Download PDF
The claimants took up a complaint dated and filed on 25th May 2012 against the defendants in this Court praying for the following reliefs – a. N3,445,259,324.28 (Three Billion, Four Hundred and Forty-Five Million, Two Hundred and Fifty-Nine Thousand, Three Hundred and Twenty-Four Naira, Twenty-Eight Kobo) being the outstanding financial remuneration of the claimants as former Councilors and Appointees of the Eighteen Local Government Areas of Cross River State between 2007 – 2010. b. N50 M (Fifty Million Naira) General damages for the hardship inflicted on the claimants for unlawfully short-paying them, and withholding their remunerations. c. Interest on (a) and (b) above at 10% after judgment until the entire sum is liquidated. d. N20M (Twenty Million Naira) only being the cost of Action. Accompanying the complaint are the statement of facts, list of claimants’ witnesses/list of documents and copies of the documents to be relied upon at the trial. It is in reaction to this complaint that the 1st, 2nd and 6th defendants filed a notice of preliminary objection dated 3rd December 2012 but filed on 4th December 2012 as to the jurisdiction of this Court to hear and determine this suit on the ground that this action is not properly constituted and, therefore, incompetent. The Court had at its sitting of 6th November 2012 noted that this action was filed on 25th May 2012 in respect claims relating to 2007 – 2010 thus raising the question whether the action is not caught up by the limitation laws. Parties were then directed to address the Court on this issue. While the 1st, 2nd and 6th defendants and the claimants filed written addresses, the 19th defendant simply associated itself with the submissions of the 1st, 2nd and 6th defendants; the 16th defendant was indifferent. In arguing their position, the 1st, 2nd and 6th defendants (for the purpose of this ruling, they will simply be referred to as ‘the defendants’) started off by stating that the crux of the case of the claimants as demonstrated in paragraph 21 of the statement of facts is that their salaries for the period July 2008 to December 2010, furniture allowance and severance allowance were underpaid by the defendants, hence the commencement of this action on 25th May 2012 after a period of one year, four months and twenty-five days from December 2010, the effluxion of their tenure in office. The defendants then framed two issues for the determination of this Court, namely – 1. Whether this suit is statute-barred by virtue of the provisions of section 1A of the Public Officers (Protection) Law Cap. P17, Vol. 5, Laws of Cross River State 2004, as amended by the Public Officers Protection (Amendment) Law No. 1 of 2007 and section 60 of the Cross River State Local Government Law No. 22 of 2007, as amended by the Cross River State Local Government (Amendment) Law No. 1 of 2008. 2. Whether this action is properly constituted and, therefore, competent. Regarding issue 1, the defendants submitted unequivocally that this action is statute-barred, citing section 1A of the Public Officers (Protection) Law Cap. P17, Vol. 5, Laws of Cross River State 2004, as amended by the Public Officers Protection (Amendment) Law No. 1 of 2007, which stipulates that – Where any action…or proceeding is commenced against any person for any act done in pursuance or execution…of any public duty…the action…or proceeding shall not lie or be instituted unless it is commenced within six months next after the act…complained of…. To the defendants, the law is that in determining whether or not an action is statute-barred, the Court should have recourse to the writ of summons and the statement of claim, referring to Elabanjo v. Dawodu [2006] 27 NSCQR 318 at 323 SC. That applying this case to paragraph 21 of the claimants’ statement of facts, where they averred that the “GRAND TOTAL (TOTAL DEBT PROFILE)” representing what they termed “SALARY ARREARS (JULY 2008 – DECEMBER, 2010)”; BALANCE OF FURNITURE ALLOWANCE” and “BALANCE OF SEVERANCE ALLOWANCE”, it is obvious that the claimants’ suit is statute-barred. The defendants then submitted that the underpayment started in July 2008 for which the claimants ought to have commenced an action for the recovery of the balance of the July 2008 salaries before the end of January 2008 i.e. within the period of six months from July 2008 when the alleged underpayment first occurred. As for the December 2010 salaries, that the claimants ought to have instituted an action to recover the balance before the end of June 2011. That having failed to do all this, the claimants are caught up by section 1A of the Public Officers protection Law of Cross River State. The defendants then referred the Court to Ibrahim v, JSC [1998] 14 NWLR (Pt. 584) 1, Nwaka v. Head of Service, Ebonyi State [2008] All FWLR (Pt. 402) 1156, Texaco v. Shell [2002] 3 MJSC 1, Bank of the North Ltd v. Gana [2006] All FWLR (Pt. 296) 862, Elabanjo v. Dawodu (supra), William v. William [2008] All FWLR )Pt. 433) 1245, Ekeogu v. Aliri [1991] 3 NWLR (Pt. 179) 258, Egbe v. Adefarasin [1987] 1 SC, Egbe v. Alhaji [1989] 1 NWLR (Pt. 128) 546 and Offoboche v. Ogoja Local Government [2001] 16 NWLR (Pt. 739) 458 at 475 SC. The defendants went on that apart from section 1A of the Pubic Officers protection Law of Cross River State, the case is also caught up by section 60 of the Cross River State Local Government Law No. 22 of 2007, as amended by the Cross River State Local Government (Amendment) Law No. 1 of 2008, which provides that actions against any Local Government in the State must be instituted within one year from the date of the accrual of the cause of action. To the defendants, therefore, this suit against the 3rd – 20th defendants is in violation of section 60 of the Cross River State Local Government Law and so should be dismissed, referring to Lamina v. Ikeja Local Government [1993] 8 NWLR (Pt. 314) 758. The defendants then asked whether there is any circumstance(s) in this case warranting the relaxation, postponement or complete non-application of the provisions of section 1A of the Public Officers Protection Law and section 60 of the Cross River State Local Government Law to this matter. The defendants answered in the negative. Referring to paragraph 22 of the statement of facts, the defendant submitted that not only did the claimants not substantiate, through documents, the fact of the negotiations talked of, but that on the authority of Eboigbe v. NNPC [1994] 5 NWLR (Pt. 347) 649 at 653 – 654 per Adio, JSC, negotiations by the parties do not preclude, bar or stop the period of limitation stipulated by a statute from running. In any event, given the averment in paragraph 13 of the statement of facts, the defendants contended that there is no document(s) before the Court from which the Court can infer that as a result of the purported negotiations, there is what can be reasonably regarded as a settlement of the dispute or an admission of liability during negotiation and all that remains is the fulfillment of the agreement on the part of the defendants, to necessitate the relaxation of the Public Officer Protection Law. Furthermore, that the averment in paragraph 23 of the statement of facts and the document referred therein cannot also prevent the operation of the limitation, referring to Eboigbe v. NNPC (supra) at page 660. The defendants then urged the Court to dismiss the action of the claimants on this ground. Regarding issue 2, the defendants contended that from paragraph 16a of the claimants’ statement of facts, the claimants are 378 and that the six claimants whose names appear on the processes of this Court are suing for themselves and on behalf of the other 372 purported claimants. To the defendants, this action as commenced is not properly constituted and so is incompetent. The defendants continued that since the claims of the claimants are for salary arrears and balance of furniture and severance allowances, these claims are personal to the claimants; and none of the claimants has any personal or communal interest in the claims of the other(s) to justify the commencement of this action in a representative capacity, citing Ofia v. Ejem [2006] 26 (Pt. II) NSCQR 877. In any event, that each of the claimants is expected to plead and prove his/her claim by evidence facts such as: which Local Government he/she was elected or appointed to represent; the salary and allowances entitled to per month; what is presently being owed to the individual claimant, etc. that such evidence cannot be supplied by any of the six named claimants. Referring the Court to Dumez v. Nwakhora [2008] 36 (Pt. II) NSCQR 885, the defendants contended that this action is unsustainable as there is nothing before the Court to show that the claimants a joint and undivided interest or share in the salaries and allowances of those they purport to represent in this action. The defendants went on to submit that given the claim for damages in relief (b), and on the authority of Interland Transport Ltd v. Adeniran [1986] 2 NWLR (Pt. 20) 78 at 80, the claimants cannot by a representative action seek to establish the right of numerous persons to recover damages each in his/her own right. That this court accordingly lacks the jurisdiction to adjudicate upon this matter; and for this, also lacks the vires to consider whether there exists a cause of action in the instant case, referring to Emecheta v. Ogueri [1996] 5 NWLR (Pt. 447) 227 at 240H. Also referred to the Court is Ogwuche v. Mba [1994] 4 NWLR (Pt. 336) 75 at 85 A – B. In conclusion, defendants urged the Court to find and hold that the suit is not properly constituted and that the action is also statute-barred and accordingly to dismiss the suit. In reaction, the claimants framed four issues for the determination of the Court, namely – 1. What is the cause of action in this suit? 2. Whether the cause of action in this suit exceeds the statutory time. 3. Whether granted but not conceding that this suit is statute barred, whether the said law permits of any exception(s). 4. Whether there is sufficient commonality of interest among the claimants to sustain a representative action? Regarding issue 1, the claimants contended that the cause of action in this case is the subject of dispute, which is the correspondence of the second defendant, Ref. No. MLGA/S/84/Vol.xv/191 of 28th February, 2012. That the claimants disputed this letter and openly declared that they are challenging the said letter in court. The writ of summons clearly anchored the cause of action on the said letter, and in part stated thus – ...their memorandum to the State Governor, Ref: MLGA/S/84/Vol.xv/191 of 28th February, 2012 listed the underpayment due to the claimants, which again fall short of the actual figures, hence this suit (emphasis is the claimants’; and the paragraph from which this quotation is taken is not provided). To the claimants, the correspondence of the 2nd defendant dated 28th February 2012 is what triggered this suit; and that they went to court on the 25th May 2012, barely two months and twenty five days after the cause of action arose. That the suit is, therefore, well within the 3 months period prescribed by section 1A of the Public Officers Protection Law of Cross River State and the one year statutory period provided for by the section 60 of the Local Government Law of Cross River State 2007, as amended. In any event, that the statement of claim vividly gave a pointer to where the cause of action lies, referring to paragraph 15 thereof. The claimants continued that a cause of action consist of every fact which would be necessary for the plaintiff to prove (Fasheun Motors Ltd v. UBA Ltd [2000] 1 NWLR (Pt. 640) 190 at 195), if traversed, in order to support his right to judgment. In other words, it is the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his case must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant, citing Ajayi v. Military Administrator, Ondo State [2012] 7 QRR 612 – 613 H.29 and Adiora v. Ajufo [1988] 3 NWLR (Pt. 80) 1. That the second defendant's memorandum of 28th February 2012 which provoked the claimants into instituting this action constitutes the “facts which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought”. Indeed, it is the factual situation on which the plaintiff relies to support his case. To the claimants then a cause of action is a factual situation which makes a matter in litigation an enforceable right or an actionable wrong, referring to Expo Ltd v. Pafab Ent. Ltd [2012] 2 QRR 36 H.a. That the correspondence in this matter, which the claimants are disputing, is an actionable wrong, and the date therein falls within the preview of enforceable right. Citing Calabar east Co.op v. Ikot [1999] 14 NWLR (Pt. 638) at 235, the claimants went on that the case which they have “put across the table” to enable the defendants respond is the contention raised in the memorandum of the Hon. Commissioner, Ministry of Local Government Affairs, to the Governor, Ref. MLGA/S/84/Vol.xv/191 of 28th February 2012. That the said memo never suggested that the salaries/emoluments itself was under any contention, and the claimants are saying no such thing; rather, the claimants are contesting the figures simpliciter. That squarely puts the letter of 28th February 2012 in issue. The claimants went on that with the admissions in the memorandum of 28th February 2012, the only area that took the claimants to court was the disparity in figures. To mix-up the whole thing, and foist on the claimant a different cause of action other than the one that they are contesting, is like calling a dog a bad name just to hang it. The question of the salary/allowances of the claimants is not in dispute; the underpayments, under-computation and disqualification of some of them which the memo admitted was being redressed, is also not in contention, and the claimants are not in court for that. That the claimants are in court to question the memorandum which carried the figure of N31,339,110.14 as the claimants’ entitlements as against N3, 445,259,324.28. The claimants then urged the Court to hold that there is no other cause of action before it other than the memo of 28th February, 2012. Regarding issue 2 i.e. whether the cause of action in this suit exceeds the statutory time, the claimants contended that this issue can only be resolved when the date the cause of action arose is ascertained or known. To the claimants, by the only exhibit or document relied upon by the claimants, and attached to their statement of claim, the cause of action arose on the 28th day of February 2012 when the Hon. Commissioner, Ministry of Local Government Affairs wrote the Memo Ref. MLGA/S/84/Vol.xv/191 to His Excellency, the Governor of Cross River State, “admitting the underpayment, under computation, wrong disqualification, relating to yet came up with a wrong figure of their total emolument” which the claimants’ solicitors promptly disputed on 13th April 2012 and equally issued: ‘Notice of Intention to sue’ basically on the memorandum. Thus, it is not the ‘salaries/allowances’ that is in dispute but the shortfalls. That both parties are in consensus on the issue of the salaries/emoluments owed the claimants. What is in issue, however, is the disparity or differences in the figures claimed. In any event, that the claimants NEVER asserted that the defendants have completely refused to pay their salaries/emoluments since 2007 to 2010, rather they acknowledge that the payments have been continuous and on-going to date, but that it has been epileptic and short paid or under paid. Thus, making the issue, or tracing the injury to 2007 or 2010 is completely misplaced because that is not the grievance of the claimants before this Court. The claimants went on that their endorsements in the writ clearly shows that the issue is a recurring and life issue, and that the cause of action arose on 28th February 2012 when they (claimants) disputed the figures/formulae or aspects which the defendants are planning to pay. Referring to paragraphs 13, 14, 15, 22 and 24 of the statement of claim, the claimants reiterated that the cause of action in this case arose on 28th February 2012. Regarding the submission of the 1st, 2nd and 6th defendants to the effect that the claimants ingeniously avoided to exhibit the alleged negotiations, the claimants replied that the memo of 23/2/2012 and the reply thereto is sufficient and comprehensive answer. Secondly, that it is not in all cases that all the necessary documents referred to are handy at the point of filing. Thus, the law makes provision for reply to statement of defence, subpoenas, witness summons, etc. To the claimants, the defendants have chosen to demur. That can the defendants successfully be allowed to challenge the life of this suit in the absence of a statement of defence, more so when the presumption tilts in favour of the claimants that all they have alleged in the statement of claim remains uncontroverted, and true at all material particular? That the claimants have stated that payments by the defendants to them through vouchers, pay-slips, cheques etc, was ongoing to date of filing the suit, but epileptic/inadequate; they also faulted the formulae for payment of their salaries/emoluments as contained in their circular/correspondence of 28/2/12, and that the defendants “are about to effect the computation or payment” which they disagreed with, and as such they rushed to court to contest and to stop them from further slash of their entitlements. That the defendants have not stated which of the above facts is statute-barred. The claimants then urged the Court to disregard the defendants’ objection and unwholesome gamble on the destiny/welfare of fellow officers of Government. On issue 3 i.e. whether, granted but not conceding that this suit is statute-barred, the limitation law permits of any exception whatsoever. To the claimants, “it is trite that to every law there is an exception. Ubi Jus Ibi Remedium”. That the subject matter of this suit is predicated on the question of shortages in the calculations and payment or attempted payment of the claimants’ salaries/emoluments. That the issue of salaries and workers entitlements/benefits is distinctly outside the province of the limitation law. The rights of workers to recover their salaries/emoluments by a court action is not the valid subject of the limitation laws. The claimants then referred the Court to John Ovoh v. The Nigerian Westminster Dredging & Marine Co. Ltd unreported Suit No. NIC/9/2002 , where this Court held that – We do not think that the rights of workers are caught up by the limitation laws: for to think otherwise would mean that even rights to salaries and entitlements of an office would be time-barred. That this decision was again followed and re-affirmed by this Court in the case of Captain Tony Oghide & ors v. Shona Jason Nigeria Ltd & anor unreported Suit No. NIC/3/2008. To the claimants, laws are made, interpreted, developed, not only for the moment but for the unforeseen future and posterity. That this Court’s decision on this issue is sound, and premised on the wisdom that if it were otherwise, then pension, gratuity and all other terminal benefits or salaries, which are unnecessarily delayed in our country will forever remained forfeited and foreclosed under the umbrella of draconic and oppressive laws irrespective of whether the beneficiary is a political officer, judiciary officer/staff, Justice officer/staff, the Presidency, consulate officers, ministers of the pulpit, etc. The claimants continued that apart from the fact that salaries and workers entitlements are far from the province of the limitation law, and then contended that, granted but not conceding that this matter is in any length statute-barred, such clog or barrier has been untied in the course of time by the rule of continuity of subject or injury, viz – (a) It is categorically stated in the statement of claim that payments were ongoing, and the correspondence of 28/2/12, which was an attempt to under-pay the claimants, bore eloquent testimony to the claim of continuity of the subject matter. (b) It is also not in doubt that the shortage in payment or under payment of some of the claimants is a continuing injury. It was held in Abiodun v. A.G Federation [2012] 7 QRR320 H.44 that where the injury complained of is a continuing one, time does not begin to run until the cessation of the event leading to the cause of action. (c) Where there has been a continuance of damage, a fresh cause of action arise from time to time, as often as damage is caused referring to Oba J. A. Aremo II v. Adekanye & 2 ors [2004] 13 NWLR (Pt. 691) 572 at 580 and The Shell Petroleum Dev. Cc. Nig. Ltd v. Amadi & 12 ors [2010] 13 NWLR (Pt. 1210) 82 at 95. (d) Continuity of the subject matter and continuity of injury survives the claimants’ grievances at all times material particular and their right to sue cannot be extinguished whilst the subject matter and the injury remain afloat. The claimants then urged the Court to find their argument as the position of the law on this matter. The claimants went on that, granted but not conceding that the action is perceived to be caught up by the limitation laws, such deficiency has been revived by the various acknowledgements of the defendants by actions and correspondences, referring to the letter Ref. MLGA/S/84/Vol.xv/191 dated 28th February 2012 wherein the defendants acknowledged the debt owed by them to the claimants. Granting, but not conceding that the rights were lost, the defendants' naked acknowledgement revived the right of action of the claimants. This current suit brought on 28th May 2012 is well within three months of the current acknowledgement dated 28th February 2012 and is in line with the provisions of section 1A of the Public Officers Protection Law of Cross River State 2004, as amended, and well within the one year period prescribed by section 60 of the Local Government Law of Cross River State 2007, as amended. That the Supreme Court in NPA Plc v. Lotus Plastic Ltd & anor [2006] 2 MJSC 41 at 55 to 57 held per Mohammed, JSC that an action that is already statute-barred could be postponed or revived by reasons of fraud, mistake, acknowledgement, etc. The Court was also referred to NUC v. Oluwo [2001] 3 NWLR (Pt. 699) 90 at 109 – 110. Furthermore, that Akaahs, JCA (as he then was) in Nigeria Custom Service v. Bazuaye [2001] 7 NWLR (Pt.712) 357 at 363 held that, where there is an admission, time for limitation ceases to run. In NSITF MB v. Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 207 at 315 – 317, the Supreme Court held that where there is acknowledgement of a debt which must be in writing and signed by the party that is liable, the right to recover the debt by action is revived. In the same vein, it was held by the Court of Appeal in Chartered Brains Ltd v. Intercity Bank Plc [2009] 13 NWLR (Pt. 1165) 449 that where a right of action has accrued to recover a debt, the right of action shall be deemed to have accrued on and not before the date of the acknowledgment. The claimants continued that it was held in Shell Petroleum Dev. Co. Ltd v. Farah [2005] 5 QRR 316 – 317 H.L that the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute. That except where as a result, there is what can be reasonably regarded as a settlement of the dispute or an admission of liability on the part of the defendant, the limitation time continues to run, thus, if there has been an admission of liability during negotiation and all that remains is the fulfillment of the agreement, it cannot be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from his agreement during the negotiation - see also Eboigbe v. NNPC [1994] 5 NWLR (Pt. 347) 649 at 654 – 655, Nwadiora v. Shell Petroleum Development Company Nig. Ltd [1990] 5 NWLR (Pt. 150) 322 at 338. The claimants then went emotional appealing to the conscience of the Court, telling the Court of how the claimants served meritoriously, how their dependants would suffer if the claimants are not paid, how if the defendants are allowed to unduly explore the limitation law as a shield, it will send the wrong signals to serving public officers and convey the impression that Government is not dependable, how the labour of public officers would bear no fruit except those that the public officer can pluck for himself legally or illegally during the period of active service and then commended the dictum of Acholonu, JSC in Jombo v. Petroleum Equalisation Fund (Management Board) & 2 ors [2005] 4 FWLR 2335 at 2339 H.2 to the effect that “the court should always see itself as Knight errant in a shining armor brandishing its sword to help the hopeless and evenly seen not to collaborate with forces that choke and asphyxiate the rights of people thereby forcing them into the limbo of disillusionment and frustration....” Issue 4 deals with the question whether there is sufficient commonality of interest among the claimants to sustain a representative action. To the claimants, this issue appears more academic than a legal. In the first place, that the claimants have no dispute amongst themselves concerning the suit or their appointed representatives. Thus, it does not lie with the defendants to deny or dispute their representative action or their representative capacity, citing Sapo v. Anibere [2012] 7 QRR 315 H.30. That there is nothing in this suit that runs contra representative action because: a) The parties have common grievance touching on one thing, i.e. their salaries/emoluments, viz, all of them are disputing the one and only memorandum of 28/2/2012. b) The salaries and emoluments arose at the same period and under the same dispensation/government and expressed in the same memo under contention. c) Their salaries and emoluments are the same structure from Calabar to Obanliku, cutting across all the eighteen Local Government Areas. d) All the claimants/respondents are former councilors and former appointees of all the eighteen Local Government Areas. All of them are under one single department i.e. Ministry of Local Government Affairs, whose Commissioner raised the disputed memo of 28/2/12. e) All the claimants have everything in common and there is no sharp difference; rather, common grievance, common subject, common source of funds, common time and their grievances is against one and the same person or authority, viz, the Government of Cross River State that wrote the memo, which content is herein challenged in court. In any event, that it is clear from the totality of the claimant's statement of facts that the claimants are entitled to bring same in a representative capacity, and it is far neater than to crowd the 379 of them in this suit, when all their claims is the same. Paragraph 16 of the said statement of facts shows that the injuries to the claimants are uniform, irrespective of the Local Government Councils in which they served. Leaders in ALL Councils were uniformly short-paid, ditto Deputy leaders, Councilors, Supervisors et al. By paragraph 9 of the same statement of facts, the claimants also averred that the architect of the short-payments is the 2nd defendant, the mother state to whose apron strings the 3rd – 20th defendants are tied. There is, therefore, sufficient commonality amongst the claimants to sustain a representative action since the injuries are uniform and flow from a common source i.e. the fountain of the 2nd defendant. That the authorities of Ofia v. Ejem [2006] 26 (Pt. II) NSCQR 877 and Olatunji v. The Registrar Co-operative Society urged upon this Court by the defendants are distinguishable in that the said suits relate to land whereas the current suit relates to a common and uniform liquidated sum representing salaries and emoluments. Dumez v. Nwakora [2008] 36 (Pt. II) NSCQR 885 also commended to the attention of this court are similarly distinguishable from the current case at hand because in the Dumez case the claimants entered and left the service of their common employer at different times spanning a period of ten years, some of them were dismissed, others retired and some others left of their own volition whereas in the instant case, the claimants all served meritoriously at the same time from 2007 – 2010, suffered uniform and liquidated injuries flowing commonly from the 2nd defendant. There is, therefore, sufficient commonality amongst the claimants to sustain a representative action. The claimants then referred the Court to section 14 of the National Industrial Court Act 2006 as well as the decision of this Court in Ezeamaka Esther v. Skye Bank unreported Suit No. NIC/LA/31/2010 in which judgment was delivered on 28th June 2011 wherein this Court held that it is not in the interest of justice to order multifarious actions when a single action in a representative capacity can determine the rights and duties of all parties concerned. The claimants went on that the defendants’ reference to Order 3 Rule 4 (ii) of the National Industrial Court Rules 2007 is out of context as the claimants did not take account of the Evidence Act. That there are some of the documents referred to (like vouchers, cheques, letters, etc) which are in the hands of third parties like Banks, Government, etc. and it is only during trial that they can be subpoenaed or commanded to produce before the court. The absence of those documents before hearing cannot defeat claimants’ case. That the cases referred to by the 1st, 2nd and 6th defendants on this point are, therefore, inapplicable in the present circumstance. In conclusion, the claimants commended to the Court the case of Mr. A. S. Jombo (JP) v. Petroleum Equalisation Fund (Management Board) & 2 ors where Acholonu, JSC held that – When the statute ousts the jurisdiction of court, it does not have a tone of finality and the court has the power to encircle round it. The court must find out whether its competence has indeed been taken away. Since the right of an individual is affected, the court seised of the matter ought to carefully examine all the circumstances of the case with a view to discovering whether it fits into the orbit of the intendment of the statute. To close its eyes on the sinister tenor of ouster provision of the statute would amount to abrogation of its constitutional responsibilities. That the only document attached to the statement of claim bear eloquent testimony to the continuity of the subject matter and the continuity of injury. That the Supreme Court held recently on 4th May 2012 in Obueke & ors v. Nnamchi & ors [2012] 5 – 7 MJSC (Pt. 11) 1 at 4 that where there is continuity of acts of trespass (subject matter), successive actions can be maintained by a plaintiff from time to in respect of the continuance of trespass for which a plea of limitation of time cannot be raised. Finally, that the 1st, 2nd and 6th defendants have no footing to raise a preliminary objection, citing UAC v. Mac Foy [1964] AC 1 because the law does not permit demurrer proceedings. Their objection is equally belated, they having appeared unconditionally to this current suit, referring to Odua Investments Nig. Ltd v. Sunday Taiwo Talabi [1991] 10 NWLR (Pt. 523) 1 and PWTHAG v. Ceddi Corp. Ltd [2012] 2 NWLR (Pt. 1285) 465 H 10. The claimants then urged the Court to hear this matter on the merit. In their reply on points of law, the defendants submitted, on issue 1 raised by the claimants, that the claimants misapplied the principles enshrined in the authorities cited by contending that cause of action in this case is the letter of 28/2/2012. That the question of the salaries/allowances of the claimants is not in dispute and that the claimants are not in court for that. To the defendants, the submission by the claimants is not borne out of the definition of “cause of action” in the cases cited and relied upon by them. This is because the courts in a plethora of authorities have stated that “cause of action” is the entire factual situation that gives the plaintiff the right to sue while the right to sue consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrongful act, referring to Ecobank (Nig) Plc v. Gateway Hotels Ltd [1991] 11 NWLR (Pt. 627) 397 at 400 R. 5 and Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1. That in the instant case the alleged wrongful act of the defendants which gave the claimants the right to complain has been clearly stated in paragraph 11 of their statement of facts where they stated that they are owed 3.4 billion Naira arising from the defendants’ under-payment of their salaries/allowances. See also paragraphs 16a, 17 – 21 of the statement of facts where they are claiming balance of their under-paid salaries for the period July 2008 to December 2010, furniture allowance and severance allowance. This is even made clearer in their reliefs (a) and (b) contained in both the writ of summons and statement of facts. That it is an exercise in subterfuge for the claimants who stated clearly that they commenced this suit to recover the balance of their under-paid salaries/allowances to make a volte face by contending now that their cause of action is the letter of 28/2/2012, and that they are not in court for the recovery of their salaries/allowances. That the law is that parties should be consistent in presenting their case, citing Abubakar v. Yar'adua [2008] NSCQR (Pt. I) 231 at 247 held 26, where the court said that a party must be sure of his case and he must present is it in one lung breath, not in two-lung breath and Jumbo v. Bryanko Int. Ltd [1995] 6 NWLR (Pt. 403) 545 at 547 held 2 where the Court of Appeal relying on the Supreme Court case of Ajide v. Kelani [1985] 3 NWLR (Pt. 12) 248 per Oputa JSC, said – Parties are bound by the case they put forward to the court. In the same vein, a party ought to be consistent in the case he pursues and not spring surprises on the opposite party from one stage to another.... The defendants then urged the Court to discountenance the submission of the claimants and to hold that their cause of action arose in July 2008 where the claimed that the alleged underpayment of their salaries started. On the claimants’ issue 2, on the question whether the defendants can sustain their objection given that they did not file any statement of defence, the defendants submitted that that the two issues, to wit: whether this suit is statute-barred, which issue was raised by this Court, and the issue of whether this action is properly constituted and, therefore, competent, contained in the 1st, 2nd and 6th defendants’ address, are issues of jurisdiction that can be raised by the parties or the Court at anytime, anywhere and anyhow., referring to the cases of NDIC v. CBN [2002] FWLR (Pt. 99) 1021 and Petrojessica Ent. Ltd v. Leventis [1992] 5 NWLR (Pt. 244) 675 where the Supreme Court held that issue of jurisdiction can be raised viva voce. That objection to jurisdiction could be taken on the basis of the statement of claim and it could be taken on the face of the writ of summons. That in the case of Elabanjo v. Dawodu [2006] 27 NSCQR 318 at 321 – 322, the Supreme Court held it to be a misconception that objection to jurisdiction should only be taken after the filing of a statement of defence. The Supreme Court also held that objection to jurisdiction could be taken on the basis of the statement of claim, it could be taken on the basis of the evidence received as was the case in Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria [1976] 1 All NLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing statement of claim. The defendants then urged the Court to discountenance the claimants' contention that having not filed a defence, this Court and the defendants cannot question the jurisdiction of this Court to adjudicate upon the matter. To the defendants, the argument of the claimants that the defendants’ preliminary objection borders on frivolous technicalities, speculative and gambling and that the court of law exits to do substantial justice and justice can only be done if the substance of a matter is examined, is misconceived as the issue of jurisdiction and reliance on the limitation statute cannot be said to be frivolous and a technicality, citing Kasikwu Farms Ltd v. AG, Bendel State [1986] 1 NWLR (Pt. 19) 695 at 697, Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134 at 142 – 143 and Bank of the North Ltd v. Gana [2006] All FWLR (Pt. 296) 862 at 264 – 865, which held that a law such as the limitation law cannot be branded technical justice. The defendants then urged the Court to jettison the claimants’ submissions canvassed in support of their issue 2 and to find and hold that this action was commenced outside the statutorily prescribed period and that a law designed to police such a situation cannot be called technical justice. Regarding the claimants’ issue 3 where the claimants cited the two decisions of this Court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd, and submitted that the issue of salaries and workers entitlements/benefits is distinctly outside the province of the limitation law, the defendants submitted that those cases are distinguishable from the present case. That the contention of the claimants that issues of salaries and workers entitlements/benefits are outside the province of limitation law, is tantamount to an attempt to read into the provisions of said law an exclusion that was not intended by the legislature; something the courts frown on – Buhari v. INEC [2008] 36 NSCQR (Pt. I) 475 at 486. Hence, the claimants’ contention is misconceived and untenable, because there is nothing in section 1A of the Public Officers (Protection) Law of Cross River State as altered that permits such exclusion. On the claimants’ submission that their right to commence this action after the expiration of the statutory period is not extinguished, because of the continuity of the subject matter and continuing injury, the defendants submitted that the claimants’ submission above is a great misconception and an abysmal misapprehension of the provisions of section 1A of the Public Officers Protection Law, as altered. This is because there is nothing in section 1A Public Officers Protection Law as altered that alludes to “continuity of the subject matter”. That the concept of continuity of the subject matter is the claimants’ invention, urging the Court to discountenance it. Section 1A of the Public Officers Protection Law talks of “continuance of damage or injury”, not “continuance of subject matter”. That the Courts have defined “continuance of damage or injury” to mean the “continuance of the act which caused the plaintiff’s damage, injury or grievance”, referring to Freeborn v. Leeming [1926] 1 KB 160, Carrey v. Bermonsey Metropolitan Borough [1903] 675 P. 447; 20 TLR 2 and Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58 – 59. In Amamiwe v. The Local School Board, a certified Teacher whose appointment was terminated via a letter dated 16/6/1968 instituted an action against the Local School Board on 1/6/1970, almost two years from when the letter was issued. When it was raised in favour of the Local School Board that the action was statute-barred by virtue of section 2(a) of the Public Officers Protection Law Cap. 106, Vol. V., Laws of Western Region, the plaintiff’s counsel contended that there was a continuance of damage or injury to the plaintiff and so time has not run against the plaintiff in bringing the action. The Court, per Atake J. (as he then was), relying on the case of Carey v. Bermonsey Metropolitan Borough (supra), had this to say – I say at once that the contention of Plaintiff’s Counsel is not sustainable. The phrase “Continuance of damage or injury” used in section 2(a) of the Public Officers Protection Law was judicially considered and defined in the case of Carey v. Bermonsey Metropolitan Borough. The brief facts of this case as digested in paragraph 953 of Vol. 38 English and Empire Digest at page 130 are that on June 17th, 1901, the plaintiff was injured by reason of the negligence of the defendant. On October 8th, 1902, she commenced an action to recover damages. At that time she was still suffering from the injuries she had received. It was held that the action had not been commenced within the time limited by the Public Authorities Protection Act 1893 (an Act similar to our Public Officers Protection Law) and that therefore it was not maintainable. The words “continuance of the injury or damage” in the Act means continuance of the “act which caused the damage”. This is precisely what happened in this case in hand. The “act” which caused the grievance of the plaintiff is the letter dated the 17th of June 1968, although the injury or damage to him, if any, still continues. That judicial interpretation accords with common sense for any interpretation to the contrary would defeat the true intent and purpose of the Public Officers Protection Law as anybody who feels aggrieved by the act of Public Officer could wait for as long as he wishes before bringing his action at his convenience claiming that his injury still continues. The defendants also referred the Court to Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of Carrey v. Bermondsey Metropolitan Bourough Council (supra) and the case of Obiefuna v. Okoye [1961] All NLR 357 regarding the phrase “continuance of the injury or damage” contained in sub-section 11(1) of the Anambra State Proceedings Law, which is in pari materia with the provision of section 1A Public Officers Protection Law, Cross River State. To the defendants, the “act” which caused the damage, injury/grievance (if any) of the claimants as stated in paragraph 21 of their statement of facts is that their salaries for the period July 2008 to December 2010, furniture allowance and severance allowance were underpaid by the defendants. We submit that each under-payment for each month constitutes a completed act. For instance, under-payment for the Month of July 2008 is a completed act, so also subsequent under-payments. That “act” is/was not a continuing act or exercise that could attract the application or operation of the second arm of section 1A Public Officers Protection Law of Cross River State, to defer the time within which the appellants was to commence litigation. The defendants then urged the Court to hold that the purported continuity of the subject matter and continuing injury raised by the claimants are misconceived and of no practical utilitarian value to the instant case, as it is the “ACT” of the public officers that is being challenged and not the consequence of the “ACT”. On the appeal to public policy by the claimants in their submissions, the defendants submitted that public policy requires that this Court should enforce the provisions of section 1A of the Public Officers (Protection) Law of Cross River State, as altered, and section 60 of the Cross River State Local Government Law, as amended, by holding that this action is statute-barred, citing Edet v. Chagoon [2008] 2 NWLR (Pt. 1070) 85 at 95, Okoh v. The Nigerian Navy [2007] WRN (Vol. 25) 46 at 65 Lines 40 – 45 and Kola v. AG, Federation [2003] 10 NWLR (Pt. 829) 602. On the copious and myriad sentimental argumentum ad mercericundiam (appeal for mercy/sympathy) submissions made by the claimants in their reply, the defendants referred the Court to Ekeh v. Amaechi [2008] LPELR, Ezeugo v. Ohanyere [1978] 6 – 7 SC 171 and Idrisu v. Obafemi [2004] 11 NWLR (Pt. 884) 396, where the Court said – Sentiment or sympathy commands no place in judicial deliberation. They cannot override the clear provisions of the law or rules; otherwise, the task of the court would be more difficult and less beneficial to the society The defendants continued that on the authority of Fadare v. AG, Oyo State [1982] 13 NSCC 52 at 53 there is nothing in the limitation law which enables the Court to mitigate hardship that may befall an aggrieved party as a result of their action being statute-barred. The defendants then urged the Court to discountenance the submissions of the claimants and to hold that public policy demands that this action be dismissed, because it is statute-barred, and that holding otherwise, will open a floodgate of litigation against the defendants by the current Local Government elected and political office holders. On the claimants’ issue 4, the defendants submitted that the case of Ezeamaka Esther v. Skye Bank and section 14 of the National Industrial Court Act, 2006 as altered do not advance the claimants’ fortune in this case. This is because by section 14 of the said Act, this Court is to exercise its jurisdiction and grant, as it thinks fit, remedies on legal or equitable claims properly brought before the Court so that as far as possible all matters in dispute between the parties may be completely and finally be determined and all multiplicity of legal proceedings concerning any of those matters avoided. That in this case where the salaries/entitlements of each of the 379 political office holders are personal to each of them, there is nothing like communality of interest among the claimants to sustain a representative action. This is so because for communality of interest to avail the 1st to 6th claimants, it must be seen clearly that they can institute personal action against the defendants to enforce the payment of the salaries and entitlements of the other claimants, whom they purported to represent (i.e. the relief claim must be beneficial to all). However, in the instant case the 1st to 6th claimants cannot institute personal action to enforce the payment of the other claimants’ salaries, it then implies that the reliefs claimed is not beneficial to all of them. Therefore, the claim is not properly brought before the court, to justify the invocation of section 14 of the National Industrial Court Act, 2006. The defendants continued that the contention of the claimants that they have everything in common and there is no sharp difference, rather there is common grievance, common subject, common source of funds, common time and their grievance is against Government of Cross River State, shows mere identity or similarity of circumstances which cannot ground a representative action, referring to Idise v. Williams Intl. Ltd [1995] 1 NWLR (Pt. 370) 142 at 145, where the Supreme Court held the essential condition of a representative action is that the persons that are to be represented must have the same interest in one cause or matter; mere identity or similarity of circumstances in litigation may not necessarily result in the parties thereto having a common interest and a common grievance. In conclusion, the defendants urged the Court to find and hold that this action is not properly constituted. In considering the merit of the submissions of the parties, I must right away dismiss the contention of the defendants that this matter as couched is not sustainable because the claimants did not sue individually but as a group. This Court in virtue of sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court (NIC) Act 2006 is not expected to be inflexible and hence bound by formality. So when section 14 of the NIC Act 2006 permits the Court to do all that can be done to avoid multiplicity of suits, the discretion is left to the Court to then decide whether a case such as the instant case is sustainable or not. On this issue, I agree with the submission of the claimants that it will be tedious to come individually in this claim of the claimants given that what gave rise to the claims of the claimants is same for the claimants. I, therefore, find and hold against the defendants on this issue. The issue left for determination is that regarding the question whether the case is statute-barred. Here, and in reacting to the claimants’ issue 3 in their reply on points of law, particularly the claimants’ reliance on John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd and their submission that the issue of salaries and workers entitlements/benefits is distinctly outside the province of the limitation law, the defendants submitted that those cases are distinguishable from the present case. To substantiate this submission, the defendants went into facts as to how the defendants had all paid certain amounts to the claimants as their complete furniture/severance benefits and they received same without grouse, how it was the letter of 28/2/2012 that woke the claimants from their deep sleep, etc – all facts that are not supported by the evidence before the Court. References to these facts in the reply on points of law will, therefore, be discountenanced for purposes of this ruling. There were equally and generally attempts by the defendants to re-argue their submissions as where the defendants reiterated the provision of section 1A of the Public Officers Protection Law of Cross River State and the arguments thereon as part of their reaction to the claimants’ issue 3. Here, the claimants went beyond the pale of a reply on points of law. Only recently, this Court in Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012 (the case was cited and applied in the more recent case of Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013) reviewed the authorities regarding the Public Officers Protection Act (a limitation law) in the following words – In Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, it was held that the question or issue of whether or not an action is statute-barred, is one touching on or goes to jurisdiction. See also the case of Emiatar v. The Nigerian Army & 4 ors [1999] 12 NWLR (Pt. 631) 364 at 372; [1999] 9 SCNJ 52…See Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 where it was held that limitation of action is determined by looking at the writ of summons or the statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the writ of summons was filed…(Chief Yakubu Sani v. Okene Local Government Traditional Council [2008] 5 – 6 SC (Pt. II) 131 held that all actions against public officers in respect of their official actions must be commenced within three months from the date the cause of action arose), a term that has been held to include not just natural persons who hold public office but the public office or institution itself. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 39 and 41 and Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors [2009] 43 WRN 124 CA at 145…The law, by Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 and Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, is that a cause of action is said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Act or Law has elapsed. In fact where the appellant was dismissed from service on 30th January 1990 but he filed and commenced the suit in question on 28th June 1996, the Supreme Court in Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253 held that the appellant’s action, having been filed outside of the three months’ period required by section 2(a) f the Public Officers Protection Law cap. 121 Laws of Kano State, was, therefore, statute-barred. …In a plea of a matter being caught up by the limitation law (the Public Officers Protection Act 2004 is a limitation law), all that is required of the applicant is to show from the originating processes when the cause of action arose and when the action was filed in court. Once this duty has been discharged, it is for the claimant to show that the matter comes within any of the permitted exceptions to the limitation law such as that the injury in question is a continuing injury or that the public officer acted mala fide i.e. outside the colour of his office or employment or outside his statutory or constitutional duty. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 32. However, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors (supra) at page 146, applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC…. Also misconceived is the argument of the claimant’s counsel that because the claimant wrote letters to the defendant, which were not replied to, “the hope of the claimant was kept alive till 11th June, 2012 when this action was instituted”, by reason of which the cause of action could not have arisen in 2000. The authorities are pretty clear that time runs continually irrespective of intervening acts on the part of the parties. See SPDCN Ltd v. Ejebu (supra), Ibidapo v. Lufthansa Airline [1997] 4 NWLR 124 SC and UTA French Airlines v. Williams [2000] 14 NWLR 271. In fact, in UTA French Airlines v. Williams, the plaintiff had first filed the action, within the limitation time, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. And by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period. Counsel to the claimant, in his submissions, did not seem to appreciate the rationale behind the limitation law. By Shamsideed Abolore Bakare v. Nigerian Railway Corporation [2007] 7 – 10 SC 1, limitation of action is the principle of law requiring the plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by law (Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253) except the claimant can show that the case comes within any of the laid down exceptions…. The case of Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24 additionally decided that the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, the action is statute-barred. The questions that, therefore, and presently, arise are when the cause of action arose and when the claimants filed this action. To answer the second question first, this action was filed in this Court on 25th May 2012. It is the first question that presents difficulty given the disputation on that question between the parties. What exactly is the cause of action in this matter? This remains the question. The case of Oseni Omomeji & ors v. James Kolawole & ors [2008] 4 – 5 SC (Pt. II) 158 states that cause of action means every fact which is material to be proved to entitle a plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. This means that cause of action cannot be determined without reference to the relief claimed by the claimants. At the risk of repetition, the reliefs prayed for by the claimant are: a. N3,445,259,324.28 (Three Billion, Four Hundred and Forty-Five Million, Two Hundred and Fifty-Nine Thousand, Three Hundred and Twenty-Four Naira, Twenty-Eight Kobo) being the outstanding financial remuneration of the claimants as former Councilors and Appointees of the Eighteen Local Government Areas of Cross River State between 2007 – 2010. b. N50 M (Fifty Million Naira) General damages for the hardship inflicted on the claimants for unlawfully short-paying them, and withholding their remunerations. c. Interest on (a) and (b) above at 10% after judgment until the entire sum is liquidated. d. N20M (Twenty Million Naira) only being the cost of Action. From these reliefs, there is no doubt that the key claim of the claimants is relief a). The argument of the claimants is that what brought them to Court is that letter of 28th February 2012 Ref. MLGA/S/84/Vol.xv/191, the letter written to the Governor on the need to release funds to pay the claimants. This letter may have triggered the need to come to Court; but it is certainly not the cause of action in this matter, which remains the claim for Three Billion, Four Hundred and Forty-Five Million, Two Hundred and Fifty-Nine Thousand, Three Hundred and Twenty-Four Naira, Twenty-Eight Kobo (N3,445,259,324.28). This claim arose and became due in 2010 when the claimants exhausted their terms of office; and I so find and hold. By Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. The letter of 28th February 2012 is nothing more than an attempt to actualize the claims of the claimants which arose in 2010, an intervening act at that. The claimants had also argued that this letter is evidence that some of the claimants were part-paid their entitlements. It is doubtful if this conclusion can be drawn from this letter. In the first place, this letter is one written to the Governor, not to the claimants. Secondly, nowhere in the originating processes is there any iota of evidence of the actual amount of part-payment that some of the claimants are said to have collected. An assertion by one person to another that the one had made a payment to some third party, without more, cannot be evidence of the said payment as the claimants are arguing. The argument of the claimants here that, with the admissions in the memorandum of 28th February 2012, the only area that took the claimants to court was the disparity in figures and that they are in Court to question the letter of 28th February 2012 which carried the figure of N31,339,110.14 as the claimants’ entitlements as against N3,445,259,324.28 is more like an afterthought, just so that the claimants can justify the non-application of the limitation. In arguing that their claims come within the exceptions to the limitation of action rule, the claimants talked of “the rule of continuity of subject or injury”. If by this statement counsel to the claimants means that the rule could be one of subject matter as distinct from one of injury, then counsel is misconceived in his submission. The recognized exception is one of continuing injury, not continuity of anything else. The logic against the submission of the claimants is that if the subject matter is continuing, then the cause of action itself has not arisen and so the talk of the application of the limitation law or any of its recognized exceptions will not arise in the first place. In pursuing the “continuity of subject matter or injury” argument, the claimants cited Obueke & ors v. Nnamchi & ors [2012] 5 – 7 MJSC (Pt. 11) 1 at 4 where the Supreme Court held that where there is continuity of acts of trespass (subject matter), successive actions can be maintained by a plaintiff in respect of the continuance of trespass for which a plea of limitation of time cannot be raised. The argument of counsel to the claimants here looses sight of the fact that trespass by definition implies, and indeed includes, continuing trespass. The act of trespass itself is the injury (even in cases of continuing trespass, each act of continuing trespass is not just the injury but is independent and can found an action on its own capable of being awarded separate damages); and so the question of the limitation laws applying does not even arise. It is the argument of the claimants that they were paid part of their entitlements by the defendants but these were peanuts. This argument went to feed “the continuity of subject or injury” argument of the claimants. In paragraph 12 of the statement of facts, the claimants averred that “between 2010 to date the Ministry of Local Government Affairs have been making frantic effort to pay the claimants but this is short lived because of other stakeholders in the Government who are benefiting from the interest the huge sum is yielding in the bank accounts for them”. In a different breath, the claimants went on to aver in paragraph 13 of their statement of facts that “between 2010 to 2012, only a handful of the claimants have been paid peanuts and these sums came slowly, in such meaningless fashion….” As part of the statement of facts is the tabulation of the actual amount claimed as outstanding sums due from the defendants to the claimants. The thing about this tabulation is that it is categorized according to the offices of the claimants – Leaders, Deputy Leaders, Councilors, Secretaries, Legal Advisers, Security Advisers and Supervisors. For each of these groups, every claimant in each group is claiming the same outstanding amount as the others in the group. Now, the question is: if, as averred by the claimants in paragraph 13 of the statement of facts, that a handful of the claimants have been paid peanuts, how come the payment of these peanuts is not reflected in the claims of the claimants? In other words, if any claimant has been part-paid his/her entitlements, how come that part-payment is not reflected in terms of deduction from the overall claim? How come all the claimants in each group are claiming the same amount of money each as if none of them had been paid the peanuts talked of by the claimants? My take is that paragraph 12 of the statement of facts sounds more plausible than paragraph 13; and if this is the case, then it means the claimants are simply suing for the entitlements the defendants should but have not paid the claimants. This naturally puts the cause of action to be one for the claim of the entitlements owed the claimants, not a dispute over the sums as the claimants have argued. Even if the dispute is one over the disagreement over the actual sums due and payable, there is no taking away the fact that the entitlements themselves became due in 2010, not 2012 as the claimants would want this Court to believe. On the whole, I think that learned counsel to the claimants got the conception of and the workings of the limitation law wrong. Counsel had argued that the defendants in raising their objection without filing their statement of defence have not stated which of the facts alluded to in the originating processes is statute-barred. In this submission, learned counsel to the claimants seems to suggest that distinct and individual facts can be statute-barred. The limitation law talks of the cause of action being statute-barred i.e. the aggregation of the facts that cumulatively gives the claimant the right to come to court to seek redress. The claimants had also argued that even if their action was caught up by the limitation laws, such deficiency has been revived by the various acknowledgements of the defendants by actions and correspondences, referring to the letter Ref. MLGA/S/84/Vol.xv/191 and dated 28th February 2012 wherein the defendants acknowledged the debt owed by them to the claimants. The authorities are pretty clear that time runs continually irrespective of intervening acts on the part of the parties. See SPDCN Ltd v. Ejebu [2011] 17 NWLR (Pt. 1276) 324, Ibidapo v. Lufthansa Airline [1997] 4 NWLR 124 SC and UTA French Airlines v. Williams [2000] 14 NWLR 271. In fact, the case of UTA French Airlines v. Williams is instructive. As I recounted in Joshua Mnenge v. Nigerian Army, the plaintiff in UTA French Airlines v. Williams had first filed the action, within the limitation time, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. And by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period. The cases of NPA Plc v. Lotus Plastic Ltd & anor [2006] 2 MJSC 41 at 55 to 57, NUC v. Oluwo [2001] 3 NWLR (Pt. 699) 90 at 109 – 110, Nigeria Custom Service v. Bazuaye [2001] 7 NWLR (Pt.712) 357 at 363 and NSITF MB v. Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 207 at 315 – 317 cited by the claimants to the effect that an acknowledgment or an admission could vitiate time and so the limitation period ceases to run, do not seem to apply to the instant case for the simple reason that the letter of 28th February 2012 Ref. MLGA/S/84/Vol.xv/191 is not an acknowledgment or an admission by the defendants to the claimants. It remains what it is, a letter to the Governor by his Commissioner. The claimants had further referred this Court to its decisions in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd. While it is true that in these cases this Court had held that the limitation laws do not apply to labour rights issues especially as to the claims for salary and entitlements/benefits, the truth is that this Court had had to change that stance in cases other than those relating to salary and benefits given the weight of the Court of Appeal and Supreme Court authorities to the effect that the limitation laws apply to employment cases as of other cases, all of which are binding on this Court. In cases of claims for salary and allowances, the decisions of this Court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State. In any event, the definition of the phrase “continuance of the injury” by case law authorities to mean continuance of the “act which caused the injury” and not the injury itself presupposes that this Court’s stance in cases such as John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd must be understood qualifiedly. On the whole, therefore, I find and hold that the instant case filed on 25th May 2012 but whose cause of action arose in 2010 is statute-barred in two material aspects: in respect of the 1st and 2nd defendants, the action is caught up by section 1A of the Public Officers (Protection) Law Cap. P17, Vol. 5, Laws of Cross River State 2004, as amended by the Public Officers Protection (Amendment) Law No. 1 of 2007, the action coming outside of the six months limitation period allowed; and regarding 3rd – 20th defendants, the action is caught up by section 60 of the Cross River State Local Government Law No. 22 of 2007, as amended by the Cross River State Local Government (Amendment) Law No. 1 of 2008, the action coming outside of the one year limitation period allowed. The case of the claimants, therefore, lacks merit and is hereby struck out for want of jurisdiction on the ground of the limitation laws cited above. I make no order as to cost. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip