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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: SEPTEMBER 25, 2014 SUIT NO. NICN/LA/664/2013 BETWEEN 1. Mahmoud Bello, retired Assistant Comptroller General of Customs 2. Balarabe Gaya, retired Assistant Comptroller General of Customs 3. Mohammed Tukur Liman, retired Assistant Comptroller General of Customs 4. Jejeloye Afolayan, retired Assistant Comptroller General of Customs 5. Albert Jibuaki, retired Assistant Comptroller General of Customs 6. James Brigue, retired Comptroller of Customs 7. Gorge Olu Mabadje, retired Comptroller of Customs (For themselves and as representatives of Retired Senior Officers of Nigeria Customs who retired before 10th December 2002). - Claimants AND Nigeria Customs Service Board - Defendant REPRESENTATION T. A. Molojo SAN, and with him is Mr. Ogechukwu Enebeli for the claimants. D. O. B. Badejogbin, Assistant director Federal Ministry of Justice, for the defendant. RULING By an originating summons dated and filed on 17th December 2013, the claimant is praying for the determination of the following questions – 1. Upon a correct interpretation of the Conditions of Service of Nigeria Customs Service published in the Federal Republic of Nigeria Official Gazette No. 15 of 7th March 2003 (Exhibit GOM1) and No. 25 of 29th March 2011 (Exhibit GOM9) (“the Regulations”), do the words – “The NCSB approved these regulations w.e.f. 10th December, 2002” and “The NCSB approved these regulations w.e.f. 28th March, 2011” which appear in section 1(b) thereof limit the application of the Regulations to officers of the Nigeria Customs Service who retired with effect from 10th December 2002? 2. If the answer to the first question above is in the negative, are the claimants not entitled to be paid the monetized values of their enhanced retirement benefits as provided by the Regulations notwithstanding the retirement of the claimants on dates prior to 10th December 2002 and 28th March 2011 aforesaid? The claimants then prayed for the following reliefs – a) A declaration that upon a correct interpretation of the Conditions of Service of Nigeria Customs Service aforesaid of (“the Regulations”) the words – “The NCSB approved these regulations w.e.f. 10th December, 2002” and “The NCSB approved these regulations w.e.f. 28th March, 2011” which appear in section 1(b) thereof do not limit the application of the Regulations to officers of the Nigeria Customs Service who retired with effect from (i.e. on and subsequent to) 10th December 2002 and 28th March 2011. b) A declaration that notwithstanding the retirement of the claimants on dates prior to 10th December 2002 the claimants are entitled to payment of the monetized values of their enhanced retirement benefits, including arrears accrued thereof, as approved by the defendant with effect from 10th December 2002 and 28th March 2011 respectively. c) An order that the defendant do pay to the claimants forthwith the monetized values of their enhanced retirement benefits, including accrued arrears thereof, as approved by the defendant with effect from 10th December 2002 and 28th March 2011 and thereafter all such enhanced retirement benefits as and when they fall due. d) Such further or other relief as this Honourable Court may deem just in the circumstances. e) That the defendant may be ordered to pay the costs of this application. Accompanying the originating summons is an affidavit in support with affidavits GOM1 – GOM17 attached and a written address. In reaction, the defendant filed its counter-affidavit and a preliminary objection. The preliminary objection dated 13th January 2014 is accompanied by a written address of same date. In reaction, the claimant filed a reply to the defendant’s counter-affidavit and a written address. The defendant filed a second preliminary objection dated 4th February with an affidavit in support and written address of same date, 4th February 2014. In answer to this second preliminary objection, the claimant filed a counter-affidavit and a written address on 20th March 2014. In the defendant’s first preliminary objection, the defendant is praying for – 1. An order of this Honourable Court to dismiss this suit or in the alternative to strike out this suit. 2. Such further or other order(s) as this Honourable Court may deem fit to make in the circumstances. The grounds of the objection are – 1. The claimants in paragraph 4 of the affidavit in support of the claimants’ originating summons deposed ‘Subsequent to the retirement of the claimants, the defendant revised the retirement benefits of Senior Officer of the Nigerian Customs Service vide the conditions of service of Nigerian Customs Service dated 10th December 2002, published in the Federal Republic of Nigeria Official Gazette No. 15 of 7th March 2003….’ The claimant filed this action on 17th December 2013. The period elapsing between 10th December 2002 to the date of filing of this action on 17th December 2013 is 11 years contrary to limitation of actions, section 6(1) Nigerian Customs Service Board Act Cap. N100 Laws of the Federation of Nigeria 2004. This only allows commencement of action within 3 months of cause of action. 2. The claimants filed this action on 17th December 2013. The claimants did not serve the defendant the Notice of Intention to commence the suit contrary to limitation of actions, section 6(2) Nigerian Customs Service Board Act Cap. N100 Laws of the Federation of Nigeria 2004. 3. The defendant is a Federal Public Officer/Office and protected by section 2(a) of the Public Officers Protection Act 2004. The Public Officers Protection Act, section 2(a) provides for 3 months limitation period to commence action against Federal Public Officers. The claimant filed this action on 17th December 2013. The period elapsing between 10th December 2002 date of cause of action when the defendant revised the Conditions of Service of Nigerian Customs Service to the date of filing of this action on 17th December 2013 is 11 years contrary to section 2(a) of the Public Officers Protection Act 2004. 4. The letters referred by the claimants in paragraphs 5, 6 and 7 of affidavit in support of the claimants’ originating summons were written by Association of Retired Senior Officers of Nigerian Customs Service (ARSONCS) who is not joined as a party herein. The letters were not written by the claimants to the defendant properly named as Nigerian Customs Service Board establish by Cap. N100 LFN 2004. 5. The claimants, in paragraph 2 of the affidavit in support of the claimants’ originating summons deposed ‘We the claimants initiate this suit for ourselves and as representatives and with the authority of all retired officers of the Nigerian Customs Service who retired before 10th December, 2002...’ There is no list of the names of persons and particulars of date of retirement of persons that the claimants are representing before the Court. By the second preliminary objection in limine, the defendant is challenging the jurisdiction of the Court to hear and/or entertain the action upon the following grounds – (a) The claimants who retired before 10th December 2002 did not show sufficient nexus with the revised Conditions of Service of Nigerian Customs Service No. 15, 2003 and the Conditions of Service of Nigeria Customs Service No. 25, 2011 as to activate the interpretation jurisdiction of the Court. (b) The claimants have not disclosed a cause or reasonable cause of action. To the defendant, the main plank of the claimants’ case is entitlement to the payment of the monetised values of their enhancement retirement benefits, including arrears accrued as approved by the defendant with effect from 10th December 2002 and 28 March 2011 respectively. That aside from the matter being statute-barred under section 6(1) of the Nigerian Customs Service Board Act Cap. N100 LFN 2004 and section 2(a) of the Public Officers Protection Act Cap. P41 LFN 2004, in filing this action on 17th December 2013, the claimants did not serve the defendant the Notice of Intention to commence the suit contrary to section 6(2) of the Nigerian Customs Service Board Act 2004. Furthermore, that the claimants did not write any letter to the defendant as stated in paragraphs 5, 6 and 7 of the affidavit in support of the claimants’ originating summons. Instead, the letters were written by the Association of Retired Senior Officers of Nigeria Customs Service (ARSONCS) and addressed to the Comptroller General and not to the defendant in this suit. Lastly, that the claimants in suing in representative action have not listed the names of persons and particulars of date of retirement of the persons that they are representing before the Court. The defendant regarding the first preliminary objection then framed two issues for the determination of the Court, namely – 1. Whether or not the suit is incompetent and statute-barred. 2. Whether or not the conditions of service of the Nigerian Customs Service No. 15 of 2003 effective from 10th December 2002 and the conditions of service of the Nigerian Customs Service No. 25 of 2011 effective from 28th March 2011 are to have retrospective or retroactive effect. Regarding issue 1, and as indicated, the defendant’s contention is that the Conditions of Service of the Nigerian Customs Service No. 15 of 2003 was made effective from 10th December 2002 and that of No. 25 of 2011 was made effective from 28th March 2011. Since the main plank of the action of the claimant is on these Regulations, and the claimants, however, filed this action on 17th December 2013 which is 11 years and 2 years/9months respectively from the date of the cause of action, the time difference of more than 3 months contrary to section 6(1) of the Nigerian Customs Service Board Act 2004 and the Public Officers Protection Act 2004, which allows for the commencement of action against the defendant within 3 months, means that the matter is statute-barred and so should be dismissed. The defendant referred the Court to FCE Pankshin v. Pusmut [2008] 12 NWLR (Pt. 1101) 405 at 419, Hassan v. Aliyu [2010] SC 17 NWLR (Pt. 1223) 547 and Attorney General of Rivers State v. Attorney General of Bayelsa State & anor (the citation was not supplied). Secondly, that even when the claimants filed this action on 17th December 2013, they did not serve the defendant the Notice of Intention to commence the suit contrary to section 6(2) of the Nigerian Customs Service Board Act 2004. Accordingly, that the present action is incompetent and should be struck out. Thirdly, that the claimants in suing in a representative action have not even listed the names of the persons and particulars of the date of retirement of the persons that they are representing before the Court. The defendant then submitted that this robs the Court the proper adjudication of this action and so the suit should be dismissed; or in the alternative, struck out. On issue 2 i.e. whether or not the Conditions of Service of the Nigerian Customs Service No. 15 of 2003 effective from 10th December 2002 and the Conditions of Service of the Nigerian Customs Service No. 25 of 2011 effective from 28th March 2011 are to have retrospective or retroactive effect, the defendant contended that it is well settled that a law is not to be given retrospective effect unless it is expressly stated. That a retroactive or retrospective law is one that takes away or impairs vested rights acquired under existing laws, creates new obligations, imposes new duties, or attaches a new and different legal effect to transactions or consideration already past. Common law principles do not favour the retroactive effect of laws in the majority of cases and legislative construction presumes that legislation is not intended as retroactive unless its language expressly makes it retroactive. Retroactive refers to extending the scope or effect to matters that have occurred in the past. In other words it is the application of a given rule to events that took place before the law was in effect. That the claimants by their originating summons raised an issue of the retroactive application of law, citing Nze Bernard Chigbu v. Tonimas Nig. Ltd Folayan [1995] 8 NWLR (Pt. 413) 292. To the defendant, there is no express stipulation in the Conditions of Service of the Nigeria Customs Service No. 15 of 2003 and No. 25 of 2011 that are to have retrospective or retroactive effect on the claimants. That clauses 2 and 2(a) of the Conditions of Service of Nigeria Customs Service No. 15 of 2003 and No. 25 of 2011 respectively state that “these Regulations shall apply to all officers and men of the Nigerian Customs Service”. That flowing from this, the Regulations are applicable only to officers and men who are still in active service of the Nigerian Customs Service and, therefore, not relevant to the claimants. The defendant continued that the term “Conditions of Service” presupposes agreement of terms detailing relationship between the serving officers and the Nigerian Customs Service as against the retired claimants. The defendant went on that clause 1.1(b) of the Conditions of Service of Nigerian Customs Service No. 15, 2003 states that “the NCSB approved these regulations w.e.f. 10th December, 2002” and clause 1.1(b) and of the Conditions of Service of the Nigerian Customs Service No. 25 of 2011 states that “the Nigerian Customs Service Board approved these Regulations w.e.f. 28th March, 2011”. To the defendant, in difference to the submission of the claimants’ written address in paragraph 4.2, clause 1.1(b) did not specify the date on which the benefits became payable but rather the effective date/commencement of the Regulation itself. The defendant accordingly submitted that the Regulations of the Conditions of Service of the Nigerian Customs Service limit the application to officers of the Nigerian Customs Service who retired with effect from 10th December 2002. In conclusion, the defendant urged the Court to dismiss this suit or, in the alternative, strike it out. As regards the second preliminary objection, the defendant framed two issues for the determination of the Court namely – a) Whether or not the interpretative jurisdiction of the National Industrial Court (NIC) has been properly invoked. b) Whether the claimants disclosed a cause or reasonable cause of action as to activate the jurisdiction of the National Industrial Court. On issue a), the defendant first submitted that jurisdiction is determined by the stature creating a Court, and by the cause of action framed for the Court by the litigant coming to Court. That the interpretation jurisdiction of this Court is regulated by sections 15 and 20 of the Trade Disputes Act (TDA). That for this Court to have jurisdiction to hear an application for the interpretation of an agreement, the following two factors are needed: (a) the agreement must be a collective agreement within the meaning of the TDA; (b) a party to the agreement must have filed the actions as enjoined by section 15 of the TDA. In other words, there must be a nexus between the party asking for interpretation and the agreement sought to be interpreted. To the defendant, section 47 of the Trades Disputes Act defines a collective agreement in terms of an agreement in writing for the settlement of disputes, and relating to terms of employment and physical conditions of work concluded between an employer and workers. That it is not sufficient merely that the claimants can benefit from the revised Conditions of Service of Nigeria Customs Service No. 15 of 2003 and those of No. 25 of 2011, and that should automatically entitle claimants to apply for its interpretation in the Court without anymore. The defendant continued that the claimants sued as representatives of Retired Senior Officers of Nigerian Customs Service who retired before 10th December 2002 to activate the interpretation jurisdiction of the Court. That there is no nexus between the claimants and the Conditions of Service of the Nigerian Customs Service No. 15 of 2003 and those of No. 25 of 2011, relying Benjamin Itodo v. Chevron Texaco Nigeria Suit No. NIC/5/2003 Digest of judgments of National Industrial Court [1978 – 2006] page 499 and John Ovoh v. Nigeria Dredging and Marine Limited Digest of judgments of National Industrial Court [1978 – 2006] page 516. The defendant then urged the Court to decline jurisdiction in this circumstance. Regarding issue b) i.e. whether the claimants disclosed a cause or reasonable cause of action as to activate the jurisdiction of this Court, the defendant defined a cause of action as the entire set of circumstances giving rise to an enforceable claim; it is in effect the fact or combination of facts which give rise to a right to sue, and it consists of two element: (a) the wrongful act of the defendant which gives the plaintiff his cause of complaint; and b) the consequent damage. That in the instant case, the applicants anchored their relief on speculation which could not avail them a cause of action, relying on RINCO Construction Co. Ltd v. Veepee Industries Ltd [2005] 9 NWLR (Pt. 929) 95. That the Conditions of Service of Nigeria Customs Service No. 15 of 2003 and those of No. 25 of 2011 cannot apply to the claimants who for all practical purposes were no longer employees of the defendant as at the effective date of the Conditions of Service, relying on West African Distillers Limited & 2 ors v. Food, Beverage and Tobacco Senior Staff Association Digest of judgments of National Industrial Court [1978 – 2006] page 516. That the claimants were fully paid their severance benefits entitlement upon their retirement. The defendant accordingly submitted that the claimants did not disclose a cause or reasonable cause of action as to activate the jurisdiction of this Court. The defendant then prayed that this Court should decline jurisdiction to entertain the action. The claimants reacted in their written address by first making certain introductory/preliminary observations. To the claimants, curiously, the defendant responded to their originating summons by two mutually exclusive processes, viz: i) a counter-affidavit controverting the claimants’ case on its factual merits, and ii) a notice of preliminary objection seeking an in limine determination, purportedly, on points of law. To the claimants, the defendant cannot simultaneously pursue two contradictory results. He must elect and pursue only one of those results, citing Elegushi v. Ajayi [1979] 3 LRN 131 at 134. The claimants continued that the defendant’s counter-affidavit stands alone even if it is competent. That worse still, there is no written address filed in support and amplification of the defendant’s counter-affidavit as required by Order 9 Rule 3 of the NIC Rules 2007 (‘the Rules’), which is as follows – Where a party served with an Originating Summons and other accompanying documents as stipulated in Order 3 Rule 5A of the Rules intends to contest the Originating Summons, such party shall not later than 14 days or any time prescribed, file a Counter Affidavit thereto, which shall be accompanied by: (a) Other relevant document(s), if any (b) A Written Address countering the argument advanced by the Applicant. That the only address filed by the defendant is explicitly described in its paragraph 1.2 as follows: “The Written Address is based on the Notice of Preliminary Objection”. In effect, that the defendant’s counter-affidavit is left in nubibus. It clearly offends Order 9 Rule 3 of the Rules; it is not fit for purpose and ought to be struck out. Ex abundante cautela, however, the claimants have filed a reply to the said counter-affidavit. Furthermore, the claimants raised the propriety of counsel deposing to defendants’ counter-affidavit. That the defendant’s counter-affidavit is sworn by Badejogbin David O. B. who also signed the notice of preliminary objection and written address as “Counsel to Defendant”. To the claimants, it is undesirable and, therefore, improper for counsel to attempt to give evidence by affidavit other than for the purpose of setting out merely formal facts required to support a purely formal application when there is no possibility of those facts being disputed or controverted, referring to Obadara v. The President Ibadan West District Grade B Customary Court [1964] All NLR 231 at 338 and Okoya v. Santili [1991] 7 NWLR (Pt. 206) 753 at 768 A – B where Tobi, JCA (as he then was) declared as follows – I have said it a couple of times that counsel is basically counsel of law and not counsel of facts. The facts of the case are not his. They belong exclusively to his client. The client is the owner of the facts and he is the only person who can make use of them. He can call witnesses to assist him in giving the facts to the court by way of evidence. The claimants then urged the Court to rule that the defendant’s counsel’s counter-affidavit is improper and, in consequence, to deprecate and discountenance it. The claimants went on to raise as an issue the competence of the notice of preliminary objection and the written address on the ground that they were prepared, signed and filed by lawyer who is also the defendant’s servant in salaried employment. The claimants referred the Court to Rule 8(1) and (2) of the Rules of Professional Conduct for Legal Practitioners 2007, which provide as follows – (1) A lawyer, whilst a servant or in a salaried employment of any kind shall not appear as advocate in a court or judicial tribunal for his employer except where the lawyer is employed as a legal officer in a Government department. (2) A lawyer, whilst a servant or in a salaried employment shall not prepare, sign, or frank pleadings, applications, instruments, agreements, contracts, deeds, letters, memoranda, reports, legal opinion or similar instruments or processes or file any such document for his employer. To the claimants, whilst a lawyer who is a servant or in salaried employment may appear as advocate in court for his employer only where he is employed as a legal officer in a Government department, Rule 8(1), there is a total prohibition against the preparation, signing, franking or filing of pleadings and applications etc. by such lawyers. In the circumstances, that the notice of preliminary objection and written address prepared and signed as they are by D.O.B. Badejogbin Esq., who has described himself as “Officer-in-charge Legal” and “an Officer with the office of the defendant and the schedule officer to the subject matter of litigation on behalf of the defendant...”, are wholly contrary to the provisions of Rule 8(2). In consequence, that both processes are, ipso facto, incompetent and ought to be struck out. The claimants next raised the issue whether the defendant’s counter-affidavit, in containing extraneous matter by way of legal argument and conclusion, is permissible. The claimants referred to section 115(2) of the Evidence Act 2011, which provides as follows that “an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. That clearly section 115(2) of the Evidence Act restricts the contents of affidavits to facts and excludes all extraneous matter by way of objection, prayer, legal argument or conclusion, citing Bamaiyi v. State [2001] 8 NWLR (Pt. 715) 270 at 289 and AG, Adamawa State v. A. G Federation [2005] 18 NWLR (Pt. 958) 657. The claimants then called on the Court to examine critically the contents of paragraphs 5, 7, 9, 10 and 14 of the defendant’s counter-affidavit and to find that, upon the test prescribed in Bamaiyi and Adamawa, those paragraphs contain matters which only counsel may urge upon the Court, being legal conclusions and are not evidence which a witness is competent to place before the Court. Also raised by the claimants is the fact that the defendants did not enter formal appearance; in which case, whether hearing and judgment ought not to proceed upon failure of preliminary objection. Here the claimants referred to Order 8 Rules 1(1) and 5(1) of the Rules, which respectively provide as follows – 1(1) Every person served with an originating process shall, within the days stipulated therein or if no day is stipulated within 14 days of the service of the originating process, file a Memorandum of Appearance in the Registry of the Court. 5(1) Where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment. That the defendant failed to file a memorandum of appearance as prescribed by the Rules and so the Court will be urged to hear the claim on its merits and to enter judgment accordingly. The claimants proceeded to consider the merit of the defendant’s preliminary objection in terms of the grounds upon which the preliminary objection is brought. On the question whether the action is statute-barred, the claimants submitted that the defendant’s contention is grossly misconceived. To the claimants, clearly, the limitation afforded by section 6(1) of the Nigerian Customs Service Board Act is in respect of actions concerning “any act, neglect, or default” of “any officer, servant or agent” of the defendant in that capacity with regard to the staff regulations/conditions of service made by the defendant. Accordingly, the date of accrual of the cause of action in respect of such “act, neglect, or default” must be the date of such act, neglect, or default. That the relevant date cannot be the date of the regulations/conditions of service. In the instant case, the “act, neglect or default” are expressed vide the defendant’s letters of 18th October 2013 (¬Exhibit GOM16) and 12th November 2013 (Exhibit GOM17). Those letters are the defendant’s refusal to discharge its obligations to the claimants under the Regulations/Conditions of Service (Exhibits GOM1 and GOM9). That refusal is the relevant “act, neglect or default” from which the cause of action accrued. Regarding the defendant’s argument that the action is statute-barred on the basis of section 2(a) of the Public Officers Protection Act, the claimants contended that as in its contentions under section 6(1) of the Nigeria Customs Service Board Act, the defendant’s argument here betrays an obvious misapprehension of the point in time at which the cause of action accrued. Clearly, that the Conditions of Service are not in themselves the subject of the claimants’ complaint. Therefore, the cause of action could not have accrued on 10th December 2002, the date on which the first of the relevant Conditions of Service (Exhibit GOM1) were made by the defendant. Equally clearly, that the cause of action arose upon the defendant’s categorical and final refusal to implement the conditions of service in respect of the claimants. That refusal was so expressed by Exhibits GOM16 dated 18th October 2013 and GOM17 dated 12th November 2013 received by the claimants through their solicitors on 21st October and 20th November 2013 respectively, referring to paragraph 4 of the claimants’ reply to the defendant’s counter-affidavit. That the claimants filed the instant action on 17th December 2013, barely two months after accrual of the cause of action on 21st October 2013, the date of delivery of Exhibit GOM16 to the claimants’ solicitors – well within the three month period of limitation provided by section 2(a) of the Public Officers Protection Act. The claimants continued that the point made above is further reinforced by the very words of section 2(a) of the Public Officers Protection Act, which creates the limitation under which the defendant unsuccessfully seeks refuge. That upon the correct construction of section 2(a), the accrual of the cause of action and therefore the commencement of the limitation period is reckoned not from the date of the “Act, Law, duty or authority” which creates the obligation which a defendant must discharge for a claimant’s benefit but from the date of the “act, neglect or default complained of”. It is, therefore, the “act, neglect or default” which gives rise to the complaint or, in other words, the cause of action. In passing, the claimants observed that section 2(a) of the Public Officers Protection Act is incorrectly quoted in paragraph 4.9 of the defendant’s written address. Further and in the alternative to the foregoing submissions on the correct interpretation of section 2(a) of the Public Officers Protection Act, the claimants invited the Court to observe that the monetised values of the enhanced retirement benefits which were approved by the Conditions of Service, (Exhibits GOM1 and GOM9) are paid quarterly by the defendant, referring to paragraph 5 of the claimants’ reply to defendant’s counter-affidavit. In effect, the said retirement benefits are of a recurrent nature. They fall due for payment every three months. The claimants then submitted that the cause of action (i.e. the resultant damage or injury) arises afresh every quarter when the defendant neglects to pay to the claimants the monetised values of their enhanced retirement benefits as provided in Exhibits GOM1 and GOM9. In effect, the claimants’ case comes within the “continuance of damage or injury” exception of section 2(a) of the Public Officers Protection Act. That the damage or injury occasioned by the defendant’s neglect and default continues and has not ceased, referring to Ijale v. A.G Leventis [1961] All NLR 792 at 794 and 801. That the 3rd headnote in the report of that case states thus – Where under the terms of a contract payments become due from time to time, a cause of action in respect of each such payment arises on its due date.... Also, that at page 801 of the report, de Lestang, CJ expressed the following judicial opinion – The defendants on the other hand contend that the various causes of action arose from time to time as and when the payments were due. In my view the defendants’ contention is the correct one. The claimants went on to submit that the cause of action in this case arises afresh upon payment by the defendant to the claimants of their retirement benefits less the enhanced benefits approved under Exhibits GOM1 and GOM9. In effect there is in reality no date from which the three-month limitation period can be reckoned. That it is trite that part-payment is such acknowledgment as would revive a cause of action for the balance outstanding. There is, in effect, a fresh accrual of the cause of action upon each part payment. To the claimants, the submissions made above received judicial approval in CBN v. Amao & 2 ors [2010] 5 – 7 SC (Pt. 1) 1 at 25 and 26 wherein the Supreme Court per Onnoghen, JSC held as follows – Both parties have not disputed the fact that the issue concerns the monthly payment due to the Respondents. The Appellant pays monthly pensions to the Respondents less than what is provided in the White Paper and the two circulars every month thereby leaving part of their entitled monthly pension unpaid. This clearly demonstrates the fact that the cause of action in the circumstance arises every month when Appellant pays less pension to the Respondents than their full harmonized pensions, which the Appellant had agreed to pay. It is therefore very clear that there is continuance of injury, the cessation of which cannot be determined as long as the Respondents live and are paid their monthly pensions other than as harmonised. There is therefore no way by which one can calculate the “three months next after the ceasing thereof….” It follows therefore that each month that the Respondents are paid pensions less than the harmonised pensions, a cause of action arises in respect of the balance or sum outstanding. I therefore agree with the lower courts that the provision of Section 2(a) of the Public Officers Protection Act does not apply to the facts of this case and consequently resolved the issue against the Appellant. In effect, that contrary to the assertion made by the defendant, the claimant’s right to redress has not been extinguished. In any event, that the most cogent point against the defendant’s reliance on the Public Officers Protection Act is the obvious fact that the defendant is not a public officer and, in consequence, cannot enjoy any protection under that statute. In vain, that the defendant has attempted to place itself under the protection of the legislation by the description of the defendant that the defendant is a Federal Public Officer/Office. To the claimants, obviously, the defendant cannot be both an officer and an office. That the protection afforded by the Public Officers Protection Act applies only to natural persons who hold public offices. It does not apply to institutions or offices, referring to Tafida v. Abubakar [1992] 3 NWLR (Pt. 230) 511; Momoh v. Okewale [1977] 6 SC 81; Judicial Service Commission, Bendel State v. Atake [1982] 8 – 10 CA; Utih v. Egorr [1990] 5 NWLR (Pt. 153) 771; Alapiki v. Gov. Rivers State [1991] 8 NWLR (Pt. 211) 575 at 598 – 9. The fourth ground of the defendant’s preliminary objection is a complaint that the several letters on which the claimants rely in paragraphs 5, 6 and 7 of their affidavit in support were written by the Association of Retired Senior Officers of Nigeria Customs Service (ARSONCS) which “is not joined as a party herein”. It is further contended by the defendant that the said letters were not written to the instant defendant, referring to paragraph 13 of the defendant’s counter-affidavit. To the claimants, this defendant’s contention is misconceived. That it is clear, firstly, from the title of the instant action that the claimants are those “Retired Senior Officers of Nigeria Customs Service who retired before 10th December 2002”. Paragraph 2 of the affidavit in support further explains that the claimants sue for themselves and as: “...representatives and with the authority of all retired officers of the Nigeria Customs Service who retired before 10th December 2002 with ranks ranging from Assistant Superintendent of Customs to Comptroller General of Customs”. Secondly, paragraph 15 of the claimant’s reply to the defendant’s counter-affidavit further clarifies the position thus: “The allegations made in paragraph 13 of the counter-affidavit are false. We, the claimants constitute a class of all members of a larger group known as the Association of Retired Senior Officers of Nigeria Customs Service (ARSONCS). We are those members retired prior to 10th December 2002”. To the claimants, it is clearly evident from the foregoing that ARSONCS includes persons who retired both prior to, on and subsequent to 10th December 2002. The claimants are those members of ARSCONCS who retired prior to 10th December 2002. There can be no justification, factual or legal, for the joinder of ARSCONCS i.e. even those persons who do not have a common grievance, cannot pursue a common remedy and, therefore, do not seek to benefit, with the claimants, in the result of this suit. That the claimants are in a class of their own to which, as the title of this action makes clear, only those members of ARSCONCS who retired prior to 10th December 2002, belong. In respect of the defendant’s other contention that the letters referred to in paragraphs 5, 6 and 7 of the claimants’ affidavit in support were not written to the defendant, that it is clear ex facie those letters that they were addressed to the Comptroller-General, Nigerian Customs Service who is, by virtue of section 2(1)(b) of the Nigerian Customs Service Board Act, the Deputy Chairman of the defendant. In addition, all the said letters were re-sent to the defendant as annexures and by reference through its statutory Chairman, the Minister of Finance, referring to Exhibits GOM11, GOM13 and GOM15. On the issue of the names and particulars of the persons represented by the claimants not disclosed, the claimants contended that this ground is inherently flawed. That in a representative action the real claimants are the entire class of persons represented. The claimants are not limited in number to those whose names are disclosed on the Court’s record, referring to Ladejobi v. Oguntayo [2004] 18 NWLR (Pt. 904) 149 at 169 – 170, Daniyan v. Iyagin [2002] 7 NWLR (Pt. 766) 346 at 375 and Salisu v. Odumade [2010] 6 NWLR (Pt. 1190) 228 at 252. Furthermore, that the only requirement prescribed by the National Industrial Court Rules 2007 for endorsement of claims brought or defended in a representative capacity is contained in Order 4 Rule 2 viz: “where a claimant sues, or a defendant or any of several defendants is sued in a representative capacity, the originating process shall state that capacity”. To the claimants, the procedural objective sought to be achieved by the device of representative actions is the avoidance of the unwieldy disclosure of names of each member of a class comprising numerous persons. That there has never been, and there is not now, any requirement for disclosure of such names. Such disclosure would frustrate the efficacy of a representative action and defeat its purpose. The claimants went on that it is trite that the rule permitting representative actions is a rule of convenience and as such ought not to be treated with any rigidity but as a flexible tool of convenience in the administration of justice, referring to Anatogu v. AG, East Central State [1976] 11 SC 109. That it is sufficient that a common interest and a common grievance is disclosed in the originating process and that, in addition, the reliefs sought are, in their nature beneficial to all whom the named claimants represent, citing Ogamioba v. Oghere [1961] All NLR (the page is not supplied) where Taylor, FJ (as he then was) declared that the foregoing is “...the fundamental principle underlying suits brought in a representative capacity”. Also referred to the Court is Nsima v. Nnaji [1961] All NLR 441 at 443. On the issue of pre-action notice, the defendant had contended that, contrary to section 6(2) of the Nigerian Customs Service Board Act, the claimants did not serve notice of their intention to commence these proceedings. Here, the claimants drew the Court’s attention to the claimants’ Exhibits GOM10, GOM11, GOM12, GOM13, GOM14 and GOM15. That between the first of those pre-action notices, Exhibit GOM10 dated 08.07.2013, and the commencement of proceedings on 17.12.2013 a period of over five months had elapsed, thus fulfilling the one month requirement of section 6(2) of the NCSB Act more than five times over. It is further pertinent to note that substantial compliance with the requirement of section 6(2) of the Act is sufficient. Accordingly, that the Supreme Court held in Amadi v. NNPC [2000] FWLR (Pt. 9) 1527 SC that a solicitor’s letter to the defendant which is not strictly in the prescribed form qualifies as a pre-¬action notice, notwithstanding that the law requires it to state the particulars of the claim, cause of action, name and address of the intending claimant etc. That those requirements, the Supreme Court held, are merely directory. The claimants continued by asking whether the defendant’s issue 2 on retrospectivity of the Conditions of Service of the Nigeria Customs Service No. 15 of 2003 (effective from 10th December 2002) and those of No. 25 of 2011 (effective from 28th March 2011) is competent and so arguable. To the claimants, this issue is incompetent and unarguable for the following reasons: a) The issue does not arise from any of the grounds specified on the face of the defendant’s notice of preliminary objection. That it is settled that issues must be a distillate of grounds specified, referring to Wanka v. CBN Ltd [1991] 9 NWLR (Pt. 213) 112, Sadiq v. Bundi [1991] 8 NWLR (Pt. 210) 443, African Petroleum Ltd v. Owodunni [1991] 5 NWLR (Pt. 192) 438, Okoye v. NC & F Co. Ltd [1991] 501 and Imo v. State [1991] 9 NWLR (Pt. 213) 1. b) The defendant’s issue 2 cannot be raised preliminarily being an issue which, if resolved in favour of the defendant, would impinge upon the merits of the substantive claim. In the alternative to the foregoing, that the relevant issue is as formulated by the claimants, namely – Whether upon a correct interpretation of the Conditions of Service of Nigeria Customs Service published in the Federal Republic of Nigeria Official Gazette No. 15 of 7th March 2003 (Exhibit GOM1) and No. 25 of 29th March 2011 (Exhibit GOM9), (“the Regulations”), the words: “The NCSB approved these regulations w.e.f. 10th December 2002” and “The NCSB approved these regulations w.e.f. 28th March, 2011” which appear in section 1(b) thereof limit the application of the Regulations to officers of the Nigeria Customs Service who retired with effect from 10th December 2002. That the issue has been exhaustively argued in the paragraphs 4.1 – 4.9 of the claimants’ first written address and therein resolved in the negative to the effect that the application of the said Regulations is not limited to officers of the Nigeria Customs Service who retired with effect from (i.e. on and subsequent to) 10th December 2002 and 28th March 2011 but is inclusive of the claimants who retired with the specified qualifying ranks prior to the first of those dates i.e. 10th December 2002. According to the claimant, an illuminating illustration of the fallacy inherent in the defendant’s contention that the Conditions of Service do not “have retrospective or retroactive effect” is as follows. If, for example, PHCN were to introduce an increased electricity tariff with effect from a particular date, it would be completely absurd to contend that such a tariff would apply only to persons who become customers of PHCN from that date but that older customers would continue to pay bills calculated on the old tariff. The defendant has further contended in that the regulations (Exhibits GOM1 and GOM9) are “applicable ONLY to officers and men who are still in active service of the Nigeria Customs Service and therefore not relevant to the claimants”. To the claimants, apart from the fact that the defendant’s contentions are not accommodated by its notice of preliminary objection and any of the several grounds specified in support thereof, those contentions are patently misconceived. That page 55 (paragraph A) of Exhibit GOM1 and pages 5 – 7 (paragraphs A – E) of Exhibit GOM9 clearly indicate under the sub-title, “ON RETIREMENT”, a long list of retirement benefits for each qualifying rank of customs officer. In concluding arguments regarding the defendant’s first preliminary objection, the claimants urged the Court to strike out the defendant’s purported counter-affidavit and dismiss the preliminary objection. The claimants then proceeded to the second preliminary objection of the defendants. Once again, the claimant started off with an introduction and preliminary observations. First, because the preliminary objection is the second filed by the defendant in this suit, the claimants submitted that it is clearly an abuse of the process of this Court and ipso facto incompetent and ought to be struck out (or dismissed) because: 1) A party is not permitted to maintain two processes between the same parties, in the same proceedings and toward the same result, referring to Okorodudu v. Okoromadu [1977] 3 SC 21 at 31 and 32, Ugese v. Siki [2007] 8 NWLR (Pt. 1057) 452 and Saraki v. Kotoye [1992] 11/12 SCNJ (the page is not supplied). That abuse of process such as has occurred in this suit consists in the intention, purpose and aim of the person filing a process to harass, irritate and annoy his adversary and interfere with the administration of justice, referring to NV Scheep v. MV Araz [2000] 15 NWLR (Pt. 691) 622, UBA Plc. v. Mode Nig. Plc [2000] 12 NWLR (Pt. 680) 16 and Royal Bank of Scotland v. Citrusdal Investments Ltd [1971] 3 All ER 558. 2) The notice of preliminary objection and the written address in support thereof are both prepared, signed and filed by D. O. B. Badejogbin Esq., who has described himself as: “...an Officer with the office of the defendant and the schedule officer to the subject matter of litigation on behalf of the defendant ...”, referring to paragraph 1 of the counter-affidavit of BADEJOGBIN DAVID O. B attached to Exhibit X. In effect, that the notice of preliminary objection and written address are signed and filed by a person who is a servant in salaried employment of the defendant contrary to Rule 8(2) of the Rules of Professional Conduct for Legal Practitioners 2007. In consequence, that both the notice of preliminary objection and the written address are incompetent and ought to be struck out or dismissed. To the claimants, the Courts are often faced with a dilemma as to which of the two orders i.e. striking out or dismissal of the offending process is the more appropriate in the event of an established abuse of process. That in Unifarm Industries Limited v. Oceanic Bank International (Nig.) Limited [2005] 3 NWLR (Pt. 911) 83, the Court of Appeal was faced with such a dilemma; and relying on a long line of decisions, the Court held that the current legal position is in favour of dismissal instead of striking out. The claimants then so urged. As to the failure of the defendant to enter formal appearance in terms of filing a memorandum of appearance, the claimants reiterated the arguments it earlier made in their written address of 17th March 2014 and then referred the Court to Order 8 Rules 1(1) and 5(1) of the National Industrial Court Rules 2007. The claimants then urged that they will urge the Court to hear their claim on its merits and to enter judgment accordingly. Finally, under observations, the claimants submitted that paragraph 4 of the defendant’s affidavit is not permissible having regard to the provisions of section 115(1) of the Evidence Act 2011 which runs thus: “Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true”. That paragraph 4 of the defendant’s affidavit, which states: “That I adopt the defendant’s counter-affidavit dated and filed 13th January 2014 as if same are my depositions”, violates section 115(1) of the Evidence Act and ought to be discountenanced or struck out. The claimants then proceeded to the merits of the defendant’s second preliminary objection insisting in the process that they are not thereby waiving their right to object to the said abuse of process. On whether or not the interpretative jurisdiction of this Court has been properly invoked, the claimants submitted that the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 (the Third Alteration Act) established this Court under the 1999 Constitution. That the framers of section 254C were intent upon effectively covering the field in all matters concerning employment. They thus created a virtually “super employment Court”, exhausting in the thirteen explicitly worded paragraphs of sub-section (1)(a) – (m), and further in sub-sections (2), (3), (4) and (5), all conceivable specific “civil causes or matters” and “other matters incidental thereto or connected therewith” concerning employment. To the claimants, and for present purposes, section 254C(1)(a) and (k) of the 1999 Constitution, as amended, are the relevant sub-sections, which respectively vests jurisdiction on this Court regarding civil causes and matter relation to “conditions of service” and the “payment or non-payment of...pensions, gratuities, allowances, benefits and any other entitlement of any employee”. The claimants continued that having regard to the omnibus ambit of the constitutional provisions referred to above, it is indisputable that the instant claim seeking an interpretation of the “Nigeria Customs Service Condition of Service” falls clearly within the plenary jurisdiction vested in this Court by section 254C(1) particularly sub-section (1)(a) and (k). That in Coca-Cola Nigeria Limited & ors v. Mrs. Titilayo Akisanya [2013] 18 NWLR (Pt. 1386) 255; [2013] 1 ACELR 28; [2013] 36 NLLR (Pt. 109) 338 CA, the Court of Appeal observed thus regarding the National Industrial Court – The civil jurisdiction of the lower court is extensive and diverse as it can be seen from section 254C(a) – (m) of the amended Constitution to the extent that its name “National Industrial Court” would clearly appear not to properly describe the “multi-nature court” superior court of record the amended Constitution has now made the lower court. Also referred to the Court is SCC (Nig.) Ltd v. Sedi [2013] 1 NWLR (Pt. 1335) 230. To the claimants, undoubtedly, this Court is competent to construe and interpret, for the purpose of applying, the Conditions of Service (approved by the defendant pursuant to section 9 of the Nigerian Customs Service Board Act) and over which section 254C(1)(a) and (k) of the Constitution has explicitly vested jurisdiction. The claimants went on and referred the Court to Order 3 Rule 5A of the National Industrial Court Rules 2007 (which is indicated in the heading of the claimants’ originating summons), which provides the procedural vehicle for the discharge of the Court’s interpretative jurisdiction. It is the further submission of the claimants that the words “written instrument” used in Order 3 Rule 5A clearly comprehend the Conditions of Service, which are the subject matter of this suit. That the Court’s jurisdiction to construe such “written instrument” for: “…the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested” under Order 3 Rule 5A, is thus placed beyond doubt. The claimants continued that the defendant had contended that – 1. The interpretative jurisdiction of this Court is regulated by sections 15 and 20 of the Trade Disputes Act. 2. The interpretative jurisdiction of this Court cannot be invoked in the absence of – (a) A collective agreement. (b) The claimants’ participation in such collective agreement. 3. There is “no nexus between the claimants and the Conditions of service” in question in this suit. To the claimants, the defendant’s contentions flow from a complete misapprehension of the relevant law, the correct position of which are as follows – a) Section 15 of the Trade Disputes Act provides for the interpretation of awards of an arbitration tribunal or the National Industrial Court. That provision is obviously irrelevant to the instant claim. b) Section 20 of the Trade Disputes Act was repealed by section 53(1) of the National Industrial Court Act. The defendant’s reliance on that repealed provision is entirely misconceived. c) As evident from the analysis so far made, the jurisdiction vested by the Constitution in the National Industrial Court cannot be constrained as contended by the defendant. It cannot be over-emphasized that the clear terms of section 254C(1)(a) and (k) of the Constitution accommodate the instant claim. Order 3 Rule 5A of the National Industrial Court Rules, 2007 is complementary of the Court’s interpretative jurisdiction as that provision of the Rules affords the procedural vehicle for the exercise of the Court’s jurisdiction to construe “written instruments”, which description clearly covers the Conditions of Service in question. d) Curiously, the defendant has contended that there is no nexus between the claimants and the Conditions of Service in question. That contention is clearly wrong. As pointed out in paragraph 4.7 pages 9 – 10 of the claimants’ written address in support of their originating summons, the claimants are qualified for enjoyment of the benefits enumerated on page 55 and pages 5 – 7 of the two instruments embodying the Conditions of Service (Exhibits GOM1 and GOM9) respectively by virtue of their attainment, on retirement, of the ranks specified therein. Paragraph 2 of the claimants’ affidavit in support of their originating summons identifies the claimants as – ...retired officers of the Nigeria Customs Service who retired before 10th December 2002 with ranks ranging from Assistant Superintendent of Customs to Comptroller General of Customs. That in the light of the foregoing, the claimants have demonstrated a firm nexus between them and the said Conditions of Service. That the cases of Benjamin Itodo v. Chevron Texaco Nigeria (Suit No. NIC/S/2003) Digest of Judgments of National Industrial Court (1978 – 2006) page 499 and John Ovoh v. Nigeria Dredging & Marine Ltd both of which were cited by the defendant are inapplicable. Indeed, that Itodo v. Chevron (supra) was decided on 26th November 2004 in respect of section 20 of the Trade Disputes Act. That section, amongst others, was repealed with effect from 4th June 2006 by section 53(1) of the National Industrial Court Act. That case also concerned a collective agreement. In effect, upon the facts and the currently extant law, Itodo v. Chevron (supra) is completely inapplicable to the instant case. In the circumstances, the claimants urged the Court to resolve the defendant’s issue 1 in the claimants’ favour and, in consequence, to assume jurisdiction in this suit. On whether the claimants disclosed a cause or reasonable cause of action as to activate the jurisdiction of this Court, the defendant had contended that – (a) The claimants have “anchored (their) relief on speculation which could not avail them”. (b) The Conditions of Service in question “cannot apply to the claimants who...were no longer employees of the defendant at effective date of the conditions of service”. (c) The claimants were fully paid their benefits upon their retirement. In answer, the claimants contended that firstly, the defendant’s contention under sub-paragraph (a) above is unintelligible. Secondly, that the defendant’s contention under sub-paragraph (b) above is misconceived. That page 55 (paragraph A) of Exhibit GOM1 (the first Conditions of Service) and pages 5 – 7 (paragraphs A – E) of Exhibit GOM9 (the second Conditions of Service) clearly indicate under the sub¬title “ON RETIREMENT”, a long list of retirement benefits for each qualifying rank of retired customs officer. Also referred is paragraph 12 of the claimants’ reply affidavit dated 17th March 2014. Thirdly, that the defendant’s contention under sub-paragraph (c) above is wholly untenable in the face of Exhibits GOMS and GOM16 by which the defendant has refused to pay to the claimants the retirement benefits due to them under the Conditions of Service (Exhibits GOM1 and GOM9) now claimed in this suit. Also referred is paragraph 10 of the claimant’s reply affidavit dated 17th March 2014 and paragraph 5 of the claimants’ counter-affidavit accompanying the claimant’s written address of 20th March 2014. That the case of West African Distillers Ltd v. Food, Beverage and Tobacco Senior Staff Association reported in the Digest of Judgments of the National Industrial Court (1978 – 2006) page 16 relied on by the defendant is inapplicable. In the circumstances, the claimant urged the Court to resolve the defendant’s issue 2 in favour of the claimants and to hold that the claimants have disclosed a reasonable cause of action. The claimants then concluded by urging the Court to dismiss the defendant’s preliminary objection. The defendant reacted by filing a reply on points of law dated and filed on 26th March 2014. To the defendant, the preliminary observations of learned counsel to the claimants are not only misconceived but they remain just what they are – observations; and so they should be discountenanced and discarded. On the issue whether the counsel to the defendant who is in salaried employment and so cannot appear in court, the counsel to the defendant contended that the provisions of the Legal Officers Act Cap. L8 LFN 2004 created the offices of Law officers in sections 2 and 3. The counsel to the defendant went on that there is no known law that bars a counsel from deposing to an affidavit. That the case of Obadara v. The President Ibadan West District Grade B Customary Court cited by the claimants support that a counsel can depose to an affidavit where it is for the purpose of setting out merely formal facts required to support an application where there is no possibility of those fat s being in dispute. That the claimants did not identify the areas of dispute to support their observations; and so it is too late in the day. On the argument that the defendant cannot file a further notice of preliminary objection while maintaining an earlier one, the defendant contended that it is grossly misconceived and misunderstood. Firstly, that the deponents in the two processes are not the same. Secondly, the 2nd preliminary objection is supplementary to the 1st as the issues of law raised are not the same. Thirdly, the two objections seek the same reliefs and prayers and not contradictory. Fourthly, the issues at stake are of law, which the Court is enjoined even to raise suo moto. The defendant then submitted that its written address dated 13th January 2014 was filed to address both the counter-affidavit of 13th January 2014 and preliminary objection of 13th January 2014. That this was reinforced by the fact that it was bound together. Counsel to the defendant accepted that there was a typographical error; and then applied that paragraph 1.2 of the defendant’s written address be read – The Written Address is based on the Notice of Preliminary Objection and the Counter affidavit both dated 13th January, 2014. Furthermore, that paragraph 5 of the defendant’s notice of preliminary objection dated 13th January 2014 states: “TAKE FURTHER NOTICE THAT THE DEFENDANT, IN THE HEARING OF THE PRLIMINARY OBJECTION SHALL RELY ON THE COUNETR AFFIDAVIT AND ALL PROCESSES SO FAR FILED IN THIS ACTION”. To the defendant, by virtue of Order 8 Rule 5(1), it filed appropriate processes in defence of the action within the prescribed time. The processes are counter-affidavit/notice of preliminary objection/written address dated 13th January 2014 and notice of preliminary objection/affidavit in support/written address dated 4th February 2014. The defendant then submitted that the depositions in the counter-affidavit dated 13th January 2014 and 4th February 2014 are valid and do not offend the provisions of the Evidence Act. I heard learned counsel and considered all the processes filed in this matter. In considering the merits of the preliminary objection, I need to clarify a thing or two. First, the defendant had in paragraph 4.1 of its argument as to the second preliminary objection asserted that the interpretation jurisdiction of this Court is regulated by sections 15 and 20 of the Trade Disputes Act (TDA). In referring to section 20 of the TDA, and as rightly pointed out by the claimants, it does seem that the defendant is not aware that section 20 of the TDA has since 2006 been repealed by section 53(1) of the National Industrial Court (NIC) Act of that year. And in referring to section 47 of the TDA as that which defines a collective agreement, the defendant did not seem to factor in the consolidation exercise of the Laws of the Federation that gave rise to the LFN 2004 where section 47 of the old TDA LFN 1990 now became section 48 of the TDA LFN 2004. Secondly, contrary to Order 20 Rule 2 of the National Industrial Court (NIC) Rules 2007, which enjoins that a “written address shall be…set out in paragraphs numbered serially”, the claimants have two paragraphs 2.9.10 at page 14 (and no paragraph 2.9.11) of its written address of 17th March 2014. Thirdly, I need to state that issue 2 of the first preliminary objection as framed and argued by the defendant (i.e. whether or not the Conditions of Service of the Nigerian Customs Service No. 15 of 2003 effective from 10th December 2002 and those of No. 25 of 2011 effective from 28th March 2011 are to have retrospective or retroactive effect) goes more to the defence of the action than as a matter of a preliminary objection. In making its submission on issue 2, the defendant naturally dovetailed into the merit of the originating summons, arguing in the process the applicability or otherwise of the Conditions of Service of 2003 and 2011. In like manner, the claimants in reacting to the defendant’s issue 2 essentially replied in terms that argued the merit of their case; insomuch so that they gave the not so apt and hence inappropriate illustration (as a comparison) of the introduction of an increased electricity tariff by the Power Holding Company of Nigeria (PHCN) – with the recent unbundling of the PHCN, it is not clear if it even still retains its identity as PHCN – with effect from a particular date, it being absurd to contend that such increased tariff would apply only to persons who become customers of PHCN from that date and not to older customers who would continue to pay bills calculated on the old tariff. Employee rights in terms of pre-employment rights, rights while in employment and post-employment rights are not comparable to the mere contractual rights of an electricity customer in the mould or kind of the claimants’ present illustration. Like I pointed out, however, all of this goes to the merit of the case; and accordingly I shall not treat issue 2 as framed and argued by the defendant, and essentially replied to by the claimants, for purposes of this ruling. Lastly, the defendant had in paragraph 1.6 of its reply on points of law of 26th March 2014 applied to amend a paragraph of its earlier written address. This procedure is absurd and seeks to overreach the claimants, who incidentally had reacted based on the earlier written address of the defendant. To make an amendment now (not by way of a separate motion but in a reply on points of law) when the claimants cannot react (as they no longer have a right of reaction) is to say the least not only inappropriate but is an act seeking to overreach the claimants. The defendant’s application to amend accordingly fails and is hereby denied and hence dismissed. The claimants had filed this action by way of an originating summons wherein they raised two questions for the determination of the Court and then prayed for five reliefs. In reacting to the originating summons, the defendant did not enter formal appearance but instead filed two preliminary objections on grounds challenging the competence of the suit and the jurisdiction of the Court to hear and determine the case. For not filing a formal memorandum of appearance, the claimants prayed the Court to proceed to hearing and enter judgment if the preliminary objection fails, relying on Order 8 Rules 1(1) and 5(1) of the NIC Rules 2007. Having to raise this issue at this time of the proceedings is premature and would appear pre-emptive. The Court is yet to get to the point of hearing and it is presumptuous to assume that the memorandum of appearance will not then be filed when the Court proceeds to hearing or that the preliminary objections filed will fail as to then warrant entering judgment in favour of the claimants. I shall accordingly refrain from considering and making a ruling on this issue at this stage of the proceedings. The claimants went on to argue in paragraphs 1.8 – 1.10 of their written address of 17th March 2014 and paragraph 1.1 of their written address of 20th March 2014 as incompetent the preliminary objections and written addresses of the defendant given that they were all prepared and signed by counsel to the defendant, a staff of the defendant, referring the Court to Rule 8(1) and (2) of the Rules of Professional Conduct for Legal Practitioners 2007. The claimants urged the Court to strike out the preliminary objections and the written addresses. The response of the defendant here is that it is covered by sections 2 and 3 of the Legal Officers Act 2004. Section 2 headed “Creation of the offices of the law officers”, simply creates the offices of Attorney-General, Solicitor-General, and State Counsel. Section 3 headed “Law Officers to be ex-officio barristers of the Supreme Court”, then provides as follows – Every person appointed as Attorney-General or Solicitor-General of the Federation, the Director of Public Prosecutions of the Federation, Legal Draftsman of the Federation, or State Counsel, shall, so long as he continues to hold such office be deemed to be, and every person who shall have been appointed to any such office shall have been deemed to be, a barrister, advocate and solicitor of the Supreme Court of Nigeria ex-officio and shall be entitled, and shall be deemed to have been entitled, to appear as counsel in all courts in Nigeria in which counsel may appear. Now, I do not see how these provisions support the argument of the counsel to the defendant. Even though sections 2 and 3 use the term “Law Officers”, they are explicit in the officers that qualify as such, namely, Attorney-General of the Federation, Solicitor-General of the Federation, Director of Public Prosecutions of the Federation, Legal Draftsman of the Federation and State Counsel. The counsel to the defendant has not shown to this Court that he is or occupies or has been appointed to any of these Law Offices listed in section 3. The counsel to the defendant has equally not shown to this Court that legal offices in the Nigeria Customs Service Board are necessarily State Counsel as to come within the purview of section 3 of the Legal Officers Act 2004. In consequence, I do not agree with the argument of counsel to the defendant that he is contemplated within the purview of section 3 of the Legal Officers Act 2004; and I so hold. However, that is not the end of the matter. Are the claimants thereby right in their submission? This remains the question; and here I must ask: were the Rules of Professional Conduct for Legal Practitioners 2007 made to regulate the competence of actions in Court or were they made to merely deal with and regulate matters of internal professional control or discipline of members of the legal profession? The claimants did not cite any authority that suggests that the Rules of Professional Conduct work or operate as to affect the competence of cases filed in their breach. Sections 45 (dealing with representation of Government) and 46 (dealing with right to practice) of the NIC Act 2006 provide as follows – 45. In any civil cause or matter in which the Government of the Federation or any public officer in his official capacity is a party or in any civil cause or matter affecting the activities of the Government of the Federation, that Government or that officer may be represented by a law officer, State Counsel, or any legal practitioner or other person duly authorized in that behalf by or on behalf of the Attorney-General of the Federation. 46. All persons admitted as legal practitioners to practice in Nigeria shall, subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and the Legal Practitioner Act, have right to practice in the Court: Provided that a party to a dispute before the Court may represent himself or herself or be represented by the organization to which he or she belongs. Section 46 of the NIC Act 2006 grants all legal practitioners right of audience before this Court. In fact, in its proviso, a party to an action (the defendant as sued is a party to this action) may represent itself. Counsel to the defendant is a staff of the defendant, and the defendant is allowed by the proviso to section 46 to represent itself. Even when section 45 makes specific provisions in respect of Government being a party to an action, there is no total bar as long as there is due authorization by the requisite Attorney-General. This Court has not been shown that there is no such requisite authorization. It is not the duty of the Court that at each case called, where Government is a party, to ask of counsel whether he has the requisite Attorney-General’s authorization or not. The cases of Akalonu v. Omokaro [2003] 8 NWLR (Pt. 821) 190 at 209 relying on Allen v. Francis [1914] 3 KB 1065 held that when a counsel appears in Court and states that he is instructed, the Court will not inquire into his authority to appear. The case of Akalonu v.Omokaro (supra) continued, relying on Madulolum v. Nkemdilim [1962] 2 SCNLR 341; [1962] 1 All NLR 587, that the representation of parties does not affect the competence or jurisdiction of the Court. In other words, it is not the appearance of counsel or want of authority that confers on or removes jurisdiction from a Court. The case went on that appearance of counsel may have something to do with adjudication but nothing whatsoever with the competence of the Court to adjudicate and therefore with jurisdiction. In consequence, I do not share the views of the claimants that because the counsel to the defendant is also the defendant’s staff, the preliminary objections and the written addresses should be struck out simply because he prepared them. That argument of the claimants in that regard accordingly fails and so is hereby dismissed. Next, the claimants in paragraphs 1.5 – 1.7 of their written address of 17th March 2014 urged the Court to rule that the defendant’s counter-affidavit is improper as it was sworn to by counsel himself and, in consequence, that the Court should deprecate and discountenance it, citing Obadara v. The President Ibadan West District Grade B Customary Court [1964] All NLR 231 at 338 and Okoya v. Santili [1991] 7 NWLR (Pt. 206) 753 at 768. The additional cases of UBN (Nig.) Plc v. NDACE [1998] 3 NWLR (Pt. 541) 331 at 337 D – E and Horn v. Richard [1963] 2 All NLR 40 held that it is an undesirable practice for counsel representing a party to swear to an affidavit in support of an application he has filed on behalf of the party. That this practice should be avoided because it may result in the counsel stepping down in the case to being a witness where for instance there is conflict in the affidavit evidence of the parties. What I gather from these authorities is that the practice of counsel deposing to an affidavit in a case he is appearing as counsel is undesirable and improper; the cases, however, do not say such an affidavit on just that ground is null and void. For this reason, I do not agree with the submission of the claimants that the counter-affidavit should on that ground be deprecated and discountenanced by this Court. That argument accordingly fails and so is rejected. The claimants then called on the Court to examine critically the contents of paragraphs 5, 7, 9, 10 and 14 of the defendant’s counter-affidavit and to find that, upon the test prescribed in Bamaiyi and Adamawa, those paragraphs contain matters which only counsel may urge upon the Court, being legal conclusions and are not evidence which a witness is competent to place before the Court. I looked through these paragraphs of the defendant’s counter-affidavit. Paragraph 5 refers to paragraph 4 of the claimants’ affidavit in support and the submits that “the period elapsing between 10th December, 2002 to the date of filing this action on 17th December, 2013 is 11 years”. Paragraph 7 repeats the conclusion of the claimants coming to Court 11 years after the revision of retirement benefits. Paragraph 9 deposes that the approved Conditions of Service of 2003 and 2011 do not have retrospective effect. This is a submission/legal conclusion. Paragraph 10 deposes that the approved Conditions of Service of 2003 applies “to only serving officers and men of the Nigeria Customs Service which exclude the claimants as Retirees by virtue of section 1.2”. This again is legal argument and conclusion. And paragraph 14 deposes “that the action of the claimant is mischievous, lacks merit and an abuse of the process of court and should be dismissed with cost”. This again is a legal submission. I am satisfied, therefore, that paragraphs 5, 7, 9, 10 and 14 of the defendant’s counter-affidavit are offensive to section 115(2) of the Evidence Act 2011. For this reason, the offending paragraphs 5, 7, 9, 10 and 14 of the defendant’s counter-affidavit are hereby struck out in accordance with the test laid down in AG, Adamawa State & ors v. AG, Federation & ors [2005] 18 NWLR (Pt. 958) 581 at 625 and 657 – 658 to the effect that where depositions in an affidavit offend the basic law, the offending paragraphs of such an affidavit must be struck out. The claimants, in reacting to the second preliminary objection of the defendants, had argued in paragraph 1.1 of their written address of 20th March 2014 that, because the preliminary objection is the second filed by the defendant in this suit, it must be an abuse of court process and so is incompetent and ought to be struck out or dismissed. In the case of Ibrahim v. JSC, Kaduna State & ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 two preliminary objections were raised in the case and treated as such by the Court without as much as an objection raised against them. The first preliminary objection was founded on sections 1(2)(b)(i) of the Public Officers (Special Provisions) Decree No. 13 of 1984, section 3(3) of the Public Officers (Special Provisions) Decree No. 16 of 1984 and section 3(3) of the Public Officers (Special Provisions) Decree No. 17 of 1984. This objection was upheld by the trial judge but upturned by the Court of Appeal and another trial before a different judge was ordered. At this second trial, another preliminary objection was raised this time under section 2(a) of the Public Officers (Protection) Law Cap. 111 Vol. 3 of the Laws of Northern Nigeria 1963. The trial Judge, Akaahs J. (as he then was) allowed the preliminary objection, which decision was upheld by both the Court of Appeal and the Supreme Court (with only Ogundare, JSC dissenting). The two preliminary objections raised in Ibrahim v. JSC, Kaduna State & ors relied on different grounds for the objection. To my mind, therefore, the argument of the claimants in the instant case that a party is not allowed to maintain two processes between the same parties in the same proceedings and toward the same result is valid only to the extent that the issues raised in the two processes are one and the same. For the present case, therefore, the issues that make up the two preliminary objections are separate and distinct; and so I see no reason why the second preliminary should not be entertained as such by this Court. The submission of the claimants in that regard accordingly fails and so is hereby dismissed. The defendant’s argument is that the claimants’ case is statute-barred both under section 6(1) of the Nigerian Customs Service Board Act Cap. N100 LFN 2004 and section 2 of the Public Officers Protection Act Cap. P41 LFN 2004. In addition, the defendant had also argued that the claimants did not serve any pre-action notice of their intention to commence these proceedings contrary to section 6(2) of the Nigerian Customs Service Board Act 2004, which provides that – No suit shall be commenced against the Board before the expiration of a period of one month of intention to commence the suit shall have been served on the Board by the intending plaintiff or his authorised agent and the notice shall clearly and explicitly state– (a) the cause of action; (b) the particulars of the claim; (c) the name and place of abode of the intending plaintiff; and (d) the relief which he claims. In answer, the claimants drew the Court’s attention to the claimants’ Exhibits GOM10, GOM11, GOM12, GOM13, GOM14 and GOM15. That between the first of those pre-action notices, Exhibit GOM10 dated 08.07.2013, and the commencement of proceedings on 17.12.2013 a period of over five months had elapsed, thus fulfilling the one month requirement of section 6(2) of the NCSB Act more than five times over. The claimants then prayed the Court to further note that substantial compliance with the requirement of section 6(2) of the Act is sufficient given the Supreme Court’s decision in Amadi v. NNPC [2000] FWLR (Pt. 9) 1527; [2000] 5 WRN 47, where it was held that a solicitor’s letter to the defendant which is not strictly in the prescribed form qualifies as a pre-¬action notice, notwithstanding that the law requires it to state the particulars of the claim, cause of action, name and address of the intending claimant etc. That those requirements, the Supreme Court held, are merely directory. Here I must state that the numbering of the Exhibits of the claimants as attached to their affidavit in support of the originating summons is not tidy at all. The actual letter addressed to the Comptroller-General of the Nigeria Custom Service dated 8th July 2013 and which the claimant state is Exhibit GOM10 is not marked as such. It, however, has as part of its heading, “Pre-Action Notice”. What is marked as Exhibit GOM10 is the Conditions of Service of 2011, which incidentally is attached and marked first as GOM10 and then as GOM11. There is another letter of 8th July 2013 addressed to the Honourable Minister of Finance as Chairman of the Nigerian Customs Service Board, which also has as part of its heading, “Pre-Action Notice”. Both letters stated that if after 30 days the claims of the claimants are not met by the defendant, the claimants will commence proceedings in Court for any relief as may be appropriate. I am satisfied that these letters meet the requirement of pre-action notice as enjoined by section 6(2) of the Nigerian Customs Service Board Act 2004; and I so find and hold. The case of Amadi v. NNPC had dealt with a similar pre-action notice provision i.e. section 11 of the Nigerian National Petroleum Act 1977, where the argument was that the requirements of pre-action notice have not been met and so the appellant should not be given a hearing. His Lordship Uwais, CJN took a swipe at this argument and held that – While issuance of the notice by a prospective plaintiff is mandatory, the particulars to be included in the notice, which are – cause of action, particulars of claim, name and place of abode of the intending plaintiff and the relief to be claimed – appear to me to be directory. His Lordship reasoned that the purpose of the pre-action notice is not to put hazards in the way of bringing litigation against a defendant. The pre-action notice in issue was consequently held to be valid. In the instant case, therefore, the argument of the defendant that no pre-action notice was served on it by the claimants accordingly fails and so is hereby dismissed. As I indicated earlier, the defendant’s main argument is that the claimants’ case is statute-barred both under section 6(1) of the Nigerian Customs Service Board Act 2004 and section 2(a) of the Public Officers Protection Act 2004. In quoting the provision of section 2(a) of the Public Officers Protection Act, the defendant assumed the wordings to be the same as those of section 6(1) of the Nigerian Customs Service Board Act 2004; and so I agree with the claimants that the defendant wrongly quoted section 2(a) of the Public Officers Protection Act 2004. Section 6(1) of the Nigerian Customs Service Board Act 2004 dealing with limitation of actions provides as follows – Notwithstanding anything to the contrary contained in other law, no action shall be instituted against the Board in respect of any act, neglect, or default done or omitted to be done by any officer, servant or agent of the Board in his capacity as an officer, servant or agent of the Board with regard to the regulations made pursuant to section 9(1)(b) of this Act unless it is commenced within three months next after the act or negligence complained of, or in the case of a continuing damage or injury, within three months next after the ceasing thereof. While section 2(a) of the Public Officers Protection Act 2004 dealing with limitation of time in relation to actions against public officers provides as follows – Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or 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 such Act, Law, duty or authority, the following provisions shall have effect – (a) the action, prosecution, or proceeding 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 a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison; The claimants’ first objection here, as can be seen in paragraphs 2.9.3 – 2.9.5 of their written address of 17th March 2014, was that the defendant is not a public officer within the meaning of section 2(a) of the Public Officers Protection Act 2004 and so it cannot enjoy any protection under that statute. The argument of the claimants is that the protection afforded by the Public Officers Protection Act applies only to natural persons who hold public offices; it does not apply to institutions or offices, relying on Tafida v. Abubakar [1992] 3 NWLR (Pt. 230) 511; Momoh v. Okewale [1977] 6 SC 81; Judicial Service Commission, Bendel State v. Alaka [1982] 8 – 10 CA 42; Utih v. Egorr [1990] 5 NWLR (Pt. 153) 771; Alapiki & anor v. The Governor of Rivers State [1991] 8 NWLR (Pt. 211) 575 at 598 to 599 – all decisions considered and not followed by the majority decision (Ogundare, JSC dissenting) in Ibrahim v. JSC, Kaduna State & ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20. A similar argument was raised in Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014 and this Court reviewed the authorities and held as follows – In determining the applicability of the Public Officers Protection Act as a statute of limitation, the Supreme Court had in Ibrahim v. JSC, Kaduna State & ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 held that the term public officers is not restricted to human beings who are the public officers but that it includes public offices and public institutions. Note that Sulgrave Holdings Inc v. FGN [2012] 17 NWLR (Pt. 1329) 309 at 334 in terms of the lead judgment by His Lordship Galadima, JSC held the respondents presumably including the “Federal Government of Nigeria” to be public officers and so come within the provision of section 2(a) of the Public Officers Protection Act. His Lordship Galadima, JSC would, however, subsequently in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 148 hold that the National Boundary Commission is an agency of the Federal Government but not such a public officer under the definition of the real term “public officer” as defined in Ibrahim v. JSC, Kaduna State & ors. This, however, must be understood within the context of the overall decision where the Federation or State was rejected by the Court to be ranked as “public officers” for purposes of the Public Officers Protection Act. Because the case was between a State and another State with the Federal Government as a co-defendant, the Supreme Court reasoned that in that context the State and the Federation (though represented by their respective Attorneys-General) cannot be public officers within the meaning of that term under the Public Officers Protection Act. In like manner, the National Boundary Commission as an agency of the Federal Government cannot equally qualify as a public officer. This clarification becomes necessary given that the counsel to the claimants insinuated and did submit orally that because the National Boundary Commission was denied the status of public officer by the Supreme Court in AG, Rivers State v. AG, Bayelsa State & anor, the defendants in the instant case must likewise not be regarded as public officers. I do not share this view with counsel to the claimants. AG, Rivers State v. AG, Bayelsa State & anor must be seen as merely creating an exception to the conception of public officer in terms of the Public Officers Protection Act, a limitation law; and that exception does not apply to the instant case. I must also point out, even if in passing, that the attempt by counsel in Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor to brand Ibrahim v. JSC, Kaduna State as unconstitutional in holding that the term “public officers” includes public institutions was also rejected by this Court. In the instant case, therefore, I do not agree with the claimants that the defendant is not a public officer for purposes of the Public Officers Protection Act 2004. The claimants have not shown to this Court why it should depart from the reasoning of this Court in Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor. I accordingly find and hold that the defendant in the instant case qualifies as a public officer for purposes of the Public Officers Protection Act 2004. When determining whether or not an action is statute-barred, Courts are enjoined to look at the originating process to see when the cause of action arose and then compare it with when the action in question was filed. The question, therefore, is when the cause of action in the instant action arose. The argument of the defendant is that the cause of action in the instant case is the Conditions of Service of Nigeria Customs Service No. 15 of 2003 with effect from 10th December 2002 and the Conditions of Service of Nigeria Customs Service No. 25 of 2011 with effect from 28th March 2011. The claimants argue otherwise. This means it would be necessary to determine what really the cause of action is in the instant case and then determine when it arose. In Comrade Ishola Adeshina Surajudeen v. Mr. Anthony Nted & anor unreported Suit No. NICN/LA/114/2013 the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as – …the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See also AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733. The claimants retired from service prior to 10th December 2002, the date when the Conditions of Service of Nigeria Customs Service No. 15 of 2003 became effective. By paragraph 4 of the affidavit in support of the originating summons, the defendant revised retirement benefits of Senior officers of the Nigeria Customs Service vide the Conditions of Service of Nigeria Customs Service No. 15 of 2003 after the claimants retired from service. The claimants then wrote several letters to the Comptroller-General of the Nigeria Customs Service (NCS) claiming the benefit of the revised retirement benefits but to no avail. Thereafter, a meeting was held on 12th April 2012 on the issue where Deputy Comptroller-General Maikarfi was asked to look into the claimants’ demands. DCG Maikarfi wrote to the claimants more than a year later vide a letter dated 9th May 2013 to say that the defendant will not apply the revised retirement benefits in favour of the claimants as the revised Conditions of Service has limited application to only those who retired with effect from 10th December 2002. Thereafter, the claimants served the requisite pre-action notice, and then this suit on 17th December 2013. Two issues arise here: (a) is the cause of action actually the Conditions of service as argued by the defendant? (b) Since a pre-action notice is needed to come to Court, is the fact of a pre-action notice one of the facts needed to establish or give rise to a right of action? To take issue (a), the claimants had argued that it cannot be correct to hold the Conditions of Service as being the cause of action since it is the acts founded on them that can amount to a cause of action. The claimants extended this argument even in terms of the Public Officers Protection Act. In paragraph 2.7 of their written address of 17th March 2014, for instance, the claimants had argued that upon the correct construction of section 2(a) of the Public Officers Protection Act, the accrual of the cause of action and therefore the commencement of the limitation period is reckoned not from the date of the “Act, Law, duty or authority” which creates the obligation which a defendant must discharge for a claimant’s benefit but from the date of the “act, neglect or default complained of”. It is, therefore, the “act, neglect or default” which gives rise to the complaint or, in other words, the cause of action, not the Act, Law, duty or authority itself. I agree with the submission of the claimants here. An Act or Law enacted, or a duty or authority created, say in 1900 remains just that. What is necessary for purposes of the limitation law is the act, neglect or default done pursuant to the Act, Law, duty or authority. So when the Conditions of Service of the defendant were revised first in 2003 and then in 2011, when can it be said that the acts of the claimants contingent on them arose? Ordinarily, as soon as the Conditions of Service were revised, and their implementation in favour of the claimants (as retirees) was refused, the claimants’ right to come to Court matured. In other words, the claimants’ right of action matured only when they were refused by the defendant the benefits of the revised retirement benefits. But there is issue (b), the matter of pre-action notice. The claimants could not have had a valid right of action without the pre-action notice enjoined by section 6(2) of the Nigerian Customs Service Board Act 2004. To my mind, the pre-action is accordingly one of the facts needed to establish or give rise to a right of action. The claimants’ right of action could only have matured after the pre-action notice was served. This the claimants did vide the two letters of 8th July 2013 to the Comptroller-General of the Nigeria Custom Service and the Honourable Minister of Finance as Chairman of the Nigerian Customs Service Board. Both letters stated that if after 30 days the claims of the claimants are not met by the defendant, the claimants will commence proceedings in Court for any relief as may be appropriate. From all of this, the right of action of the claimants matured 30 days after 8th July 2013 i.e. from 8th August 2013; and I so find and hold. The claimants did not file this action until 17th December 2013. Between 8th August 2013 when the claimants’ right of action (cause of action) arose and 17th December 2013 when the instant case was filed in this Court, over four months elapsed. Both section 6(1) of the Nigerian Customs Service Board Act 2004 and section 2(a) of the Public Officers Protection Act 2004 allow for only three months as the limitation period for bringing actions against the defendant. In coming over four months after serving the pre-action notice, I find and hold that the claimants are outside of the three months allowed by section 6(1) of the Nigerian Customs Service Board Act 2004 and section 2(a) of the Public Officers Protection Act 2004. This case is accordingly caught up by both statutes. The claimants, however, invited the Court to observe that the monetised values of the enhanced retirement benefits which were approved by the Conditions of Service, (Exhibits GOM1 and GOM9) are paid quarterly by the defendant, referring to paragraph 5 of the claimants’ reply to defendant’s counter-affidavit. In effect, the said retirement benefits are of a recurrent nature. They fall due for payment every three months. To the claimants, the cause of action (i.e. the resultant damage or injury) arises afresh every quarter when the defendant neglects to pay to the claimants the monetised values of their enhanced retirement benefits as provided in Exhibits GOM1 and GOM9. In effect, that the claimants’ case comes within the “continuance of damage or injury” exception of section 6(1) of the Nigerian Customs Service Board Act 2004 and section 2(a) of the Public Officers Protection Act. On the ambit of the “continuance of damage or injury” exception to the limitation of action rule, this Court in Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC, attempted a rationalization of the authorities in the following words – …the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court 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. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an 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. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State. It must be noted that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. See Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of Carrey v. Bermondsey Metropolitan Bourough Council [1903] 675 P. 447; 20 TLR 2, Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58 and Obiefuna v. Okoye [1961] All NLR 357. See also Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor (supra). The question, therefore, is: what is the actual character of the claims of the claimants? In other words, are the monetised values of the enhanced retirement benefits which were approved by the Conditions of Service actually paid quarterly by the defendant? To authenticate their assertion, the claimants referred the Court to paragraph 5 of their reply to defendant’s counter-affidavit. The said paragraph states – With reference to paragraph 7 of the counter-affidavit, the monetised values of the retirement benefits which were approved by the Conditions of Service...are paid quarterly...by the defendant to qualifying retirees of Nigeria Customs Service except the claimants. We, the claimants, each receive a monthly pension from the defendant but the defendant withholds from us the retirement enhanced benefits provided by Exhibits “GOM1” and “GOM9” paid tri-monthly. The defendant continues to contend that those benefits are payable only to our colleagues who retire on and after 10th December 2002. From reliefs a¬), b) and c) prayed for by the claimants in their originating summons, the claimants are claiming “the monetized values of their enhanced retirement benefits, including accrued arrears thereof as approved by the defendants” in the Conditions of service of 2003 and 2011. What then is this “monetized values of their enhanced retirement benefits”? Only a look at the revised Conditions of Service attached to the affidavit in support of the originating summons can provide the answer. The Conditions of Service of 2003 at page 55 makes provision headed “ON RETIREMENT”. Here, the Conditions of Service provided that certain named officers (the Comptroller-General, the Deputy Comptroller-General, Assistant Comptroller-General and Comptroller-General) are entitled to the listed benefits in addition to the salary (pension). In respect of the Deputy Comptroller-General, Assistant Comptroller-General and Comptroller, however, it is provided that the benefits “may be monetized and paid in addition to the salary (pension)”. The benefits range from one driver and one security guard (for Comptroller) to one official car, one driver, one orderly, two domestic staff, one cook, one steward, one personal assistant, security guard and one pistol (for Comptroller-General). The Deputy Comptroller-General and Assistant Comptroller-General have varying benefits not up to Comptroller-General but more than those of Comptroller; while the benefits of Deputy Comptroller-General are more that those of Assistant Comptroller-General. There is nothing in the 2003 Conditions of Service that suggests that there is compulsion to monetize the benefits; and where monetized that they are paid quarterly as deposed to by the claimants in paragraph 5 of their reply to defendant’s counter-affidavit. In like manner, section V of the Conditions of Service of 2011 makes provision for “Special Powers/Privileges and Benefits on Retirement”. Regarding benefits on retirement, what are simply provided for (aside from adding officers of the rank of Deputy Comptroller and below as beneficiaries) are the benefits. Nothing is said about monetising the benefits. From all of this, what I discern is that there is nothing in the 2003 and 2011 Conditions of Service that state that the “monetized values of their enhanced retirement benefits, including accrued arrears thereof as approved by the defendants” is due quarterly as claimed by the claimants. This being the case, the requirement of periodicity of payment to warrant the “continuance of damage or injury” exception to the limitation of action rule to come to the aid of the claimants within the purview of AG, Rivers State v. AG, Bayelsa State & anor cannot come to play and so becomes inapplicable in the instant case. On the whole, and for the reasons given, I find and hold that the instant case is caught up by both section 6(1) of the Nigerian Customs Service Board Act 2004 and section 2(a) of the Public Officers Protection Act 2004. The argument of the claimants that their case falls within the “continuance of damage or injury” exception is not tenable in the circumstances of this case. The defendant’s preliminary objection accordingly succeeds and so is hereby upheld. The claimants’ case is accordingly statute-barred and is hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip