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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 10, 2015 SUIT NO. NICN/EN/92/2012 Between 1. OGUGUO SYLVALINE .I. 2. NWOSU CHINONSO 3. ORIWARI EKELEDIRICHUKWU. A. 4. DUAKA FLORENCE. F. 5. DURUEWURU MADELEINE. U. 6. OTI-ONYEMA LINDA. A. 7. ONYEAKOSI GODSTIME. C. 8. ANASOH SYLVERLINE. A. 9. CHUKWU STELLA. C. 10. NJOKU CHIEMEBERE. I. 11. DIKE CHINASA. N. 12. ANTONIETTE. C. ONYEUKWU 13. EGWUNWOKE CHIKA. P. 14. OTTIH MICHAEL. C. 15. OKORO JUDE. T. 16. NWANERI TIMOTHY. A. 17. ELENWOKE NWABUEZE. A. 18. OKEKE LILIAN. I. CLAIMANTS/RESPONDENTS 19. UGWUMBA IJEOMA. L. 20. OKOLIE JENNIFER. I. 21. NWACHUKWU OBINNA. E. 22. EHIRIM JOHNSON. O. 23. OKONKWO REBECCA. C. 24. IBEH CHIDI. J. 25. ALOZIE EVANGELINE. O. 26. EZEKWEM STANLEY. E 27. ONYEANWUNA CHIKAODI. I. 28. OBIOMA CHIDINMA. M. 29. OLUMBA CHKWUEMEKA. M. 30. NWOSU PRISCA. S. 31. ONYEOZIRI CHIDI 32. UDUNWA SYLVERLINE. C. 33. KORIE NKEIRUKA H. 34. NKWOH DORIS. C. 35. EZEALA ONYINYECHI. I. 36. AHUBELEM ADAUGO. C. 37. ONUKA VIVIAN. A. 38. OKPARA CHIDINMA. J. CLAIMANTS/RESPONDENT 39. UGBOAJA NKECHI. Y. 40. ABALA NDIDI. R. 41. UCHE-OHIA NDIDAMAKA. C. 42. IBEH ROSEMUND. O. 43. OGBOKIRI ROSE. N. AND 1. GOVERNOR OF IMO STATE 2. THE GOVERNMENT OF IMO STATE DEFENDANTS/APPLICANTS 3. ATTORNEY GENERAL OF IMO STATE 4. IMO STATE CIVIL SERVICE COMMISSION Representation: G. E. Edede for the Claimants/Respondents E. O. Onyema for the Defendants/ Applicants. RULING/JUDGMENT The claims of the Claimants as expressed in the amended complaint dated and filed on the 27th day of February 2013 are as follows:- (i) A Declaration of the Honourable Court that the Claimants are entitled to payment of their salaries, allowances and other emoluments/benefits reflecting the new salary scale/minimum wage for officers in their cadre in the Ministry of Justice Imo State within jurisdiction. (ii) A Declaration of the Honourable Court that the cessation of payment of the Claimants’ Salaries, Allowances and other emoluments/Benefits by the Defendants is unjust, wrongful, illegal and unconstitutional. (iii) An Order of the Honourable Court compelling the Defendants to pay to the Claimants all their Salaries, Allowances and other emoluments/benefits reflecting the new salary scale/minimum wage for officers in their cadre in the Ministry of Justice Imo State from June, 2011 till the services of the Claimants are legally dispensed with. (iv) An Order compelling the Defendants to pay to each of the Claimants other than the 15th, 16th, 17th, 21st, 24th, 25th 38th, 41st, 42nd and 43rd Claimants the sum of N337,678.86 per month from June 2011 until their services are legally dispensed with. (v) An Order compelling the Defendants to pay to each of the 15th, 16th, 17th, 21st, 24th, 25th 38th, 41st, 42nd and 43rd Claimants the sum of N342,678.86 per month from June 2011 until their services are legally dispensed with. (vi) The sum of N500,000,000.00(Five Hundred Million) Naira being damages for the humiliation, hardship, emotional trauma suffered by the Claimants as a result of the illegal acts of the Defendants. By a Motion on Notice dated 1st July 2014 and filed on 16th September 2014, and brought pursuant to Order 11 Rule 1(1) of the National Industrial Court Rules, 2007 and under the inherent jurisdiction of the Honourable Court as preserved by Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, the defendants/applicants are praying for an order of this Court dismissing this suit for being statute barred, and for such order(s) as the court may deem fit to make. The motion is supported by an affidavit of 7 paragraphs upon which the applicants have placed reliance. In their Written Address in support of the application, the Defendants/Applicants have nominated a sole issue for the consideration of the court, which is “Whether this is statue barred having regard to the provisions of the Public Officers Protection Act.” The Defendants/Applicants had duly and specifically raised the issue of this suit being statute barred in paragraph 12(a) of their Statement of Defence. The Defendants have now, following the adduction of evidence by the Claimants, filed this application praying the Court to dismiss this suit for being statute-barred. In arguing the sole issue, counsel for the applicant submitted that a challenge to the competence of an action on the ground that the action is statue barred is, unarguably, a challenge to the jurisdiction of the Court to entertain the action. The question therefore is; at what stage of the proceedings can such challenge be raised? The Supreme Court per, Uwaifo JSC, answered this poser in N.D.I.C. vs. CENTRAL BANK OF NIGERIA (2002) 95 LRCN 389 @ 400 – 401 as follows: “It is now beyond argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal….It is plain from the authorities that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be delay in raising it…..It depends on what materials are available. It could be taken on the basis of the Statement of Claim……it could be taken on the basis of the evidence received…, or by motion supported by affidavit giving the full facts upon which reliance is placed …But certainly it could be taken on the face of the Writ of Summons where appropriate.” See also COMFORT V. ALMO GASES LTD. (2006) ALL FWLR (Pt. 335) 93 @ 103. The present objection that this suit is statute barred is premised not only upon the facts contained in the Statement of Facts but also upon the established facts as contained in the clear evidence on record as already given by the Claimants. The court is therefore entitled to resort to both sources of facts as any doubt concerning any relevant fact on this issue has been cleared by the evidence given and relied upon by the Claimants themselves. See: UNIVERSITY OF JOS vs. IKEGWUOHA (2013) 224 LRCN (Pt. 1) 169 @ 182 -183; SAVANNAH BANK LTD. vs. PAN ATLANTIC SHIPPING & TRANSPORT CO. LTD (1987) ANLR 42 @ 102-105. In the instant case it is not in dispute that this suit was commenced by a Complaint filed by the Claimants on 21/5/2012. In the same manner, a perusal of the court processes also shows that the four Defendants on record, namely: (1) The Government of Imo State; (2) The Government of Imo State (3) The Attorney General of Imo State and (4) The Imo State Civil Service Commission are Public Officers within the purview of the Public Officers Protection Act. This is so because, it is now settled law that “Public Officers” for the purposes of the Act include both natural and artificial persons. See: IBRAHIM vs. JUDICIAL SERVICE COMMISSION (1998) 64 LRCN 504; OFFORBOCHE vs. OGOJA LOCAL GOVT (2001) 90 LRCN 2782 @ 2798 -2799. By the provisions of Section 2 of the Public Officers Protection Act, it is provided that any action, prosecution or other proceedings against any Public Officer in respect of any act or any alleged neglect or default done or made in the pursuance or execution of any law or public duty or authority must be commenced within three (3) months of the act, neglect, or default complained of. What then is the cause of action of the Claimants in this suit? In EGBE vs. ADEFARASIN (NO. 2) (1987) 1 NWLR (Pt. 47) 1 @ 20 Oputa JSC defined a cause of action as follows:- “Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.” According to Counsel for the applicants, a perusal of the Claimants Statement of Facts, evidence and reliefs claimed shows without equivocation that the factual situations relied upon by the Claimants as the reason for this suit is that they were given probationary employment as civil servants, but that in June, 2011, while the probationary period was still running, the Defendants not only stopped the payment of salaries to them but also stopped assigning duties to them. The Claimants therefore filed this action to have the actions of the Defendants declared as illegal and unconstitutional. The Claimants’ suit is therefore one complaining about a breach of their alleged contract of employment. See: SHELL PETROLEUM CO. LTD vs. IFETA (2001) FWLR (pt. 80) 1614 @ 1628 – 1629; OPUO vs. NNPC (2002) FWLR (pt. 84) 11 @ 25; WAYO vs. JUDICIAL SERVICE COMMISSION, BENUE STATE (2006) ALL FWLR (pt. 302) 66 @ 81, 87. Having identified what the cause of action of the Claimants is, the next question is: when did the Claimants cause of action in this case arise? In EBOIGBE vs. NNPC (1996) 6 SCNJ (Pt. 1) 71 @ page 78; (1994) 5 NWLR (Pt. 347) 649, Adio JSC stated thus: “The cause of action, generally, accrues on the date on which the incident giving rise to the cause of action occurs…” Furthermore, the Supreme Court in IWEKA vs. S.C.O.A. NIG. LTD (2007) 76 LRCN 572 @ 592 held, per Onu JSC, as follows:- “It is settled law that in actions for breach of contract, the cause of action accrues for the plaintiff’s benefit from the time the breach is committed and not when the damage is suffered….. thus the period of limitation begins to run from the date the cause of action accrues.” In the instant case, the averments contained in the Statement of Facts filed the Claimants as well as the unequivocal evidence given by the 1st and 15th Claimants while under cross-examination as CW1 and CW2, show with certainly that the Claimants’ cause of action arose in June 2011 when the Defendant stopped paying the Claimants salaries and stopped assigning duties to them. It is also not in dispute that the Claimants commenced this action by a complaint filed on 21/5/2012. In view of the foregoing, Counsel for the applicants submitted that even if the cause of action is taken to have accrued on the last day of June 2011, it follows that counting from the 1st day of July 2011 to the 21st day of May, 2012, this suit was filed 10 months and 21 days after the accrual of the cause of action. This is clearly outside the period of 3 months stipulated by Section 2 of the Public Officers Protection Act. It is submitted therefore that this action is manifestly statute-barred. See: SANI vs. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL (2008) 164 LRCN 117; YARE vs. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) 219 LRCN (Pt. 2) 53 What therefore is the consequence for a party who fails to file his action within the time frame prescribed by law? In EBOIGBE V. NNPC (1996) 6 SCNJ (pt.1) 71 @ 78; the Supreme Court per Adio JSC stated the law as follows: “ an action commenced after the expiration of the period within which an action must be brought, stipulated in a statute of limitation is not maintainable… In short, when the Statute of Limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.” Following from the above, the further question arises: What is the effect on the jurisdiction of the court where an action before it is shown to have been filed outside the prescribed statutory period. In RALEIGH INDUSTRIES (NIG.) LTD vs. NWAIWU (1994) 4 NWLR (Pt. 34) 760 @ 772, the Court of Appeal held as follows:- “Once an action is caught by the Limitation Act, the court has no jurisdiction to entertain the matter. There is a feature in the case which prevents the court from exercising its jurisdiction and further the condition precedent to the exercise of jurisdiction is not fulfilled.” See: also COMFORT vs. ALMO GASES LTD (2006) All FWLR (Pt. 335) 93 @ 103. In view of all the foregoing, it is clear that upon the facts disclosed in this suit, this action ought not be allowed to continue as the same is statute barred and the Court lacks jurisdiction to continue hearing the same. In WESTMINISTER BANK LTD vs. EDWARDS (1942) 1 All ER 470 @ 472, Lord Wright stated the law as follows:- “Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent.” In same view, in WILLIAMS vs. WILLIAMS (1995) 27 LRCN 147 @ 162, the Supreme Court stated as follows- “Where therefore, it is obvious from the facts before the court that no further proceedings would help a case, there is inherent jurisdiction in the court to dismiss or strike out the claim as the case may be on submission made to it….” Counsel urged the Court to resolve the sole issue for determination in the affirmative by holding that this suit is statute-barred and therefore the Court lacks jurisdiction to continue hearing the same. As to the proper order which the Honourable Court should make in the circumstances of this case, the Supreme Court stated the law in NIGERIAN PORTS AUTHORITY PLC vs. LOTUS PLASTIC LTD (2006) 134 LRCN 549 @ 579 as follows:- “In this respect, the action of the 1st Respondent against the appellant which was statute barred could not have been properly and validly instituted. The action was therefore not maintainable. To this end, the position of the law is trite. Where a defendant raises a defence that the Plaintiff’s action is statute barred and the defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the Plaintiff’s action and not to merely strike it out.” The Claimants/Respondents in opposition have filed a counter affidavit deposed to by the 1st claimant, upon which they have placed reliance as the factual basis for opposing the application. According to Counsel for the Claimants/Respondents, the basis of the application is paragraph 6 of the supporting affidavit where the Defendants counsel’s clerk deposed as follows:- “That counsel for the Claimants, Chief E. O. Onyema informed me in our Chambers on 1/7/2014 and I verily believe him as follows (a) That both in their Statement of Facts and the evidence already given in proof of their case in the course of hearing, the Claimants admitted that the cause of action in this suit arose in June 2011. (b) That the Defendants in paragraph 26 of their Statement of Defence gave notice of their intention to raise objection to the competence of this suit and the jurisdiction of the Honourable Court to entertain the suit on the ground that the suit is Statute Barred under the Public Officers Protection Act. (c) That this action is Statute Barred and the Honourable Court lacks jurisdiction to entertain the same. (d) That it is in the interest of justice to dismiss this suit. It is the submission of Counsel to the Claimants/Respondents that paragraphs 6 (a) (b) (c) and (d) of the supporting affidavit which constitute the basis of the application are in breach of the provisions of Section 115 of the Evidence Act which provides that:- 1. Every affidavit used in the court shall contain only a statement of facts and circumstances to which a witness deposes either of his own personal knowledge of from information which he believes to be true. 2. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion. 3. When a person deposes his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. 4. When such is derived from information received from another person, the name of his informant shall be state, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.” It is because of these provisions (Sections 86, 87, 88 and 89 of the Evidence Act 2004) that it has been held that an affidavit used in court must, as much as possible conform to oral evidence admissible in court, since such affidavit itself is evidence. Therefore matters which counsel would have addressed the court on during his submissions cannot be legitimately deposed to in an affidavit. It makes no difference that what is relied upon is the opinion of counsel who is familiar with the facts, because if the lawyer himself cannot be permitted to make the deposition, the person to whom he passes the opinion cannot, a fortiori be allowed to depose to it. NIGERIA LNG. LTD vs. A.D.I. LTD (1995) 8 NWLR Pt. 416 pp.699, 700 AND 701. In BAMAIYI vs. THE STATE (2001) 8 NWLR Pt.715 Pg. 270, the Supreme Court put the matter this way: “The test of doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument; or it may be a conclusion upon an issue which ought to be left to the discretion of court either to make a finding or reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact In dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach”. Given the foregoing, Counsel submitted that the offensive paragraphs 6(a) (b), (c) and (d) of the supporting affidavit ought to be struck out. The application would then collapse. If this contention of counsel is accepted by the court, the Claimants would then rely on the dictum of Oputa JSC in SAVANNAH BANK NIGERIA LTD vs. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD & ANOR. (1987) All NLR Pt. 42 @ 101-1-2 to urge the court to dismiss the application. “A limitation law does not operate in vacuo. No! Secondly, it is the defendant who ought to plead and prove that the action is statute barred. This will surely lead to a consideration of the facts or combination of facts which gave the plaintiff the right to sue. This may be a wrongful act or a wrongful act with a consequential damage to the plaintiff. Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with the limitation statutes to determine the precise date upon which the cause of action arose. Without this basic fact it will be impossible to Compute the time. Thirdly since the defendant Is the party relying on the ‘defence of limitation’, the onus is on him to establish when the cause of action accrued to the plaintiff. It is not enough to plead a particular date for if that date is not admitted by any reply of the Plaintiff to the defendant’s Statement of Defence, then there is nothing on which the necessary assumption can be made” Counsel made further reference to the views expressed in the case of LANRE vs. OLORUNTOBA (2005) FWLR Pt. 249 P. 1007 to the effect that:- “It must be noted that the onus is on the appellants to prove that the respondent as in breach of the Statute of limitation and the only way known to law by which that is done is by productions of evidence. The absence of such evidence in this case must result in the irresistible conclusion that the appellant failed to discharge the burden placed on them by law. That is granted that they plead the act which is denied” It is the Claimants’ contention that given the circumstances of this case the Defendants have failed to discharge the burden of proving that the Claimants’ action is statute barred. See (1) U.D.F.U. vs. BALOGUN (2006) 9 NWLR Pt. 984 Pg. 124 (2) N.I.I.A. vs. ANYAFOLU (2007) 2 NWLR Pt. 1018 Pg. 246 The Claimants agree that the issue of statute bar ultimately dovetails into an issue of jurisdiction, and that the court is entitled to have recourse to the pleadings and evidence given by the Claimants. Therefore, counsel is in agreement with paragraphs 3.02 and 3.03 of the Defendants’ written address. Counsel however submitted that the Defendants have misconceived the actual nature of the Claimants’ cause of action. The contentions of the Defendants in paragraphs 3.04 – 3.07 of their written address are to say the least simplistic and have not properly appreciated the case on the pleadings and the applicable law. Section 2 of the Public Officers Protection Act provides that:- “2 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 of Law or of any public duty or authority, or in respect of any alleged neglect or default in execution of any such Act, Law, duty or authority, the following provisions shall have effect; a. The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of 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” According to the Counsel, the entirety of the case of the Claimants including their pleadings and evidence reveal that this is a case of continuance of damage or injury which has not ceased and consequently, time cannot run until the damage or injury ceases. To the Claimants, it is for this reason that part of their reliefs sought are open ended and contingent upon when the Defendants legally dispense with the Claimants’ services. See reliefs (iii) (iv) (v) in the complaint. It stands to reason therefore that the contention that the cause of action in this case arose in June 2011 in misconceived. Counsel for the Claimants contend that denial of entitlement for work done is a continuing damage or injury for which a fresh cause of action arises from time to time as often as damage is caused. In the case of AREMO II vs. ADEKANYE (2004) All FWLR (Pt. 224) Pg. 2113. The following views were expected:- “Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some fresh cause of action arises from time to time, as often as damage is caused. Battishill vs. Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in inquiry gives a fresh cause of action: Darley Main Colliery Co. vs. Mitchell (1886) 11 App Cas 125; West Leigh Colliery Co. Ltd. vs. Tunnidiffe Hanepson Ltd. (1908) AC 27; See Hasbury’s Laws of England 4th Edition Vol. 28, paragraph 821” According to the Claimants, there is specific and unchallenged evidence before the court that their “Claim relates to act of the Defendants which are actuated by bad faith, malice and utter abuse of office and that the injury to them is continuing”. See paragraph 9 of the 1st Claimant’s deposition filed on 27th February 2013 and paragraph 6 of the Reply to the Statement of Defence. It is Counsel’s submission that time does not run until a cause of action is complete LAFIA LOCAL GOVT. vs. NASARAWA STATE (2012) 17 NWLR Pt. 1328 Pg. 94. Counsel urged the Court to bear in mind that case law also recognizes the exception that where the injury complained of is a continuing one; time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words “Continuance of injury” means the continuance of, or repeat of the act which caused the injury. See:- ALHASSAN VS. ALIYU & ORS. (2009) LPELR – 8340; ABIODUN VS. ATTORNEY GENERAL OF THE FREDERATION (2007) 15 NWLR PT. 1057 P. 351. In CENTRAL BANK OF NIGERIA vs. AMAO & ORS. (2010) 16 NWLR Pt. 1219 P. 271, the Supreme Court put the matter this way:- “The above provision is very clear and unambiguous. It provides simply that an action against a public officer in respect of any act done in pursuance or execution of any Act or Law or public duty or default in same can only be commenced within three months next after the act, neglect or default complained of except in a case of continuance of damage or injury in which the person aggrieved must institute the action within three months next after the cessation of the damage or injury complained of” AND Both parties have not disputed the fact that the issue concerns the monthly payment due to the respondents. The appellant pays monthly pensions to the respondents less than what is provided in the White Paper and the two circulars every month thereby leaving part of their entitled monthly pension unpaid. This clearly demonstrates the fact that the cause of action in the circumstance arises every month when appellant pays less pension to the respondents than their full harmonized pensions, which appellant had agreed to pay. It is therefore very clear that there is continuance of injury the cessation of which cannot be determined as long as the respondents live and are paid their monthly pensions other than as harmonized. There is therefore no way by which one can calculate the “three months next after the ceasing thereof……” It follows therefore that each month that the respondents are paid pensions less than the harmonized pensions, a cause of action arises in respect of the balance or sum outstanding. I therefore agree with the lower courts that the provisions of section 2(a) of the Public Officers Protection Act does not apply to the facts of this case and consequently resolved the issue against the appellant” In applying the above decision of the Supreme Court, it is clear that a fresh cause of action arises each months commenting from June 2011 on which the Defendants denied the Claimants their salaries and allowances. The event leading to the cause of action is the denial of the Claimants’ monthly emoluments. The repeated denial on a monthly basis which warranted reliefs (iii), (iv) and (vi) clearly brings out the continuing nature of the injury. Section 2(a) of the Public Officers Prosecution Act acknowledges the fact that in cases such as the Claimants, time would not run until the ceasing of the injury. It is therefore submitted that the Claimants’ cause of action is not and cannot be statute barred as the injury is a continuing one. Counsel identified yet another problem associated with this application. In the case of FAJIMOLU vs. UNILORIN (2007) 2 NWLR Pt. 1017 Pg. 94, the court took the view that:- “Where the protection is not raised as a shield in Limine and is merely pleaded and issues are joined and evidence led on it by the parties, the trial court is entitled to examine the circumstances under which the cause of action or the act complained of was performed in order for it, in determining liability, to decide whether the protection has been vitiated by malice or bad faith” According to Counsel for the Claimants, the Defendants did not raise the issue of the applicability of the relevant provision of the Public Officers Protection Act in–Limine, but merely pleaded it and allowed the Claimants to lead evidence of malice and bad faith. See paragraph 11 of 1st and 15th Claimants’ deposition of 27th February 2013, and paragraphs 4, 5, 7, 8 and 9 of the 1st Claimant’s deposition filed in aid of the reply to the Statement of Defence including certified true copies of the two Announcer Express Newspapers of Monday 13th – 14th June 2011 and Monday 4th – March 5th 2013 received as exhibits already. The court is thus under a duty to consider the evidence led by the Claimants on record on the bad faith and malice of the Defendants, because, once it is shown that the Defendants did not act in good faith, devoid of any malice, the protection becomes non-existent. See: HASSAN vs. ALIYU (2010) 17 NWLR Pt. 1223 P. 549; IBETO vs. A.G. FED. (2008) 1 NWLR Pt. 1069 P. 470; EGBE vs. ALHAJI (1990) 1 NWLR Pt. 128 Pg. 546; UNILORIN vs. ADENIRAN (2007) 6 NWLR Pt. 1031 Pg. 498; ANOZIE vs. A.G. FED. REP. OF NIGERIA (2008) 16 NWLR Pt. 1095 Pg. 278; SULGRAVE HOLDINGS INC. vs. F.G.N. (2012) 17 NWLR Pt. 1329 Pg. 309. In submitting that the application lacks merit, Counsel stated that the court must consider the unchallenged evidence of the Defendants’ malice bad faith and ultra-vires act which already exist on record. The court cannot shut its eyes to the evidence, as the Defendants wish. See EGBE vs. ALHAJI (1990) 1 NWLR Pt. 128 Pg. 546 @ 572 TO 573; NWANKWERE vs. ADEWUNMI (1967) NWLR 45. Counsel concluded by submitting that the application has no merit. In their reply on points of law filed in reaction to the Claimant’s address, the Defendants submitted that certain submissions made by the Claimants’ Counsel in the said Written Address are inapplicable to the circumstances of this suit and should therefore be discountenanced. Firstly, Counsel submitted that the averments contained in paragraph 6 of the Supporting Affidavit do not offend any of the provisions of Evidence Act. The said paragraph contains clear Statement of Facts. The deponent also stated therein the source of her information. There is nothing in the said paragraph 6 of the Supporting Affidavit that offends Section 115 of the Evidence Act, 2004. Furthermore, the facts upon which the issue raised in this application can be decided are not dependent upon the said paragraphs of the supporting affidavit. Indeed, in paragraph 12 of the Written Address of the Claimants ‘counsel, at page 8 thereof, Counsel stated as follows:- “We also agree that the Court is entitled to have recourse to the pleadings and evidence given by the Claimants”. Therefore, in resolving the issue as to whether this suit is statute barred or not, what the Court will have recourse to are the pleadings and evidence of the Claimants and not the averments in paragraphs 6 of the Supporting Affidavit. See: UNIVERSITY OF JOS vs. IKEGWUOHA (2013) 224 LRCN (Pt. 1) 169 @ 182 – 183. The pleadings and evidence of the Claimants show unequivocally that their cause of action in this suit arose in June 2011 when the Defendants ceased to pay them salaries and stopped assigning work to them, thereby stopping their employment. The argument of the Claimants’ Counsel that the case of the Claimants is a “case of a continuance of damage or injury” is misconceived having regard to the nature of the case presented by the Claimants. The basis of the claim of the Claimants as contained in paragraph 7 of their statement of facts is that the Defendants “Suddenly stopped the payment of the agreed salaries and allowances in June 2011 contrary to the contract of employment between the Claimants and the Defendants”. It is upon this basis, that the Claimants in paragraph 12 (ii) of the Statement of Facts claimed the following principal relief:- “A declaration of the Honourable Court that the cessation of payment of the Claimant’s salaries, allowances and other emoluments/benefits by the Defendants is unjust, wrongful illegal and unconstitutional”. According to Counsel for the applicants, the other reliefs claimed by the Claimants are ancillary and dependent on the success of the above reliefs No. II. Furthermore, in the course of their evidence the Claimants affirmed that their cause of action arose in June 2011 and further stated that since the said June 2011, the Defendants stopped assigning duties to them. As to what constitutes “Continuance of injury or damage” in the context of the Limitation Law, this Court in its judgment delivered on 28/4/2014 in Suit No: NICN/OW/38/2013 UGOALA CHIDINMA JOY (MRS.) vs. ABIA STATE UNIVERSAL BASIC EDUCATION BOARD & ORS (unreported) held as follows” “The Claimant has also alleged continuance of injury in claiming the exception to the limitation law. Continuance of injury or damage has been held in a plethora of cases to mean the continuance of the act which caused the injury or damage and not merely continuance of the injurious effect of the legal injury. It means continuance or repeat of the act which caused the injury. It doesn’t mean the concomitant effect of the damages or injury. See: OLAOSEBIKAN vs. WILLIAMS (1996) 5 NWLR (Pt. 449) 437 @ 456; OBIEFUNA vs. OKOYE (1961) All NLR 357”. In view of the above exposition, it follows that the Claimants have not made out any case of continuance of injury or damage. The Defendants act of stopping to assign work to the Claimants and ceasing to pay them Salaries (which in fact amounts to disengaging them from employment) was accomplished or completed in June 2011. It is not a continuing act; neither is it being repeated. The case of the Claimants is not that they are being owed for work they have been doing over several months. For the continuance of injury exception to apply, the Claimants would need to have remained in their employment working and then suing to complain that salaries they have worked for were not paid. But in this case, the Claimants are battling to nullify the cessation of their employments which was stopped by the Defendants in June 2011. When a person’s employment is stopped, the injuries following the loss of the job can be said to be continuing, but the act of stopping the job which is the cause of action, is not continuing. “Continuance of injury” in the context of the Public Officers Protection Act therefore means repetition of the act that constitutes the Legal wrong and not the continuance of the consequences that followed the legal wrong. Counsel urged the Court to hold that the “Continuance of injury” exception being canvassed by the Claimants is inapplicable to the circumstances of this case. Therefore the case of CBN vs. AMAO (2010) 16 NWLR (Pt. 1219) 271 relied upon by the Claimants’ Counsel is not applicable to the facts of this case. The Claimants’ Counsel has also argued that the Public Officers Protection Act does not apply in this case because the Claimants raised the issue that the Defendants acted in bad faith and with malice. As long ago as in 1974, Oputa, J (as he then was) in NNADOZIE OPULOZO vs. AGRIC. DEV. CORPORATION (1970) 4 ECSLR 226 @ 231 held that the question as to whether the conduct of a public officer exceeds the scope of his office to disentitle him to protection under the Public Officers Protection Act can only arise where the suit is filed within the 3 months statutory period and so where the action is filed outside the 3 months statutory period, it is no answer to argue that the conduct of the Public Officer was done outside the scope of this office. The above position of the law was re-integrated by the Court of Appeal in FAJIMOLU vs. UNILORIN (2007) 2 NWLR (Pt. 1017) 74 @ 89 where Ogunwumiju JCA held as follows:- “Under the Provisions of Section 2(a) of the Public Officers Protection Act, any action or prosecution or other proceedings commenced outside the three months period is totally barred as the right of the injured person to commence the action, prosecution or proceedings has been extinguished by law. Indeed, at that stage the person has no cause of action. Thus whether an act complained against a public officer was done in the execution of a public duty can only be canvassed where there is cause of action, i.e. where the action is instituted within three months”. The above position of the law has earlier been confirmed by the Supreme Court in EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 @ 585, 596 – 597. Counsel urged the Court to hold that in so far as the Claimants’ suit was filed outside the statutory 3 months period, the issue of malice and bad faith is irrelevant. Furthermore, this position of the law is not changed by the fact that the objection was argued after the Claimant had given evidence. According the applicant, the dictum in FAJIMOLU vs. UNILORIN cited by the Claimants’ Counsel in paragraph 20 of his Written Address was quoted out of context. The court in that passage which was obiter, was referring to a situation where evidence had been led by “the parties” in which situation, the court would, of course, examine such evidence “in order to determine Liability”. In the present case, “the parties” have not given evidence as the Defendants have not entered defence. It is further submitted that the approach followed by the Defendant of arguing this objection after evidence by the Claimants when all the facts as alleged by the Claimants have fully crystallized cannot be faulted as same is consistent with principles. See also NPA vs. AJOBI (2006) 13 NWLR (Pt. 998) 471 where this approach was also followed. In conclusion, Counsel for the applicants urged the Court to grant the Defendants’ application and dismiss this suit for being clearly statute barred. I have carefully considered the processes relevant to this application and one issue presents itself for determination in the application. The issue is: Whether the Claimants’ suit is statute barred? In paragraph 12 (a) of their statement of defence, the defendants pleaded the facts that the claimants’ suit is statute barred by virtue of the Public Officers Protection Act. Sequel to this averment, the defendants have now filed the instant motion praying this court to dismiss the claimants’ suit on the ground that this court lacks jurisdiction to entertain same for the various reasons that the suit is incompetent and statute barred. The facts relied upon by the defendants as constituting the lack of jurisdiction were deposed to in the affidavit in support of the motion where it was stated that the claimants cause of action arose in June 2011 while they filed this suit on 21/5/2012. By the provision of the Public Officers Protection Act, the claimants’ suit against the defendants has become statute barred. In opposing the application, the claimants filed a counter affidavit wherein they denied the facts deposed to by the defendants as constituting the facts of the statute bar, which facts, they also contend, are not facts but arguments and conclusions. The claimants further put reliance on paragraph 9 of CW’s further evidence where she testified that the acts of the defendants were actuated by bad faith, malice and abuse of office, and the injury to the claimants is a continuing injury and that their claim is for salaries and allowances withheld since June 2011. The provision of the POPA relied on by the defendants as having affected the claimants’ suit is Section 2 (a) of POPA. The defendants’ Counsel has submitted in his written address that by section 2 (a) of the POPA, this suit ought to have been instituted against the defendants, who are public officers, within 3 months from the accrual of the cause of action in June 2011. This suit, having been filed on 21/5/2012, has become statute barred. The said Section 2 of the Public Officers’ Protection Act provides: “2. 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.” The above provision is very clear and unambiguous. It is to the effect that an action against a public officer in respect of any act done in pursuance or execution of any Act or law or of public duty or any default in respect same 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 case the complainant must institute the action within 3 months after the cessation of the damage or injury. From the wordings of the provision, before a person can take protection under the section, it must be shown that- i. The person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of the Act. ii. The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 12 SC 20. In this matter, and having read through the processes filed by the parties, it is not in dispute that the defendants are public officers and they have been sued in this suit in respect of their default in the execution of a law or public duty. See paragraphs 2, 3 and 7 of the claimants’ statement of facts. It is clear therefore that the defendants can take protection under the POPA in this action. That being the case, is this suit statute barred? By the provision of section 2 (a) of POPA, this action ought to be commenced against the defendants within 3 months of the accrual of cause of action except in a situation of continuance of damage or injury, in which case the suit must be commenced 3 months after the damage or injury have ceased. In determining whether this action is statute barred, there is the need to determine when the cause of action arose and when this suit was filed. The defendants, in paragraphs 3 and 6 (a) of the affidavit in support of the motion, deposed to the facts that the claimants filed this suit on 21/5/12 while they pleaded the fact and also gave evidence that their cause of action arose in June 2011. The claimants have however contended that the deposition in paragraph 6 of the defendants’ affidavit in support of the motion offends Section 115 Evidence Act. In paragraph 4 of the claimants counter affidavit, it was deposed that the matters stated in paragraph 6 of the affidavit in support of the motion are not matters of fact but argument, conclusions and prayers. In his written address, the claimants’ counsel submitted that the said paragraph 6 of the defendants’ affidavit ought to be struck out having offended section 115 of the Evidence Act. As a consequence of the striking out of the paragraph, the claimants counsel submitted further that the defendants have failed to show or prove that the action is statute barred. I shall comment briefly on the legal status of paragraph 6 of the defendants’ affidavit. I have read the depositions in the said paragraph and I am of the view that the provision of Section 115 of the Evidence Act has not been flouted. Paragraph 6 of the defendants’ affidavit refers to facts pleaded by the parties. I have read the pleadings of the parties and I find that such facts have actually been pleaded. The depositions are facts and not prayer or objection or conclusion. Furthermore, the deponent has explained the source of his information, the place, date and his belief in the information. Paragraph 6 of the defendants’ affidavit is valid in law and has not offended the Evidence Act. This view of the court notwithstanding, the law is even settled that in determining whether a suit is statute barred, the processes to which recourse should be had are the writ and the statement of claim. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be deduced. See the Supreme Court cases of JSF INV. LTD vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902; ELABANJO vs. DAWODU 2006 All FWLR Pt. 328 604 at 646. In AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507, the principle was stated this way- “In order to determine if a party’s action is statute barred, the court is only enjoined to look at the plaintiffs’ claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued”. Also in GULF OIL CO LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 at 721, it was held that recourse can be had to the writ and the statement of claim in determining if an action is statute barred without necessarily taking oral evidence. The same position was taken in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345 where it was stated that statute of limitation can be raised in limine without any evidence in support. From these authorities, it is clear that the question of statutory limitations is determined from the writ of summons and the statement claim and not necessarily from affidavit or oral evidence. I now turn to the main issue. I have looked at the complaint and the statement of facts in order to ascertain the date on which the claimants’ cause of action accrued and when this suit was filed. There is no dispute as to when the suit was filed. It is disclosed on the complaint that this suit was filed on 21/5/2012. What however appears to be the contention between the parties is when the cause of action in this suit arose. While the defendants hold the position in this motion that the claimants, by their averments in paragraph 7 of the statement of facts, their cause of action arose in June 2011, the claimants on the other hand have contended that their cause of action is a continuing injury which had not ceased at the time of the commencement of this suit. According to the claimants, time should only begin to run against them 3 months after the injury has ceased. With these varied positions held by the parties, it will be necessary to determine when the claimants’ cause of action actually arose and whether their cause of action is a continuing injury which has not ceased. This step is vital at this point because when dealing with statutes of limitation, it is necessary to determine the precise date upon which the cause of action arose, as time will begin to run from the time the cause of action arose. How does the court determine when a cause of action has accrued? This same question was posed by Agube JCA in the case of ACCORD PARTY vs. GOVERNOR OF KWARA STATE (2011) All FWLR (Pt. 555) 220 at 277 and the learned jurist answered the question by reference to the dictum of Tabai JSC in the case of ADEKOYA vs. FHA (2008) NSCQR (Vol. 34) 952 at 965-966 where it was held that – “A cause of action cannot be said to accrue to the appellant unless and until there emerges a factual situation which gives her a right of action”. In CROSS RIVER UNIVERITY OF TECHNOLOGY V. OBETEN (2012) ALL FWLR (Pt. 641) 1567 at 1583, it was held that- “A cause of action accrues on the particular date which gave rise to the incident in question. For the purposeful intendment of statutes with stipulation of durational limitation, the clock begins to wind down and time begins to run from the moment which culminates into the date on which the cause of action accrues”. Also in AMEDE vs. UBA (SUPRA) at 507, it was held that the test of determining when a cause of action accrues is when it can be said or there exist in the person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. The same view was held in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348 where it was stated that- “Time begins to run for the filing of an action when the cause of action arose. This means that once there exist two people with interest at variance to each other over a subject matter, then the aggrieved party must go to court timeously” What is the factual situation in this case which gave the claimants the right of action? It is the day the factual situation came into existence that their cause of action arose. In their statement of facts, the claimants narrated their grievance resulting to this suit and they particularly pleaded in paragraphs 7 and 8 of the statement of facts as follows- “7. The claimants state that the defendants without hearing from them in any manner suddenly STOPPED the payment of the agreed salary and allowances in June 2011 contrary to the contract of employment between the claimants and the defendants as discernible from the totality of the documents constituting same and in violation of the 1999 constitution which entitles them to hearing” 8. The claimants have by themselves and otherwise demanded payment of the agreed salaries, wages and allowances from the defendants but to no avail. The relevant demand letters shall be relied upon at the trial.” From these facts of the claimants’ case, it can be seen that the cause of their complaint was the stoppage of their salaries by the defendants which action happened in June 2011. The claimants’ demand for payment of the salary has not been successful since June 2011. It is therefore clear that the claimants’ cause of action arose in June 2011. The date this suit was filed on 21/5/2012 establishes the fact that it was filed more than 3 months after the cause of action accrued. It is in view of this fact that the defendants have now contended that the claimant’s suit is statute barred having not been instituted within three (3) months of the accrual of the cause of action. The claimants have contended that their complaint, that is the non-payment of salaries to them, is a “continuing injury” which injury has not ceased; therefore, their suit is not statute barred. The paragraphs of the Claimant’s statement of facts set out above show the basis of their cause of action. I cannot find any element of continuance of injury in these paragraphs. The claimants pleaded that their salary was “stopped” in June 2011 and of particular relevance to this issue is the claim in relief ii of the complaint. There the claimants claim a declaration to the effect that the “cessation” of the salary is unjust and wrongful. When did the payment of their salary cease? June 2011. For all intents and purposes, their cause of action commenced and was complete at that period. The claimants’ counsel cited and relied on the case of CBN vs. AMAO to support his contention that the non-payment of their salaries is a continuing injury. The point must be made here that the facts of CBN vs. AMAO case can be distinguished from this case. In that case, the issue was in respect of the respondents’ pension, which they were entitled to statutorily. The appellants did agree that the respondents were entitled to their pension. The issue was not whether the respondents were entitled to be paid pension but how much was to be paid. The appellant was even paying monthly pensions to the respondents but less than what the respondents were entitled to on monthly basis thereby leaving part of their monthly pension unpaid. It was on the basis of these facts the Supreme Court held that each month the respondents are paid pension less than as harmonized, it is a continuing injury or a fresh cause of action in respect of the balance. The situation is clearly different in this case. The defendants stopped payment of any salaries to the claimants in June 2011 and they have not pleaded anywhere that any part of their salaries was paid to them after the stoppage. It appears to me that the stoppage of the claimant’s salary is not dissimilar from suspension (in this case, of their salary). Such an action cannot be said to be a continuing injury. This was the view of the court in NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343. The respondent in that case was suspended on 22nd September 2004 and placed on half salary from the date of his suspension. He commenced the suit on 9 February 2005. The respondents counsel did contend that the suspension was a continuing act not caught by POPA. The Court of Appeal, at page 350 of the report held that suspension started on a definite date which was the date of the cause of action for all intent and purposes and there is no basis to argue that the suspension was a continuous act not caught by the Public Officers Protection Act. It is my view therefore that the claimants’ cause of action, which arose in June 2011, was not a continuing injury or damage as contemplated in section 2 (a) of POPA. In his further contention that this suit is not caught by POPA, the claimants counsel has argued in paragraphs 20 and 21 of his written address that the action of the defendants complained about was actuated by malice and bad faith as has been shown in the evidence adduced by the claimants. It was contended by counsel that the defendants cannot, as a result, be protected by POPA in this instance. As rightly submitted by the claimants’ counsel, abuse of office or bad faith are factors that deprive a party who would otherwise be entitled to protection under Section 2 (a) of the POPA. The POPA is designed to protect officers who act in good faith and does not apply to acts done in abuse of office. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067. However, the issues of malice or bad faith can only be applied to disentitle the public officer from the protection of POPA if the action has been commenced against him within the 3 months period. In KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182, it was held that a public officer, who in the course of performance of public duty, does so maliciously or for private spite, has no protection under section 2 of POPA if the action is filed against him within 3 months. See also the Supreme Court case of EGBE V. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 585 relied on by the claimants counsel in his argument on this point. In EGBE vs. ALHAJI case, the Supreme Court clearly explained when the issues of malice or bad faith will vitiate the protection under POPA. Per Karibi-Whyte JSC (as then was) held at pages 596-597 thus: “Where the action was instituted within the period of three months prescribed, there is a cause of action and the legality vel non of the action complained of can be in issue. It is in such a situation that at the trial, evidence can be led to determine whether the protection under the Public Officers Protection Act has been vitiated by malice, improper motive, bad faith or deliberate exercise of power without lawful authority” On his part, Uwais JSC (as he then was) at page 572 of the report commented thus- “In a civil action when the defendant invokes in limine the provisions of the Public Officers Protection Act, it is not proper for the trial court to conclude or infer from the pleadings that the protection afforded the defendant by law has been vitiated by malice or bad faith. What the trial court is obligated to decide at that stage is whether the action is maintainable and whether the defendant is liable In view of the foregoing opinions of the learned jurists, the question whether the defendants acted in bad faith or malice is premature at this stage; the suit having not been commenced within 3 months from when the cause of action arose. Since the action was not filed within three months from the accrual of the cause of action, this court cannot inquire into whether malice has vitiated the protection afforded the defendants under POPA. The argument of the claimants counsel is that since evidence has been taken from the claimants, relying on the case of FAJIMOLU vs. UNILORIN, this court should consider the evidence of bad faith and malice to strip the defendants of the protection. It should be noted that this is not a final judgment but only a ruling on the defendants’ motion. Evidence has not been taken from the defendants. What the claimant is urging me to do by considering evidence already on record is to delve into the substantive case. I am not permitted to do that at this stage. I am in agreement with defendants’ counsel in his reply on points of law, that in as far as the claimants’ suit was filed outside the statutorily prescribed 3 months, the issue of malice or bad faith has become irrelevant. In my view, it is only if this action is competent, that is it had been commenced within 3 months, that this court can consider whether the protection has been vitiated by malice or bad faith. There is no doubt from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The claimant did not commence this suit against the defendant within the statutorily prescribed 3 months. Consequently, the suit is statute barred. In NWAOGWUGWU vs. PRESIDENT FRN (2007) All FWLR (Pt. 389) 1327 at 1359, it was held that a legal right to enforce an action is not a perpetual right but a right limited by statutes. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer completely institute the action as the action is statute barred and it affects the competence or jurisdiction of the court. In this instant suit, the cause of action arose in June 2011 when the defendants stopped the claimants’ salaries. However, the present action was not commenced until 21st May 2012, a period of about 11 months since the cause of action arose. It is clear that the claimant’s suit was not filed within 3 months from the date of the stoppage of their salaries. The action is no longer maintainable. The right of the claimants to any relief has been extinguished by law and this action is consequently incompetent. This court lacks jurisdiction to determine this suit. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, the claimants, having commenced this action against the defendants after the period specified in Section 2 (a) of POPA, the action is statute barred and it is hereby dismissed. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge