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The claimant filed this complaint on the 7th March 2012 claiming against the respondents jointly and severally as follows: 1. An order setting aside the letter written by the first respondent dated 15/3/2011, Ref. No. ESBS/ENG/p.26/324 to the claimant and a declaration that same is null and void, and of no effect whatsoever. 2. A declaration that the claimant’s purported retirement from the services of the 1st respondent, based on the facts contained in the said letter of 15/3/2011 is premature and therefore wrongful, unlawful and illegal hence, his appointment subsists, and he is still occupying his position now as Chief Technical Officer in the first respondent. 3. A declaration that the claimant is entitled to stay in the services of the 1st respondent until he attains the mandatory 60 years of age or 35 years of service. 4. An order for the immediate re-instatement of the claimant into office, and payment of all his entitlement from 1st March, 2011 when the purported retirement took effect, until judgement is delivered in this case. 5. The sum of N5 million only, being general damages for wrongful retirement of the claimant from the services of the 1st respondent. 6. An injunction restraining the respondents their agents, servants and privies from interfering with the claimant’s employment until he attains the mandatory 60 years of age or 35 years of service. Accompanying the complaint is the statement of facts, copies of documents to be relied upon, list of witnesses, and witness statement on oath. The respondents entered conditional appearance on the 22nd March 2012 and filed their statement defence, witness statement on oath and copies of documents on 11th May 2012. Parties joined issues and trial commenced on the 13th June 2012. The respondents on the 26th November 2013 filed a Notice of Preliminary Objection which is the subject matter of this ruling. The objection is praying for an order striking out this suit for want of jurisdiction. The grounds of the objection are: i. The Public Officers Protection Act requires that the instant suit being one against Public Officers be brought within three (3) months of the act or default complained of. ii. The claimant failed to bring this suit within the time limited by law. iii. The claimant’s suit is statute-barred. The objection is supported by an 18 paragraph affidavit sworn to by Sunday N. Edeani, a civil servant to which is annexed six exhibits and a written address. In opposing the objection, the claimant swore to a counter affidavit of 7 paragraphs on the 15th January 2014 to which is annexed one exhibit and a written address in support. In reaction the respondents filed a further affidavit also sworn to by Sunday N. Edeani and a reply on points of law on the 26th February 2014. Learned counsel to the respondents submitted one issue for determination as follows: Whether this suit is not statute barred having regards to the provisions of Section 2 (a) of the Public Officers Protection Act Cap P 41, LFN 2004. She submitted that for Section 2(a) of the Public Officers Protection Act to avail any person, he must be a public officer or a person acting in the execution of public duties and the act complained of must be done in pursuance or execution of any law, public duty or authority. She submitted that the respondents are public officers within the meaning of the Act citing Ibrahim v Judicial Service Committee, Kaduna State [19998] 14 NWLR (Pt 584) 1, Nigerian Broadcasting Corporation v Bankole [1972] NSCC 220. She submitted that the acts of the respondents complained of which is the retirement of staff were carried out in the performance of their public or official duties. It was her submission that this action was instituted outside the three months period prescribed by the Act. She stated that the claimant was retired vide letter ref ESBS/S.60/T/Vol.II/143 dated 27/05/2011 and that he instituted this action on 7th March 2012. She submitted that in determining whether an action is statute barred the court only needs to look at the writ of summons and statement of claim alleging when the wrong was committed and compare with the date the writ was filed relying on F.R.I.N. v Gold [2007] 11 NWLR (Pt 1044) 1 Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20. Counsel submitted that while some of the authorities such as Offoboche v Ogoja Local Government [2001] 1 FWLR (Pt 68) 1051 have held that the Act will not protect a public officer where the act complained of is one tainted by malice, bad faith, bias or where there is no legal justification, the current position of the authorities is that Section 2(a) of the Public Officers Protection Act should be given its plain ordinary meaning as the purpose of the section is to determine whether an action is maintainable and not the liability or otherwise of the defendant. She cited Fajimolu v University of Ilorin [2007] 2 NWLR (Pt 1017) 74 at 88. She submitted that the claimants suit does not fall under any of the exceptions to the application of the Act. That the claimant was under a contract of employment as against a special or specific contract and the injury alleged by the claimant is not a continuing injury because his retirement was definite. Counsel submitted that by virtue of the provisions of the limitation law this suit is statute barred and therefore not maintainable. She urged the court to strike out the suit. Learned counsel to the claimant in his response submitted the following issue for determination: Whether or not the claimants action is statute barred in view of the provisions of S. 30 (1 &2) of the Enugu State Broadcasting Service Law, Cap 42 Revised Laws of Enugu State 2004. He reproduced Section 30 (1) and 30 (2) of the Enugu State Broadcasting Service Law, Cap 42, Revised Laws of Enugu State, 2004 as follows: No suit against the Corporation or any staff or servant of the corporation for any act done in pursuance of, or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Law, duty or authority, shall lie or be instituted in any court, unless it is commenced within twelve months immediately after the occurrence of the act, neglect or default complained of, or in the case of continuing damage or injury, then within twelve months immediately after such damage or injury has ceased. No such suit shall be commenced against the corporation until one month at least after a written notice of intention to commence the suit shall have been served upon the corporation by the intending plaintiff or his agent, and such notice shall clearly and explicitly state: a) The cause of action. b) The particulars of claim. c) The name and place of abode of the intending plaintiff. d) The reliefs sought by the intending plaintiff. Counsel submitted that a careful look at the provisions of the above statute and the Public Officers Protection Act reproduced above, shows that one is general while the other is special, and both cover the same subject matter. That section 2(a) of the Public Officers Protection Act is general in nature as it affects all public officers, while S. 30(1) & 30(2) of the Enugu State Broadcasting Service Law is special in nature since it affects Enugu State Broadcasting Service and her Public Officers alone. He submitted that it is now well established that where there are two provisions of different statutes covering the same subject matter, one special and the other general, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision ,citing Aiyelabegan v Local Government Service Commission Kwara State, [2009] 2WRN P. 108 AT P.125 RATIO 23. He submitted that section 2(a) of the Public Officers Protection Act is a Law of general application, whereas section 30(1) and (2) of the Enugu State Broadcasting Service Law, is of specific provision. It was his submission that the reasoning behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to the case; that the special case provided for is an exception and taken out of the general provision and its ambit and therefore the general provision do not apply. He cited Ibori v Ogboru [2004] 15 NWLR (Pt 895) 154, Schroder v Major [1989] 2 NWLR (Pt 101) 1, FMBN V Okoli [2002] 30 WRN 1. It is his contention that the period of limitation under the Enugu State Broadcasting Service Law, Cap 42, a period of 12 months, is the appropriate duration to invoke in the circumstance of this case, and not the Public Officers Protection Act, which is of general application. He urged the court to hold that the S. 2(a) of the Public Officers Protection Act, Cap P. 41 LFN, 2004 is of general application, and therefore does not apply in the instant case, while Section 30(1) & (2) of the Enugu State Broadcasting Service Law, which is of specific provision is applicable in the instant case as it relates to the 1st and 2nd respondents. In relation to the 3rd and 4th respondents he submitted that by the authority of Section 11 (1) & (2) of the State Proceeding Law, Cap 146, Revised Laws of Enugu State, 2004, legal action against them ought to be brought within 12 months of the act complained of. He reproduced the Section 11 (1) Act follows: “No action or proceeding shall lie or be instituted under this law unless it is commenced within twelve months next after the act, neglect or default complained of or, in this case of a continuing damage or injury, within twelve months next after the ceasing thereof”. Counsel contended that this law is specific in nature as it relates to Public Servants of Enugu State, and constitutes an exception to Section 2(a) of the Public officers Protection Act which is of general application. He argued that the period of limitation under the State Proceeding Law, Cap 146, a period of 12 months is the appropriate duration to invoke in the circumstance of this case, as it relates to the 3rd and 4th respondents, and not the Public Officers Protection Act, which is of general application to all public officers. He cited the Aiyelabegan v LGSC supra, Ibori v Ogboru supra and FMBN v Okoli supra. He then urged the court to hold that based on the Enugu State Broadcasting Law and the State Proceeding Law Cap 146, Laws of Enugu State, 2004, this action is not statute barred, because it was brought within the 12 months period stipulated by both Laws. Replying on point of law, defence counsel submitted that where a plaintiff fails to serve a per-action notice as required by law, the court lacks jurisdiction to entertain the suit and any proceedings taken therein is a nullity referring to Section 11(2) of the State Proceedings Law Cap 146, Laws of Enugu State 2004 reproduced as follows: 2. No action shall be instituted i. Against the State or iii Against a public officer, in respect of any act done in pursuance of execution or intended execution of, any written law, or any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority; Until the expiration of a period of three months after notice in writing has been, in the case of the State delivered to the Secretary to the Government, and in the case of a public officer, delivered to him, stating the cause of action, the name, description and place of residence of the proposed plaintiff and the relief which he claims and the plaint when eventually prepared shall contain a statement that such notice has been so delivered and the date on which it was delivered. Counsel submitted that the pertinent issue to be considered is whether the subject in issue is within the Federal Legislative competence. She submitted that where the National Assembly has made a law to cover the field on the subject, the State House of Assembly may not make any enactment which is at variance with the Federal Law. She submitted that by virtue of item 34 of the Exclusive Legislative list contained in the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999, labour is a matter over which the National Assembly may exercise its legislative powers. That also within the Federal Legislative competence is the Public Service of the Federation including the settlement of disputes between the Federation and Officers of such service under item 53 of the Exclusive list. She argued that limitation of actions against public officers is one which concerns labour, a subject over which the National Assembly has exercised its legislative power and therefore the Public Officers Protection Act takes precedence. She referred to A-G Abia v A-G Federation [2002] 6 NWLR (Pt 763) 264 at 435, Sulgrave Holdings Inc. v F.G.N [2012] 17 NWLR (Pt 1329) 309 at 340. She urged the court to find that the Public Officers Protection Act is applicable and that this case is statute barred. She then prayed the court to strike it out. Having considered the submissions of counsel, the issues to be determined are whether or not the respondents are public officers and 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 alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date 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. See Elabanjo v Dawodu [2006] 6-7 SC 24. The respondents argue that this action is caught by the provisions of section 2(a) Of the Public Officers Protection Act. Section 2(a) of the Public Officers Protection Act 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 claimant has argued that in this instance, the Public Officers Protection Act is not applicable because it is a general provision; that rather, Section 30(1) and 30(2) of the Enugu State Broadcasting Service Law CAP 42 Revised Laws of Enugu State 2004, and Section 11(1) of the State Proceedings Law Cap 146, Laws of Enugu State 2004 which are specific in nature and relate to public officers in Enugu State are the applicable laws. Both statutes have been reproduced above in the address of counsel. The Public Officers Protection Act applies to both natural and artificial persons. On the authorities, I find the respondents to be public officers who are covered by the provisions of the Public Officers Protection Act in the exercise of their public or official duties and I so hold. See Section 18 (1) Interpretation Act CAP 123 LFN 2004 for the definition of public officer, Ibrahim v Judicial Service Commission [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. The cause of action arose when the claimant was retired by letter dated May 27, 2011. This action was instituted on 7th March, 2012. This is about ten months after the accrual of the cause of action. This is outside the three months statutory limit. The respondents are public officers. By the doctrine of covering the field, the paramount legislation is predominant and the subordinate legislation goes into abeyance and remains inoperative so long as the paramount legislation remains operative. The Public Officers Protection Act being an Act of the National Assembly is the paramount legislation. See A.G. Abia State & 35 ors v A.G. Federation [2002] 6 NWLR (Pt 763) 265 at 435. The doctrine postulates that where the State and Federal Governments have concurrent powers to legislate on the same subject matter, the Federal Law covers the whole field of the subject matter. See Rector, Kwara Polytechnic v Adefila [2007] 15 NWLR (Pt 1056) 42. In the matter of limitation of actions against Public Officers, the whole field has been covered by the Public Officers Protection Act which is a Federal law. It has dealt exhaustively with the subject matter so as to manifest an intention to exclude any other legislation on the same matter. By the doctrine of covering the field, the Public Officers Protection Act being an Act of the National Assembly, overrides Section 30(1) and 30(2) of the Enugu State Broadcasting Service Law CAP 42 Revised Laws of Enugu State 2004, and Section 11(1) of the State Proceedings Law Cap 146, Laws of Enugu State 2004. See A.G. Abia State & 35 ors v A.G. Federation [2002] All FWLR (Pt 101) 1447. I therefore hold that Sections 30(1) and 30(2) of the Enugu State Broadcasting Service Law CAP 42 Revised Laws of Enugu State 2004, and Section 11(1) of the State Proceedings Law Cap 146, Laws of Enugu State 2004 are not applicable. Rather, the applicable law is Section 2 (a) of the Public Officers Protection Act CAP P41, LFN 2004, and I so hold. I find that this suit has been instituted outside the three months of accrual of cause of action. I hold that it is Statute barred and that the respondents are protected by the Public Officers Protection Act. I therefore can no longer entertain this matter for want of jurisdiction. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ----------------------------------------- Hon Justice O.A.Obaseki-Osaghae