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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: APRIL 15, 2015 SUIT NO. NICN/LA/556/2013 BETWEEN 1. Mrs. Aworanti Oluwakemi Shakirat 2. Mrs. Sadiq Oluwakemi Adija 3. Bada Olukunle Kayode - Claimants AND Lagos State Board of Internal Revenue - Defendant REPRESENTATION Mrs. N. D. Ememonu and Prince A. A. Akpomreta, for the claimant. O. A. Alaba, Senior State Counsel, Lagos State Ministry of Justice, for the defendant. RULING The claimants by a complaint dated and filed on 17th October 2013 instituted the present suit against the defendant. By the complaint and its accompanying statement of facts, the claimants are seeking the following reliefs from this Court – 1. A declarative order of this Honourable Court declaring that the Contract of Employment between the claimants and defendant is tainted with statutory flavour. 2. A declarative order of this Honourable Court declaring that the dismissal of the claimants by defendant from the employment of the defendant verbally on June 13, 2011 as wrongful and unlawful for being in breach of established principles of law, equity and proper disciplinary procedure. 3. A declarative order of this Honourable Court declaring that the claimants are still in the employment of the defendant. 4. An order of this Honourable Court mandating and directing the defendant to reinstate the claimants to the status and grade which the claimants respectively ought to have been respectively from June 13, 2011 when the claimants were unlawfully dismissed by the defendant from the employment of the defendant to when judgment is entered in this suit and when the defendant complies with judgment of this Honourable Court. 5. An order of this Honourable Court mandating and directing the defendant to pay to the claimants respectively all their unpaid salaries and emoluments accruable to each of the claimants from June 13, 2011 when the claimants were unlawfully dismissed by the defendant from the employment of the defendant to when judgment is entered in this suit. 6. An order of this Honourable Court mandating and directing the defendant to pay to the claimants respectively interest at the rate of 30% per month on the unpaid salaries and emoluments of the claimants, which was unlawfully withheld by the defendant from June 13, 2011 to when judgment is entered in this suit. 7. An order of this Honourable Court mandating and directing the defendant to continue to pay to the claimants their salaries and emoluments with an interest rate of 30% from when the judgment of this Honourable Court is complied with by the defendant. At the Court’s sitting of 5th March 2014, the Court noted that the claims of the claimants relate to acts done on June 13, 2011 while the present action was filed on 17th October 2013 i.e. over 2 years since the acts complained of were done. The question accordingly arises whether this action is not caught up by the Public Officers Protection Law. Parties were then asked to file and serve written addresses on the issue starting with the claimants. The claimants did not file their written address as ordered by the Court; as such the defendant filed its own on 3rd June 2014. It was thereafter that the claimants filed theirs on 11th November 2014 to which the defendant filed a reply on points of law on 18th November 2014. On the date set for the adoption of these written addresses, while counsel for the defendant was in Court and formally adopted its final written address and reply on points of law, the claimants’ counsel was not. The Court had to deem the claimants’ written address as adopted. The defendant framed one issue for the determination of the Court, namely: whether in the light of pleading, this Court has jurisdiction to determine the suit and whether the cause of action is statute barred. To the defendant, a Court is competent when the four conditions stated in the case of Madukolu v. Nkemdilim [1962] 2 All NLR 581 are met. These are that: i. The Court is properly constituted with respect to the number and qualification of its member; ii. The subject matter of the action is within its jurisdiction; iii. The action is initiated by due process of law; and iv. Any condition precedent to the exercise of its jurisdiction has been fulfilled. That from the above it is clear that for a Court to have jurisdiction over a particular matter there must not be any legal impediment in the suit as constituted. The law is clear that it is futile for a Court to entertain a matter where it lacks jurisdiction, referring to Nigerian Ports Authority v. Eyamba [2005] 9 CLRN 92. The defendant went on that for there to be a proper appraisal of the case of the claimants, it is necessary to determine, as a preliminary point, its cause of action against the defendant. That cause of action has been defined as the fact or combination of facts which give rise to right to sue, referring to Udoh Trading Company Limited v. Abere [2001] 11 NWLR (Pt. 723) 114 at 129. That in order to determine the cause of action, recourse must be had to the claimants’ originating processes. In other words, the claimants’ statement of claim (not the defendant’s statement of defence) determines the existence or otherwise of a cause of action, citing 7-Up Bottling Company Limited & ors v. Abiola and Sons Bottling Co. Ltd [2001] 13 NWLR (Pt. 730) 469 at 495. The defendant continued that the claim of the claimants is for this Court to amongst others declare that the claimants are still in the employment of the defendant, order that the claimants be paid all unpaid salaries and emoluments accruable to each claimant from June 13, 2011 to when judgment is entered and at the interest rate of 30% per month on the unpaid salaries and emoluments of the claimant. From the claimants’ statement of facts, the material date as pleaded with respect to the dismissal from the employment of the defendant was 2011. That the law as to limitation of action in respect to actions against public officers in Lagos State is as provided for in section 2 of Public Officers Protection Law Cap. P26 Laws of Lagos State of Nigeria 2003, which section provides inter alia that – The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, negligent or default complained of…. That the effect of this provision is that an action found on public duty or authority is barred after a period of three months. To the defendant, an employee of a public body who seeks to challenge the termination of his employment must do so within the time prescribed by the applicable law as stated in the case of Obiefuna v. Okoye [1961] 1 All NLR 357. That there are two conditions precedent to the applicability of section 2 of the Public Officers Protection Law, which are – i. It must be established that the person against whom the action is commenced is a public office or person acting in the execution of public duties. ii. The act done by the public officer must be one done in pursuance or execution of any law, public duty or authority. That from the above, it is established that the defendant is a public officer acting in the execution of public duties. That for an action to be properly constituted it must, therefore, be brought within the statutorily prescribed period, citing Sadiq v. Akinkunmi [2000] 2 NWLR Pt. 696 101 at 111. That to determine whether a cause of action is statute-barred or not, the Court has to determine when the cause of action accrued vis-à-vis when the writ of summons was filed. To do this, the Court is enjoined to look only at the statement of claim and the writ of summons, citing Woherem v. Emereuwa [2004] 13 NWLR (Pt. 890) 402. To the defendant, the relevant date as averred in the statement of facts is 2011, while the General Form of Complaint itself is dated the 17th October 2013. That in Woherem v. Emereuwa, the Supreme Court at page 416 accentuated this point by stating that “what need be emphasised is that the determining factor is the averment in the plaintiff’s writ of summons and the statement of claim”. The defendant then drew the Court’s attention to the case of the claimants as pleaded in their originating processes. That it is trite that parties are bound by their pleadings, citing Total Nigeria Plc v. Ajayi [2004] 3 NWLR (Pt. 860) 270 at 303. The defendant continued that having ascertained the claimants’ cause of action and the time when the cause of action accrued, the next point is to determine when time begins to run for purpose of limitation. In this regard, the defendant referred to R.C.C Nigeria Limited v. Buratto [1993] 8 NWLR (Pt. 312) 508 at 573, where the Court of Appeal held as follows – The position of the law in this respect as stated by the Supreme Court in Fadare v. Attorney General of Oyo State [1982] 4 SC 1 at 24 – 24 is that for the purposes of statutory limitation of actions time begins to run from the moment that the cause of action arises, and there exists a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. In the present appeal, it goes without saying that in respect of the respondent’s claim against the appellant, on the face of it, time began to run from the date of the outbreak of the fire in the premises of the appellant which led to the injury sustained by the respondent namely 2nd February, 1976. That from this case, for the purpose of statute of limitation time will begin to run when the following conditions are present: a. The cause of action must have arisen. b. There exists a person who can sue. c. There exists a person who can be sued. d. The facts which are needed to prove the claim have happened. The defendant then submitted that all the four conditions stated above occurred in 2011 as pleaded in the claimants’ statement of facts. In contrast, that the General Form of Complaint was issued on 17th October 2013 and the statement of facts dated same day. That it is, therefore, apparent that the case of the claimants is caught by the provisions of section 2 of the Public Officers Protection Law of Lagos State. The defendant then urged the Court to find and hold that the claimants’ cause of action accrued in 2011 and is, therefore, statute-barred. To the defendant, the next issue to be addressed is the order the Court should make in the circumstances of this case. That it is settled that where a Court finds that an action is statute-barred such a finding is an end to the action. As at that stage, that cause of action is not capable of re-litigation, as such the proper order is one of dismissal. The defendant then referred to Ogoh v. ENPEE Ind. Ltd [2004] 17 NWLR (Pt. 902) 460, which held that – “It is certainly the law that where a statute provides for the bringing of an action within a prescribed period in respect of a cause of action that had accrued to a claimant, proceedings cannot be brought after the time prescribed by such a statute as was sought to be done in the instant case... In conclusion, the defendant submitted that having regard to the foregoing, the claimants’ case is statute-barred. That it is caught by the provision of the Public Officers Protection Law and should, therefore, be dismissed. That the action as constituted runs afoul of the law by being instituted after the expiration of the prescribed time and is, therefore, statute-barred. That the effect is that the statute has removed the right of action, the right of enforcement, the right to judicial relief and leaves the claimants with a bare cause of action which itself is not admitted by the defendant. The claimants in reaction adopted the sole issue of whether the claimants are statute-barred in bringing this action. To the claimants, a cause of action is a fact which when proved entitles the plaintiff to a remedy against a defendant. That in the instant case, the claimants were allegedly dismissed orally from their duties. That the claimants were by letters dated 26th March 2009, 29th October 2001 and 4th February 2009 respectively engaged into the service of the defendant. From this, a written contract of employment was established between the claimants and the defendant. That it is trite law that a written contract cannot be varied, altered or terminated orally. The claimants went on that the defendant is an agency of the Lagos State Government and their relationship is governed by statute which empowers the agency to formulate a handbook to set out guidelines for employment, working and disciplinary procedure and how the employee is to be dismissed. This automatically gives the relationship between the claimants and the defendant a statutory flavor. In view of this, due process must be complied with before the claimants can be disengaged from their services. That this was totally disregarded, referring to Longe v. FBN [2010] 6 NWLR (Pt. 1189) 1 SC. Furthermore, that in flagrant disregard of the law and the guiding handbook on procedure, no letter of dismissal was issued on the claimants; as such it cannot be said that the claimants have been disengaged from their duties. To the claimants, a Court has jurisdiction when the following four elements are present – a. The Court is properly constituted with respect to the number and qualification of its member; b. The subject matter of the action is within its jurisdiction; c. The action is initiated by due process of law; and d. Any condition precedent to the exercise of its jurisdiction has been fulfilled. The Court was then referred to Madukolu v. Nkemdilim [1962] 2 All NLR 581 and Attorney-General of Anambra State v. Attorney-General of the Federation [2007] All FWLR (Pt. 379) 1218. The claimants continued that from the statement of facts dated 17th October 2013, it is clear that the claimants have an existing cause of action. That the position of the law is that they were never dismissed, they are still in the employment of the defendant, they are merely deprived of their salaries and emoluments which is why the defendants (sic) are in Court. This is glaring in paragraphs 20 and 21 of their statement of fact. Also that from the nature of the relationship between the parties, it is a written contract tainted with statutory flavor and this nature of contract can only be determined in writing, referring to CBN v. Igwillo [2007] All FWLR (Pt. 379) 1385 at 1387. That the defendants (sic) are still in the employment of the defendant even now, consequently, they deserve their salaries and emoluments till final determination of this case and access to their offices. The claimants then quoted section 2 of the Public Officers Protection Law Vol. 6 Cap. 26 Laws of Lagos State 2006, which provides that – Where any action, prosecution or other proceedings is concerned against any person for any act done in pursuance or intended execution of any Act or Law or of any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect: a. the action, prosecution or 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. To the claimants, the purpose of this provision is to give protection to a public servant but never intended to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice. Nevertheless, there are exceptions to this protection under the law, referring to Attorney-General of Rivers State v. Attorney-General of Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 at 148. That the Supreme Court has in a number of cases expounded and propounded a number of exceptions to the above stated protection, citing NPA v. Construzioni Generale Farsura Cogefar SPA & anor [1974] 1 All NLR 463. That these exceptions are – a. Cases of continuous damage or injury. b. A situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty. c. Cases of recovery of land. d. Breaches of contract. e. Claims for work and labour done. f. Good faith. It is accordingly the submission of the claimants that the exceptions listed in a, b, d and e above avail them in this case. It is also the submission of the claimants that for the defence of statute-bar to avail the defendant, it must be raised as a defence by the defendant. The claimants’ case must be heard on the merit. In the case of Frin v. Gold [2007] All FWLR (Pt. 380) 1444 at 1448 the Court held that for section 2 of the Public Officers Protection Act to be applicable, it is a fundamental condition that as a special defence, it must be pleaded and proved by the defendant. This is to give them an opportunity to plead the requisite date of accrual of cause of action and the expiry of the applicable period of time and where this defence is not taken, it is deemed as waived. That it appears that from this Supreme Court decision that for the provision of section 2 of the Public Officers Protection Act to be applicable, the case must have to go into trial and the defendant must plead this provision as a defence thereby giving their own side of the story and stating the dates which forms the foundation of their defence. That the section does not rob the claimants of the right to be heard by this Court. In respect of exception “a” listed above which deals with cases of continuous damage or injury, the claimant referred to Attorney-General of Rivers State v. Attorney-General of Bayelsa State (supra) where the Court stated that – In cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the Defence is not available to the 1st Defendant... That in the instant case, since 11th June 2011, the claimants have not received any payment or salaries neither were they dismissed. The claimants, whilst still being employed, are not been paid their salaries and emolument since 2011 till date. The act which gave rise to this cause of action is still on, it has not ceased and will only cease when they have been dismissed. They are still staff and still being owed even now. The damage they are suffering is still on, referring to Aremo II v. Adekaye [2004] All FWLR (Pt. 224) at 2113 – 2132. That this exception is glaring on the face of the statement of facts of the claimants in paragraphs 19, 20 and 21. Regarding exception “b” i.e. a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty, the claimant submitted that the provisions of the Lagos State Internal Revenue Service Staff Policy Handbook on disciplinary procedure on pages 43 to 50 provides for procedure through which a staff should be dismissed. That even when the claimants have committed any offence, a disciplinary procedure has been laid down. This procedure must be complied with. Where this procedure is disregarded, whosoever that purportedly acted, acts in vain. Such person acts in ultra vires his powers and the provision of section 2 of the Public Officers Protection Act will not avail the defendant, referring to Longe v. FBN (supra). The claimants went on that the non-compliance with the relevant provisions of the statute regarding termination will result in an ineffective exercise of the power to terminate. It means that the act is ultra vires and void. It is as if nothing happened. It is taken that no act was done. It then means that the said oral termination of the claimant’s employment is ineffective. On exception “d” in respect of cases of breach of contract, the claimants contended that the relationship between the claimants and the defendant is a contractual relationship and this form of contract is tainted with a statutory flavor. That in CBN v. Igwillo [2007] All FWLR (Pt. 379) 1385 at 1387, the Supreme Court held that an employment is said to have a statutory flavor when the appointment is protected by statute or laid down regulation made to govern employment and discipline of an employee. That the Court further held that where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing. A contract which must in law be in writing can only be varied by an agreement in writing. To the claimants, the defendant is a Lagos State Government Agency established by law. Its activities and relationship is regulated by statute. It, therefore, means that the relationship between the parties in this case is regulated by statute which must be complied with. Failure to act within the limit prescribed by the regulating law is null and void. It means that the relationship is regulated by statute and all acts between the parties must conform to the provisions of that statute, failure of which will result in a breach of the contractual agreement, citing CBN v. Igwillo (supra). That the defendant failed to follow the due process before discontinuing the payments of salaries and other emoluments till date. In fact, that no letter was issued to any of them. That this is a breach of their contractual agreement. That in Attorney-General of Rivers State v. Attorney-General of Bayelsa State [2007] All FWLR (Pt. 349) 1012 at 1015, the Court held that “for a cause of to be said to have accrued in an action founded in breach of contract, there must be breach by the party in default thereby kick starting the cause of action”. In conclusion, the claimants submitted that where there is a wrong, there is remedy. That the Claimants, having entered into a contractual relationship with the defendant which is regulated by a statute, the said statute must in all ramifications be complied with by all parties thereto before any act must be upheld as validly done. That a flagrant disregard of this laid down procedure gives right of action to the other party. In this case, this right is still alive, even now. That the defendant has not put anything before the Court to proof that the claimants are barred. They should be allowed to put their case forward as stated in the case of Frin v. Gold (supra). That the Court is the last hope of common man. The defendant must not be allowed to make rubbish of laid down laws and rules even the one it made for itself (i.e. the working handbook). They must be held to their words and be forced by the Court to uphold the rule of law. That the act of orally terminating the employment of the claimants by the defendant in flagrant disregard of due process and laid down rules is null and void. The guiding handbook and enabling statute are not there for fancy, they must be applied to the letter and the Court is charged with the duty of ensuring that the erring party does not walk away with a pat on the back. In reacting on points of law, the defendant submitted that once a statute provides that for a Court to have jurisdiction, the action must be commenced within a stipulated time frame. An action commenced after such time frame removes the seat from the case and the case collapses. This is because you cannot build something on nothing. That parties are bound by the terms of contract and a breach by one party automatically terminates such a contract. The terms of contract in this present suit is embodied in the letters of employment from the defendant to the claimants. Paragraphs 7 and 8 of the letter of employment provides that each staff agrees to be bound by a summary disciplinary procedure as may be established by the management of the defendant and to comply with all the rules of the staff handbook. The defendant continued that paragraph 13 of the said letters of employment provides that other terms of the claimants’ employment are as contained in the staff handbook. It is, therefore, the submission of the defendant that the procedures to be followed in terminating the claimants’ employment are as contained in the staff handbook. That it is important to state the provisions of paragraph (g) under disciplinary procedure at page 39 of the defendant’s staff handbook to wit: “an employee may be summarily dismissed by the Executive Chairman for certain offences covered by the broad heading of gross misconduct which includes proven cases of irregular practices in respect of cash”. That every staff of the defendant knows the practice that cash is not to be handled by staff but are to be paid to the bank. That the claimants know this but flouted the policy which led to them facing disciplinary committee properly constituted under the handbook. The claimants breached the terms of contract with the defendant and consequently had to be dismissed. To the defendant, the claimant instituted this present suit 2 years after the said termination took place hence the suit is statute-barred. It is the defendant’s submission that the claimants are caught by the exceptions in NPA v. Construzioni Generale Farsura (supra). That he who comes to equity must come with clean hands. On exception (d), it is the defendant’s submission that it is the claimants that breached the contract with the defendant by collecting cash from a taxpayer when they ought to have directed the taxpayer to pay to designated bank. On exceptions (a) and (e), it is the defendant’s position that the defendant cannot pay the claimants for work not done and the claimants failed to prove that they were not paid at the time of dismissal. The defendant then submitted that there is no continuous damage or injury to the claimants since their services were terminated. That the defendant wrote termination letters and gave Courier Company to dispatch same to the claimants. The claimants were not the only staff of Imota Tax Station that were dismissed. That a disciplinary committee was set up in accordance with the staff handbook and due process was followed in dismissing the claimants. In conclusion, the defendant submitted that this suit presently before this Court is statute-barred and should be dismissed for having been filed after three months when the cause of action arose. That the exceptions stated by the claimants do not apply to this case since the claimants themselves ran afoul of same. It is the defendant’s submission that the defendant followed due process in terminating the appointments of the claimants for flouting the rules of the defendant as to non-collection of cash from the taxpayers, urging the Court to dismiss this suit. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. In considering the merit of the issue before the Court I must make a preliminary point or two. First, counsel are always advised by the Court to proofread their written addresses properly so as to avoid errors and of course not turn the Court itself to a proofreader. For instance, aside from noticeable typographical errors in the written addresses, in paragraphs 14 and 16 of their written address, the claimants would refer to themselves as ‘defendants’; and in paragraph 29 of their statement of facts, the claimants alluded to “paragraph 29 above”. The second preliminary remark is that in arguing the breach of contract exception to the application of the limitation law, the claimants unwittingly and hence unnecessarily dovetailed to discussing the merit of their case. In like manner, when reacting on points of law, the defendant naturally also dovetailed into the merit of the case in so much so that what it filed as a reply on points of law was actually not a reply on points of law but either a rehearse/rehash of arguments already made or an argument regarding the merit of the case. In either case, the said reply on points of law was most inappropriate as such. The simple issue before the Court is whether the case of the claimants is statute-barred. In determining whether an action is statute-barred, the authorities are pretty clear on how the Courts must go about it. By Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24, the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, the action is statute-barred. And by Okenwa v. Military Governor of Imo State [1997] 6 NWLR (Pt. 507) 154 at 167, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose. Thus, for the purpose of instituting an action in Court, time begins to run from the date the cause of action accrues. The case of Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 went on to state that a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. All of this has been recognised and applied by this Court in (amongst others) Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors [2013] 31 NLLR (Pt. 89) 242 NIC and Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC. What then is the cause of action, when did it arise, and when was this action filed? These are the relevant questions that must be presently answered in order to ascertain whether the instant case is statute-barred. In relief 2, the claimants are claiming for a declarative order that their verbal dismissal on 13th June 2011 is unlawful. In relief 4, the claimants are claiming for reinstatement from 13th June 2011. In relief 5, the claimants are claiming for unpaid salaries and emoluments accruable from 13th June 2011. All of these reliefs are supported by paragraphs 16 – 23, 27 and 28 of the claimants’ statement of facts in which the claimants pleaded facts as to verbal dismissal on 13th June 2011, the need for their reinstatement and the stoppage of their salaries since 13th June 2011. The claim for a declaratory order that the verbal dismissal is unlawful, the claim for reinstatement and the claim for unpaid salaries together form the causes of action in this suit; and I so find and hold. Now, whether it is the claim for a declaratory order that the verbal dismissal is unlawful, or the claim for reinstatement, or the claim for unpaid salaries, the complaint and the statement of facts make it in no uncertain terms that the claimants’ case arose since 13th June 2011. This means that the causes of action in the instant case arose on 13th June 2011; and I so find and hold. The instant case was then filed on 17th October 2013. This means that the period between when the causes of action arose and the filing of this suit is more than two years; and I so find and hold. Section 2 of the Public Officers Protection Law of Lagos State provides that the period within which an action against a pubic officer may be brought in the State is three months. In the instant case, therefore, the claimants filed their case way out of the statutory threshold allowed by the Public Officers Protection Law of Lagos State. The instant case is accordingly statute-barred; and I so hold. The claimants made an issue about being verbally dismissed and as such there is no effective dismissal for which it can be said that they are no longer in the employment of the defendant. I think the claimants lost it here. The very fact that the verbal dismissal took place on 13th June 2011, and that is what they are complaining about, means that that is the cause of action; and so it arose on 13th June 2011. So the claimants were expected to bring their action within three months of the date the verbal dismissal was made. That they did not do this meant that they slept over their rights; which is the very thing that the limitation law does not condone. There was no argument on the part of the claimants that the defendant is not a public officer for purposes of the limitation law; and even if there were, Ibrahim v. JSC, Kaduna State & ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 has clarified and held public institutions to be. The holding in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 148 that the National Boundary Commission is an agency of the Federal Government but not such a public officer under the definition of the real term “public officer” as defined in Ibrahim v. JSC, Kaduna State & ors, which counsel often use as a general proposition that public institutions are no longer public officers for the purposes of the limitation law has been severally explained away by this Court (see, for instance, Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014 and Mahmoud Bello & ors v. Nigeria Customs Service Board unreported Suit No. NICN/LA/664/2013 the ruling of which was delivered on September 25, 2014) as being more of an exception that a general rule given that in activating the original jurisdiction of the Court, the actual parties before the Supreme Court were State Governments and the Federal Government, not really the National Boundary Commission as a public institution. If the National Boundary Commission were to be the actual party, then the original jurisdiction of the Supreme Court could not have thereby been activated as it would have been the Federal High Court, not the Supreme Court, that would have had original jurisdiction over the case. The claimants, however, submitted that their action relates to claims for continuing injury and as such their case comes within the exceptions to the limitation law, citing Attorney-General of Rivers State v. Attorney-General of Bayelsa State (supra). I am not too sure that the claimants understood what the continuing injury exception to the limitation laws stand for. It must be noted that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. See Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of Carrey v. Bermondsey Metropolitan Bourough Council [1903] 675 P. 447; 20 TLR 2, Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58 and Obiefuna v. Okoye [1961] All NLR 357. See also Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor (supra). Even on the ambit of the “continuance of damage or injury” exception to the limitation of action rule, this Court in Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC, attempted a rationalization of the authorities in the following words – …the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State. For purposes of the instant case, it is my finding and holding, therefore, that the continuing injury exception is not applicable to the claimants. In advancing the ‘continuing injury’ argument, the claimants submitted further that in the instant case, since 11th June 2011, they have not received any payment or salaries neither were they dismissed. That whilst still being employed, they are not being paid their salaries and emolument since 2011 till date. Thus the act which gave rise to this cause of action is still on; it has not ceased and will only cease when they have been dismissed. That they are still staff and still being owed even now. I am not too sure the claimant factored in LUTH & MB v. Adewole [1998] 5 NWLR (Pt. 550) 406, which held that where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment; and the liability of the employer does not generally depend on demand for payment. In the instant case, therefore, the cause of action even in relation to the unpaid salaries arose on 13th June 2011 when the unpaid salaries became due and payable. The claimants also argued that their action is based on contract and for work and services rendered and so the limitation law cannot apply to it. A similar argument was made in Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor (supra) and this is what this Court said – The claimants…had argued that their complaint is a continuing injury and so the defendants cannot rely on the limitation law. In support, the claimants referred to Osun State Govt. v. Danlami (Nig) Ltd [2007] 9 NWLR (Pt. 1038) at 66 83 – 84 and 100, where the Supreme Court held that section 2 of the Public Officers Protection Act does not apply in cases of breaches of contract or claims for work and labour done. In contrast, the defendants referred the Court to Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 at 48 and 50, where the Supreme Court held that the action instituted by the claimants robbed the Court of its jurisdiction because as at the time the action was brought the claimants were no longer in employment of the defendant. Termination of employment cases have generally been held by the Courts to be capable of being caught up by the limitation laws. The point is that today there are littered in the law reports several case law authorities where our appellate courts have applied the limitation laws to employment cases. I do not accordingly see how the argument of the claimant here is sustainable. It is accordingly my holding that “contract and work for services” exception to the limitation law is inapplicable to the instant case. The claimants also argued that for the provision of section 2 of the Public Officers Protection Act to be applicable, the case must have to go into trial and the defendant must plead this provision as a defence thereby giving their own side of the story and stating the dates which forms the foundation of their defence. That the section does not rob them of the right to be heard by this Court. A similar argument was raised in Mr. Thomas Inebui v. First Bank of Nigeria Plc unreported Suit No. NICN/LA/282.2013 the ruling of which was delivered on April 29, 2014 and Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor (supra); and in both cases, this Court first acknowledged that the issue whether a matter is statute-barred is equally an issue as to jurisdiction to hear and determine it, and then went on to hold as follows – The [claimants] had further and emphatically argued that objection based on statute of limitation does not amount to a challenge to the jurisdiction of the Court, citing Madukolu & ors v. Nkemdilim; that the NIC Rules do not provide for filing of preliminary objection in lieu of statement of defence or demurrer proceedings; that a defendant wishing to rely on points of law to raise a preliminary issue is required to set out such points of law in the statement of defence before the preliminary issue is regarded as properly raised, citing Mobil Oil (Nig) Plc v. IAL 36 Inc; and that the law is that statute of limitation must be pleaded and proved, referring to Savannah Bank v. Pan Atlantic [1987] 1 NWLR (Pt. 49) 212 at 259; and this can only be done by statement of defence. In the face of more recent authorities, these arguments of the claimant cannot be correct. In Mr. Popoola Elabanjo & anor v. Chief (Mrs.) Ganiat Dawodu Suit No. SC386/2001 the judgment of which was delivered on Friday, the 23rd day of June 2006, the Supreme Court held as follows – To say, as did the trial Court and canvassed by the Appellants in their arguments before this Court, that objection to jurisdiction should only be taken after the filing of a Statement of Defence, is indeed a misconception. This entirely depends, on what materials were available. Objection to jurisdiction could be taken on the basis of the Statement of Claim as in Izenkwe v. Nnadozie [1953] 14 WACA 361 at 363; Adeyemi v. Opeyori [1976] 9 – 10 SC 31 and Kasikwu Farms Ltd v. Attorney-General of Bendel State [1986] 1 NWLR (Pt. 19) 695. It could be taken on the evidence received as was the case in Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria [1976] 1 All NLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd v. Shoyeye [1977] 5 SC 181 at 194. In fact, it could be taken even on the face of the writ of summons before filing Statement of Claim. See Attorney-General Kwara State v. Olawale [1993] 1 NWLR (Pt. 272) 645 at 674 – 675 and the recent decision in Arjay Ltd. v. Airline Management Support Ltd [2003] 7 NWLR (Pt. 820) 577 at 601. The Supreme Court went on to hold that the case of Savannah Bank v. Pan Atlantic relied upon by the Appellants was decided on its own peculiar facts where the defence under limitation statutes generally was considered. In the instant case, therefore, this Court raised the issue of limitation and the defendant responded even when it did not file any defence process. The argument of the claimants here cannot, therefore, be sustainable; it accordingly fails and is hereby rejected. In any event, the concurring judgment of His Lordship Chukwuma-Eneh, JSC in Sulgrave Holdings Inc & ors v. FGN & ors [2012] 17 NWLR (Pt. 1329) 309 at 339 – 340 noted that in some jurisdictions of this country, the limitation laws are required as per the High Court (Civil Procedure) Rules to be pleaded by the defence in order not to take the opposite side by surprise although it may also arise from the facts as pleaded without specifically alleging the relevant limitation law. In this regard, I must state that the National Industrial Court Rules 2007 does not require that limitation law be pleaded by the defence. The argument of the claimants in that regard accordingly fails and so is rejected. In paragraph 20 of their written address, the claimants asserted that the purpose of the limitation law is to give protection to a public servant but never intended to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice. A similar argument was raised in Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor (supra), and this is what this Court said – It is here that counsel to the claimants had prayed the Court to note that AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 talks of the limitation laws not being used to promote stark injustice. In this regard, I must first note the concurring judgment of His Lordship Chukwuma-Eneh, JSC in Sulgrave Holdings Inc v. FGN where His lordship at page 338 opined that “the intendment of the [Public Officers Protection] Act…has not provided a level playing ground for all persons before the law and the court and ought to be revisited by our lawmakers to reconsider in the light of the stage of our development festering with poverty and illiteracy and disease vis-à-vis the individual’s constitutional rights of equality before the law and the court and as against the background of section 6(b) of the 1999 Constitution (as amended).” Whatever reservations His Lordship may have with the Public Officers Protection Act, the point remains that he recognized that the corrective answer lay with the lawmakers (the Legislature), not the Courts. So when in AG, Rivers State v. AG, Bayelsa State & anor His Lordship Galadima, JSC at page 148 reiterated that the Public Officers Protection Act was never intended to deprive a party legal capacity to ventilate his grievance in the face of stark injustice, the idea was not that it represented a call to judicial activism or judicial lawmaking. The talk of stark injustice was simply a prelude to addressing the twin exceptions to the application of the Public Officers Protection Act: where there is continuance of injury; and where the public officer acted outside the colour of his office or outside his statutory or constitutional duty. In fact, His Lordship proceeded to address these twin exceptions in the case. In other words, stark injustice was not used by the Supreme Court as a third exception to the Public Officers Protection Act; it was simply used to prelude or explain the original exceptions to the rule. In the instant case, therefore, the argument of the claimants in that regard fails and so is rejected. It is also the argument of the claimants that the defendant acted outside the colour of its office or outside its statutory or constitutional duty by not observing the provisions of the Lagos State Internal Revenue Service Staff Policy Handbook on disciplinary procedure, which provides for the procedure through which a staff should be dismissed. That this procedure must be complied with; and where this procedure is disregarded, whosoever that purportedly acted, acts in vain and ultra vires and the provision of section 2 of the Public Officers Protection Act will not avail the defendant. In Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court held as follows – The argument of the claimant that the defendant did not lead evidence in proof of its objection is turning upside down the logic of principle. In a plea of a matter being caught up by the limitation law (the Public Officers Protection Act 2004 is a limitation law), all that is required of the applicant is to show from the originating processes when the cause of action arose and when the action was filed in court. Once this duty has been discharged, it is for the claimant to show that the matter comes within any of the permitted exceptions to the limitation law such as that the injury in question is a continuing injury or that the public officer acted mala fide i.e. outside the colour of his office or employment or outside his statutory or constitutional duty. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 32. However, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors (supra) at page 146, applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC. [It] is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard. In the instant case, I do not see how the defendant accordingly can be said to have acted outside the colour of its office or outside of its statutory or constitutional duty as not to bring into effect the limitation law. Arguments of the claimants in that regard also fail and are rejected. On the whole, and for the reasons adduced, it is my finding and holding that the instant case is statute-barred. The case is accordingly struck out. I cannot end this ruling without making this concluding remark. From the nature of case law references (particularly of this Court) that I have made in this ruling, it would be seen that there is hardly any point raised by the claimants that this Court has not made a pronouncement on. What this tells is that this Court is reaching the saturation point where counsel ought to know that the law here is now fairly settled in terms of the limitation law, whether it be the statute of limitation or the Public Officers Protection Act/law. The annoying thing is that for both counsel, they did not deem it fit to allude to any of the decisions already given by this Court; for if they had done so, this Court may have been spared the agony of having to make a ruling and keep quoting itself. The time has surely come that in future cases of this sort the Court would be minded to impose punitive cost on counsel who with no value added file cases even when they know or ought to know that they are time-barred. In this I take solace in Osisanya v. Afribank Plc [2007] 4 MJSC 128 at 147 where the Supreme Court talked of “firmly established law on master and servant relationship (especially where the contract of employment is in writing)” and seems to think that the categories of issues over which an appeal may lie up to it are already fairly closed. His Lordship Onnoghen JSC, for instance, in Ifeta v. Shell Petroleum Development Company Limited [2006] 7 MJSC 12 at 149 cautioned that if legal practitioners were only to note that the only available remedy in a master-servant case is payment of damages, client’s money and the Court’s time would be saved by their honestly advising their clients accordingly and probably settling the matter out of Court by demanding only what is legally due to their client from an employer in breach. His Lordship went on to stress that in practice, however, what the Courts see are simple cases of ordinary master and servant being turned into imaginary monsters in which compensation amounting to millions of Naira are claimed and sometimes reinstatement in addition. So you have the client saddled with enormous bills in instituting and presenting such cases of wrongful termination of employment from the High Court right up to the Supreme Court only at the end to be told the bitter truth which counsel could have told the employee much earlier and would have saved cost. Not done, the Supreme Court per His Lordship Ogbuagu, JSC in Osisanya v. Afribank Plc (supra) was stronger in cautioning that henceforth it would start awarding costs against counsel personally for filing appeals in master-servant cases on the ground of seeking the remedy of reinstatement. In like manner, instead of counsel advising their clients in terms of the limitation laws, what we see is the monotony of actions that are clearly statute-barred being filed now and then. If counsel appropriately thinks that the previous decisions of this Court were given in error, then in making submissions one would expect that such a counsel would first allude to the said decisions of this Court before stating how erroneous the decisions are. But this is not we see. As far as counsel are concerned, their advocacy does not entail references to past decisions of this Court; for if they had done that, they would certainly know what this Court had previously decided and so would save the Court valuable time in merely repeating itself. A word, it is often said, is enough for the wise. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD