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The claimant initially filed this action on the 15th June 2010 against the defendants at the High Court Uyo, Akwa Ibom State as Suit No HU/154/2010. The suit was subsequently transferred to this court on the 24th May 2012 pursuant to section 24 (3) of the National Industrial Court Act. By a further amended statement of claim, the claimant claimed against the defendants as follows: 1. Declaration that the letter of the Honourable Commissioner of Education dated 12th June 2008 was a valid directive from the State Government on the issue of his employment, which must be complied with by the defendants. 2. Declaration that the purported removal of the plaintiff from the office as per letter dated 3rd June 2008, and the procedure adopted by the defendant were irregularly invalid, null and void and contrary to the statute establishing the defendant and the principle of natural justice. 3. Immediate reinstatement of the plaintiff with all financial entitlements, promotion and allowance from 3rd June 2008 to date. OR IN THE ALTERNATIVE The sum of N500 Million damages for the wrongful removal from office as a Deputy Director of Administration. In reaction, the defendants/applicants filed a Notice of Preliminary Objection which is supported by a written address on February 1, 2013 seeking a dismissal of the suit on the following grounds: 1. The commencement of this suit by the claimant is in gross violation of the provisions of Section 1(1) of the Public Officers Protection Law Cap 104, Laws of Akwa Ibom State 2004. 2. This court lacks the competence to hear and determine this suit. In opposing the objection, the claimant/respondent swore to a 15 paragraph counter affidavit on February 11, 2013 to which is annexed 4 exhibits and filed a written address in support. The defendant /applicant filed a reply on point of law on February 25, 2013. Learned counsel to the defendant/applicant submitted that a public officer is a person who works in an Establishment, Body or Institution created by an Act of the National Assembly or Law of a state House of Assembly. He submitted that the law covers statutory bodies like the 1st defendant and that both defendants being public officers, they are protected from the claimant’s suit. He cited Ofili v Civil Service Commission [2008] All FWLR (Pt 134) 1621 at 1622, Ibrahim v Judicial Service Commission [1998] 14 NWLR (Pt 584) 1, CBN v Ukpong [2006] 13 NWLR (Pt 998) 659. He submitted that a suit is competent when it is instituted by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction referring to Madukolu v Nkemdilim [1962] 2 SCNLR 341. It was his further submission that by virtue of the provisions of the Public Officers Protection Law, any action or proceeding commenced against a public officer in that capacity outside the three months accrual of cause of action is statute barred. He cited Egbe v Adefarasin [1987] 1 NWLR (Pt 47)1, Goodwill Co. Ltd v Calabar Cement Co. Ltd [2010] All FWLR (Pt 544) 41, Osun State Govt v Dalami Nig Ltd [2007] Vol 148 LRCN 1313. He submitted that a cause of action is the aggregate or bundle of facts which the law recognizes as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought. He argued that the right of action is not in perpetuity but is circumscribed by the limitation law. He submitted that the cause of action arose on June 3, 2008 when the claimant’s letter of dismissal was written and served on him; while this action was instituted on June 15, 2010 which is 24 months and 13 days after the cause of action accrued. He submitted that the action is statute barred which has removed the claimant’s right of action, right of enforcement and the right to judicial relief citing Whoremn v Emeruwa [2004] 13 NWLR (Pt 890) 398. He urged the court to dismiss the suit and award costs in line with section 2 of the Public Officers Protection Law. Learned counsel to the claimant submitted three issues for the determination of the court as follows: 1. Whether the defendant’s preliminary objection dated 31st January 2013 is not an abuse of court process in view of the pending appeal on the same issue; thereby depriving this court of jurisdiction to entertain same. 2. Whether this court can review or sit on appeal over the ruling of Uyo High Court dated 25/07/2011 on the same issue. ALTERNATIVELY 3. Whether the defendants acted within the terms of the statutory or other legal authority to be accorded the protection under the Public Officers Protection law. He referred to the counter affidavit and stated that the High Court Uyo from where this matter was transferred had determined this issue, dismissed same and the defendants/applicants had filed an appeal against the ruling at the Court of Appeal. He stated that the appeal has been entered and parties have filed their respective briefs of argument. He submitted that this objection is an abuse of the process of court as this court has no jurisdiction to entertain same in light of the pending appeal. He cited Ngige v Achukwu [2004] 33 WRN 74 at 79, Mohammed v Hussein [1998] 14 NWLR (Pt 584) 108 at 136. He submitted that the ruling of the High Court Uyo has not been set aside by any court of competent jurisdiction therefore this court cannot entertain this application. He submitted that an order once made is valid and binding until set aside citing UBA Ltd v Onagoruwa [1996] 3 NWLR (Pt 439) 700. He submitted that the effect of section 24 (2) and (3) of the National Industrial Court Act is to confer co-ordinate jurisdiction on the Federal High Court, State High Court and National Industrial Court and as such this court cannot review or sit on appeal over the decision of the High Court. He referred to NIMB v UBA [2004] 52 WRN 131 at 138. He argued that an order of transfer in the circumstances of this case is not the same thing as beginning the case de novo for which the defendants can hide to raise issues that were already tried and dismissed afresh. In the alternative, he argued that in resolving whether a case is statute barred or not, the court will only have recourse to the statement of claim and that it is the law as at the time of cause of action arose that will be applicable. He stated that the claimant complained that he was removed from office based on a radio announcement which was confirmed in the letter dated 3rd June 2008. He referred to the letters dated 3rd and 12th June 2008 and also the letter dated 22nd June 2009 and submitted that the defendants acted wrongly in removing the plaintiff from office. He submitted that it was an abuse of office and outside their statutory duty and they have therefore lost the protection of the Public Officers Protection Act citing Offoboche v Ogoja LG [2001] 36 WRN 1 at 14, Akuma v NEPA [2006] 8 WRN 187 at 200. He argued that the claimant took many steps and actions necessary to give him the right of action, the last being a letter written on the 22nd April, 2010 by his counsel to the defendants of which there was no reply referring to Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 for the definition of cause of action. Replying on point of law, learned counsel to the defendant/applicant submitted that by section 115 (1) of the Evidence Act 2011 the contents of affidavits are facts and to join issues contained in an affidavit, a party is required to file a counter affidavit. He submitted that where no affidavit is filed as in this instance and issues are predicated on point of law, it is improper to file a counter affidavit to join issues. He submitted that the counter affidavit filed by the claimant cannot counter the points of law raised by the defendant against the jurisdiction of this court and every legal argument arising there from must equally fail as you cannot put something on nothing and expect it to stand citing UAC v McFoy [1961] 3 WLR 1405. He argued that all submissions by the claimants counsel refer to the counter affidavit and should be discountenanced by the court as they are of no legal effect. He submitted that the claimant/respondent has not joined issues on this objection and urged the court to hold that the claimant/respondent has admitted that the suit is statute barred. He submitted that the respondent cannot approbate and reprobate at the same time by going on with the hearing of this matter and then turn round to say it is an abuse of the process of court to hear the preliminary objection filed by the applicant. He argued that the claimant/respondent amended his pleadings after the matter was transferred to this court and was silent on the fact that there was an appeal pending in the Court of Appeal on the issue of jurisdiction. He submitted that this objection is not an abuse of court process as the High Court Uyo did not possess the requisite jurisdiction when it adjudicated on the preliminary objection raised by the defendant on 5th May 2011, the Third Alteration Act 2010 having commenced on 4th March 2011 and he urged the court to so hold. He submitted that the High Court lacked the jurisdiction to give the ruling it gave by virtue of section 254C (1) of the 1999 Constitution as amended. He submitted that what section 24 (3) of the National Industrial Court Act does is to transfer a matter to be tried afresh and not to give life to orders made without jurisdiction. He argued that hearing this application is not tantamount to sitting on appeal over the decision of the Uyo High Court Counsel submitted that the claimant is complaining about the procedure of his removal in his pleadings and that at this stage of the objection the defendant cannot be called upon to react to the allegations of wrongful dismissal. He contended that the issue is whether the suit was filed within three months of accrual of cause of action. He submitted that for the case of Offobache v Ogoja LGA supra to apply the claimant must plead that the letter of removal was done in bad faith and that the defendants abused their position for the purpose of acting maliciously. It was his submission that the petitions and letters for reinstatement does not stop the time from running referring to NNPC v Horsefall [2008] ALL FWLR (Pt 403) 1303. Counsel submitted that the date the cause of action arose is June 3, 2008 when the claimant was removed from office. He submitted that this action is statute barred having been commenced on June 15, 2010 outside the three months period and urged the court to so hold. I have carefully considered the submissions of counsel. This is a matter transferred to this court by order of the High Court Uyo on May 24, 2012. There is no dispute between the parties as to the fact that this same objection was raised in the High Court Uyo and a ruling was delivered on the 25th July 2011. An appeal against the ruling was filed by the defendant who was dissatisfied with it before the suit was transferred to this court. The records of the court show that the defendant’s appeal has been entered and parties have filed their respective briefs of argument. The Court of Appeal is therefore seized of this matter and this court cannot entertain this same application which is already on appeal. Consequently, this case is adjourned sine dire pending the judgement of the Court of Appeal. ______________________________ Hon Justice O.A.Obaseki-Osaghae