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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: October 03, 2014 SUIT NO. NIC/EN/102/2012 Between Speedwell Ozoemena Nwaneri - Claimant And 1. Governor of Imo State 2. Attorney General of Imo State 3. Imo State Judicial service Commission Defendants 4. Head of Service of Imo State Representation: K. C. O. Njemanze, wjith him, K.I. Uduma for the Claimant D. O. Nosike, with him, I. Ananaba for the Defendants JUDGMENT This action was instituted by the Claimant against the Defendants vide a General Form of Complaint dated the 11th day of June, 2012 and filed on the same day along with supporting originating processes. By an amended Complaint and Statement of Facts filed with leave of court on the 5th day of June 2014, the Claimant seeks the determination of the following question: 1. Whether by the provision of Section 31 of the Civil Service Commission Regulation 1994 and Rule 02809 of Imo State Public Service Regulation, the defendants are empowered to retire the claimant from the Imo State Judicial Service when he has neither attained the age of 60 years nor 35 years of service. 2. If the answer to question 1 above is in the negative, the Claimant therefore seeks the following reliefs: a) A declaration that the claimant is only due for retirement on the 11/08/2015 when he would have attained 35 years in service, same being earlier than 2018 when the claimant would have attained 60 years of age. b) A declaration that in computation of 35 years of service of the claimant, the four years study leave without pay granted to the claimant (1983-1987) by the defendants is not inclusive. c) An order of court setting aside the purported notification of retirement from service dated 27/01/2012 with Ref. No. JD/PERS/IV/T1/57 and 21/03/2012 with Ref. No. JD/PERS./IV/T1/69 issued by the Chief Registrar of the High Court of Imo State. d) An order of court restoring the payment of emoluments to the Claimant from January 2012 till his retirement on 11/08/2015. e) An injunction restraining the defendants from retiring the claimant earlier than 11/08/2015, the due date for the Claimant’s retirement when he would have attained 35 years of service. The defendants on the 21st day of November 2012, entered appearance vide a motion for extension of time, and on the 24th day of June 2013, vide a motion for extension of time, filed a Statement of Defence, Witness’s deposition on oath, List of Witnesses, list of documents and copies of documents to be relied upon at the trial. These were all deemed as properly filed and served by order of court on the 8th day of October 2013. On the 19th day of November 2013, the Claimant filed a Reply to the Defendant’s Statement of Defence. Hearing commenced on the 9th day of January 2014. The parties fielded a witness each. The Claimant testified for himself as CW1 while Ukaegbu Kevin, a staff of the Imo State Judicial Service Commission, testified as DW1. Hearing was concluded on the 2nd day of April 2014 and parties were ordered to file their written addresses in accordance with the rules of this court. The defendants filed their final address on the 22nd day of April 2014. Thereafter, the Claimant sought and obtained leave of court to amend his Statement of Facts on the 3rd day of June 2014. The amended Statement of Facts was filed on 5th June 2014. The Claimant filed his Final Address on 5th June 2014. Parties adopted their respective written addresses on the 7th day of July 2014. The defendants formulated the following two (2) issues for determination: a. Whether the Court has jurisdiction to determine this action; b. Whether the period of approved study leave without pay is included in the computation of years of service for the purpose of retirement of the Claimant. In arguing the first issue, learned counsel to the defendants submitted that the action is statute barred having regard to Section 2(a) of the Public Officers Protection Act Cap 41 Laws of the Federation 2004. It is now settled law that questions of statute of limitation go to jurisdiction of Court. Where an action is statute barred, the court shall have no jurisdiction to entertain the action. It is further settled that jurisdiction is the bedrock of adjudication. Where a Court lacks the jurisdiction to entertain a suit all it does is an exercise in futility. It was the submission of counsel that this court lacks jurisdiction to determine the Claimant’s suit; that the action is statute barred, same having been brought outside the time prescribed by Section 2(a) of the Public Officer’s Protection Act, Laws of the Federation 2004. In determining whether the action is Statute barred, the court was invited to look at the Statement of Facts and the evidence of CW1. That it is not in doubt that the action of the defendants i.e. retirement of the Claimant took place on 27/01/2012 vide Exhibit CC5. It is also not in doubt that it was upon the basis of the said Exhibit CC5 that the Claimant brought this action on 11/6/2013. By the Claimant’s evidence on 9/1/2014, he knew that his employment stopped officially on 27/1/2012. Therefore by filing this action on the 11th of June 2012, the Claimant was out of time for about 5 months which is clearly outside the 3 month limitation period prescribed by Section 2(a) of the Public Officers Protection Act which is also applicable to artificial persons. See Ibrahim vs. Judicial service Committee Kaduna State & Another (1998) 14 NWLR (Pt. 584) 1 at 36. To the defendants, the cause of action arose on 27/01/2012, the day the Claimant received Exhibit CC5. That was the time all the set of facts constituting the Claimant’s right to approach the Court came into existence. See Rinco Construction Company vs. Veepee Industries Ltd. (2005) 9 NWLR (Pt. 929) 85 at 95. Learned Counsel therefore submitted that by 11th June 2012 when the Claimant filed this action, the cause of action had been extinguished by the operation of section 2(a) of the Public Officers (Protection) Act. This court therefore lacks the jurisdiction to look into the merits or otherwise of the Claimant’s case. See Humbe vs. A. G. Benue state (2000) 3 NWLR (Pt. 649) 419 at 433. In the light of the foregoing, the court was urged to hold that this action was brought outside the time allowed by law, and dismiss the suit. In arguing the second issue whether the period of approved study leave without pay is included in the computation of years of service for the purpose of retirement of a civil servant, the learned Senior Counsel submitted that it is necessary to examine the legal meaning and import of the phrase: “STUDY LEAVE WITHOUT PAY”. He submitted that the phrase – study leave without pay has the same legal meaning and import as the phrase “LEAVE OF ABSENCE”. That the Black’s Law Dictionary, 6th Edition at page 891 defines ‘leave of absence” as follows: Temporary absence from employment or duty with intention to return during which time remuneration and seniority are not normally affected. That however in the case of Lazarus Igwe vs Alvan Ikoku College of Education Owerri (1994) 8 NWLR (Pt. 363) p. 465 at 478 para B ratio 1, the Court of Appeal, Port Harcourt Division, defined “leave” to mean “temporary absence from employment or duty with intention to return during which remuneration and seniority may or may not be suspended”. According to counsel what is common in both definitions is that the employee is temporarily absent from employment or duty with intention to return to work. What is seniority are not normally affected during the period of leave or leave of absence. However remuneration and/or seniority may or may not be affected or suspended during the period of leave or leave of absence. For example, remuneration is suspended where the leave of absence is an approved “Study leave without pay”. He submitted that in all the situations the affected employee temporarily stays away from duty or employment but with intention to return to work whether his remuneration and seniority is suspended during the period of leave or not. The staff thus remains on the nominal roll of employees of the employer during the period of leave or absence. His position is not declared vacant or filled up. There is no break in his employment. That it is therefore clear from the above definitions that an employee who is on leave of absence is still in the employment of the employer for the period of the leave or absence. See the case of MBUKURTA vs. ABBO & 7 ORS (1998) 6 NWLR PT. 554 PAGE 456 AT 464 PARA. E, RATIO 3. In this case, the Court of appeal, Jos Division per OGUNTADE JCA gave judicial authority to the above submission, namely, that an employee on leave of absence is still in the employment of the employer for the period of the leave of absence. He further submitted that an employee on approved study leave without pay is said to be on leave of absence. This is because, such an employee is temporarily absent from employment or duty for the period of the approved study leave, and during this period his remuneration is not suspended, broken and/or terminated during the said period of study leave without pay. In the case of LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION, OWERRI (SUPRA) MUNTAKA – COOMASSIE, JCA stated the position of the law in the following words at page 482 paragraphs. E-F: Where an employee is on an approved study leave without pay, granted by his employer, he still remains a staff of the employer in the absence of any evidence that he was dismissed, relieved or had his appointment terminated. (emphasis supplied by counsel) While EDOZIE JCA delivering the leading judgment in the same case at pages 478 – 479 paragraphs E – A of the report put the position on the law thus: As indicated earlier, since it is common ground that the appellant was an employee of the respondent and was on an approved study leave without pay, it goes without saying unless there is evidence to the contrary, that he is still the staff of the respondent. (emphasis supplied) That since the law is settled that an employee on approved study leave without pay is still in the employment of the employer during the period of leave, the inevitable conclusion is that in computing the employee’s period of service for purposes of his retirement date, the period of leave of absence or study leave without pay will be included or added. To submit otherwise will be preposterous. He further submitted that this state of the law cannot be amended or altered by an administrative directive, regulation or command. According to the learned senior counsel, having made the above submissions, it remains to refer to Exhibits DD1, DD2, DD3, DD4, DD5, DD6, DD7 and DD8 Rule 02809 of Imo State Public Service Rules. The provisions of each of the Circulars exhibited, pleaded and admitted in evidence and the provisions of each of the Regulations and Rules referred to above are to the effect that a Civil Servant shall retire compulsorily on attainment of sixty (60) years of age or thirty five (35) years of service whichever is earlier. By Exhibits “CC1”, the Claimant was appointed into the Civil Service on 18th August 1976. By Exhibit “CC5”, the Claimant retired officially on 27th January 2012. The period of service covered by Exhibits “CC1” and “CC5” is 35 years. By Exhibit “CC4” the claimant was born on 27th may 1958. Arithmetically, from 27th May 1958 to 27th January, 2012 is about 58 years. The claimant will attain 60 years on 06/06/2015. So going by the provisions of the Regulations and Rules of the civil Service quoted above, the claimant’s retirement should properly be on 27th January, 2012 being the date he attained 35 years in service, and which is earlier in time than the date when he will be 60 years of age i.e. on 06/06/2015. He therefore submitted that the claimant’s retirement on 27th January, 2012 was properly done. Arguing further learned senior counsel stated that the main plank of the claimant’s contention is that the period of his study leave without pay was a break in his period of service and therefore should be excluded in the computation of his years or period of service. He strenuously but unsuccessfully pressed and argued this point in his evidence. It is submitted that the extant circular on this issue is the establishment circular Nos. 11 and No. 12 of 2008 which provides that the period of study leave without pay shall not be regarded as a break in service, and that in computing period of service it must be included. This provision followed and is in line with Federal Government Establishment Circular No. PEN/63903/S.57/56 of 2008. i.e. Exhibit DD4. He further submitted that at the time the claimant applied for and was granted study leave without pay, the extent circulars at the time were establishment circular No. 26/1981 (Exhibit DD1) which is in pari-materia with establishment circulars Nos. 11 and 12 of 2008. Similarly rule 15111 of the Imo State service Rules (Revised to 31st December, 1986) provides that the period of study leave without pay will be treated as continuous service for the calculation of Pension right. That a close examination of Exhibits “CC3” and “CC2” will finally dispose of the argument whether or not the period of study leave without pay is break in service. Paragraph 2 of Exhibit CC2 reads as follows: This approval is given on the clear understanding that you will not be entitled to automatic promotion on return to duty. On the other hand, you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others. (Underlining supplied by counsel). Paragraph 2 of Exhibit “CC3” reads as follows: You will grant him one year notional increment with effect from his last incremental date provided that the increments do not carry him beyond the maximum of the grade he was before proceeding on the study leave without pay. That it is clear from the above that there was no break in the claimant’s years of service as a result of the study leave without pay. Claimant automatically returned to duty after his study leave without pay. His increments during the period of study leave without pay were assured and granted. The claimant was not required to re-apply/submit fresh application for employment, nor did he do so. Furthermore, the claimant placed heavy reliance on the letter Ref: HSI/EST/RR/151/1A/478 dated 24th May, 2011(i.e. Exhibit CC8) by which the 1st defendant purported to grant approval for the waiver sought by labour in respect of the restoration of the period of study leave without pay for a select (favoured) 51 officers of which the claimant was included. By the aforesaid waiver, the 1st defendant purported to exclude the period of study leave without pay in the computation of period of service of the named 51 select officers (inclusive of the claimant). Paragraph two of the aforesaid letter states: His Excellency has granted this waiver at his own discretion and without prejudice to the existing circular on the issue (circular No. 12 of 2008). (Emphasis Supplied by counsel). To the learned senior counsel, the existing circular on the issue forbids the action of the 1st defendant, as it is not a matter in respect of which the 1st defendant can exercise discretion. That it is a matter within the exclusive legislative list of the 1999 Constitution of the Federal Republic of Nigeria as amended. The 1st defendant cannot by an administrative action or directive or command waive the aforesaid Regulation/Rules of Civil Service predicated on law. It was not surprising therefore, counsel added, that the 1st defendant rescinded the waiver when his attention was properly drawn to the legal implications. Accordingly, by various letters dated 8th June, 2011 (Exhibit DD8), 4th November, 2011 (Exhibit DD9) and 25th July 2011 (Exhibit DD10), the defendants cancelled the aforestated waiver and directed the 3rd defendant to continue with the statutory retirement of the 51 officers affected by the waiver along with all other officers in accordance with circular No. 12 of 2008. (Emphasis Supplied by counsel). It is thus clear, and he so submitted, that the foundation of the claimant’s reliefs is hollow and cannot sustain the claim/action. He urged the court to uphold the claimant’s retirement. Still on the issue of waiver, counsel submitted that the approval granted by 1st defendant for the waiver sought by the organized labour for the restoration of the period of study leave without pay is in the nature of a collective agreement between an employer and union of employees. It is now settled that such agreement is not intended to create any legal relations giving rise to any contractual obligations, and are therefore not justifiable except where the terms of the agreement have been incorporated expressly or by necessary implication into the contracts of employment of the employees. In this case, there is no evidence before the court that the understanding to grant the aforesaid waiver by the 1st defendant in favour of the 51 select (favoured) officers of the organized labour was incorporated into the claimant’s contract of employment. He cited and relied on the case of OSOH VS. UNITY BANK PLC (2013) 9 NWLR PT. 1358 PAGE 1 AT PP. 26 – 27 RATIO 5. That in the instant case, the terms of the said waiver were not incorporated into the conditions of employment of the claimant. There is therefore no privity of contract between the claimant and his employer, the 3rd defendant, which is fundamental to the enforcement of contractual obligations between the parties to the contract of employment. He referred to the case of OSOH VS UNITY BANK PLC (Supra) at page 31 paragraph E. Counsel therefore submitted that in view of the foregoing, the aforesaid waiver is therefore of no consequence, and he urged the court to so hold. In summary, learned senior counsel submitted that “leave,” “leave of absence” and “study leave without pay”, all connote a period of temporary absence from employment with intention to return during which time remuneration and seniority are not normally affected, or may or may not be affected/suspended. Remuneration and/or seniority is affected or suspended when the employee by his own voluntary application (on his own volition) requests that his leave be without pay to enable him go for further study since he does not want to wait to take his turn to go for in-service training which is a period of leave with pay. In all situations the service period is not broken. The claimant’s period of study leave without pay was properly included in the computation of his years of service in determining his retirement date. In conclusion learned counsel submitted that having regards to the facts of this case and the applicable laws, Rules and regulations, the claimant failed to prove an entitlement to any of the heads of claim/reliefs in his statement of facts. The action is without merit. Accordingly, he urged the court to dismiss same with costs. In his written address, learned Counsel for the Claimant formulated the following three (3) issues for the determination of the Court: (i) Whether this Honourable Court has the jurisdiction to entertain this suit having regard to the provisions of Section 2 (a) of the Public Officers Protection Law. (ii) Whether having regard to evidence led and the law, the Claimant has been duly retired from service. (iii) Whether the period of study leave without pay should be computed into the service years of the Claimant. On issue 1, it was the submission of learned counsel to the Claimant that a defendant party intending to raise or rely on the defence of limitation law or statute such as the public officers protection Act must first of all specifically plead same, otherwise, the defence being a special one, will not avail him. Onyebamiji vs. Lawanson (2008) 15 NWLR (Pt. 1109) 122, Olagunju vs. PHCN Plc (2011) 10 NWLR (Pt. 1254) 113. In the instant case, the defendants did not plead the defence of limitation law or statute. The defendants did not specifically plead that this suit is statute barred by virtue of the Public Officers Protection Act. Therefore, this defence being raised for the first time at the address stage will not avail the Defendants. It is counsel’s contention that in this suit, the Claimant is complaining that he was prematurely retired from service and that his retirement is unjust, wrong and illegal. It was submitted that the Public Officers Protection Law is not absolute in its application. The law has limits and scope. Where for instance the public officer acts outside the colour and scope of his office or outside his statutory or constitutional duty or without semblance of legal justification or the action is unlawful or done in bad faith or an abuse of office, the said law is not applicable. The Supreme Court held per Iguh JSC in Ibrahim vs. JSC Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 32 thus: “It can therefore be said that Section 2(a) of the Public Officers (Protection) Law 1963 gives full protection to cover all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of , he was acting outside the colour of his office or outside his statutory or constitutional duty.” In Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 621-622, the Supreme Court held thus: “In effect, the Public Officers Protection Act is designed to protect a public officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification………………….the Public Officers’ Protection Act heavily relied upon by the Lower Court is inapplicable to justify a patently illegal and unconstitutional act…….” In Moyosore vs. Gov. of Kwara State (2010) 5 NWLR (Pt. 1293) 242 at 284-285, the Court of Appeal held thus: “The 1st Respondent cannot be protected under Section 2(a)of the Public Officers Protection Law…….If it is eventually established, at the trial, that what he did was unlawful or done in bad faith or an abuse of his office.” Learned Counsel submitted that the Claimant’s contract of service has statutory flavour and the extant laws make provision on when and how a public/civil servant may retire or be retired, and that any deviation or violation of the law on how and when a civil servant is retired is unlawful and illegal. In the instant case, the Claimant is complaining that the defendants prematurely, unlawfully and illegally purported to retire him from service. The Public Officers Protection Law is inapplicable in the instant case where the Claimant asserts that his purported retirement is premature, unlawful, illegal and has no semblance of legal justification. From the pleadings and evidence led, the defendants acted outside the scope or colour of their office. The limitation law does not avail the defendants. Ibrahim vs. JSC Kaduna State (Supra), Hassan vs. Aliyu (Supra). It was further submitted that the action of the Claimant is rooted on contract of service. It is not in dispute that the defendants employed the Claimant and a contract of service with statutory flavour exists between the parties. He went further that the Supreme Court has consistently held that Section 2 of the Public Officers Protection Act (which is inparimateria with section 97 of the Ports Act) does not apply to cases of contract. In Nigerian Ports Authority vs. Construzioni Generali Farsura Cogefar SPA (1974) All NLR 945 at 955, the Supreme Court per Ibekwe JSC held: “We shall now deal with the other point which to our mind does not seem well settled, namely whether the kind of Statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether S.97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract.” Also in FGN vs. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162, the Supreme Court held that the Public Officers Protection Act does not apply to cases of contract. And in Osun State Government vs. Delami (Nig.) Ltd. (2007) 9 NWLR (Pt. 1038) 66 at 83, the Supreme Court held thus: “It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract.” Counsel went on that since this action is rooted or founded on contract, the law makers did not intend the POPA to apply to cases such as the instant one. The suit is therefore not statute barred. Moreover, counsel stated, with the coming into effect of the Imo State Limitation Law of 1994, the applicable provision is Section 44 of the said Law which provides thus: “Any enactment relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.” He went on that Section 44 of the Limitation Law 1994 is clear and unambiguous and therefore it must be given its ordinary grammatical meaning. By virtue of Section 44 of the said law, limitation of action enactments such as the Public Officers’ Protection Law ceased to apply as it was abrogated or repealed and therefore no longer in force and cannot be relied upon by the Defendants. Omoyeni vs. Governor of Edo state (2004) All FWLR 795. He urged the Court to hold that the Claimant’s cause of action was not extinguished by the Public Officers’ Protection Law and this court has jurisdiction to entertain this suit. In arguing Issues 2 and 3 together, Counsel to the Claimant submitted that it is common ground that at the time the Claimant was purportedly retired; he was a public servant in the service of Imo State. In paragraph 3 of the Statement of Facts, the Claimant averred that he is a civil servant in the Imo State Judicial Service, which fact was admitted by the defendants in paragraph 8 of the statement of defence. It was submitted further that in the circumstance, the employment of the Claimant is governed by the Constitution, relevant laws and subsidiary legislations. Public/Civil Servant such as the Claimant, in the established and pensionable cadre of Imo State Government are not employed at the pleasure of Imo State Government. The Civil Service Rules vests in the Claimant a legal status and he can be properly and legally removed or retired from office only as provided by the constitution and the said Rules. SHITTA-BEY vs. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) NSCC 1. Counsel submitted further that the Imo State Judicial Service Commission (3rd Defendant) is established by Section 197(1) (c) of the 1999 Constitution; and in exercise of its power to appoint, discipline, retire or dismiss persons, the 3rd Defendant shall not by virtue of the provisions of section 202 of the Constitution, be subject to the direction and control of any other authority or persons. To counsel, by virtue of the provisions of paragraph 6 (c) of part 11 of the third schedule of the Constitution, the Claimant being a public servant in the Imo State Judicial Service, falls into the class of persons that the 3rd defendant can dismiss retire or discipline. See the unreported decision of the Court of Appeal, Port Harcourt Division in appeal No. CA/PH/191/2003: CIVIL SERVICE COMMISSION IMO STATE & ANOR vs. GODWIN ONYEMA ANUFOROM. By Exhibits CC5 and CC6, the Chief Registrar of the Imo State High Court purportedly asked the Claimant to handover to the next officer next to him and stay away from the office and await the outcome of his application to the 3rd Defendant. Exhibit CC6 purports to contain a directive from the Chief Judge of Imo State to the Claimant. It is submitted that the Imo State Judicial Service Commission is a separate and distinct body from the Imo State High Court. By virtue of section 202 of the Constitution, the Imo State Judicial Service Commission is an independent body not under the control of the Chief Judge of the State. Though the Chief Judge of the State is the Chairman of that Commission, he cannot take a unilateral decision on behalf of the commission. It is submitted that in a matter touching and or concerning the retirement of the Claimant, the letter of retirement or letter directing the Claimant to hand over and stay away from office should emanate from the Imo State Judicial Service Commission and not from the Chief Registrar of the High Court or by a directive from the Chief Judge of the State. See Exhibits CC5 and CC6. The Chief Registrar of Imo State High Court and/or Chief Judge of the State have no power or authority to retire the claimant or ask him to stay away from office. Ditto Exhibits DD7 and DD8 from the Secretary to the Imo State Government purporting to direct that some public servants be retired from office. It is further submitted that Exhibits CC5, CC6, DD7 and DD8 amount to a flagrant usurpation of the powers of the 3rd Defendant. The purported retirement of the Claimant is wrong and unconstitutional. Indeed by the state of our law, the Claimant has not been retired since the Imo State Judicial Service Commission has till date not retired the Claimant for whatever reason and has not communicated any such decision to the claimant. See unreported decision in Civil Service Commission Imo State vs. Godwin Anuforom (Supra). In paragraphs 4, 5 and 6 of the statement of facts, the Claimant averred that he was granted approval to proceed on study leave without pay and that upon completion of his study; he was reinstated by the 3rd Defendant in 1987. These material facts were admitted by the Defendants in paragraphs 2 and 3 of their statement of defence. At the trial, the Claimant tendered the letter approving his study leave without pay which was admitted in evidence and marked Exhibit CC2, and letter of reinstatement admitted in evidence and marked Exhibit CC3, Exhibit CC2 is clear and unambiguous. Exhibit CC2 does not contain any condition that the period of study leave without pay shall be included in the computation of the Claimant’s years of service. The conditions/understanding stated in Exhibit CC2 are stated in the second paragraph of the letter to wit: “This approval is given on the clear understanding that you will not be entitled to automatic promotion on return to duty. On the other hand, you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others”. The content of Exhibit CC3 is instructive and important. In paragraphs one and four of Exhibit CC3 the Defendants stated thus: “I am directed to refer to your letter No. JD/61/52 of 18th August, 1987 and to inform you that approval has been given to re-instate Mr. S. O. Nwaneri into the service with effect from 9th September 1987 after completing four years study leave without pay at the University of Calabar. 4 please inform him accordingly. Note that Mr. Nwaneri could not be re-instated with effect from 10th August 1987 as you recommended because he was discharged from the National Youth Service Corp Scheme on 8th September 1987”. By Exhibits CC2 and CC3 (documents made by the Defendants) it was agreed and understood that the Claimant will “return to duty” on completion of his course, that claimant was reinstated “into service” and that Claimant was discharged from National Service in 1987. It is submitted that by virtue of Exhibits CC2 and CC3 the Claimant was not in service during his study leave without pay (which include the period he did National Service). During the study leave, the Claimant did not work for the Defendant, did not render any service to the state and did not receive any remuneration from the Defendant as salary. It is further submitted that because the Claimant was not in service of the Defendants during the period of study leave without pay, he had to be reinstated into service at the end of his course. Therefore, the period of study leave without pay cannot be included as part of his service years. His period of study leave is not pensionable. To do otherwise will be contrary to the agreement between the parties. It was counsel’s submission that Exhibits DD1 – DD8 were wrongly admitted by the Court. They should therefore be discountenanced. DD1 – DD8 were purportedly certified by an officer in the Imo State Judicial Service Commission. Exhibit DD1 is an unsigned document purportedly made by the Head of State Civil Service. Exhibit DD2 is a document from the Head of Civil Service of the Federation. Exhibits DD3, DD4 and DD5 are unsigned documents purportedly made by the Head of Service while DD6 and DD7 are by the Secretary to the Government of Imo State. Exhibit DD8 is by the Head of Service. It is submitted that the unsigned documents referred to above (i. e. DD1, DD3, DD4 and DD5) are worthless pieces of papers that have no evidential value in law. AMAIZU vs. NZERIBE (1989) 4 NWLR (Pt. 118) 755, SALIBAWA vs. HABILAT (1991) 7 NWLR (Pt. 174) 461; JINADU vs. ESUSROMBI-ARO (2009) 9 NWLR (Pt. 1145) 55. Furthermore, Exhibits DD1 – DD8 was not certified by the offices that made them. The Imo State Judicial Service Commission did not make these documents. To make these documents admissible and carry the requisite weight, the certifications on the documents should be by the offices that made them or the original documents produced and tendered. A similar situation arose in G & T INVESTMENT LTD. VS. WITT & BUSH LTD. (2011) 8 NWLR (Pt. 1250) 500 where the Supreme Court per Onnoghen JSC. Held at page 533. “It is not also disputed that the said Exhibit A is a certified true copy of the Certificate of Incorporation of the 1st appellant. It is settled law that the content of a document can be proved in a proceeding by tendering the original document, or where the original is unavailable, by a certified true copy of the said original as secondary evidence of the contents of the original. However, Exhibit “A”, though a certified true copy of the original certificate of Incorporation, it was certified by the registrar of the High Court. It is the case of the respondent that the certification on Exhibit A ought to have been done by an officer in the Corporate Affairs Commission (CAC) to make it admissible and carry the requisite weight. I agree with the submission of learned counsel for the respondent and its affirmation by my learned brother in the lead judgment…..” In the lead judgment Mukhtar J.S.C. (Now CJN) at page 527 held thus: “It is on record that the plaintiff tendered a photocopy of a document which was certified by the Registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document, it should have been certified by an official of the Corporate Affairs Office, the document being a public document that is subject to the provision of Sections 109 – 112 of the Evidence Act Supra”. Counsel to the Claimant went on to submit that by virtue of the provisions of Section 104 of the Evidence Act the name and designation of the officer certifying a document must be stated on the document; and there must be evidence of payment of official fees. ADELAFA vs. BAMILOYE (2013) 10 NWLR (Pt. 1263) 532; TABIL INVESTMENT vs. GTB LTD. (2011) 17 NWLR (Pt. 1276) 240. In the instant case, the names and designation of the officer who purportedly certified Exhibits DD1 – DD8 are not stated on these documents and there is no evidence of payment of fees. In the circumstance, the documents (Exhibits DD1 – DD2) ought not to have been admitted in evidence. Having been wrongly admitted, Counsel urged the Honourable Court to reject and/or discountenance the said documents. It was submitted further that even if, without conceding, Exhibits DD1 – DD8 are admissible in evidence, these documents do not in any way advance the defence of the Defendants. Firstly, Exhibits DD2 and DD4 are purported circulars issued by the Head of the Civil Service of the Federation, and clearly directed at or issued to Federal Offices name therein. Exhibits DD2 and DD4 are not directed at or issued to State Officers or the Defendants; and the documents could not have been directed at or made to apply to States or the Defendants since we operate a Federal system of Government in Nigeria. The Imo State Judicial Service Commission cannot, under our Constitution, take instructions or directives from the Head of Civil Service of the Federation. Therefore, Exhibits DD2 and DD4 are not applicable to the Civil or Public Service of Imo State and do not in any way affect the service of the Claimant. Exhibits DD1 – DD6 deal with pensionability and Non-pensionability of period of study leave without pay. In other words, these documents deal with issue of pension. Exhibits DD1, DD3, DD5 and DD6 are establishment circulars purportedly issued on pension matters by the Head of Service of Imo State. Under the 1999 Constitution, pension matters, labour matters including trade unions, industrial relations, conditions, safety and welfare of labour, industrial disputes, prescribing a national minimum wage for the federation or any part thereof, and industrial arbitrations are by items 43 and 34 of Part 1 of the second Schedule to that Constitution in the Exclusive Legislative List. By virtue of the provisions of Section 4(2) & (3) of the Constitution the National Assembly has the exclusive power to make laws in respect of any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution. It follows that the National Assembly has the exclusive power to make laws in respect of pensions and labour matters. Therefore, since Exhibits DD1 – DD6 regulate or deal with pensions and labour matters and these are not laws or regulations or rules made by the National Assembly or the Federal Government, Exhibits DD1 – DD6 are inconsistent with the Constitution and by virtue of the provisions of Section 1 (3) of the Constitution Exhibits DD1 – DD6 are void and of no effect. Counsel stated that before now the Pensions Act of 1990 was the only Act governing pensions and retirement matters in the country because labour and pension matters are in the said Exclusive Legislative List. Section 4(1) of the Pensions Act 1990 statutorily fixed the retirement age of civil/public servant at 60 years. The 35 years as an alternative compulsory retirement condition was introduced into the state of the law on the matter by the Civil Service (Re-organization) Decree No. 43 of 1988 Later Act Cap 55 Laws of the Federation 1990 which in paragraph 8 of Section IV made pursuant to section 9(1) of the Act, provided, interalia, that the compulsory retirement age for all grades in the civil service was to be 60 years or 35 years of service, which ever was earlier. Counsel pointed out that Decree 43 of 1988 was effectively repealed by the (Civil Service Re-organization) (Repeal) Decree 1995. Therefore, the alternative compulsory retirement condition based on 35 years or service was abrogated with effect from the repealing date leaving 60 years as the only compulsory retirement age. Therefore, from the date of the said repeal there can be no valid compulsory retirement based on 35 years of service only. It follows that the Claimant cannot be retired from service based on 35 years of service. Any such purported retirement is invalid. OMOYENI vs. THE GOVERNOR OF EDO STATE (2004) All FWLR 795; Unreported judgment of HON. JUSTICE P.C. ONUMAJULU (CJ) IN SUIT NO. HOW/102M/99/ENGR (DR) ERNEST AMASIKE vs. HEAD OF SERVICE IMO STATE & ANOR. DELIVERED ON 22/11/99. Exhibits DD1- DD6 are Establishment Circulars and it is settled that such circulars are not Law or Act of the legislature. Such circulars cannot override or amend the provisions of extant laws on the matter. And where such circulars are not in consonance with the existing laws on the point or made without constitutional backing, as in the instant case, such circulars are void unless they are incorporated into an Act of the National Assembly, which is not the case here. By the time Exhibit DD1 was issued, retirement on basis of 35 years of service had not come into contemplation. Retirement on basis of 35 years of service was introduced by Decree 43 of 1988 (about 7 years after the issuance of Exhibit DD1). And Exhibit DD5 merely stated conditions for future approval of study leave without pay for officers. Exhibit DD5 has no retroactive effect. Counsel to the Claimant noted that the Defendants in their final address, relied heavily on the case of IGWE vs. AICE (1994) 8 NWLR (Pt. 363) 465. He then submitted that though the facts and issues in Igwe’s case is distinguishable from the instant, the ratios and pronouncements of the Justices of the Court of Appeal in that case support the case of the Claimant. In Igwe’s case it was held that study leave without pay meant that temporary absence from service, duty or employment with intention to return during which period remuneration and seniority may or may not be suspended importantly. Counsel said the Court of Appeal recognized and expressly stated that the person on leave is absent from service, duty or employment, though he remains a staff. This is clearly in line with the case of the Claimant that during the period of study leave, he was not in service or duty and the period when he was not in service should not be included in calculating his period of service. This Counsel said, is commonsensical and accords with reason and the law. Furthermore, if the Claimant was in service or duty during the study leave, there would not have been need to reinstate him into service. The act of reinstatement meant that Claimant was not in service. Counsel urged the Court to so hold. It was further submitted that by virtue of Exhibit CC7 and conduct of the Defendants, they are estopped from insisting that the Claimant should retire before 11/8/2015. Defendants made representation to the Claimant by Exhibit CC7 and they induced the Claimant to believe that the state of things were as represented by them in Exhibit CC7. The Claimant from the evidence before the Honourable Court took them by their words and acted on that representation. The Defendants cannot turn around to say or behave as if the state of things as stated in Exhibit CC7 were not right. The Defendants are estopped from asserting anything contrary to Exhibit CC7. OKONKWO vs. KPAJIE (1992) NWLR (Pt.226) 633; IGE vs. AMAKIRI (1976) 11 SC1. To Counsel therefore, the Claimant is entitled to have his purported retirement nullified, be reinstated and awarded full back pay of his emoluments from January 2012 to the date of the judgment. The Court was urged to so hold, and enter judgment in favour of the Claimant. BAKARE vs. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR (Pt. 262) 641, SHITTA-BEY vs. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC 40. I have carefully considered the facts presented by the parties, arguments proffered, authorities and submission of Counsel on both sides. I have identified two issues which require determination in this matter. The issues are- 1. Whether this Court has jurisdiction to determine the suit. 2. Whether the period of study leave without pay should be computed into the service years of the Claimant for the purpose of retirement of the Claimant. ISSUE ONE In his written address, the counsel to the defendants has challenged the competence of the suit on the ground that it is statute barred. The issued so raised fundamentally affect the jurisdiction of the court to pronounce judgment in the suit. It therefore becomes necessary that the issue of statutory limitation be taken first and determined before I can go into the substantive suit, if eventually, I find it necessary to do so. It is trite that whenever a challenge is made to the competence or jurisdiction of the court to entertain a matter, the court is expected to deal with the issue first. In his argument on this point in his issue one, the defendants counsel contends that the claimant’s action is statute barred. The basis for this contention is that the claimant’s cause of action arose on 27/01/2012 when he received Exhibit CC5 retiring him from service, and the claimant commenced this action against the defendants, who are public officers, on 11/6/2012. Counsel submitted that having regard to Section 2(a) of the Public Officers Protection Act, this court lacks jurisdiction to determine the Claimant’s suit, which suit was brought outside the time prescribed by Section 2(a) of the Public Officer’s Protection Act. In response to this issue, the claimant’s counsel, also in his submissions in issue one of his written address, did not address the point whether or not the claimant’s suit was actually filed outside the time prescribed in the POPA. He however contended that the defendants did not plead the defence of limitation statute, as such; they cannot raise it at address stage. Counsel submitted further that the defendants who intended to raise or rely on the defence of limitation law or statute such as the public officers protection Act, must first of all specifically plead same, otherwise it will not avail them. Since the defendants did not plead the defence of limitation law or POPA, counsel continued, they cannot take protection under the defence which was raised for the first time at the address stage. I must of necessity mention it at this point that the National Industrial Court Rules does not obligate parties to specifically plead the defence of limitation. In essence, parties before this court are not obligated to specifically plead a special defence or limitation of action before they can rely on it. Furthermore, the point raised by the defendants’ counsel is on the jurisdiction of this court to entertain this suit. Section 2(a) of POPA, relied on by the defendants counsel is to the effect that actions against public officers must be commenced within 3 months of the accrual of the cause of action otherwise, the action is barred. The provision touches on the jurisdiction of this court to determine this matter. It has been settled in judicial pronouncements that such an issue of jurisdiction can be raised at any stage of a proceeding. Jurisdiction is a threshold issue in the adjudicatory process and a court must have jurisdiction before it can hear a matter or make any binding decision in it. It does not matter at what stage of the proceeding it was raised. Also, the method by which it is raised, is irrelevant. Once issue of jurisdiction is raised, it must be decided before the court can proceed any further in the matter. See MUSA vs. MADWETTE (2008) All FWLR (Pt. 421) 937 at 947; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR Pt. 447 141 at 177. Limitation of action is a matter of jurisdiction. It follows therefore that limitation of action can be raised at any stage of the proceeding. See NWAKWA vs. HEAD OF SERVICE EBONYI STATE (2008) All FWLR (Pt. 402) 1156 at 1170. Therefore, when and once the jurisdiction of a court is challenged, that issue must be settled one way or the other. It will not matter how and when it was raised. A court cannot close its eyes to such fundamental issue as jurisdiction when challenged and proceed to determine the case because the jurisdictional point was not pleaded. The effect of proceeding with the matter will be that such proceeding will be a nullity if found later that the court had no jurisdiction in the first place to entertain same. It is for this reason I will discountenance the submission of the claimant’s counsel on non-pleading of limitation law and proceed to determine the issue whether or not this suit is statute barred. By the provision of section 2 (a) of POPA, an action must be commenced against a public officer within 3 months of the accrual of cause of action. Failure to so commence the action within the prescribed period, the right to enforce the action will be barred and the court will no longer have jurisdiction to entertain the action. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 14 NWLR (Pt. 584) 1; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. Learned counsels, in their respective submissions on this issue, have not disputed the fact that the defendants are public officers. It is thus not in dispute that the defendants are public officers. The status of the defendants is even made clear in paragraph 2 of the claimant’s amended statement of facts which show that the defendants are public officers. The only issue to be resolved here is whether the claimant’s action against the defendants was filed outside the 3 months period. In resolving the issue, it must be determined when the cause of action arose and when the claimant filed this action. In this suit, evidence has been taken. Therefore, these facts can be garnered from the processes filed and evidence adduced in the matter. It is essential when dealing with limitation statute to determine the precise date on which the cause of action arose because it is then time will start to run. Cause of action arises at the date or time when a breach or any act that will warrant the person who is adversely affected by the act to take action in court. See BANK OF THE NORTH vs. GANA (2006) All FWLR (Pt. 296) 862 at 881. From the reliefs sought on the complaint and the facts of the claimant’s case, it is obvious that the dispute resulting in this suit was the retirement of the claimant by the defendants from the service of the 3rd defendant. From the pleading and evidence of the claimant, it his case that he received a letter of 27/1/12 and another one on 21/3/12 directing him to stop work as he has retired from service. See paragraph 11 of the amended statement of facts. From these facts, the claimant’s cause of action had arisen on 27/1/2012 when he received exhibit CC5 directing him to hand over and stay away from the office. In my view, on 27/1/12 when the claimant received exhibit CC5, his grievance about his retirement commenced. On that day, the Claimant’s right to approach the Court on his retirement came into existence and that is the date his cause of action arose. The time started running against the claimant from 27/1/12. The claimant filed this suit on 11/6/12. From the date of accrual of cause of action on 27/1/12 and the date this suit was commenced on 11/6/12, it is clear that the suit was filed against the defendants more than 3 months from the date the cause of action arose. The claimant did not commence this suit against the defendants within the statutorily prescribed 3 months. By filing this action on the 11th of June 2012, the Claimant’s suit was filed outside the 3 month limitation period prescribed by Section 2(a) of the Public Officers Protection Act. Consequently, I find that the claimant’s cause of action had been foreclosed by the operation of section 2(a) of the Public Officers (Protection) Act. The claimant’s counsel has however further argued that the defendants cannot be protected by the POPA because they have acted outside the colour and scope of their office and their action in the retirement of the claimant is without semblance of legal justification and the action is unlawful and done in bad faith. The counsel hinged this submission on the contention that the claimant’s retirement was premature, which retirement was unjust, wrong and illegal. In these circumstances, counsel opined, POPA is not applicable and does not avail the defendants. It seem to me counsel is saying the defendants have acted in bad faith and without any justification when they retired the claimant from service. These allegations are matters to be pleaded and proved by the claimant for the court to find in deciding whether the protection offered the defendants by POPA should be stripped from them. It was held in KAPO vs. OKORIE (2012) All FWLR (Pt. 612) 1778 at 1788 as follows: “It is the duty of a plaintiff to adduce evidence of facts to establish bad faith and lack of semblance of legal justification. The facts to be produced must coexist to enable the court find absence of semblance of legal justification otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the court will have no jurisdiction to entertain same” I have scrutinized the claimant’s pleading and the evidence adduced by him and I cannot see anywhere where any fact to support the allegation of bad faith, illegality, or lack of legal justification against the defendants is pleaded or proved. In fact, the case the claimant has submitted before the court and which the facts he placed before this court revolve is whether or not he was due for retirement at the time he was retired. From the totality of the case presented by the claimant, I cannot see any fact which tend to show absence of semblance of legal justification or bad faith on the part of the defendants in the retirement of the claimant. Nothing has been shown by the claimant as to disentitle the defendants from taking protection under POPA. The claimant’s counsel has further argued that the relationship between the parties being that of contract of service, the provisions of POPA does not apply to bar the claimant’s suit. Counsel relied on the cases of FGN vs. ZEBRA ENERGY LTD and OSUN STATE GOVERNMENT vs. DELAMI (NIG.) LTD. where the Supreme Court held that “Section 2 of the Public Officers Protection Act does not apply to cases of contract”. With respect to learned counsel for the claimant, that is hardly the position of the law with respect to cases of contract of employment. What was decided by the Supreme Court in the above cases was that POPA does not apply to independent contract, which is different from contracts of employment. The correct position on the point is as pronounced in the UNIVERSITY OF JOS vs. DR. SANI MUHAMMAD ADAM (2013) LPELR-20276, where it was held that contracts, as used in FGN v. Zebra Energy only mean independent contract, it cannot and does not extend to contracts of employment in the public sector. In my view also, the POPA applies to causes arising from contract of employment in the public sector as, generally, the protection will avail a public officer where the alleged breach is in the performance or execution of a public duty. See AJIKITI vs. NYSC (2011) All FWLR (Pt. 591) 1582 at 1591. Therefore, the contention of the claimant’s counsel on this issue does not hold water. The Claimant’s counsel has further submitted that with the coming into effect of the Imo State Limitation Law of 1994, particularly Section 44 thereof, the defendants can no longer rely on the Public Officers’ Protection Law because it has ceased to be in force. This argument of counsel has no merit. The Imo State’s Public Officers Protection Law may have been repealed, but that does not prevent the defendants from relying on the Act. The statute cited and relied on by the defendants is the POPA. The Act is a Federal Legislation and it is applicable to all public officers and institutions. This view was held in NWAKWA vs. HEAD OF SERVICE, EBONYI STATE (SUPRA) at 1173 when the court commented thus- “A public officer of whatever description including public institutions are entitled to take protection offered by section 2 (a) of the Public Officers Protection Act”. See also KASANDUBU vs. ULTIMATE PETROLEUM LTD (SUPRA) at 182; IBRAHIM vs. JSC, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1. From the foregoing, I find that this suit is statute barred and as a consequence, this court lacks the jurisdiction to entertain it. With the finding that the suit of the Claimant is statute barred, it is no longer necessary for the Court to go into the other issue, as that would be academic. On the whole, I find and hold that the claimant’s suit is statute barred and consequently hereby dismissed. I make no order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge