.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What then is the cause of action in the instant case; and when did it arise? By relief 1, the claimant prays for a declaration that a letter dated 6<sup>th</sup> March 2012 nullifies another dated 20<sup>th</sup> December 2011. Relief 3 prays for the claimant’s salaries, allowances and other entitlements due to him from February 2012 to date. If relief 1 is granted, then relief 2 prays for the claimant to be declared an officer of the Nigeria Customs Service at all times material to this suit. This means that relief 2 is contingent on relief 1. Paragraphs 5 – 11 of the statement of facts (as well as paragraphs 5 – 11 of the witness statement on oath) show that the complaint of the claimant is that he was due for promotion in 2012 and started the process when he was posted to Ogun State Area Command by a letter dated 6<sup>th</sup> March 2012; only for another, this time dated 20<sup>th</sup> December 2011 to be handed to him retiring him from service on medical grounds. He was then told to hand over all Government property in his possession, which he did and he was handed a letter of clearance dated 26<sup>th</sup> April 2012. From this state of facts, the claimant is contesting his retirement from service, which retirement process was completed by the letter of clearance dated 26<sup>th</sup> April 2012. The cause of action is accordingly the wrongful retirement of the claimant for which the claimant wants the Court to set aside given his prayer in relief 2; and I so find and hold. Since the process of the retirement was completed when he was given the letter of clearance, it means that the cause of action arose as from 26<sup>th</sup> April 2012; and I so find and hold. The claimant filed this suit on 11<sup>th</sup> February 2014 i.e. a little over 21 months after the cause of action arose. This being the case, it is my finding and holding that the claimant filed this action way out of the 3 months period allowed by section 2(a) of the Public Officers Protection Act, the defendant being a public officer on the authority of <i>Ibrahim v. JSC, Kaduna State & ors</i> [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 and <i>Mahmoud Bello & ors v. Nigeria Customs Service Board</i> unreported Suit No. NICN/LA/664/2013 the ruling of which was delivered on September 25, 2014. This suit is accordingly statute-barred; and I so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant sought refuge under the continuance of damage or injury exception to section 2(a) of the Public Officers Protection Act, arguing that his claims relate to continuance of damage or injury. Here, it appears that counsel to the claimant does not even know the meaning of continuing damage or injury as defined by case law. It must be noted that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. See<i> Okafor v. AG, Anambra State</i> [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of <i>Carrey v. Bermondsey Metropolitan Bourough Council</i> [1903] 675 P. 447; 20 TLR 2, <i>Amamiwe v. The Local School Board</i> [1971] 2 NMLR 57 at 58, <i>Obiefuna v. Okoye</i> [1961] All NLR 357,<i> AG, Rivers State v. AG, Bayelsa State & anor</i> [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150, <i>Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors</i> [2013] 32 NLLR (Pt. 91) 63 NIC, <i>Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor</i> unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014 and <i>Mahmoud Bello & ors v. Nigeria Customs Service Board</i> (<i>supra</i>). In the instant case, the act which caused the injury is the retirement letter. This cannot be termed a continuing damage or injury as to justify the application of the “continuing damage or injury” exception of the limitation rule as the counsel to the claimant argues. The argument of counsel to the claimant in that regard has no merit whatsoever and is accordingly rejected and hence dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the whole, the preliminary objection of the defendants has merit and is hereby sustained. Given that hearing had actually commenced with the claimant testifying, the case is hereby dismissed. Cost of the day is put at Fifty Thousand Naira (N50,000.00) only payable by the claimant to the defendant within 30 days of this judgment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>