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The claimant filed this complaint against the defendant on the 21st June 2012 seeking the following reliefs: a. A declaration that the summary withdrawal of temporary appointment of the claimant by the Governing Council of the 1st Defendant at its 54th Meeting holding on Friday, May 20, 2011 on the recommendation of the Appointments and Promotions Committee (Academic) at its 36th meeting held on May 12, 2011 vide its letter dated May 23, 2011 is wrongful and unlawful whatsoever. b. An order of court for exemplary damages, personal inconvenience, cost of earning, hardship, pains and suffering in the sum of N20m. c. An order of payment of six months salary in lieu of notice in the sum of N5m d. An order of payment of the sum of N360,000 being air fares of the claimant and his children from South Africa to Nigeria. e. An order for the payment of the sum of N462,188.25 to the claimant being the money used to clear his goods from Lagos Tin Can Port in Lgos. Accompanying the complaint is the statement of facts, copies of documents to be relied upon, name of witness and witness statement on oath. In reaction, the defendants entered conditional appearance, filed their statement of defence, name of witness, witness statement on oath and copies of documents to be relied upon. The claimant filed a reply to the statement of defence on 17th January 2013. Thereafter, the defendants filed a Notice of Preliminary Objection on 17th June 2013 challenging the suit on the grounds that is statute barred by the provisions of Section 2 (a) of the Public Officers Protection Act CAP P41 LFN 2004. In support of the Objection is a written address. In opposition, the claimant filed a written address on the 5th July 2013. The defendant filed a reply on point of law on 31st October 2013. Both parties adopted their written addresses. Learned counsel to the defendant submitted one issue for determination as follows: Whether this suit is statute barred by virtue of the provisions of Section 2 (a) of the Public Officers Protection Act. He referred to Section 2 (a) of the Public Officers Protection Act and submitted that actions instituted against Public Officers must be brought within three months of the accrual of the cause of action. He submitted that the Public Officers Protection Act CAP P41 LFN 2004 applies to both natural persons and Institutions and therefore the defendants are covered by the Act referring to University of Ilorin v Adeniran [2007] 6 NWLR (pt 1031) 498, Akeem v University of Ibadan [2003] 10 NWLR (Pt 829) 584. He argued that a claimant is barred from proceeding with a claim against a defendant for an act done in pursuance or execution of a Public duty if it is not commenced within three months of the alleged act. It was his submission that a cause of action is said to be statute barred if legal proceedings cannot be brought because the period laid down by the Limitation Law has elapsed. That the court only needs to look at the complaint and statement of facts alleging when the wrong which gives the claimant a cause of action was committed and then compare with the date the writ was filed citing Forestry Research Institute of Nigeria v Gold [2007] 11 NWLR (Pt 1044) 1 at 18, Egbe v Adefarasin [1992] 6 NWLR (Pt 245) 1 at 12. Counsel stated that the claimant’s appointment was withdrawn by letter dated 23rd May 2011 but received by the claimant on 2nd June 2011; therefore the cause of action arose on 2nd June 2011 and this action was filed on the 14th April 2012. He argued that this is more than ten months after the cause of action and that by the provision of Section 2(a) of the Public Officers Protection Act, the action must be filed within three months of the alleged wrong committed. He submitted that this action is statute barred and not maintainable. He urged the court to dismiss it. Learned counsel to the claimant did not submit any issues for determination of the court. He submitted that this action is not statute barred and the court is not deprived of jurisdiction to entertain it. He submitted that under the doctrine of continuity, the action is not caught by the Public Officers Protection Act. He submitted that the relevant portion of the Act is the second limb which relates to “continuance of damage or injury.” He submitted that there is the need to define ‘cause of action’. He referred to Egbe v Adefarasin [1985] 1 NWLR 549 at 568, Emiator v Nigeria Army [1999] 12 NWLR 362 at 369, Mbonu v Nigerian Minning Corporation [2006] 13 NWLR 659 at 685, Fadare & Ors v A-G Oyo State [1982] NSCC 52. He submitted that whether the injury to the claimant is continuing depends on the status of the employment relationship between the claimant and defendants. He argued that the defendants violated their own rules on the termination of academic staff appointment. That the temporary appointment the defendants offered the claimant is a tenured appointment which is statutorily flavoured. He submitted that the legal effect of unlawful termination of statutorily flavoured employment is that the claimant’s employment is still subsisting and on the doctrine of continuing injury, Section 2 (a) of the Public Officers Protection Act is not a bar to the claimant’s right of action. He cited Olaniyan v University of Lagos [1985] 2 NWLR 599, Boni Haruna v Adamu Mu’azu Modibbo [2004] 16 NWLR 487 at 548, Agoma v Guiness Nig Ltd [1995] 2 NWLR 672, Central Bank of Nigeria v Amao [2010] 5-7 MJSC 1 at 22. Learned counsel submitted that the Provisions of the Public Officers Protection Act do not apply to contracts and as such will not apply to the claimant’s employment which is clearly a breach of contract and to claims for work and labour done as the claimant is asking for his entitlement. He cited Federal Govt of Nigeria v Zebra Energy Limited [2002] 18 NWLR 162 at 195, Kotoye v Saraki [1994] 7 NWLR 414 at 458. He referred to Section 13 of the National Industrial Court Act 2006 and urged the court to exercise its equitable jurisdiction in this suit against the defendants. He submitted that the Provisions of the Public Officers Protection Act are not absolute and will not apply where the Public Officer has acted maliciously and in bad faith which is what the defendants have done citing Offoboche v Ogoja Local Government. He urged the court to hold that the Public Officers Protection Act is not applicable to this suit. Replying on point of law, learned counsel to the defendant submitted that the cases cited in support of the claimant’s contention that the injury is continuing are inapplicable to this suit particularly the case of Central Bank of Nigeria v Amao supra. He submitted that there is no continuance of damage and that the claimant slept on his right. He submitted that equity aids the vigilant and not the indolent. He submitted that the claimant’s case is on all fours with the case of Forestry Research Institute v Gold supra where the Supreme Court held that the action for wrongful dismissal was caught by the Public Officers protection Act. He then urged the court to dismiss this action. The issues to be determined are whether or not 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 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 defendant argues 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 1st and 2nd defendants are artificial persons and are covered by the Public Officers Protection Act. See Ibrahim v JSC [1998] 14 NWLR (Pt 584) 1, 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 on 2nd June 2011 when he received the letter withdrawing his appointment. This action was filed on the 21st June 2012. This is about twelve months after the accrual of the cause of action which is outside the three months statutory limit. The claimant has argued that the Public Officers Protection Act does not apply to contracts. This is not the correct position as case law is replete with employment contracts that were caught by the provisions of Section 2 (a) of the Act. Furthermore, this action is not one in which the claimant is making a claim for labour and work done but one of wrongful termination as can be clearly seen from the claimant’s claims. 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 claimant ceased to be in office from 3rd June 2011. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and a continuance of injury. This case is distinguishable from the case of Central Bank of Nigeria v. Amao supra which the claimant referred to. The respondent’s grievance in that case was that the amount the appellant was paying as monthly pension was less than what was provided in the Federal Government white paper and circular. The Supreme Court held that in the circumstance, the respondent’s cause of action arose every month the appellant paid to the respondent an amount lesser than the amount stated in the Federal Government white paper and circular. Consequently, the respondent’s action was held not to be statute-barred under section 2(a) of the Public Officers Protection Act. The claimant has alleged fraud and malice. The Supreme Court in the case of Chigbu v Tonimas Nig Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt 986) 189 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. That if the action has not been brought within the prescribed three months, there will be no basis for investigating the conduct of the Public Officer which gave rise to the action; the conduct is not relevant in determining whether the cause of action is statute barred under section 2 (a) of the Public Officers Protection Act. 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 defendants are protected by the Public Officers Protection Act. This court lacks jurisdiction to entertain this matter. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ---------------------------------------- Hon Justice O.A.Obaseki-Osaghae