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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: February 17, 2015 SUIT NO. NICN/OW/13/2014 Between Kingsley Ihenacho Eyinnaya - Claimant And 1. Nigeria Police Council 2. Nigeria Police Service Commission 3. Inspector General of Police Defendants 4. Attorney General of the Federation 5. Commissioner of Police, Abia State Command Representations: D. C. Ajare esq. for the Claimant C. M. Onyeweaku for the 3rd and 5th Defendants RULING By an Amended Complaint dated and filed on the 13th day of June 2014, (pursuant to the order of this court made on 28th May 2014), the Claimant herein sought the following reliefs: i. A declaration that the Respondents (sic) withholding of the salaries, gratuity and other rights of ASP Adolphus Andrew Eyinnaya now late, despite his discharge from the offence of murder in Charge No MAS/360C/2003 is wrongful and void. ii. An order directing the Respondents(sic) to forthwith release and effect payment of all withheld salaries, gratuity and all rights due and accruing to ASP Adolphus Andrew Eyinnaya in line with officers of his cadre from 2003 till his demise on the 27th February 2014 to the Applicant (sic). iii. AND or ALTERNATIVELY, pay the late ASP Adolphus Andrew Eyinnaya through the Applicant the sum of N50M (Fifty Million Naira) only as damages for wrong interference with his service in the Nigeria Police Force where he had served for more than thirty years. The Claimant filed a motion on Notice for Summary judgment brought pursuant to Order 10 Rule 1 and Order 11 Rule 7 of the Rules of this Court. The motion, filed on the 13th day of June 2014, is supported by an affidavit of 67 paragraphs deposed to by the Claimant herein, Exhibits and a Written Address, seeks the determination of the following questions: (i) Whether the Applicant is not entitled to recover for himself and on behalf of other members of Adolphus Andrew Eyinnaya (now deceased) family the amount due and accruing for the withheld salaries, gratuity and rights for the more than 33 years of service to the Respondents after he had been discharged from the offence of murder by His Worship O. Ikeorah (Mrs.) Chief Magistrate 1 in Charge No. MAS/360C/2003 pursuant to legal advice issued by the Director of Public Prosecutions (DPP) for and on behalf of the Commissioner for Justice and Attorney General of Abia State. (ii) Whether arising from the question one above, the Respondents continue to withhold the salaries, gratuity and other rights of the late Adolphus Andrew Eyinnaya on the account of murder for which he had been discharged by the Court and no appeal was made nor any appeal pending against the discharge. If the questions are answered in favour of the applicant, the Claimant/Applicant prays the court for summary judgment on the following reliefs: i. A declaration that the Respondents withholding of the salaries, gratuity and other rights of ASP Adolphus Andrew Eyinnaya now late, despite his discharge from the offence of murder in Charge No MAS/360C/2003 is wrongful and void. ii. An order directing the Respondents to forthwith release and effect payment of all withheld salaries, gratuity and all rights due and accruing to ASP Adolphus Andrew Eyinnaya in line with officers of his cadre from 2003 till his demise on the 27th February 2014 to the Applicant. iii. AND or ALTERNATIVELY, pay the late ASP Adolphus Andrew Eyinnaya through the Applicant the sum of N50M (Fifty Million Naira) only as damages for wrong interference with his service in the Nigeria Police Force where he had served for more than thirty times. In the written address in support of the Claimant’s application for summary judgment, Counsel raised the following two issues for the determination of the Court: (i) Whether the applicant is not entitled to be recalled and or reinstated into the services of Nigeria Police after he had been discharged from the offence charged in No. MAS/360C/2003. (ii) Whether the respondents can continue to withhold the salaries, promotions, benefits and other privileged of the applicant having been discharged from the offence charged in No. MAS/360C/2003 which judgment had not been appealed upon, nullified nor set aside. In arguing issues 1 and 2 together, Counsel for the Claimant submitted that a judgment of a court must be obeyed until set aside, over-ruled or nullified. He referred the court to the case of Louis B. Ezekiel Hart vs. Chief George I. Ezekiel Hart (1990) 1 NWLR (Pt. 126) P. 276 @ 279 where Nnaemeka Agu, JSC (as he then was) said “……obedience to orders of court is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence …. Disobedience to an order of court should therefore, be as an offence directed not against the personality of the judge who made the order but as a calculated act of subversion of peace, law and order in the Nigerian society. Obedience to every order of court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation”. Counsel referred the court also to section 72 of the Sheriffs and Civil Process Act. In Tomtec Nigeria Ltd. vs. F.H.A. (2009) 18 NWLR (Pt. 1173) 358 @ 365 S.C. the Supreme held that “where a party files or decides not to appeal against any decision of a court of law he is deemed to have accepted that decision and is bound by it P. 375 para. F – G. In the matter of Mrs. Edith Kerewi vs. Okoko Ochoigbo Abraham (2010) 1 NWLR (Pt.1176) 443 @ 448 it was held that “A decision of a court of competent jurisdiction no matter how seemingly unattractive, unsupportable or palpably null and void, remains good law, binding and enforceable until set aside by a Superior court of competent jurisdiction”. The court held the same position in the cases of BABATUNDE V. OLUTUNJI (2000) 9 NWLR (Pt. 646) 557; EZEOKAFOR vs. EZEILO (1999) NWLR (Pt. 619) 513, PP. 461 – 462 paras. H – A. In Ebaka Ebangi v. State (2010) 1 NWLR (Pt. 1176) 565 @ 569, “The court held that a judgment or ruling of a court is presumed to be valid and binding until it is set aside on appeal. In other words and order of a court of competent jurisdiction subsists until it is set aside”. In NTUFAM A. B. EYO vs. NTUFAM OJONG OKPA (2010) 6 NWLR 9 (Pt. 1191) 611 @ 616, it was held that: “until a decision of a court is appealed against and set aside on appeal, the decision remains subsisting and binding on the parties. A subsisting decision of a court operates as estoppel. Concluding, Counsel submitted that the order of the Magistrate in Charge No. MAS/360c/203 is valid, subsisting and binding, and that the respondents erred by withholding the applicants salaries and other right. He submitted further that the applicant having served the respondent for more than thirty years with clear record coupled with the pronouncement of the discharge by court, the applicant’s salaries, promotions and other privileges ought to be released by the respondents immediately he was discharged by the court. It was the further submission of Counsel for the Claimant as follows: The respondents are government organs that are established by law and ought to be the first to obey the law. They must be above board. Counsel went on that it is on record that from the day the court gave a judgment discharging the applicant of the offence charged, the respondents did not appeal the judgment. It is therefore clear, premised upon the judgment of Supreme Court in Tomtec Nig. Ltd. vs. F. H. A. (Supra) that the respondents are deemed to have accepted the judgment and ought to reinstate the applicant to his job and also release his rights. It ought not to withhold any right of the applicant a day longer. The applicant had written several letters of appeal to the respondents through self and his solicitors but the respondents had refused, neglected and/or failed to address the plight of the applicant. The applicant had deposed to the fact that Committee set up by the respondents after his discharge had directed him to await the committees report; till date the committees report is yet to be made available to the applicant. The applicant cannot wait in perpetuity. The applicant had gone through untold hardship, the academic pursuit of his children was greatly affected as some had to drop out of school due to his inability to pay their school fees. The applicant as at today has partial stroke. He can no longer make effective use of one hand and one leg. His speech is equally affected. The respondent will have nothing to lose by settling a man that has served his fatherland meritoriously for over thirty years. More so, as they are deemed to have accepted the discharge of the applicant of any offence. Counsel drew the Court’s attention to several attempts made by the solicitors to the applicant to have the various correspondence certified in accordance with the law which had been very extremely difficult. The copies of the various letters to the respondents are herein annexed in proof. In urging the Court to grant the Applicant’s prayers, Counsel submitted that this Court has the power under Order 10 Rule 1 of National Industrial Court Rules, 2007 to grant summary judgment in favour of the applicant as respondents have no defence whatsoever to the complaint of the applicant. He relied on the affidavit in support especially paragraph 13 to 65, the exhibits annexed, the written brief and the decided authorities cited thereof. On the 28th day of November 2014, the 3rd and 5th Defendants also filed a Statement of Defence. In opposition to the Claimant’s Motion for Summary Judgment, the 3rd and 5th defendants on the 28th day of November 2014, filed a Counter-Affidavit of 46 paragraphs deposed to by Michael Uzomnaka, a police Corporal deposing to facts to the effect that the Claimant’s averments were based on falsehood and deceit. No written address was filed along with the Counter Affidavit. By a Notice of Preliminary Objection dated and filed on the 28th day of November 2014, the 3rd and 5th Defendants sought the order of this court dismissing or striking out this suit on the following grounds: 1. The action is statute barred, having been filed outside 3 months period as provided by the Public Officers’ Protection Act. 2. That the Claimant on record in this suit has no locus standi to bring this suit against the 3rd and 5th defendants. 3. That the suit is incompetent. In support of the notice of preliminary objection is an affidavit of 5 paragraph deposed to by Michael Uzomnaku a police corporal, and a written address wherein counsel raised the following two issues for determination: 1) Whether this action is statute barred by virtue of Section 2(a) of the Public Officers Protection Act (Cap 379) Laws of the Federation of Nigeria 1990 and what is the effect of this action if it is statute barred. 2) Whether the applicant on record has a locus standi to bring this action against the 3rd and 5th defendants. In arguing issue one, Counsel for the 3rd and 5th defendants submitted that in determining whether a suit is statute barred or not, the court is expected to examine the Writ of Summons and the Statement of Claim vis-à-vis the date of filing the suit see CHIEF S. N. MUOMAH vs. SPRING BANK PLC (2010) ALL FMLR 1099. The legal principle of law is that where the law provides time for bringing an action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute. Counsel referred the Court to the case of NPA vs. LOCAUS PLASTIC LTD. (2005) 24 NSCLR at 569 and submitted that from the Writ of Summons and Statement of Claim of the claimant the matter complained of took place in 2003 more than 3 months after the cause of action arose. By Section 2(a) Public Officers Protection Act CAP 379 LFN 1990, “where any action, prosecution or other proceeding is commenced against any person for an act done in pursuance of execution on intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in execution of any such law, duty or authority, the following provisions shall have effect “the action, prosecution or proceeding shall not lie or be instituted unless it commenced within 3 months next after the leading thereof provided that if the proceeding be at the instance of any person for cause arising while such person was a convict, prisoner, it may be commenced within 3 months after the discharge of such person from prison. Counsel submitted that the claimant did not bring this action to the Court timeously. The action was brought against the 3rd and 5th defendants in pursuance of the official duty done by them and it was not brought within 3 months after the said actions. He urged the Court to strike out and/or dismiss the action. Where an action is statute barred, the effect is an order for dismissal. It was held in Lamina vs. Ikeja Local Government (1993) 8 NWLR (Pt. 314) 758 that where a court finds that an action is statute barred, such a finding is an end to the action and as at that stage of, the cause of action is not capable of re-litigation and the proper order is one of dismissal. In arguing issue two, it is the contention of Counsel for the 3rd and 5th defendants that the applicant on record Kingsley Iheanacho Enyinnaya has no locus standi to bring this action against the 3rd and 5th defendants. Counsel referred to the case of Attorney General of the Federation v. AG. Abia State and others (Citation not provided). Locus Standi raises the question whether the person whose standing in issue is the proper person to seek adjudication of the issue. According to Counsel, in the above case, the Supreme Court described locus standi as the legal capacity to institute, initiate or commence an action in a competent court of law. See Madukolu v. Nkemdilim (1962) 2 SCNLR 34, Ogbuechi v, Governors of Imo State (1995) 9 NWLR (Pt. 417) 53; Adesanya vs. Shagari (1981) 2 NCLR 358. The question to answer is whether there has been a breach of the civil rights and obligations of the claimant on record Kingsley Iheanacho Enyinnaya by the 3rd and 5th defendant to warrant him to approach the court for redress. In AG. Anambra State v. AG Federation (2007) 5 – 6 SC at 280 the court held that a party claiming a relief which on the facts is referable to another, such party has no locus standi. It is the contention of Counsel that substitution of claimant on grounds of death of his father is not known to law in an action for contract of employment. Finally, the claimant who failed to institute this suit within the time statutorily allowed, his right to bring this action have been extinguished by law. Counsel urged the Court to dismiss this suit in its entirety and award a substantial cost in favour of the 3rd and 5th defendants. In opposition to the 3rd and 5th defendants’ notice the Claimant on the 2nd day of December 2014, filed a Counter Affidavit of 17 paragraphs annexing Exhibits A to O thereto. In the accompanying Written Address, Counsel has formulated a sole issue for determination which is: Whether time has begun to run when the defendants had not released the report of the disciplinary panel it set up to look into the claimant/applicant’s case. Before the treatment of the lone issue formulated above, in response to the issue raised by the defendants on the issue of the late Enyinnaya having a murder case still hanging on him since he was discharged and not acquitted, Counsel submitted that the judgments and orders of a court of law whether good or bad is to be obeyed until it is set aside. In Onwegbu & Ors. Vs. Onuegbu (2001) FWLR (Pt. 75) 604 @ 616, it was held that order of court of competent jurisdiction must be obeyed as long as it subsists despite of irregularity or that it was void… A person who knows of a judgment whether null or void given against him by a court cannot be permitted to disobey it, his unqualified obligation is to obey it unless and until it is set aside. See also Vaswani Trading Co. vs. Savalakh & Co. (2000)FWLR (Pt. 28) 2174 @ 2180 Sc, Babatunde vs. Olatunji (200) FWLR (Pt. 5) 874 CA; Jikantoro & Ors. Alhaji Dantoro & Ors. (2004) 5 SC (Pt. 11) 1 @ 23 – 6; Anyaeze Chukweke & Anor vs. Okolie Ikoronkwo (1999) 1 SC P. 71. A ruling or order of court remains valid until set aside by a higher court. Balogun vs. Adejobi (1995) 2 NWLR (Pt. 376) pt. 131 @ 163 para. F – G. In Nwokedi vs. Okugo (2002) 16 NWLR (pt. 774) 441 @ 449 para A-G, the Supreme Court held that “a judgment not appealed against and/or set aside by a higher court is valid and subsisting”. The defendants by this application are indirectly asking the Court to set aside the Order of Court made in 2003 upon which he had voluntarily indicated intention to carry out further act which it had not finalized by way of release of the committee report. Counsel for the Claimant submitted that the late Asp. Enyinnaya was discharged and the discharge having not been set aside by a higher court stands until it is set aside. He went further that the late Enyinnaya remained an officer of the Defendants immediately and after the discharge. Counsel pointed out that the claimant herein by virtue of the amendment granted by this Court on the 28th day of May, 2014 brought and maintained this suit on the ground of being one of the beneficiaries to the estate of Late Asp. Andrew Adolphus Enyinnaya. He submitted that some rights of a deceased person is transferable to his beneficiaries. He urged the Court to so hold. By Exhibit B annexed to the motion on notice, late Enyinnaya was interdicted and suspended. The message goes further to state “the suspension of the officer from duty WEF.14/5/2003 x advise officer to comply with regulation on suspension while it last. This suspension did not state how long it will last so as to have enabled the deceased to take a firm decision or seek alternative remedy. According to Black Law Dictionary 5th Edition page 1297, “suspension” is defined as “a temporary stop, a temporary delay… temporary stop of a right, a partial extinguishment for a time. As contrasted with a complete extinguishment. The Oxford Advanced Learners Dictionary New 7th Edition page. 1492 defined suspension “as the act of delaying for a period of time, until a decision has been taken”. Counsel submitted that suspension implies that further action shall be taken on the subject matter and until such action is taken time cannot be said to have begun to run to as to determine when the cause of action arose. In arguing the sole issue formulated by Counsel, it is his submission that the suit is not statute barred as time had not begun to run. By suspension the Defendants directly informed the late Enyinnaya that a further step shall be taken in the matter hence he was not dismissed nor terminated but told to wait for the committee’s report. The claimant’s deceased father who instituted this suit before his demise was suspended from duty in 2003 pending the investigation/outcome of the allegation against him. Sometime in 2006 the Defendants in furtherance of the suspension set up a disciplinary committee and another committee in 2007; both committee had not released their report; despite several demands; the claimant was told to await the report. Counsel answered in the negative, a question which he said may arise here which is “should the claimant preempt the defendants for an action that had not been determined?” According to the Claimant, Exhibits A – L annexed to the affidavit opposing the Preliminary Objection goes to buttress the facts that the cause of action had not been determined; the steps taken by the defendant after the discharged in 2003 are clear evidence that the matter was ongoing and does not fall within the purview of statute barred case. A temporary or partial act of the defendants cannot be said to have brought finality to it. One may be compelled to ask further; what is the purport of the disciplinary committee set up in 2006 and 2007. To Counsel, the aim is to determine whether to dismiss, terminate, reinstate or retry the initial claimant; unfortunately despite all the letters to the defendants no formal reply had come forth till the commencement of this suit; will it then be justified for the defendants to turn around to allege that the matter is statute barred? Will this not be the height of injustice for a man who served his fatherland from 1975 and rose through the ranks till his demise in 2014, while waiting for the report of the committee set up by the Defendants, to be told that it is too late in the day to demand for his rights? The late Enyinnaya developed partial stroke as a result of the pain, agony and frustration the defendants put him in while waiting for the determination of his case. His health deteriorated so badly due to lack of care, he later developed a full scale stroke, losing the use of his hands, legs and speech as he could not afford the necessary medication before his demise. It was counsel’s further submission that the purport of the Limitation Act is not to protect or shield an officer or authority who acts wrongly. Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such Protection. Counsel cited the case of Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 @ 557. The Defendants set up disciplinary committee to investigate the purported offence of murder whose report is still being awaited; used his position to sit on the discharge Order of the court and with disregard to the legal advice of its, officer set up a committee. By this act the Defendants abused their power to achieve ends other than those for which power was granted. The Limitation Act cannot therefore protect them. In Hassan vs. Aliyu (Supra) the Supreme Court held that “Where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act” why will the Defendants commence the setting of disciplinary committee to put the claimant on trial after the court had discharged him without first appealing to set aside the Court order in a higher court if they had no intention of revisiting the claimant’s matter? Why did they refuse to release the report of its committee? To Counsel, these are Germaine questions that the defendants had failed to answer. Where a Public Officer fails to act in good faith or acts in abuse of office or maliciously or with no semblance of legal justification, he will not be protected. SPDCN LTD. vs. AMADI (2010) 13 NWLR (Pt. 1210) 82. It is the submission of Counsel for the Claimant that if the defendants had made out their report, the claimant would have had the option of ventilating his feeling by appealing the report or approaching the court in the exercise of his legal rights. These options the Defendants deprived him. Counsel urged the Court not to allow itself to be used to perpetrate injustice; and urged the Court to dismiss the Preliminary Objection in its entirety. Counsel pointed out that the defendants had been put on notice to produce all certified true copies of correspondences in her possession. Section 104 of the Evidence Act relevant to just and equitable determination of this suit states the requirements of a public document. The Claimant’s experience in the hands of the defendants to get some of his documents certified had been deposed to in the affidavit opposing the Preliminary Objection. See paragraphs 8(xiv) and 9. The original documents are in possession of the defendants; they had been put on notice to produce same. A party who is in the custody of a document and fails to produce same, the presumption in law is that the document will not be in its favour if produced. The Claimant applied for the Certified True copies of all correspondences relating to this matter. An officer of the 4th defendant stamped some of the documents with CTC stamp but vehemently refused to insert his name, designation, signature and date in line with the requirements of the Evidence Act despite all entreaties. See paragraphs 9(xii) and 10 of the counter affidavit. The defendants had been put on notice to certify the documents and/or produce the originals in their possession. Counsel submitted that the Court should refuse any objection to the tendering of all relevant documents in this matter; for the just and equitable judgment. It is the submission of Counsel that the court is a court of justice and no party should be allowed to lead the court to miscarriage of justice. He went further that the defendants should not be allowed to rely on the provision of Limitation law to mislead the court. Counsel submitted finally that this suit is not statute barred. Pre-action notice had been given to the defendants. See letter dated 30th May 2009 (Exhibits G & H). They failed, refused and/or neglected to heed the demand. The Claimant as one of the beneficiaries to the estate of his late father has locus standi to pursue this case. Counsel went on that this case is competent and he urged the Court to so hold, and dismiss the Preliminary Objection of the Defendant and hear the case on its merits. The foregoing summaries of the arguments of the respective learned counsels to the parties in their written addresses indicate that there are two applications for consideration and determination in this ruling. These are the 3rd and 5th defendants’ preliminary objection and the claimant’s motion for summary judgment. The 3rd and 5th defendants’ preliminary objection raises an issue affecting the jurisdiction of this court to entertain this suit. It is trite that once the issue of a court’s jurisdiction is raised, it must be settled first and timeously too before any other step is taken in the matter. See BABALOLA vs. OBAOKU-OTE (2005) 5 W.R.N 179 at 194. I shall therefore consider and determine the preliminary objection first before any consideration can be given to the claimant’s motion for summary judgment should this suit escape the hammer of the preliminary objection. The 3rd and 5th defendants’ preliminary objection is two-phased. The first ground is that this present suit is statute barred having not been filed within 3 months of the accrual of cause of action as prescribed by the Public Officers’ Protection Act, and the second is that the claimant has no locus standi to maintain the suit against the 3rd and 5th defendants. In the affidavit in support of the preliminary objection, it is deposed that this suit was filed on 14th Feb 2014 while from the claims, it is disclosed that the cause of action arose in 2003. The claimant’s suit is therefore statute barred. It is also deposed that Claimant has no locus standi to bring this action against the 3rd and 5th defendants. In his counter affidavit, the claimant averred that his father commenced this suit on 14/2/14 and upon the death of his father; he was substituted on 28/5/14 to continue the case. In paragraph 11, it is deposed by the claimant that he has locus to continue the suit on behalf of the family as beneficiaries of their late father. The claimant also maintained that the date of the cause of action is neither 2003 nor any date yet. His reason is that after his father was discharged of the offence of murder on 8th October 2003, his father wrote to the defendants on 21/10/2003 for his reinstatement and payment of his withheld salaries. His father was later invited to face a disciplinary panel and was told to await the report of the panel which he awaited up to the year 2009 that he instructed his lawyer to write to the defendants. Till the time his father filed this action, the defendants have refused to correct the wrong done to his father. With the two grounds of the Preliminary Objection in view, I shall first consider whether the suit is statute barred. In his written address in support of the Preliminary Objection, counsel to the 3rd and 5th defendant submitted that from the writ and the facts of the claimant’s case, the cause of action arose in 2003 and this suit was filed against the defendants, who are public officers, beyond the 3 months prescribed by section 2 (a) of POPA. Section 2 (a) of the POPA relied on by the defendants provides- 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 provision 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 implication of this provision is that an action against a public officer in respect of any act done in pursuance or execution or intended execution of any Act or Law or public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority can only be commenced within 3 months of the accrual of the cause of action except in the case of continuance of the damage or injury in which the complainant must institute the action within 3 months after the cessation of the damage or injury. In this case, there is no dispute that the defendants are public officers and this suit arose as a result of their alleged default to discharge their public duties to the claimant’s father, which is to reinstate the claimant’s father or pay his salaries and gratuities. Furthermore there is no dispute that this suit was filed on 14/2/14. From the facts of the claimant’s case, there is no doubt that the cause of action arose precisely on 8th October 2003 when the claimant’s father was discharged of the offence of murder for which he was suspended. In the counter affidavit, it is deposed that immediately after his discharge, the claimant’s father wrote the letter of 21/10/2003 to the defendants to re-instate him which did not happen till he died in 2014. Therefore, he had a cause of action the moment the defendant failed to re-instate him after his discharge by the court and he ought to have approached the court immediately the defendants refused to comply with his letter for re-instatement. If section 2 of POPA is applied, this suit ought to be statute barred having not been filed within 3 months from 8th October 2003. However, there are judicially settled and recognized exceptions to the application of section 2 (a) of POPA. The Supreme Court per Katsina-Alu JSC in the case of OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD. (2007) NWLR (Pt.1038) 66 that “the Public Officers’ Protection Act does not apply to cases of contract, recovery of land, breaches of contract or claims for work and labour done”. See also the case of FGN vs. ZEBRA ENERGY LTD. (2002) 18 NWLR (Pt. 891) 162 at 197 where the Supreme Court held that: “The Public Officers’ Protection Act does not apply in cases of recovery of land, breaches of contract and or for claims of work done.” See also the Court of Appeal in UNIVERSITY OF CALABAR TEACHING HOSPITAL VS. JULIET KOKO BASSEY (2008) LPELR-8553(CA) where it was held that the question of the applicability of section 2 (a) of POPA to claim for wages or salaries was settled 55 years ago in SALAKO vs. LEDB & ANOR (1953) 20 NLR 169, that the provisions of Section 2(a) of the Public Officers’ Protection Ordinance (now Act) do not apply in cases of recovery of land, breaches of contract, claim for work and labour done. This court too, in a number of its decisions, has maintained the position that claims for salaries or gratuity is not affected by section 2 (a) of POPA. A critical look at the reliefs sought by the claimant in this suit reveals that the claim falls in one of these exceptions. On 28th May 2014, I granted leave to the claimant to replace his deceased father who was the original claimant. I also granted leave to the claimant to amend the processes. In the affidavit in support of the application for substitution, it was deposed in paragraph 10 (a) particularly, that the claimant intends to be substituted for his father in respect of his father’s “withheld salaries, benefits and gratuity.” By his amended complaint filed on 13th June 2014, the claims were amended to the following- i. A declaration that the respondents withholding the salaries, gratuity and other rights of Asp. Adolphus Andrew Enyinnaya now late despite his discharge from the offence of murder in charge No. MAS/360C/2003 is wrongful, unlawful and void ii. An order directing the respondents to forthwith release and effect payment of all withheld salaries, gratuity and all rights due and accruing to Asp. Adolphus Andrew Enyinnaya in line with officers of his cadre from 2003 till his demise on 27th February 2014 to the applicant. iii. And or alternatively, pay the late Asp. Adolphus Andrew Enyinnaya through the applicant the sum of N50m (Fifty Million Naira) only as damages for wrong interference with his service in the Nigeria Police Force where he has served for more than 30 years. From the foregoing claims, it is clear that the claim is no more than claim for the withheld salaries and the gratuity the claimant’s deceased father which he was entitled to as a result of his services to the defendants. It is my view that the Claimant’s case falls under the allowable exceptions of work and labour done. I therefore hold that Section 2 of the Public Officers Protection Act does not apply to this case. This suit is not statute barred. I now turn to the second aspect of the Preliminary Objection. It is the 3rd and 5th defendants’ contention that the claimant has no locus standi to bring this action against the 3rd and 5th defendants. In his written address, the counsel to the 3rd and 5th defendants submitted that the claimant has not shown any way that that his civil rights and obligation has been breached by the 3rd and 5th defendant as to give him a cause of action against them in this suit. Counsel further cited AG ANAMBRA vs. AG FEDERATION where it was held that a party claiming a relief which on the facts is referable to another, such a party has no locus standi. Therefore, counsel went on, that the substitution of the claimant for his deceased father in respect of a contract of employment is unknown to law. I must straight away express my disagreement with the defendants counsel on his arguments in respect of this 2nd leg of his objection. In the averments in the statement of facts, the claimant’s father was described as member of the Nigeria Police Force since 1975 and rose to the rank of ASP before his suspension. The 3rd and 5th defendants were respectively described as head of the Police Formations throughout Nigeria and head of the Police Command, Abia State where the claimant’s father served before his suspension. These averments clearly establish a supervisory role of the 3rd and 5th defendants over the claimant’s father’s employment in the police force. In the amended claims after the substitution of the claimant for his deceased father, he claims for his father’s withheld salaries and gratuity. In paragraph 1 of the Statement of Facts, it is averred that the present claimant is the first son of Adolphus Enyinnaya (deceased) and in paragraph 9 it is averred that the amended claims survive the deceased and the claimant, who is the next of kin of the deceased, has the consent of the other children of the deceased to continue the suit. From the foregoing, the claim is for outstanding salaries and gratuity. The claimant has said they are the next of kin of the deceased. They are entitled to inherit him. His gratuity and outstanding salary form part of his estate and the claimant is entitled to sue to recover same. An action to recover a deceased person’s monetary entitlement from his employment can be maintained by the deceased’s legal or personal representatives. In AROWOLO vs. AKAPO (2007) All FWLR (Pt. 345) 20 at 206, it was held that a person to whom a deceased interest in the subject matter of the proceeding has been transmitted on the death of the party can be substituted in the stead of the deceased. Therefore, since there was a relationship between the deceased and the 3rd and 4th defendants and this suit is to claim for the deceased entitlements, I hold that the claimant has locus standi to maintain the suit against the 3rd and 5th defendants. In the result, I find no merit in the preliminary objection. It fails completely and ought to be dismissed. Pursuant to Order 10, Rule 1 of the rules of this court, the claimant brought an application, filed on 13th June 2014, for summary judgment on these reliefs- i. A declaration that the respondents withholding the salaries, gratuity and other rights of Asp. Adolphus Andrew Enyinnaya now late despite his discharge from the offence of murder in charge No. MAS/360C/2003 is wrongful, unlawful and void ii. An order directing the respondents to forthwith release and effect payment of all withheld salaries, gratuity and all rights due and accruing to Asp. Adolphus Andrew Enyinnaya in line with officers of his cadre from 2003 till his demise on 27th February 2014 to the applicant. iii. And or alternatively, pay the late Asp. Adolphus Andrew Enyinnaya through the applicant the sum of N50m (Fifty Million Naira) only as damages for wrong interference with his service in the Nigeria Police Force where he has served for more than 30 years. In the affidavit in support of the application, an account of the ordeal of the claimant’s father up to the time of his suspension from the Police Force and his discharge by the court for murder was given. It was deposed that based on that suspension, the salaries and other benefits of the claimant’s father was withheld since June 2003 till the time of his death in February 2014. The 3rd and 5th defendant have opposed the application for summary judgment and in their counter affidavit, the facts relied on by the claimant to found the application were controverted. The 3rd to 5th defendants have urged that the application be refused as, from the facts, the defendants will be prejudiced if the application is granted. Summary Judgment proceeding in this court is provided in Order 10 of the rules of this court. Rule 1 thereof provides thus- “Where a claimant believes that there is no defence to the claim, an application for summary judgment supported with an affidavit stating the grounds for the belief shall be filed along with the originating process. The application shall be accompanied with the statement of facts, any exhibit and a written brief.” By this provision, a claimant commencing action in summary judgment is mandated to commence the proceeding by filing the originating Complaint together with the application for summary judgment. The complaint in this suit was not filed with intent to be a summary judgment proceeding. This suit was originally commenced by a Compliant on 14th February 2014 and it was not until 13th June 2014 that this application for summary judgment was filed along with the amended complaint. Under the Rules, the application for summary judgment, supported with an affidavit, shall be filed along with the Originating complaint. This was not the case here. By this application, it appears the claimant is seeking to convert the proceeding to one under summary judgment. It is trite law that where a law or practice procedure prescribes a mode of commencing a particular proceeding, it would be wrong for a litigant to seek to adopt a different approach to it. The claimant has failed to comply with the rules of this court on the mode of commencing action under the summary judgment proceeding. The motion for summary judgment is therefore, in my view, incompetent. Be that as it may, I have taken a look into the substance of the application and the affidavit evidence of the parties in respect of the application. I find there from that the nature of this case is not one to be granted on a summary judgment basis. There are disputes of facts between the parties. In such a situation, summary judgment proceeding is hardly applied. In U.T.C NIG. LTD vs. PAMOTEI (2002) FWLR (Pt. 129) 1557 at 1610, the Supreme Court considered the provisions of Order 10 of the High Court of Lagos State (Civil Procedure) Rule 1973, which is pari materia with Order 10 of the rules of this court and held- “The rationale of the order 10 procedure is for straight forward cases which are legally incontestable and to enable speedy trial of claims which in law ought not to be contested because the legal situation is too clear to allow a defence. Hence where the defendant is able to show he has a good defence or that the claim cannot be decided without going into trial, judgment cannot be entered for the plaintiff in the manner endorsed on the summons.” Also in PROGRESS BANK PLC vs. CONTACT POINT HOLDINGS LTD (2001) FWLR (Pt. 52) 2093 at 2103 it was held that summary judgment should not be given unless the defendant’s defence is vague and lacking in substance. Where the facts presented by the parties are diametrically opposed, the court should afford the parties equal opportunity to canvass their case. Therefore, in appropriate cases, the court should take oral evidence to resolve the issues between the parties. This is the purport of order 10 rule 5 (1) which provides that “Where it appears to the court that a party has a good defence and ought to be permitted to defend the claim such party may be granted leave to defend.” I have looked at the statement of defence of the 3rd and 5th defendants and I find that their defence is plausible and it raises triable issues. The defendants have extensively traversed the claimants claims such that the facts averred in the defence answer the points or questions or allegations raised in the statement of facts. Therefore, I am of the view that from the facts of this case, the justice of the case will be better served if the defendants are given leave to defend the claim. I do not see how the issues raised by the parties can be decided without going into trial of the case. It is for this reason also that the application for summary judgment fails. In the sum of this ruling, both applications fail and are hereby dismissed. This suit will proceed to hearing. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge