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The claimants filed this complaint on the 5th December 2012 against the defendant claiming as follows: 1. A declaration that it is unlawful for the Nigeria Security and Civil Defence Corps to refuse to comply with the provisions of section 26 of the Nigeria Security and Civil Defence Corps Act 2003, in respect of the employment of the Plaintiffs. 2. An order of court directing the Nigeria Security and Civil Defence Corps to comply with the provisions of section 26 of the Nigeria Security and Civil Defence Corps Act 2003, and allow the plaintiffs who were enlisted under the old corps to be paid their salaries, allowances and other entitlements that are paid to their colleagues who are serving as staff of the Corps. 3. The sum of N1,000,000 (One Million Naira) as general and special damages (arrears of allowances/entitlements) to be paid to the plaintiffs by the defendant for non compliance with the enabling law and thereby causing the plaintiffs to suffer untold hardship. Accompanying the complaint is the statement of facts, copies of documents, list of witnesses, witness statement on oath. The defendant in reaction filed a Notice of Preliminary Objection on February 7, 2013. The Preliminary Objection is brought pursuant to Section 2(a) of the Public Officers Protection Act 2004 and is praying for an Order dismissing/striking out the suit for want of jurisdiction. The grounds upon which the objection is made are as follows: 1. The action is statute barred taking into consideration when the cause of action arose and when the plaintiffs filed the action. 2. The case has not been initiated with regard to due process of law. 3. The plaintiffs case constitute an abuse of court process. 4. The court lacks jurisdiction to entertain the suit. The objection is supported by a written address. The claimants in reaction filed a written address on February 15 2013. The defendant filed a reply on point of law on March 26, 2013. Learned counsel to the defendant raised two issues for determination as follows: 1. Whether the action commenced against the defendant/applicant is statute barred taking into consideration the date the cause of action arose and the date this suit was filed. 2. Whether the suit of the plaintiffs is an abuse of court process, vexatious and frivolous . He referred to paragraph 25 of the statement of facts and submitted that the cause of action arose in May 2006. He stated that this action was initially filed at the Federal High Court on 19th October 2010, four years after the accrual of the cause of action but that the matter was struck out by the Federal High Court for lack of diligent prosecution. It was his submission that any action challenging the executive acts of the defendants in the course of performance of their lawful duties must be filed within three months of the cause of action arising. He referred to section 2(a) of the Public Officers Protection Act, Cap P14, Laws of the Federation of Nigeria 2004, Daudu v Unam [2002] 17 NWLR (Pt 796) 362 at 384, Obiefuna v Okoye [1961] ANLR 144. He submitted that the claimants’ action is statute barred and they have lost their right of action, judicial relief and enforcement citing Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1. Counsel submitted that before a court can assume jurisdiction, the action must be initiated by due process of law upon the fulfilment of any condition precedent to the exercise of jurisdiction citing Madukolu v Nkemdilim [1962] 2 SCNLR 341. He submitted that the claimants have failed to fulfill the condition precedent required to institute this action as the action is statute barred and is an abuse of the process of court citing Bagudu v FRN [2004] 1 NWLR (Pt 853) 182. He urged the court to strike out the suit for want of jurisdiction. In replying, learned counsel to the claimants submitted that this action is not statute barred. He referred to Paragraph 36 and 37 of the statement of facts and submitted that the cause of action arose in June 2010 when the defendant began to implement the provisions of section 26(5) of the Nigeria Security and Civil Defence Corps (NSCDC) Act 2003 and discriminated against the claimants by excluding their names from the list of confirmed staff of the defendant that was sent to the Akwa Ibom State Command thereby depriving the claimants of their right to automatic employment by the defendant. He argued that the Federal High Court Uyo had jurisdiction in 2010 when this matter was initially commenced. He submitted that by section 20 of the NSCDC Act 2003, the provisions of the Public Officers Protection Act can only be applicable when an employee of the defendant is sued and not when the defendant is sued. He referred to the case of Aremo II v Adekanye [2004] 121 LRCN 4853 and submitted that there is continuance of damage and a fresh cause of action daily as the defendant continues to discriminate against the claimants by employing others. It was his contention that the cause of action also bothers on debt as the defendant owes the claimants salaries citing CBN v Amao [2011] ALL FWLR (Pt 558) 805 at 827, Tolorunleke v ARMTI [2009] 16 WRN 39, NPA v Locus Plastic [2005] NSCQR 566, Osun State Government v Dalani Nigeria Ltd [2007] 148 LRCN 1311. He submitted that the Public Officers Protection Act does not apply in employment contracts citing Salako v LEDB [1953] 20 NLR 169, Aiyelabegan v L.G.Service Commission Ilorin Kwara State [2009] 22 WRN 108. He urged the court to hold that the action is not statute barred and award costs against the defendants. Replying on point of law, counsel to the defendant submitted that the authorities Aremu II v Adekanye supra, Osun State Government v Dalani Nigeria Ltd supra, Salako v LEDB supra and CBN v Amao supra cited by the claimant’s counsel are unhelpful to their case as the facts in those cases are different from this instant case. He submitted that there is no fresh cause of action arising from time to time in the instant case. He argued that the cause of action arose in 2006 when the claimants were screened out by Public officers assigned to carry out the screening exercise nationwide. Having considered the submissions of counsel, the issues to be determined are whether the defendant is a Public Officer; and whether this action is caught by the Limitation Law. A court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim; in this instance the complaint and statement of facts alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the complaint was filed. If the time on the complaint is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24. The defendant argues that this action is caught by the provisions of section 2(a) Of the Public Officers Protection Act CAP P14 LFN 2004 which is reproduced as follows: 2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any Act, Law, duty or authority, the following provisions shall have effect: (a) The action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof. The claimants counsel has argued that by the provisions of section 20 of the Nigeria Security and Defence Corps Act Cap N146 LFN 2004 the provisions of the Public Officers Protection Act is only applicable when an employee of the defendant is sued and not when the defendant is sued; that this means that the defendant can be sued at anytime without recourse to the provisions of the Act. This is not the correct position of the law. The heading of section 20 is “Limitation of suits against Corps, etc”. The defendant is a juristic/artificial person and on the authorities is covered by the Public Officers Protection Act. See section 18(1) of the Interpretation Act LFN 2004 for the definition of Public Officers, Ibrahim v J.S.C. [1998] 14 NWLR (Pt 584) 1, Abubakar v Governor of Gombe State [2002] 17 NWLR (Pt 797) 533, Nwaogwugwu v President FRN [2007]1 ALL FWLR (Pt 389)1327. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the limitation has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere[2001] 11 NWLR (Pt 723) 114. I find from the statement of facts that the claimants were recruited and enlisted in the service of the defendant’s predecessor in title as regular and permanent officers between 1993 and 1998. The cause of action arose in June 2010 when the defendant began to comply with and implement the provisions of the Nigeria Security and Defence Corps Act Cap N146 LFN 2004 and the claimants names were not included in the list sent by the Commandant-General to the Akwa Ibom State Command Commandant as regular staff of the defendant. From the pleadings, this action was initially filed at the Federal High Court in 2010 but was struck out on the 21st November 2012 for want of jurisdiction and this instant suit filed on the 5th December 2012. This is over two years after the accrual of the cause of action and outside the three months statutory limit. The claimant has argued that this case falls within the exception to the Limitation law as there is a continuance of injury/damage to the claimants. The Limitation law recognises the exception of a continuance of damage or injury. These are not caught up by the Limitation but it is for the claimant to establish this before the court. The test on “continuance of damage or injury” has been laid down in the recent Supreme Court decision in A-G, Rivers State v. A-G, Bayelsa State & Anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150. The Supreme Court at pages 148 – 149 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. This in my humble view means that where an allocation which comes periodically to a State just like salary and allowances received by an employee monthly is deprived a plaintiff State or a claimant 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. The phrase “continuance of the injury” means continuance of the “act which caused the injury” and not the injury itself. In the instant case, the claimants have pleaded that they have been made to work as volunteers for the defendant rather than as permanent employees which they believe the Nigeria Security and Defence Corps Act Cap N146 LFN 2004 deems them to be; and they are not paid the salaries and allowances that are paid to permanent employees of the defendant. Furthermore, that the sum of N30,000.00 paid by the defendant since 2006 to each of them as volunteers every quarter for subsistence was paid up to September 2010 and then stopped. They pleaded that they continue to work as volunteers till date for the defendant without the N30,000.00 quarterly allowance being paid to them or any salaries, and that the defendant is indebted to them. From the pleadings, the claimant’s have been deprived of their allowances as volunteer staff from October 2010 till date and still continue to work for the defendant. This is their periodic quarterly entitlement which has not ceased. There is therefore established a continuance of damage or injury which has not ceased. The claimants cause of action arises every quarter the defendant neglects or refuses to pay their N30,000.00 quarterly allowance. See Central Bank of Nigeria v Amao [2011] All FWLR (Pt 558) 805 at 827. I hold that this action is not statute barred as it falls within the exception of continuance of damage or injury. The defendant is not protected by the provisions of the Public Officers Protection Act. The objection is hereby dismissed. The case is to proceed to hearing. I make no order as to costs. Ruling is entered accordingly. ---------------------------------------- Hon Justice O.A.Obaseki-Osaghae