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By an originating summons dated and filed on the 3rd day of May 2013, the Claimant seeks for the determination of the following questions:- 1. Whether by reasons of letters ref: MHP5768/14 (Notification of Appointment), CON/HMB/AD.142/1024 (Confirmation of Appointment), CONHMB/AD.760/1 (Release of staff to Abia State) and HHMB/P.99/8 (Retirement from service) and sections 5 (1) a and 6 (3) of the Abia State Pension Board Law 2004, the Claimant is not entitled to receive payment of pension till death from the 3rd Defendant by virtue of having served and retired meritoriously from the Abia State Civil Service. 2. Whether the stopping and continuous refusal of the 3rd Defendant to pay monthly pension to the Claimant is not unlawful and in breach of the Claimant’s constitutional right to pension. 3. Whether the stopping and continuous refusal of the Defendants’ to resume payment of pension to Claimant based on the ground that the Claimant is not an indigene of Abia State does not constitute discrimination against the Claimant. 4. Whether the Claimant is not entitled to damages for the unlawful, unilateral and arbitrary stopping and continuous refusal to remit the Claimant’s monthly pension to her. The originating summons is supported by a 25 paragraph affidavit deposed to by the Claimant herself. Accompanying the Affidavit are Exhibits A, B, C, D, E, F, G, H, J and K. There is also a written address. The Defendant/Applicant entered a conditional appearance on the 8th day of August 2013 along with a Notice of Preliminary Objection praying for an order of this honorable court to “STRIKE OUT THIS SUIT FOR WANT OF JURISDICTION.” The grounds of preliminary objection are:- 1. The Claimant’s payment of pension was stopped by the 3rd Defendant in February 2010. 2. Consequently, the cause of Action arose on the said month of February 2010. 3. This suit was filed on the 3rd day of May 2013. 4. By the provision of section 2 of Public Officers Protection Law Cap 140 Laws of Abia State of Nigeria (2004), this suit is statute barred. In support of the Notice of Preliminary Objection is a Written Address setting out arguments in favour of the objection. The Claimant/Respondent filed a reply on points of law to the Defendants/Applicants’ Notice of Preliminary Objection. The Defendants/Applicants formulated a single issue for determination, and that is “whether this honourable court has jurisdiction to entertain this suit as presently constituted”. Counsel for the applicant submitted that this court lacks jurisdiction to entertain the suit. He relied on the authority of A.G. Rivers vs. A.G. Akwa – Iborn State (2011) All FWLR (pt 592) pg 1123 and Uchegbu vs. SDPC (Nig) Ltd. (2011) All FWLR pt 589 pg 959 where it was held that issues of jurisdiction are threshold issues. The Defendants/Applicants’ contention is that the cause of action arose in February 2010; therefore, the suit is statute barred, having been filed in May 2013. Counsel relied on the provisions of section 2(a) of the Public Officers Protection Law Cap 140 Laws of Abia State of Nigeria 2004 which provides for a 3 – month limitation period within which a Claimant may institute legal action. Counsel further relied on the authority of: Egbe vs Adefarasin (1985) NWLR (pt3) pg549 and Agboola vs. Salibu (1991) 2 NWLR (pt. 175) pg. 566 and submitted that any action commenced after the stipulated period is totally barred. It was Counsel’s submission that the non-filing of a Counter-Affidavit or Counter-Claim does not preclude the Defendants from raising this objection. He urged the court to strike out the suit for want of jurisdiction. Replying on points of law, the Claimant/Respondent’s Counsel submitted that there is a condition precedent to the operation of section 2(a) of the Public Officers’ Protection Law, to wit: that the person against whom the action is instituted is a public servant. He submitted that the 1st – 3rd Defendants are not public servants. He relied on the authorities of: Alapiki vs, A.G. Rivers State (1991) 8 NWLR (pt 211) pg 575 at 588; Tafida vs. Abubar (1992) 3 NWLR (pt 230) pg 571 at 523 paragraph D – G; Nwakama vs. Governor (Mil. Admin.) of Abia State (1995) 4 NWLR (pt 388) pg 185 at 199 – 200. Counsel further submitted that a claim for payment of pension would not warrant the application of the Public Officers’ Protection Law. He referred to the case of Popoola vs. A.G. Kwara State (2011) All FWLR (pt. 604) pg. 175 at 190 where the Court of Appeal held “that the provision of section 2(a) of the Public Officers’ protection Act will not be applicable to pensioners. It is wicked and inhuman for a retiree or pensioner to be denied his pension and gratuity”. Counsel urged the court to dismiss this application, pointing out that the very same applicants had filed an application of this nature on the case of Nwakama vs.Mil-Admin. of Abia (Supra), up to the Appeal Court. Therefore the application is brought in bad faith. I have considered the submissions and authorities cited by counsel on both sides. It is pertinent to determine whether or not the suit as constituted is statute barred. In doing this, the main question that comes to mind is “Does this matter fall within the category of cases contemplated by the Public Officers’ Protection Law?” The Claimant’s Claim as shown in the originating summons centers on the Claimant’s constitutional right to pension. In the case of Popoola vs. A.G. Kwara State (2011) LPER – 3608, the Court of Appeal dwelled extensively on this issue. Reference was made to the provision of section 210(2) of the 1999 Constitution which provides thus: “Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct.” Section 210(1) provides that “subject to the provision of subsection (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by Law”. The Court of Appeal in the Popoola case held that section 210 of the Constitution is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated. Thus, the permission of section 2(a) of the Public Officers’ Protection Act will not be applicable to the claims of the Appellants. The court indeed went further to remark that “it is inhuman and wicked for a retiree or pensioner to be denied his pension and gratuity when he ought to enjoying the fruit of his labour”. To my mind, this issue is settled and this case being one that relates to pension, ought not to be caught up by statute, as that would amount to depriving the Claimant of her constitutional right to her pension, and I so hold. In the case of A. G. Rivers State vs. A. G. Bayelsa State (2012) LPELR – 9336 (SC), the Supreme Court has held thus: “Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation there of, outside three months.” In the present scenario where there continues to be failure to pay pension to the Claimant, there is a continuance of damage or injury, therefore, there is need for the court to determine the matter on its merits, and I so hold. On the whole, the preliminary objection of the Defendants/Applicants fails. This case will be heard on its merits. I have also noted that the Defendants’ memorandum of appearance was filed out of time, without the necessary application being brought to regularize it. The Defendants are hereby ordered to regularize their papers, and this matter shall proceed to hearing. I make no order as to costs. Ruling is entered accordingly Hon. Justice O.Y. Anuwe Presiding Judge