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The Defendant/Applicant, by a Notice of Preliminary Objection filed on the 2nd of December 2013, is praying this honourable court for 1. An ORDER striking out this suit for being statute barred. 2. AND for such order or further orders as this court may fit to make in this circumstances. The grounds upon which the preliminary objection was brought are: 1. The cause of action is statute barred in that: a. The Cause of action for the grant of reliefs 1, 2, and 5 in the Complaint and the Statement of Facts by paragraphs 10 and 13 arose in August 2012. b. The action was commenced in 2013 c. By paragraph 11 of the Statement of Fact the cause of action, i.e. stopping the claimant from teaching arose on 23rd day of January, 2013 2. By the decision in LAUTECH VS. OGUNWOBI (2006) 4 NWLR (PT. 971) 569, the Public Officers (Protection) Act is a Statute of general application. The motion is supported by an affidavit of 4 paragraphs deposed to by Aligbe Tsaro-Goteh Angela (Mrs.), a legal officer at the Rivers State University of Science & Technology (the Defendant/Applicant). There is also a written address accompanying the notice of preliminary objection. In opposition, the Claimant/Respondent on the 4th day of December 2013 filed a 6 paragraph Counter affidavit and a written address. In his written address, the defendant/applicant’s counsel recalled some brief facts of the case, that sometime in August 2012, the Claimant noticed that his salaries were not being paid, and that he brought this action in May 2013. Therefore, counsel said, the cause of action arose in August 2012. Counsel proceeded to raise a sole issue for determination, and that is: “whether the court has jurisdiction to try a suit that is statute barred”. He then submitted that the suit of the Claimant has been caught up by the statute of limitation, having not brought the action within 3 months of accrual of the cause of action. He said that any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. He cited the case of ABRAHAM VS.JSC (1998) 12 S.C. 20, where the court stated that for section 2(a) of the Public officers (protection) Act to avail any person, two conditions must be satisfied. These are: a. It must establish that the person or persons against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of the law. b. That act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. Counsel submitted that the facts of the case and the entire documents front loaded before this honourable court shows that the claimant is a public officer within the meaning of section 2 of the public officers protection act. He cited the case of UNIJOS V IKEGWUOHA (2013) 9 NWLR Part 1360 478 at 493 Para L-F where the Supreme Court held interalia, that the University of Jos is a public officer within the meaning of Section 2of the Public Officers Protection Act, and that proceedings shall not lie or be instituted unless it is commenced within three months next after the act or default complained of. Counsel further submitted that the case of IBRAHIM vs. JSC (Supra) had sufficiently resolved the question as regards the exact category of persons contemplated by law, for whom protection is afforded when it held that “any person as provided by S.2 public officers protection law of Northern Nigeria are not limited only to natural person or human beings or to persons sued in their personal names. Unless the contrary intention is indicated, and no such intention therein manifested, those words in the Public officers (protection) law include persons known to law inclusive of artificial persons, public bodies or body of persons corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not; so long as they are sued in respect of an act or acts alone in pursuant or execution of any law or any public duty of authority” He further cited the case of ATTONEY GENERAL RIVERS STATE V. ATTORNEY GENERAL BAYELSA STATE (2012) 7 SC (pt. 11) 110 AT 116 to support this argument. Counsel drew the attention of the court to reliefs 1, 2, and 5 and paragraphs 10, 11 and 13 together with the letters referred to, which show that the cause of action arose in August 2012 when the Defendant was alleged to have stopped the payment of the claimants salaries or at best in October 2013 when the claimant became aware of the letter written to the bank by the registrar and bursar. That this action was however commenced on the 20th May 2013. He stated that the action of the claimant is caught by the limitation period and makes it liable to be struck out. See LINDSAY PETROLEUM CO, VS HARD (1874) LR 5 P.C 221 AT 23 9 He also submitted that in the case of OMOTAYO VS. NIGERIAN RAILWAY CORPORATION (1992)7 NWLR (Pt. 254) 471 , the court held that the limitation period can be determined by looking at the writ of summons and the statement of claim alleging the wrong was committed which gave plaintiff cause of action Counsel also submitted that public officer’s protection act is a statute applicable to all states of the federation including Rivers State. This was the decision of the court per Ibiyeye JCA in the case of LAUTECH VS. OGUNWOBI (2006) 4 NWLR (PT. 971) 56 Counsel submitted that Section 2 (a) POPA is applicable to contract of employment see the case of JOHN EGBELE V. THE POST MASTER GENERAL (NIPOST) (2009) LPELR (LAW PAVILON ELECTRONIC LAW REPORT) – 8870 (CA) PP 21-22 Counsel placed heavy reliance on National Industrial Court ruling in the case of GOODLIFE IDOUKWU BEN vs. RIVERS STATE CIVIL SERVICE COMMISSION & ANOR; Suit No NICN/CA/48/2012, where Hon. Justice Auwal Ibrahim held the Claimant’s case to have been statute barred. Counsel submitted that the supreme court has held in the case of SKEN CONSULT (NIG) LTD vs. UKEY (1981) 1 SC 6 that the court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes incompetent. It can do so no its own initiative, even though the parties have consented to the irregularity. Counsel finally submitted that the fact that the claimant wrote letters dated 3rd April, 2013 and 29th April, 2013 would not extend the limitation period. Counsel to the Claimant/Respondent in opposing the preliminary objection, argued that where the jurisdiction of a superior court of record is not expressly ousted by a statute, the presumption is that it has jurisdiction in any particular case. He submitted that the jurisdiction of this court is set out in Section 254(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where in the claimants claim falls within the jurisdiction of this court. However this application is based on the extrinsic issue of a statute that they claim affects the defendants- The Public officers Protection Act. He submitted that the Public officers Protection Act is an act of the National Assembly, relating to Public Officers, and that the defendant is an institution not established by the National Assembly but the House of Assembly of Rivers state. Counsel cited the case of AG ABIA STATE V. AG FEDERATION [2002] FWLR (Pt.101) 1419 and said that the National assembly has no power to legislate on matters outside its legislative jurisdiction, and therefore does not have the power to regulate the service of the state and that an institution established by the law of a State is outside the purview of the legislative ambit of the National Assembly. He submitted that the POPA does not apply in this circumstance. He also submitted that the Rivers State Government does not have any law of that nature in its statute books. The POPA is a statute of general application only in respect of matters within the competence of the National Assembly. Counsel to the Complainant/Respondent raised a question as to whether: Assuming without conceding that the POPA applies to the defendant in this case, does it apply to the subject matter of this action? This he answered in the negative. It is his submission that this matter deals with master/servant relationship between the defendant and the claimant, which is created through a contract of employment, albeit one with statutory flavor. The Public Officers’ Protection Act, he said, does not extend to contracts entered into by public officers or institutions. He referred the Court to the case of FGN V. Zebra Energy Ltd. (2002) 18 NWLR (PT. 891) 162 AT 197 where the Supreme Court held that: “The Public Officers’ Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract and or for claims of work done”. He also Cited the case of ODUKU V GOVERNMENT OF EBONYI STATE (2004) 13 NWLR (Pt.891) 481 @ 503-504, where Fabiyi JCA (as he then was) held that the provisions Section 2(a) of the POPA cannot avail a public officer in a claim founded on contract and that the trial court was absolutely in error when it held that the appellants actions was statute barred. Counsel further placed reliance on the decision of the Supreme Court in the case of OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD. (2007) NWLR (PT.1038) where Katsina-Alu JSC held that “the Public Officers’ Protection Act does not apply to cases of contract, recovery of land, breaches of contract or claims for work and labour done”. Counsel submitted that the above pronouncement is on all fours with the substantive matter because the reliefs sought are for the unpaid salaries of the Claimant, and that the injury is still continuing, as the defendant is still unjustly refusing to pay and is holding on to the salaries of the Claimant since August 2012 to the date of filing this action, and even up to date. Having considered the arguments and submissions of learned counsel to the parties, the authorities cited and relied upon by them, I find it necessary to recall very briefly, the facts of the case, as averred in the pleadings of both parties. The Claimant, a Law lecturer at the Rivers State University of Science and Technology, was a member of the Academic Staff Union of the defendant, which Union embarked on a strike action in August 2012. The said strike action was eventually called off in September 2012, and the defendant has continued to withhold the Claimant’s salary on the grounds that he has not resumed from the said strike action. The Claimant avers that he had resumed, and was even instrumental to the calling off of the said strike. The defense counsel has placed heavy reliance on the case of GOODLIFE IDOUKWU BEN vs. RIVERS STATE CIVIL SERVICE COMMISSION & ANOR; Suit No NICN/CA/48/2012. I agree with the decision of my learned brother as it affects this case, only to the extent that the Public Officers Protection Act is applicable in Rivers State. I agree with counsel to the defendant/applicant that the POPA is a Statute of General application and it is applicable to Rivers state and to the parties who are public officers of Rivers State. I am bound by the court of appeal’s decision cited and relied upon by the counsel to the defendants/Applicants as stated in the LAUTECH vs. OGUNWOBI case (supra); and I so hold. However, the case before me is clearly distinguishable from the case of GOODLIFE IDOUKWU BEN vs. RIVERS STATE CIVIL SERVICE COMMISSION & ANOR (Supra) cited by learned counsel for the defendant/applicant, which is a case of the dismissal of the Accountant-General of Rivers State. In that case, a dismissal letter was issued, and the dismissal was even reflected in the official gazette. In this case however, the claimant was not sacked or terminated or even suspended. His salary was merely stopped. The ground for the said stoppage is woven around a “no work no pay” resolution taken at a meeting of the governing council of the defendant and pleaded in the Statement of Defence. Learned counsel to the Claimant/Respondent had argued and submitted that by the authorities in the cases of ODUKU V GOVERNMENT OF EBONYI STATE, FGN V. ZEBRA ENEREGY LTD. (2002) 18 NWLR (PT. 891) 162 AT 197 and OSUN STATE GOVERNMENT v. DALAMI (NIG) LTD. (2007) NWLR (Pt.1038) that the Public Officers’ Protection Act is not applicable in contract of employment. I disagree with this line of argument, as the position of the law is clear on the issue of applicability of the Public Officers’ Protection Act that the said protection is permitted in respect of contracts of employment. The case of JOHN EGBELE V. THE POST MASTER GENERAL (NIPOST) (2009) LPELR (LAW PAVILON ELECTRONIC LAW REPORT) – 8870 (CA) PP 21-22, which was cited by the Counsel to the Defendant/Applicant reveals, and I agree, that the Public Officers’ Protection Act is applicable to a contract of employment. A detailed and painstaking review of the John Egbele Case (Supra), however reveals that the same case also provides an exception to “specific contracts”. The court held thus: “The Statutory limitation period will not apply to specific contracts such as where there is an agreement to do an act and it is broken. That is specific contract. Where there is a relationship of employer/employee backed up by specific agreement and appellants fails to observe the terms of the contract then the limitation period will not apply because it is a specific contract”. An employer/employee relationship of specific contract between the parties was reflected in the defendant’s letter dated 31st October, 2012 to the manager of Skye Bank (pleaded by both parties), instructing the stoppage of the claimant’s salary because he is on industrial action. No doubt, the stoppage of the Claimant’s salary is predicated on the industrial action, which amounted to a breach of the “No work no pay” policy contained in the resolution taken at the meeting of the defendant’s governing council on the 23rd day of June 2011 (pleaded by the defendant). I hold that this suit falls within the exception, therefore, the limitation period in Section 2a of the Public Officers’ Protection Act will not apply. Now to the basic question as to whether or not this suit is statute barred to oust the jurisdiction of this court. Section 2a of the Public Officers’ Protection Act provides a limitation period of 3 months after the cessation of the act or injury complained of. Averments in both the Statement of Facts and the Statement of Defence point to an open ended unresolved issue; the resolution of which could put an end to the act of withholding the Claimant’s salary. Paragraph 11 of the Statement of Defence states thus: “The defendant further avers that it was during the tenure of Dr. Asita O. Asita as Commissioner Education that the payment of University Staff was moved to the Ministry of Finance, when the issue of Ghost workers came up. Following the deliberation on this issue, the Governing Council in the 1st Regular meeting held on 28th September 2012 decided to formally request for granting of autonomy to the university, a request which would have restored the payment of salaries to the Defendant, which request has not been granted. A copy of the minute of the meeting of the Governing Council is hereby pleaded and shall be relied upon during trials.” The above paragraph 11 of the Statement of Defence, if considered along with the basic undisputed fact that the Claimant’s appointment has not been terminated, neither has he been dismissed or suspended or issued any disciplinary action, indicates that the stoppage of his salary is an issue that can be resolved, but which is yet unresolved. Also, paragraph 12 of the Statement of Claim indicates that there still exists an employer-employee relationship between the parties in spite of the stoppage of the Claimant’s salary since August 2012. There is an indication of a continuing damage or injury, and I so hold. The injury complained of has not ceased, neither by an act of termination of employment, nor by an act of restoration of payment, nor even by an act of communicating the Claimant’s position or status to him. In the circumstances and for all the reasons given, I hold that this suit is not statute barred and this court assumes jurisdiction to continue with the hearing which had hitherto commenced and had been adjourned for defence before this application was brought. On the whole, the preliminary objection fails and is hereby struck out. This suit shall proceed for continuation of hearing. I make no order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge